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Nda (Final)


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Nda (Final)

  1. 1. Confidentiality and Nondisclosure Agreement<br />  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”), collectively referred as the “Parties”.  The Parties 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: <br />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.<br />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.<br />3.Confidential Information. “Confidential Information” is all written, visual or oral information concerning the Project that is provided by the Company or its Representatives to the Class, 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 Class containing or based on, or generated or derived from, in whole or in part, any such information furnished by the Company related to the Project.<br />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 Class, or (ii) become available to the Class on a non-confidential basis from a source other than through the Company or its Representatives (provided that such source is not known by the Class to be bound by a confidentiality agreement with the Company); or (b) any information that has 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. <br />5.Permitted Use.  The Class 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, the Company does not grant, and the Class 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 the Company. <br />5.1Authorization. At any time, the Class may ask for authorization to use any Confidential Information from the Company (“Authorization Request”). The Company shall use reasonable efforts to respond to the Class’s Authorization Request within three (3) business days and shall not unreasonably deny such request. An Authorization Request 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’s Authorization Request seeks unlimited use of the document of Confidential Information.<br />5.2Delivery. Delivery of Confidential Information or any derivative work thereof shall be sent by electronic mail to the agreed upon electronic mail addresses under Section 15 unless otherwise specified in the Authorization Request.<br />6.Obligations of the Class.  The Class shall hold and maintain the Confidential Information in confidence and shall not, without prior written approval of the 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.  <br />6.1Return 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 upon the Company’s written request. The Class must comply with this request within ten (10) business days of the receipt of the written request; however, the Class may ask for an extension period if an event arises that would make the 10-day compliance period impracticable or impossible to perform. Any oral Confidential Information will continue to be subject to the terms of this Agreement.<br />7.Unauthorized Usage/Compelled Disclosure.  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.<br />8.Relationship. Nothing 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 in this Agreement or in any discussion 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.<br />8.1Conflict of Interest. The Class will not accept an engagement that is directly adverse to the Company if either: (i) it would be substantially related to the subject matter of the representation under this Agreement; or (ii) would impair the confidentiality of proprietary, sensitive or otherwise confidential communications made to the Class by the Company.<br />9.Remedies.  The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in addition to all other remedies which may be available to the Parties, the Parties shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and each of the Parties further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. 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.<br />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.<br />10.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.<br />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.<br />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.<br />13.Assignment.  Neither Party may assign or transfer this Agreement or any rights or duties hereunder without express written consent of both Parties.<br />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.<br />15.Notice. Electronic mail (email) is the prefer method of delivery of written notices and other communications under this Agreement, but in the event that it becomes impracticable to send notices or other deliveries electronically, the Parties may use registered mail. Unless otherwise noted, notices and other deliveries shall be sent to the following email or physical addresses:<br />Thompson Network SolutionsE-Commerce Practicum, W&L Law School<br />123 Washington Blvd.Sydney Lewis Hall<br />Arlington, VA 22201Lexington, VA 24450<br /> <br />16.Modification. This Agreement cannot be amended except by a written amendment executed and delivered by each of the Parties.  <br />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. <br />IN WITNESS WHEREOF, the Parties have caused their duly authorized Representatives to execute this Agreement. <br />______________________________ _____________________________<br />(Signature) (Signature)<br /> <br />______________________________ _____________________________<br />(Typed or Printed Name) (Typed or Printed Name)<br /> <br />Date: ____________ Date: _____________<br />