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TERMS OF USE  

THIS CONFIDENTIALITY AGREEMENT is made and entered into as of, between eTrain (etrainetc,LLC) (the “Company”) and you, the accepted viewer of this site. 

The Company and the Undersigned intend to enter into, or have entered into, discussions to explore the possibility of a business transaction, which discussions may ultimately result in the parties entering into such transaction (the “Transaction”).  In connection with, and during the course of such discussions, each party may disclose to the other party certain Confidential Information (as such term is hereinafter defined), the confidentiality of which the owner thereof desires to protect.  Each party acknowledges that the other party takes seriously the protection of all information regarding each aspect of its business, properties and the factors it has taken into account in developing, and proposing to develop, its business.  A party when disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and when receiving such information shall be referred to as the “Receiving Party.” 

Accordingly, this Agreement sets forth the terms and conditions of the disclosure to and use by a Receiving Party of a Disclosing Party’s Confidential Information. 

 1.  Non-use and Non-disclosure.  The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose except to evaluate and to engage in discussions concerning the proposed Transaction and to consummate the Transaction in a manner that the Disclosing Party has approved.  Subject to Section 5 hereof, without the prior written consent of the Disclosing Party, the Receiving Party shall (i) keep all Confidential Information of the Disclosing Party confidential; (ii) shall not disclose, at any time, any Confidential Information of the Disclosing Party to third parties or to the Receiving Party’s Representatives, except those Representatives who are actively and directly participating in its evaluation of the proposed Transaction or who otherwise need to know the Confidential Information for the purpose of evaluating the proposed Transaction (and shall cause those Representatives to agree to the terms of this Confidentiality Agreement in writing prior to such disclosure, it being understood by the Receiving Party that the Receiving Party shall be responsible and liable for any and all breaches of such agreements and unauthorized use or disclosure of Confidential Information made by such Representatives, whether or not such an agreement is executed); (iii) shall not reverse engineer, disassemble or decompile or analyze, restructure and/or copy or in any way recreate in whole or in part any prototypes, software or other tangible objects which embody the Disclosing Party’s Confidential Information and which are provided to the Receiving Party hereunder; and (iv) shall not disclose to any person any information about the Transaction, or the terms or conditions or any other facts relating thereto, including without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party, except for disclosure to those of the Receiving Party’s Representatives who are actively and directly participating in its evaluation of the proposed Transaction or who otherwise need to know the Confidential Information for the purpose of evaluating the proposed Transaction (which Representatives shall be caused to agree to the terms of this Confidentiality Agreement in writing prior to such disclosure, it being understood by the Receiving Party that the Receiving Party shall be responsible and liable for any and all breaches of such agreements and unauthorized use or disclosure of Confidential Information made by such Representatives, whether or not such an agreement is executed). 

2.  “Confidential Information” means any confidential or proprietary information of the Disclosing Party disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally, in computerized form or format or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), including disclosures made by the Disclosing Party prior to the date hereof, including without limitation technical, developmental, marketing, sales, operating, performance, cost, know-how (whether or not patentable), research, developments, inventions, formulae, schematics, data, any new or planned programs and services, business plans, finances, and personnel information, together with analyses, compilations, forecasts, proposals, works of authorship, forecasts, processes, studies or other documents prepared by the Receiving Party or by its Representatives that contain or otherwise incorporate such information. Confidential Information may also include information disclosed to the Disclosing Party by third parties.  Confidential Information shall not, however, include any information which (i) is or becomes available to the public or becomes part of the public domain other than as a result of a disclosure by the Receiving Party or by its Representatives; (ii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the Receiving Party from a third party that the Receiving Party has no reason to believe after due inquiry is in violation of any legal, contractual or fiduciary obligation to the Disclosing Party with respect to such Confidential Information;  or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, which the Receiving Party is able to demonstrate to the satisfaction of the Disclosing Party.  The nature, types and amount of Confidential Information to be disclosed hereunder is completely within the discretion of the Disclosing Party, and access thereto may be terminated at any time by the Disclosing Party in its sole discretion.  “Representative” hereunder shall mean, as to any person, its directors, officers, employees, agents and advisors (including without limitation, financial advisors, attorneys and accountants and debt financing sources and their advisors) and “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. 

3.  Maintenance of Confidentiality.  The Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.  Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information.  The Receiving Party shall not make any copies of the Confidential Information unless the same are previously approved in writing by the Disclosing Party.  The Receiving Party shall reproduce the Disclosing Party’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original, if any, and if not, as follows: “Confidential- Proprietary Information of [Disclosing Party].” 

4.  Property of Disclosing Party.  All documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party, and all copies and other reproductions thereof wherever located, shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon the Disclosing Party’s written demand (but in no event more than 10 days after such demand).   

5.Disclosure Required by law.  In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the Receiving Party’s securities are listed or quoted) or by legal process to disclosure any Confidential Information or any other information concerning the Disclosing Party or the Transaction, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to see a protective order or other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking of steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement.    In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to ensure that confidential treatment will be accorded the Confidential Information so disclosed.  In the event that the Receiving Party shall have complied with the provisions of this paragraph, such disclosure may be made by the Receiving Party or its Representatives without any liability hereunder. 

6. Protected Information.  To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege.  All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.  Nothing in this letter agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 

Notwithstanding anything in this letter agreement to the contrary, the Disclosing Party hereby represents and warrants that such party may rightfully disclose or make available the Confidential Information to the Receiving Party without the violation of any contractual, legal, fiduciary or other obligation to any person. 

7.Return of Confidential Information.  If either party hereto shall determine that it does not wish to proceed with the Transaction, such party shall promptly advise the other party of that decision.  In that case, or in the event that the Disclosing Party, in its sole discretion, so requests or the Transaction is not consummated, the Receiving Party shall, upon the Disclosing Party’s written request, promptly deliver to the Disclosing Party all Confidential Information, and, at the Receiving Party’s election, return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files), in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party, such destruction to be confirmed by the Receiving Party; provided, however, that (i) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered and (ii) one copy of any item of written Confidential Information may be retained by legal counsel for record retention purposes only.  Notwithstanding such return or destruction, all Confidential Information, including oral Confidential Information, shall continue to be subject to the terms of this Agreement. 

8.Process.  Until a definitive agreement regarding the Transaction has been executed by the parties hereto, neither party hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Transaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein).  Each party hereto and its Representatives (i) may conduct the process that may or may not result in the Transaction in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the Transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above).  

9.  No License. No rights to use the Confidential Information are hereby granted to the Receiving Party by implication or otherwise, except as specifically provided for in this agreement.  The Receiving Party shall not by virtue of the Disclosing Party’s disclosures of the Confidential Information and/or of use of the Confidential Information as permitted by this agreement acquire any rights with respect thereto, all of which rights shall remain exclusively with the Disclosing Party. 

10.   Specific Performance.  Each party acknowledges that the value of the Confidential Information to the other party is unique and substantial, but may be impractical or difficult to assess in monetary terms.  Accordingly, in the event of an actual or threatened breach of this agreement, each party expressly consents to the enforcement of this agreement by injunctive relief or specific performance without the proof of actual damages, in addition to any and all other remedies available.  If any provision of this Agreement shall be deemed invalid or unenforceable, the remainder of this agreement shall not be affected thereby and each provision of this Agreement not affected thereby shall be valid and enforceable to the fullest extent permitted. 

11.   Consent to Jurisdiction.  Each party irrevocably (i) agrees that any suit, action or other legal proceeding arising out of or relating to this agreement which may be brought in a court may be brought in a court of record in the State of Florida (assuming such court otherwise has subject matter jurisdiction), (ii) consents to the personal jurisdiction of each such court in any such suit, action or proceeding, and (iii) waives any objection which it/he may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.   

12.   Representation.  Subject to the terms and conditions of a definitive agreement regarding the Transaction and without prejudice thereto, each party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the Proprietary Information.  The Receiving Party shall not be entitled to rely on the completeness of any Confidential Information, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Confidential Information as may be made to it in any definitive agreement relating to the Transaction, subject to the terms and conditions of such agreement.  Subject to the terms and conditions of a definitive agreement regarding the Transaction and without prejudice thereto, the Receiving Party agrees that neither the Disclosing Party, nor any of its affiliates, or their respective directors, officers, employees, agents or representatives shall have any liability to the Receiving Party or to any of its employees, agents or representatives resulting from the use or evaluation of the information disclosed or materials made available hereunder or resulting from any errors in such information or materials or omissions therefrom.   

13.     Successors and Assigns.  This Agreement and each party's obligations hereunder shall be binding on and inure to the benefit of the representatives, assigns, and successors of such party. 

14.Attorneys’ Fees.  In the event of a breach or threatened breach of this agreement by the Receiving Party, the Receiving Party agrees to pay all costs incurred by the Disclosing Party in connection with the enforcement of this agreement through a claim or otherwise, including attorneys’ fees and costs of the Disclosing Party. 

15.Counterparts.  This Agreement may be signed in counterparts, each of which, when executed, shall be an original and which together shall constitute one agreement.   

16.Notices.   All notices, offers, acceptances, requests or other communications provided for in this Agreement shall be in writing and signed by the party giving such communication, and shall be deemed to have been duly given if personally delivered or mailed by certified mail, return receipt requested, to the Undersigned at its/his then address on the records of the Company, to the Company at its mailing address, or to such other address as any party hereto shall designate to the other parties hereto in writing, except that notices of change of address shall be deemed given upon receipt by the other party.  Notice by mail shall be deemed to have been given three days after deposited with the United States postal service. 

17.Miscellaneous.    This Agreement shall be governed by the laws of the State of Florida, without reference to conflict of laws principles.  This document contains the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, understandings and agreements related thereto.  No amendment or modification of this agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties.  No failure or delay by the Disclosing Party in exercising any right, power or privilege under this agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.  Neither party may assign or transfer in whole or in part, any of its rights, obligations or duties under this agreement.