Non Disclosure Agreement

The parties wish to explore a business opportunity of mutual interest and in connection with this opportunity, each party may disclose (“Disclosing Party”) to the other party (“Receiving Party”) certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential
The “Receiving Party” understands that the “Disclosing Party” has disclosed or may disclose information relating to the Disclosing Party’s business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which to the extent previously, presently, or subsequently disclosed to the Receiving Party is hereinafter referred to as “Proprietary Information” of the Disclosing Party.
“Proprietary Information” also includes the manner in which any such information may be combined with other information, or synthesized or used by the Disclosing Party.
Notwithstanding the foregoing, nothing will be considered “Proprietary Information” of the Disclosing Party unless either (i) it is first disclosed in tangible form and is conspicuously marked “Confidential’ or “Proprietary” or the like or (ii) it is first disclosed in non-tangible form and orally identified as confidential at the time of disclosure and is summarized and delivered in tangible form conspicuously marked “Confidential” or “Proprietary” or the like within thirty (30) days of the original disclosure.
1. In consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the Receiving Party hereby agrees: (i) to hold the Disclosing Party’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its confidential materials), (ii) not to divulge any such Proprietary Information or any information derived there from to any third person (except consultants, subject to the conditions stated below), (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally whether to enter into the currently contemplated business relationship with the Disclosing Party, (iv) not to remove or export from the United States or re-export any such Proprietary Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under applicable U.S. and foreign export laws and regulations, including, without limitation, those of the U.S. Department of Commerce, and (v) not to copy or reverse engineer any such Proprietary Information.
Any employee or consultant given access to any such Proprietary Information must have a legitimate “need to know” and shall be similarly bound in writing for the Disclosing Party’s benefit. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii), and (v) shall not apply with respect to any information that the Receiving Party can document (i) is or (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee) becomes generally available to the public, or (ii) was properly in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party, or (v) was or is provided by the Disclosing Party to third parties without similar restrictions.
The Receiving Party may make disclosures required by court order provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding.
2. Immediately upon (i) the decision by either party not to enter into the business relationship contemplated by paragraph 1, or (ii) a request by the Disclosing Party at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party all Proprietary Information of the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. The Receiving Party understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Disclosing Party, which shall be disclosed if at all solely at the option of the Disclosing Party (in particular, but without limitation, any disclosure subject to compliance with export control laws and regulations), or (ii) requires the Disclosing Party to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.
3. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business relationship contemplated by this Agreement.
4. This Agreement shall apply to any Confidential Information disclosed to a Receiving Party after the Effective Date. The obligations of the parties set forth in Section 1 shall survive and continue in full force and effect for a period of five (5) years from termination of this Agreement, except with respect to trade secret information, which shall remain subject to the confidentiality provisions for so long as the Disclosing Party maintains the trade secret protections.
5. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief without the posting of a bond in addition to whatever remedies it might have at law. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver.

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