CONFIDENTIALITY AGREEMENT

            WHEREAS, the Parties hereto intend to engage in meetings and discussions that may contain confidential information, and may exchange or provide access to confidential information related to CALGA, its members, and/or third-parties, and confidential information related to the Individual or the Individual’s employer or business; and

            WHEREAS, it is necessary for CALGA to discuss and exchange such confidential information with its members and their employees, agents and representatives as part of CALGA’s activities, as well as with the Individual; and

            WHEREAS, both Parties require assurance that confidential information that is exchanged pursuant to the above activities is maintained as confidential, and believe that improper release of confidential information would be detrimental to the Parties;

            NOW, THEREFORE, in consideration of the mutual promises and covenants made herein, and with the intent to be legally bound hereby, the Parties agree as follows:

            1.         Confidential Information.  The term “Confidential Information” as used in this Agreement shall mean any and all written or verbal materials or information which:  (a) are marked “confidential”, or (b) obtained through meetings or discussions between the Parties or agents of the Parties, if the recipient was told the information was “confidential”, or (c) information which is commonly understood or generally recognized in the industry to be confidential, and which the Party in good faith reasonably knew or should have known was confidential in nature.  Such Confidential Information shall include, but not be limited to, all non-public data concerning:  pricing, sales, CALGA website data and reports that are not publicly accessible, marketing, volume, future projections, strategic planning, operational, economic, or financial knowledge, and information or data of any nature whatsoever relating to the future, present, or past business, operations, plans or assets.  Confidential Information shall not include the following:

(a)        Information which at the time of disclosure by a Party (the “Disclosing Party”) is in the public domain, or information which later becomes part of the public domain through no act or omission of the recipient (the “Receiving Party”);

(b)        Information which the Receiving Party can demonstrate was legally in its possession prior to disclosure by the Disclosing Party;

(c)        Information received by the Receiving Party from a third party who, to the best of the Receiving Party’s knowledge, did not acquire such information on a confidential basis, either directly or indirectly, from the Disclosing Party.

            2.         Disclosure and Use of Confidential Information.  Each Party agrees to keep confidential all of the other Party’s Confidential Information, except as permitted herein, and shall not, without the other Party’s prior written consent, disclose to any third party such Confidential Information for five (5) years following termination of this agreement. 

            3.         Required Disclosure.  In the event that either Party is requested or required by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation, demand or similar process or by law or regulation to disclose any Confidential Information of the other, it is agreed that the Party may provide such information provided that it has first provided prompt notice (to the extent practicable) of such potential disclosure so that an appropriate protective order may be sought and/or a waiver of compliance with the provisions of this Agreement may be granted. 

            4.         Return of Documents.  Upon written request from the Disclosing Party, the Receiving Party shall return or destroy any and all written Confidential Information, as well as any other information disclosed to it by the other Party, including all originals, copies, translations, notes, or any other form of said material, except the retention of such materials that are required by law or regulation to be so retained.

            5.         Term.  This Agreement shall commence on the date set forth in the first paragraph of this Agreement, and shall continue until termination by either party as set forth in the immediately following paragraph.  The continuing obligations of this Agreement survive and remain in force after the Term, specifically including, but not limited to, the five (5) year period set forth in paragraph 2 above.

            6.         Termination.  This Agreement may be terminated by either party at any time, with or without cause, by providing the other party with thirty (30) days prior written notice of termination.  The parties shall continue to perform their obligations under this Agreement during the 30-day notice period unless mutually agreed otherwise.  The continuing obligations of this Agreement survive and remain in force after Termination, specifically including, but not limited to, the five (5) year period set forth in paragraph 2 above.

            7.         Nature of Information.  The Parties hereby accept the representations of the other Party that the other Party’s Confidential Information is of a special, unique, unusual, extraordinary, and/or intellectual character.  The Parties acknowledge that the other Party’s interests in such Confidential Information may be irreparably injured by disclosure of such Confidential Information.  The Parties acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Agreement by it, and that in addition to all other remedies, the other Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and each further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

            8.         Governing Law.  The validity and interpretation of this Agreement and the legal relations of the Parties to it shall be governed by the laws of the State of California without giving effect to conflicts of laws principles thereof.  In the event that a court of competent jurisdiction determines that any portion of this Agreement is unreasonable because of its term or scope, or for any other reason, the Parties agree that such court may reform such provision so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable.  The Parties further agree that service of any process, summons, notice or document by U.S. certified or registered mail to the Parties’ respective executive offices will be effective service of process for any action, suit, or proceeding brought in any such court.

            9.         Modification and Waiver.  The provisions of this Agreement may be modified or waived only by a separate writing signed by the Party(s) expressly so modifying or waiving the same.  No failure or delay by the Parties in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any partial exercise thereof preclude any other or further exercise thereof, or of any other right, power, or privilege.

            10.       Severability.  If any provision of this Agreement is declared void or otherwise unenforceable and cannot be reformed as provided in Section 9 hereof, such provision shall be deemed to have been severed from this Agreement, which shall otherwise remain in full force and effect.