Confidentiality & Non-Disclosure Agreement



THIS CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT (the "Agreement") is entered into and made effective as of the date agreed  by and between SourceFunding, Inc., with primary offices at 409 East 74th Street 4C, NY, NY 10021 ("Developer"), and Recipient ("Recipient") (both of which may collectively herein be referred to as the "Parties" and individually herein as "Party").




WHEREAS, Developer has developed a platform and system for (the "System"); and


WHEREAS, Recipient is interested in participating in a venture to make the System operational and derive revenues therefrom; and


WHEREAS, Developer wishes to protect its Confidential Information (as defined below) against any unauthorized use by Recipient and against any unauthorized or uncontrolled disclosures by Recipient, which may result with respect to the System.


NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:


1. Confidential Information. For purposes of this Agreement, "Confidential Information" means all confidential or proprietary information concerning the business, financials or operations of the Developer, including but not limited to business records, financial records, cost and expense data, projections, marketing and customer data, contracts, policies, procedures and other trade secrets of the Developer or related to the System. Confidential Information includes all information, as defined above, that has been or may be disclosed, revealed, or furnished by the Developer or its advisers, to Recipient during the course of negotiations, in connection with the evaluation or implementations of the System, whether such information is furnished before or after the date of this Agreement, whether such information is furnished orally or in writing or gathered by inspection, and all notes, analyses, compilations, studies or other documents which contain or otherwise reflect such information.


2. Trade Secret Acknowledgment/Potential Clients.


(a) Recipient acknowledges and agrees that (i) the Confidential Information of Developer is a valuable trade secret and constitutes a special and unique asset and (ii) any disclosure or unauthorized use of the Confidential Information by Recipient will cause irreparable harm and loss to the other.

(b)  At no time during the term of this Agreement, and for a period of five (5) years thereafter, will Recipient approach any client or customer, existing or potential of Developer, or introduced to Recipient by Developer, with respect to the System or a product or service which would compete with the System.


3. Treatment of Confidential Information. Recipient shall treat Developer's Confidential Information in confidence and undertake the following additional obligations with respect thereto:


  1. use the Confidential Information only for the sole purposes of internally evaluating and programming the System;

  2. maintain the confidentiality of the Confidential Information and refrain from disclosing the Confidential Information to any third party without the prior written permission of Developer unless otherwise required by law or by lawful order, decree, subpoena or other judicial process issued by a court or governmental agency, body or tribunal having competent jurisdiction;

  3. direct its employees, agents and other authorized representatives (including business advisors, accountants and attorneys) to maintain the confidentiality of the Confidential Information;

  4. limit dissemination of the Confidential Information to only its employees, agents and other authorized representatives who reasonably require the Confidential Information for the purposes set forth in subparagraph (a) above, and who have agreed to maintain the confidentiality of the Confidential Information;

  5. refrain from copying the Confidential Information or any portion thereof except as may be required under subparagraph (d) above;

  6. refrain from using the Confidential Information for its benefit or the benefit of any third party except as provided under subparagraph (a) above; and

  7. return promptly or destroy the Confidential Information and all copies, documents, notes or physical evidence thereof upon the request of Developer.


4. Notice of Disclosure. If Recipient is requested or required to disclose any Confidential Information of the other, other than as permitted in Section 3, above, it shall promptly notify the other in writing, so as to permit Developer to seek a protective order to prevent disclosure or to take other appropriate action. If, in the absence of a protective order, Developer is, in the opinion of its legal counsel, legally compelled as a matter of law to disclose any Confidential Information or stand liable for contempt or suffer other censure or penalty, Recipient may disclose only that part of the Confidential Information as is required by law to be disclosed without liability hereunder unless the request or requirement and the accompanying legally compelled disclosure was caused by or resulted from the prior disclosure by Recipient in breach of this Agreement.


5. Survival of Obligations. The obligations of the Parties under this Agreement shall survive (i) the execution of a definitive agreement among the Parties, or (ii) the cessation of negotiations between the parties.


6. Remedies. Recipient acknowledges and agrees that breach or threatened breach of this Agreement may result in irreparable harm Developer, and that Developer's remedies for any actual or threatened breach shall include the right to preliminary and permanent injunctive relief, without the requirement of posting a bond or security by Developer, in addition to any other remedies available at law or equity. In such action, Developer shall be entitled to reasonable attorneys' fees in addition to any other amounts awarded as damages.


7. Indemnification. Recipient shall be responsible for the acts of its employees, agents and other authorized representatives with respect to the Confidential Information, whether or not the acts were authorized or approved by Recipient. Recipient shall defend, indemnify and hold harmless Developer from and against any loss, damage, liability, cost or expense arising out of (i) any disclosure or misuse of Confidential Information or (ii) any breach of this Agreement by Recipient.


8. Entire Agreement. This Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, concerning the subject matter hereof. This Agreement may not be altered, modified or changed in any manner except by a writing, signed by the Parties.


9. Notices. Any notice with respect to this Agreement shall be in writing and shall be given by fax, hand delivery, overnight courier or registered mail to the appropriate party at the addresses set forth in the heading of this Agreement or such other address as may be provided by notice pursuant to this Section.


10. Assignment. This Agreement may be assigned by Developer to an entity formed by him.


11. Successors and Assigns. The terms of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, the Parties and their successors and permitted assigns.


12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and any action resulting from a dispute arising under this Agreement shall be commenced in a court of competent jurisdiction in the County of Onondaga, New York.


13. Waiver. No failure or delay by a Party in the exercise of any right or power in this Agreement shall operate as a waiver of any such right or power and no single or partial exercise of any such right or power shall preclude any other or further exercise thereof or the exercise of any other right or power available under this Agreement or at law.


14. Severability. If any term, covenant, condition or provision of this Agreement or the application of it to any person or circumstance, shall be determined to be invalid or unenforceable by a court of law, the remainder of this Agreement, or the application of that term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected and every other term, covenant, condition and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.


15. Counterparts. This Agreement may be executed in two counterparts which, when taken together, shall constitute one and the same Agreement.