Confidentiality Agreement

Confidentiality Agreement

AGREEMENT and acknowledgement between first party, Mountain States Enterprises, Inc., DBA Treasure Tower Rewards, (hereinafter referred to as Company) and second party, (hereinafter referred to as Recipient).

WHEREAS, the Company agrees to furnish the Recipient with information relating to a program for placing Treasure Tower‚  toy dispensing machines for distributing nonperishable products in dental, orthodontic, medical and educational facilities for which payment is received in advance of product sales.

WHEREAS, the Recipient agrees to review, examine, inspect or obtain such information for the purpose of considering the purchase of Treasure Tower equipment needed to pursue a business opportunity with the Company’s aforementioned machine placement and marketing program.  In order to maintain the confidentiality of information disclosed by Company to Recipient, Recipient agrees to hold such information confidential and secret pursuant to the terms of this agreement as follows:

1. Confidential Information. Except as provided in Section 2, “Confidential Information” means (a) any information reduced to tangible form marked “Confidential” that is provided to Recipient by Company, including but not limited to financial information, business plans, written disclosures, concepts, ideas, promotional literature, and all other information relating to the design, operation and manufacture of the Company’s program and products; and (b) any and all information accessible with a username and password from the web site.

2. Exclusions. “Confidential Information” does not include any information that (a) is now or becomes publicly available by lawful means and without breach of any confidentiality obligation; (b) is disclosed by Company to Recipient with Company’s prior written consent to unrestricted disclosure (c) is lawfully obtained by Recipient from any third party.

3. Nondisclosure. Except as provided in Section 5, Recipient will not disclose or describe to any employee, consultant or third party, directly or indirectly, under any circumstances or by any means, any Confidential Information unless said party agrees to execute and be bound by the terms of this agreement, and disclosure by Company is first approved.  Recipient shall not be in breach of this section if disclosure of Confidential Information is made pursuant to subpoena or other compulsory judicial or administrative process, provided that Recipient promptly notifies Company of such subpoena or other compulsory process, and Recipient provides reasonable assistance, at Company’s request and expense, so that Company may seek a protection order or take such other action it deems necessary to protect its interest.

4. Nonuse. Recipient agrees not to copy or otherwise reproduce, summarize, compile, quote or make any commercial use of Confidential Information or copy or make any commercial use of any product or method of doing business covered by the Confidential Information without Company’s written consent, and any such permitted copy shall be marked to indicate that the information is subject to the restrictions of this Agreement.

5. Protection of Confidentiality. Recipient shall exercise the highest degree of care, and not less than the same care he exercises with respect to his own confidential and proprietary information, to protect the Confidential Information against unauthorized use, loss, theft or disclosure.

6. Return of Confidential Information. At the conclusion of the discussions, or upon demand by Company, Recipient will promptly return to Company all Confidential Information, in whatever form, including copies, written or recorded notes and/or summaries or compilations made by Recipient, photographs, or memoranda.  Recipient shall retain no copies or written documentation relating thereto.

7. Acknowledgment of Irreparable Harm. Recipient acknowledges that the Confidential Information contains trade secrets and other proprietary information and that any disclosure or use of the Confidential Information, other than as expressly permitted herein, may cause irreparable harm to Company.  Recipient therefore agrees to the entry of temporary, preliminary and permanent injunctions by any court of competent jurisdiction to prevent breach, or to compel performance, of this Agreement.  This remedy is an addition to any other remedy available to Company.

8. Disputes. This Agreement shall be governed by the laws of the State of Utah, exclusive of choice of law rules, and, where applicable, the laws of the United States of America.  In the event of any dispute arising out of this Agreement, the parties agree to binding arbitration.  Both parties agree to submit disputes to a single arbitrator acceptable to both parties.  The arbitrator will be selected from a list compiled by the parties? respective legal counsels.  Every person named on the list of potential arbitrators must be a neutral and impartial lawyer who has at least ten years specializing in the field of general commercial litigation.  The arbitrator shall base its award on applicable law and judicial precedent and unless both parties agree otherwise shall include in such award the finding of fact and conclusions of law upon which the award is based.  Judgment on the award rendered by the arbitrator may be entered in any federal or state court in the State of Utah, and both Recipient and Company hereby consent to submit to the jurisdiction of such courts.  The prevailing party will be entitled to recover all reasonable expenses of the arbitration proceeding and enforcement thereof.

9. No Rights Conferred. Recipient agrees that this Agreement does not give Recipient any rights, either now or in the future, in the Invention.

10. General. The obligations of Recipient set forth herein with regard to each item of confidential information will continue (a) so long as that item of confidential information, in whatever form, remains confidential or (b) for a period of five years, whichever period is shorter.

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