Confidentiality Agreement

1. Background. The Parties intend to engage in discussions and negotiations concerning the possible establishment of a business relationship between them (the “Purpose”). In the course of such discussions and negotiations, and in the course of any such business relationship, it is anticipated that each of the Parties will disclose or deliver to the other Party and to that Party’s directors, officers, employees, agents and/or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory boards, collectively, “Representatives”), certain of Discloser’s Proprietary Information in furtherance of the Purpose and to enable the Recipient to evaluate the feasibility of a potential business relationship and to perform its obligations and exercise its rights under any such business relationship that is agreed to between the Parties. The Parties have entered into this Agreement in order to assure the confidentiality of such Proprietary Information in accordance with the terms of this Agreement.

2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all non-public confidential or proprietary information disclosed by the Discloser to the Recipient or the Recipient’s Representatives, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” including, without limitation, all information concerning Discloser’s and its affiliates’ business, customers, service providers, sales, financial results and forecasts, ideas, methods, discoveries, trade secrets, intellectual property, designs, specifications and any other information of Discloser or related to Discloser’s business. In addition, the term “Proprietary Information” shall be deemed to include (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or any of its Representatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant hereto (collectively, “Notes”), (b) the existence or status of, and any information concerning, the discussions between the Parties concerning the Purpose and (c) the existence and terms of this Agreement.

3. Scope of Agreement. This Agreement shall apply to all Proprietary Information disclosed by the Discloser to the Recipient, whether disclosed before, on or after the Effective Date.

4. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information only for the Purpose and such Proprietary Information shall not be used for any other purpose without the prior written consent of the Discloser. The Recipient and its Representatives shall hold in confidence, and shall not disclose to any person or entity outside its organization, any Proprietary Information or exploit such Proprietary Information for its own benefit or the benefit of another without the prior written consent of the Discloser. Without limitation of the foregoing, the Recipient shall not cause or permit reverse engineering of any Proprietary Information or decompilation or disassembly of any software programs which are part of the Proprietary Information. The Recipient shall disclose Proprietary Information received by it under this Agreement only to persons or entities within its organization who have a need to know such Proprietary Information in the course of the performance of their duties and who are bound by written confidentiality obligations no less protective of the Proprietary Information than the terms contained herein. The Recipient shall adopt and maintain programs and procedures which are reasonably designed to protect the confidentiality of Proprietary Information and shall be responsible to the Discloser for any unauthorized disclosure or misuse of any Proprietary Information. The Recipient will promptly report to the Discloser any actual or suspected violation of the terms of this Agreement and will take all reasonable further steps requested by the Discloser to prevent, control or remedy any such violation. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information to the extent required in order for the Recipient to comply with applicable laws and regulations; provided that the Recipient (a) provides prior written notice of such required disclosure to the Discloser, (b) takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure and (c) uses reasonable efforts to ensure that such Proprietary Information is afforded confidential treatment.

5. Limitation on Obligations. The obligations of the Recipient specified in Section 4 shall not apply, and the Recipient shall have no further obligations, with respect to any Proprietary Information to the extent the Recipient can demonstrate, by clear and convincing documentary evidence, that such Proprietary Information:

6. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise.

7. Return of Proprietary Information. The Recipient shall, upon the termination of this Agreement or the request of the Discloser, promptly return to the Discloser or destroy, as directed by the Discloser, all Proprietary Information received by the Recipient or its Representatives (and all copies and reproductions thereof). In addition, the Recipient shall destroy (i) all Notes and (ii) any Proprietary Information (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Discloser; provided, however, that the Recipient may retain copies of Proprietary Information that are stored on the Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof. The Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Proprietary Information. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder as set forth in Section 8(e).

8. Miscellaneous.

(a) This Agreement supersedes all prior agreements, written or oral, between the Parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by both of the Parties.

(b) This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns.

(c) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any conflicts of law principles that would cause the application of laws of any jurisdiction other than those of the State of Delaware.

(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by each Party to be reasonable for such purpose. The Parties agree that any breach of this Agreement will cause the Discloser substantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Discloser shall have the right to seek specific performance and other injunctive and equitable relief.

(e) The rights and obligations of the Parties under this Agreement shall expire five (5) years after the Effective Date; provided, however, that with respect to Proprietary Information that constitutes a trade secret under applicable law, such rights and obligations will survive such expiration until, if ever, such Proprietary Information loses its trade secret protection other than due to an act or omission of the Recipient or its Representatives.

(f) This Agreement imposes no obligation on either Party to disclose any Proprietary Information or to negotiate for, enter into or otherwise pursue the Purpose. The Discloser makes no representation or warranty, expressed or implied, as to the accuracy or completeness of any Proprietary Information, and will have no liability to the Recipient, its Representatives or any other person or entity relating to the Recipient’s or its Representatives’ use of any Proprietary Information or any errors therein or omissions therefrom.

(g) For the convenience of the Parties, this Agreement may be executed by electronic signature and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one final agreement binding on both Parties.