Mutual NDA Agreement

MUTUAL NON-DISCLOSURE AGREEMENT

This Mutual Non-Disclosure Agreement (the "Agreement") is entered into as of , (the "Effective Date") by and between Party A Name: with its principal place of business at , and Party B Name: with its principal place of business at . Each of the foregoing parties is a "Party" and together are the "Parties."

RECITALS

WHEREAS, the Parties anticipate disclosure to each other of certain confidential and proprietary information for the purpose of evaluating and pursuing a potential business relationship described as: (the "Purpose");

WHEREAS, in connection with the Purpose each Party may disclose Confidential Information (as defined below) to the other Party; and

WHEREAS, the Parties desire to protect the confidentiality of such Confidential Information in accordance with the terms set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and for 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 oral, written, graphic or electronic, furnished by or on behalf of a Party (the "Disclosing Party") to the other Party (the "Receiving Party") that is designated 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, technical data, product designs, software, source code, financial information, customer and supplier lists, pricing, marketing plans, and trade secrets.

1.2 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 receiving it from the Disclosing Party; (c) is obtained by the Receiving Party from a third party without breach of an obligation of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.

2. OBLIGATIONS OF RECEIVING PARTY

2.1 The Receiving Party shall: (a) protect and safeguard the Disclosing Party's Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; (b) not use the Confidential Information for any purpose other than the Purpose; and (c) not disclose the Confidential Information to any person or entity except as permitted in this Agreement.

2.2 The Receiving Party may disclose Confidential Information only to its employees, contractors, advisors, or affiliates who have a strict need to know for the Purpose and who are bound by confidentiality obligations no less restrictive than those contained herein. The Receiving Party shall be responsible for any breach of this Agreement by such persons.

3. PERMITTED DISCLOSURES

3.1 Notwithstanding anything to the contrary, the Receiving Party may disclose Confidential Information as required by applicable law, regulation, or valid order of a court or governmental agency, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement and cooperates, at the Disclosing Party's expense, in seeking a protective order or other appropriate remedy to limit disclosure.

4. TERM; SURVIVAL

4.1 This Agreement shall commence on the Effective Date and shall continue in effect for years, unless earlier terminated by mutual written agreement of the Parties. Notwithstanding the foregoing, each Party's obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive for so long as such information remains a trade secret.

5. RETURN OR DESTRUCTION

5.1 Upon termination of this Agreement or upon written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy all materials (in any form) containing or embodying Confidential Information and shall, upon request, certify in writing that such return or destruction has been completed, except that the Receiving Party may retain one archival copy of Confidential Information solely for the purpose of compliance with recordkeeping obligations or to determine its rights under this Agreement.

6. REMEDIES

6.1 The Parties agree that monetary damages may be inadequate to protect the Disclosing Party against actual or threatened breaches of this Agreement and that the Disclosing Party shall be entitled to seek injunctive relief, specific performance, or other equitable relief in addition to any other remedies available at law or in equity, without the requirement of posting a bond.

7. NO LICENSE

7.1 Nothing in this Agreement grants either Party any rights, by license or otherwise, to the other Party's patents, copyrights, trade secrets, trademarks, or other intellectual property except as may be expressly agreed in a separate written instrument.

8. REPRESENTATIONS AND WARRANTIES

8.1 Each Party represents and warrants that it has full power and authority to enter into this Agreement and to disclose the Confidential Information it provides. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. NOTICES

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

10. ASSIGNMENT

10.1 Neither Party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement, in whole or in part, to a successor by merger or acquisition or to any affiliate, provided that such successor or affiliate assumes the assigning Party's obligations hereunder.

11. GOVERNING LAW

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

12. ENTIRE AGREEMENT; AMENDMENT; SEVERABILITY; WAIVER; COUNTERPARTS

12.1 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, whether written or oral. No amendment or modification of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties.

12.2 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect. Failure to enforce any provision shall not constitute a waiver of that or any other provision.

12.3 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic or facsimile signatures shall be binding and enforceable as originals.

13. MISCELLANEOUS

13.1 Each Party acknowledges that each Party has independently negotiated the terms of this Agreement and that no ambiguity shall be construed against either Party as the drafter. The Parties agree to cooperate in good faith to resolve any dispute arising under this Agreement.

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