Mutual Non-Disclosure Agreement

This Mutual Non-Disclosure Agreement (“Agreement”) is between the entity accepting this Agreement (“you”) and Automox Inc. (“Automox”). It is effective as of the date that you accept the Agreement.

This Agreement allows the parties to exchange Confidential Information necessary to evaluate a potential business opportunity of mutual interest (“Purpose”).

“Confidential Information” means all non-public information disclosed or made available by one party (the “Discloser”) to the other (the “Recipient”) that is identified as confidential or is provided under circumstances reasonably indicating its confidentiality. Confidential Information includes source code, pricing, security program, financial information, product roadmaps, and business strategies, whether or not marked confidential.

The Recipient will protect the Discloser's Confidential Information in the same manner as the Recipient protects its own Confidential Information of a similar nature, but in any event with not less than reasonable care. The Recipient must only use the Discloser's Confidential Information for the Purpose.

The Recipient's confidentiality obligations under section 3 will not apply to any Confidential Information that the Recipient can show: (A) was rightfully known to the Recipient without any obligation of confidentiality at the time of disclosure; (B) was disclosed to the Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (C) was at the time of disclosure, or through no fault of the Recipient has become, generally available to the public; or (D) was independently developed by the Recipient without access to or use of the Discloser's Confidential Information.

The Recipient may disclose Confidential Information only to its officers, directors, employees, professional advisors, contractors, agents or representatives (each a “Permitted Recipient”) who have a need to know the Confidential Information and who are under a similar duty of confidentiality. The Recipient is liable for any act or omission by a Permitted Recipient that would constitute a breach if the Permitted Recipient were party to this Agreement.
The Recipient may also disclose Confidential Information to the extent required by law or regulation. In such case, the Recipient will notify the Discloser as soon as practicable, if permitted by law or regulation, to enable Discloser to prevent or limit such disclosure, and will only disclose that portion of the Confidential Information that is legally required to be disclosed.

Upon the Discloser's request, the Recipient will promptly destroy all Confidential Information, including all copies. The Recipient is not required to return or destroy Confidential Information to the extent it is securely stored in archival or computer back-up systems (A) to meet applicable legal or regulatory obligations, or (B) in accordance with bona fide record retention policies. Any such Confidential Information will remain subject to this Agreement until deletion.

Neither this Agreement nor any discussions or disclosures made in connection with the Purpose is a commitment by either party to any business relationship, contract or future dealing.

The Confidential Information is provided “AS IS” without warranty of any kind. The Discloser disclaims all warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement).

All Confidential Information remains the sole and exclusive property of the Discloser. This Agreement does not grant any rights to the Recipient, by license or otherwise, in or to any Confidential Information, or any patent, copyright or other intellectual property or proprietary rights of the Discloser.

Breach of this Agreement may cause irreparable harm to the Discloser. Accordingly, the Discloser may seek equitable relief, including an injunction, in addition to any other rights and remedies that it may have.

This Agreement will remain in effect until terminated by either party upon prior written notice. The obligations of confidentiality contained in section 3 (Confidentiality Obligations) will survive for a period of 3 years from the date of last disclosure of Confidential Information. For Confidential Information that the Discloser has identified as a trade secret, the confidentiality obligations in section 3 will survive for so long as that information remains a trade secret.

Neither party may assign this Agreement without the prior written consent of the other party, except to its affiliates or to any successor or assign that has acquired substantially all of its business relating to this Agreement. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any purported assignment in violation of this section is void.

This Agreement is governed by the laws of the State of New York. This Agreement is the entire agreement between the parties and supersedes all prior agreements, understanding and communications, whether oral or written, between the parties relating to the subject matter of this Agreement. The provisions of this Agreement may not be modified, amended or waived without each party's prior written consent. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the maximum extent feasible or permitted by law.