Confidentiality Non-disclosure Form

Confidentiality Non-disclosure Form

This Confidentiality Non-disclosure Form (the "Agreement") is made as of by and between Disclosing Party Name: , with principal place of business at , and Receiving Party Name: , with principal place of business at .

RECITALS

WHEREAS, the Disclosing Party possesses certain confidential and proprietary information relating to its business operations, intellectual property, technical data, financial information and other sensitive materials that are valuable to the Disclosing Party and not generally known to the public (collectively, "Confidential Information");

WHEREAS, the Receiving Party desires to receive and review certain Confidential Information for the limited purpose of evaluating or engaging in a business relationship or transaction with the Disclosing Party (the "Purpose"); and

WHEREAS, the Parties desire to set forth their respective rights and obligations with respect to such Confidential Information.

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

1. DEFINITION OF CONFIDENTIAL INFORMATION

For purposes of this Agreement, "Confidential Information" means all non-public information disclosed by the Disclosing Party to the Receiving Party, whether disclosed orally, visually, in writing, electronically or otherwise, that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, financial statements, forecasts, customer lists, pricing, technical data, software, trade secrets, prototypes and formulations.

2. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) was rightfully in the Receiving Party's possession prior to disclosure by the Disclosing Party as demonstrated by written records; (c) is rightfully received by the Receiving Party from a third party without restriction and without breach of this Agreement; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as evidenced by contemporaneous written records.

3. NON-DISCLOSURE AND NON-USE OBLIGATIONS

The Receiving Party shall (a) hold all Confidential Information in strict confidence and exercise at least the same degree of care to prevent unauthorized disclosure as it uses to protect its own confidential information, but in no event less than reasonable care; (b) not disclose Confidential Information to any person or entity except as expressly permitted in this Agreement; and (c) not use Confidential Information for any purpose other than the Purpose without the prior written consent of the Disclosing Party.

4. PERMITTED DISCLOSURES

The Receiving Party may disclose Confidential Information only to those of its employees, officers, agents, legal advisors and contractors who have a need to know the Confidential Information for the Purpose and who are bound by confidentiality obligations at least as protective as those set forth in this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by such persons.

Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by applicable law, regulation or valid legal process, provided that, where legally permitted, the Receiving Party gives the Disclosing Party prompt written notice and cooperates with any reasonable efforts by the Disclosing Party to seek protective measures or limit the disclosure.

5. TERM; RETURN OR DESTRUCTION

This Agreement shall commence on the Effective Date and shall continue for a period of years unless earlier terminated by mutual written agreement of the Parties. Upon termination or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy, at the Disclosing Party's option, all tangible materials and copies containing Confidential Information and certify such return or destruction in writing within thirty (30) days.

6. REMEDIES

The Receiving Party acknowledges that any unauthorized use or disclosure of Confidential Information may cause irreparable harm to the Disclosing Party for which monetary damages would be inadequate. Accordingly, in the event of a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek injunctive relief, equitable remedies and any other relief available at law or in equity, without posting bond. These remedies shall be cumulative and in addition to any other remedies available.

7. MUTUAL OR UNILATERAL

The Parties acknowledge the nature of this Agreement:

This Agreement is mutual: both Parties will be treated as Disclosing and Receiving Parties with respect to information they each disclose.

8. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants that it has the full right, power and authority to enter into and perform its obligations under this Agreement and that performance will not breach any other agreement or obligation to a third party. THE DISCLOSING PARTY MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.

9. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state of , without regard to its conflicts of law principles.

10. NOTICES

Notices to Disclosing Party

Notices to Receiving Party

All notices required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, by recognized overnight courier, or three (3) business days after being deposited in the mail, postage prepaid, and addressed to the Parties at the addresses set forth above or to such other address as a Party may designate by notice hereunder.

11. AMENDMENTS; WAIVER; SEVERABILITY

Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of such right. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that achieves the Parties' intent to the greatest extent possible.

12. COUNTERPARTS; ENTIRE AGREEMENT

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, agreements and understandings, whether written or oral, between the Parties relating thereto.

13. ADDITIONAL PROVISIONS

The Receiving Party shall maintain records of persons who receive Confidential Information and shall provide such records to the Disclosing Party upon reasonable request. The Parties agree that monetary damages may be insufficient to remedy a breach and that specific performance and injunctive relief may be appropriate remedies in addition to other legal remedies.

DESCRIPTION OF CONFIDENTIAL INFORMATION (OPTIONAL)

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