South Dakota nda template

South Dakota Non-Disclosure Agreement

This Non-Disclosure Agreement (this “Agreement”) is made and entered into as of this [Date], by and between:

• [Disclosing Party Name/Entity Name], residing at/located at [Disclosing Party Address], hereinafter referred to as "Disclosing Party";
• [Receiving Party Name/Entity Name], residing at/located at [Receiving Party Address], hereinafter referred to as "Receiving Party".

WHEREAS, Disclosing Party possesses certain confidential information; and

WHEREAS, Disclosing Party desires to disclose such confidential information to Receiving Party; and

WHEREAS, Receiving Party desires to receive such confidential information.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

Definition of Confidential Information

• Option A: "Confidential Information" shall mean any and all information disclosed by Disclosing Party to Receiving Party, whether orally, in writing, electronically, or by any other means, that relates to Disclosing Party's business, including, but not limited to:
  • Trade secrets
  • Business plans
  • Client lists
  • Technical information
  • Financial data
• Option B: "Confidential Information" includes any and all information regardless of form, including but not limited to:
  • Proprietary data
  • Personal information
• Option C: Oral disclosures are considered confidential if:
  • Confirmed in writing within [Number] days of oral disclosure.
  • Noted as confidential at the time of disclosure and summarized in writing within [Number] days.

Purpose of Disclosure

• Option A: The Confidential Information is being disclosed for the sole purpose of [Description of Purpose, e.g., business negotiations, evaluating a potential employment relationship].
• Option B: Receiving Party shall use the Confidential Information only to [Specific permitted use, e.g., evaluate potential investment, perform contracted services].
• Option C: Receiving Party is prohibited from using the Confidential Information for any purpose other than that stated above without the Disclosing Party's prior written consent.

Exclusions from Confidentiality

• Option A: The obligations of this Agreement shall not apply to information that:
  • Is already known to Receiving Party prior to disclosure by Disclosing Party, as evidenced by Receiving Party’s written records.
  • Is or becomes publicly available through no fault of Receiving Party.
  • Is independently developed by Receiving Party without use of or reference to the Confidential Information.
  • Is rightfully received by Receiving Party from a third party without any obligation of confidentiality.
• Option B: Residuals Clause:
  • Nothing in this agreement will prevent the Receiving Party from using information retained in the unaided memories of its employees who have had access to the Confidential Information. An employee’s memory is unaided if the employee has not intentionally memorized the confidential information for the purpose of replicating or disclosing it.
• Option C: Compulsory Disclosure:
  • If Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, Receiving Party shall provide Disclosing Party with prompt written notice of such requirement so that Disclosing Party may seek a protective order or other appropriate remedy.

Obligations of Receiving Party

• Option A: Receiving Party shall:
  • Protect the Confidential Information using the same degree of care, but no less than a reasonable degree of care, that Receiving Party uses to protect its own confidential information.
  • Limit access to the Confidential Information to those of its employees, agents, or contractors who have a need to know such information for the Purpose defined above and who are bound by confidentiality obligations at least as protective as those contained herein.
  • Not disclose the Confidential Information to any third party without the prior written consent of Disclosing Party.
• Option B: Permitted Sharing:
  • Receiving Party may disclose Confidential Information to its affiliates, agents, and advisors who need to know such information for the stated Purpose and who are bound by confidentiality obligations at least as protective as those contained herein.
• Option C: Upon Disclosing Party’s written request, Receiving Party shall:
  • Promptly return all Confidential Information to Disclosing Party, including all copies, extracts, and other reproductions thereof.
  • Or, at Disclosing Party’s option, destroy all such Confidential Information and provide Disclosing Party with written certification of such destruction.
• Option D: Receiving Party shall promptly notify Disclosing Party of any unauthorized disclosure or use of the Confidential Information.

Duration of Confidentiality

• Option A: The obligations of confidentiality under this Agreement shall continue for a period of [Number] years from the Effective Date.
• Option B: Trade Secrets: With respect to any Confidential Information that constitutes a trade secret under South Dakota law, the obligations of confidentiality shall continue perpetually, for as long as such information remains a trade secret.
• Option C: Varying Periods: Specific types of Confidential Information will have the following periods of confidentiality:
  • Financial Data: [Number] years.
  • Client Lists: [Number] years.
  • Technical Specifications: Perpetual (as trade secrets).

Representations and Warranties

• Option A: Each party represents and warrants that it has the full right, power, and authority to enter into this Agreement.
• Option B: Disclosing Party represents and warrants that it has the right to disclose the Confidential Information to Receiving Party.
• Option C: No Transfer of IP: Nothing in this Agreement shall be construed as granting Receiving Party any license or other right in or to the Confidential Information, including any intellectual property rights.
  • Option: (Alternative: Receiving Party retains IP rights to modifications of disclosed information.)
• Option D: Indemnification: Receiving Party agrees to indemnify and hold Disclosing Party harmless from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any breach of this Agreement by Receiving Party.

Non-Solicitation/Non-Circumvention

• Option A: Non-Solicitation: During the term of this Agreement and for a period of [Number] years thereafter, Receiving Party shall not, directly or indirectly, solicit, recruit, or hire any employee of Disclosing Party without the prior written consent of Disclosing Party.
• Option B: Non-Circumvention: Receiving Party shall not circumvent Disclosing Party’s relationship with its clients or customers, nor directly or indirectly contact or engage with such clients or customers for the purpose of conducting business that would compete with Disclosing Party.
• Option C: (Omit this clause entirely).

Remedies for Breach

• Option A: Disclosing Party shall be entitled to seek injunctive relief to prevent any actual or threatened breach of this Agreement by Receiving Party, in addition to any other remedies available at law or in equity.
• Option B: Receiving Party acknowledges that a breach of this Agreement may cause irreparable harm to Disclosing Party for which monetary damages may be inadequate.
• Option C: Liquidated Damages: In the event of a breach of this Agreement by Receiving Party, Receiving Party shall pay to Disclosing Party liquidated damages in the amount of [Dollar Amount]. (Note: Liquidated damages must be a reasonable estimate of actual damages and cannot be punitive under South Dakota law.)
• Option D: Legal Fee Shifting: In the event of any litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.

Governing Law and Jurisdiction

• Option A: 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.
• Option B: Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in [County Name] County, South Dakota, and each party irrevocably submits to the jurisdiction of such courts.
• Option C: Mandatory Arbitration: Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association.
• Option D: (Mediation prior to Litigation)
  • Prior to initiating litigation, the parties agree to participate in good-faith mediation to attempt to resolve any dispute arising out of or relating to this agreement.

Notice

• Option A: All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, sent by certified or registered mail, return receipt requested, or sent by reputable overnight courier service to the addresses set forth above.
• Option B: Electronic Notice: Notices may also be sent by email, provided that a confirmatory copy is sent by one of the methods described above.
• Option C: Notice is deemed received:
  • Upon personal delivery
  • Three (3) business days after mailing via certified mail
  • One (1) business day after sending via overnight courier
  • Upon confirmation of receipt for email.
• Option D: A party may change its notice address by giving written notice to the other party in accordance with this section.

Boilerplate Provisions

• Option A: 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.
• Option B: Amendment: This Agreement may be amended only by a writing signed by both parties.
• Option C: Waiver: No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the waiver is sought to be enforced.
• Option D: Severability: 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.
• Option E: Assignment:
  • This Agreement may not be assigned by either party without the prior written consent of the other party.
  • This Agreement may be freely assigned by the Disclosing Party.
• Option F: Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
• Option G: Counterparts/Electronic Execution: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall have the same force and effect as original signatures.

South Dakota Specific Considerations

• Option A: Public Domain: Information available in the public domain is exempt from confidentiality obligations.
• Option B: Enforceability Scope: The parties acknowledge that South Dakota law requires reasonable temporal and geographic limits for the enforceability of restrictions intended to protect legitimate business interests.
• Option C: No Prohibition on Employment/Competition: Nothing in this Agreement shall be construed to prohibit Receiving Party from engaging in any lawful employment or competition after the termination of this Agreement, except as specifically provided herein and to the extent permitted by South Dakota law.
• Option D: Customization Subject to Statutes: The parties agree that any non-solicitation, non-circumvention, or non-competition provisions included herein shall be construed and enforced in accordance with applicable South Dakota statutes.
• Option E: Overly Broad Clauses: The parties acknowledge that South Dakota courts may not enforce overly broad nondisclosure or restraint clauses that unduly restrict competition or employment.

Additional Clauses (Optional)

• Option A: Non-Disparagement: Receiving Party agrees not to disparage Disclosing Party, its products, services, or employees, either during or after the term of this Agreement.
• Option B: Return of Company Equipment: Receiving Party shall return all company-owned equipment, including laptops, mobile phones, and other devices, to Disclosing Party upon termination of this Agreement.
• Option C: Compliance with Laws: Receiving Party shall comply with all applicable federal, state, and local laws and regulations in the performance of its obligations under this Agreement.
• Option D: Information Security: Receiving Party shall maintain reasonable information security measures to protect the Confidential Information from unauthorized access, use, or disclosure.
• Option E: Further Assurances: Each party shall execute and deliver such further documents and take such further actions as may be reasonably necessary to carry out the intent and purposes of this Agreement.
• Option F: Signature Authority: Each signatory represents and warrants that he/she has the authority to execute this Agreement on behalf of the party for whom he/she is signing.

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

Disclosing Party:

Signature: ____________________________

Printed Name: [Disclosing Party Name]

Title: [Disclosing Party Title, if applicable]

Receiving Party:

Signature: ____________________________

Printed Name: [Receiving Party Name]

Title: [Receiving Party Title, if applicable]