Mutual Nondisclosure Agreement

5.08 Mutual Nondisclosure Agreement
(Prospective Joint Venture or Codevelopment Relationship)

This agreement is for use between two parties who are considering a joint venture or codevelopment outsourcing relationship, who need to share confidential information with each other in order to determine the feasibility and advisability of pursuing the relationship. The agreement anticipates that, should the relationship prosper, a formal joint venture or development agreement will be consummated.

AGREEMENT dated as of the day of , by and between

a corporation with offices at

and

a corporation with offices at

(individually, the "Party" and collectively, the "Parties").

WITNESSETH:

WHEREAS, the Parties would like to explore the possibilities for engaging in a mutually advantageous business relationship; and

WHEREAS, it is therefore necessary for each Party to disclose to the other certain information and data deemed proprietary and confidential by such Party in connection with such potential transactions.

NOW, THEREFORE, the Parties hereto agree as follows:

1. Confidentiality

1.1. The Recipient (either of the Parties when receiving from the other Party information that constitutes Confidential Information as defined herein) shall not disclose to any third person, firm or corporation, any Confidential Information that it receives from the Disclosing Party (either of the Parties when communicating to the other Party information that constitutes Confidential Information as defined herein), except Confidential Information may be disclosed by the Recipient on a "need to know" basis to its employees, agents or subcontractors who consent to be bound by the terms of this Agreement, to the extent necessary in connection with the Recipient's consideration and evaluation of a product, service or idea of the Disclosing Party or the preparation of an offer or proposal for the license, acquisition, development or other exploitation of such product, service or idea, or a proposal for entry into a transaction or business relationship with the Disclosing Party. Confidential Information shall mean any proprietary information of the Disclosing Party not publicly known, including but not limited to, technical or business information, designs, plans, drawings, software, data, and prototypes; procedures; business and financial plans, operations and processes; projections; results; prospects; sales and inventory reports; customer, employee, stockholder, client and supplier information or lists; research and other business and/or technical information, or trade secrets, including any information disclosed to the Disclosing Party in confidence by third parties, whether or not specifically labeled or designated as "Confidential" whether marked "Proprietary and Confidential" by the Disclosing Party, or in respect of which the Recipient has received notice of its proprietary and confidential nature and including any notes, extracts, abstracts, analyses or other materials prepared by the Recipient which are copies or derivative works of the Confidential Information.

1.2. The Recipient shall not use the Confidential Information for its own benefit, or copy or reproduce the Confidential Information, except as provided in this Paragraph 1.

1.3. Recipient shall use at least the same degree of care in safeguarding the Confidential Information of the Disclosing Party as it uses for its own confidential and proprietary information.

1.4. The Recipient shall not disclose the Confidential Information to any third party without the permission of the Disclosing Party and entry of an appropriate confidentiality agreement.

1.5. Notwithstanding the foregoing, the recipient shall have no obligation to treat as Confidential Information, information and data which

(i) was in the possession of or known by the Recipient at the time of disclosure without an obligation to maintain its confidentiality prior to its receipt;

(ii) is or becomes known to the public without violation of this Confidentiality Agreement;

(iii) is disclosed lawfully to the Recipient by a third party having the right to disclose it without an obligation of confidentiality;

(iv) is independently developed by the Recipient without the Confidential Information;

(v) is approved in writing by the Disclosing Party for disclosure; or

(vi) is required to be disclosed by the Recipient by law or court order, provided that prior written notice of such required disclosure and an opportunity to oppose or limit disclosure is given to the Disclosing Party. All Confidential Information shall be and remain the property of the Disclosing Party.

2. Other Obligations

Either Party hereto may terminate this Agreement at any time by delivering a written notice of termination to the other Party. Upon termination, the Recipient shall return to the Disclosing Party all copies of the Confidential Information or other materials incorporating Confidential Information in the possession of the Recipient or its employees, agents or subcontractors or, if so instructed by the Disclosing Party, the Recipient shall destroy all such copies. Notwithstanding termination, the restrictions on disclosure and use of Confidential Information arising under this Agreement shall continue to be effective after the date of termination.

3. Miscellaneous

Neither this Agreement nor anything disclosed and/or provided hereunder shall be construed in any manner to create an obligation or right to enter into any contract or business arrangement. Any notice required to be given under this Agreement shall be deemed received () days after mailing if sent by registered or certified mail or upon receipt if sent by commercial overnight courier, to the addresses of the Parties first set forth above, or to such other address as either of the Parties shall have furnished to the other in writing by notice duly given. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws. The Parties consent to the exclusive jurisdiction of all disputes hereunder in the federal and state courts sitting in the county of New York and the state of New York. This Agreement merges all prior discussions between the parties and constitutes the complete and entire understanding of the parties with respect to the matter contained in the Agreement and may not be amended, waived or modified, in whole or in part, except by a writing signed by a duly authorized officer of both Parties.

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