123 Capital Partners, LLC

Research. Resources. Solutions.

NON-DISCLOSURE, CONFIDENTIALITY AND NON-CIRCUMVENT AGREEMENT

This is an Agreement made this ___ day of ________, 200__, between_________________________________________________________________

with offices at:___________________________________________________(“Promisor ”)

and 123 Capital Partners, LLC, a Delaware Limited Liability Company (“123 Capital Partners”), collectively (“the parties”).

123 Capital Partners and Promisor shall include each party's subsidiaries and parents and their respective directors, officers, and employees ("affiliates"), and the rights and obligations of the parties hereto therefore also shall inure to such affiliates and may be enforced directly by or against such affiliates.

As an express condition to 123 Capital Partners disclosing Confidential Information to Promisor and in consideration of the mutual promises and covenants herein, the parties agree as follows:

1. Non-Disclosure. Promisor shall hold all Confidential Information (as defined in Section 2) in strict confidence and shall not disclose any Confidential Information to any third party, without the prior written approval of 123 Capital Partners. Promisor shall disclose Confidential Information only to employees who need to know such information in business transactions with 123 Capital Partners, and who have signed agreements that obligate them to treat Confidential Information as required under this Agreement. Promisor shall not use any Confidential Information for any purpose except for business transactions between the parties. Promisor shall take all reasonable measures to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of Confidential Information; provided, however, that such measures shall be no less stringent than measures taken to protect its own confidential and proprietary information. Promisor agrees that it will not interfere with any business of 123 Capital Partners through the use of any Confidential Information acquired hereunder nor use any Confidential Information for its own account. Promisor acknowledges that 123 Capital Partners is neither responsible nor liable for any business decisions made by Promisor in reliance upon any Confidential Information disclosed pursuant hereto.

2. Confidential Information. "Confidential Information" in this Agreement means all information and any idea in whatever form, tangible or intangible, whether disclosed to or learned by Promisor, pertaining in any manner to the business of 123 Capital Partners or to 123 Capital Partners’ affiliates, subsidiaries, consultants or business associates, whether in written, oral, encoded, graphic, magnetic, electronic or in any other tangible or intangible form, and whether or not labeled as confidential by 123 Capital Partners or otherwise provided by 123 Capital Partners. "Confidential Information" includes, without limitation, the following: (a) any financial or funding sources, mortgage brokers, lenders, investors, buyers, sellers, principals, agents, consultants, joint venture partners, business associates, personal relationships, contacts, assigns of any profit, including but not limited to their names, representatives, principals, addresses, phone numbers, email addresses, fax numbers and any other related information (b) mechanisms for obtaining financing, business opportunities; (c) information about costs, profits, markets and sales; (d) lending guidelines, marketing concepts, strategies, trading techniques, simultaneous closing methods, double closing methods and deal structures; and (e) all documents, manuals, books, papers, drawings, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be given to Promisor by 123 Capital Partners, as well as written or verbal instructions or comments.

Promisor understands and acknowledges that the Confidential Information has been developed or obtained by 123 Capital Partners by the investment of significant time, effort, and expense and that the Confidential Information is a valuable, special and unique asset of 123 Capital Partners, which provides 123 Capital Partners with a significant competitive advantage. Dissemination by Promisor of any such Confidential Information to any third party not directly affiliated with 123 Capital Partners, or those third parties affiliated with 123 Capital Partners who are not entitled to receive such information. may be harmful and damaging to the interests of 123 Capital Partners.

3. Confidentiality. The obligation of confidentiality shall not apply with respect to any particular portion of information if:

a.       it is in the public domain at the time of 123 Capital Partners’ communication thereof to Promisor; or

b.       it entered the public domain through no fault of Promisor subsequent to the time of 123 Capital Partners’ communication thereof to Promisor; or 

c.       it was in the Promisor's possession, free of any obligation of confidence, at the time of 123 Capital Partners’ communication thereof to Promisor; or

d.       it was rightfully communicated to Promisor free of any obligation of confidence subsequent to the time of 123 Capital Partners’ communication thereof to Promisor; or

e.       such information was developed by employees or agents of Promisor,  independently of and without reference to the information and Promisor has evidence of such independent development.

Promisor agrees to immediately notify 123 Capital Partners if information pertaining to this Agreement is in Promisor’s possession or deemed by Promisor to be public knowledge or has been disclosed by a source other than 123 Capital Partners. Promisor agrees to disclose the date and source of Promisor’s knowledge to 123 Capital Partners.

If Promisor or any of its representatives become legally compelled by law, regulation, rule, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process, or is advised by legal counsel to disclose any of the Confidential Information, Promisor will use reasonable efforts to provide 123 Capital Partners with prompt notice of such requirement or advice prior to disclosure so that 123 Capital Partners may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. If such protective order or other remedy is not obtained, or 123 Capital Partners waives compliance with the provisions hereof, Promisor will furnish only that portion of the Confidential Information which it is legally required to so furnish and use reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.

Within ten (10) days following either a request from 123 Capital Partners or the completion of business dealings between the parties hereto, Promisor will deliver to 123 Capital Partners all tangible copies of the Confidential Information, including but not limited to magnetic or electronic media containing the Confidential Information, note(s) and paper(s) in whatever form containing the Confidential Information or parts thereof, and any copies of the Confidential Information in whatever form. 123 Capital Partners, at its sole option, may request in writing that Promisor destroy all copies of the Confidential Information. If 123 Capital Partners requests that such Confidential Information be destroyed, Promisor will destroy the Confidential Information and, within ten (10) days of the notice from 123 Capital Partners to destroy the Confidential Information, will certify in writing to 123 Capital Partners that the Confidential Information has been completely destroyed.

4. Use of Information by Recipient. Promisor agrees to use the Confidential Information only for the purposes of collaboration between the parties. Promisor agrees to restrict disclosure of the Confidential Information solely to its employees and agents who have a need to know such Confidential Information and to advise such persons of their obligations of confidentiality and non-disclosure hereunder. Further, Promisor shall not disclose the Confidential Information to third parties, including independent contractors or consultants, without the prior express written consent of 123 Capital Partners, and shall advise such third parties of their obligations of confidentiality and non-disclosure hereunder. Promisor agrees to use reasonable means, not less than those used to protect its own proprietary information, to safeguard the Confidential Information.

5. Non-circumvention. Promisor and its affiliates, separately and individually, will not make any effort to circumvent the terms of this Agreement

a.      in an attempt to gain any benefits, business advantages or considerations granted to it under the Agreement,

b.      by taking any actions to indirectly gain the benefits of the Confidential Information, including but not limited to entering into any business relationship or contact any party or entity referred to under 2. (a),

c.      by hiring or contracting with any present or future employee or independent contractor of 123 Capital Partners.

Promisor agrees not to use the Confidential Information to go into competition with 123 Capital Partners and agrees to immediately notify 123 Capital Partners if any of the parties referred to under 2. (a) make an attempt to contact Promisor directly.

6. Remedies. Promisor agrees that the unauthorized disclosure or use of Confidential Information will cause irreparable harm and significant injury, which may be difficult to ascertain. Promisor recognizes that its violation of this Agreement could cause 123 Capital Partners irreparable harm and significant injury, the amount of which may be extremely difficult to estimate, thus, making any remedy at law or in damages inadequate. Therefore, Promisor agrees that 123 Capital Partners shall have the right to apply to any court of competent jurisdiction for an order restraining any breach or threatened breach of this Agreement and for any other relief 123 Capital Partners deems appropriate. This right shall be in addition to any other remedy available to 123 Capital Partners in law or equity.

7. Ownership of the Information. 123 Capital Partners retains title to its respective Confidential Information and all copies thereof. Promisor hereby acknowledges that the Confidential Information is proprietary to 123 Capital Partners. Further, Promisor represents that it has no agreement with any other party that would preclude its compliance with this Agreement.

8. Expiration. This Agreement will expire the latter of twenty four (24) months after the effective date of this Agreement or twenty four (24) months after the date of the last Confidential Information disclosed by 123 Capital Partners.

9. Survival. Promisor's duty of confidentiality under this Agreement regarding the Confidential Information shall survive the expiration or termination of this Agreement.

10. Severability. In the event any part of this Agreement is held to be void, voidable, or unenforceable for any reason whatsoever, the remainder of this Agreement not held to be void, voidable, or unenforceable by the court shall remain in full force and effect.

11.General. This Agreement shall be binding upon and for the benefit of the parties and their respective successors and assigns. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. This Agreement supersedes and replaces any existing agreement entered into by the parties relating generally to the same subject matter, and may be modified only in writing signed by the parties. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and shall be governed by the laws of the State of Washington without giving effects to the conflicts of law principles hereof.

This Agreement may be executed in separate counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same instrument. A faxed copy of this Agreement shall constitute a legal and binding instrument.

ACCEPTED AND AGREED:

_________________________                          

(Promisor)                                 

___________________________             

(Print Name and Title when Promisor is a company)                          

___________________________             

(Signature)