Confidentiality Assignment Agreement

CONFIDENTIALITY ASSIGNMENT AGREEMENT

This Confidentiality Assignment Agreement (the Agreement) is made as of Effective Date: by and between Assignor Name: , an entity organized as Individual Corporation Limited Liability Company with principal place of business at , and Assignee Name: , an entity organized as Individual Corporation Limited Liability Company with principal place of business at . Assignor and Assignee are each a Party and collectively the Parties.

RECITALS

WHEREAS, Assignor owns, controls or has access to certain confidential, proprietary and/or trade secret information, intangible assets and related rights identified or described in Schedule A attached hereto or set forth in the Assignment Description field below (collectively, Confidential Information); and

WHEREAS, Assignor desires to assign, transfer and convey to Assignee all assignable rights, title and interest, if any, in and to such Confidential Information and any associated intellectual property rights, and Assignee desires to accept such assignment and to assume the obligations and restrictions related to the Confidential Information; and

WHEREAS, the Parties intend by this Agreement to set forth their respective rights, duties and remedies with respect to the assignment and ongoing confidentiality of the Confidential Information.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Confidential Information" means all information, whether written, oral, electronic or visual, disclosed by Assignor to Assignee or otherwise assigned under this Agreement, including but not limited to technical data, prototypes, samples, designs, drawings, software (including source code), formulas, processes, inventions, discoveries, trade secrets, business and marketing plans, customer and supplier lists, financial information and other proprietary materials, together with any derivatives, modifications and intellectual property rights therein, except as expressly excluded under Section 3.

2. ASSIGNMENT

2.1 Assignment. Subject to the terms and conditions of this Agreement, Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's right, title and interest in and to the Confidential Information and any and all worldwide intellectual property rights that Assignor may hold or control in the Confidential Information, to the fullest extent assignable under applicable law, including without limitation any copyrights, trade secret rights and goodwill associated therewith.

2.2 Limitations. The assignment under Section 2.1 is limited to rights that Assignor actually owns or may lawfully assign as of the Effective Date. To the extent any third party holds rights that cannot be assigned without consent, Assignor shall use commercially reasonable efforts to obtain such consent at Assignor's expense; provided, however, that failure to obtain such third-party consent shall not render this Agreement void but shall be addressed in accordance with Section 9 (Indemnification).

3. CONFIDENTIALITY OBLIGATIONS

3.1 Non-Disclosure. Assignee shall hold and maintain the Confidential Information in strict confidence, shall not disclose the Confidential Information to any third party except as expressly permitted by this Agreement, and shall not use the Confidential Information for any purpose other than the Permitted Purpose described in Section 3.2.

3.2 Permitted Purpose. Assignee may use the Confidential Information solely for the purpose of evaluating, exploiting, commercializing or otherwise exercising the rights assigned hereunder and for no other purpose (Permitted Purpose). Any other use requires the prior written consent of Assignor.

3.3 Authorized Disclosures. Assignee may disclose Confidential Information to its employees, consultants, agents or contractors who have a need to know for the Permitted Purpose, provided that Assignee first ensures such persons are subject to non-disclosure and confidentiality obligations at least as protective as those contained in this Agreement. Assignee shall remain liable for any breach of this Agreement by its representatives.

4. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

4.1 Confidential Information shall not include information that: (a) is or becomes generally available to the public other than through a breach of this Agreement by Assignee; (b) was rightfully known to Assignee prior to disclosure by Assignor as evidenced by written records; (c) is lawfully obtained by Assignee from a third party without restriction and without breach of an obligation to Assignor; or (d) is independently developed by Assignee without use of or reference to the Confidential Information, as demonstrated by contemporaneous written records.

5. RETURN OR DESTRUCTION

Upon written request of Assignor or upon termination of this Agreement, Assignee shall promptly, and in any event within thirty (30) days, return to Assignor or destroy (and certify in writing the destruction of) all tangible media containing Confidential Information and shall delete or destroy all electronic copies to the extent reasonably practicable; provided that Assignee may retain one archival copy solely for the purpose of demonstrating compliance with its obligations hereunder, subject to the confidentiality obligations of this Agreement.

6. REPRESENTATIONS AND WARRANTIES

6.1 Assignor represents and warrants that: (a) it has the full right, authority and legal capacity to enter into this Agreement and to assign the rights described herein; (b) to Assignor's knowledge, the Confidential Information does not infringe any third party's intellectual property rights except as disclosed in writing to Assignee; and (c) there are no pending actions or claims that would materially impair Assignor's ability to perform its obligations hereunder.

6.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND ASSIGNOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. INDEMNIFICATION

7.1 Indemnity by Assignor. Assignor shall indemnify, defend and hold harmless Assignee from and against any losses, liabilities, damages and expenses (including reasonable attorneys' fees) arising out of any third-party claim that the Assigned Rights or the Confidential Information, as conveyed by Assignor, infringe or misappropriate such third party's intellectual property rights, to the extent caused by Assignor's breach of the representations in Section 6.1.

7.2 Indemnity by Assignee. Assignee shall indemnify, defend and hold harmless Assignor from and against any losses, liabilities, damages and expenses arising from Assignee's breach of this Agreement, including unauthorized disclosure or misuse of the Confidential Information.

8. TERM

The obligations of confidentiality and non-use set forth in this Agreement shall survive for a period of five (5) years from the Effective Date, except that trade secrets and other Confidential Information entitled to protection under applicable trade secret law shall remain protected for so long as they qualify as trade secrets under such law.

9. REMEDIES

The Parties agree that monetary damages may be inadequate to remedy a breach of this Agreement and that either Party shall be entitled to seek injunctive or other equitable relief to prevent or remedy any such breach, in addition to any other remedies available at law or in equity.

10. NOTICES

All notices, requests and other communications required or permitted under this Agreement shall be in writing and delivered to the Parties at the addresses set forth below or at such other address as either Party may designate by notice to the other in accordance with this Section.

11. AMENDMENT; WAIVER; COUNTERPARTS

This Agreement may not be amended, modified or supplemented except by a written instrument signed by both Parties. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party granting the waiver. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

12. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction indicated below without regard to its conflicts of law principles. Governing Jurisdiction:

12.2 Entire Agreement. This Agreement, together with any schedules or exhibits hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings, whether written or oral.

12.3 Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect, and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the Parties' original intent.

MISCELLANEOUS

13.1 Assignment by Assignee. Assignee may not assign this Agreement or any of its rights hereunder without the prior written consent of Assignor, except that Assignee may assign this Agreement in connection with a merger, acquisition or sale of substantially all of Assignee's assets to which the Confidential Information relates, provided that such assignee assumes Assignee's obligations under this Agreement in writing.

13.2 Publicity. Neither Party shall issue any press release or make any public statement regarding the assignment or this Agreement without the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed.

SCHEDULE / DESCRIPTION

IN WITNESS WHEREOF, the Parties have executed this Confidentiality Assignment Agreement as of the Effective Date first written above.

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