premise: NON-DISCLOSURE AGREEMENT
  THIS NON-DISCLOSURE AGREEMENT (the "Agreement") made this 18th day of November, 2005, by and between Yale University School of Medicine, a nonprofit, educational corporation, organized and existing under the laws of the State of Connecticut, with an office located at Yale University School of Medicine, having its principal office at 47 College Street, Suite 203, New Haven, Connecticut (hereinafter, the "Pilot Site") and Advanced BioPhotonics Inc., a corporation organized and existing under the laws of the State of Delaware , with its principal office at 125 Wilbur Place, Suite 120, Bohemia, New York (hereinafter, the "ABP") and the parties hereby agree as follows:
  1. The parties intend to pursue a Pilot Study to test its functionality, performance and reliability to determine the applicability of this technology to plastic surgery applications, which will be carried out by Dr. Yuan Liu utilizing ABP's BioScanIR(R) system consisting of the following elements: (i) system hardware components: infrared camera, mobile cart, computer workstation, camera power supply, universal power management unit, temperature controller and black body; (ii) proprietary DIRI(R) software for control of system components, data acquisition, data processing, data archiving and reporting; and (iii) applications software packages (hereinafter, collectively referred to as the "System") as further defined in the Pilot Site Agreement between the parties (hereinafter referred to as the "Pilot Study"), and in the course of which the parties may exchange Proprietary Information, as hereinafter defined. The parties further desire to protect such Proprietary Information from unauthorized disclosure and use under the terms and conditions herein.
  2. For purposes of this Agreement, Proprietary Information shall mean, without limitation, computer programs, code, algorithms, names and expertise of employees and consultants, formulas, processes, inventions, schematics and other technical, business, financial, pricing and product development plans, forecasts and strategies, together with any analysis or tangible embodiments of the Disclosing Party's Proprietary Information created by the Receiving Party. Proprietary Information shall be designated as such in writing by the Disclosing Party by appropriate legend or stamp, or, if first disclosed in a non-written or other non-tangible form, Proprietary Information shall be identified by the Disclosing Party at the time of disclosure as being disclosed in confidence and shall be reduced to tangible form and marked as confidential or proprietary and such tangible form shall be delivered to the Receiving Party within thirty (30) days after the date of first disclosure. During the above stated thirty-day period such Proprietary Information shall be protected in accordance with the terms of this Agreement. Proprietary Information shall further include any information or data that evidence, record, derive from or reveal any Proprietary Information. Notwithstanding the foregoing, the components of the System are hereby deemed to be Proprietary Information and as such are protected in accordance with the terms of this Agreement.
  3. The Receiving Party shall preserve Proprietary Information received from the Disclosing Party in confidence by exercising at least the same degree of care used to restrict disclosure and use of the Receiving Party's own similar confidential information, but at least a reasonable degree of care, and shall refrain from disclosing such Propriety Information to its employees not involved in the Pilot Study, its consultants, representatives, or agents ( the "Affiliates") or to any third party without written authorization from the Disclosing Party. This Agreement shall be construed to bind and impose obligations upon any other divisions, subsidiaries, business units, and/or affiliated companies of the Receiving Party that receive access to the Proprietary Information of the Disclosing Party. The Receiving Party shall ensure that all copies of Proprietary Information stored electronically on its server, tape backup or on the hard drives of computers used by its Affiliates in connection with the Pilot Study have been permanently deleted and Receiving Party shall certify such deletion in writing to the Disclosing Party. Receiving Party will ensure that all of its Affiliates sign a Non-Disclosure Agreement containing confidentiality restrictions at least as restrictive as those set forth in this Agreement.
  4. The Receiving Party shall use Proprietary Information received from the Disclosing Party solely for the purposes set forth in Paragraph 1. Any other use of the Proprietary Information is explicitly forbidden. This restriction shall survive termination of this Agreement.
  5. This Agreement shall not restrict disclosure or use of Proprietary Information that is:
  A. Now, or hereafter becomes, through no act or failure to act on the part of Receiving Party, generally known or available; or B. Known by the Receiving Party at the time of receiving such information as evidenced by records of the Receiving Party; or
  C. Hereafter furnished to the Receiving Party, as a matter of right and without restriction on disclosure, by a third party who had not received any Proprietary Information from the Disclosing Party or the Receiving Party; or
  D. is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or
  E. Independently developed by the Receiving Party by persons who did not have access to the Disclosing Party's information and without breach of this Agreement.
  6. The Receiving Party may disclose the Disclosing Party's Proprietary Information to the extent required to be disclosed pursuant to final court order; provided, however, that the Receiving Party: (i) immediately notifies the Disclosing Party upon its receipt of any court order or other document that requests or demands disclosure of Proprietary Information; and (ii) assert the privileged and confidential nature of the Proprietary Information against the third party seeking disclosure; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure of the Proprietary Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Proprietary Information, but only to the extent necessary to legally comply with such compelled disclosure and to have such required disclosure made under a protective secrecy order.
  7. The Receiving Party shall notify the Disclosing Party in writing immediately upon discovery of any unauthorized use or disclosure of Proprietary Information, and will reasonably cooperate with the Disclosing Party to regain possession of the Proprietary Information and prevent its further unauthorized use.
  8. Proprietary Information shall remain the property of the originating party. Neither this Agreement nor any exchange of Proprietary Information hereunder shall be construed as granting any right or license under any copyright, invention, or patent now or hereafter owned or controlled by either party. Each party shall use and rely upon Proprietary Information received from the other at its sole risk and expense.
  9. All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be sent by facsimile, overnight courier or registered airmail, postage prepaid, addressed as follows:
  For Pilot Site:
  Yale Plastic and Reconstructive Surgery
  Department of Surgery
  Yale School of Medicine
  333 Cedar Street (BB-330)
  P.O. Box 208041 New Haven, Connecticut 06520-8041
  Attention: Dr. Yuan Liu/Dr. John Persing
  Facsimile: 203-785-5714
  For ABP:
  Advanced BioPhotonics Inc.
  125 Wilbur Place, Suite 120
  Bohemia, New York 11716
  Attention: Kevin Healy, General Counsel
  Facsimile: 631-244-7960
  Either party hereto may change its address by a notice given to the other party hereto in the manner set forth above. Notice given by mail shall be considered to have been given five (5) days after the mailing thereof, and notices given by facsimile shall be considered to have been given when received.
  10. This Agreement may be terminated by either party upon thirty (30) days written notice to the other. Unless thus earlier terminated, this Agreement shall terminate upon completion of the Pilot Study. The confidentiality obligations under this Agreement will survive termination of this Agreement for a period of three (3) years.
  11. Upon termination, the Receiving Party shall cease use of the Disclosing Party's Proprietary Information, and shall destroy all Proprietary Information, including without limitation, reports, analyses, e-mails or any other derivative embodiments of the Proprietary Information, , together with all copies thereof, in its possession or control and furnish the Disclosing Party with written certification of destruction. Alternatively, at the request of the Disclosing Party, the Receiving Party shall return all such Proprietary Information, including without limitation, reports, analyses, e-mails or any other derivative embodiments of the Proprietary Information, together with all copies thereof to the Disclosing Party. The Receiving Party shall ensure that all copies of Proprietary Information stored electronically on its server, tape backup or on the hard drives of computers used by Receiving Party's Affiliates in connection with the Pilot Study have been permanently deleted and Receiving Party shall certify such deletion in writing to the Disclosing Party.
  12. Each party shall bear all costs and expenses incurred by it under or in connection with this Agreement, provided, however, that the prevailing party in any litigation commenced to enforce or construe the terms of this Agreement shall be entitled to collect from the other party the costs of such litigation, including reasonable attorneys' fees. Nothing in this Agreement shall be construed as an obligation by either party to enter a contract, subcontract, or other business relationship with the other party in connection with the Pilot Study.
  13. The Receiving Party hereby acknowledges and agrees that in the event of any breach of this Agreement by the Receiving Party, including, without limitation, the actual or threatened disclosure of the Disclosing Party's Proprietary Information without the prior express written consent of the Disclosing Party, the Disclosing Party will suffer an irreparable injury, such that no remedy at law will afford the Disclosing Party with adequate protection against, or appropriate compensation for, such injury. The Receiving Party hereby agrees that the Disclosing Party may be entitled to specific performance of the Receiving Party's obligations under this Agreement, as well as further relief (injunctive or otherwise) as may be granted by a court of competent jurisdiction.
  14. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Connecticut and shall be enforceable in the courts of that state.
  15. This Agreement contains the entire understanding between the parties, superseding all prior or contemporaneous communications, agreements and understandings between the parties with respect to the exchange of Proprietary Information in connection with the Pilot Study.
  16. If any part, term or provision of this Agreement shall be held illegal, unenforceable, or in conflict with international law or any law of a federal, state or local government having jurisdiction over this Agreement, the validity of the remaining portions of this Agreement shall not be affected thereby.
  17. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
  IN WITNESS WHEREOF, each party has caused this Agreement to be executed in duplicate originals by its duly authorized representative.
  YALE UNIVERSITY ADVANCED BIOPHOTONICS INC.
  SCHOOL OF MEDICINE
  By: By:
  ---------------------------------- -----------------------------
  Name: Penrhyn E. Cook Name: Denis A. O'Connor
  Title: Executive Director Title: President and CEO
  Grant and Contract Administration
  YALE UNIVERSITY
  SCHOOL OF MEDICINE
  By:
  Name: Dr. John Persing
  Title: Principal Investigator
  By:
  Name: Dr. Yuan Liu
  Title: Principal Investigator
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