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MUTUAL NON-DISCLOSURE AGREEMENT This Agreement is made and entered into as of this , by and between the ETAS Inc., a Delaware Corporation having its offices at 3021 Miller Rd, Ann Arbor, MI 48103, hereinafter referred to as "ETAS INC.") and (hereinafter referred to as "COMPANY"). ETAS INC. and COMPANY desire to have discussions of or relating to the manufacture, design and/or purchase of a «AuthorizedPurpose» (hereinafter "Authorized Purpose") which requires ETAS INC. and COMPANY to disclose confidential and proprietary information in its possession to the other. In consideration of the foregoing and the mutual covenants contained herein, both ETAS INC. and COMPANY agree to disclose confidential and proprietary information subject to the following terms and conditions: Article 1 Any material concerning the subject matter noted above, including but not limited to documents, drawings, models, apparatus, sketches, designs, schedules, marketing plans, technical procedures, manufacturing processes, methodologies, formulations, patent applications, experimental results, raw materials, products, and specimens furnished by ETAS INC. to COMPANY or COMPANY to ETAS INC. shall be considered as "Confidential Information" regardless of the form in which the information is transmitted, whether written, oral, as well as samples or otherwise, provided that any written or documentary information exchanged as "Confidential Information" must be marked as confidential. Article 2 Both ETAS INC. and COMPANY agree to use the Confidential Information solely for the Authorized Purpose described above, and agree not to use, publish or disclose any Confidential Information to third persons without the express prior written consent of the transmitting party. Article 3 Both ETAS INC. and COMPANY agree that any Confidential Information received under this Agreement shall be handled by it in the same manner as it handles its own confidential and proprietary information of the same type. ETAS INC. and COMPANY further agree that they will restrict the Confidential Information to their respective employees or the employees of their subsidiaries and affiliates who must necessarily have such for the Authorized Purpose outlined herein and who have been advised of and agree to the restrictions imposed upon each party to this Agreement. Article 4 Specifically excluded from the restrictions contained in this Agreement is any and all Confidential Information, in whatever form, that is: a) b) c) d) already in the possession of ETAS INC. or COMPANY prior to its disclosure hereunder as evidenced by written documentation in the recipient's records; now or at any time hereafter is disclosed publicly or becomes part of the public domain through no fault or without a breach of this Agreement by ETAS INC. or COMPANY; lawfully obtained on a non-confidential basis from a third party which was lawfully entitled to make the disclosure; or independently developed by the employees of ETAS INC. or by the employees of COMPANY who did not have access to the disclosed Confidential Information hereunder.
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Article 5 In the event that either ETAS INC. or COMPANY believes that any Confidential Information received by it is covered by one or more of the exceptions listed in subparagraphs (a), (b), (c), or (d) of Article 4, and disclosure of such information to a third party is contemplated, the disclosing party shall give prompt written notice of its intent to disclose the information to the other party not later than fifteen (15) days prior to the prepared disclosures. Article 6 In the event that either ETAS INC. or COMPANY is requested to produce any Confidential Information as a result of a court order or pursuant to governmental action, ETAS INC. or COMPANY must notify the other party and insofar as is permissible without placing the disclosing party under penalty of law, give them an opportunity to appear and to object to such disclosure, before disclosing or producing the requested by the court order or governmental action. Article 7 All Confidential Information disclosed hereunder, including all copies thereof, and all tangible property embodying the same shall remain the exclusive property of the party transmitting the information and shall be returned or otherwise disposed of upon request of the transmitting party. Article 8 ETAS INC. and COMPANY agree to submit all disputes between them arising out of or related to this Agreement or the breach or interpretation thereof to binding arbitration except that this provision shall not apply to requests for injunctive relief arising out of the same. Within fifteen (15) days after either party has notified the other in writing that it is submitting a dispute to arbitration, one arbitrator shall be chosen under the then current rules of the American Arbitration Association ("AAA") pertaining to commercial disputes. Neither party shall be allowed to object to any arbitrator appointed by AAA. The ensuing arbitration shall be held in «ArbitrationCity», «ArbitrationState». The arbitration shall be conducted according to the rules of the AAA. The arbitration award shall be final and binding. The decision of the arbitrators shall be in writing, include findings of fact, and conclusions of law; and it may be entered in and enforced by any court of competent jurisdiction. Article 9 The obligation of non-disclosure for Confidential Information received by either ETAS INC. or COMPANY shall expire no later than seven (7) years from the date of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their affiliated companies, agents, employees, successors, and assigns. This Agreement shall be construed in accordance with the laws of the state of «GoverningLawState». This Agreement shall be modified only by another written agreement signed by both parties. Article 10 No agency or partnership relationship between COMPANY and ETAS INC. whether express or implied shall be created by this Agreement. Article 11 ETAS INC. and COMPANY understand and agree that any use or dissemination of Confidential Information in violation of this Agreement will cause the other party irreparable harm, and will leave it with no adequate remedy at law and shall, thereby, entitle it to injunctive relief.
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It is hereby agreed and understood by both parties that other confidentiality agreements concerning the Confidential Information may be required in the event COMPANY and ETAS INC. agree to enter into commercial transaction. WHEREFORE, the parties hereto have caused their duly authorized representative to execute this Agreement as of the date first written above.
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ETAS Inc. ("ETAS INC.") Raymond Holcomb Title: Director Date:
("COMPANY")
Title: Date: