Print Form MUTUAL NON-DISCLOSURE AGREEMENT This Mutual Non-Disclosure Agreement ("Agreement") is made and entered into as of the ____ day of _____________, 20__, by and between Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Delaware corporation, having a place of business at Merrill Lynch World Headquarters, North Tower, 4 World Financial Center, New York, New York 10080, its parent company, its and its parent company's affiliated and subsidiary companies ("Merrill Lynch") and ______________________________, a ___ corporation, having its principal place of business at _________________________________ ("Vendor") and describes the rights and obligations of each party hereto with respect to certain information to be provided by each party to the other party regarding discussions and other communications relating to Merrill Lynch's technical and business requirements and whether Vendor's products and services satisfy these technical and business requirements. For purposes of this Agreement, "information" may, in addition to written and printed materials, include, without limitation, software, computer tapes, videotapes, and all other information regardless of the medium in which it is contained. NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto hereby agree as follows: 1. Each party agrees to regard and preserve as confidential all information provided by the other party as described above, as well as all nonpublic information related to the business, s ystems, opera tions, strategic plans, clients, pricing, methods, processes, financial data, programs, and/or products o f the other par ty, its parent company and subsidiaries and/or affiliated companies (herein “Confidential Information”). Neither party shall, without first obtaining the other party’s prior written consent, disclose to any person, firm or enterprise, except as expressly permitted herein, the Confidential Information of the other party. Each party agrees to limit its disclosure of the other party’s Confidential Information to as few persons as possible and only to those persons with a need to know that are its (or its affiliate or subsidiary companies) employees , directors , officers , advisory committee members , attorneys , accountants , or independent contractors or agents performing services on behalf of it (or its affiliate or subsidiary companies) and subject to an obligation to keep such information confidential. The standard of care to be employed by each party with respect to the protection of the other party’s Confidential Information shall be the standard of care employed by a reasonable person in protecting confidential information. 2. “Confidential Information” shall not include information that (i) is already rightfully known to a party at the time it is obtained from the other party, free from any obligation to keep such information confidential; (ii) is or becomes publicly known or available through no wrongful act of a party; (iii) is rightfully received from a third party without restriction and without breach of this Agreement; (iv) is contained in, or is capable of being discovered through examination of, publicly available records or products; (v) is required to be disclosed by law , regulation, or court order (provided that the party subject to such law, regulation or court order shall notify the other party of any such use or requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties) or (vi) is developed by a party without the use of any proprietary, non-public information provided by the other party under this Agreement. 3. Notwithstanding the foregoing, if Merrill Lynch or any of its affiliated or subsidiary companies participate as an underwriter or placement agent in a public offering or private placement of securities of Vendor or any affiliate of Vendor, Merrill Lynch and its affiliates shall be entitled (i) to retain all Vendor Confidential Information and to use such information, without any liability to the Vendor, (a) in accordance with Merrill Lynch legal and contractual obligations as an underwriter or placement agent, as the case may be, of such securities and (b) to assert, as Merrill Lynch may deem necessary or appropriate, any defenses available to it or to any of its affiliated or subsidiary companies under state or federal securities laws in connection with such underwriting or private placement, including, without limitation, due diligence defenses and (ii) disclose in a Registration Statement or other offering document any information that is required to be stated or is necessary to make the statements therein not misleading. 4. Each party represents that the Confidential Information disclosed by it hereunder is the proprietary, non-public information of the disclosing party, the disclosure shall not violate federal or state laws or the rights of any third party. The disclosing party shall indemnify, hold harmless and defend the recipient for any third party claims, actions and/or allegations that, if proven true, would result in a violation of the above representation, provided that the recipient has not breached any provision of this Agreement. For the purposes of this Article, “claim” shall include any communication from a third party. 5. Nothing herein shall obligate Merrill Lynch to purchase any services or products of any kind from Vendor or any of its affiliates, or to enter into any future agreements or business arrangements of any kind with Vendor or any of its affiliates. 6. The parties hereto each agree that upon the request of the party having proprietary rights to the Confidential Information referenced herein, the other party in possession of tangible materials containing the other party’s Confidential Information shall promptly return such materials (and any copies, extracts, and summaries thereof) to the requesting party, or destroy such materials (and any copies, extracts , and summaries thereof) and shall further provide the other party with written confirmation of same. Notwithstanding the foregoing, Merrill Lynch shall have an ongoing right to use any proposal prepared by Vendor for Merrill Lynch at no cost and Merrill Lynch shall not be obligated to return or destroy any proposal prepared by Vendor for Merrill Lynch. Furthermore, the party in possession of tangible materials containing the other party’s Confidential Information may retain one archive copy, subject to the provisions of this Agreement, which can be used solely for regulatory purposes and not for operational business purposes. 7. Each party acknowledges that in the event of a breach or threatened breach of this Agreement, the non-breaching party may have no adequate remedy in money or damages, and, accordingly, shall be entitled to an injunction against such breach. However, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or a prohibition against any other legal or equitable remedies in the event of a breach of a provision of this Agreement. 8. Neither party shall use, in connection with this Agreement or anyransaction contemplated by this Agreement, the name of the other or its parent company or any subsidiary or affiliated company in any publicity release, advertising, or other publicly distributed or posted materials (including, without limitation, customer lists), without securing the prior written consent of the party whose name is to be used. Merrill Lynch’s Communications and Public Affairs Department is the only department authorized to issue such written consent. 9. Any notices or other communications required or permitted to be given, made or delivered under this Agreement shall be in writing and shall be sufficiently given or made if delivered personally or sent by overnight courier service or sent by certified mail, return receipt requested to Merrill Lynch at: Merrill Lynch Technology Sourcing, 95 Greene Street, 7th Floor, Jersey City, New Jersey 07302, Attention: Director, Technology Sourcing, with a copy to Merrill Lynch & Co., 222 Broadway, 17th Floor, New York, New York 10038, Attention : Corporate Law – Technology Group, and to Vendor at: Vendor’s address set forth above, to the attention of Vendor’s signatory below, or to such other address or addressee as either party may from time to time designate to the other by written notice, and shall be deemed given upon actual receipt. 2 10. No modification, amendment, supplement to, or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by the party against whom enforcement thereof is sought. A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to exercise any option which is herein provided, or to require at any time performance of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions of this Agreement. 11. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable provision(s), which being valid, legal, and enforceable, comes closest to the intention of the parties underlying the invalid, illegal, or unenforceable provision(s). 12. This Agreement constitutes the entire agreement between the parties for the transfer of the Confidential Information referenced herein for the purpose described herein and supersedes all previous agreements, promises, proposals, representations, understandings, and negotiations, whether written or oral, between the parties respecting said Confidential Information. 13. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the parties shall be governed by the laws of the State of New York, without regard to conflict of law principles. Exclusive jurisdiction for any litigation arising out of this Agreement or its subject matter shall only be any federal or state court in the City of New York, State of New York, to whose jurisdiction the parties hereby subject themselves. In any such proceeding the parties hereby waive any objection to forum including, without limitation, any objection based on lack of personal jurisdiction, improper venue, or inconvenient forum. 14. As used in this Section, the term “personal information” means: (i) any information relating to an identified individual; or (ii) any “nonpublic personal information” as such term is defined under the Title V of the U.S. Gramm - Leach-Bliley Act, 15 U.S.C. § 6801 et seq., and the rules and regulations issued thereunder. The obligations set forth in this Section shall survive termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, with respect to any personal information delivered or made available to Vendor under or pursuant to this Agreement, Vendor agrees that: i. under this Agreement, as between Merrill Lynch and Vendor, Merrill Lynch owns and retains all rights in and to all such personal information and Vendor has no interest (and shall never assert any such interest) in or to any such personal information; ii. it shall act only on the instructions of Merrill Lynch in relation to the processing of such personal information and shall use and process such personal information solely for the purposes of carrying out its obligations under this Agreement and for no other purposes; iii. it shall take appropriate technical and organizational measures to protect the personal information against accidental, unauthorized or unlawful access, disclosure, destruction, loss or alteration, and provide Merrill Lynch with information regarding such measures upon the reasonable request of Merrill Lynch and shall promptly provide Merrill Lynch with information regarding any security breach related to such personal information; 3 15. iv. it shall process such personal information in accordance with relevant data protection legislation and with any guidance or recommendation issued by a relevant data protection authority; v. it shall keep such personal information confidential and not disclose it or make it available to any third party without: (a) Merrill Lynch's prior written consent; and (b) entering into an agreement in writing with the third party pursuant to which such third party agrees to comply with, and treat such personal information in accordance with, this Section and, in the case of any instruction to disclose personal information pursuant to a legal or regulatory obligation or any request from a relevant data protection or other authority, it shall cooperate with Merrill Lynch, limit any disclosure to the minimum required by law and, to the extent possible, request that such information be kept confidential; vi. it shall, on termination of this Agreement, return to Merrill Lynch all such personal information and any copies or, at Merrill Lynch's request, destroy such information and copies (and certify that this has been done) unless any legislation prevents it from doing so in which case it warrants to keep such personal information and copies confidential and no longer actively to process them; and vii. it shall not, except as explicitly instructed in writing by Merrill Lynch, in relation to any Web site work preformed under any agreement with Merrill Lynch, allow the collection of any personal information through the use of any software, including through the use of cookies, apploets, Web bug or beacons or similar technologies. The term of this Agreement shall be two (2) years from the date first written above. 16. Except for the confidentiality obligations set forth in Section 14 above, the confidentiality obligations for information provided by either party within the two (2) year term of this Agreement shall remain in effect for a period of two (2) years from the disclosure of the information. The provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 shall survive the termination of this Agreement. IN WITNESS WHEREOF, the parties hereto, each acting with proper authority, have executed this Agreement as of the day, month, and year first above written. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED Company Name Signature Sandye R. Taylor Please Print Name Please Print Name Director, GS&PS Please Print Title Please Print Title Date 4