THIS NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of this ___ day of
__________, 2010 (“Effective Date”) between the members of the 2010 E-COMMERCE PRACTICUM
CLASS (the “Class”), a body of students attending Washington & Lee Law School and THOMPSON
NETWORK SOLUTIONS (“TNS”), a company with offices in California and Virginia, (collectively,
WHEREAS, the Class is a group of law students at Washington & Lee University School of Law
(“W&L”), an American Bar Association accredited law school, and is privy to confidential
WHEREAS, TNS is a California based technology startup company which has an office in the
Northern Virginia technology corridor and would like us to work on various matters pertaining to
a novel Web 2.0 project (the “Project”);
WHEREAS, the Class is participating in a practicum assignment with TNS and will need access
to otherwise confidential information as part of that assignment;
WHEREAS, the students in the Class are building up a document database for themselves and,
the Parties recognize that some documents, once stripped of otherwise confidential information,
will be available outside the scope of this agreement; and
WHEREAS, the Parties desire to enter into this Non-Disclosure Agreement to protect the
confidentiality of TNS.
NOW, THEREFORE, in consideration of the promises and covenants set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. CONFIDENTIAL INFORMATION. As used herein, "Confidential Information" shall
mean any and all technical and non-technical information related to the Project provided by either
party to the other, including but not limited to (a) patent(s) and patent applications, (b) trade
secret, and (c) copyrighted information (d) proprietary information-- ideas, techniques, sketches,
drawings, works of authorship, models, inventions, know-how, processes, apparatuses,
equipment, algorithms, software programs, software source documents, and formulae related to
the current, future, and proposed products and services of each of the parties, and including,
without limitation, their respective information concerning research, experimental work,
development, design details and specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, customer lists, investors, employees, business and
contractual relationships, business forecasts, sales and merchandising, marketing plans and
information the disclosing party provides regarding third parties, unless the approval process in
Section 5 has been completed, at which point the work and information is no longer Confidential
Information and outside the scope of this agreement.
2. EXCLUSIONS. Each party's obligations under this Agreement with respect to any
portion of the other party's Confidential Information shall terminate when the party to whom
Confidential Information was disclosed (the "Recipient") can document that: (a) it was in the
public domain at the time it was communicated to the Recipient by the other party; (b) it entered
the public domain subsequent to the time it was communicated to the Recipient by the other party
through no fault of the Recipient; (c) it was in the Recipient's possession free of any obligation of
confidence at the time it was communicated to the Recipient by the other party; (d) it was
rightfully communicated to the Recipient free of any obligation of confidence subsequent to the
time it was communicated to the Recipient by the other party; (e) it was developed by employees
or agents of the Recipient independently of and without reference to any information
communicated to the Recipient by the other party; (f) the communication was in response to a
valid order by a court or other governmental body, was otherwise required by law, or was
necessary to establish the rights of either party under this Agreement; or (g) it was not
encompassed in Confidential Information in accordance with Section 1.
3. RESTRICTIONS. The Class shall take the same care in protecting and maintaining the
confidential nature of the Confidential Information as they exercise with their own confidential
information, provided however, that in no event shall the Class exercise less than reasonable
efforts to protect such Confidential Information. The Class shall not remove any designations of
confidentiality on any Confidential Information and shall ensure that any documents or other
disclosures containing Confidential Information are clearly labeled as “Confidential” at the time
of disclosure, unless such disclosures have been approved per Section 5.
4. PERMITTED USE. The Class shall not make any reproductions, disclosure or use of
the Confidential Information other than for the limited purpose(s) of working for TNS and/or
working within the bounds of the 2009 E-Commerce Practicum (the “Practicum”). The Class may
use documents approved under Section 5 for the specific purpose authorized.
5 AUTHORIZATION. At any time, the Class may ask for authorization to use any
document containing Confidential Information from TNS (“Authorization Request”). TNS shall
use commercially reasonable efforts to respond to the Class’ Authorization Request within ten
(10) business days. TNS shall exercise good faith in considering the Class’ Authorization Request
and shall not unreasonably deny it. Such a request shall be issued pursuant to Section 11.4 as
notices and will include: (i) the document or Confidential Information; and (ii) the purpose, if
any, for which such document or Confidential Information is to be used. If no purpose is given,
the Class’ Authorization Request seeks unlimited use of the document or Confidential
Information. Approval of the document or Confidential Information for unlimited use
immediately excludes it from the scope of this Agreement.
6. NOTICE OF USE OR DISCLOSURE. The Class shall notify TNS in writing
immediately in the event the Class becomes aware of any unauthorized use, disclosure, or theft of
any Confidential Information. In the event the Class receives notice that it may be required by a
court or government agency of competent jurisdiction to disclose Confidential Information, the
Class shall give TNS reasonable notice prior to such disclosure and provide TNS reasonable
cooperation and assistance in seeking to prohibit such disclosure or to ensure that any such
disclosure is subject to a protective order.
7. TERM. The term (“Term”) of this Agreement shall be six (6) months, provided that
either party may terminate this Agreement on ten (10)-business days written notice.
8. SURVIVAL. The terms of this Agreement shall remain in effect during the Term and
shall survive the expiration or termination of this Agreement for one (1) year following the
termination or expiration of the Agreement. Notwithstanding the preceding sentence, the terms
of this Agreement shall continue to apply after the termination or expiration of this Agreement to
any Confidential Information for so long as such information remains confidential. At any time,
the Class may request that TNS state whether Confidential Information specifically identified in
writing by the Class constitutes Confidential Information (“Confidentiality Identification
Request”). TNS shall use commercially reasonable efforts to respond to the Class’
Confidentiality Identification Request within ten (10) business days. TNS shall exercise good
faith in determining whether the identified Confidential Information is confidential under
applicable law and regulations. Nevertheless, the Students agree that all Confidential Information
shall be deemed confidential for all purposes of this Agreement unless and until the Firm states in
writing that the information in question is not confidential.
9. RETURN OF CONFIDENTIAL INFORMATION. Upon the request of TNS, the
Class shall provide to TNS all Confidential Information and shall not thereafter use or otherwise
disclose such Confidential Information.
10. NO WARRANTY. THE CLASS MAKES NO EXPRESS WARRANTIES
REGARDING THE CONFIDENTIAL INFORMATION AND DISCLAIMS ALL
IMPLIED WARRANTIES WITH RESPECT TO INFORMATION DELIVERED
HEREUNDER INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM PATENT OR
COPYRIGHT INFRINGEMENT, WHETHER ARISING BY LAW, CUSTOM OR
CONDUCT. IN NO EVENT SHALL THE CLASS BE LIABLE FOR AMOUNTS
REPRESENTING LOST PROFITS, LOSS OF BUSINESS, SPECIAL, PUNITIVE,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
11. NO FURTHER RIGHTS. This Agreement shall not be construed as creating,
conveying, transferring, granting or conferring upon the Recipient any right, license or authority
in or to the information exchanged, except the limited right to use Confidential Information
specified in Section 4 and the authorized use under Section 5.
12.1 Governing Law. This Agreement will be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, without regard to its conflicts of laws
provisions. All disputes arising under this Agreement shall be arbitrated in Arlington, VA before
the McCammon Group pursuant to the arbitration rules of the McCammon Group. The
parties consent to entry of judgment upon any arbitration award by any court of
competent jurisdiction. Each Party irrevocably consents to personal jurisdiction before the
arbitrator in the jurisdiction specified in this Section 11.1 as well as the United States
District Court for such jurisdiction.
12.2 Attorneys’ Fees. In the event of any proceeding or lawsuit is brought by either
party in connection with this Agreement, the prevailing party in such proceeding shall be
entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including
costs and fees on appeal.
12.3 Injunctive Relief. It is understood and agreed that, notwithstanding any other
provisions of this Agreement, breach of the Confidential Information provisions under
this Agreement will cause irreparable damage for which recovery of money damages
would be inadequate, and that the non-breaching party shall therefore be entitled to obtain
timely injunctive relief, specific performance or other equitable relief without prejudice
to any other rights and remedies that such party may have for a breach of this Agreement.
Notwithstanding Section 11.1, either party may seek injunctive relief for any breach of
the Confidential Information provisions in any court of competent subject matter
jurisdiction presiding in any jurisdiction where the conduct sought to be enjoined occurs
in whole or in part.
12.4 Notices. Any notices under this Agreement shall be sent by electronic mail or
certified or registered mail, return receipt requested, to the address specified in this,
Section 11.4, or such other address as the party specifies in writing. Such notice will be
effective upon its mailing as specified.
Thompson Network Solutions E-Commerce Practicum
123 Washington Blvd. Sydney Lewis Hall
Arlington, VA 22201 Lexington, VA 24450
12.5 Assignment. Neither party may assign or transfer this Agreement or any rights
or duties hereunder, and any attempt to do so without the other party’s express prior
written consent, shall be void.
12.6 Severability. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by applicable court
decision, such unenforceability or invalidity shall not render this Agreement
unenforceable or invalid as a whole, and, in such event, such provision shall be changed
and interpreted so as to best accomplish the objectives of such unenforceable or invalid
provision within the limits of applicable law or applicable court decision.
12.7 Waiver. No waiver of any breach of this Agreement shall be a waiver of any
preceding or succeeding breach. No waiver of any right under this Agreement shall be
construed as a waiver of any other right. TNS shall not be required to give notice to
enforce strict adherence to all terms of this Agreement.
12.8 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be considered an original, but all of which together will
constitute one and the same instrument.
12.9 Entire Agreement; Modification. This Agreement constitutes the complete and
exclusive understanding and agreement of the parties and supersedes all prior
understandings and agreements, whether written or oral, with respect to the subject matter
hereof. The Parties agree that in any cause of action relating to this Agreement or the
Confidential Information of the Firm, there shall be a legal presumption that the terms
and conditions of any other instrument issued by either Party in connection with this
Agreement which conflict with the terms and conditions of this Agreement shall be of no
force or effect except to the extent such instrument expressly references this Agreement
and is executed by both Parties. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by the Parties
IN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.
JOSHUA A. FAIRFIELD JENNIFER M. LAKE
By: __________________________ By: ____________________________
Name: Joshua A. Fairfield Name: Jennifer Lake
Date: __________________________ Date: ____________________________
THOMPSON NETWORK SOLUTIONS, INC.