CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of this ____________, the __^st day of __________, 2000 (the “Effective Date”) by and between GFAN Inc., a United States corporation incorporated under the laws of the State of Delaware (sometimes hereinafter referred to as “GFAN”), and _______________ ____________, a ______________corporation, having its offices at ______________________________________________ __________________________________________________________(sometimes hereinafter referred to as the “Company”).

WHEREAS, each of GFAN and the Company may disclose or may have already disclosed to the other certain confidential technical, financial or other business information which the party disclosing such information desires the party receiving such information to treat as confidential and to safeguard and carefully protected the same,

WHEREAS, the parties have discussed and agreed to resolve and establish certain terms and conditions governing the use and protection of such Confidential Information;

NOW, THEREFORE, in consideration of the premises hereinabove, and the mutual covenants and promises contained hereinbelow, each of the GFAN and the Company (each a “Party” and, collectively, the “Parties”), INTENDING TO BE LEGALLY BOUND, hereby agree as follows:

1.             Certain Definitions. The terms “Discloser” and “Recipient” may apply to either Party to this Agreement in their respective role as a party that discloses or furnishes Confidential Information (the “Discloser”) and a party that receives such Confidential Information (the “Recipient”). The term “Discloser” shall also include all Affiliates of the Discloser and, except as otherwise indicated, the term “Recipient” shall also include all Affiliates of the Recipient.  The term “Affiliate” shall mean any person, partnership, joint venture, corporation or enterprise, including but not limited to subsidiaries, that directly or indirectly, controls, is controlled by, or are under common control with such party.

2.             Confidential Information. “Confidential Information” means any information disclosed by the Discloser to the Receiving party relating to (i) the Discloser’s proprietary business model, technology and products, including without limitation, technical data, trade secrets, know-how, research, product plans, ideas or concepts, products, services, software, patent applications, techniques, processes, and developments, and (ii) proprietary information relating to the Discloser’s operations and business or financial plans or strategies, including but not limited to customers, markets, financial statements and projections, product pricing and marketing, financial or other strategic business plans or information, disclosed to Recipient by the Discloser. In addition, information furnished by the Discloser to the Recipient shall be deemed confidential if, although not subject to general definition set forth in the previous sentence, such information should have reasonable have been understood by the Recipient, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Discloser or to a third party.  Confidential Information may be disclosed directly or indirectly, in written or other tangible form (including information held in computer software or held in electronic or magnetic storage media) or by oral, visual or other means.

3.            The Recipient agrees not to use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the Parties. The Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information, using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. The Recipient agrees that it shall not  disclose any Confidential Information to the Recipient’s employees, except to those employees of the Recipient who are required to have the information in order to evaluate or engage in discussions concerning the potential business relationship. Confidential Information shall not be disclosed to any third party without the prior written consent of the Discloser, and then only those who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written agreement. 

Further, the Recipient agrees that it shall not reverse engineer, disassemble, or decompile any prototypes, software code, or other tangible objects which embody the Discloser’s Confidential Information and which are provided to the party pursuant to this Agreement. The terms of confidentiality under this Agreement shall not be construed to limit either the Discloser or the Recipient’s right to independently develop or acquire products without use of the other party’s Confidential information. The Recipient shall have the right to use and exploit residuals resulting from access to or work with the Confidential Information of the Discloser, provided that the Recipient shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term “residuals” shall mean ideas, information, and understandings retained in the memory of persons who have access to the Confidential Information.

4.            The restrictions of this agreement on use and disclosure of Confidential Information shall not apply to information that  (i) was publicly known and made generally available in the public domain prior the time of Discloser’s communication therefor to Recipient; (ii) becomes publicly known and made generally available through no fault of Recipient subsequent to the time of Discloser’s communication thereof to Recipient; (iii) is already in the possession of the Recipient at the time of disclosure by the Discloser as evidenced by the Recipient’s files or other records;  (iv) is developed by Recipient independently of and without reference to any of Discloser’s Confidential Information or other information that Discloser disclosed in confidence to any third party;  (v) is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction;  (vi) is identified by Dislcoser as no longer proprietary or confidential; and (vii) is required by law to be disclosed by the Recipient, provided that the Recipient gives the Discloser prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

5              ANY AND ALL CONFIDENTIAL INFORMATION DISCLOSED IS PROVIDED “AS IS” AND THE DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION.  THE DISCLOSER SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMMISSIONS IN, OR ANY DECISIONS MADE BY RECIPIENT IN RELIANCE ON, ANY CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT.

6              All documents and other tangible information and objects containing or representing Confidential Information (including information held in computer software or held in electronic or magnetic storage media) that have been disclosed or furnished by the Discloser, and all copies thereof that are in the Recipient’s possession, remain the property of the Discloser and shall be promptly returned to the Discloser promptly upon its written request or termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, or any employees or independent contractors of Recipient.

7.             No License. Nothing in this Agreement is intended to grant any rights to the Recipient under any patent, mask work right, trademark, servicemark, copyright, or other intellectual property right of the Discloser, nor shall this Agreement grant to the Recipient any rights in or to the Confidential Information except as expressly set forth herein.

8.             Term.  This Agreement shall become effective as of the date first written above and shall continue for a term of five (5) years.  Further, as to any item of Confidential Information that constitutes a trade secret under applicable law, the obligations of confidentiality contained herein shall continue for so long as allowed under applicable law. Unless otherwise agreed in writing, this Agreement shall govern Confidential Information disclosed by Discloser to the Recipient prior to, as well as after, the effective date hereof.

9.             Remedies. Each party acknowledges and agrees that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Discloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

10.           Miscellaneous. This document constitutes the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein.  This Agreement shall be binding upon and inure to the benefit of each Party’s respective successors and lawful assigns. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Neither this Agreement nor any rights or obligations hereunder may be transferred or assigned without the other party’s prior written consent and any attempt to the contrary shall be void. If either the Discloser or the Recipient employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs. Headings are for reference purposes only and have no substantive effect. The words “hereinabove”, “hereinafter”, and words of similar import shall refer to this Agreement. This Agreement shall be governed by interpreted and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. This Agreement may be executed in counterpart originals and by facsimile signatures, and shall be effective regardless of the order in which signed.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date written below.

GFAN Inc.                                                                                         [Company Name]

By   :                                                                                   By             :                                                 

Name        :                                                                          Name        :                                                 

Title          :                                                                          Title          :                                                 

Date          :                                                                           Date          :  _______________________