Non-disclosure Agreement

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (this “Agreement”) is made effective as of the date agreed by recipient, by and between Forms On Fire, Inc., a Washington corporation (“FOF”), and any recipient of information marked as confidential (“Recipient”).

  1.  Purpose. In connection with the evaluation by Recipient of one or more potential business, investment, or technical agreements or arrangements between the Recipient and FOF or its affiliates (the “Purpose”), FOF has disclosed and/or may disclose Confidential Information to Recipient.  This Agreement is intended to allow the parties to engage in discussions or evaluations with respect to the Purpose while protecting the Confidential Information against unauthorized use or disclosure.
  2. Definition
    1. “Confidential Information” includes any information or materials in any form or format owned or controlled by FOF or its affiliates or entrusted to any of them by others, including, but not limited to, inventions (whether or not patentable or reduced to practice), technology, formulas, processes, technical data, prototypes, specimens, samples, “know how,” unpublished patent applications, research results or plans, notes and notebooks, product or development plans, test results or protocols, designs, drawings, engineering results or plans, market research or analysis, marketing plans, software (including source and object code), hardware configurations, algorithms, regulatory information, business plans, personnel data, customer or prospects lists, existing or anticipated agreements or relationships with third parties, and financial information.
    2. The existence of this Agreement, the nature of the Purpose, and the fact that the parties are engaged in discussions or evaluations with respect to it, shall constitute part of the Confidential Information to be protected hereunder.
  3. Protection of Confidential Information.
    1. Recipient shall not use or permit the use of any Confidential Information for any purpose other than the Purpose stated in this Agreement, except with FOF’s express prior written consent in each instance.  Recipient shall not disclose or permit disclosure, whether public or private, of any Confidential Information to third parties other than directors, officers, employees, consultants or agents of Recipient with an established need to know the same in connection with the Purpose and who have signed a nondisclosure agreement in content similar to this Agreement and explicitly for the benefit of FOF.  Recipient shall notify FOF in writing of the names of the persons who have signed such agreements promptly after such agreements are signed, and will on request provide FOF with copies of the signed agreements.  Recipient shall notify FOF in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Confidential Information that may come to Recipient’s attention.  Recipient’s obligations under this Agreement will survive any completion or abandonment of the Purpose.
    2. Provided that Recipient shall not use or disclose any Confidential Information in reliance on any of the following exceptions unless Recipient has first given FOF at least thirty (30) days prior written notice that it intends to do so, together with reasonable documentation of the grounds therefor, Recipient shall not be required to protect specific information to the extent Recipient can prove through written evidence that such information:
      1. was or has become readily available from sources in the public domain, unless it became so available through a breach of a duty of confidentiality to FOF;
      2. was either known to Recipient prior to disclosure by FOF or was subsequently independently developed without any use of or reference to any Confidential Information; or
      3. was disclosed to Recipient by a third party who had the right to disclose the same to Recipient and who did not obtain it in confidence from FOF
      4. However, while these exceptions may apply to information embodied in materials, specimens or tangible copies, Recipient agrees that they will not apply to the materials, specimens or tangible copies as such obtained from FOF.  Recipient agrees that all materials, specimens and tangible copies of any Confidential Information, whether provided to or made by Recipient, shall be and remain the property of FOF and shall be used only as expressly permitted in this Agreement.
  4. Order, Subpoena, Statute or Regulation. Confidential Information that is required to be disclosed by order, subpoena, statute or regulation in a situation affording Recipient no meaningful alternative may be disclosed to the extent so required, provided that Recipient shall use its best efforts to give FOF prior notice of any such disclosure so as to afford FOF a reasonable opportunity to seek such protective orders or other relief as may be available in the circumstances.
  5. Protection of Materials. Recipient agrees that it shall not, without FOF’s express prior written authorization in each instance, analyze, disassemble, decompile, or otherwise reverse engineer any materials, software, specimens or tangible copies of any Confidential Information, whether or not in connection with the Purpose.  Recipient shall not, except as otherwise expressly authorized by FOF, make or permit to be made any partial or complete copies or duplicates of any Confidential Information. Recipient shall apply prominent confidentiality notices to any partial or complete copies of any of the Confidential Information.  Recipient shall exert continuing reasonable efforts to protect all materials, specimens and tangible copies of or embodying FOF’s Confidential Information against loss, destruction or theft, and Recipient shall promptly return the same to FOF upon written request and in any event within ten (10) days after the completion or abandonment of the Purpose.
  6. No Rights Granted; Disclaimers. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of FOF or its affiliates, nor shall this Agreement grant Recipient any rights in or to the Confidential Information other than the limited right to review such Confidential Information solely in connection with the Purpose in accordance with Section 3(a).  Recipient shall not use the Confidential Information in or in support of the prosecution of any patent application without FOF’s consent, which it may withhold in its discretion.  No sale or offer to sell any product is made by virtue of this Agreement, and neither Recipient nor FOF or its affiliates will be required to enter into any further agreements or arrangements, whether or not related to the Purpose, nor to negotiate to do so.  Recipient acknowledges that FOF does not intend to waive any attorney-client privilege by making any disclosures hereunder, and Recipient agrees that it shall not claim otherwise.  FOF is not required to disclose or present to Recipient all or any particular Confidential Information, whether or not related to the Purpose.  ALL CONFIDENTIAL INFORMATION IS DISCLOSED OR PRESENTED TO RECIPIENT ON AN AS-IS BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER OF MERCHANTABILITY, FITNESS, NON-INFRINGEMENT OR OTHERWISE.
  7. Notices. All notices from one party to the other required or permitted under this Agreement shall be in writing, shall refer specifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of delivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient party’s respective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other party from time to time).  Such notices will be deemed effective as of the date so delivered or on the third business day following mailing.
  8. Successors and Assigns. This Agreement shall benefit and bind the respective successors and assigns of the parties; provided, however, that Recipient shall not provide or disclose any Confidential Information to any assignee or prospective assignee without FOF’s prior written consent in each instance.
  9. Severability. This Agreement is intended to supplement, and not to supersede, any rights FOF or its affiliates may have in law or equity with respect to the protection of its Confidential Information or trade secrets.  If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.
  10. Governing Law. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to any conflict of laws principles to the contrary.
  11. Remedies. Recipient hereby consents to jurisdiction and venue in the appropriate state and Federal courts sitting in the Western District of Washington in any litigation arising out of this Agreement.  Recipient acknowledges that any breach of this Agreement by it may cause irreparable harm to FOF or its affiliates and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available remedies.  The prevailing party shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement.
  12. Counterparts. This Agreement may be executed in one or more counter­parts, each of which shall be deemed an original and all of which together shall constitute one instrument.
  13. Entire Agreement. This Agreement represents the entire understanding and agreement of the parties and supersedes all prior communications, agreements and understandings relating to the subject matter hereof.  This Agreement may not be modified or amended except by a written instrument executed by both parties.  Neither party will be deemed to have waived any of its rights under this Agreement unless, and only to the extent, it does so by specific written waiver signed by an officer of such party.

The parties have executed this Non-Disclosure Agreement as of the effective date shown above.  Each of the persons signing this Agreement affirms that he or she is duly authorized to do so and thereby to bind the indicated entity.

FORMS ON FIRE, INC.                                                            RECIPIENT

By: _____________________________                              By: _____________________________