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FS-ISAC Mutual Non-Disclosure Confidentiality Agreement


THIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) made this _____ day of _____________ (“Effective Date”), by and between FS-ISAC, Inc. (“FS-ISAC”) and _______________________________________________________________.

 This Agreement will set forth our understanding regarding the restrictions that are to be placed on the use, dissemination and disclosure of certain non-public, confidential or proprietary information to be exchanged between FS-ISAC and ______________________________________________. This information may include, but will not necessarily be limited to, each of our companies’ respective proprietary information regarding current products and services, together with analyses, compilations, studies or other documents prepared by the recipient or its directors, officers, members, employees, agents, advisors (including without limitation, attorneys, accountants and consultants) or representatives (collectively, “Representatives”) and is hereinafter referred to as the “Confidential Information.”

 Each party hereby confirms its respective interest in examining the Confidential Information for the purpose of an information exchange between the parties (the “Purpose”) and in consideration of the furnishing by each other of the Confidential Information, each party agrees that:

  1. The Confidential Information, whether disclosed in writing or orally, will be kept confidential and shall not, without prior written consent of the disclosing party, be distributed or disclosed by the recipient or its Representatives to any third party. In addition, each party shall exercise due diligence to maintain all Confidential Information in confidence; “due diligence” shall mean at least the same precautions and standard of care which the recipient uses to safeguard its own Confidential Information which shall be no less than a reasonable degree of care under any circumstance.

  2. Each party agrees to transmit the Confidential Information only to its Representatives who need to know the Confidential Information for the Purposes set forth herein and who are under a written obligation to maintain confidentiality consistent with the terms and conditions of this Agreement. In any event, each party shall be responsible for any breach of this Agreement by its Representatives.

  3. The term “Confidential Information” does not include information that (a) is or becomes generally available to the public other than as a result of disclosure by the recipient or anyone to whom the recipient transmits the information, (b) becomes available to the recipient or its Representatives on a non-confidential basis from a source other than the disclosing party who is not, to the recipient’s knowledge, bound by a confidentiality agreement with the disclosing party, (c) was known to the recipient or its Representatives or in its possession prior to the date of disclosure by the disclosing party, (d) is furnished by the disclosing party to others with written permission to disclose, or (e) is independently developed by the recipient or on its behalf without reference to the disclosing party’s Confidential Information.

  4. The Confidential Information, except for that portion of the Confidential Information which consists of analyses, compilations, studies or other documents prepared by the recipient or its Representatives, will be returned to the disclosing party or destroyed promptly upon the disclosing party’s written request. That portion of the Confidential Information which consists of analyses, compilations, studies or other documents prepared by the recipient or its Representatives, will be held by it and kept confidential and subject to the terms of this Agreement, or, at the election of the disclosing party, destroyed. Notwithstanding any other term of this Agreement, the recipient and its Representatives may retain copies of the Confidential Information as necessary for legal or regulatory purposes or to comply with professional standards.

  5. In the event that the recipient or anyone to whom it transmits the Confidential Information becomes legally compelled to disclose any of the Confidential Information, it will, to the extent allowable by law, provide the disclosing party with prompt notice so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing party waives compliance with the provisions of this Agreement, the recipient will furnish only that portion of the Confidential Information which is legally required and will exercise its reasonable efforts, at the expense of the disclosing party, to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. Notwithstanding anything to the contrary provided herein, this section shall not apply in the event the recipient or any of its Representatives are required to disclose any Confidential Information to a bank examiner, auditor or self-regulatory authority (including any stock exchange on which the recipient or such Representative is listed) in response to a routine request or audit in the ordinary course of business.

  6. Each party agrees, without the prior written consent of the other party, not to disclose to any third party other than its Representatives: (a) the existence or contents of this Agreement; (b) that it and/or any of its Representatives have received Confidential Information from the other party or that Confidential Information has been made available by the other party; (c) the Purpose; or (d) the status of the Purpose; except to comply with applicable law, regulation or legal or judicial process.

  7. Each party agrees that, in the event of any breach of this Agreement by either of them, or their Representatives, the other party may be irreparably and immediately harmed and may not be made whole by monetary damages. Without prejudice to any rights and remedies otherwise available, such other party is entitled to seek equitable relief by way of injunction in the event of a breach of any provision of this Agreement.

  8. The recipient shall have no obligation to enter into any further agreement with the other party. Each party agrees that no contract or agreement providing for a transaction shall exist until definitive agreements have been executed and delivered by duly authorized representatives of each party. For purposes of this paragraph, definitive agreements do not include an executed letter of intent or any other preliminary written document that the parties thereto state is not intended to be legally binding except as expressly provided therein, or any oral agreement or course of conduct. It is understood that no patent, copyright, trademark or other proprietary right or license is granted by this Agreement. Further, nothing in this Agreement shall create, imply, or evidence any partnership or joint venture between the parties, or a relationship of principal and agent.

  9. Each party recognizes that the other (including certain of its corporate affiliates) may be engaged in the research, development, production, marketing, licensing and/or sale of similar services or products to those being considered under this Agreement. Such services or products may be competitive with those of the other and may display the same or similar functionality. Nothing in this Agreement shall be construed to prevent either party from engaging independently in such activities, provided it does not utilize the Confidential Information of the other in order to do so.

  10. This Agreement will be governed by and construed under, the laws of the State of Delaware, without regard to the principles of choice of law.

  11. This Agreement represents the entire understanding and agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. This Agreement may not be modified or amended, except by a written instrument duly executed by both parties. Either party may not assign this Agreement. Any failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. The obligations under this Agreement shall apply until the later of two (2) years following date of disclosure or until any of the exceptions in Section 3 apply to each piece of Confidential Information.

  12. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect. If any of the provisions of this Agreement shall be deemed to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall enforce the remaining provisions of this Agreement, and shall reduce such extent, duration, scope, or other provision and shall enforce them in their reduced form for all purposes contemplated by this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.