Non-Disclosure_Agreement_M205_42015.docx

NON-USE AND NON-DISCLOSURE AGREEMENT FOR M205

The undersigned, ______________________ (hereafter referred to as the “requestor”), an authorized representative of ____________________________ (Organization Name & Address), (which Organization is hereby referred to as the “Recipient Organization”), requested the U.S. Government (hereby referred to as “USG”) to provide him(her) with technical drawings, data and technical information, (hereafter collectively referred to as “DATA”) of CAPCO, Inc. 1328 Winters Ave, Grand Junction, CO 81501-3800, (hereafter referred to as the “Originator”), in which the Government’s use, modification, reproduction, release, performance, display or disclosure rights are restricted. The DATA refers to the M205 Technical Data, as is defined in paragraphs 2.6 and 2.7 of M205 Negotiated License Agreement under contract number W15QKN-10-D-0003 between Originator and the U.S. Government. Recipient’s purpose for requesting the DATA is to manufacture M205 devices for the U.S. Government. In consideration for the USG agreeing to furnish such DATA to Recipient, the Recipient hereby agrees to obey all conditions in such license agreement, and also agrees to the following conditions of release to Recipient:

(1) Recipient shall not release or divulge any of the DATA to others. Recipient will use the DATA only for Recipient’s performance under Recipient’s contract number “TBD” with the USG (resulting from solicitation number W52H1B622400HK). Otherwise, Recipient shall not use, release, or disclose such DATA. Each person to whom any such DATA will be supplied shall be required to first sign a copy of this Non-Use and Non-Disclosure Agreement (NDA). Recipient agrees that it will not remove from any of the DATA furnished under this NDA, any restrictive markings, including but not limited to proprietary and limited rights legends of Originator and of subcontractors of the Originator. All restrictive markings and legends on the DATA will be reproduced verbatim on any copy of DATA and documents, including reproductions containing any portions of such DATA that bore such restrictive markings or legends. The legends shall thereafter be maintained on such reproduced DATA. Recipient will preserve restrictive and export control, and limited distribution legends of the U.S. Government as may be placed on the DATA. Recipient shall obey all federal export control requirements, even if Recipient or Recipient’s plant is not physically located in the United States. The Recipient shall promptly notify the Originator of the execution of this NDA and identify the Originator’s DATA that has been or will be provided to the Recipient, the date and place the DATA were or will be received, and the name and address of the Government office that has provided or will provide the DATA.

(2) The Recipient agrees to adopt and establish operating procedures and physical security measures designed to protect these DATA from unauthorized use and from inadvertent release or disclosure to unauthorized third parties.

(3) The Recipient agrees to accept these DATA “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligations the Government may have regarding DATA specified in a contract for the performance of that contract.

(4) The recipient agrees to indemnify and hold harmless the U.S. Government, its agents, and employees from every claim or liability, including attorney’s fees, court costs, and expenses arising out of, or in any way related to the misuse or unauthorized modification, reproduction, release, performance, display or disclosure of DATA received from the Government with restrictive legends by the Recipient or any person to whom the Recipient has released or disclosed the DATA.

(5) The Recipient is executing this NDA for the benefit of the Originator. The Originator is a third party beneficiary of this NDA who, in addition to any other rights it may have, is intended to have the rights of direct action against the Recipient or any other person to whom the Recipient has released or disclosed the DATA, to seek damages for any breach of this NDA or to otherwise enforce this NDA.

(6) The recipient agrees to destroy these DATA, and all copies of the DATA in its possession, no later than 30 days after the date given in paragraph (7) of this NDA and to have all persons to whom it released the DATA do so by that date, and to notify the Originator that the DATA have been destroyed.

(7) The use of the said DATA under this NDA shall be effective for the period commencing with the Recipients execution of this NDA and ending 11/6/2016 (or upon completion of performance, whichever is sooner). However, all obligations imposed upon Recipient by this NDA shall nonetheless survive beyond such use ending date.

Recipients Business Name/Address/Phone

By: ______________________________ Date: __________________ (Authorized Representative) (Representative’s Typed Name and Title) (Representative’s Home Address) Email Address: _____________________________________