NDA: Confidentiality and Non-Disclosure Agreement

This Agreement is made and entered into between El Toro, LLC (El Toro) and you (collectively “the parties”). In order to promote discussions with respect to possible business relationships and transactions involving them, the parties will provide Confidential Information to each other, in writing and orally, concerning their products, technologies, business plans, capabilities, and other matters. In order to permit discussions while protecting their confidential information, the parties agree:

1. Confidentiality. For purposes of this Agreement, "Confidential Information" shall mean all confidential, trade secret, and proprietary information of one party obtained by the other party (i) through the working arrangement between the parties, regardless of whether a formal "disclosure" event occurs, (ii) disclosed in writing and marked or otherwise indicated orally or in writing as Confidential Information, (iii) disclosed orally and identified as Confidential Information at the time of disclosure, (iv) which the receiving party knows or has reason to know is Confidential Information. Information will not be considered Confidential Information if it is (i) in the public domain without breach of this Agreement, (ii) developed independently, with no effort or thought of circumventing or contravening the rights of the party owning the information, or (iii) lawfully received, without breach of a nondisclosure agreement, from a third party under no restriction on disclosure.

2. Nondisclosure. Each party will (i) maintain the other party's Confidential Information in confidence, (ii) not use such Confidential Information other than in connection with the arrangements being discussed under this Agreement, (iii) not disclose this information within the party's company except on a "need to know basis" as necessary to the performance of the arrangements being discussed under this Agreement and direct those persons receiving Confidential Information to treat it confidentially and not to use it other than in connection with the arrangements being discussed under this agreement, and (iv) not, in any event disclose such information to any person or entity outside the party's Company without the express, written, informed consent of the other party.

3. Disclosure Compelled by Law. In the event that a party is compelled to disclose Confidential Information by valid order of a court or other government entity with the authority to compel the disclosure of such information, that party will notify the party whose Confidential Information has been compelled in writing as promptly as possible (and prior to making any disclosure, if possible), will seek confidential treatment, and will assist the other party in seeking confidential treatment, of the Confidential Information by the compelling authority.

4. Return of Confidential Information. Within fifteen (15) days of receipt of a written request, a party will return to the requesting party all of the requesting party's Confidential Information that it has in its possession in physical form, including all copies of the information, including all hard copies and electronic copies.

5. Irreparable Harm. The parties acknowledge that the unauthorized disclosure or use of any Confidential Information could cause irreparable harm and significant injury, the extent and consequence of which may be difficult to assess. Therefore, the parties agree that if a party believes its Confidential Information may be, has been disclosed contrary to this Agreement, that party has the right to seek an immediate injunction or temporary restraining order enjoining any, or any further, breach of this Agreement.

6. Survival of Rights and Obligations. The parties agree that their rights and obligations under this Agreement will not be terminated by termination of discussions between them or by the failure of the parties to agree to an ongoing business arrangement. The parties also agree that, if they do reach agreement on an ongoing business arrangement, their right and obligations under this Agreement will govern that ongoing arrangement, and will survive even after any such arrangement is terminated.

7. Governing Law. This Agreement shall be for a period of two years governed by and construed in accordance with the laws of the State of Kentucky, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws of Kentucky. The parties agree that any court of competent subject matter jurisdiction in Louisville, Kentucky may exercise personal jurisdiction over the parties hereto for purposes of resolving any dispute arising out of this Agreement, and that the such courts are the exclusive venue for determination of any equitable remedies thereunder.

8. Entire Agreement. This Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof and may not be modified, altered, or changed except by an instrument in writing executed by the parties. This Agreement does not create any relationship between the Parties other than the specific obligations set forth.

IN WITNESS WHEREOF, the parties have duly executed the Agreement to be effective on the earliest of the dates of signing, as indicated in the signature blocks, or the date when a party was first exposed to Confidential Information of the other party.