Mutual Confidentiality and Nondisclosure Agreement
E-COMMERCE PRACTICUM AT WASHINGTON & LEE SCHOOL OF LAW
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 E-Commerce Practicum at Washington
and Lee University School of Law (the “Class” as defined in Section 2), and Thomson
Network Solutions, Inc. (the “Company” as defined in Section 2). 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”). This agreement was entered into with adequate consideration.
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 Thompson Network Solutions, Inc.; and “Representatives” shall
mean all of the respective directors, officers, employees, agents, or advisors of the
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. Consideration. "Consideration" is a bargained for exchange between the
Company and the Class. Adequate Consideration, the Company shall pay an
agreed upon retainer fee to the Class upon the signing of this Agreement in
exchange for the Class's forbearance of "Confidential Information" as defined
4. Confidential Information. “Confidential Information” is all written, visual or
oral information concerning the Project furnished from one party to the other
party. Confidential Information includes information furnished before, 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 related to the Project.
5. Exclusions from Confidential Information. “Confidential Information” shall
a. Any portions of the Confidential Information that:
i. are currently available to the general public; or
ii. become available in the general public, other than as a result of a
disclosure by the Company; or
iii. become available to the Company on a non-confidential basis from
a source other than the Class; or
iv. have been independently acquired or developed by the Class
without reference to or use of the Confidential Information of the
Company or without any violation by the Class of any of its
obligations under this Agreement.
Section 3 - Permitted Use.
The Class 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 Class 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 Class.
The Class shall hold and maintain the Confidential Information in strictest confidence for
the exclusive benefit of the Company. The Class shall not, without prior written approval
of Company, use for the Class’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,
any Confidential Information.
Section 5 - Authorization.
At any time, the Class may ask to use Confidential Information from the Company
(“Authorization Request”). The Company shall respond to the Class's Authorization
Request within ten (10) business days and shall not unreasonably deny such request. An
Authorization Request will include:
a. the document of Confidential Information; and
b. the Purpose, if any, for which such document or Confidential Information
is to be used.
If no purpose is given, the Class's Authorization Request seeks unlimited use of the
document of Confidential Information.
Section 6 - Return of Confidential Information.
The Class shall return to the Company or destroy any and all records, notes, or other
written, printed, or tangible materials in its possession pertaining to Confidential
Information immediately if the Company requests it in writing. The Class 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.
Section 7 - Notice.
The Class shall notify the Company 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 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 protective order.
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 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.
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 Class 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.
Section 10 - Governing Law.
This Agreement shall be governed by the laws of the Commonwealth of Virginia, without
regard to it choice of law rules. All disputes arising under this Agreement shall be
litigated in federal court in Charlottesville, Virginia.
Section 11 - Attorneys’ Fees.
The prevailing party in a proceeding or lawsuit in connection with this Agreement shall
be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees,
including costs and fees on appeal.
Section 12 - Term.
The term of this Agreement shall be six (6) months, provided that either party may
terminate this Agreement on ten (10) business days written notice.
Section 13 - 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.
Section 14 - 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
Section 15 - 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
Section 16 - 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.
Section 17 - Modification.
This Agreement cannot be amended except by a written amendment executed and
delivered by each of the parties hereto.
Section 18 - 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. This Agreement and each party’s obligations shall be binding
on the representatives, assigns and successors of such party.
(Typed or Printed Name)
(Typed or Printed Name)