MUTUAL NONDISCLOSURE / NONCIRCUMVENTION AGREEMENT
Each
undersigned party (the “Receiving Party”) understands that the other party (the
“Disclosing Party”) has disclosed or may disclose information relating to
properties, composition or structure of the Disclosing Party’s products or
proposed products or the development, the manufacture or processing thereof or
machines therefore or the Disclosing Party’s business (including, without
limitation, reagents, investigative methods, computer programs, algorithms.
names and expertise of clients, employees and consultants, know-how, formulas,
processes, ideas, inventions (whether patentable or not), schematics and other
technical, business, financial, customer and product development plans, which
to the extent previously, presently, or subsequently disclosed to the Receiving
Party is hereinafter referred to as “Disclosing Party Proprietary
Information”. In this particular instant
the parties which could be the disclosing or receiving parties are Balboa
Pacific Corporation, Balboa Conversion Technologies, Inc, and their respective officers, directors, agents and affiliates
and/or assigns and __________________________________ and his/their officers,
directors, agents and affiliates and/or assigns.
Notwithstanding
the foregoing, nothing will be considered “Disclosing Party Proprietary
Information” unless either (1) it is first disclosed in tangible form
conspicuously marked “Confidential” or (2) it is first disclosed in
non-tangible form and orally identified as confidential at the time of
disclosure and is summarized in tangible form conspicuously marked
“Confidential” with 30 days of the original disclosure.
In
consideration of the parties’ discussions and any access the Receiving party
may have to Disclosing Party Proprietary Information, the Receiving Party
hereby agrees as follows:
The
Receiving Party agrees (I) to hold the Disclosing Party Proprietary Information
in confidence as a fiduciary and to take all reasonable precautions to protect
such disclosing Party Information (including, without limitation, all
precautions the Receiving Party employs with respect to its most confidential
materials), (II) not to divulge any such Proprietary Information or any
information derived there from to any third person (except subject to the
conditions stated below), (III) not to make any use whatsoever at any time of
such Disclosing Party Proprietary Information for the benefit of any person
other than the disclosing Party or as expressly contemplated by the Disclosing Party,
(IV) not to remove or export from the United States or re-export any such
disclosing Party Proprietary Information or any direct product thereof except
in compliance with, and with all licenses and approvals required under,
applicable export laws and regulations, and (V) not to copy or reverse engineer
any such Disclosing Party Proprietary Information. Any employee or consultant given access to
any such Disclosing Party Proprietary Information must have a legitimate “need
to know” and will be similarly bound in writing. Without granting any right or license, the
Disclosing Party agrees that the foregoing clauses (I), (II) and (V) will not
apply with respect to any information after (5) five years following the
disclosure thereof or to any information that the Receiving Party can document
(a) is or (through no improper action or inaction by the Receiving Party or any
affiliate, agent or employee) generally available to the public, or (b) was in
its possession or know by it prior to receipt from the Disclosing Party, or (c)
was rightfully disclosed to it by a third party without restriction; provided
the Receiving Party complies with
restrictions imposed by the third party, or (d) was independently developed
without use of any Disclosing Party Proprietary Information by employees of the
Receiving Party who have had no access to such information.
The
Receiving Party may make disclosures required by court order provided the
Receiving Party uses best efforts to limit disclosures and to obtain
confidential treatment or a protective order and has allowed the Disclosing
Party to participate in the proceeding.
The
Receiving Party understands and acknowledges that the Disclosing Party is not
making any representations or warranty, express or implied, as to the accuracy
or completeness of the Disclosing Party Proprietary Information and neither the
Disclosing Party nor any of its officers, directors or agents will have any
liability to the Receiving Party or any person resulting from the Receiving Party’s
use of the Disclosing Party Proprietary Information.
The
Receiving Party acknowledges and agrees that all Disclosing Party Proprietary
Information and its tangible media delivered by the Disclosing Party to the
Receiving Party will be and will remain sole and exclusive property of the
Disclosing Party. Nothing contained in
this Agreement will be construed as granting or conferring any rights by
license or otherwise, expressly, implied, or otherwise for inventions discovery
or improvement made, conceived or acquired prior to or after the date of this
Agreement. The Receiving Party also
agrees, if applicable, to promptly and fully disclose to the Disclosing Party
and invention and/or copyrightable work of authorship which any employee of the
Receiving Party may make, whether alone or jointly, resulting from the use of
the Disclosing Party Proprietary Information, that all rights in any such
invention and/or copyrightable work of authorship will belong solely to the
Disclosing Party and that the investor(s) thereof will execute any documents or
take such other action as may be required to confirm such rights.
The
Receiving Party acknowledges and agrees that due to the unique nature of the
Disclosing Party’s Proprietary Information, there can be no adequate remedy at
law for any breach of its obligations hereunder, that any such breach may allow
the Receiving Party or third parties to unfairly compete with the Disclosing
Party resulting in irreparable harm to the Disclosing Party and, therefore,
that upon any such breach or any threat thereof, the Disclosing Party will be
entitled to appropriate equitable relief in addition to whatever remedies it
might have at law and to be indemnified by the Receiving Party from any loss or
harm, including, without limitation, attorney’s fees, in connection with any
breach or enforcement of the Receiving Party’s obligations hereunder or the
unauthorized use or release of any such Disclosing Party Proprietary
Information. The Receiving Party will
notify the Disclosing Party in writing immediately upon the occurrence of any
such unauthorized release or other breach of which it is aware. In the event that a court or other tribunal
of competent jurisdiction to be illegal, invalid or unenforceable will hold any
of the provisions of this Agreement, such provisions will be limited or
eliminated to the minimum extent necessary so that this Agreement will
otherwise remain in full force and effect.
This Agreement will be governed by the laws of the State of
The Receiving Party further covenants to have this Agreement signed by third parties who are provided with confidential and /or other proprietary information by the Receiving Party.
In
witness whereof, the parties have executed this Agreement as of the month, day
and year set forth below:
“BALBOA PACIFIC CORPORATION” ____________________________________
Date: ______________________ ___, 2005 Date:
_______________________ ___, 2005
BY: _______________________________ BY __________________________________
James O.
Boylan, III
President and CEO
_________________________________________________________________________________
13155 Portofino Drive, San Diego, California 92014
Phone: (858) 259-7621 • Fax: (858) 259-7728 • E-mail: balboapacific@aol.com
www.Balboa-Pacific.com