Confidential and Proprietary Information

(a) "Confidential and Proprietary Information" as referred to in this Agreement shall mean all information not in the public domain or otherwise excluded pursuant to Paragraph 2 below, in any form emanating from either Party or their agents, licensees or suppliers, and relating to either Party or any of their services or products, which is used in the business of either Party. Confidential and Proprietary Information may include, but is not limited to, all technology, trade secrets, know-how, data, designs, drawings, formulas, technical information; research and development programs; product specifications; manufacturing methods, procedures, and processes; computer software and output; marketing data, customer lists, sales and customer information; financial and cost data, estimates, and projections; product, marketing, and business plans and strategies; together with analyses, studies, and any other documents or compilations of business information whatsoever, whether written or unwritten, which contain or otherwise reflect any such information, data or material.

(b) Any information which is expressly designated as confidential or proprietary information shall be treated as confidential or proprietary information, but information not so expressly designated shall still be treated as confidential and proprietary information so long as the information falls within the definition contained in this Agreement, or is of such a nature or has been disclosed in such a manner that it should be obvious to the receiving party that such is claimed as confidential. Without limiting the foregoing, the Parties expressly agree that all information disclosed by one Party to another relating to: (1) Renewable power generation, solar PV inverters and other electronics, renewable energy data monitoring or components thereof, equipment used in connection with solar electric, wind, hydro or fuel cells components and each Party's business plans in connection with renewable energy systems; (2) distributed power generation systems or components thereof, equipment used in connection with distributed power generation systems and components and each Party's business plans in connection with distributed power generation systems and components is Confidential and Proprietary Information, whether furnished orally or in writing or gathered by inspection, and regardless of whether specifically identified as 'Confidential' or 'Proprietary'.

Exclusions. Confidential and Proprietary Information shall not include

(a) Information that is in the public domain at the time of disclosure, or thereafter comes into the public domain (other than by breach of this Agreement by the recipient); or (b) Information properly in the possession of the receiving Party prior to its disclosure by the disclosing Party, or which is independently developed without resort to the disclosed Confidential and Proprietary Information and substantiated by documentation; or (c) Information which is disclosed to either Party in good faith by a third party unaffiliated with either Party with the legal right to make such disclosure; or (d) Information for which either Party by written agreement authorizes unrestricted use.

Notice of Disclosure

If either Party believes any information provided by the other Party to be within the exceptions provided in paragraph 2 above, at least (10) days prior to disclosing such information to any third party, such Party shall provide the other Party with written notice of intent to disclose, identifying the information to be disclosed and the basis for the claim that the information falls within any such exception.

Title

Each Party shall retain title to all Confidential and Proprietary Information that is disclosed in any form or manner to the other Party. Each Party represents that it has the legal right to make disclosures under this Agreement.

No License

Nothing in this Agreement is intended to grant license rights under any patent or copyright of either Party. Each Party, and its agents, employees, officers or representatives shall not, without the other Party’s prior written consent, apply for any patent, copyright or design registration in respect of Confidential and Proprietary Information furnished by the other Party or any invention or design contained therein or based thereon. Except as otherwise provided, nothing contained in this Agreement shall be construed as granting to or conferring upon either Party any express or implied rights, by license, estoppels or otherwise, to any Confidential and Proprietary Information or to any invention or discovery or patent which is made or acquired prior to or after the date of this Agreement based on any Confidential and Proprietary Information disclosed under this Agreement.

Use of Confidential Information

Each Party is authorized to use the Confidential and Proprietary Information of the other party solely for the purpose of collaborating on joint projects, development efforts, and/or business activities. Neither party shall reverse engineer, disassemble or de-compile any prototypes, software, or other tangible objects that embody the other party’s Confidential Information and that are provided to the party hereunder.

Restriction on Disclosure

All Confidential and Proprietary Information disclosed in any form or manner by either Party to the other party on or after the date of this agreement regarding the subjects identified in Paragraph 1 shall be held in strict confidence by the other Party and will not be duplicated, used, or exploited for any purpose other than activities directed at the furtherance of the goals as mutually agreed by the Parties, and shall be disclosed to only those employees of either Party who are directly concerned with such activities and have a bona fide need to use such information. Confidential and Proprietary Information furnished by one Party to the other Party may not be disclosed in any form or manner to a third party without first obtaining prior written approval from the furnishing Party.

Term

This Agreement shall commence on the date of this Agreement and shall continue for seven (7) years with respect to any disclosure of Confidential or Propriety Information. At such time, the Agreement shall expire, unless terminated earlier by either party, at any time, on ten (10) days written notice. Upon expiration or termination of this Agreement, the Undersigned shall immediately cease any and all disclosures or uses of Confidential or Proprietary Information, and at the request of either party, the Undersigned shall return all Confidential or Proprietary Information, and all copies thereof within one (1) month.

Survival

The obligations of the Undersigned with respect to disclosure and use of Confidential and Proprietary Information acquired from the other party shall survive expiration or termination of this Agreement and shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party.

Return of Confidential and Proprietary Information

All Confidential and Proprietary Information shall promptly be returned upon the other Party’s written request, and unless otherwise agreed, shall be returned no later than the termination date of this Agreement.

Advertising

Each party agrees that it will not use the other party’s name in any way for advertising or promotional purposes without first obtaining prior written consent of the other party.

Remedies

Each Party acknowledges that the other will be irreparably damaged in the event that any of the terms of this Agreement are violated and agrees that such terms shall be enforceable through (i) issuance of an injunction restraining the unauthorized copying, duplication, use or disclosure of any Confidential and Proprietary Information furnished to or acquired by either Party or any of its employees, agents or representatives, or (ii) any other equitable remedies, which shall be cumulative with and not exclusive to any other remedy. Such remedies shall be in addition to any other rights or remedies available under applicable law.

Governing Law

The laws and regulations of the State of Massachusetts in effect at the time of the execution of this Agreement, without regard to any provisions of such State’s conflicts of laws, thereof shall govern the validity and interpretation of this Agreement, and each paragraph and part to the contrary. Each Party hereby consents to the jurisdiction of the federal and/or state courts of the State of Massachusetts over any dispute arising from this Agreement and/or the alleged disclosure of any Confidential and Proprietary Information provided by the other Party.

Severability

If any term, provision, covenant, or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated.

Relationship of Parties

This Agreement is not intended to and shall not be construed as creating a joint venture, partnership or other formal business arrangement between the Parties. Neither Party shall have the authority to bind or otherwise obligate the other party. Each Party represents that the individual signing below has the requisite authority to legally bind the Party represented by that individual.

No Waiver

The failure of either Party to enforce any rights resulting from breach of any provisions of this Agreement by the other Party shall not be deemed a waiver of any rights relating to a subsequent breach of such provision or of any other right hereunder.

Entire Agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all other communications, oral or written, relating to the subject matter hereof.