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MUTUAL NON-DISCLOSURE AGREEMENT Customer (the organization for which I register), and Bandwidth Market, Ltd. of Suite 2400 One Wells Fargo Center, 1700 Lincoln St., Denver, Colorado 80203-4524, (together the Parties), make this mutual Non-Disclosure Agreement. 1. Introduction. The Parties intend to discuss business during the course of which the Parties may have access to or receive information from each other such as information relating to each others identity, affiliates, business plans, name, logo, business, products or administration, its marketing, financial, or business activities. All such information and any materials embodying such information and/or the discussions between the Parties whether disclosed verbally, visually, or otherwise, particularly including the names of customers, shall be considered by both Parties as proprietary and confidential (Proprietary Information). 2. Non-Disclosure. As consideration for having access to, or receiving any Proprietary Information, both Parties agree that each shall use the same efforts to protect the confidentiality of the Propriety Information as each Party uses to protect its own Proprietary Information and in no event shall either party disclose or disseminate, or permit any of its employees to disclose or disseminate, the Proprietary Information to any third without the other Party's prior written consent and shall restrict dissemination to its employees and, its non-competing subsidiaries and non-competing affiliated companies to those with a need to know. In no event shall either Party use the Proprietary Information for its own benefit or for the benefit of any third party except as specifically provided herein. The undertakings and obligations of the Parties under this Article II shall not apply, however, to any information which the receiving Party can establish to have: (a) become publicly known through no action on its part; (b) been known by the Receiving Party prior to receipt from the disclosing Party; or (c) become available to a receiving Party on a non-confidential basis from a source that is entitled to disclose it on a non-confidential basis. 3. Return of Proprietary Information. Upon the termination of any business discussions or relationship between the Parties or at anytime upon the disclosing Party's request, the receiving Party shall deliver all files, documents and other media (and all copies and reproductions of any of the foregoing) in its possession or control which contain or pertain to the disclosing Party's Proprietary Information. 4. Miscellaneous Provisions. This Agreement constitutes the entire agreement and understanding between the Parties and integrates all prior discussions between them related to the subject matter hereof. This Agreement shall automatically expire twelve (12) months after it is entered, unless the Registrant continues to use theBandwidthMarket.com web site thereafter, in which case the agreement shall continue another year, and notwithstanding the expiration of the Agreement, both Parties shall maintain the confidentiality of the Proprietary Information for a further one (1) year after the expiration of this Agreement. Neither this Agreement nor any amendment to this Agreement shall be valid unless it is in writing and signed by both Parties, except that this Agreement and any amendments to this agreement may be signed in counterparts, and facsimile signatures, email confirmation or web site confirmation by both parties are binding. Except as required by law, rules or regulations and subject to a request or requirement by subpoena, oral deposition, request for production of documents or administrative order, or the prior written consent of the disclosing Party, the receiving Party shall not disclose the fact that Proprietary Information has been made available to it. Each Party shall provide the other Party with prompt notice of any legal request to disclose Proprietary Information. Each Party shall notify the other Party upon discovery of any unauthorized or improper use or disclosure of the Proprietary Information, or any other breach of this Agreement, and will offer all reasonable cooperation to regain possession or to prevent further unauthorized use or disclosure of the Proprietary Information. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement and that a Party shall be entitled to injunctive relief as well as reimbursement by the other Party for reasonable legal and other expenses for the breach of this Agreement and such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law or in equity. This Agreement shall be binding upon the respective heirs, successors and assigns of the Parties hereto. No delay or omission by either Party in exercising any right of this Agreement shall operate as a waiver of that or any other right. The laws in force in the State of Colorado govern this Agreement. In the event that any term or provision of this Agreement shall be deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, such court shall have the power, and is hereby directed, to limit such scope, duration or area of applicability, or all of them so that such term or provision is not overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event that any provision of this Agreement shall be held invalid or unenforceable for any reason, such invalidity or unenforceability shall be held to attach only to such provision and shall not effect or render invalid any other provision of this Agreement. The termination of any understanding or agreement between the Parties for any reason shall not relieve either Party of its obligations hereunder.
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