Non-Disclosure Agreement

Non-Disclosure Agreement between Two Companies

Non-Disclosure Agreement made on the , between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Disclosing Party, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Disclosing Party.

Whereas, Receiving Party has been or will be engaged in the performance of work on ;

and in connection therewith will be given access to certain confidential and proprietary information; and

Whereas, Receiving Party and Disclosing Party wish to evidence by this Agreement the manner in which said confidential and proprietary material will be treated;

Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. For the purposes of this Agreement, Confidential Information shall include: (a) any technical, managerial, financial or business information, whether in written, graphic, electromagnetic, verbal or other form (including but not limited to specifications, prototypes, software, models, drawings, product plans, pre-release products, marketing plans, business opportunities, customer lists, personnel data, research and development activities, know-how and third-party information), that the Disclosing Party marks or otherwise designates as Confidential or Proprietary or the like and (b) the existence, terms and conditions of this Agreement whether marked or not.

2. Confidential Information shall at all times remain the property of the Disclosing Party. The Receiving Party warrants that it will at all times apply strict safeguards against the unauthorized disclosure of Confidential Information.

3. Each of the parties agrees that, for a period of years from the date of this Agreement:

A. Confidential Information provided to the Receiving Party shall be used by the Receiving Party solely for the purpose of evaluating its interest in the business arrangement described or performing a future agreement between the parties;

B. Receiving Party will not use such Confidential Information disclosed hereunder for any other purpose;

C. Receiving Party is only permitted to disclose the Confidential Information to those employees, directors, agents, advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) who (i) have a need to know the Confidential Information solely for the purpose of evaluating its interest in the business arrangement described or performing a future agreement between the parties, and (ii) are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement; and

D. Except as permitted by Subsection C, the Receiving Party shall not disclose any Confidential Information to any other person or entity.

4. This Agreement shall not apply to Confidential Information that:

A. Is in or enters the public domain, through no fault of the Receiving Party; or

B. Is or has been disclosed by Disclosing Party to a third party without restriction; or

C. Is already in the possession of the Receiving Party, without restriction, prior to disclosure of the Confidential Information hereunder; or

D. Is lawfully disclosed by a third party to the Receiving Party without an obligation of confidentiality; or

E. Is developed by the Receiving Party independently without breach of this Agreement; or

F. Is required to be disclosed pursuant to court order or required by any governmental authority or agency, provided prompt written notice of such order or requirement is given to the Disclosing Party and Disclosing Party is given an opportunity to respond to such order or requirement.

5. This Agreement shall continue for a period of years from the date first written above for the purpose of disclosure of Confidential Information. Any party may terminate this Agreement upon written notice. The non-disclosure obligations set forth in Paragraph 3 shall survive the expiration or termination of this Agreement.

6. Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply a commitment by any party with respect to present or future cooperative product development or other subject matter not expressly set forth herein. No party will have any obligation to commence or continue discussions or negotiations, to exchange any information, to reach or execute any agreement with any other party, to refrain from engaging at any time in any business whatsoever, or to refrain from entering into or continuing any discussions, negotiations and/or agreements at any time with any third party unless agreed to in writing signed by all parties hereto. Each party will be responsible for its own expenses incurred in connection with this Agreement and in the preparation of any written agreement relating to the subject matter hereof.

7. The Receiving Party acknowledges that a breach of any of the provisions hereof may have a material adverse effect on the Disclosing Party directly or indirectly, and that damages arising from such breach may be difficult to ascertain or quantify. Accordingly, the Receiving Party agrees that in addition to any other remedies that may be available, the Disclosing Party shall have the right to an immediate injunction enjoining such breach.

8. The Disclosing Party grants no license or right to the Receiving Party under any patent, patent application, trademark, copyright, or other proprietary right.

9. Any amendment to this Agreement must be in writing and signed by an authorized representative of each party. No failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.

10. At the Disclosing Party’s request, all Confidential Information in tangible form that is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed. within fifteen (15) business days after a request is made pursuant to this provision, the Receiving Party will certify in writing to the Disclosing Party that Receiving Party has complied with this paragraph.

11. All parties agree that they will not disclose the subject matter or terms of this Agreement or the discussions between the parties without the prior written consent of all other parties hereto.

12. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

13. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

14. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

15. Notices

Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

16. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

17. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

18. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

19. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

20. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

21. Compliance with Laws

In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.