NON-DISCLOSURE AGREEMENT

This Agreement is made by and between recipient and Missing Capital. The parties wish to exchange certain confidential and proprietary information for the purpose of allowing the parties to evaluate in accordance with the following terms and conditions: 

1. Nondisclosure of Confidential Information.

1.1  Each party agrees that Confidential Information received from the other party shall be used solely to the extent necessary for discussions concerning the development of a business relationship and for no other purpose.  Each recipient agrees not to use the Confidential Information for its own benefit or furnish or disclose any of it to any parties’ other than those required to have it in connection with the business relationship.  Each party will take all steps reasonably necessary to prevent disclosure of the Confidential Information, exerting at least the highest level of care used to safeguard its own Confidential Information.

1.2  Each party agrees that it will not make copies of, reverse engineer, or decompile any Confidential Information except as expressly authorized.

1.3  As used in this Agreement, “Confidential Information” means information in any form that is of value to the party and is specified, treated or reasonably construed as confidential, including but not limited to trade secrets, customer lists, and other technical, business, product, marketing, and financial information and plans.  Confidential Information does not include information which (i) is already known to the recipient prior to disclosure, as shown by documentation, (ii) is or becomes publicly available through no fault of the recipient, (iii) is disclosed without restriction to the recipient by a third party entitled to disclose it, (iv) is independently developed by recipient, as shown by documentation, or (v) must be disclosed by operation of law or court order, in which case the party being required to disclose the Confidential Information shall promptly notify the other party and allow that party full opportunity to seek a protective order.

2. Ownership.  

2.1  Each party agrees that Confidential Information is and shall remain the exclusive property of the disclosing party and shall be promptly returned or destroyed, together with any copies, after the termination of discussions regarding the business relationship or at the disclosing party’s request.

2.2  Nothing in this Agreement is intended to grant any license, interest, or express or implied rights under any patents, patent applications, copyrights, trade secret rights, trademarks, or any other proprietary rights of either party.

3.  Warranty.  No representation of warranty, express or implied, is made, and no liability will be accepted by the disclosing party regarding the accuracy or completeness of the Confidential Information disclosed.

4. Term.  The term of this Agreement and period within which disclosures may be made under this Agreement shall continue for two (2) years from the Effective Date, or until either party delivers notice of termination to the other party.  However, the obligations of non-use and non-disclosure hereunder shall remain in effect for five (5) years after the date of each disclosure and shall survive any termination of this Agreement or of the business relationship between the parties.

5. Remedies.  Each party expressly agrees that a breach of this Agreement would cause irreparable damage to the disclosing party for which remedies at law would be inadequate.  Accordingly, in addition to other remedies that may be available in law, at equity, or otherwise, the disclosing party shall be entitled to injunctive or equitable relief against the violation or threatened violation of this Agreement.

6.Governing Law.  This Agreement shall be governed and interpreted by the laws of the State of Minnesota, without giving effect to its conflict of law rules.

7. Miscellaneous.

7.1  This Agreement expresses the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior discussions or agreements.

7.2  If any provision of this Agreement is found invalid or unenforceable, the remaining provisions shall remain in effect.

7.3  This Agreement shall inure to the benefit of each party and any of their respective successors.

7.4  This Agreement may be executed in several counterparts, and a signed counterpart delivered via facsimile will be deemed to be an original.

Missing Capital  

Steve Gerten