Proprietary Information and Invention Agreement

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Proprietary Information and Invention Agreement Powered By Docstoc

This Agreement dated and effective as of the last date entered below is made and entered into by and
between Insitu, Inc., a Washington corporation, (“Insitu”) and the other signatory below (“Confidant”).
WHEREAS either or both Insitu and Confidant have disclosed or will disclose to the other certain
confidential and proprietary information (“PI”) further defined in Section 1.0 below; the parties desire
that PI exchanged be used solely for the purpose set forth in Section 14.0 below; the parties desire to set
forth their agreement regarding the limited use and preservation of confidentiality of such PI; and, each
party acknowledges that the other party's PI is a valuable, special, and unique asset of such party.
NOW, THEREFORE, in order to ensure that the PI disclosed by one party to the other is used only in
accordance with the purposes set forth below, each party agrees, for itself and on behalf of its officers,
directors, agents, employees and affiliates: to use reasonable care to keep all such PI in confidence; to use
PI solely for the purposes set forth below; not to disclose any portion of the PI to any third party without
the prior written consent of the disclosing party; and to the following:

For the purpose of this Agreement, PI shall mean the following types of information, whether in tangible
or intangible form:

         1.1   Technical Data and Information

PI shall include all technical data and information, including but not necessarily limited to: inventions;
ideas; methods; techniques; processes; designs; drawings; diagrams; schematics; formulae; analyses;
know-how; trade-secrets; software source code; products and services; equipment; models; pre-
prototypes, prototypes and first articles; samples; data sheets; configurations; specifications; bills of

         1.2   Business, Financial, and Commercial Information

PI shall include all business, financial, and commercial information, including but not necessarily limited
to: business concepts; prices and pricing methods; vendor and cost data; marketing and customer
information; product roadmaps and product development plans; financial reports and projections; sales
reports and projections;

         1.3   Excluded from Protection

PI otherwise protected hereunder will not include PI that the receiving party can demonstrate: (i) is now
in or hereafter enters the public domain without any violation of this Agreement; (ii) was known to the
receiving party prior to the time of disclosure by the disclosing party; or (iii) was disclosed in good faith
to the receiving party by a third party legally entitled to disclose the same; provided, however, that
specific PI will not be deemed to be within any of the foregoing exceptions merely because it is in the
scope of more general PI.

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         2.1   Tangible Disclosures

To the extent that information disclosed by either party during the term of this Agreement is deemed by
the disclosing party to be PI, the disclosing party shall reduce such information to tangible form and
identify it as PI by marking such information with an appropriate “Proprietary” legend or marking on the
face thereof and on each subsequent page containing PI. For purposes of this Agreement, information
stored in electronic form on disk, tape, or other storage media constitutes information reduced to tangible

         2.2   Intangible Disclosures

If a party discloses information orally or visually, that information will be protected under this Agreement
if: a) before disclosure, disclosing party tells receiving party that information is confidential or b) after
disclosure, disclosing party summarizes the PI in writing, marks the writing with an appropriate legend,
and delivers the writing to the receiving party within thirty (30) days of the intangible disclosure.

         2.3   Failure to Identify

The disclosing party’s failure to identify PI shall not relieve the receiving party of its obligation to protect
the unmarked PI where the circumstances of the disclosure and the nature of the information or materials
otherwise gave the receiving party reason to know of the confidential nature of such information or
materials. Receiving party shall always have an obligation to protect as PI disclosing party’s: software
source code, customer lists, vendor lists, bills of material, wiring diagrams, circuit board designs and
masks, and manufacturing specifications.

PI shall be used only for the purpose forth in Section 14.0 below. Receiving Party shall not reverse
engineer, disassemble, decompile, translate, or attempt to discover any prototypes, software, or
underlying ideas which embody disclosed PI for any purposes other than those forth in Section 14.0
below. PI shall not be disclosed except as specified in this Agreement. Receiving party personnel shall
be subject to a confidentiality obligation or undertaking at least as restrictive as the provisions of this
Agreement and receiving party shall treat disclosing party’s PI with the same level of care and protection
as the receiving party treats its own PI.

If the receiving party is confronted with legal action to disclose PI, the receiving party will promptly
notify the disclosing party. The receiving party will reasonably assist the disclosing party in obtaining a
protective order requiring that any portion of the PI required to be disclosed be used only for the purpose
for which a court issues an order or for such other purposes as required by law. Each party will bear its
own legal expenses.

The parties each acknowledge that should this Agreement be breached, remedies available at law are
inadequate, and proving damages impracticable. The parties therefore agree that, in addition to all other
rights and remedies available at law or in equity, the aggrieved party will be entitled to injunctive relief

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upon any such breach. The breaching party will pay to the aggrieved party all attorneys’ fees and costs
incurred by the aggrieved party as a result of such breach.

6.0    NOTICES
All notices required under this Agreement will be considered given if sent by certified mail, postage
prepaid, and addressed in accordance with the address set forth above (unless the addresses have been
changed by written notice).

7.0    TERM
The term of this Agreement is three (3) years from the effective date. The obligations under this
Agreement will survive for five (5) years following termination of the parties' association regardless of
the manner of such termination, and will be binding upon their successors and assigns.

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their successors
and assigns. The waiver of any provision in any instance shall not be construed as a waiver in all other

All PI will remain the property of the disclosing party. Neither the execution of this Agreement nor the
furnishing of any information hereunder shall be construed as granting, either expressly or by implication,
or otherwise, any license under any invention or patent or other intellectual property now or hereafter
owned by or controlled by the disclosing party.

WHATSOEVER in relation to PI. This disclaimer of warranties and representations supersedes all past,
present and future warranties and representations made by the parties either orally or in writing in relation
to PI except those made in a separate license or agreement governing use of the PI.

Nothing in this Agreement shall grant to a Party the right to make commitments of any kind for, or on
behalf of, another party. This Agreement is not intended to be, nor shall it be construed as, a joint
venture, teaming relationship, partnership, or other formal business arrangement, and no Party shall have
the right or obligation to share any of the profits or bear any of the losses of another party under any
contract or subcontract performed in conjunction herewith. This Agreement shall not be construed in any
manner to be an obligation to enter into a subcontract or contract or to result in any claim whatsoever by
one Party against another for reimbursement of cost for any effort expended.

This Agreement has been entered into in the State of Washington and the validity, interpretation and legal
effect of this Agreement shall be governed by the laws of the State of Washington applicable to contracts
entered into and performed entirely within the State of Washington. The venue for any controversy or

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claim arising out of or relating to this agreement or breach thereof, shall be the appropriate state and
federal courts located in the State of Washington.

The PI disclosed may include technical data. The Parties shall not disclose any Proprietary Information in
any manner contrary to the export control laws and regulations of the United States of America.

           Name:    [_______________________________]; E-mail:                  [_______________________________]

           Name:    [_______________________________]; E-mail:                  [_______________________________]

15.0   PURPOSE
Each party is disclosing its PI for the purpose of conducting business with each other related to (check all
that apply):

       Providing goods or services to Insitu                           Providing goods or services to Confidant
       Providing goods or services to others                           Exploring other mutual business opportunities
       Evaluating a possible transaction between                       Developing technology or other intellectual
       Insitu and Confidant or Confidant’s principal                   property

IN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date and year last
written below
Insitu:                                                           Confidant:
Company:     Insitu, Inc.                                         Company:      [_______________________________]
Address:     118 East Columbia River Way                          Address:      [_______________________________]
             Bingen, Washington 98605                                           [_______________________________]
Phone:       509-493-8600                                         Phone:        [_______________________________]
Fax:         866-213-9705                                         Fax:          [_______________________________]
E-mail:                            E-mail:       [_______________________________]

Signature:                                                        Signature:
By:          [_______________________________]                    By:           [_______________________________]
Its:         [_______________________________]                    Its:          [_______________________________]
Date:        [_______________________________]                    Date:         [_______________________________]

                   After Confidant has signed, please fax or email the MPIA to Insitu’s Legal Services Team.
                           The Insitu LST will return a fully executed copy of the MPIA to Confidant.

LEF-99-001A (REL 2007-08)                    Mutual Proprietary Information Agreement                          Page 4 of 4

Description: Proprietary Information and Invention Agreement document sample