ex106.htm


    Exhibit
      10.6

     

     

    NON-DISCLOSURE
      AGREEMENT

     

    THIS
      NON-DISCLOSURE AGREEMENT ("Agreement") is entered into
      this 2nd day of February, 2006 by and between Sun Energy Solar, Inc., a Delaware
      company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida
      34243, United States of America ("Company"), and Robert
      Fugerer, an individual residing in the state of Florida, and having an address
      at 4819 Sky Blue Drive, Lutz, FL
      33558("Recipient").

    


    RECITALS

    


    A.           Company
      and Recipient have initiated or intend to initiate discussions concerning the
      possibility of entering into a mutually advantageous business relationship
      whereby Recipient shall perform certain services on behalf of and for the
      benefit of Company (the
“LimitedPurpose”).

    


    B.           To
      facilitate the disclosure of certain Confidential Information (as defined below)
      by Company to Recipient, the parties desire to enter into this
      Agreement.

    


    AGREEMENT

    


    Now
      therefore, in
      consideration of the foregoing recitals, which are hereby incorporated into
      this
      Agreement by reference, and the mutual covenants and agreements contained
      herein, and other good and valuable consideration, the adequacy and receipt
      of
      which is hereby acknowledged, the parties agree as follows:

    


    1.  Definitions.  In
      addition to the terms
      defined elsewhere in this Agreement, the following terms shall have the
      following meanings:

     

    (a)  "Confidential
      Information" mean any information, whether written, oral, magnetic,
      photographic, optical, or other form, tangible or intangible, which has been,
      or
      after the date hereof will be, furnished or disclosed by Company, or its
      employees, consultants, representatives or agents, or which Recipient may have
      access to in connection with the Limited Purpose, which has been designated
      as
      being confidential, or which under the circumstances of disclosure reasonably
      ought to be treated as confidential, including but not limited to any
      information pertaining to or regarding the business, financial condition,
      pricing, sales, strategies, plans, customers, suppliers, properties and
      operations of Company (including such information visually available to
      Recipient at Company’s premises or Company presentations), and including without
      limitation all technical information of any nature whatsoever and all business
      plans, inventions, trade secrets, know-how, methodologies, concepts, techniques,
      discoveries, computer programs (including functionality and source code),
      processes, drawings, designs, research, plans or specifications relating
      thereto.  

     

    (b)  "Related
      Party" or "Related Parties" shall mean the directors,
      officers, employees, legal, tax and other professional advisors or consultants
      of Recipient, to the extent such entities or persons receive Confidential
      Information.

     

    2.  Non-Disclosure
      and Restricted Use of Confidential Information.

     

    (a)  Recipient
      shall keep in strictest confidence and trust all Confidential Information and,
      except upon the express prior written consent of Company, Recipient shall (i)
      not disclose any Confidential Information to any other entity or person, and
      (ii) use the Confidential Information solely as necessary to implement the
      Limited Purpose and not for Recipient’s own benefit or for the benefit of any
      other entity or person.  Recipient shall take all reasonable
      safeguards to prevent the disclosure or misuse of the Confidential Information,
      including without limitation such measures as the Recipient takes to safeguard
      its own confidential information, and shall not photocopy, transcribe or
      otherwise reproduce or modify any of the Confidential Information except as
      necessary to implement the Limited Purpose or otherwise upon the express written
      consent of the Company.

     

    
      
        
        

      

      
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    (b)  Recipient
      may disclose the Confidential Information to Related Parties on a "need to
      know"
      basis only.  Recipient shall inform all Related Parties who have
      access to the Confidential Information that such Confidential Information is
      confidential and proprietary to Company and shall require each such Related
      Party to agree to restrictions and obligations at least as strict as those
      set
      forth herein prior to disclosure of any Confidential
      Information.  Recipient shall diligently enforce any and all
      confidentiality agreements with Related Parties and shall be responsible and
      liable for any breach of the confidentiality obligations and restrictions on
      use
      set forth herein by any Related Party.

     

    (c)  The
      obligations of Recipient stated in the preceding paragraphs of this Section
      2
      shall not apply to information that (i) is or becomes generally known or
      available to the public through no wrongful act of the Recipient; (ii) was
      in
      the Recipient's possession at the time of disclosure or receipt, as evidenced
      and verified by prior tangible evidence, and was not acquired under an
      obligation of confidence; (iii) Recipient demonstrates was rightfully received
      by it from a third party after the time it was disclosed or obtained hereunder,
      provided that such third party was not under an obligation of confidence with
      the Company at the time of the third party’s disclosure to Recipient; (iv) is
      independently developed by Recipient without use of or reference to the
      Confidential Information and without breach of this Agreement, as evidenced
      and
      verified by prior tangible evidence; or (v) is required to be disclosed in
      a
      judicial or administrative proceeding, or as otherwise required to be disclosed
      by law, in any such case after all reasonable legal remedies for maintaining
      such information in confidence have been exhausted, including, but not limited
      to, giving Company as much advance notice of the possibility of such disclosure
      as practical so Company may attempt to stop such disclosure or obtain a
      protective order concerning such disclosure.  Recipient shall provide
      Company with written notice no less than five (5) days prior to the disclosure
      or use of any information of Company pursuant to this Section 2(c), subsections
      (i) through (v).

     

    (d)  Recipient
      shall (i) notify Company immediately of any unauthorized possession, use or
      knowledge of the Confidential Information, (ii) promptly furnish Company full
      details of such possession, use or knowledge, and (iii) cooperate with Company
      against third parties as may be deemed necessary by Company to protect its
      proprietary rights in the Confidential Information.

     

    3.  Term
      of Agreement.  This Agreement shall be effective as of the date of
      first disclosure of Confidential Information and may be terminated, without
      cause, with respect to future disclosures upon thirty (30) days prior written
      notice to the other party; provided however, that all rights and obligations
      accrued prior to such termination shall survive the termination of this
      Agreement.  Notwithstanding anything herein to the contrary, the
      nondisclosure obligations and restrictions on use with respect to any
      Confidential Information shall continue and bind Recipient for a period of
      five
      (5) years after the date of the last disclosure of Confidential Information
      hereunder, except that the nondisclosure obligations and restrictions on use
      with respect to any Confidential Information that constitutes a trade secret
      shall continue in effect for so long as the Confidential Information remains
      a
      trade secret under applicable law.  Any termination or expiration of
      this Agreement shall be without prejudice to the rights of Company against
      Recipient in respect of any claim or breach of any of the provisions of this
      Agreement.

     

    4.  Return
      of Confidential Information.  Recipient shall return to Company,
      or at Company’s request, destroy, and shall cause its Related Parties to return
      or destroy, the Confidential Information and all copies, transcriptions or
      other
      reproductions of, and any notes relating to, the Confidential Information,
      including without limitation, any memoranda, photocopies, computer files and
      libraries, computer-generated data or other similar repositories or archives,
      upon (i) the accomplishment of the purpose for which the Confidential
      Information was provided, or (ii) receipt of a written notice from Company
      requesting return or destruction of the Confidential Information, and upon
      request, shall provide to Company written certification signed by an officer
      of
      Recipient that it has complied with the foregoing.

     

    
      
        
        

      

      
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    5.  Ownership.

     

    (a)  All
      Confidential Information is and shall remain the property of
      Company.  By disclosing Confidential Information to Recipient, Company
      does not grant any express or implied right to Recipient to or under any
      patents, copyrights, trademarks, or trade secret information except as required
      to implement the Limited Purpose.  Company reserves without prejudice
      the ability to protect its rights under any such patents, copyrights,
      trademarks, or trade secrets.  Recipient shall not remove any
      proprietary, copyright, trade secret or other legend from any form of the
      Confidential Information.  Recipient shall, at the reasonable written
      request of Company and at Company’s expense, add to the Confidential Information
      any proprietary, copyright, trade secret or other legend or modify the same,
      which Company deems necessary to protect its intellectual property
      rights.  Without limiting the foregoing, Company shall retain all
      right, title, and interest in and to all forms of Confidential Information
      delivered or disclosed hereunder, including, without limitation, any patents,
      copyrights, trademarks, service marks, trade dress, logos, technical
      information, know-how, trade secrets, and any modifications or enhancements
      thereto (whether developed by Company, Recipient, any Related Party, or on
      either party’s behalf) or other intellectual property rights throughout the
      world, whether currently existing or hereafter developed or acquired, and all
      applications, disclosures and registrations with respect thereto (collectively,
      “IP Rights”).  If Recipient or any third party
      engaged by Recipient is deemed to have any ownership interest or rights in
      any
      IP Rights in the Confidential Information, then Recipient, for no additional
      consideration, shall assign and/or cause such third party to assign, and
      Recipient does hereby assign, all of such ownership interest and rights
      exclusively and irrevocably to Company.  Recipient shall cooperate
      with Company and shall cause to be executed all such instruments and documents
      as Company reasonably may request in connection with such assignments and shall
      do all other lawfully permitted acts reasonably required to further the intent
      of this Section 5; provided, however, this Agreement shall be effective
      regardless of whether any such additional documents are
      executed.  Recipient shall not dispute or contest, directly or
      indirectly, Company’s right, title and interest in or to, or the validity and
      enforceability of, any IP Rights in the Confidential Information (including
      the
      attempt to register or record the same in any
      jurisdiction).  Notwithstanding anything herein to the contrary, this
      Section 5 shall survive any termination or expiration of this
      Agreement.

     

    (b)  Recipient
      may from time to time provide suggestions, comments or other feedback
      ("Feedback") to Company with respect to the Confidential
      Information.  Both parties agree that all Feedback is and shall be
      given entirely voluntarily.  Recipient shall not give Feedback that is
      subject to license terms that seek to require any Company product, technology,
      service or documentation incorporating or derived from such Feedback, or any
      Company intellectual property, to be licensed or otherwise shared with any
      third
      party.  Recipient hereby acknowledges and agrees that all Feedback
      shall be deemed Confidential Information of Company, subject to the obligations
      of confidentiality and restricted use provided under this
      Agreement.  Furthermore, Recipient hereby acknowledges and agrees that
      Company shall have the exclusive right to use, disclose, reproduce, license
      or
      otherwise distribute, and exploit the Feedback as Company sees fit, entirely
      without obligation or restriction of any kind on account of intellectual
      property rights or otherwise.

     

    6.  Accuracy
      and Completeness of Confidential Information.  The disclosure of
      any Confidential Information to Recipient shall be solely in Company 's
      discretion.  This Agreement shall not require Company to disclose any
      information or to require the consummation of any transaction in connection
      with
      which the Confidential Information is disclosed.  Notwithstanding
      anything to the contrary, Company shall not be deemed to have made any
      representation or warranty to Recipient concerning the accuracy or completeness
      of any Confidential Information, except to the extent that such representation
      or warranty may be expressly set forth in a definitive written agreement
      concerning any subsequent business relationship.

     

    7.  Independent
      Contractors.  Neither this Agreement, nor any terms and conditions
      contained herein, will be construed as creating a partnership, joint venture,
      or
      agency relationship or as granting a franchise.  The parties are
      independent contractors each acting for its own account, and neither is
      authorized to make any commitment or representation, express or implied, on
      the
      other’s behalf.

     

    
      
        
        

      

      
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    8.  Remedies.  Recipient
      acknowledges and agrees that Company would be irreparably harmed if any of
      the
      Confidential Information were to be disclosed to third parties, or if any use
      were to be made of the Confidential Information other than that specified in
      this Agreement, and further agrees that Company shall have the right to seek
      and
      obtain injunctive relief upon any violation or threatened violation of the
      terms
      of this Agreement without the necessity of posting bond or other security,
      in
      addition to all other rights and remedies available to Company at law or in
      equity.  Any trade secrets of the Company will be entitled to all of
      the protections and benefits under the applicable Uniform Trade Secrets Act
      and
      any other applicable law.  If any information that Company deems to be
      a trade secret is found by a court of competent jurisdiction not to be a trade
      secret for purposes of this Agreement, such information nevertheless will be
      considered Confidential Information for purposes of this
      Agreement.  Recipient hereby waives any requirement that the Company
      submit proof of the economic value of any trade secret.

     

    9.  Indemnity.  Recipient
      shall indemnify Company for and against all damages, losses, claims, costs
      (including reasonable attorneys' fees), expenses and liabilities, suffered
      or
      incurred as a direct or indirect result of Recipient failing (whether
      intentionally or not) to fully comply with its covenants and obligations under
      this Agreement, including by virtue of any act of any Related
      Party.

     

    10.  Entire
      Agreement.  This Agreement sets forth the complete and exclusive
      understanding of the parties regarding the subject matter of this Agreement
      and
      supersedes all prior agreements, understandings, and communications, oral or
      written, between the parties regarding the subject matter of this
      Agreement.  This Agreement is not, however, intended to limit any
      rights that Company may have under trade secret, copyright, patent, trademark
      or
      other laws that may apply to the subject matter of this Agreement both during
      and after the term of this Agreement.

     

    11.  Amendments.  No
      amendment or waiver of any term of this Agreement shall be effective unless
      such
      amendment or waiver is in writing and is signed by each of the parties
      hereto.

     

    12.  Assignment.  Recipient
      shall not assign or transfer, in whole or in part and whether by contract or
      operation of law, this Agreement, or any rights or obligations hereunder,
      without the prior written consent of Company.  Subject to the
      foregoing, this Agreement shall be binding upon, and shall inure to the benefit
      of, the parties and their respective representatives, successors and
      assigns.

     

    13.  Attorneys'
      Fees.  If any party shall commence any action or proceeding
      against the other in order to enforce the provisions of this Agreement, or
      to
      recover damages as the result of the alleged breach of any of the provisions
      of
      this Agreement, the prevailing party therein shall be entitled to recover all
      reasonable costs incurred in connection therewith against the party commencing
      such action or the party who has breached this Agreement, as the case may be,
      including reasonable attorneys' fees.

     

    14.  Applicable
      Law.  This Agreement shall be governed by and construed in
      accordance with the laws of the State of Florida, other than such laws, rules,
      regulations and case law that would result in the application of the laws of
      a
      jurisdiction other than the State of Florida.  Any suit to enforce any
      provision of this Agreement, or arising out of or based upon this Agreement,
      shall be brought exclusively in the United States District Court for the
      District of Florida or the District Court in and for the
      city of Sarasota and the County of Sarasota, State of Florida.  Each
      party hereby agrees that such courts shall have in personam jurisdiction
      and venue with respect to such party, and each party hereby submits to the
in
      personam jurisdiction and venue of such courts.

     

    15.  Severability.  If
      any provision of the Agreement shall be held by a court competent jurisdiction
      to be illegal, invalid or unenforceable, the parties hereby authorize the court
      to modify such provision to the minimum extent necessary to effectuate the
      parties’ intentions and the remaining provisions shall remain in full force and
      effect.

     

    
      
        
        

      

      
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    [SIGNATURE
      PAGE FOLLOWS]

     

     

    This
      Agreement has been executed as of
      the date first set forth above.

    


    


    


                                            Sun
      Energy Solar,
      Inc..

    


                                            By:
/s/Carl
      L.
      Smith                                           

    


                                            Title:
      CEO                                                      

    


                                            Date:
July
      10,
      2006                                                                

    


    


    


                                            Recipient

    


                                            Signature:
      /s/
Robert
      Fugerer                                                                           

    


                                            Printed:
Robert
      Fugerer                                                                

    


                                            Date:
February
      18,
      2006