Narrative. The Mutual NDA is the gatekeeping document for any bilateral business discussion — M&A diligence, vendor evaluation, partnership exploration, fundraising, customer pilots. Unlike a one-way NDA (where one side is the sole discloser), the mutual form presumes both parties will exchange confidential information and applies the same obligations symmetrically. Big-law practice in a mutual NDA focuses on five things: (1) a clean definition of Confidential Information with familiar exclusions (publicly known, independently developed, rightfully received, required by law), (2) a reasonable use restriction tied to an explicitly stated Purpose, (3) a fixed term (typically 2–5 years, with trade secrets protected as long as they remain trade secrets), (4) residuals and clean-room carve-outs only if the business case genuinely requires them (avoid by default), and (5) standard injunctive-relief, governing law, and venue provisions. A mutual NDA is the wrong form when the information flow is genuinely one-directional — use the one-way NDA in that case.

THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement“) is made as of [DATE] (the “Effective Date“) by and between [COMPANY NAME], Inc., a Delaware corporation with its principal place of business at [ADDRESS] (“Company“), and [COUNTERPARTY NAME], a [STATE] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Counterparty“). Company and Counterparty are each a “Party” and together the “Parties.”

1. Purpose

The Parties wish to explore a potential business relationship relating to [DESCRIPTION OF PURPOSE] (the “Purpose“), and in connection therewith may disclose to each other certain non-public information. This Agreement governs the disclosure and use of such information.

2. Confidential Information

2.1 Definition

“Confidential Information” means any non-public information disclosed by one Party (the “Discloser“) to the other Party (the “Recipient“), whether orally, in writing, or by inspection of tangible objects, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, financial information, customer and supplier lists, product roadmaps, technical data, source code, algorithms, designs, and the existence and terms of this Agreement and the discussions between the Parties.

2.2 Exclusions

Confidential Information does not include information that: (a) is or becomes publicly known through no breach of this Agreement by Recipient; (b) was known to Recipient, free of any confidentiality obligation, prior to disclosure by Discloser; (c) is rightfully received by Recipient from a third party who is not under any confidentiality obligation to Discloser; or (d) is independently developed by Recipient without reference to or use of Discloser’s Confidential Information, as demonstrated by written records.

3. Obligations

Recipient shall: (a) use Confidential Information solely for the Purpose; (b) protect Confidential Information with at least the same degree of care it uses to protect its own similar confidential information, but in no event less than reasonable care; (c) limit disclosure of Confidential Information to those of its employees, contractors, affiliates, and professional advisors who have a need to know for the Purpose and who are bound by written or professional obligations of confidentiality no less protective than this Agreement; and (d) not reverse engineer, decompile, or disassemble any materials containing Confidential Information.

4. Compelled Disclosure

If Recipient is required by law, regulation, or valid legal process to disclose any Confidential Information, Recipient shall (to the extent legally permissible) promptly notify Discloser in writing so that Discloser may seek a protective order or other appropriate remedy. Recipient shall disclose only that portion of the Confidential Information that is legally required and shall cooperate with Discloser (at Discloser’s expense) in any efforts to obtain confidential treatment.

5. No License; No Other Obligations

No license or other right, express or implied, is granted by either Party under any patent, copyright, trademark, trade secret, or other intellectual property right. Nothing in this Agreement obligates either Party to enter into any further agreement or business relationship.

6. Term; Return or Destruction

This Agreement commences on the Effective Date and continues for a period of [two (2) / three (3)] years, unless earlier terminated by either Party on thirty (30) days’ written notice. The confidentiality obligations set forth herein shall survive termination for a period of [three (3) / five (5)] years after the date of disclosure of the applicable Confidential Information; provided, however, that Confidential Information constituting trade secrets shall be protected as such for so long as it remains a trade secret under applicable law. Upon termination or Discloser’s written request, Recipient shall promptly return or destroy all Confidential Information of Discloser in its possession, except that Recipient may retain one copy in its legal archives solely for compliance purposes and may retain electronic copies created by routine system backups.

7. Remedies

Recipient acknowledges that any breach of this Agreement may cause Discloser irreparable harm for which monetary damages would be inadequate, and Discloser shall be entitled to seek equitable relief (including injunction) in addition to any other remedies available at law or in equity, without the requirement of posting a bond.

8. Governing Law; Venue

This Agreement shall be governed by and construed in accordance with the laws of the State of [Delaware / Florida], without regard to conflicts-of-law principles. The Parties consent to the exclusive jurisdiction of the state and federal courts located in [COUNTY, STATE] for any dispute arising out of or relating to this Agreement.

9. Miscellaneous

9.1 Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, whether written or oral.

9.2 Amendment; Waiver

This Agreement may be amended only in a writing signed by both Parties. No waiver shall be effective unless in writing.

9.3 Assignment

Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets.

9.4 Counterparts

This Agreement may be executed in counterparts, including by electronic signature, each of which shall be deemed an original.

9.5 Severability

If any provision of this Agreement is held unenforceable, the remaining provisions shall continue in full force and effect.

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COMPANY: COUNTERPARTY: [COMPANY NAME], Inc. [COUNTERPARTY NAME]

By: _______________________ By: _______________________ Name: [NAME] Name: [NAME] Title: [TITLE] Title: [TITLE]

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This form is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every situation is different; consult qualified legal counsel before using or adapting this document. © Montague Law.