Business Development Agreement

Basic Nondisclosure Agreement

This MUTUAL NONDISCLOSURE AGREEMENT (the "Agreement") is made as of / / , (the "Effective Date") by and between ("Company 1"), and ("Company 2").

1. Purpose. Company 1 and Company 2 wish to explore a mutually beneficial business relationship involving (the "Relationship"). This Relationship may result in the disclosure by each party of certain of its Confidential Information (as defined below) to the other. To permit the parties to further the purpose of the Relationship, the parties agree to be bound by the terms and conditions set forth in this Agreement.

2. Definition of Confidential Information. "Confidential Information" shall mean any information, technical data or know-how (whether disclosed before or after the date of this Agreement), including, but not limited to that which relates to products, processes, designs, drawings, research, developments, formulas, test data, customer lists, business, product, marketing, or service plans, financial projections, pricing strategies, business forecasts, sales and merchandising, patents, patent applications, computer object or source code, hardware or software configurations, engineering, or finance, which information is designated in writing (either at the time of or within thirty (30) days after disclosure) to be confidential or proprietary [or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary]. Confidential Information does not include information, technical data or know-how that: (i) is known to, or in the possession of, the receiving party (the "Receiving Party") before its disclosure by the disclosing party (the "Disclosing Party"), as shown by the Receiving Party's files and records immediately prior to the time of disclosure; (ii) is now or hereafter becomes available to the public through no fault of the Receiving Party; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) is independently developed by the Receiving Party without any use of the Disclosing Party's Confidential Information, as demonstrated by files and records created at the time of such independent development; (v) is disclosed to the Receiving Party by a third party, which, to the Receiving Party's knowledge, is under no obligation of secrecy or confidentiality to the Disclosing Party, and such disclosure occurs without a violation by the Receiving Party of this Agreement or the Disclosing Party's rights; (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement; or (vii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the Receiving Party shall provide prompt and sufficient advance written notice thereof to the Disclosing Party so that the Disclosing Party may seek a protective order (or its equivalent) with respect to such disclosure, which the Receiving Party shall fully comply with.

3. Nondisclosure of Confidential Information.

3.1 Nondisclosure. Each of the parties agrees to: (i) not use or reproduce the Disclosing Party's Confidential Information for any purpose other than the purpose of the Relationship stated in Section 1 of this Agreement; (ii) not disclose or permit disclosure of any of the Disclosing Party's Confidential Information to any third party; (iii) take all reasonable steps to protect the secrecy of and avoid improper disclosure or use of the Disclosing Party's Confidential Information, including, without limitation, exercising at least the same degree of care, but at no time less than reasonable care, that the Receiving Party utilizes to protect its own Confidential Information of a similar nature; (iv) not modify, reverse engineer, create other works from, or disassemble any software or device contained in the Disclosing Party's Confidential Information unless otherwise authorized in writing by the Disclosing Party; and (v) notify the Disclosing Party immediately of any misuse or misappropriation of the Disclosing Party's Confidential Information, which comes to the attention of the Receiving Party.

3.2 Disclosure to Employees. Each Party agrees that it shall disclose the Confidential Information of the other party only to those of its employees who: (i) have a bona fide need to know such information, and then only to the extent necessary to effectuate the purpose of the Relationship; and (ii) have previously agreed in writing, either as a condition to their employment or retention, or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to the terms of this Agreement. At the Disclosing Party's request, the Receiving Party will promptly provide the Disclosing Party in writing the names of any such persons.

3.3 Publicity. Neither party will, without the prior written consent of the other party, disclose to any third party the fact that Confidential Information has been disclosed under this Agreement, that discussions or negotiations have taken place between the parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law, and then only with prior written notice to the other party.

3.4 Independent Development. Disclosing Party understands that Receiving Party develops and acquires technology and other information for its own products and services which may be the same as, or of similar nature to, Confidential Information, and that existing or planned technology and other information developed or acquired by Receiving Party, either alone or in conjunction with third parties, may contain ideas and concepts similar to or the same as those contained in Confidential Information. Disclosing Party agrees that entering into this Agreement shall not preclude Receiving Party from developing or acquiring technology or other information similar to Confidential Information, without obligation or liability to Disclosing Party, provided Receiving Party does not use Confidential Information in such development or acquisition.

4. Return of Confidential Information. The Receiving Party agrees to promptly return all documents, media, or materials, in whatever form, including, without limitations all copies thereof and all forecasts, studies, drawings, specifications, analyses, summaries, or other materials prepared by or for Receiving Party, which contain or otherwise reflect the Disclosing Party's Confidential Information within ten (10) days after the earlier of: (i) the termination of the Relationship; or (ii) receipt of a written request from the Disclosing Party for the return of such materials.

5. No Rights Granted. Nothing in this Agreement is intended to grant any right, title, or interest in or to any patent, copyright, trademark or other intellectual property right of the other party, nor shall this Agreement grant the Receiving Party any ownership of the Disclosing Party's Confidential Information.

6. Representation and Warranties. Each party to this Agreement represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement and perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, does not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

7. Term and Termination.

7.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in effect until the Relationship is terminated pursuant to this Section 7.

7.2 Termination. The Relationship may be terminated by either party by providing written notice thereof to the other party.

7.3 Survival. The obligations of Section 3.1 hereof shall survive any termination of the Relationship between the parties, and shall remain in effect for three (3) years after termination of this Agreement.

8. Remedies. Each party agrees that its obligations provided in this Agreement are necessary and reasonable in order to protect the Disclosing Party and its business, and each party expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of any of its representations, obligations, or agreements set forth in this Agreement. Accordingly, each party agrees that any violation or threatened violation of this Agreement by the Receiving Party will cause irreparable injury to the Disclosing Party and that, in addition to any other available remedies, the Disclosing Party shall be entitled to seek injunctive relief against the breach or threatened breach of this Agreement by the Receiving Party, without the necessity of proving actual damages, as well as reasonable attorneys fees and costs associated therewith.

9. No Further Obligation. Neither party shall be obligated under this Agreement nor by any subsequent discussions or correspondence between the parties to enter into any business transaction, any agreement, or any understanding with the other party; only a formal written agreement signed by an authorized representative of each party shall be binding with respect to any such transaction, agreement, or understanding.

10. Miscellaneous.

10.1 Previously Exchanged Information. The parties have from time to time, prior to the execution of this Agreement, exchanged information considered Confidential Information. Such Confidential Information supplied to the receiving party by the other party prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available after the execution of this Agreement, and it is understood that this Agreement is not intended to, and does not, obligate either party to enter into any further agreements or to proceed with any possible relationship or other transaction.

10.2 Export Controls. Each receiving party acknowledges that it is not prohibited by the Office of Export Administration of the U.S. Department of Commerce from receiving technical information, know-how, data or other information, and the receiving party agrees not to export such information, or products incorporating it, to any prohibited country.

10.3 Assignment. Neither party shall transfer or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the above, either party shall have the right to assign this Agreement and the obligations hereunder to any successor-in-interest by way of a merger, acquisition, or sale of all or substantially all of that party's assets on condition that the assignee of this Agreement will assume all obligations and liabilities of the assignor under or in connection with this Agreement and agrees to be bound by the terms and conditions of this Agreement.

10.4 Amendment or Modification. This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed on behalf of each of the parties by a duly authorized officer or representative.

10.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of , without reference to conflicts of law rules.

10.6 Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force.

10.7 Notices. All notices permitted or required under this Agreement shall be in writing and shall be personally delivered or sent by telecopier, facsimile transmission, or by first class U.S. mail, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth at the conclusion of this Agreement or such other address as either party may specify in writing.

10.8 Relationship of Parties. Neither this Agreement nor any terms and conditions contained herein may be constructed as creating or constituting a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.

10.9 Waiver. No failure of either party to exercise or enforce any of its rights under Agreement will act as a waiver of such rights.

10.10 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.

10.11 Other Agreements. Neither party shall agree to any contractual provision or term in any agreement with any third party that contains a provision or term that would cause such party to be in breach of or violate this Agreement.

10.12 Counterparts; Facsimiles. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.