Mutual Non-Circumvention Non-Disclosure Agreement

MUTUAL NON-CIRCUMVENTION NON-DISCLOSURE AGREEMENT

This Mutual Non-Circumvention Non-Disclosure Agreement (the "Agreement") is entered into as of Day: Month: Year: by and between First Party Name: , with principal address: ("Party A"), and Second Party Name: , with principal address: ("Party B").

RECITALS

WHEREAS, each Party possesses Confidential Information (as defined below) concerning its business, clients, suppliers, contacts and commercial opportunities that may be disclosed to the other Party for the limited purpose of evaluating and pursuing a potential business relationship or transaction described as:

WHEREAS, the Parties desire to protect the confidentiality of such information and to prevent either Party or its affiliates from circumventing the other Party with respect to introductions, contacts, opportunities, suppliers or clients disclosed in connection with the Purpose.

WHEREAS, the Parties intend by this Agreement to set forth the terms and conditions under which Confidential Information will be disclosed, used and protected and under which the Parties will refrain from circumventive conduct.

NOW, THEREFORE

In consideration of the mutual covenants and promises contained 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 non-public, proprietary or confidential information disclosed by a Disclosing Party to the Receiving Party, whether disclosed orally, visually, in writing or by inspection of tangible objects, including but not limited to business plans, financial data, customer and supplier lists, introductions, project proposals, correspondence, pricing, technical information, trade secrets, and any contacts, leads or referrals provided in connection with the Purpose, whether or not marked "confidential."

1.2 "Circumvent" and "Circumvention" mean any action taken by a Party or its representatives to avoid, bypass, procure, solicit, contract with, or otherwise deal directly or indirectly with any person, firm or entity introduced or disclosed by the Disclosing Party in a manner that denies the Disclosing Party its commission, fee, participation or relationship with that person, firm or entity.

2. NON-DISCLOSURE OBLIGATIONS

2.1 The Receiving Party shall: (a) hold Confidential Information in confidence using the same degree of care that it uses to protect its own confidential information but in no event less than reasonable care; (b) not use Confidential Information except as necessary to evaluate or pursue the Purpose; and (c) not disclose Confidential Information to any third party except to its employees, officers, directors, advisors, contractors or affiliates ("Representatives") who have a strict need to know, are bound by confidentiality obligations at least as protective as those contained herein, and who are informed of and agree to be bound by the terms of this Agreement.

2.2 The Receiving Party shall be responsible for any breach of this Agreement by its Representatives and shall take all reasonable steps to enforce compliance.

3. NON-CIRCUMVENTION

3.1 Each Party covenants and agrees that during the Term of this Agreement and for a period of following termination or expiration of this Agreement, it shall not directly or indirectly circumvent, avoid, bypass or obviate the other Party's interests with respect to any introduction, contact, lead, opportunity, client, supplier or transaction disclosed by the Disclosing Party.

3.2 Without limiting the foregoing, the Parties agree not to solicit, engage, hire, contract with or accept services from any person, firm or entity introduced by the other Party in connection with the Purpose without the prior written consent of the introducing Party and without first offering to negotiate an appropriate fee, commission or participation arrangement.

4. EXCLUSIONS

4.1 The obligations set forth in this Agreement shall not apply to information that the Receiving Party can demonstrate by written record: (a) was in the public domain at the time of disclosure or subsequently entered the public domain through no fault of the Receiving Party; (b) was known to the Receiving Party at the time of disclosure as evidenced by written documentation; (c) is rightfully received from a third party without breach of any obligation of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.

5. TERM; TERMINATION; SURVIVAL

5.1 Term. This Agreement shall commence on the effective date set forth above and shall continue in effect for a period of (the "Term"), unless earlier terminated by either Party upon thirty (30) days' prior written notice to the other Party. The obligations of confidentiality and non-circumvention shall survive termination as provided in this Agreement.

5.2 Survival. All sections that by their nature should survive termination shall survive, including but not limited to Sections 1 (Definitions), 2 (Non-Disclosure Obligations), 3 (Non-Circumvention), 6 (Return of Materials), 8 (Remedies), and 9 (Governing Law).

6. RETURN OR DESTRUCTION OF MATERIALS

Upon termination of this Agreement or upon written request by the Disclosing Party, the Receiving Party shall, within days, return or destroy all tangible materials containing Confidential Information and certify in writing that such materials have been returned or destroyed, except that the Receiving Party may retain one archival copy solely for compliance and recordkeeping purposes, subject to the confidentiality obligations herein.

7. REMEDIES; INJUNCTIVE RELIEF

7.1 The Parties acknowledge that monetary damages may be an inadequate remedy for breach of the confidentiality or non-circumvention obligations and that the non-breaching Party shall be entitled to seek injunctive relief, specific performance and any other equitable relief in addition to any other remedies available at law or in equity, without the necessity of posting bond.

7.2 In the event of any action to enforce this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, costs and expenses incurred in connection with such action.

8. REPRESENTATIONS; NO LICENSE

8.1 Each Party represents that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.

8.2 Nothing in this Agreement grants any license, implied or otherwise, under any patent, trademark, copyright, trade secret or other intellectual property right of either Party, except as reasonably necessary to carry out the Purpose.

9. NOTICES

Notices to First Party

Notices to Second Party

All notices required or permitted hereunder shall be in writing and delivered by personal delivery, courier, certified mail (return receipt requested) or nationally recognized overnight courier to the address set forth above or to such other address as either Party may designate by written notice. Notices shall be effective upon receipt.

10. AMENDMENT; WAIVER; COUNTERPARTS

10.1 This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties. No waiver of any provision shall be effective unless in writing and signed by the Party granting the waiver.

10.2 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 transmitted by electronic means shall be binding.

11. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction of without regard to conflict of laws principles. The Parties submit to the exclusive jurisdiction and venue of the courts located in for resolution of disputes arising out of this Agreement.

12. ENTIRE AGREEMENT; SEVERABILITY

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

12.2 If any provision of this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired. The Parties shall negotiate in good faith to replace any invalid or unenforceable provision with a valid and enforceable provision that achieves, to the extent possible, the economic, legal and commercial objectives of the invalid or unenforceable provision.

13. MISCELLANEOUS

13.1 Relationship of the Parties. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between the Parties. Each Party acts as an independent contractor.

13.2 Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, except that a Party may assign this Agreement without consent in connection with a merger, acquisition or sale of substantially all of its assets, provided that the assignee assumes all obligations under this Agreement.

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