South Dakota mutual nda template

South Dakota Mutual Non-Disclosure Agreement

This South Dakota Mutual Non-Disclosure Agreement ("Agreement") is made as of this [Date], by and between:

• [Party A Full Legal Name], located at [Party A Address], [Party A City], South Dakota [Party A Zip Code], and its representative [Party A Representative Name], [Party A Representative Title], contact details: [Party A Phone Number], [Party A Email], ("Discloser A"),

and

• [Party B Full Legal Name], located at [Party B Address], [Party B City], South Dakota [Party B Zip Code], and its representative [Party B Representative Name], [Party B Representative Title], contact details: [Party B Phone Number], [Party B Email], ("Discloser B").

Each Discloser A and Discloser B may be referred to individually as "Party" or collectively as "Parties".

Definition of Confidential Information:

This Agreement applies to any information disclosed by either Party to the other, whether orally, visually, or in writing, electronic, or other form, 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. Such Confidential Information may include, but is not limited to:

• Option A: Technical information, including designs, drawings, software code, prototypes, and research data.
• Option B: Business information, including marketing plans, pricing strategies, customer lists, and financial data.
• Option C: Intellectual property, including trade secrets, patents, trademarks, and copyrights.
• Option D: Processes, methods, formulas, or other know-how.
• Option E: Vendor information, including lists, agreements, and pricing.
• Option F: Legal compliance data.

Exclusions from Confidential Information:

The obligations under this Agreement shall not apply to information that:

• Is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement.
• Was rightfully in the Receiving Party's possession before the date of disclosure by the Disclosing Party, as evidenced by the Receiving Party's written records.
• Is rightfully received by the Receiving Party from a third party who is not under any obligation of confidentiality to the Disclosing Party with respect to such information.
• Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
• Is required to be disclosed by law, regulation, or court order, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement (to the extent legally permissible) and takes reasonable steps to minimize the extent of such disclosure.

Permitted Use:

Each Party ("Receiving Party") agrees to use the other Party's ("Disclosing Party") Confidential Information solely for the purpose of [Specify the business/employment/service/collaborative purpose] ("Permitted Purpose").

• Option A: The Receiving Party shall not use the Disclosing Party’s Confidential Information for its own benefit or the benefit of any third party other than for the Permitted Purpose.
• Option B: The Receiving Party may disclose the Disclosing Party's Confidential Information only to its employees, consultants, and contractors ("Representatives") who have a need to know such information for the Permitted Purpose and who are bound by confidentiality obligations no less restrictive than those contained in this Agreement.

Mutual Obligation of Protection:

Each Party acknowledges that it is both a Disclosing Party and a Receiving Party under this Agreement. Each Party shall protect the other Party’s Confidential Information from unauthorized disclosure using at least the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care.

• Option A: The Parties agree to comply with industry-standard security measures for protecting Confidential Information. (e.g., HIPAA for healthcare, GLBA for financial data)
• Option B: Each Party agrees to maintain appropriate physical, technical, and administrative safeguards to protect the other Party's Confidential Information.

Handling of Disclosures:

Confidential Information may be disclosed in written, oral, or electronic form.

• Option A: All written and electronic disclosures shall be clearly marked as "Confidential."
• Option B: Oral disclosures shall be summarized in writing and marked as "Confidential" within [Number] days of the oral disclosure.
• Option C: Access to electronically stored Confidential Information will be restricted to authorized personnel only and protected by password and encryption.

South Dakota Uniform Trade Secrets Act (SDCL § 37-29):

This Agreement is intended to protect trade secrets as defined under the South Dakota Uniform Trade Secrets Act (SD Codified Laws § 37-29). Each Party acknowledges that misappropriation of trade secrets, as defined in SDCL § 37-29-1(2), may result in irreparable harm and that injunctive relief is available as a remedy under SDCL § 37-29-3.

Whistleblower and Reporting Exceptions:

Nothing in this Agreement shall prohibit either Party from reporting possible violations of law to appropriate government agencies or making other disclosures that are protected under applicable whistleblower laws or regulations, including those in South Dakota. No penalty or disparagement clauses in this agreement shall contravene protected reporting rights.

Duration of Confidentiality Obligations:

The obligations of confidentiality under this Agreement shall continue for a period of [Number] years from the date of disclosure. For information constituting a trade secret under South Dakota law, the obligations of confidentiality shall continue for as long as such information remains a trade secret.

• Option A: The confidentiality obligations will begin on the Effective Date and end [Number] years after the termination of this Agreement.
• Option B: Specific categories of Confidential Information may have different durations of confidentiality, as agreed upon in writing by both Parties.

Return or Destruction of Confidential Information:

Upon the Disclosing Party's written request or upon termination of this Agreement, the Receiving Party shall promptly return to the Disclosing Party or destroy all copies of the Disclosing Party's Confidential Information in its possession or control, including all electronic copies. Destruction must include certified secure deletion, not merely deletion.

• Option A: The Receiving Party shall provide written certification of such destruction to the Disclosing Party within [Number] days of the request.
• Option B: The Receiving Party may retain one copy of the Confidential Information for archival purposes only, subject to the same confidentiality obligations as outlined in this Agreement.

Notification of Breach:

Each Party shall immediately notify the other Party upon becoming aware of any unauthorized use or disclosure of the other Party's Confidential Information and shall cooperate fully in any investigation or legal action to prevent further unauthorized use or disclosure. The notification must include a clear process for internal and external reporting.

Remedies for Breach:

Each Party acknowledges that monetary damages may not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to seek injunctive relief, in addition to any other remedies available at law or equity, including compensation for measurable economic damages and attorney's fees and costs to the extent permitted by South Dakota law.

Governing Law and Venue:

This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota, without regard to its conflict of laws principles. The exclusive venue and jurisdiction for any legal action arising out of or relating to this Agreement shall be in the state or federal courts located in [Specify South Dakota County] County, South Dakota.

• Option A: All disputes arising out of or relating to this Agreement shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association in South Dakota.

Savings Clause:

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect. The Parties agree to negotiate in good faith a substitute valid and enforceable provision that most nearly achieves the original intention of the Parties.

Successors and Assigns:

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement without the prior written consent of the other Party.

Entire Agreement:

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

Non-Competition/Non-Solicitation:

For agreements involving employees or contractors, the following exception applies: Nothing in this Agreement shall be construed to unlawfully restrict post-employment competitive practices in violation of SD Codified Laws § 53-9-8. Any restrictions on such practices must comply with the requirements of South Dakota law, and this agreement does not create or imply any restrictions beyond those legally permissible.

Intellectual Property:

The Disclosing Party retains all ownership rights to its Confidential Information, including all intellectual property rights. No license, express or implied, is granted to the Receiving Party under this Agreement, and disclosure of Confidential Information does not transfer any ownership or rights.

• Option A: If patentable or copyrightable material is disclosed, the Receiving Party shall include the appropriate patent or copyright notice.

Data Privacy:

Each Party shall comply with all applicable data privacy laws, including South Dakota’s data breach notification requirements (SD Codified Laws § 20-40-20), when handling Confidential Information that constitutes personal data.

Third-Party Access:

If either Party intends to provide Confidential Information to a third-party subcontractor, the Party shall obtain written assurances from the subcontractor that it will protect the Confidential Information in accordance with the terms of this Agreement.

Amendment:

This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

[Party A Full Legal Name]

By: [Party A Representative Name]

Title: [Party A Representative Title]

[Party B Full Legal Name]

By: [Party B Representative Name]

Title: [Party B Representative Title]