Confidential Receipt Agreement

Agreement Regarding the Receipt of Confidential Information

§ 8.32 Form: Agreement Regarding the Receipt of Confidential Information

This nondisclosure agreement ("Agreement") is entered into as of ("Effective Date") by and between ("Discloser") and ("Company"). Company and Discloser are engaged in discussions in contemplation of or in furtherance of a business relationship. In order to induce Discloser to disclose its confidential information during such discussions, Company agrees to accept such information under the restrictions set forth in this Agreement.

1. Definition of Disclosure Confidential Information

"Discloser Confidential Information" means valuable information concerning Discloser's business and not generally known to the public relating to which is disclosed to Company in written form and marked "Confidential" or, if disclosed orally, summarized in writing where such summary is marked "Confidential" and sent to Company within thirty (30) days of disclosure. Discloser Confidential Information may include, but need not be limited to, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans and information and business plans.

2. Confidentiality

Company agrees to maintain in confidence Discloser Confidential Information and not to disclose such information to any person except its employees or consultants to whom it is necessary for the purposes of evaluating the commercial potential of a business relationship with Discloser or any other purpose which Discloser may hereafter authorize in writing. Company shall take reasonable measures to maintain the confidentiality of Discloser Confidential Information, but not less than the measures it uses for its own confidential information of similar type.

These obligations shall not apply to the extent that Discloser Confidential Information includes information which:

(a) is already known to Company at the time of disclosure, which knowledge Company shall have the burden of proving;

(b) is, or, through no act or failure to act of Company, becomes publicly known;

(c) is received by Company from a third party without restriction on disclosure;

(d) is independently developed by Company without reference to Discloser Confidential Information, which independent development Company will have the burden of proving;

(e) is approved for release by written authorization of the Discloser;

(f) is required to be disclosed by a government agency to further the objectives of this Agreement or by a proper order of a court of competent jurisdiction; provided, however, that Company will use its best efforts to minimize such disclosure and will consult with and assist Discloser in obtaining a protective order prior to such disclosure.

3. Materials

All materials including, without limitation, documents, drawings, models, apparatus, sketches, designs and lists furnished to Company by Discloser which contain Discloser Confidential Information shall remain the property of Discloser. Company shall return to Discloser or destroy such materials and all copies thereof upon the termination of this Agreement or upon the written request of Discloser.

4. Termination

This Agreement shall terminate days after the Effective Date unless terminated earlier by either party. Discloser may extend the term of the Agreement by written notice to Company. Either party may terminate this Agreement, with or without cause, by giving notice of termination to the other party. The Agreement shall terminate immediately upon receipt of such notice. Upon termination of this Agreement, Company shall cease to use Discloser Confidential Information and shall comply with Article 3 within twenty (20) days of the date of termination.

Notwithstanding the termination of this Agreement, Company's obligations in Article 2 shall survive such termination for a period of five (5) years.

5. General Provisions

5.1 Choice of Law

This Agreement shall be governed by and construed in accordance with the laws of the United States and of the State of New York as applied to transactions entered into and to be performed wholly within New York between New York residents.

5.2 Notice

Any notice provided for or permitted under this Agreement will be treated as having been given when (a) delivered personally, (b) sent by confirmed telecopy, (c) sent by commercial overnight courier with written verification of receipt, or (d) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth below, or at such other place of which the other party has been notified in accordance with the provisions of this Section. Such notice will be treated as having been received upon the earlier of actual receipt or five (5) days after posting.

5.3 Assignment

Neither party may assign its rights under this Agreement. Except as provided in Section 2, this Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

5.4 Severability

If any part of this Agreement is found unenforceable or invalid, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.

5.5 Entire Agreement

This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.