Confidentiality and Non

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MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

Agreement dated ______________ between ___________________ (collectively “Disclosing

Party”), having its principal offices at _________________________ and

_______________________________

, (“Receiving Party”) having their principal offices at

______________________________________________

. Disclosing Party and Receiving Party may collectively be referred to as “the Parties.”

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DEFINITION OF CONFIDENTIAL INFORMATION AND PURPOSE OF

THE RELATIONSHIP

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(a)

“Confidential Information” means all information of any nature and in any form which at the time or times concerned is not generally known to those persons engaged in business similar to that conducted or contemplated by the Disclosing Party (or is known only because of illegal or unauthorized disclosure) and which relates to any one or more of the aspects of the business of the Disclosing Party, including, without limitation, any oral, written, graphic or machine-readable information, including, but not limited to, applications, patent applications, computer applications, patents, inventions, technology, methods, processes, research, products, developments, inventions, designs, drawings, engineering, formulae, product plans, software (including source and object code), hardware configuration, computer programs, algorithms, regulatory information, business methods, business plans, advertising promotions, strategies, techniques, agreements with third parties, services, supplier lists, price lists, customer lists, customers’ purchases or requirements, markets, marketing or finances of the Disclosing Party, advertising promotions, financial matters, research activities, know-how and other trade secrets.

(b) The purpose of the Relationship is __________________________.

NONDISCLOSURE OF CONFIDENTIAL INFORMATION

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(a) Receiving Party agrees not to use any Confidential Information disclosed to it by Disclosing Party for Receiving Party’s own use or for any other purpose except to carry out discussions concerning, and the undertaking of, the Relationship.

(b) Receiving Party agrees not to use or disclose, or impart to third parties,

Confidential Information of Disclosing Party for the purpose of developing competing products or processes, reverse engineering or for any purpose other than as specified in Section 1 above.

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(c) Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of

Disclosing Party in order to prevent such Confidential Information from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such Confidential

Information. Such measures shall include, but not be limited to, the highest degree of care that Receiving Party utilizes to protect its own

Confidential Information of a similar nature, which shall be no less than reasonable care. Receiving Party agrees to notify Disclosing Party in writing promptly of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of Disclosing Party which may come to Receiving Party’s attention.

LIMITATIONS ON DISCLOSURE

(a) Receiving Party may disclose Confidential Information only to those of his or its employees, officers and agents as may be reasonably necessary to carry out this Agreement. Before such disclosure, such persons shall be advised of Receiving Party’s obligations of confidentiality under this

Agreement, and each person must specifically agree in writing to be bound by the provisions of this Agreement.

(b) (i) Receiving Party shall not, for any purpose, disclose Confidential

Information of Disclosing Party to any third party without the prior written consent of Disclosing Party; provided, however, subject to Paragraph

4(b)(ii) below, Receiving Party may disclose Confidential Information where disclosure is mandated by law or by order, decree, subpoena or other judicial process issued by a court or governmental agency, body or tribunal.

(ii) In the event that Receiving Party is requested or required to disclose any or all of Disclosing Party’s Confidential Information (by oral question, interrogatory, request for information or documents, subpoena, civil or criminal investigative demands, or similar process), Receiving

Party to the extent permitted by applicable law, will provide Disclosing

Party with prompt written notice of the request(s) so that Disclosing Party may either seek an appropriate remedy to prevent disclosure or waive

Receiving Party’s compliance with this Agreement.

(c) Without prior written consent of Disclosing Party, Receiving Party shall not disclose to any third party: (i) the Confidential Information that has been made available to Receiving Party; or (ii) that Receiving Party has inspected any portion of the Confidential Information.

RIGHT TO USE CONFIDENTIAL INFORMATION

. This Agreement shall not affect the right of Receiving Party to use and/or disclose Confidential

Information that:

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(a)

(b)

(c) is in the public domain at the time of disclosure, or is subsequently made available to the general public through no fault of Receiving Party; is disclosed with the prior written approval of Disclosing Party; was known to Receiving Party, without restriction, at the time of disclosure by other than disclosure by Disclosing Party, with Receiving

Party having a strict burden of proof regarding such prior knowledge;

(d) was independently developed by Receiving Party, without any use of the

Confidential Information of Disclosing Party, with Receiving Party having a strict burden of proof regarding such independent development.

NO RIGHTS GRANTED

. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, other than the limited right to review such

Confidential Information solely for the purpose of determining whether to enter into the Relationship.

TERM.

This Agreement shall expire as of the second (2nd) anniversary of the date hereof (the “Term”). The foregoing commitments of each party shall survive any termination of the Relationship between the parties, and shall continue for a period terminating on the later of (a) four (4) years following the date of this

Agreement, or (b) two (2) years from the date on which Confidential Information is last disclosed under this Agreement.

EARLY TERMINATION

. Either party may terminate discussion of the

Relationship at any time by giving five (5) business days written notice to the other. Termination of discussions of a Relationship shall not affect the foregoing commitments of each party which shall continue for a period of two (2) years from the date on which Confidential Information is last disclosed under this

Agreement.

RETURN OF MATERIALS.

Within thirty (30) days after termination of discussions of a Relationship for any reason whatsoever, Receiving Party shall return or destroy (if requested by Disclosing Party) any copies of the Confidential

Information delivered, disclosed or created under this Agreement, and in event of destruction, such destruction shall be certified in writing by a duly authorized officer who supervised such destruction to the other party.

EXPENSES

. In the event Receiving Party breaches any of its obligations under this Agreement, Receiving Party shall pay all of Disclosing Party’s costs

(including, but not limited to, attorneys’ fees and disbursements) incurred in enforcing this Agreement.

SUCCESSORS AND ASSIGNS.

This Agreement shall bind and benefit

Disclosing Party and Receiving Party and their respective successors and assigns.

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Receiving Party may not assign its rights or delegate its obligations under this

Agreement without prior written consent of Disclosing Party.

SEVERABILITY.

If one or more provisions of this Agreement are held to be unenforceable under the applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provisions, then (a) such provision shall be excluded from the Agreement, (b) the balance of the

Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.

INDEPENDENT CONTRACTORS.

Disclosing Party and Receiving Party are independent contractors, and nothing contained in this Agreement shall be construed to constitute Disclosing Party and Receiving Party as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.

NO COMMITMENT

. Nothing contained in this Agreement or the disclosure by either party to the other of Confidential Information shall create any obligation on the part of either party to enter into the Relationship or engage in negotiations with respect thereto or provide any information to the other.

GOVERNING LAW; JURISDICTION.

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

United States applicable to contract made and to be performed within such state, without giving effect to its conflict of laws, principles or rules. The parties agree that any disputes relating to this Agreement or the breach thereof shall be adjudicated through binding arbitration in the State of Arizona, United States.

REMEDIES; INDEMNIFICATION.

Disclosing Party and Receiving Party each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect Disclosing Party and its business. Disclosing Party and Receiving Party each expressly agree that due to the unique nature of

Disclosing Party’s Confidential Information, monetary damages would be inadequate to compensate Disclosing Party for any breach by Receiving Party of its covenants and agreements set forth in the Agreement. Accordingly, Disclosing

Party and Receiving Party each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Disclosing Party shall be entitled (a) to obtain injunctive relief against the threatened or actual breach by Receiving Party, without the necessity of proving actual damages, and (b) to be indemnified by Receiving Party from any loss or harm, including but not limited to attorneys’ fees and costs, arising out of or in connection with any breach or enforcement of Receiving Party’s obligations under this Agreement or the unauthorized use or disclosure of Disclosing Party’s

Confidential Information.

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AMENDMENT AND WAIVER.

This Agreement contains the entire understanding of the Parties with respect to its subject matter and supersedes all prior communications and understandings between the Parties; provided, however, that, unless amended, this Agreement shall relate to all Confidential

Information delivered on or subsequent to the date of this Agreement, and any

Confidential Information delivered prior to the date of this Agreement shall remain subject to the terms of such Confidential Information.

COUNTERPARTS.

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

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ENTIRE AGREEMENT.

This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.

The Parties have executed this Mutual Confidentiality and Non-Disclosure

Agreement as of the date first above written.

Company: ____________________________

Name :

Company:

____________________________

Name :

Signature:

Title:

_____ Signature: _____________________________

Title:

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