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
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
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 Firm; or
iv. have 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 Agreement.
6. Work Product Related to Confidential Information. "Work Product" shall
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
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 Agreement.
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 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 shall:
(i) limit either party’s right to enter into a similar relationship, provided that such
relationship does 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
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
expiration or termination of this Agreement for one (1) year following the expiration or
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
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 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.
IN WITNESS WHEREOF:
FAIRFIELD & ASSOCIATES LLP
THOMSON NETWORK SOLUTIONS, INC.