Lake Tns Nda Possible Final Copy

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Lake Tns Nda Possible Final Copy

  1. 1. NON-DISCLOSURE AGREEMENT 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, the “Parties”). RECITALS 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 information; 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: AGREEMENT 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. 2. 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.
  3. 3. 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. GENERAL. 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.
  4. 4. 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 hereto.
  5. 5. 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. By: ____________________________ Name: ____________________________ Title: ____________________________ Date: ____________________________

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