Legal CEN Document

LEGAL CEN DOCUMENT

This Confidential Exchange and Non-Disclosure Agreement (the Agreement) is entered into as of Effective Date: by and between Company Name: with principal place of business at , and Recipient Name: with principal place of business at .

RECITALS

WHEREAS, Company possesses certain confidential, proprietary and commercially valuable information and materials, including but not limited to technical data, trade secrets, business plans, financial information, product roadmaps, customer lists and other information designated confidential (collectively, Confidential Information); and

WHEREAS, Recipient desires to receive Confidential Information for the limited purpose of evaluating or engaging in discussions concerning a potential business relationship described as: ; and

WHEREAS, the Parties wish to define their respective rights and obligations with respect to such Confidential Information.

NOW, THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:

1. DEFINITIONS

1.1 "Confidential Information" means all non-public information, whether oral, written, electronic or other form, disclosed by Company to Recipient or accessed by Recipient, that is designated as confidential or that, under the circumstances of disclosure, a reasonable person would understand to be confidential. Confidential Information includes, without limitation, business and financial information, technical data, specifications, software, algorithms, prototypes, designs, and third-party confidential information provided to Company.

2. OBLIGATIONS OF RECIPIENT

2.1 Recipient shall (a) hold Confidential Information in strict confidence using at least the same degree of care it uses to protect its own confidential information but in no event less than a reasonable degree of care; (b) not disclose Confidential Information to any third party except as expressly permitted herein; and (c) use Confidential Information solely for the Purpose set forth above.

2.2 Recipient may disclose Confidential Information to those of its directors, officers, employees, contractors and advisors who have a strict need to know and who are bound by confidentiality obligations no less protective than those contained herein. Recipient remains responsible for any breach of this Agreement by its representatives.

3. EXCLUSIONS

3.1 Confidential Information shall not include information which Recipient can demonstrate: (a) was in the public domain at the time of disclosure or subsequently entered the public domain through no breach by Recipient; (b) was rightfully in Recipient's possession prior to receipt from Company; (c) was rightfully obtained by Recipient from a third party free of any obligation of confidentiality; or (d) was independently developed by Recipient without use of or reference to Confidential Information.

4. TERM; TERMINATION

4.1 The obligations of confidentiality under this Agreement shall commence on the Effective Date and shall continue for a period of from the date of disclosure of each item of Confidential Information, except with respect to trade secrets, for which Recipient's obligations shall survive for as long as such information remains a trade secret under applicable law.

4.2 Either Party may terminate this Agreement upon thirty (30) days' written notice to the other Party; termination shall not affect Recipient's obligations with respect to Confidential Information received prior to termination.

5. RETURN OR DESTRUCTION

Upon Company's written request or upon termination of this Agreement, Recipient shall, at Company's option, promptly return to Company or destroy all materials and copies containing Confidential Information and shall certify in writing to Company within days that it has complied with this obligation.

6. INJUNCTIVE RELIEF; REMEDIES

6.1 Recipient acknowledges that any actual or threatened breach of its obligations with respect to Confidential Information will cause irreparable harm to Company for which monetary damages may be an inadequate remedy. Accordingly, Company shall be entitled to seek equitable relief, including injunctive relief and specific performance, in addition to any other remedies available at law or in equity.

7. REPRESENTATIONS AND WARRANTIES

7.1 Each Party represents and warrants that it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.

8. NOTICES

Notices required or permitted under this Agreement shall be in writing and delivered to the addresses provided above by certified mail, courier, or personal delivery, and shall be deemed given upon receipt.

9. AMENDMENTS; WAIVER

9.1 No modification, amendment or waiver of any provision of this Agreement shall be effective unless 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 that right.

10. ENTIRE AGREEMENT; SEVERABILITY

10.1 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and communications, whether written or oral.

10.2 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect to the maximum extent permitted by law.

11. 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. The Parties submit to the exclusive jurisdiction of the state and federal courts located in that State for resolution of any disputes arising under this Agreement.

12. COUNTERPARTS

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. Signatures delivered by electronic or facsimile transmission shall be binding.

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