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Mutual Confidentiality and Nondisclosure Agreement This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (“Agreement”) is entered into as of February 5, 2010 between the E-Commerce Practicum at Washington and Lee University School of Law (the “Class”), and Thomson Network Solutions, Inc. (the “Company”). The Class 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”) that is either non-public, confidential or proprietary in nature. In consideration for the exchange of Confidential Information between the Class and the Company, the parties agree, for the purposes of this Agreement, that: 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.Class. The definition of “the Class” 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.Confidential Information. “Confidential Information” is all written, visual or oral information concerning the Project that is provided by a party or its business (the “Providing Party”) or its Representatives to the other party (the “Receiving Party”) or the Receiving Party’s Representatives, irrespective of the form of communication, and whether the information is furnished on or after the date hereof. Confidential Information shall also include all analyses, compilations, forecasts, data, studies, notes, translations, memoranda or other documents or materials prepared by the Receiving Party or its Representatives containing or based on, or generated or derived from, in whole or in part, any such information furnished by the Providing Party related to the Project. 4.Exclusions from Confidential Information. “Confidential Information” shall not include (a) any portions of the Confidential Information that (i) are or become generally available in the general public, other than as a result of a disclosure by the Receiving Party, or (ii) become available to the Receiving Party on a non-confidential basis from a source other than through the Providing Party or its Representatives (provided that such source is not known by the Receiving Party to be bound by a confidentiality agreement with the Providing Party or otherwise prohibited from disclosing the information to the Receiving Party); or (b) any information that has been independently acquired or developed by the Receiving Party without reference to or use of the Confidential Information of the Providing Party or without any violation by the Receiving Party of any of its obligations under this Agreement. 5.Permitted Use. Receiving Party shall not make any reproductions, disclosure or use of the Confidential Information other than for the authorized purpose relating to the Project. Other than the limited right of use provided under this Section 5, Providing Party does not grant, and Receiving Party shall not have any right or license, (whether expressly, by implication or by estoppels), under any patent, trademark, copyright or trade secret owned or controlled by Providing Party. 5.1Authorization. At any time, the Receiving Party may ask for authorization to use any document containing Confidential Information from the Providing Party (“Authorization Request”). Providing Party shall use reasonable efforts to respond to the Receiving Party’s Authorization Request within ten (10) business days and shall not unreasonably deny such request. An Authorization Request will include: (i) the document of 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 Receiving Party’s Authorization Request seeks unlimited use of the document of Confidential Information. 6.Obligations of Receiving Party. Receiving Party shall hold and maintain the Confidential Information in confidence. Receiving Party shall not, without prior written approval of Providing Party, use for Receiving Party’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Providing Party, any Confidential Information. 6.1Return of Confidential Information. Receiving Party shall return to Providing Party or destroy any and all records, notes, or other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Providing Party requests it in writing. Receiving party 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 Agreement. 7.Notice. Receiving Party shall notify Providing Party in writing immediately in the event Receiving Party becomes aware of any unauthorized use, disclosure, or theft of any Confidential Information. In the event Receiving Party receives notice that it may be required by a court or government agency of competent jurisdiction to disclose Confidential Information, Receiving Party shall give Providing Party reasonable notice prior to such disclosure and provide Providing Party reasonable cooperation and assistance in seeking to prohibit such disclosure or to ensure that any such disclosure is subject to a protective order. 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 Agreement or in any discussion undertaken or disclosures made pursuant to this Agreement shall (i) limit either party’s right to conduct discussions similar to those undertaken pursuant to this Agreement with third parties, provided that such discussions do not violate this Agreement, or (ii) 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 parties. 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 Receiving Party hereby in advance agrees to the granting of injunctive relief in the non-breaching party’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 breaching party and/or its Representatives. Such remedy shall not be deemed to be the exclusive remedy for breach or threatened breach of this Agreement by a party or its Representatives, but shall be in addition to all other remedies available to the non-breaching party at law or equity. 9.1Governing Law. The construction, validity, performance, enforcement and effort of this Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles. All disputes arising under this Agreement shall be litigated in a court of competent jurisdiction in the city of Arlington, Virginia. 10.Term. The term of this Agreement shall be six (6) months. 11.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 this Agreement. To the extent any portions of Confidential Information meet the definition of a “trade secret” under applicable law, the terms and conditions of this Agreement as to such portions of the Confidential Information shall survive termination of this Agreement for as long as provided under applicable law. 12.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. 13.Assignment. Neither party may assign or transfer this Agreement or any rights or duties hereunder without express written consent of both parties. 14.No Further Rights. This Agreement shall not be construed as creating, conveying, transferring, granting or conferring any right, license or authority in or 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. 15.Modification. This Agreement cannot be amended except by a written amendment executed and delivered by each of the parties hereto. 16.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 caused their duly authorized Representatives to execute this Agreement. ______________________________ (Signature)
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