Free Motion for Attorney Fees - District Court of Arizona - Arizona

I “ It I · ,· I-
NONDISCLOSURE
_ ` AND
CONFIDENTIALITY AGREEMENT
THIS IS AN AGREEMENT made and entered into on the date set
forth below by and between TRUE CENTER GATE COMPANY, a washington
general partnership ("True Center"), and the undersigned party
("Recipient"). -
Recitals
` A. True Center owns the unique and confidential technology
for the manufacture of electronic starting gates used primarily
for horse racing.
» B. Recipient wishes to review True Center’s confidential
records, blueprints and other technology related to the
manufacture of the starting gate ("Confidential Information") in-
order either to determine whether to purchase the technology for
the manufacture of the starting gate from True Center or to
perform under a contract with True Center for the manufacture of
the starting gate for the exclusive benefit of True Center.
( C. "Confidential Information" refers to, but is not
necessarily limited to, technology relating to the operation and
manufacture of the starting gate, the marketing strategy for the
starting gate, True Center’s business policies and practices, and
information received from others that True Center is obligated to
treat as confidential. Confidential Information also shall
include, without limitation, all tangible materials containing
Confidential Information, including, without limitation, written
or printed documents, drawings, blueprints, notebooks, computer
disks and computer tapes.
D. True Center is willing to provide certain Confidential
· Information to Recipient but only on condition that Recipient
agrees to the provisions of this Agreement.
Terms of Agreement
In consideration of the premises and the mutual covenants
I herein contained, True Center’s proposal to disclose certain
·Confidential Information to Recipient, and any payments made or
.to be made by either True Center or Recipient, the parties hereto
aagree as follows: I
I I. Acceotance of Recitals. The parties agree that the
recitals set forth above are true and correct.
...1-
ss¤1se¤1.ups
EXHIBIT D
P00O6O
· f4
Case 2:02-cv-01109-DGC Document 223-12 Fnled O1/17/2006 Page1 0

2. Grant of Access. True Center intends to provide to
Recipient the Confidential Information as listed and described on
Exhibit A hereto. If True Center later provides any additional
Confidential Information, all such Confidential Information is
subject to this Agreement.
3. Limitation-of Access. Recipient agrees to diligently
preserve the confidential and proprietary nature of all
Confidential Information. .
4. Limitation on Use of Confidential Information.
Recipient shall use the Confidential Information only in I
connection either with negotiations or discussions between True
Center and Recipient regarding the potential purchase by
Recipient of the starting gate technology or for completion of
the contract by which Recipient will manufacture the starting
— gate for the benefit of True Center. Recipient shall make no
other use of the Confidential Information.
5. Disclosure on a Need—to—Know Basis. Recipient may
disclose Confidential Information only to Recipient's employees
or consultants on a need—to—know basis. Recipient shall execute
appropriate written agreements with its employees and consultants
sufficient to enable it to comply with all the provisions of this
Agreement. The names of all such employees and consultants are
set forth in Exhibit B. `
6. No Copying. Recipient shall not copy or reproduce any
portion of the Confidential Information without the prior written
approval of True Center.
7. Disclosure in Event of Judicial Order. Recipient may
disclose Confidential Information in accordance with a mandatory
judicial order provided Recipient shall give True Center
reasonable notice prior to such disclosure and shall comply with
any applicable protective order or its equivalent.
8. Security. Recipient shall take all reasonable security
precautions, at least as extensive as the precautions it takes to
protect its own confidential information, to keep confidential
the Confidential Information.
` 9. Segregation. Recipient agrees to segregate all ‘
Confidential Information from the confidential materials of
others in order to prevent commingling.
`10. Return of Confidential Information. If Recipient is a
potential purchaser of the starting gate technology, then
Recipient shall return all Confidential Information to True
Center within thirty (30) days of this Agreement; If Recipient
is a manufacturer of the starting gate pursuant to a contract
- 2 .... V
ss¤1ssas.ups
. 900061
Case 2:02-cv-01109-DGC Document 223-12 Filed O1/17/2006 Page 2 of 4

with True Center, then Recipient shall return all Confidential
Information to True Center within thirty (30) days of Recipient's
completion of such production. Notwithstanding the foregoing,
Recipient shall return all originals, copies, reproductions and
summaries of Confidential Information immediately at True
Center’s request or, at True Center’s option, certify destruction
of the same.
11. Verificatign of Cgmplignge. True Center at any time
may require Recipient to certify in writing that it has performed
faithfully the obligations imposed upon it by this Agreement.
True Center may visit Recipient's premises, with reasonable prior
notice and during normal business hours, to review Recipient’s
compliance with the terms of this Agreement.
· 12. Copyright; Trade Secret. Recipient agrees that
placement of a copyright notice on any portion of the
Confidential Information shall not be construed to mean that such
portion has been published and will not release Recipient from
any obligations of confidentiality under this Agreement absent
written consent to such release from True Center. Recipient
acknowledges and agrees that all Confidential Information
constitutes a trade secret, is valuable proprietary information
and is protected under Washington law by the Uniform Trade
Secrets Act. All Confidential Information are and shall remain
the property of True Center. By disclosing Confidential
Information to Recipient, True Center does not grant any express
or implied right to Recipient to or under True Center patents,
copyrights, trademarks, or trade secret information.
13. Notification in the Event of Discovery gf Unauthorized -
Qgg. Recipient shall notify True Center immediately upon
discovery of any unauthorized use or disclosure of Confidential
Information or any other breach of this Agreement by Recipient,
and will cooperate with True Center in every reasonable way to
help True Center regain possession of the Confidential
Information and prevent its further unauthorized use.
14. Responsibility for Acts of Others. Recipient shall be
responsible for assuring compliance with the requirements of this
Agreement by its agents, officers, consultants, representatives,
A employees, employers, shareholders and affiliates and shall be
liable for any breach of this Agreement by any of the foregoing.
15. Rignt to Injgncgive Belief. Recipient acknowledges
that monetary damages may not be a sufficient remedy for
unauthorized disclosure of Confidential Information and that True
Center shall be entitled, without waiving any other rights or
remedies, to such injunctive or equitable relief as may be deemed
proper by a court of competent jurisdiction. True Center shall
...3 -
SFG15EB3.UPS
P0OO62
Case 2:02-cv-01109-DGC Document 223-12 Filed O1/17/2006 Page 3 of 4

be entitled to restrain any continuing or further breach without
showing or proving any actual damage sustained by True Center.
16. Choice of Law. This Agreement shall be construed and
interpreted under the laws of the state of washington.
· 17. Attornevs’ Fees. In the event any action, mediation,
or arbitration is brought related to, arising out of, to enforce
or on account of, this Agreement or any provision thereof, the
prevailing party shall be awarded its reasonable attorneys' fees
together with expenses and costs incurred in connection with such
legal proceedings. "Attorneys’ fees" shall include services
rendered at arbitration, mediation, both the trial and appellate
levels, as well as services rendered subsequent to judgment in
obtaining execution thereon.
18. Savings Clause. In the event that any provision of
this Agreement shall be held to be unenforceable or invalid for
any reason, such provision shall be modified or deleted in such a
manner as to make this Agreement, as modified, legal and
enforceable to the fullest extent permitted by law. The validity
and enforceability of the remaining provisions or portions of
this Agreement shall not be affected, and shall remain valid and
enforceable to the fullest extent permitted by law.
19. No Modification. This Agreement shall not be modified
except by a written agreement dated subsequent to the date of
this Agreement and signed by both parties.
20. No waiver. None of the provisions of this Agreement
shall be deemed to have been waived by any act or acquiescence on
the part of True Center, its agents, or employees, but only by an
instrument in writing signed by an authorized representative of
True Center. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision(s) or of the same
provision on another occasion.
21. Binding Obligation. Subject to the limitations set ·
forth in this Agreement, this Agreement will inure to the benefit
of and be binding upon the parties, their successors and assigns.
_ 22. Survival of Obligations. All obligations created by
this Agreement shall survive change or termination of the
parties' business relationship.
23. Ec Election of Remedies. In the event of a default by
either party, the other shall have the right, at its sole
discretion, to exercise any remedy or remedies available to it at
law or in equity. All such remedies shall be cumulative, may be
exercised concurrently or separately and the exercise of one
shall not preclude the exercise of any other remedy.
...4 ...
ss¤1saas.v¤s .
P00063
Case 2:02-cv-01109-DGC Document 223-12 Filed O1/17/2006 Page 4 of 4

Case 2:02-cv-01109-DGC

Document 223-12

Filed 01/17/2006

Page 1 of 4

Case 2:02-cv-01109-DGC

Document 223-12

Filed 01/17/2006

Page 2 of 4

Case 2:02-cv-01109-DGC

Document 223-12

Filed 01/17/2006

Page 3 of 4

Case 2:02-cv-01109-DGC

Document 223-12

Filed 01/17/2006

Page 4 of 4