Mutual Non-Disclosure Agreement

THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made by the two undersigned parties.

The parties have entered into or are contemplating entering into a business relationship (the “Purpose”) and the parties anticipate that, in the course of their discussions and relationship, each party (the “Disclosing Party”) will disclose to the other party (the “Recipient”) certain information which the Disclosing Party deems to be proprietary and confidential and which the Disclosing Party desires to protect from unauthorized use and disclosure.

1. Definition of Confidential Information. “Confidential Information” shall mean any and all information furnished, made available to, or obtained or derived by the Recipient, or any of its subsidiaries, affiliates, employees or agents, relating to the Disclosing Party’s current or future products, inventions, designs, ideas, know-how, formulas, processes, technologies, assets, liabilities, financial and business information, results of operations, technical information, customers, suppliers, contracts, practices, procedures, or any other proprietary information of the Disclosing Party whether in written, oral, electronic or other form.
2. Non disclosure and Non use Obligations. The Recipient:

(a) shall hold the Disclosing Party’s Confidential Information in strict confidence;

(b) shall not disclose such Confidential Information to any third party and shall implement practices and procedures necessary to prevent such disclosure, which steps shall include at least those taken by the Recipient to protect its own confidential information of like kind; and

(c) shall use such Confidential Information only for the Purpose stated above and for no other purposes unless the parties shall have agreed otherwise in writing.  Notwithstanding the foregoing, the Recipient may disclose the Disclosing Party’s Confidential Information to the Recipient’s employees and consultants (collectively “Responsible Persons”) who reasonably need access to such Confidential Information in order to carry out the Purpose.  The Recipient: (i) will inform all Responsible Persons that such Confidential Information is confidential and is not to be disclosed to third parties; (ii) will obligate all Responsible Persons in writing to abide by the non disclosure and non use obligations of this Agreement; and (iii) will be responsible for any non compliance by Responsible Persons.

3. Exceptions from Non disclosure and Non use Obligations. The obligations of non disclosure and non use in Clause 2 shall not apply to any part of the Confidential Information which the Recipient can show:

(a) was already known to the Recipient before receiving such information from the Disclosing Party;

(b) is or becomes known to the public or generally available to the public through no      fault of the Recipient;

(c) is provided  to the Recipient from a third party who has not received such Confidential Information, directly or indirectly, from the Disclosing Party under an obligation of non disclosure or non use; o

(d) is independently developed by or for the Recipient without use of Confidential Information received from the Disclosing Party.

The obligation of non disclosure in this Agreement shall not be breached by disclosure required by law or regulation (but in which case to the absolute minimum necessary) provided that the Recipient  shall, so far as it is legally able to do so,  first consult fully with the Disclosing Party  to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure and at the Disclosing Party’s expense take all steps as it may require to achieve prevention or restriction, provided that where possible the Recipient gives the Disclosing Party prior notice of such requirement and affords the Disclosing Party an opportunity to oppose such disclosure or seek a protective order.

4. Ownership and Return of Confidential Information and Other Materials. All Confidential Information of the Disclosing Party which includes  any modifications, enhancements or improvements shall remain the property of the Disclosing Party, and no licence or other right to such Confidential Information are granted except as expressly set out in this Agreement..  The Recipient shall return to the Disclosing Party, upon request, all documents, models, prototypes, writings, photographs, drawings and other materials including copies or extracts of the same which disclose and/or contain Confidential Information provided by the Disclosing Party.

5. No Obligation to Disclose, Sell or Purchase, or Refrain from Selling or Purchasing. Nothing in this Agreement shall constitute or imply any obligation to disclose any information, to consummate any transaction, to sell, purchase or provide any product or service by either party, to refrain from selling, purchasing or providing any product or service to or from any third party, or any commitment by either party with respect to the present or future marketing, selling or distribution of any product or service.  No rights or obligations other than those expressly recited herein are to be implied from this Agreement.

6. Injunctive Relief. The Recipient acknowledges that damages are not an adequate remedy in the event of a breach or intended or threatened breach of this Agreement the Disclosing Party shall be entitled to apply for injunctive relief in any court of competent jurisdiction and the Recipient shall reimburse the Disclosing Party for any costs, claims, demands or liabilities arising directly or indirectly out of a breach. Nothing contained in this Agreement shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to it for breach or threatened breach.

7. Costs. In the event of any dispute relating to this Agreement or to the subject matter hereof, the prevailing party shall be entitled to collect from the other party any and all reasonable costs (including legal costs fees) incurred by the prevailing party in connection with such dispute.  Such relief shall be in addition to any other relief to which the prevailing party is entitled.

8. Governing Law. This Agreement shall be governed by and construed in accordance with Connecticut state laws.  All disputes arising from or relating to this Agreement shall be within the exclusive jurisdiction of the courts of Connecticut.

9. Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision(s) had never been contained herein, provided that such invalid, illegal or unenforceable provision(s) shall first be curtailed, limited or eliminated to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied.

10. Waiver. Any waiver of, or promise not to enforce, any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.

11. No Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

12. Modification. No modification, rescission or amendment of this Agreement shall be effective unless agreed in writing and signed by both parties.

13. Entire Agreement.  This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, written or oral, between the parties.

14. Non Solicitation – During the term of this Agreement and for a period of one (1) year after termination of this Agreement both parties and its subsidiaries shall not solicit for employment any employees of either company or its affiliates, publishers, media partners except that the foregoing shall not apply to the solicitation of employment of any person where contact with Advertiser is initiated by such person in response to an advertisement published by Advertiser in a newspaper, magazine, trade publication or other publication or by electronic means, such as posting on the Internet, and that is available to the general public. Advertiser agrees that monetary damages for a breach of or a threatened breach of this Section will not be adequate and that in the event the Advertiser shall employ an employee or its partners in violation of this Agreement,  parties shall be entitled to injunctive relief (including temporary and preliminary relief) and liquidated damages of one (1) times the employee’s total current salary for a period of one (1) year or five (5) times the total media spend with the partner.