Technology Showcase

I do hereby grant permission to Delta ModTech to photograph, video, record or audio record me, and to use the images and sounds thus obtained as part of or in connection with the production of Delta ModTech’s publications and audio visual presentations in any available format or medium. I understand that these materials will be used for the purpose of informing and educating the public about Delta ModTech’s service, products, and programs. I further understand and agree that these photographic or video or audio images may be publicly distributed and displayed in connection with Delta ModTech’s programs and activities.

I further waive any rights and release any claims or causes of action I may have to object to, prevent or seek damages for the release, publication or use of the above images or audio and any claims or causes of action I may have based on, arising from or related to invasion of privacy.

NONDISCLOSURE AGREEMENT

This NONDISCLOSURE AGREEMENT (this “Agreement”), effective as of date this Agreement is executed or acknowledged by the Recipient (the “Effective Date”), is between DELTA INDUSTRIAL SERVICES, INC., a Minnesota corporation, and its Affiliates and Subsidiaries (“Disclosing Party”) and Name (“Recipient”) (collectively, the “Parties”).

RECITALS

A.     The Parties wish to explore a potential business relationship and for that purpose the Parties may exchange certain information that is non-public, confidential or proprietary in nature;

B.      In order to facilitate the exchange of information, each of the Parties has agreed to protect and maintain the confidentiality of any Confidential Information disclosed by the other Party, subject to the terms and conditions of this Agreement; and

C.      This Agreement is a standard form agreement of Disclosing Party intended to be subordinate to any prior written agreement between the Parties the provisions of which were negotiated equally by each of the Parties.

AGREEMENT

Accordingly, the Parties agree as follows:

1.                   Interpretation; Order of Agreements. Notwithstanding any other provision in this Agreement, if Recipient is subject to a previous, validly executed written confidentiality or nondisclosure agreement, which is enforceable against Recipient with respect to the Confidential Information (such prior written agreement, a “Prior NDA”), then the provisions of that Prior NDA take precedence in interpretation over the provisions of this Agreement and any provision of this Agreement which conflicts with any provision of that Prior NDA will not be enforceable against the Parties; provided, however, that Recipient shall keep confidential, as provided in the Prior NDA, any Confidential Information disclosed to Recipient on the Effective Date of this Agreement or during the five (5) business days following the Effective Date, for the longer of the term or restrictive period provided in the Prior NDA and five (5) years from the Effective Date of this Agreement.

2.                   Definitions. As used in this Agreement, the following terms have the meanings stated:

1.                   “Affiliates” means, with respect to any Party, those entities controlled by, in control of, or under common control.

2.                   “Confidential Information” means information that is furnished either prior to or after the date of this Agreement, whether orally or in written, graphic, machine readable or other tangible form, or which is obtained from inspection of tangible objects, prototypes, or other materials made available, which would reasonably be expected to be confidential, including, without limitation, the following: customer information; information protected by privacy and disclosure laws; marketing and development plans; research and development; business plans; policies; contracts; financial information; matters of a technical nature, “know how,” discoveries, inventions, ideas, software and programs; access codes and source codes; trade secretes; processes and techniques; product plans, products, services, equipment, markets, inventions, discoveries, patent applications, ideas, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and all other information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself; provided, however, that “Confidential Information” does not include Public Information.

3.                   “Permitted Use” means exploring a potential business relationship between the Parties hereto and the use that is necessary to satisfy the Recipient’s obligations to the Discloser pursuant to any contract to which the Parties to this Agreement are both bound.

4.                   “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization of any kind, including, without limitation, a governmental authority or agency.

5.                   “Public Information” means (i) information that is obtained by Recipient or its Representatives on a non-confidential basis from a source other than the Disclosing Party; provided that such source is not known, or should not reasonably have been known, by Recipient or its Representatives to be bound by obligations of confidentiality with respect to such information; (ii) information that is or becomes generally available to the public other than as a result of a disclosure by Recipient or its Representatives in violation of the provisions of this Agreement; or (iii) information that is developed independently by Recipient or its Representatives without use of the Confidential Information.

6.                   “Representatives” means affiliates, directors, officers, employees, managers, members, partners, representatives or agents, including, without limitation, attorneys, consultants and financial advisors.

7.                   “Subsidiary” means a company that is owned, controlled by, or under common ownership or common control with, DELTA INDUSTRIAL SERVICES, INC.

2.                   Permitted Use; Non-Disclosure of Confidential Information. Recipient shall only use Confidential Information for the Permitted Use and shall treat all Confidential Information disclosed to it by Disclosing Party as secret and confidential and will protect and safeguard such Confidential Information from any disclosure using at least the same level of care as Recipient uses to protect and safeguard its own Confidential Information. Except as provided in Sections 4 or 5, Recipient further agrees not to disclose any Confidential Information without the prior written consent of Disclosing Party.

3.                   Permitted Disclosure. Notwithstanding the provisions of Section 3, Recipient may disclose the Confidential Information to its Representatives who (a) need to know such information in order to facilitate the business relationship between the parties; (b) are informed of the confidential nature of the Confidential Information; and (c) agree to maintain the confidentiality of the Confidential Information and are under an obligation to maintain the confidentiality of such Confidential Information no less restrictive than the terms of this Agreement. Recipient agrees to be fully responsible for any breach of the confidentiality provisions of this Agreement by any of its Representatives.

4.                   Compelled Disclosure. Notwithstanding the provisions of Section 4, if Recipient or any of its Representatives are required to disclose any Confidential Information pursuant to any applicable law, rule, regulation, subpoena, court order, similar judicial process, regulatory agency or stock exchange rule, Recipient will, to the extent permitted by law, promptly notify Disclosing Party of any such requirement so that Disclosing Party, at its sole cost and expense, may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If such order is not obtained, or Disclosing Party waives compliance with the provisions of this Agreement, Recipient and its Representatives will disclose only that portion of the Confidential Information which they are requested or required by the above person or process to so disclose. In the event that Recipient and its Representatives shall have complied fully with the provisions of this Section 5, Disclosing Party agrees that such disclosure may be made by Recipient and its Representatives without any liability hereunder.

5.                   Term of this Agreement. Recipient’s obligations under this Agreement shall continue as to each item of Confidential Information until such item becomes Public Information, but in no event for less than five (5) years after the date of the item’s disclosure by Disclosing Party.

6.                   Return or Destruction of Confidential Information. Upon request, Recipient agrees to return all documents and tangible objects containing or representing Confidential Information, and to destroy all copies, recordings, or extracts thereof or notes derived therefrom, within ten (10) days of the request.

7.                   Indemnification. Recipient will indemnify and hold harmless Disclosing Party and its Representatives from and against any and all loss, damage, costs or expenses (including, without limitation, costs and reasonable attorneys’ fees) resulting from any impermissible use or disclosure of Confidential Information by Recipient or its Representatives in violation of this Agreement.

8.                   Data Breach. In the event that Recipient or its Representatives have any reason to believe that any data breach involving Confidential Information has occurred, Recipient shall: (a) immediately notify Disclosing Party of such data breach; and (b) immediately take appropriate action to remedy the data breach. For purposes of this Section 9, a data breach includes, but is not limited to, any corruption or loss of Confidential Information or unauthorized access to Confidential Information, whether electronic or otherwise.

9.                   Disclaimer. ALL CONFIDENTIAL INFORMATION IS PROVIDED BY DISCLOSING PARTY “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ITS ACCURACY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10.               Remedies. Recipient agrees that Disclosing Party would be damaged irreparably by Recipient’s failure to perform its obligations hereunder; accordingly, Disclosing Party shall be entitled to enforce this Agreement by seeking injunctive and other available relief, including, but not limited to, specific performance. This right shall be in addition to any other remedy, equitable or otherwise, which such party may have, including without limitation any award of incidental, consequential, compensatory or other damages.

11.               Integration. This Agreement contains and constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements and understandings, whether written or oral, of the Parties.

12.               Waiver. No failure or delay by Disclosing Party in exercising any right, power or privilege under this Agreement will operate as a waiver of the right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement will be cumulative and not exclusive of any rights or remedies provided by law.

13.               Governing Law and Venue. This Agreement will be governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to conflicts of laws provisions. The Parties expressly agree that all litigation or other legal proceedings arising under, relating or pursuant to this Agreement shall be brought in the State or Federal courts located in the State of Minnesota, and the Parties hereby irrevocably submit to the exclusive personal and subject matter jurisdiction and venue of such courts and agree to waive the defense of an inconvenient forum.

14.               Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by facsimile transmission or by electronic delivery of a “.pdf” file shall create a valid and binding obligation of such Party with the same force and effect as if such facsimile or “.pdf” signature were an original thereof.

15.               Successors and Assigns. No Party may assign any of its rights, interests or obligations under this Agreement without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties.

16.               Attorney Fees and Costs. In the event a Party brings any legal action in connection with a threatened or actual breach of this Agreement, or the interpretation or enforcement of this Agreement, the prevailing Party shall be entitled to recover from the other Party, in addition to all other damages, its costs and reasonable attorneys’ fees.

17.               Intellectual Property Rights; Ownership; No Rights Granted. All Confidential Information shall remain the property of the Disclosing Party. Nothing in this Agreement shall be construed as granting any rights or licenses whatsoever under any patent, copyright, or other intellectual property right of either party, nor shall this Agreement grant either Party any rights in or to the other Party’s Confidential Information other than the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the Relationship.

IN WITNESS WHEREOF, the parties, intending to be legally bound, have each caused this Agreement to be executed by their undersigned duly authorized representatives, s

ACKNOWLEDGED AND AGREED: Date