Non Disclosure Agreement

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (“Agreement”) is entered into as of May 21, 2012 (the “Effective Date”), by and between with its principal place of business at and SitePen, Inc., a California corporation with its principal place of business at 530 Lytton Avenue, Second Floor, Palo Alto, CA 94301 (each such party being a “disclosing party” and/or “receiving party” hereunder as the context requires).

1. This Agreement shall apply to all confidential and proprietary information that is (i) disclosed by the parties to each other, including, without limitation, all personal information including individual financial information, all pricing, mailing lists, proprietary data, data model(s), data integrators, business rules and any related adapters, product designs, capabilities, specifications, program code, software systems and processes, information regarding existing and future technical, business and marketing plans and product strategies, any analysis reports or results from the testing of any products, and the identity of actual and potential clients, data providers and suppliers and (ii) listed or referred to as proprietary or confidential. Confidential Information shall also include the proprietary information of either party’s subsidiaries, affiliated companies, business partners, data providers and clients. Confidential Information may be written, oral, recorded, or contained on tape or on other electronic or mechanical media.
2. “Confidential Information” shall not include information which (a) was already known to the receiving party prior to the time that it is disclosed to such party hereunder; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach of this Agreement; (d) has been approved for release by written authorization of the disclosing party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing party has been given reasonable notice of the pendency of such an order and the opportunity to contest it.
3. Each party agrees to hold the other’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third party or to use it for any purpose other than as specifically authorized by the other party. Each party agrees that it will employ all reasonable steps to protect the Confidential Information of the other party from unauthorized or inadvertent disclosure, including without limitation all steps that it takes to protect its own information that it considers proprietary. The parties may disclose each other’s Confidential Information only to those employees and/or contractors having a need to know and only to the extent necessary to enable the parties to adequately perform their respective responsibilities to each other and, in the case of any product tests, only to those of its employees who are directly involved with the testing of such product. The parties hereby undertake to ensure the individual compliance of such employees and/or contractors with the terms hereof.
4. No copies of the Confidential Information shall be made by the receiving party except as may be necessary to perform services relating to the Confidential Information as requested by the disclosing party. Upon the written request of the disclosing party at any time, the receiving party shall, at the disclosing party’s option, either destroy or return to the disclosing party all tapes, diskettes or other media upon which the disclosing party’s Confidential Information is stored, and all copies thereof, if any. If requested by the disclosing party to destroy any Confidential Information, the receiving party shall certify in a writing to be delivered to the disclosing party within five (5) business days following such destruction that such destruction has been completed.
5. Each party shall be deemed to be the owner of all Confidential Information disclosed by it hereunder, including all patent, copyright, mask work, trademark, service mark, trade secret and any and all other proprietary rights and interests therein, and parties each agree that nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, in or to any Confidential Information disclosed pursuant to this Agreement.
6. The parties acknowledge that the unauthorized disclosure, use or disposition of Confidential Information could cause irreparable harm and significant injury which may be difficult to ascertain. Accordingly, the parties agree that the disclosing party shall have the right to an immediate injunction in the event of any breach of this Agreement, in addition to any other remedies that may be available to the disclosing party at law or in equity.
7. If any provision of this Agreement or any portion of any such provision shall be held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the provision or portion thereof affected by such holding shall be modified, if possible, so that it is enforceable to the maximum extent permissible.
8. This Agreement and the obligations under this Agreement shall have a term of three (3) years from date of the last fully executed Statement of Work or the Effective Date of this Agreement, whichever is later.
9. This Agreement shall not be terminated or superseded by any future agreement between the parties hereto, unless such subsequent agreement specifically so provides by an express reference to this Agreement.
10. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns.
11. This Agreement may be executed in any number of counterparts, including facsimile copies, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable with respect to the parties actually executing such counterparts.