ex10-58.htm


    

       

      Exhibit
10.58

       

      Terms
And Conditions

      for

      Time
and Materials Project,

       

      
        	
                Scope
      Of This Agreement:

                · This
      is a Time and Materials Agreement

                · This
      Agreement applies to Projects performed for US-based
companies

                · This
      Agreement  assumes that the following documents will be created
      as part of the Project:

                o Project
      Requirements Document

                o Design
      Verification Test Plan

                To
      Complete This Agreement:

                · Complete
      the information on this first page

                · Confirm
      pricing in Exhibit A

                · Client
      signature

              


      

       

      
        
          	Effective
Date:	1/6/2010	 
	Spectrum:	 
      	 
	 
      	
                  Spectrum
      Design Solutions, Inc.

                  110
      N 5th
      St. Floor 3

                  Minneapolis,
      MN 55403

                  Attention:
      General Manager, Spectrum Services

                  Telephone:
      (612) 435-0789

                  Facsimile:
      (612) 435-0736

                  A
      wholly owned subsidiary of Digi International Inc.

                	 
	Client:	 
      	 
	 	Location Based Technologies,
      Inc. 	 
	 	Client Name	 
	 	 	 
	 	Address
      of Principal Office	 
	 	 	 
	 	38 Discovery, Suite
      150	 
	 	 	 
	 	Irvine, CA 92618 -
      3127	 
	 	City,
      State, Zip	 
	 	 	 
	 	Client is a (choose
      one)	 
	 	    o   Corporation	 
	 	    o   LLC	 
	 	    o  
      Partnership	 
	 	   
      o  
      Other: _____________________________	 
	 	 
      formed under the laws of ___________________	 
	 	 	 
	Contact:	 


        

        
          
            	 	
                    Name
      

                                Joseph
      Scalisi 

                  	 	Mailing
      Address, if different from Principal Office
	 	Phone	 	 
	 	            888-600-1044	 	 
	 	Email	 	 
	 	            joseph@pocketfinder.com 	 	 


          

        

         

        
          
            
            

          

          
            1

            
              

            

          

          
            
            

          

        

         

      

      
        	
                1.  

              	
                Definitions.

              


      

      
        	
                a.  

              	
                “Project”
      shall mean the services performed for and Deliverables to be received by
      Client.

              


      

      
        	
                b.  

              	
                “Project
      Documents” shall mean the set of documents defining the Project and the
      respective rights and obligations of the Parties.  The Project
      Documents may contain some or all of the
  following:

              


      

      
        	
                i.  

              	
                “Agreement”
      – this Terms and Conditions document, along with any Exhibits and
      Attachments

              


      

      
        	
                ii.  

              	
                “Project
      Plan” – a written Plan describing the separate phases of the
      Project

              


      

      
        	
                iii.  

              	
                “PRD”
      – the Product Requirements Document that is delivered as part of Phase 1
      of the Project

              


      

      
        	
                iv.  

              	
                “DVT”
      -- the Design Verification Test plan that is delivered as part of Phase 1
      of the Project

              


      

      
        	
                v.  

              	
                “VOR”
      – a Variation Order Request, which is a written request for modifications
      to the Project, as required by changes in assumptions or
      requirements.

              


      

      
        	
                vi.  

              	
                “MOR”
      – Materials Order Request

              


      

      
        	
                c.  

              	
                “Deliverables”
      shall mean the items, reports and information to be delivered to the
      Client, as defined in the Project
Documents.

              


      

      
        	
                d.  

              	
                “Project
      Costs” shall consist of labor costs, non-labor expenses and materials
      costs.

              


      

      
        	
                e.  

              	
                “Party”
      or “Parties” shall refer to Spectrum and Client, either individually or
      collectively, as the context
requires.

              


      

       

      
        	
                2.  

              	
                Project Initiation,
      Documentation, Variation

              


      

      
        	
                a.  

              	
                By
      its signature below, Client authorizes Spectrum to begin the
      Project.

              


      

      
        	
                b.  

              	
                During
      Phase 1 of the Project, Spectrum will produce a PRD and a
      DVT.  Once Client has accepted the PRD and DVT, those documents
      will define the Deliverables and the acceptance process for the
      Deliverables.

              


      

      
        	
                c.  

              	
                Client
      may cancel a project or any phase of a project or put it on hold with a
      written notice to Spectrum.  After receipt of notice, Spectrum
      will discontinue work on the project and will only engage in such work as
      is necessary to close the project or
phase.

              


      

       

      
        	
                3.  

              	
                Pricing and Payment
      Terms.

              


      

      
        	
                a.  

              	
                The
      Project labor costs are specified in Exhibit A or, otherwise, in a written
      document.

              


      

      
        	
                b.  

              	
                This
      is a Time and Materials contract.  This means that Spectrum will
      perform work on an hourly rate basis for engineering
      services.  Any needed materials will be handled as set forth in
      Section 3.e.

              


      

      
        	
                c.  

              	
                Estimates
      provided by Spectrum are just that, estimates.  Of necessity,
      estimates require that certain assumptions be made.  For
      instance, one assumption normally made is that the Client will provide
      needed data in a timely manner and that data will be
      accurate.  If any assumptions turn out to be wrong the resulting
      estimate may very well be wrong as well.  Even if assumptions
      are correct, the work may turn out to be more or less complex than
      originally thought.   Spectrum will use its best judgment
      in providing estimates but the parties acknowledge that Spectrum will be
      reimbursed for the total number of hours for which it provides services,
      whether that is more or less than or exactly as
  estimated.

              


      

      
        	
                d.  

              	
                The
      scope, structure, and any estimated costs are based on Spectrum’s
      understanding of the Project requirements as communicated by the
      Client.  If requirements or assumptions change, Spectrum will
      provide the Client with written recommendations for Project changes in the
      form of a VOR.  Spectrum will only proceed with major changes
      after Client has approved the appropriate VOR.  A Major Change
      is a variation in the Project requirements that is estimated by Spectrum
      to require more than eight hours of additional work.  If the
      variation in Project requirements requires the services of more than one
      person, the eight-hour threshold applies to the aggregated amount of
      estimated additional work.  A Minor Change shall be a variation
      in the Project requirements that is not a Major Change.  Minor
      changes do not require a VOR.

              


      

      
        	
                e.  

              	
                Spectrum
      will notify Client in writing when it reaches or is about to reach the
      most current estimate for the work being performed.  It will
      also provide a new estimate to complete the work.  Spectrum may
      then, at its option, suspend work until Client provides written
      authorization to proceed in accordance with the new
    estimate.

              


      

      
      

      
      

      
      

      
      

      
      

      
      

      
      

      
      

      
      

      
      

      
      

       

      
        
           


        

        
          2

          
            

          

        

        
           


        

      

       

      
        
        

        
          	
                  f.  

                	
                  Project
      non-labor expenses and materials costs (“Non-labor Costs”) not otherwise
      set out in a Project Document must be pre-approved by Client and are an
      added expense.  Non-labor Costs will be billed at cost plus
      15%.  Items that may be included in Non-labor Costs are travel
      expenses, third-party testing fees, fabrication expenses, certification
      expenses, hardware and materials.  Any required materials
      purchase over five thousand ($5000.00) dollars will be invoiced
      immediately.

                


        

        
          	
                  g.  

                	
                  Project
      Costs are exclusive of all federal, state, municipal or other government,
      excise, sales, use, occupational, or like taxes or customs, except for
      taxes on Spectrum’s net income.  Client agrees to pay any tax
      Spectrum may be required to collect or pay now or at any time in the
      future which are imposed upon the sale or delivery of the services
      provided.

                


        

        
          	
                  h.  

                	
                  Client
      may request credit terms.  If credit is approved on Client’s
      account, Spectrum will issue monthly progress billings with terms as
      indicated in the credit approval letter.  Client’s account may
      not exceed the credit or payment terms.  Overdue invoices are
      subject to expenses of collection, if any, and a finance charge of the
      lower of:

                


        

        
          	
                  i.  

                	
                  1.5%
      per month on any past-due balance, calculated per-diem, simple interest;
      or

                


        

        
          	
                  ii.  

                	
                  the
      maximum permitted by law,

                


        

        
          	
                  i.  

                	
                  Unless
      otherwise agreed to by Spectrum and prior to Spectrum initiating the
      Project, Client will tender payment equal to the estimated Project Costs
      for the first month of the Project. This down payment will apply to the
      final installments of progress
billing.

                


        

        
          	
                  j.  

                	
                  Accounts
      that are past due may be placed on hold and internal resources
      reallocated.

                


        

        
          	
                  k.  

                	
                  If
      no credit is requested or credit approval has not occurred, Client will
      make periodic estimated advance payments in amounts set by
      Spectrum.  The estimated advance payment and the payment of any
      outstanding balance on Client’s account must be received in order for work
      on the Project to proceed.  Project Costs will be charged
      against the Client’s account as they accrue.  A statement of
      Client’s account and Project Costs charged against it will be sent
      periodically or will be available upon reasonable
  request.

                


        

        
          	
                  l.  

                	
                  Accounts
      that exceed the credit terms or fail to maintain a positive balance will
      immediately be placed on hold and internal resources will be reallocated
      until the account is paid.  If internal resources are
      reallocated due to lack of funds or a past-due account balance, Spectrum
      cannot guarantee the date when internal resources will be available for
      allocation to the Project and any Project time estimates will be deemed
      withdrawn.

                


        

        
          	
                  m.  

                	
                  If
      Client terminates or suspends the Project, Client agrees to pay Spectrum
      for accrued Project Costs and for additional Project Costs incurred in
      terminating or suspending the
Project.

                


        

        
          	
                  n.  

                	
                  Spectrum
      will send final billings or a final statement immediately upon conclusion
      of the Project.  Credit balances remaining in Client’s account
      after final payment will be
refunded.

                


        

         

      

      
        	
                4.  

              	
                Deliverables, Testing
      And Acceptance.

              


      

      
        	
                a.  

              	
                Project
      Deliverables will be tested by Spectrum and Client according to the
      DVT.  If a Deliverable fails to pass a DVT requirement, the
      Deliverable will be revised and then retested.  The process of
      revision and retesting will continue iteratively until the Deliverable
      passes the applicable requirements.  Once a Deliverable passes
      the requirements of the DVT, it is deemed
  accepted.

              


      

      
        	
                b.  

              	
                When
      the Project is concluded, terminated or suspended and full Payment has
      been received by Spectrum, Spectrum will deliver to
  Client:

              


      

      
        	
                i.  

              	
                any
      remaining Deliverables;

              


      

      
        	
                ii.  

              	
                unused
      project materials purchased by Spectrum for the Project;
    and

              


      

      
        	
                iii.  

              	
                source
      code files.

              


      

      
        	
                c.  

              	
                Executables
      that are delivered during the course of the Project and prior to full
      payment of Project Costs may be trial versions only and may function only
      during the trial period.

              


      

       

      
        
           


        

        
          3

          
            

          

        

        
           


        

      

       

      
        	
                5.  

              	
                Intellectual Property
      Rights.

              


      

      
        	
                a.  

              	
                In
      connection with its performance of the Project, Spectrum may use certain
      tools, utilities, modules, techniques, processes, knowledge, data, code or
      other materials that Spectrum developed (or had developed) independently
      of any work on the Project (collectively, “Spectrum
      Technology”).  As between Spectrum and Client, Spectrum will
      retain sole and exclusive ownership of all Spectrum Technology, including
      all Intellectual Property Rights
therein.

              


      

      
        	
                b.  

              	
                In
      connection with its performance of the Project, Spectrum may produce
      software, Source Code, Object Code, or a set of Schematics that (a)
      implements hardware-level functionality or (b) consists of
      intermediate–level or low-level technology building blocks that provide
      basic functionality and consist of routines that may be used in different
      contexts and that are not unique to the deliverable and which shall remain
      the property Spectrum (“Intermediate
Code”).

              


      

      
        	
                c.  

              	
                Unless
      otherwise specified in the Project Documents, to the extent that Spectrum
      incorporates any Spectrum Technology or Intermediate Code into the
      Deliverables, Spectrum hereby grants to Client a non-exclusive,
      irrevocable, perpetual, royalty-free, fully paid-up, worldwide license to
      make, have made, use, offer to sell, sell, import, copy, modify, create
      derivative works based upon, distribute, sublicense, display, perform and
      transmit such Spectrum Technology and Intermediate Code in conjunction
      with Client’s commercial utilization of the
  Deliverables.

              


      

      
        	
                d.  

              	
                Excluding
      Spectrum Technology, Intermediate Code and any third party materials and
      information, all developments, discoveries and trade secrets conceived,
      discovered, developed or reduced to practice by Spectrum, solely or in
      collaboration with Client, that are created in connection with the Project
      shall be considered Project “Inventions”. An example of an Invention is
      the PCB layout for the project.  Once Spectrum receives full
      payment of all Project Costs associated with the Project phase in which an
      Invention was included as part of the Deliverable, that Invention will
      become the sole property of the Client.  Prior to receipt of
      payment, as described in the preceding sentence, any Project Inventions
      remain the sole property of
Spectrum.

              


      

       

      
        	
                6.  

              	
                Confidentiality.

              


      

      
        	
                a.  

              	
                Exhibit
      B (“Protection Of Proprietary Information”) is incorporated herein. In the
      event a separate agreement that protects the confidentiality of a Party’s
      Proprietary Information exists and is in effect, the terms of that
      separate agreement will control over Exhibit
B.

              


      

      
        	
                b.  

              	
                Spectrum
      does not consider the fact that it is doing work for the Client in and of
      itself to be confidential unless otherwise instructed by the
      Client.  If the Client does consider its relationship with
      Spectrum confidential, and so notifies Spectrum in writing, Spectrum will
      only disclose such information with prior approval of the
      Client.

              


      

      
        	
                c.  

              	
                Spectrum’s
      viability in the marketplace is dependent upon the presentation of past
      work performed.  To that end, Spectrum may make public a general
      description regarding its work for Client as an example of Spectrum’s
      value to the marketplace, once approved by
  Client.

              


      

       

      
        	
                7.  

              	
                Indemnification.  Client
      shall defend, indemnify and hold harmless Spectrum and its affiliated or
      controlling companies, and each of their respective directors, officers,
      employees, agents, or customers, from and against any and all claims,
      losses, damages, costs, (including legal fees and other litigation
      expenses), penalties, liabilities, judgments, amounts paid in settlement,
      fines and expenses arising out of or in connection with any claim against
      Spectrum that relate to work performed or actions taken in reliance on or
      conformity with information, documents, intellectual property, designs,
      specifications or instructions provided by
  Client.

              


      

       

      
        	
                8.  

              	
                Warranty and
      Limitation of Liability.  Spectrum warrants that it shall
      perform the Project in a workmanlike manner, customary in the
      industry.  Spectrum warrants that any hardware produced in
      conjunction with the Services rendered will perform to generally accepted
      industry standards.  THIS IS THE ONLY WARRANTY APPLICABLE TO THE
      WORK HEREUNDER.  ANY OTHER WARRANTIES OR REPRESENTATIONS
      EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES
      OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
      PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT ALLOWED
      BY LAW.  SPECTRUM DOES NOT WARRANT THAT THE PROJECT DELIVERABLES
      WILL MEET CUSTOMER NEEDS OR BE FREE FROM ERRORS.  THE FOREGOING
      EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND
      FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE
      SERVICES.  IN NO EVENT SHALL SPECTRUM BE LIABLE FOR ANY
      INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST REVENUE OR
      PROFITS.  SPECTRUM’S TOTAL LIABILITY HEREUNDER REGARDLESS OF THE
      FORUM OR FORM OF ACTION WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT
      UNDER THIS AGREEMENT.

              


      

       

      
        
           


        

        
          4

          
            

          

        

        
           


        

      

       

      
        	
                9.  

              	
                Employee
      Solicitation.

              


      

      
        	
                a.  

              	
                Client
      recognizes that Spectrum has a substantial investment in its employees and
      design service subcontractors. Client agrees that it will not, except as
      set forth in this Agreement, solicit for employment Spectrum employees or
      design service subcontractors for a period of two years after completion
      of the Project.

              


      

      
        	
                b.  

              	
                Spectrum
      recognizes that Client has a substantial investment in its employees.
      Spectrum agrees that it will not, except for activities related to this
      Agreement, solicit for employment Client employees for a period of two
      years after completion of the
Project.

              


      

       

      
        	
                10.  

              	
                Governing Law and
      Resolution of Disputes.

              


      

      
        	
                a.  

              	
                This
      Agreement shall be governed by the laws of Minnesota without regard to
      Minnesota’s conflict of laws rules.  The application of the UN
      Convention on Contracts for the International Sale of Goods is
      specifically excluded.

              


      

      
        	
                b.  

              	
                In
      any proceeding or action brought by one of the Parties to enforce or
      interpret the provisions of this Agreement, the prevailing Party will be
      entitled to be reimbursed by the other Party for its reasonable attorney
      fees and other legal costs, in addition to other relief to which that
      Party may be entitled.

              


      

       

      
        	
                11.  

              	
                General
      Provisions:

              


      

      
        	
                a.  

              	
                Assignment.  Except
      as stated in Section 5, Party may not sell,
      assign or delegate any rights or obligations under this Agreement to a
      third party, unless the entity receiving the assignment owns a controlling
      interest in the assigning Party.

              


      

      
        	
                b.  

              	
                Entire
      Agreement.  This Agreement constitutes the entire agreement
      between the Parties with respect to the subject matter herein and
      supersedes all prior written and oral agreements between the Parties
      regarding the subject matter herein. Any modifications or additions to
      this Agreement must be in writing and signed by both
    Parties.

              


      

      
        	
                c.  

              	
                Headings.  Headings
      used in this Agreement are for reference only and shall not be considered
      when interpreting this Agreement.

              


      

      
        	
                d.  

              	
                Impossibility
      of Performance.  With the exception of a requirement to make a
      payment, neither Party shall be liable for any damages or penalty for
      delay or for any other failure to perform in accordance with the terms and
      conditions of this Agreement if such delay or failure to perform is made
      impossible, in whole or in part, due to factors beyond the Party’s
      reasonable control, including, but not limited to, a) natural events, b)
      acts of government or c) acts of third parties, including criminal acts,
      civil unrest, labor disputes, transport and delivery disruption, supply
      chain disruptions, cybercrimes or
terrorism.

              


      

      
        	
                e.  

              	
                Notices.  Any
      notice or other communication required or permitted by this Agreement to
      be given to a Party shall be in writing and shall be deemed
      given:

              


      

      
        	
                i.  

              	
                When
      delivered, if delivered personally;

              


      

      
        	
                ii.  

              	
                When
      sent, if transmitted via facsimile (with receipt of confirmation of
      complete transmission) to the Party at the Party's facsimile number listed
      in this Agreement;

              


      

      
        	
                iii.  

              	
                When
      sent, if transmitted via email with a copy of the transmission to the
      other Party’s email address;

              


      

      
      

      
      

      
      

      
      

       

      
        
           


        

        
          5

          
            

          

        

        
           


        

      

      

        	
                iv.  

              	
                When
      received, if sent by commercial service that provides tracking and
      confirmation of receipt;

              


      

      
        
          	
                  v.  

                	
                  Three
      business days after posting with the US Postal Service, registered or
      certified mail (return receipt requested), for delivery within the United
      States;

                


        

        
          	
                  vi.  

                	
                  Seven
      business days after posting with the US Postal Service, registered or
      certified mail (return receipt requested), for delivery outside the United
      States;

                


        

        
          	
                  f.  

                	
                  Severability.  If
      any provision of this Agreement is found to be illegal or unenforceable,
      the other provisions shall remain effective and enforceable to the
      greatest extent permitted by law.

                


        

        
 

        Thank you
for the opportunity to work with your company.  Please sign below to
indicate your acceptance of the terms in this Agreement.

      

       

       

      Spectrum
Design Solutions

       

      _______________________________________________________

      Rodney P.
Landers

      VP of
Technical Sales

       

      Project
Authorization

       

      Estimated
Cost of Development

      


      
        	
                Phase
      I Labor Fees

              	
                $N/A

              
	
                Phase
      II Labor Fees

              	
                $184K

              
	
                Phase
      III Labor Fees

              	
                $103K

              
	
                Phase
      IV Labor Fees

              	
                $31K

              
	
                Phase
      IV Labor Fees

              	
                $6K

              


      

       

      No
materials have been included in this estimate.  Any materials
purchases to be made by Spectrum will require a signed MOR and/or VOR by
Client.

       
 

      On behalf
of Client,

      
The terms and conditions in this
Agreement are acknowledge and accepted, and Spectrum is authorized to perform
the Project.

      


      
        	 	 
      	 
      
	 	 
      	 
      
	 	
                Signature

              	 
      
	 	 
      	 
      
	 	 
      	 
      
	 	
                Printed
      Name

              	 
      
	 	 
      	 
      
	 	 
      	 
      
	 	
                Title

              	 
      
	 	 
      	 
      
	 	 
      	 
      
	 	
                Date

              	 
      


      

    

     

    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    Exhibit
A: Project Labor Costs

     

    
       

      
        	
                Technicians

              	 
      
	 	 
	
                Electrical
      Tech

              	
                $80.00/hr

              
	 	 
	
                Senior
      PCB Designer

              	
                $85.00/hr

              
	 
      	 
      
	 	 
	
                Standard
      Engineers

              	 
      
	 	 
	
                Associate
      Engineer/Designer

              	
                $90.00/hr

              
	 	 
	
                Engineer/Designer

              	
                $105.00/hr

              
	 	 
	
                Senior
      Engineer/Designer

              	
                $125.00/hr

              
	 
      	 
      
	 	 
	
                Wireless
      Engineers

              	 
      
	 	 
	
                Associate
      Wireless Engineer

              	
                $115.00/hr

              
	 	 
	
                Wireless
      Engineer

              	
                $130.00/hr

              
	 	 
	
                Senior
      Wireless Engineer

              	
                $150.00/hr

              
	 
      	 
      
	 	 
	
                ASIC
      Engineers

              	 
      
	 	 
	
                Associate
      ASIC Design Engineer

              	
                $115.00/hr

              
	 	 
	
                ASIC
      Design Engineer

              	
                $130.00/hr

              
	 	 
	
                Senior
      ASIC Design Engineer

              	
                $150.00/hr

              
	 
      	 
      
	 	 
	
                Project
      Management

              	 
      
	 	 
	
                Project
      Coordinator

              	
                $50.00/hr

              
	 	 
	
                Project
      Manager

              	
                $125.00/hr

              


      

       

      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      Exhibit
B

      Protection
Of Proprietary Information

       

      In order
to protect Proprietary Information, the Parties agree that:

      
        	
                1.  

              	
                For
      purposes of this Exhibit, “Agreement” shall refer to the document to which
      this Exhibit is attached. If any provision in this Exhibit conflicts with
      the express provisions of the Agreement, the Agreement will
      control.

              


      

      
        	
                2.  

              	
                Notwithstanding
      expiration of the Agreement, all Proprietary Information (as defined
      below) disclosed by a Party prior to expiration shall be treated in
      accordance with the terms of this Exhibit for so long as it is maintained
      in Proprietary Information status.

              


      

      
        	
                3.  

              	
                Proprietary
      Information (as defined below) may be used by the receiving Party for the
      purpose of performing and completing the Project. Proprietary Information
      includes any and all current and future product information, business
      information, identity of current or future business partners, technical or
      financial information including but not limited to software source code,
      reports, plans, documents, drawings, inventions, and proposals (a)
      disclosed in tangible form clearly labeled or identified in writing as
      “confidential”, “proprietary” or words of similar meaning at the time of
      disclosure or (b) disclosed in non-tangible form , identified as
      “confidential” or “proprietary” or  words of similar meaning at
      the time of disclosure, and summarized in a writing, designated as
      “confidential”, “proprietary” or words of similar meaning, and delivered
      to the other Party within thirty (30) days after
    disclosure.

              


      

      
        	
                4.  

              	
                Unless
      otherwise stated in the Agreement, Proprietary Information disclosed
      hereunder remains the property of the disclosing Party. Promptly after
      receipt of a written request from the disclosing Party, the receiving
      Party shall return all documents comprising Proprietary Information to the
      disclosing Party. All Proprietary Information is provided “AS IS” without
      warranty of any kind.  Neither Party is obligated to disclose or
      receive Proprietary Information.

              


      

      
        	
                5.  

              	
                This
      Agreement imposes no obligation upon a receiving Party with respect to
      Proprietary Information which (a) was in the possession of, or was known
      by, the receiving Party prior to its receipt from the disclosing Party,
      without an obligation to maintain its confidentiality; or (b) is or
      becomes publicly available through no fault of the receiving Party; or (c)
      is rightfully received by the receiving Party from a third Party without a
      duty of confidentiality; or (d) is disclosed by the disclosing Party to a
      third Party without a duty of confidentiality by the third Party;
      or  (e) is independently developed by the receiving Party
      without a breach of this Agreement; or becomes available to the receiving
      Party without a breach of this Agreement; or (f) is disclosed by the
      receiving Party with the disclosing Party’s prior written
      approval.  If a receiving Party is required by a government body
      or court of law to disclose Proprietary Information, the receiving Party
      agrees to give the disclosing Party prompt written notice sufficient to
      permit the disclosing Party to contest the disclosure or seek a protective
      order.

              


      

      
        	
                6.  

              	
                A
      receiving Party shall protect Proprietary Information by using the same
      degree of care, but no less than a reasonable degree of care, as it uses
      to protect its own similar Proprietary Information and to prevent (a) any
      use not authorized herein, (b) dissemination to any employee without a
      need to know, (c) communication to any third party or (d)
      publication.

              


      

      
        	
                7.  

              	
                Neither
      Party will be precluded from independently developing technology or
      pursuing business opportunities similar to those covered by this
      Agreement, as long as it does no without using the Proprietary Information
      of the other Party.

              


      

      
        	
                8.  

              	
                Each
      disclosing Party warrants that it has the right to disclose the
      Proprietary Information it discloses
hereunder.

              


      

      
        	
                9.  

              	
                A
      receiving Party will adhere to all applicable laws and regulations of the
      U.S. Export Administration and will not export or re-export any technical
      data or products received from a disclosing Party to any proscribed person
      or country listed in the U.S. Export Administration regulations unless
      properly authorized by the U.S.
Government.