CONSULTANT NON-DISCLOSURE AND NON-COMPETITION

In consideration and as a condition to the provision of services by ______________ (the

Consultant) to [____________________________] (the "Company"), the Consultant hereby
agrees with the Company as follows:
1.

Confidential Information. Confidential Information means all trade secrets and

confidential and proprietary information relating to the Company, including, without
limitation: (a) supplier and customer lists, supplier and customer-specific information,
user lists, vendor lists and content provider lists; (b) planning data and selling and
marketing strategies; (c) product and process designs, formulas, processes, plans,
drawings, concepts, techniques, systems, strategies, software programs and works of
authorship; (d) manufacturing and operating methods; (e) research and development data
and materials, including those related to the research and development of products,
materials or manufacturing and other processes; (f) financial and accounting information,
financial and accounting records, pricing information, projects, budgets, projections and
forecasts; (g) all industrial and intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks, trademark applications, trade
names, service marks, service mark applications, copyrights, copyright applications,
databases, algorithms, computer programs and other software, know-how, trade secrets,
proprietary processes and formulae, inventions, trade dress, logos, design and all
documentation and media constituting, describing or relating to the above; and (h) other
information with respect to the Company, which, if divulged to the Companys
competitors, would impair the Companys ability to compete in the marketplace.

2.

Protecting Confidential Information. Both during and after the termination of

Consultants duties, Consultant agrees to preserve and protect the confidentiality of the
Confidential Information and all its physical forms, whether disclosed to him, her or it
before or after this Agreement is signed. In addition, Consultant agrees not to (a) disclose
or disseminate Confidential Information to anyone, including Company employees who
lack a need to know and (b) use Confidential Information for his, her or its or any third
partys benefit.

3.

Exclusions. The foregoing obligations will not apply to any information that Consultant
can establish to have (a) become known to Consultant prior to having received such
information from the Company, (b) been given to Consultant by a third party who is not
obligated to maintain confidentiality, (c) been disclosed under operation of law, except that
Consultant will disclose only such information as is legally required and will use
reasonable efforts to obtain confidential treatment for any Confidential Information that is
so disclosed, or (d) been disclosed by him, her or it with the Companys prior written
approval.

4.

Non-Competition. While Consultant is providing services to the Company as a

consultant to the Company and for a period of six (6) months after termination of his, her
or its services as a consultant to the Company for any reason (whether voluntary or

involuntary), Consultant agrees that Consultant will not, whether alone or as a partner,
officer, director, consultant, agent, employee or stockholder of any company or other
commercial enterprise, directly or indirectly, engage in any business activity that competes
with any business conducted by the Company or any of its subsidiaries at any time during
such time as Consultant is a consultant to the Company, or any business planned by the
Company or any of its subsidiaries at any time during such time as Consultant is a
consultant to the Company (Competitive Venture). For purposes of this Agreement, a
Competitive Venture shall include, but not be limited to, any business or enterprise which
is involved in [________________________]. Consultant shall be permitted to own
securities of a public company not in excess of one percent (1%) of any class of such
securities and such ownership shall not, by itself, violate the terms of this Paragraph 4.
5.

Non-Solicitation of Company Employees. While Consultant is a consultant to the

Company and for a period of one (1) year after termination of his, her or its services as a
consultant to the Company for any reason (whether voluntary or involuntary), Consultant
will not, directly or indirectly, solicit, recruit or hire any employee of the Company to
work for a third party other than the Company or engage in any activity that would cause
any employee to violate any agreement with the Company.

6.

Non-Interference. While Consultant is a consultant to the Company and for a period of

one (1) year after termination of his, her or its services as a consultant to the Company for
any reason (whether voluntary or involuntary), Consultant will not, directly or indirectly,
solicit, entice or induce any Customer or Supplier (as defined below) to cease doing
business with the Company, and Consultant will not assist any person or entity in taking
any such action.
For purposes of this Agreement, a "Customer" of the Company means any person,
corporation, partnership, trust, division, business unit, department or agency which, at the
time of determination or within one (1) year prior thereto, shall be or shall have been a
customer, distributor or agent of the Company or shall be or shall have been contacted by
the Company for the purpose of soliciting it to become a customer, distributor or agent of
the Company.
For purposes of this Agreement a "Supplier" of the Company means any person,
corporation, partnership, trust, division, business unit, department or agency which, at the
time of determination or within one (1) year prior thereto, shall be or shall have been (i) a
vendor, manufacturer or developer for any product or significant component, design or
software used in any product or service of the Company.

7.

Consultant Representations. (a) Consultant hereby represents that, except as he, she or
it has disclosed in writing to the Company, Consultant is not bound by the terms of any
agreement with any other party to refrain from using or disclosing any trade secret or
confidential or proprietary information in the course of Consultants providing services to
the Company or to refrain from competing, directly or indirectly, with the business of such
other party.
(b)
Consultant further represents that his, her or its performance of all the
terms of this Agreement and as a consultant to the Company does not and will not breach
any agreement to keep in confidence proprietary information, knowledge or data acquired

by him, her or it in confidence or in trust prior to his, her or its consultancy relationship
with the Company, and Consultant will not disclose to the Company or induce the
Company to use any confidential or proprietary information or material belonging to any
previous employer or others.
8.

Injunctive Relief. Consultant agrees that any breach of this Agreement by him, her or it
will cause irreparable damage to the Company and that in the event of such breach the
Company shall have, in addition to any and all remedies of law, the right to an injunction,
specific performance or other equitable relief to prevent the violation of his, her or its
obligations hereunder. Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedy available for such breach or threatened breach.
The prevailing party in any litigation arising under this Agreement shall be entitled to
recover his or its attorneys' fees and expenses in addition to all other available remedies.

9.

Miscellaneous. (a) Consultant understands that this Agreement does not create an
obligation on the Company or any other person or entity to continue to use his, her or its
services or to exploit any Developments.
(b) Any waiver by the Company of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of such provision or any
other provision hereof.
(c) Consultant hereby acknowledges that the type and periods of restriction imposed in the
provisions of this Agreement are fair and reasonable and are reasonably required for the
protection of the Company's proprietary information and the goodwill associated with the
business of the Company. Consultant hereby further acknowledges that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. Accordingly,
Consultant agrees that if any particular provision of this Agreement shall be adjudicated to
be invalid or unenforceable, such provision shall be deemed amended to delete therefrom
the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only
with respect to the operation of such provision in the particular jurisdiction in which such
adjudication is made. In addition, if any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and reducing it, so
as to be enforceable to the extent compatible with the applicable law as it shall then
appear. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) Consultants obligations under this Agreement shall survive the termination of his, her
or its services as a consultant regardless of the manner of such termination and shall be
binding upon his, her or its heirs, executors, administrators and legal representatives.
(e) The term "Company" shall include [_______________________] and any of its
subsidiaries and divisions. The Company shall have the right to assign this Agreement to

its successors and assigns, and all covenants and agreements hereunder shall inure to the
benefit of and be enforceable by said successors or assigns.
(f) This Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed wholly therein
(without regard to principles of conflicts of laws).
IN WITNESS WHEREOF, the undersigned has executed this Consultant Non-Disclosure, and
Non-Competition Agreement as of the __ day of __________, 20_.
CONSULTANT:
______________________
Signature
_______________________
Name - please print
_______________________
_______________________
Address