Mutual Non-Disclosure & Confidentiality Agreement

and Website Technology Services, Inc., DBA WT Digital Agency (“WT Digital”); principal place of business at 3295 River Exchange Drive, Suite 170, Norcross, GA 30092. Client and WT Digital are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.

Background

The Parties wish to engage in discussions regarding the exploration of a mutually beneficial business opportunity (“Business Opportunity”).  In connection with the Business Opportunity, one Party and/or its corporate affiliates or subsidiaries (collectively and individually, the “Disclosing Party”) may disclose to the other Party and/or its corporate affiliates or subsidiaries (collectively and individually, the “Receiving Party”) certain proprietary and non-public information that the Disclosing Party desires the Receiving Party to treat as confidential.

Agreement

1. Trade Secrets, Confidential Information and Proprietary Information Defined.  The term “Trade Secrets” shall mean information related to services or business of the Disclosing Party or its affiliates that (a) derives economic value from its disclosure or use; and (b) is the subject of efforts by the Disclosing Party or its affiliates that are reasonable under the circumstances to maintain its secrecy, namely (1) marking any information reduced to tangible form clearly and conspicuously with a legend identifying its confidential or proprietary nature; or (2) identifying any oral presentation or communication as confidential immediately before, during or after such oral presentation or communication.  Assuming the criteria in clauses (a) and (b) above are met, Trade Secrets include information, without regard to form, including, but not limited to, technical and non-technical data, formulas, patterns, designs, compilations, computer programs and software, devices, inventions, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers and suppliers which are not commonly known by or available to plans, product plans, lists of actual or potential customers and suppliers which are not commonly known by or available to the public, research, development, existing and future products, the existence, nature and details of the relationship between the parties, and employees of the Disclosing Party and its affiliates. The term “Confidential Information” shall mean any and all proprietary business information of the Disclosing Party or its affiliates treated as confidential or secret by the Disclosing Party or its affiliates (that is, it is the subject of efforts by the Disclosing Party or its affiliates that are reasonable under the circumstances to maintain its secrecy), including, without limitation, Personal Data (as defined below), that does not constitute a Trade Secret.  “Confidential Information” includes any partial or complete reproductions, synopses or analyses of any such information made by or for the Receiving Party and may also include information disclosed to the Disclosing Party by third parties.  “Personal Data” means all current and future information that may be used to identify an individual person including, without limitation, such information relating to (i) customers of WT Digital, or (ii) employees of WT Digital, in each case including name, address, member number, financial or transactional information, and any other personally identifiable information related or relatable to any such customer, or personnel.  “Confidential Information” will not, however, include any information that (i) was publicly known and made available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no improper action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by competent evidence in the Receiving Party’s possession; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s confidential information, as shown by competent evidence in the Receiving Party’s possession. The term “Proprietary Information” means collectively the Confidential Information and Trade Secrets.
2. Legally Compelled Disclosure.  In the event the Receiving Party is required to disclose the Disclosing Party’s Proprietary Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, the Receiving Party will (i) use commercially reasonable efforts to notify the other Party of the legal process as promptly as possible and (ii) provide all reasonable cooperation, at the Disclosing Party’s expense, to the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information. In the event that such protection against disclosure is not obtained, the Receiving Party will be entitled to disclose the Proprietary Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
3. Non-Use and Non-Disclosure. The Receiving Party agrees to use any Proprietary Information of the Disclosing Party solely in connection with the Business Opportunity and not for any other purpose or for any third party’s benefit. The Receiving Party agrees to limit disclosures of Proprietary Information of the Disclosing Party to those employees and contractors of the Receiving Party who are required to have the information in order to evaluate, participate in or engage in discussions regarding the Business Opportunity.  The Receiving Party will not disclose any Proprietary Information of the Disclosing Party to any third party without the written consent of the Disclosing Party except as otherwise expressly permitted by this Agreement.  The Receiving Party will not reverse engineer, disassemble or decompile any of the Proprietary Information of the Disclosing Party or any prototypes, software or other tangible objects that embody any Proprietary Information of the Disclosing Party and that are provided to the Receiving Party hereunder.
4. Maintenance of Confidentiality. The Receiving Party will take reasonable measures to avoid disclosure and/or unauthorized use of the Proprietary Information of the Disclosing Party (including, without limitation, measures at least as stringent as it takes to protect its own Proprietary Information of a similar nature) and will ensure that its employees, contractors, and agents who have access to Proprietary Information of the Disclosing Party are apprised of their confidentiality obligations in content similar to the provisions hereof, prior to any disclosure of such Proprietary Information to such employees, contractors or agents. The Receiving Party will reproduce the Disclosing Party's proprietary rights notices on any copies of such Proprietary Information, in the same manner as such notices were set forth in or on the original.
5. Remedies.  The parties acknowledge that any breach of this Agreement will cause irreparable harm to the other Party for which monetary damages may not be a sufficient remedy.  Accordingly, the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief (in addition to any other remedies available to it) as may be deemed proper by a court of competent jurisdiction to remedy any threatened or actual breach of this Agreement by the Receiving Party.
6. No Obligation to Proceed.  Nothing herein will obligate either Party to proceed with the Business Opportunity or any transaction, and except as otherwise agreed by the Parties in writing, each Party reserves the right, in its sole discretion, to terminate any discussions concerning the Business Opportunity without liability to the other Party or any third party.
7. No Warranty.  ALL PROPRIETARY INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS IS".  NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, IN REGARD TO ANY OF THE PROPRIETARY INFORMATION (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
8. Return of Materials. All documents and other records containing or representing Proprietary Information that have been disclosed by the Disclosing Party, and all partial or complete reproductions, synopses or analyses of any such Proprietary Information that are in the possession of the Receiving Party, will be and remain the property of the Disclosing Party and will, upon the Disclosing Party's written request, be promptly destroyed or, at the Disclosing Party’s option, returned to the Disclosing Party.  Personal Data shall remain the sole property of WT Digital and Provider acquires no rights or interest in Personal Data provided by WT Digital.
9. No License. Nothing in this Agreement is intended to grant any rights to the Receiving Party or any third party under any patent, trademark, trade secret, copyright or other intellectual property right of the Disclosing Party,  or otherwise to grant any Receiving Party or any third party any rights in or to the Proprietary Information of the Disclosing Party except as expressly set forth herein.
10. Term. This Agreement covers the disclosure of all Confidential Information between the parties commencing as of the Effective Date. The Receiving Party's duty to protect the Confidential Information disclosed under this Agreement expires three (3) years from the date of receipt of Confidential Information, or with respect to Trade Secrets for so long as such Confidential Information may be deemed a Trade Secret under applicable law. Personal Data provided by WT Digital shall remain as Confidential Information in perpetuity.   This Agreement may be terminated earlier by either Party by giving thirty (30) days written notice of termination to the other party. However, all sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information and Trade Secrets disclosed during the term of the Agreement shall survive any such termination
11. Compliance.  Each Party will be responsible and liable for ensuring that its corporate affiliates and subsidiaries, and each of its and their employees and contractors, comply with all provisions of this Agreement applicable to such Party.
12. Notices. To be effective, all notices hereunder must be given in writing, must refer to this Agreement and must be personally delivered, sent by receipted facsimile transmission or sent by overnight courier or registered or certified mail (return receipt requested) to the applicable address set forth at the beginning of this Agreement (or, if no address is specified there, an address the delivering Party reasonably believes to be a valid address for the other Party) and to the attention of the person (if any) set forth at the end of this Agreement.  Either Party may from time to time change such address by giving the other Party notice of such change in accordance with this Section 12.
13. Representations.  Each Party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement will have been duly executed and be legally binding upon the respective Party in all respects.
14. Competitive Products.  The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquire products without reference to or use of the other party's Proprietary Information.
15. Miscellaneous. Terms used in this Agreement with initial letters capitalized will have the meanings attributed to them in this Agreement unless otherwise specified herein.  This Agreement will be binding upon, enforceable by and inure to the benefit of the Parties’ respective successors and assigns; provided, that no assignment of this Agreement will relieve a Party of any of its obligations under this Agreement. This Agreement will be governed by the laws of the State of Georgia, without regard to that state’s or any other’s conflict of laws principles. This document contains the entire agreement between the Parties with respect to the subject matter hereof. Any failure to exercise any right or remedy or to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties hereto.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute but one and the same instrument.

IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives as of the Effective Date.