Washington, D.C. Location
Washington, DC 20015
Princeton, NJ Location
Princeton, NJ 08540
This CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into this __day of November 2004 by and between Electrical Patent Corp. Suite 120, 1200 Valmont Way, Richmond, BC, Canada V6V 1Y4, a Canadian Corporation (“Electrical Patent Co”) and Power Technology Patent, Inc. 100 St. Alvin Plaza, Houston, Texas 77056, a Texas corporation (the “Power Patent Co”).
WHEREAS, Electrical Patent Co desires to obtain the Confidential Information, (defined below) for the limited purposes and subject to all of the terms and conditions set forth herein for the limited uses set forth herein; and
WHEREAS, Power Patent Co desires to disclose the Confidential Information to Electrical Patent Co, for the limited purposes and subject to all of the terms and conditions set forth herein.
NOW, THEREFORE, Power Patent Co and Electrical Patent Co agree as follows:
1. Confidential Information. From and after the date hereof, Power Patent Co shall make available to Electrical Patent Co a description of, and other certain information relating to, Power Patent Co’s operations or proposed operations, including, without limitation, information pertaining to manufacturing processes, materials and suppliers used or to be used by Power Patent Co concerning a solar panel consisting in part of reticulated ____________, which are the subject of International Patent Application Number PCT/US02/9999 filed September 25, 2002 and United States Patent filed March 26, 2004 and assigned U.S. Serial Number 10/791,234 and to certain improvements to said technology. Such information, together with any other information now or hereafter received from Power Patent Co by Electrical Patent Co or any of its affiliates, oral or transmitted otherwise, relating in any way to the Power Patent Co’s battery technology including without limitation to the existence of this Agreement and Power Patent Co’s execution of same, shall except as otherwise provided herein be deemed for the purposes of this Agreement “Confidential Information”. Electrical Patent Co and Power Patent Co acknowledge and agree that some of the Confidential Information may consist of certain production processes, marketing techniques and arrangements, customer and prospect names and requirements, employee, customer, supplier and distributor data and other materials or information relating to Power Patent Co’s business and activities and the manner in which it does business; discoveries, concepts, and ideas including, without limitation, the nature and results of research and development activities, processes, formulas, inventions, computer-related equipment or technology, techniques, “know-how”, designs, drawings and specifications; and any other materials or information related to the business or activities of COMPANY which are not generally known to others engaged in similar businesses or activities; and other information which may in part or in whole be part of the public domain, and nonetheless deem it and agree that it is and shall be Confidential Information for the proposes of this Agreement.
2. Confidentiality. In recognition of Power Patent Co’s need to protect its legitimate business interests, Electrical Patent Co agrees that it shall not without the prior written consent of Power Patent Co use the Confidential Information or disclose all or any part of the Confidential Information to any person or entity, except to such of its directors, officers, employees, agents, representatives or advisors as are participating with Electrical Patent Co and or acting on Electrical Patent Co’s behalf in providing technical consulting and services relating to plasma coating of reticulated vitreous carbon substrates and have a reasonable need to access to such Confidential Information in connection with such evaluation and then only to the extent necessary for their participation or contribution. Provided, however, that (i) in each instance where Power Patent Co so grants consent, such consent shall be deemed conditioned upon Electrical Patent Co binding the person to whom such disclosure is made to the obligations to Power Patent Co of confidentiality and non-circumvention as set forth herein, and (ii) such consent shall be deemed to have been ineffective and void if the consented to disclosure by Electrical Patent Co is to a person or entity known to Electrical Patent Co prior to such disclosure to be a person or entity competing with Power Patent Co as it relates to battery technology, unless such information is provided to Power Patent Co prior to such disclosure and Power Patent Co reiterates its consent in writing in view of such competitiveness. For the purposes of this Paragraph number 2, “… binding the person to whom such disclosure is made to the (Electrical Patent Co’s) obligations to Power Patent Co …” will be sufficiently attained by the Electrical Patent Co’s execution of its standard confidentiality agreement with this “person”.
3. Non-Circumvention/Non-Solicitation. Neither Electrical Patent Co nor any agent, employee, affiliate or entity related to or controlled by Electrical Patent Co shall (i) use, or deal with anyone else using, the Confidential Information; or any part thereof, except for others in which Electrical Patent Co has already communicated or has or is currently working; or (ii) circumvent or attempt to circumvent Power Patent Co in contacting any suppliers or sources of materials, goods or services identified by Power Patent Co (a “Supplier”). Electrical Patent Co and Power Patent Co acknowledge and agree that Electrical Patent Co is a prospective supplier to Power Patent Co. Electrical Patent Co agrees that it will not enter into any agreements with any Supplier or with any suppliers or sources of materials, goods or services substantially similar to a Supplier which would have the effect of impairing Power Patent Co’s operations. Electrical Patent Co shall not solicit any Supplier or employee of Power Patent Co without the prior written consent of Power Patent Co. Neither Electrical Patent Co nor any agent, employee, affiliate or entity related to or controlled by Electrical Patent Co agrees not to use, employ, deploy nor other use of any Confidential Information without expressed written consent of Power Patent Co.
4. Termination. This agreement shall terminate and be of no further force or effect two- (5) years from the date of this Agreement, as set forth above. Upon any such termination Electrical Patent Co shall thereafter have no further access to any Confidential Information, shall either destroy or deliver to Power Patent Co (or cause to be so destroyed or so delivered) all copies of such Confidential Information, together with all extracts and summaries thereof, then in its possession (or in the possession of its directors, officers, employees, agents, representatives, contractors, lenders, advisors, or affiliates). All of Electrical Patent Co’s obligations under this Agreement shall survive any such termination, including without limitation Electrical Patent Co’s confidentiality, non-circumvention, non-use, and non-solicitation obligations.
5. Compelled Disclosure. If Electrical Patent Co becomes legally compelled to disclose any Confidential Information, Electrical Patent Co shall provide Power Patent Co with prompt notice so that Power Patent Co may, at its election, seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, Electrical Patent Co shall furnish only that portion of the Confidential Information, which is legally required, upon the advice of counsel, to be disclosed. Electrical Patent Co shall reasonably cooperate, but the Electrical Patent Co shall not assume any related costs, with Power Patent Co and its counsel to enable Power Patent Co to obtain a protective order or other reliable assurance that confidential treatment will be accorded such information.
6. Publicity. Electrical Patent Co shall not issue a press release which mentions or refers to Power Patent Co or any affiliate of Power Patent Co without the prior consent of Power Patent Co.
7. Remedies. Electrical Patent Co and Power Patent Co agree that money damages alone would not be a sufficient remedy for breach of this Agreement and, accordingly, that Power Patent Co shall be entitled, in addition to any other remedies at law or in equity otherwise available to it, to specific performance and injunctive relief as a remedy for any such breach.
8. Entire Agreement: This Agreement supersedes any other previous agreement or understanding between Power Patent Co and Electrical Patent Co, whether written or oral, relative to the distribution or utilization of Confidential Information, and all modifications hereof or amendments hereto must be in writing signed on behalf of both parties.
In Witness whereof Electrical Patent Co and Power Patent Co have caused this Agreement to be executed by their duly authorized representatives:
Power Patent Co: Electrical Patent Co: Electrical Patent Corp.
Power Technology Patent, Inc.
By: ________________________________ By: _______________________
Its: Vice President, Chief Technology Officer