Mutual Non Discloser Agreement by oiu13473

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									                                                                              Mutual Non-Disclosure Agreement

                                                                            disseminate, but in no event shall Recipient use less than
Effective Date:                                                             reasonable care to protect Discloser’s Confidential
                                                                            Information. Recipient may disclose Confidential Information
Company:                                                                    to its, and its parent and subsidiary company, employees,
                                                                            agents and representatives who have a need to know,
Address:                                                                    provided that prior to disclosure Recipient has a written
                                                                            agreement with each such persons sufficient to require that
City:                                                                       person to treat the Confidential Information in accordance
                                                                            with this Agreement.
State/Zip:
                                                                       3.   Exceptions. No obligation of confidentiality applies to any
In order to protect certain Confidential Information that the               information that Recipient can show: (i) is, or becomes,
parties desire to disclose to each other, Pointivity                        publicly available without breach of this Agreement, but only
(“Pointivity”) and the “Company” identified above, intending                from such date as it becomes so available; (ii) was rightfully
to be legally bound, agree to the following terms and                       in the possession of Recipient without obligation of
conditions. The term Discloser and Recipient as used                        confidentiality prior to receipt thereof from Discloser; (iii) was
herein apply to the party disclosing the Confidential                       rightfully disclosed to Recipient by a third party without
Information and the party receiving it. This is a mutual non-               obligation of confidentiality; (iv) is independently developed
disclosure agreement in that it applies to both parties                     by Recipient without use of the Confidential Information; or
Agreement in their respective roles as Discloser and                        (v) is disclosed by recipient with Discloser’s prior written
Recipient.                                                                  consent.

1.   Confidential Information. “Confidential Information”              4.   Permitted Use. Recipient may use Discloser’s Confidential
     means, as to the Disclosure and subject to                             Information only to evaluate the potential for a business
     paragraph 3, all information disclosed by one party or                 relationship between them and in furtherance of that
     its agents or representatives to the other party or its                business relationship. Confidential Information my only be
     agents or representatives which is not generally known                 used by Recipient as expressly permitted in this Agreement
     to the public, including the Discloser’s business plans,               and shall not, without the prior written consent of Discloser,
     financial information, strategic planning, personnel,                  be disclosed by the Recipient to any third party. If software is
     independent contractors, marketing plans, technical                    provided to Recipient, Recipient agrees not to reverse,
     and operational information (including application                     compile, or disassemble the software to discover the human
     development, process and techniques) and all of both                   perceivable portions of the code. In any event, Recipient will
     parties potential investments, both public and private.                not use Confidential Information to the detriment of
     Confidential Information may be disclosed in oral/verbal               Disclosure. Recipient agrees it will not use the Confidential
     or tangible form. Discloser shall mark all Confidential                Information to compete with Discloser. If the parties mutually
     Information disclosed in tangible form with a legend                   agree to enter into a subsequent business/technical
     identifying it as confidential.                                        relationship, the terms and conditions for such
                                                                            business/technical relationship will be negotiated in good
Following is each party’s representative for coordinating the               faith and set forth in a separate written understanding.
exchange of Confidential Information.                                       However, it is understood that no license or other rights in
                                                                            and to Confidential Information is to be construed and that
                                                                            neither of the parties hereto is under any obligation to enter
Pointivity Contact Person:___Kent Erickson_________                         into any business/technical arrangement or agreement with
                                                                            the other party by virtue of this Agreement or any disclosure
Email:____kent.erickson@pointivity.com_____________                         hereunder.

Phone:__858-777-6930_____ Fax:___858-777-6915___                       5.   Ownership. All Confidential Information remains the property
                                                                            of Discloser and/or its licensors.
Company Contact Person:_________________________
                                                                       6.   Non compete: Either party may introduce the other party to
Email:__________________________________________                            investments, acquisitions and other transaction opportunities.
                                                                            Each party understands and agrees that these introductions
Phone:_____________________ Fax:_______________                             are Confidential Information of the party introducing the
                                                                            opportunity. The Recipient agrees that it will not pursue,
2.   Obligation of Confidentiality. For a period of three years             directly or indirectly, any opportunity introduced by the other
     from the date of disclosure, Recipient agrees to use the               party without written consent of the other party. Each party
     same care and discretion to avoid disclosure,                          agree to act in good faith with respect to this Agreement.
     publication, or dissemination of Discloser’s Confidential              Each party understands that it is relying on the forgoing
     Information as Recipient uses with its own similar                     agreement and would not disclose such opportunities without
     information that it does not wish to disclose, publish, or             these assurances, and that in addition to any other remedies




                       Mutual Non-Disclosure Agreement   Pointivity   5355 Mira Sorrento Place, Suite 600 San Diego, CA 92121
     each party shall be entitled to injunctive relief to prevent              unreasonably withheld; provided that no consent shall be
     a violation of this provision.                                            required if the assignment is part of the sale or other
                                                                               transfer of substantially all of the assets or ownership
7.   Termination. This Agreement shall begin on the                            interests in the assigning party. The parties acknowledge
     Effective Date above. Either party may terminate this                     that they have read this Agreement, understand it, and
     Agreement upon written notice to the other. Upon                          agree to be bound by the terms and conditions. Further,
     termination of this Agreement, or earlier upon                            they agree that the complete and exclusive statement of
     Discloser’s request, Recipient shall promptly return or                   the agreement between the parties relating to this
     destroy all documents and tangible items in its                           subject shall consist of this Agreement. Any reproduction
     possession which contain any part of the Confidential                     of this Agreement by reliable means will be considered
     Information of Discloser. Upon termination of this                        an original of this document. This Agreement is executed
     Agreement, all obligations of confidentiality shall                       in English.
     survive and continue to bind Recipient in accordance
     with their terms.

8.   Disclaimer. All Confidential Information is provided “AS
     IS”, WITHOUT WARRANTY OF ANY KIND,
     WHETHER EXPRESS OR IMPLIED. Discloser does                                Company
     not represent or warrant the accuracy or completeness
     of the Confidential Information, that it will release any                 Signature:_____________________________________
     product related to the Confidential Information, or that
     target dates will be met. The entire risk arising out of                  Name:________________________________________
     the use of the Confidential Information remains with
     Recipient. Discloser may change or cancel its plans at                    Title:_________________________________________
     any time.
                                                                               Date:________________________________________
9.   Limitation of Liability. IN NO EVENT SHALL
     DISCLOSER BE LIABLE FOR ANY DAMAGES
     WHATSOEVER (INCLUDING WITHOUT LIMITATION
     DAMAGES FOR LOSS OF BUSINESS PROFITS,
     BUSINESS INTERRUPTION, OR OTHER                                           Pointivity
     PECUNIARY LOSS) ARISING OUT OF RECIPIENT’S
     USE OF OR INABILITY TO USE THE CONFIDENTIAL                               Signature:_____________________________________
     INFORMATION.
                                                                               Name:________________________________________
10. General.
    a. This Agreement shall be governed and construed                          Title:_________________________________________
       in accordance with the laws of California (without
       regard to conflicts of law provisions). In any legal                    Date:________________________________________
       proceeding arising out of this Agreement, the
       prevailing party shall be entitled to an award of its
       costs and reasonable attorneys’ fees. The parties
       agree that California state and federal courts shall
       have jurisdiction and venue in any such
       proceeding.
    b. Export Constraints. Recipient certifies that the
       Confidential Information will only be used for the
       purposes expressly stated herein and will not be
       rented, leased, sold, sublicensed, assigned, or
       otherwise transferred. Recipient shall adhere to the
       U.S. Export Administration laws and regulations
       and shall not export or re-export any technical data
       or products received from Discloser or the direct
       product of such technical data to any proscribed
       country listed in the U.S. Export Administration
       regulations unless properly authorized by the U.S.
       government.
    c. Neither party may assign its rights or delegate its
       duties or obligations under this Agreement without
       prior written consent, which shall not be


                      Mutual Non-Disclosure Agreement   POINTIVITY.    5355 Mira Sorrento Place, Ste 600 San Diego CA 92121

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