Cyberlux Corporation
and
International Consolidated Technologies
MUTUAL NON DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the "Agreement") is made and entered
into this 30th day of November, 2001 by and between Cyberlux Corporation
("Cyberlux") with it principal place of business located at 00 Xxxxxx Xxxx, XX
Xxx 0000, Xxxxxxxxx, XX 00000 and International Consolidated Technologies
("ICT"), with its principal place of business located at 000 Xxxx Xxxxxxxx
Xxxxx, XX 00000.
WHEREAS, Cyberlux and ICT intend to enter into discussions concerning a
business relationship whereby ICT will provide Cyberlux with certain services;
NOW, THEREFORE, the parties hereto agree as follows:
1. PROPRIETARY INFORMATION. For purposes of this Agreement, "Proprietary
Information" shall mean written, documentary or oral information of any kind
disclosed by Cyberlux or ICT to the other and designated as proprietary
information, including, but not limited to, (a) information of a business,
planning, marketing or technical nature, (b) models, tools, hardware and
software, and (c) any documents, reports, memoranda, notes, files or analyses
prepared by or on behalf of the receiving party that contain, summarize or are
based upon any Proprietary Information, provided that "Proprietary Information"
shall not include information which:
(i) is publicly available prior to the date of this Agreement;
(ii) becomes publicly available after the date of this Agreement trough no
wrongful act of the receiving party;
(iii) is furnished to others by the disclosing party without similar
restrictions on their right to use or disclose;
(iv) is known by the receiving party without any proprietary restrictions
at the time of receipt of such information from the disclosing party or
becomes rightfully known to the receiving party without proprietary
restrictions from a source other than the disclosing party;
(v) is independently developed by the receiving party by persons who did
not have access, directly or indirectly, to the proprietary Information; or
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(vi) is obligated to be produced under order of a court of competent
jurisdiction or a valid administrative or congressional subpoena, provided
that the receiving party promptly notifies the disclosing party of such
event so that the disclosing party may seek an appropriate protective order
or waive compliance by the receiving party with the terns of this
Agreement.
2. CONFIDENTIALITY
a. The receiving party shall protect all of the disclosing party's
Proprietary Information as confidential information and, except with the
prior written consent of the disclosing party or as otherwise specifically
provided herein, shall. not disclose, copy or distribute such Proprietary
Information to any other individual, corporation or entity for a period of
three (3) years from the date of disclosure.
b. Except in connection with any joint project between Cyberlux and ICT,
the receiving party shall not make any use of the disclosing party's
Proprietary Information for is own benefit or for the benefit of any other
individual, corporation or entity.
c. The receiving party shall not disclose all or any part of the
disclosing party's Proprietary Information to any affiliates, agents,
officers, directors, employees or representatives (collectively,
"Representatives") of the receiving party except on a need-to-know basis.
The receiving party agrees to inform any of its Representatives who receive
the disclosing parts Proprietary Information of the confidential and
proprietary nature thereof and of such Representative's obligations with
respect to the maintenance of such Proprietary Information in conformance
with the terms of this Agreement.
d. Each party shall maintain the other party's Proprietary Information
with at least the same degree of care each party uses to maintain its own
proprietary information. Each party represents that such degree of care
provides adequate protection for its own proprietary information.
e. The receiving party shall immediately advise the disclosing party in
writing of any misappropriation or misuse by any person of the disclosing
party's Proprietary Information of which the receiving party is aware.
f. Any documents or materials that are furnished by or on behalf of the
disclosing party, and all other Proprietary Information in whatever form,
including documents, reports, memoranda, notes, files or analyses prepared
by or on behalf of the receiving party, including all copies of such
materials, shall be promptly returned by the receiving party to the
disclosing party upon written request by the disclosing party for any
reason.
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3. NO LICENSES OR WARRANTIES. No license to the receiving party under any
trade secrets or patents or otherwise with respect to any of the Proprietary
Information is granted or implied by conveying proprietary Information or other
information to such party, and none of the information transmitted or exchanged
shall constitute any representation, warranty, assurance, guaranty or inducement
with respect to the infringement of patents or other rights of others.
4. REMEDY FOR BREACH. Each receiving party acknowledges that the Proprietary
Information of the disclosing party is central to the disclosing party's
business and was developed by or for the disclosing party at a significant cost.
Each receiving party further acknowledges that damages would not be an adequate
remedy for any breach of this Agreement by the receiving party or its
Representatives and that the disclosing party may obtain injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this
Agreement by the receiving party or any of its Representatives. Such remedy
shall not be deemed to be the exclusive remedy for .any such breach of this
Agreement, but shall be in addition to all other remedies available at law or in
equity to the disclosing party.
5. MISCELLANEOUS.
a. This Agreement contains the entire understanding between Cyberlux and
ICT and supersedes all prior written and oral understandings relating to
the subject hereof. This Agreement may not be modified except by a writing
signed by both parties.
b. The construction, interpretation and performance of this Agreement, as
well as the legal relations of the parties arising hereunder, will be
governed by and construed in accordance with the laws of the State of North
Carolina.
e. It is understood and agreed that no failure or delay by either
Cyberlux or ICT in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder. No waiver of any terms or
conditions of this Agreement shall be deemed to be a waiver of any
subsequent breach of any term or condition. All waivers must be in writing
and signed by the party sought to be bound
d. If any part of this Agreement shall be held unenforceable, the
remainder of this Agreement will nevertheless remain in full force and
effect.
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IN WITNESS WHEREOF, each of the parties of this Agreement has caused this
Agreement to be signed in its name and on its behalf by its representative
thereunto duly authorized as of the day and year first above written.
Cyberlux Corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. Xxxxx
President
International Consolidated Technologies
By: /s/ Xxx Xxxxx 12/12/01
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Xxx Xxxxx
Engineering and Tooling Manager
