This Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made by and between Modo Networks, LLC, having as its principal place of business at 8787 N. STEMMONS FRWY, Ste 320, Dallas, Texas 75247, and the business specified in the form below having its principal place of business at the address specified in the form below (each individually known as a “Party” or collectively as the “Parties”) with respect to the following: 

A) The Parties are interested in exploring or entering into possible business transactions or relationships involving their respective operations. In order to facilitate the contemplated discussions, each Party now requires from the other certain proprietary and confidential material, including, but not limited to, the other’s business plans, strategies, products, procedures, business and trade secrets, documentation, specifications, presentations, know-how, certain technical and financial information, and summaries, compilations, and analyses of any of the foregoing (the “Confidential Information”). 

B) The Confidential Information shall be communicated through a variety of means, including oral, written, electromagnetic, and otherwise. Each Party is willing to provide the Confidential Information to the other on the condition that such other Party holds it in confidence on the terms and conditions hereinafter set forth. 

NOW THEREFORE, in order to induce the other Party to provide it with the Confidential Information and for other good and valuable consideration, each Party hereby warrants, represents and agrees as follows: 

1. Confidentiality – The Party receiving the Confidential Information (“Receiving Party”) hereby agrees to employ diligent efforts to maintain the secrecy of the Confidential Information received from the other Party (“Disclosing Party”). Such diligent efforts shall be at least equivalent to that degree of care and protection that the Receiving Party exercises with regard to its own property and information that it maintains as secret and confidential, but in any event no less than a reasonable degree of care. 

2. Non-Disclosure – Receiving Party hereby agrees that neither it nor its employees or agents shall reveal, duplicate, or otherwise make available the Confidential Information that it receives to any person or entity other than to its own employees or its agents’ employees who (i) have a need to know such information for the purposes contemplated herein, and (ii) are bound by a confidentiality agreement with restrictions on the distribution and use of confidential information substantially similar to the restrictions contained in this Agreement. Furthermore, such disclosure shall only be as is reasonably necessary for purposes consistent with the contemplated joint activity between the Parties. 

3. Non-Use – Each Party agrees not to use any Confidential Information of the other Party except as is necessary for purposes consistent with the contemplated joint activity between the Parties. 

4. Conclusion of Discussion – In the event that the Parties terminate their discussions in which Confidential Information has been disclosed under this Agreement, each Party shall, upon request of the other, and within thirty (30) days of such request, return or destroy any and all Confidential Information, which is or has been in its possession and shall retain no copies of the Confidential Information. 

5. Breach of Agreement – In the event that the Receiving Party breaches, or threatens to breach any of the provisions of this Agreement, the Disclosing Party may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, in lieu of or in addition to any other relief at law or in equity. In the event that either Party hereto deems it necessary to pursue any proceedings to enforce the provisions of this Agreement, the Party prevailing in such proceedings shall be entitled to recover from the other Party reasonable attorneys’ fees, court costs, and other expenses incurred therein. 

6. Provisions Inapplicable – The Parties understand and agree that the foregoing requirements shall not apply to information: 

That is now, or in the future becomes, freely available to the public through no fault of or action by the Receiving Party; 

That was in the possession of the Receiving Party prior to the time of disclosure by the Disclosing Party or that is independently acquired or developed by the Receiving Party without the aid, application, or use of the Confidential Information; 

That is obtained by Receiving Party in good faith without knowledge of any breach of a secrecy arrangement from a third party; 

That is disclosed with the written approval of the Disclosing Party; or 

That is required to be disclosed by law or court order; provided that the Disclosing Party is notified thereof promptly in writing in order to allow the Disclosing Party an opportunity to take reasonable steps in response thereto. 

7. Miscellaneous - 

a. This Agreement shall remain in effect for a period of three (3) years, provided, however, that the confidentiality obligations contained herein with respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the information remains a trade secret. 

b. The Confidential Information is provided on an “as is” basis. The Disclosing Party makes no warranties, express or implied, with respect to the Confidential Information. 

c. Failure of either Party hereto to enforce at any time any provision of this Agreement or to exercise any right provided herein shall not in any way be construed to be a waiver of such provision or right nor in any way affect the validity of this Agreement or limit, prevent or impair the right of either Party subsequently to enforce such provision or exercise such right. 

d. Neither Party shall assign this Agreement without the prior written consent of the other Party. 

e. Nothing in the Agreement shall be construed as an obligation by either Party to enter into a contract, subcontract, or other business relationship with the other Party. 

f. This Agreement contains the entire understanding between the Parties with respect to the exchange and protection of Confidential Information described herein, superseding all prior or contemporaneous agreements or understandings. 

g. This Agreement shall be construed and governed in accordance with the laws of the state of Texas.