Behavioral/Agent-Based Supply Chain Modeling Research Synthesis and Guide

APPENDIX B. SAMPLE NONDISCLOSURE AGREEMENT

In contemplation of a relationship between __________________________ and ____________________________, __________________________ ("Disclosing Party" ) has disclosed or may disclose to __________________________ ("Receiving Party" ) certain "Proprietary Information" as defined below. Receiving Party agrees to use Proprietary Information only for those purposes expressly permitted by this Agreement. All Proprietary Information is and will remain the sole property of the Disclosing Party.

In consideration of any disclosure, the parties agree as follows:

1. For the purposes of this Agreement, "Proprietary Information" shall mean information, whether or not originated by Disclosing Party, which is used in Disclosing Party's business and is (i) proprietary to, about, or created by Disclosing Party; (ii) gives Disclosing Party some competitive business advantage or the opportunity to obtain such advantage, or the disclosure of which could be detrimental to the interests of Disclosing Party; (iii) designated as Proprietary or Confidential Information by Disclosing Party, or from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party; or (iv) not generally known by non-Disclosing Party personnel.
2. Both Parties agree that the Proprietary Information shared in conjunction with this Agreement constitutes information exempted from disclosure under the Freedom of Information Act as defined and pursuant to 5 USC 552(b).
3. For example, Proprietary Information shall include, without limitation, the following types of information and other information of a similar nature related to Disclosing Party's business, whether or not designated as confidential or reduced to a writing, record, or tangible embodiment:
   1. Computer Software. Computer software of any type or form in any stage of actual or anticipated research and development, including but not limited to programs and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes, annotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program patches and system designs;
   2. Other Proprietary Data. Information relating to proprietary rights prior to any public disclosure thereof, including without limitation, the nature of the proprietary rights, production data, technical and engineering data, test data and test results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, trademarks, copyrights, and trade secrets);
   3. Business Operations. Internal personnel and financial information, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, the manner and methods of conducting business, and supply chains and transportation routes;
   4. Marketing and Development Operations. Marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies which have been, are being discussed or are about to be discussed; and
   5. Customers. Names and contact information of customers and their representatives, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services purchased, leased, licensed or received by customers or clients of Disclosing Party.
4. Proprietary Information shall not include information which Receiving Party can document (a) is in the public domain through no fault of its own, (b) was properly known to it, without restriction, prior to disclosure by Disclosing Party, (c) was properly disclosed to it, without restriction, by another person with the legal authority to do so, or (d) has been independently developed by employees or agents of Receiving Party who have not had direct or indirect access to, or knowledge of, Disclosing Party's Proprietary Information.
5. Receiving Party is hereby permitted to use the Proprietary Information solely for the purpose(s) of __________________________________________________________________________________________________________________________________________________________________ as addressed in Exhibit A).
6. In the absence of express prior written permission granted by the Disclosing Party, the Receiving Party shall NOT: directly or indirectly disclose, display, provide, transfer, or otherwise make available all or any part of the Proprietary Information to any person or entity at any time during the period in which Receiving Party has access to the Proprietary Information or thereafter; make copies of the Proprietary Information or any portion of it; reverse-engineer, decompile or disassemble the Disclosing Party's software or Proprietary Information or attempt to use Disclosing Party's software in any form other than machine-readable object code; disclose any Proprietary Information to any third party, except to those employees or dedicated consultants of the Receiving Party who (a) need to know such information in connection with the potential transaction between the parties and (b) are bound to Receiving Party by a duty of confidentiality similar to Receiving Party's duty hereunder. If the Receiving Party is required by applicable law or legal process to disclose any Proprietary Information, and such law or process does not prohibit notification to Receiving Party, the Disclosing Party will first use best efforts to inform Disclosing Party of any such proposed disclosure, and give the Disclosing Party a reasonable opportunity to contest such requirement.
7. Nothing in this Agreement shall be construed as granting or conferring any right by license or otherwise upon Receiving Party.
8. Upon termination of the contemplated relationship, or if it fails to commence, upon request by the Disclosing Party, Receiving Party will promptly return to Disclosing Party all Proprietary Information and all copies and extracts thereof.
9. Receiving Party will promptly notify the Disclosing Party of any unauthorized release of any portion of the Proprietary Information.
10. Receiving Party will promptly notify the Disclosing Party of any third-party request for release of any portion of the Proprietary Information.
11. Nothing in this Agreement shall be construed as obligating the Disclosing Party to disclose any information or to negotiate or enter into any agreement or relationship, including the relationship in contemplation when this Agreement was executed.
12. Enforcement
    1. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof shall be submitted to final and binding arbitration under the Commercial Dispute Resolution Procedures of the American Arbitration Association. Judgment upon the arbitration award or decision may be entered in any court having jurisdiction. The arbitrators' award may include compensatory damages against either party but under no circumstances will the arbitrators be authorized to, nor shall they award consequential, incidental, special, punitive or multiple damages against either party.
    2. Notwithstanding the above, the parties acknowledge that Proprietary Information is unique and valuable, and that disclosure in breach of this Agreement will result in irreparable injury to Disclosing Party for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or threatened breach of confidentiality, the Disclosing Party shall be entitled to seek an equitable remedy, including without limitation, specific performance, injunctive or other equitable relief. Any such equitable remedy shall be in addition to monetary damages or other legal remedy awarded by a court having jurisdiction.
13. This Agreement shall be construed and interpreted in accordance with the laws of [insert name of State agreed by the parties], without regard to its conflicts of laws principles.
14. This Agreement may be modified or waived only in a writing signed by both parties. If any provision is held to be unenforceable, such provision will be limited or deleted to the minimum extent necessary to allow the remaining terms to remain in full force and effect.
15. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications with respect to the subject matter of this Agreement.
16. This Agreement may be executed on paper or electronically (fax or electronic document attached to e-mail) in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

Acknowledged and agreed:

By:		Title:		Date:		By:		Title:		Date: