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MUTUAL NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT

THIS MUTUAL NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT (this “Agreement”) is entered into between _____ herein as (the “Company”) and __________ (the “Other Partys”) ______ as of (the “Effective Date”), to protect the confidentiality of certain confidential information of the Company or of the Other Party to be disclosed under this Agreement solely for use in evaluating or pursuing a business relationship between the parties (the “Permitted Use”) and to allow the Parties (as defined herein) to pursue business transactions between the Parties and one or more other parties identified by the Parties. The Company and the Other Party may be referred to herein individually as a “Party” and collectively as the “Parties.”

1. As used herein, the “Confidential Information” of a Party will mean, subject to Section 2, any and all technical and non-technical information disclosed by such Party (the “Disclosing Party”) the "Company" to the other Party (the “Receiving Party”), which may include without limitation: (a) patent and patent applications, (b) trade secrets, and (c) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the Parties, such as information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and marketing plans.

2. If the Confidential Information is embodied in tangible material (such as documents, drawings, pictures, graphics, software, hardware, graphs, charts, or disks), it will be all considered as “Confidential”. If the Confidential Information is disclosed orally or visually, it will be identified as such at the time of disclosure.

3. Subject to Section 4, the Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Confidential Information of the Disclosing Party for no purpose other than the Permitted Use. The Receiving Party will limit access to the Confidential Information of the Disclosing Party to only those of the Receiving Party’s employees or authorized representatives having a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein.

4. The Receiving Party will not have any obligations under this Agreement with respect to a specific portion of the Confidential Information of the Disclosing Party if such Receiving Party can demonstrate with competent evidence that such portion of Confidential Information:
(a) was in the public domain at the time it was disclosed to the Receiving Party;
(b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party;
(c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; or
(d) was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party.

5. Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.

6. The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party.

7. Non-Circumvention. Defined terms used in this Section 7 shall have the meanings set forth in Section 7(b).
(a) The Receiving Party represents, covenants and warrants to the Disclosing Party that (i) it shall make no disclosure of the Contacts involved or to be involved, to any person, corporation, or entity not a party to a Transaction or potential Transaction, (ii) the directors, employees, agents, officers, or consultants of the Receiving Party will not, without receiving prior written authorization from the Disclosing Party, contact, or permit or cause others to contact any Contacts, agents or representatives introduced to the Receiving Party or them by the Disclosing Party, except in conjunction with the Disclosing Party and (iii) it will not enter into any agreement, whether orally or in writing, or attempt to enter into any agreement, with any Contact the purpose of which is to circumvent or undermine Disclosing Party’s relationship with any Contacts, including without limitation to avoid paying any or all of any brokerage commission or other fees that are or may be payable to the Disclosing Party pursuant to its activities as a broker, finder or manager with respect to any Transaction or potential Transaction.
(b) As used herein, the “Contacts” of a Party shall include: (a) the knowledge, efforts, opportunities, and procedures disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or that the Receiving Party may learn from the Disclosing Party and its principals with respect to a Transaction or potential Transaction, and (b) names, addresses, telephone numbers, fax numbers, e-mail addresses and other contact information of individuals or entities, other than those of the Receiving Party, involved, directly or indirectly, with a Transaction or potential Transaction. It is understood and agreed that such Contacts of the Disclosing Party are and shall be recognized as exclusive and valuable Contacts, and the Receiving Party will not attempt to contact, deal with, utilize or disclose or in any manner solicit the Contacts introduced by the Disclosing Party, during the term hereof, in any manner, without the prior written consent of the Disclosing Party. The Receiving Party hereby agrees, warrants and covenants not to, in anyway whatsoever, circumvent or attempt to circumvent the Disclosing Party in any Transaction arranged by the Disclosing Party.

8. Upon termination or expiration of this Agreement, or upon written request of either Party, each Party will promptly return to the Disclosing Party or destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof.

9. The Receiving Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the Disclosing Party, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither Receiving Party will make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the Disclosing Party.

10. The Receiving Party will not reproduce the Confidential Information of the Disclosing Party in any form except as required to accomplish the intent of this Agreement. Any reproduction by a Receiving Party of any Confidential Information of the Disclosing Party will remain the property of the Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party.

11. This Agreement will terminate five (5) years after the Effective Date, or may be terminated by either Party at any time upon thirty (30) days written notice to the other Party. Each Party’s obligations under this Agreement will survive termination of this Agreement and will be binding upon such Party’s heirs, successors, and assigns. Each Party’s obligations hereunder will continue in full force and effect with respect to non-technical sales, marketing, and financial Confidential Information of the other Party for five (5) year(s) from the date of disclosure of such Confidential Information. Each Party’s obligations with respect to all technical Confidential Information of the other Party will terminate only pursuant to Section 4.

12. This Agreement will be governed by and construed in accordance with the laws of California without reference to conflict of laws principles. This Agreement may not be amended except by a writing signed by both Parties. Each Party hereby submits to the jurisdiction of the state and federal courts located in the California, USA for any action or proceeding relating to this agreement, and expressly waives any objection it may have to such jurisdiction or the convenience of such forum. Should any part, term or condition hereof be declared illegal or unenforceable, the validity of the remaining portions or provisions of this Agreement shall not be affected thereby, and the illegal or unenforceable portions shall be reformed without further action by the Parties to the extent necessary to render such portion enforceable, while leaving the remaining portions of this Agreement intact. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof to preclude any exercise or further exercise thereof or the exercise of any other such right, power or privilege. The Parties acknowledge that any breach of the covenants contained in this Agreement, including without limitation the covenants contained in Paragraphs 1 and 2 hereof, may cause irreparable damage to the other Party and hereby agree that each Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. In the event of any such breach or any threatened breach, each Party shall be entitled to have an injunction or restraining order issued by any competent court of equity, without bond, enjoining and restricting the other Party from breaching or continuing any such breach. Such remedy shall not be deemed to be the exclusive remedy, but shall be in addition to all other remedies available at law or equity to each Party.

13. Each Party acknowledges that its breach of this Agreement may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

14. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

15. Neither Party will communicate any information to the other Party in violation of the proprietary rights of any third party.

16. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party.

17. The Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party under this Agreement or any product utilizing any such data to any country for which US Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

18. All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices will be sent to the addresses set forth at the end of this Agreement or such other address as either Party may specify in writing.

19. This agreement shall not apply to or in any way limit or restrict the Parties hereto from continuing to conduct business (other than with respect to a Transaction or potential Transaction) with any person, partnership, firm, corporation and/or legal entity with whom a documented past or current business relationship exists or has existed.

20. This Agreement and each Party's obligations hereunder shall be binding on each Party's assigns and successors and shall inure to the benefit of each other Party's assigns and successors.

21. This Agreement may be executed in multiple counterparts and shall have the same effect as if executed as one document. The Parties acknowledge and agree that execution of this Agreement binds each Party so executing regardless of whether or not other listed signatories execute the Agreement. Facsimile signatures shall be deemed original signatures.

22. Throughout the duration of this agreement and for a period of years thereafter, the parties mutually agree not to engage in any disparaging, negative, or harmful remarks, whether spoken, written, or otherwise communicated, about the other party, its affiliates, employees, products, or services. This prohibition encompasses public statements, social media posts, interviews, and any other form of communication that may adversely affect the reputation or goodwill of the other party. In the event of a breach of this non-disparagement provision, the aggrieved party may seek injunctive relief to prevent further harm and may pursue damages for any loss suffered as a result of the breach. This clause does not, however, restrict the parties from providing truthful information as required by law or legal process.*

IN WITNESS WHEREOF, the Parties have caused this Mutual Non-Disclosure and Non-Circumvention Agreement to be executed as of the Effective Date.

Effective this day (mm/dd/yyyy): Date _______________

Disclosing Party:

Print Name:

_____

Address:

_____

Receiving Party:

Print Name:

______

Address:

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