This Mutual Nondisclosure Agreement (the "Agreement") is between New Edge Network, Inc., an EarthLink company,
doing business as New Edge Networks (“NEN”), a Delaware corporation with its principal offices located at 3000
Columbia House Blvd., Suite 106, Vancouver, WA 98661, and the business entity identified above (“Company”). This
Agreement is effective as of the last date on which it is executed (the "Effective Date"). Both NEN and Company are
referred to herein individually as a “Party” and collectively as the "Parties."
1. Definition. “Confidential Information” shall mean any and all information of or concerning a Party obtained
by the other Party or to which such other Party has direct or indirect access, whether marked as confidential or not, in
any form, format or media, including information obtained from oral or other transitory means, unless expressly and
specifically indicated at the time of disclosure to be non-confidential. Confidential Information shall include but is not
limited to: (a) patentable subject matter and patent applications; (b) trade secrets; (c) the terms of any agreement
between the Parties, except to the extent otherwise stated in such agreement; (d) any information that is marked
confidential, restricted, proprietary, or with a similar designation; and (e) proprietary information such as IP addressing
data, routing protocols and tables, router configuration syntax, specifications, processes, methods, ideas, techniques,
drawings, works of authorship, inventions, know-how, software, algorithms and formulae related to the current, future,
and proposed products and services of each of the Parties, including without limitation information concerning research,
development, financials, procurement, customer lists, investors, employees, third party relationships, forecasts and
marketing plans.
2. No Warranty. Each Party (i) acknowledges that neither makes any representation or warranty (express or
implied) as to the accuracy or completeness of any Confidential Information, (ii) agrees to assume full responsibility
for all conclusions it may derive from the Confidential Information, and (iii) expressly disclaims any and all liability that
may be based, in whole or in part, on any Confidential Information, errors therein or omissions there from, except as
contained in any agreement establishing a business relationship between the Parties.
3. Exclusions. Notwithstanding the foregoing, Confidential Information shall exclude information that: (i) was lawfully in
the public domain at the time of disclosure; (ii) lawfully becomes part of the public domain after disclosure through no
fault of the recipient Party; (iii) was received after disclosure to the recipient Party from a third party who had a lawful
right to disclose such information without any obligation to restrict its further use or disclosure; or (iv) was developed
by employees or agents of the recipient Party independently of and without exposure to any Confidential Information of
the other Party.
4. Limited Right to Use. Except as otherwise approved in writing, each Party shall: (i) hold and maintain the other
Party’s Confidential Information in strict confidence, exercising no less than reasonable care; (ii) not disclose such
Confidential Information to any third party; and (iii) use the Confidential Information for no purpose other than evaluating
or pursuing a business relationship with the other Party. Each Party shall immediately notify the other upon discovery of
any loss or unauthorized disclosure of the Confidential Information of the other Party. Confidential Information may not
be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any
Confidential Information shall remain the property of the disclosing Party and shall contain any and all confidential or
proprietary notices or legends that appear on the original. Nothing herein shall be construed as granting any property,
license or use rights to any Confidential Information and neither Party shall make, have made, market, use or sell any
product or service using, incorporating, relying on, or derived from any Confidential Information of the other Party. Each
Party agrees that any software of the other Party contains valuable Confidential Information and agrees not to modify,
reverse engineer, decompile, create other works from, or disassemble any such software of the other Party without the
prior written consent of such other Party. Neither Party shall communicate any information to the other in violation of the
communicating Party's confidentiality obligations to a third party, and neither Party shall knowingly communicate any
information to the other in violation of the proprietary rights of any third party. Each Party shall only permit access to
Confidential Information of the other Party to those of its employees or authorized representatives having a need to know
and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as
restrictive as those contained herein. Nothing contained in this Agreement shall be construed as granting or conferring
any rights by license or otherwise in any Confidential Information disclosed.
5. Term. The term of this Agreement shall commence upon the Effective Date and continue for three years thereafter,
except that the Recipient’s obligations with respect to particular Confidential Information disclosed shall survive for a
period of two (2) years from the date of disclosure. At any time, upon the written request of a Party, the other Party shall
promptly return to the requesting Party or destroy all documents and other tangible materials representing or embodying
the other’s Confidential Information and all copies thereof, and shall immediately cease any further use thereof. Upon the
written request of a Party, the other Party shall furnish a certificate executed by an officer of such Party attesting to the
complete return or destruction of Confidential Information of the requesting Party.
6. Export. Neither Party shall export, directly or indirectly, any technical data acquired from the other Party pursuant to
this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency
thereof at the time of export requires an export license or other governmental approval without first obtaining any
required license or approval and the other Party’s prior written consent.
7. Compelled Disclosure. If a recipient Party becomes compelled by lawful process (such as interrogatories,
subpoenas, or civil investigative demands) to disclose any of the disclosing Party’s Confidential Information, the
recipient Party so compelled shall provide the disclosing Party with prompt written notice so that the disclosing Party
may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this
Agreement. If the disclosing Party fails to obtain a protective order or other appropriate remedy, the compelled
recipient Party shall furnish only that portion of the Confidential Information which it is advised by written opinion of its
counsel is legally required to be furnished and shall exercise all reasonable efforts to obtain reliable assurance that
confidential treatment shall be accorded such Confidential Information.
8. Notices. All notices required under this Agreement shall be in writing and shall be delivered by personal delivery,
electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed
given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of electronic
transmission. Notices shall be sent to the addresses set forth above or to such other address as either Party may specify
in writing.
9. Injunctive Relief. Each Party acknowledges that breach of this Agreement will cause irreparable harm to the other
and hereby agrees that the other Party shall be entitled to seek injunctive relief under this Agreement for such breach or
threatened breach, as well as such further relief as may be granted by a court of competent jurisdiction.
10. General. This Agreement shall be governed by the internal laws of the State of Washington, without regard to its
choice of law principles. Neither Party may assign, transfer, delegate or sublicense any rights or obligations under this
Agreement without the prior written consent of the other Party. This Agreement shall benefit and be binding upon the
parties hereto and their respective successors. This Agreement is the entire and complete Agreement between the
Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or
understandings between the Parties, whether written or oral, and may not be modified in any way unless by means of
written addendum, signed and dated by duly authorized representatives of both Parties. If any portion of this Agreement
is found to be invalid or unenforceable, the remaining provisions shall remain in effect and the Parties shall immediately
begin negotiations to replace any invalid or unenforceable portions that are essential parts of this Agreement. If either
Party fails to enforce any right or remedy hereunder, such failure shall not be deemed a waiver of such right or remedy.
