Mutual Non-Disclosure Agreement

This Mutual Non-Disclosure Agreement (“Agreement”) is entered into by and between the “Company” (as above) and “WaveMaker” (as above). In order to protect Confidential Information that may be disclosed between them, the Company and WaveMaker agree as follows:

1. 1. Scope of Agreement: This Agreement governs all disclosures of Confidential Information by either party (“Discloser”) to the other (“Recipient”) in the course of pursing Business Purpose (as above).
   2. Definition of Confidential Information: “Confidential Information” means information that is not publicly available regarding the Discloser’s respective products and services (including without limitation technology, software, architecture, designs, systems, processes, user interfaces and hierarchies); plans for future products and services; product and service pricing; financial information; customer information; internal processes, markets, and all business information that is not generally known to, and cannot be readily ascertained by others, and which has actual or potential economic value, which is designated in writing as confidential at the time of disclosure or within thirty (30) days of disclosure, or which a reasonable person under the circumstances would consider confidential.
   3. Use of Confidential Information: The Recipient may use Confidential Information only to conduct the Business Purpose. Recipient will not disclose Confidential Information to third parties except those directors, officers, employees, consultants and agents who need to know the Confidential Information to carry out the Business Purpose.
   4. Protection of Confidential Information: For 3 years from the date of its receipt of Confidential Information, each Recipient shall use the same degree of care as the Recipient uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care to prevent the use of such Confidential Information for any purpose other than that described in Section 3 above, and to prevent the dissemination or publication of the Confidential Information to any person other than Recipient personnel who need access to the Confidential Information to accomplish that purpose.
   5. Exclusions: This Agreement imposes no obligation upon a Recipient with respect to the Confidential Information which the Recipient can establish:
      1. was in the Recipient’s possession before receipt from the Discloser;
      2. is or becomes a matter of public knowledge through no fault of the Recipient;
      3. is rightfully received by the Recipient form a third party without duty of confidentiality;
      4. is independently developed by the Recipient without the use of the Confidential Information; is disclosed under operation of law; or
      5. is disclosed by the Recipient with the Discloser’s prior written approval. In the event the Recipient becomes legally compelled to disclose any Confidential Information, it will so notify the Discloser Party in writing in advance so the Discloser may seek a protective order or other remedy. If the Discloser cannot obtain such a protective order or other remedy, the Recipient will furnish only that portion of the Confidential Information which it is advised by counsel as legally required. Upon Discloser’s request, Recipient shall promptly return or destroy Disclosure’s Confidential Information, including copies. The return of such Confidential Information shall not absolve the Recipient of its obligations under this Agreement.
   6. Proprietary Rights: Neither party to this Agreement acquires any intellectual property rights or other rights under this Agreement. The Recipient shall not remove any notice or legend from any Confidential Information.
   7. Export Administration: Each party to this Agreement agrees to comply fully with all relevant export laws and regulations of the United States to assure that no Confidential Information or any portion thereof is exported, directly or indirectly, in violation of United States law.
   8. No Warranties; Remedies: NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
   9. Recipient agrees that a breach of this Agreement may cause irreparable harm to the Discloser for which there is no adequate remedy at law, and therefore Discloser shall be entitled to seek injunctive relief without the necessity of posting a bond, to prevent or cease any breach or threatened breach of this Agreement.
   10. Independent Development: Nothing herein will prohibit or restrict the Recipient’s right to develop, use or market products or services similar to or competitive with those of the Discloser, provided, however, that the foregoing does not relieve either party from their obligations under this Agreement. The Discloser acknowledges that the Recipient may already possess or have developed or market products, services, concepts, or ideas similar to or competitive with those of the Discloser contained in the Confidential Information.
   11. General: This Agreement sets forth the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous agreements concerning such Confidential Information, whether written or oral. All additions or modifications to this Agreement must be made in writing and must be signed by both parties. This Agreement is made under and shall be construed according to the laws of the State of California This Agreement does not obligate either party to purchase or otherwise acquire any service or item from the other party. The parties do not intend that any agency or partnership relationship be created between them by this Agreement. This Agreement may be signed in counterparts, and electronically scanned (pdf) or faxed signatures shall be treated as originals.

Template: 141-0000 Mutual Non-Disclosure Agreement