Exhibit 6.3
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MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (the "Agreement")
is entered in to as of 19th day of June, 2003 by and between ULTIMATTE
CORPORATION, a California corporation ("Ultimatte") and SBS INTERACTIVE, CO., a
Florida corporation, a successor by way of purchase of High Plateau Holdings,
Inc., an Ontario corporation, ("SBS").
RECITALS
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A. The parties hereto are also parties to that certain Amended And Restated
Design And Development Agreement of even date related to the development of the
"Keyer unit" (as defined therein). Pursuant to that agreement, the parties have
undertaken certain obligations to keep confidential information relating to the
Keyer Unit.
B. The parties hereto anticipate and expect to discuss and exchange
information relating to future products, technology and other matters that may
be in their mutual benefit.
C. The parties may, in conjunction with the aforesaid, disclose to each
other proprietary and/or confidential information including but not limited to
information relating to imaging techniques, algorithms, processes, products,
business plans, practices and strategies, discoveries, ideas, concepts,
inventions, know-how, techniques, designs, specifications, blueprints, diagrams,
models, prototype, flow charts, data, computer programs, and other technical,
financial or commercial information whether in written, oral or other tangible
or intangible forms (collectively, the "other Confidential Information").
D. The parties intend by this Agreement to set forth their agreement to
safeguard the other party's other confidential information and not to disclose
or use it for any purpose not permitted by the other party.
TERMS AND CONDITIONS
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NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged and the covenants contained herein and intending to be
legally bound hereby, it is hereby agreed by the parties hereto as follows:
1. Duty to Keep Confidential. Each party receiving other confidential
information ("Receiving Party") belonging to or received from the other party
(the "Disclosing Party") shall safeguard the Disclosing Party's Other
Confidential Information and shall not disclose it (or any concepts, inventions
or other information derived there from) to third parties (unless required by
any judicial or governmental request, requirement or order) or to use it (or any
concepts, inventions or other information derived there from) for any purposes
other than evaluation without the express prior written consent of the
Disclosing Party set forth in a separate written consent.
2. Identification. The disclosing Party shall identify the written Other
Confidential Information or any other Confidential Information disclosed in
tangible media by marketing it "Confidential" or "Proprietary" or "Secret" or
words of similar import. Other Confidential Information disclosed orally shall
be thereafter summarized by the Disclosing party and the summary provided to the
Receiving Party clearly identifying that such information is other party that
was not known by such party or commonly known in the public domain shall be
presumed to be other confidential for purposes of this Agreement.
3. Restriction on Access. The Receiving Party shall to use all reasonable
care, but in no event less than the same degree of care that it uses to protect
its own confidential information of similar importance, to prevent the
unauthorized use, disclosure, publication or dissemination of the other Party's
Other Confidential Information (and any concepts, inventions or other
information derived there from). Each party shall restrict access to the other
party's other confidential information (and any concepts, invention or other
information derived there from) to only those of its employees, representatives
or advisors to whom such access is reasonably necessary or appropriate for
carrying out the permitted use of such other confidential information. Each
party shall to obtain Non-Disclosure Agreements containing appropriate
restrictions on the persons signing the same prior to disclosing other
confidential information (or any concepts, inventions or other information
derived there from) to such persons.
4. Return of Other Confidential Information. Other Confidential Information
(and all concepts, inventions and other information derived there from) shall be
deemed, as between the parties hereto, to be the property of the Disclosing
party and the Receiving Party will, upon receipt of a written request from the
Disclosing Party, return to the Disclosing Party all such other Confidential
Information (and any concepts, inventions or other information derived there
from) that is maintained in tangible form and destroy all such information
maintained in electronic or other intangible media together with all copies or
extracts thereof.
5. No Warranty. Each of parties mutually acknowledge that the Disclosing
Party makes no representation or Warranty as to the reliability, accuracy or
completeness of Confidentiality Information and that any representation or
warranty that may be requested or given shall be set forth in a separate writing
signed by the party making that representation or warranty.
6. Injunctive Relief. The parties acknowledge that the breach of threatened
breach of this Agreement may result in irreparable injury to the Disclosing
Party and that, in addition to its other remedies, the Disclosing Party shall be
entitled to injunctive relief to restrain any threatened or continued breach of
this Agreement. The parties hereby waive any requirement for the posting of a
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bond or other security in connection with the granting to the Disclosing Party
of such injunctive relief.
7. Miscellaneous. No failure or delay if either party in exercising its
rights herein shall be deemed to be a waiver of such rights unless expressly
made in writing by the party waiving its rights. This Agreement contains the
entire understanding between the parties with respect to the other Confidential
Information (and all concepts, inventions or other information derived there
from) and this Agreement may not be terminated, modified, amended or waived
orally but only through a writing signed by an authorized representative of the
party against whom it is sought to be enforced. There are no representations or
warrants except as expressly stated herein. This Agreement may be delivered by
facsimile and in any number of originality signed counterparts, each of which
shall constitute an original, but all of which, when taken together, shall be
considered one document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written by persons duly
authorized.
ULTIMATTE CORPORATION SBS INTERACTIVE, CO.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
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NAME: Xxxxx Xxxxx Xxxx Xxxxxxx
TITLE: President President
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