MUTUAL NON-DISCLOSURE, CONFIDENTIALITY, AND NON CIRCUMVENTION AGREEMENT

THIS MUTUAL NONDISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of its Effective Date, between the parties executing this Agreement. 

RECITALS

WHEREAS, the parties to this Agreement are contemplating entering into, or participating in, one or more business transactions concurrently herewith and/or hereafter pertaining to transactions involving the sale, purchase, lease and trade of general products. 

WHEREAS, in connection with this business opportunity the parties involved in this transaction may learn from one another or from principals and agents of one another the Confidential Information of the parties to this Agreement. 

Definitions

a. “Contacts” as used herein shall mean the names and contact information, including, but not limited to, physical address, email address, telephone numbers and other contact information, of clients, venders, financiers, bank contacts, investors, borrowers, lenders, agents, brokers, banks, lending corporations, manufacturers, distributors, individuals, trusts, buyers, sellers, and/or compilers of a party to this Agreement. 

b. “Financial Information” as used herein shall mean the information relating to contracts, agreements, bank accounts, transaction codes, participating banks and/or entities, financial information of the parties to this Agreement and their members, managers, officers, directors, shareholders, employees, and agents and personal information of the parties to this Agreement and their members, managers, officers, directors, shareholders, employees, and agents. 

c. “Confidential Information” as used herein shall mean any information disclosed by a disclosing party (the “Disclosing Party”) to the other parties (the “Receiving Party”), either directly or indirectly in writing, orally or by inspection of tangible objects, including without limitation information relating to the Contacts, Financial Information, Trade Secrets, personal and financial information of the parties, their members, managers, directors, officers, employees, and shareholders, know-how, financial information, contracts, bank accounts, transaction codes, participating banks or entities, any business strategies or arrangements, systems architecture, software technology, intellectual property, proprietary information, technical data, business associates and contact information of persons or entities, trade secrets or know-how, including but not limited to, research, products, services, customer lists and customers, engineering and hardware configuration information, or other business information. Information communicated orally shall be considered Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available in the public domain after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party or the Receiving Party’s agents or employees; (iii) is already in the possession of the Receiving Party at the time of disclosure, without confidentiality restrictions, by the disclosing party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; or (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality. 

d. “Person” as used herein shall include, but is not limited to, any individual, sole proprietor, partnership, joint venture, trust, limited liability company, member, manager, shareholder, director, officer, franchisee, franchisor, investor, corporation, and/or any entity that is not specifically named herein

e. “Trade Secrets” as used herein shall mean information from a party from which the party derives economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy and as defined by California law. 

Non-Disclosure

It is expressly agreed by the parties that the parties will not communicate, orally or in writing, with any Person any Confidential Information from the other parties to any Person. 

This Agreement is being executed to assure protection of the Confidential Information disclosed to and/or obtained by the parties and to prevent any adverse competitive effect upon the parties which might result from the use or disclosure of the parties Confidential Information being disclosed. 

All items of Confidential Information, together with all copies of any of the same or any part thereof, shall be returned to the disclosing party within five (5) days of a written request. All notes, studies, reports, memoranda, and other documents that contain or reflect Confidential Information must also be returned to the disclosing party within five (5) days of a written request. 

Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. If either party or their respective members, managers, directors, officers, employees, consultants or agents are requested or required by legal process to disclose any of the Confidential Information of the other party, the party required to make such disclosure shall give prompt notice to the other party so that such other party may seek a protective order or other appropriate relief. If a protective order or other relief is not obtained, the party required to make such disclosure shall disclose only that portion of the Confidential Information which its counsel advises that it is legally required to disclose. 

The rights and obligations under this section shall survive termination of this Agreement. 

Solicitation of Sources & Non-Circumvention

No party shall directly or indirectly contact, deal with, solicit or otherwise attempt to transact business with any Contact introduced by the providing party to another party in any manner or for any reason without the prior written consent of the party introducing the Contact. 

No party shall attempt, directly or indirectly, to make contact with, communicate with, deal with, or otherwise be involved in any transaction, in the broadest sense, with any such Contact introduced by any parties hereto, without having obtained prior written consent of such disclosing party. Each party agrees not to circumvent, avoid, bypass, or obviate any other party hereto, directly or indirectly, to avoid the payment of fees or commissions or to avoid yielding to the other its expected profit whether as an agent or otherwise, in relation to any project or transaction, or any other transaction involving any Contacts, resources, products, marketing concepts, processes, ideas, or services of the other parties, or in addition, re-negotiating, renewal, extension, amendment, new contracts or agreements, parallel contracts or agreements, third party assignments, in any transaction with any Person and/or Contact revealed by any party to another party hereto. This provision shall be given its broadest interpretation and it shall apply to all transactions between the same principals. Any violation of this Agreement shall be deemed an attempt to circumvent such non- breaching party. 

Maintenance of Confidentiality

Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and professional advisors who have access to Confidential Information of the other party: (a) have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees or professional advisors; or (b) are advised of the confidential nature of the Confidential Information and the terms of this Agreement and are bound by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved either in writing or verbally by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. 

No Obligation

Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 

No Warranty

ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE. 

Return of Materials

All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party’s written request. 

No License

Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein. 

Term

The obligations of each receiving party hereunder shall survive for 7 years. 

Remedies

Each party agrees that the unauthorized use or disclosure of the other party’s Confidential Information would cause irreparable harm to the other party. Accordingly, each party agrees that the other party will have the right to obtain an immediate injunction against any breach or threatened breach of this Agreement, as well as the right to pursuant any and all other rights and remedies available at law or in equity for such breach., entitling the other party to seek injunctive relief in addition to all legal arbitrations.

Playbook Access Agreement

We are pleased to provide this Carenodes Playbook (“Playbook”) for informational purposes. By accessing or using the Playbook, you, on behalf of your organization (“you” and “your”), agree to the following terms and conditions: 

License. Carenodes, Carenodes Networks, Carenodes KB, and affiliated entities (collectively, “Carenodes”) grants you, and you accept, a perpetual, non-exclusive, non-assignable, non-sublicensable and non-transferable limited license to use, modify, copy and create derivative works, in whole or in part, of the Playbook for your own non-commercial, internal business purposes. 

This license does not include the right to use or display Carenodes’s name or trademarks in any manner except to the extent they have been incorporated by Carenodes into the Playbook and such use or display is necessary in order to use the Playbook as licensed. You may not remove or alter any of the proprietary markings or disclaimers included in the Playbook by Carenodes, including this License Agreement. Carenodes may terminate this license at any time with or without cause. 

Disclaimer. The Playbook was developed by Carenodes for its own internal use based on information available at the time it was developed and is provided to you for informational purposes only and constitutes neither medical nor legal advice. 

If you choose to utilize or implement all or part of the Playbook or any adaptations within your organization, such utilization or implementation should be completed in consultation with appropriate medical professionals and others with expertise in the applicable subject matter. 

Carenodes provides no assurances or representations as to the accuracy, effectiveness or usefulness of the Playbook and will not be responsible for providing any updates. 

Indemnification. To the extent permitted or authorized by law, you agree to indemnify, defend and hold Carenodes and other Carenodes entities and their respective employees, officers and agents, harmless, from and against any claims, lawsuits, damages, proceedings, or causes of action (including reasonable attorneys’ fees and any costs associated with defending such claims) arising from or relating to your use of all or any part of the Playbook. 

Governing Law. This License Agreement shall be governed and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. Any legal action shall be brought in and you consent to the jurisdiction of the state and federal courts located in Los Angeles County, California.

CARENODES MAKES AND YOU RECEIVE NO WARRANTY, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT, AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFINRGEMENT, AND ANY OTHER WARRANTIES ARE EXPRESSLY EXCLUDED. IN NO EVENT WILL CARENODES OR ANY ENTITY PARTICIPATING WITH ANY CARENODES PROGRAM(S) (“CARENODES ENTITY”) BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGE OF ANY KIND RESULTING FROM THE LICENSE GRANTED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, PERSONAL INJURY OR PROPERTY DAMAGE, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF CARENODES HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 

CARENODES SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS LICENSE AGREEMENT, USE OF THE PLAYBOOK, OR OTHERWISE, EXCEPT TO THE EXTENT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED (IN WHICH CASE CARENODE’S LIABILITY IS LIMITED TO $100). 

Entire Contract