Mutual Confidentiality and Nondisclosure Agreement
FAIRFIELD & ASSOCIATES and THOMSON NETWORK SOLUTIONS, INC.
Section 1. Purpose and Scope.
This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (“Agreement”) is entered
into as of February 5, 2010 between the Fairfield & Associates (the “Firm”), as defined below,
and Thomson Network Solutions, Inc. (the “Company”), as defined below. The Firm and the
Company agree to enter into a confidential relationship with respect to the disclosure of
Confidential Information, as defined below, relating to the Web 2.0 Project (the “Project”).
Section 2. Definitions.
1. Company. The definition of “the Company” shall be deemed to include any parent,
subsidiary or affiliate of, or entity under common control with, any entity constituting the
Company; and “Representatives” shall mean all of the respective directors, officers,
employees, agents, or advisors of the Company.
2. Firm. The definition of “the Firm” shall be deemed to include any students, individually
or collectively, and professors (including, but not limited, to Professor Joshua Fairfield)
who are involved with the E-Commerce Practicum at Washington and Lee University
School of Law.
3. Consideration. "Consideration" is a bargained for exchange between the Company and
the Firm. 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 to the following Agreement.
4. Confidential Information. “Confidential Information” includes, but is not limited to, all
written, visual or oral information concerning the Project furnished from one party to the
other party. Confidential Information shall also include all analyses, compilations,
forecasts, data, studies, notes, translations, memoranda or other documents or materials
related to the Project. Confidential Information includes information furnished before, on
or after the date hereof. If Confidential Information is in written form, the Company
shall label or stamp the materials with the word “Confidential” or some similar warning.
5. Exclusions from Confidential Information. Confidential Information shall not include:
a. Any portions of the Confidential Information that:
i. Is currently available to the general public; or
ii. Becomes available to the general public, other than as a result of a
disclosure by the Company; or
iii. Becomes available to the Firm on a non-confidential basis from a source
other than the Company; or
iv. Has been independently acquired or developed by the Firm without
reference to or use of the Confidential Information of the Company or
without any violation by the Firm of any of its obligations under this
6. Work Product Related to Confidential Information. "Work Product" shall include:
a. All tangible material or its intangible equivalent in unwritten or oral form, other
than underlying facts, prepared by a lawyer for litigation then in progress or in
reasonable anticipation of future litigation; or
b. Opinions or mental impressions of a lawyer.
Section 3. Permitted Use.
The Firm shall not make any reproductions, disclosures or uses of the Confidential Information
other than for the limited purpose of furthering the success of the Project and assessing legal
issues. The Company does not grant, and the Firm shall not have any right or license, under any
patent, trademark, copyright or trade secret owned or controlled by the Company.
Section 4. Obligations of the Firm.
The Firm shall hold and maintain the Confidential Information in strictest confidence for the
exclusive benefit of the Company. The Firm shall not use Confidential Information for the
Firm’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for
their benefit or to the detriment of the Company without prior written approval of the Company
as defined in Section 5.
Section 5. Authorization.
At any time, the Firm may ask to use Confidential Information from the Company
(“Authorization Request”). The Company shall respond to the Firm's Authorization Request
within ten (10) business days and the Company shall not unreasonably deny such request. An
Authorization Request will include:
a. The Confidential Information; and
b. The purpose, if any, for which the Confidential Information is to be used.
If no purpose is given, the Firm's Authorization Request seeks unlimited use of the Confidential
Section 6. Return of Confidential Information and/or Work Product Related to
The Firm shall return to the Company or destroy any and all Confidential Information and/or
Work Product related to the Confidential Information if the Company requests it in writing. The
Firm must comply with this request within ten (10) business days of the receipt of the written
request. Any oral Confidential Information will continue to be subject to the terms of this
Section 7. Notice.
The Firm shall notify the Company in writing immediately in the event the Firm becomes aware
of any unauthorized use, disclosure, or theft of any Confidential Information. In the event the
Firm receives notice that it may be required by a court or government agency of competent
jurisdiction to disclose Confidential Information, the Firm shall give the Company reasonable
notice prior to such disclosure and provide the Company reasonable cooperation and assistance
in seeking to prohibit such disclosure or to ensure that any such disclosure is subject to a
Section 8. Relationship.
Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint
venture or employee of the other party for any purpose. Moreover, nothing contained in this
a. Limit either party’s right to enter into a similar relationship, provided that such
relationship does not violate this Agreement; or
b. Restrict the ability of either party to establish, acquire or retain an interest in any business
that may be deemed to compete with the relationship under discussion between the
Section 8.1. Conflict of Interest.
The Firm will not accept an engagement that is directly adverse to the Company if either:
a. It would be substantially related to the subject matter of the reprsentation under this
b. It would impair the confidentilaity of proprietary, sensitive, or otherwise confidential
communications made to the Firm by the Company.
Section 9. Remedies.
The parties acknowledge that remedies at law may be inadequate to protect against a breach or
threatened breach of this Agreement, and the Firm hereby in advance agrees to the granting of
injunctive relief in the Company’s favor without proof of actual damages, and without any
requirement for any bond or surety, in the event of any such breach or threatened breach of this
Agreement by the Firm.
Section 10. Governing Law and Arbitration.
This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard
to its choice of law rules. Any controversy or claim arising out of or relating to this contract, or
the breach thereof, shall be settled by binding arbitration administered by the American
Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules,
including the Optional Rules for Emergency Measures of Protection, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place
of arbitration shall be at the American Arbitration Association Office at 1776 I St NW,
Washington, DC 20006-3700.
Section 10.1. Choice of Arbitrator.
If the dispute is less than $1 million, exclusive of interest and attorneys’ fees, then it will
be arbitrated by one neutral arbitrator chosen by the AAA. However, if any party’s claim
exceeds $1 million, exclusive of interest and attorneys’ fees, then the dispute shall be
arbitrated by three neutral arbitrators chosen by the AAA. The arbitrators will be
selected from a panel of neutral persons having experience with and knowledge of
technology and the computer software business, and at least one of the arbitrators
selected will be an attorney with specialized experience in intellectual property.
Section 10.2. Discovery.
Consistent with the expedited nature of arbitration, each party will, upon the written
request of the other party, promptly provide the other with copies of documents relevant
to the issues raised by any claim or counterclaim on which the producing party may rely
in support of or in opposition to any claim or defense. Any dispute regarding discovery,
or the relevance, or scope thereof, shall be determined by the arbitrator(s), which shall be
conclusive. All discovery shall be completed within 45 days following the appointment
of the arbitrator(s).
Section 10.3. Damage Limitations.
The arbitrators will have no authority to award punitive or other damages not measured
by the prevailing party’s actual damages, except as may be required by statute.
Section 10.4. Non-Disclosure.
Except as may be required by law, neither a party nor arbitrator(s) may disclose the
existence, content, or results of any arbitration hereunder without the prior written
consent of both parties.
Section 10. 5 - Attorneys’ Fees.
The prevailing party in the arbitration in connection with this Agreement shall be entitled
to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs
Section 11. Term.
The term of this Agreement shall be eighteen (18) months. However, either party may terminate
this Agreement by providing ten (10) business days written notice.
Section 12. Survival.
The terms of this Agreement shall remain in effect during the Term and shall survive the
termination of this Agreement for one (1) year following the termination of this Agreement. To
the extent any portions of Confidential Information meet the definition of a “trade secret” under
applicable law, that Confidential Information shall survive termination of this Agreement for as
long as provided under applicable law.
Section 13. Severability.
If any provision of this agreement shall for any reason by held invalid, unenforceable or illegal in
any respect, such invalidity, unenforceability or illegality shall not affect any other term or
provision of this Agreement and this Agreement shall be interpreted and construed as if such
invalid, unenforceable or illegal term or provision had never been contained therein.
Section 14. Assignment.
Neither party may assign or transfer this Agreement or any rights or duties without express prior
written consent. Any attempt to assign or transfer this Agreement without the other party’s
express prior written consent, shall be void.
Section 15. No Further Rights.
This Agreement shall not be construed as granting any right, license or authority to the
information exchanged, except as permitted under Section 5. No license or conveyance of any
intellectual property rights is granted or implied by this Agreement.
Section 16. Modification.
This Agreement cannot be amended except by a written amendment executed and delivered by
each of the parties.
Section 17. Entire Agreement.
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.
IN WITNESS WHEREOF, the parties have signed this Agreement as of _________ day of
_________________ (Month), 2010.
Thomas Network Solutions, Inc. Fairfield & Associates
By: _____________________________ By:___________________________