CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

WITNESSETH:

WHEREAS, Gravnetix wishes to disclose to Recipient and Recipient wishes to receive from Gravnetix, certain information considered and treated by Gravnetix as confidential and/or proprietary; and

WHEREAS, Recipient is willing to receive such information subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises, which are incorporated in this Agreement, and the mutual promises hereinafter contained, and intending to be legally bound, Gravnetix and Recipient agree as follows:

Agree and Continue

Gravnetix possesses certain valuable, confidential and/or proprietary information (the “Confidential Information”). “Confidential Information” means any information that Recipient knows or reasonably should know is confidential or proprietary to Gravnetix, including without limitation documents and materials, whether printed or in machine-readable form or otherwise, developed, owned, licensed or under its control and the processes, hardware, software, inventions, Trade Secrets (as defined in the Delaware Uniform Trade Secrets Act (Del. Code Ann. tit. 6, §§ 2001-2009)), ideas, designs, research, know-how, business methods, production plans and marketing plans incorporated therein and relating thereto. “Confidential Information” does not include information that Recipient can prove (i) has been provided to Recipient before receipt hereof from Gravnetix on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any legal, fiduciary, or contractual obligation; (ii) information that is disclosed or provided to Recipient by a third party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any legal, fiduciary, or contractual obligation; and (iii) information that is available to the public other than by violation of this Agreement by Recipient.
For three years from the last disclosure of Confidential Information by Gravnetix to Recipient hereunder, Recipient agrees to safeguard and hold in strict confidence and to neither directly nor indirectly disclose, publish, or use, other than for the purpose for which such disclosure is being made under this Agreement, any of the Confidential Information: (i) disclosed by Gravnetix, its agents or employees hereunder; or, (ii) obtained from Gravnetix as a result of the activities of Gravnetix and Recipient hereunder. Without limiting the generality of the foregoing, Recipient shall not disclose Confidential Information to any third party without Gravnetix’s prior written consent and shall limit its disclosure (a) if an individual, to itself; or (b) if otherwise, to its employees, agents, and consultants having a need to know and who are under non-disclosure obligations no less restrictive than those contained in this Agreement. Recipient shall protect Gravnetix’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or disclosure of the Confidential Information that Recipient uses to protect its own proprietary or confidential information of a like nature. Notwithstanding the foregoing, Recipient shall not use or disclose any Trade Secret, which use or disclosure would be prohibited by the Delaware Uniform Trade Secrets Act, at any time. Recipient shall (x) immediately notify Gravnetix of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by the Recipient or its Representatives of which the Recipient has knowledge; (y) fully cooperate with Gravnetix in any effort undertaken by Gravnetix to enforce its rights related to any such unauthorized disclosure; and (z) be responsible for any breach of this Agreement caused by any of its employees, agents or consultants.
The parties understand that Gravnetix may now market or have under development products or services which are competitive with products or services now offered or which may be offered by Receipient. Except as otherwise provided herein, no discussions and/or communications between the parties hereunder or otherwise will serve to impair the right of Gravnetix to develop, make, use, procure and/or market products or services now or in the future that may be competitive with those offered by Recipient.
All the Confidential Information disclosed to or obtained by Recipient shall be and remain the sole property of Gravnetix. Recipient agrees to return all the Confidential Information and any copies of same within three (3) business days following Gravnetix’s request that the Confidential Information be returned. Recipient shall not thereafter directly or indirectly make use of any Confidential Information.
Gravnetix’s disclosure of the Confidential Information or other information to Recipient shall not constitute an option, grant or license to Recipient under any patent or other rights now or hereafter held by Gravnetix.
The Recipient acknowledges that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by the Recipient or its representatives. Therefore, in addition to all other remedies available at law (which Gravnetix does not waive by the exercise of any rights hereunder), Gravnetix shall be entitled to specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Recipient hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim. In the event that either party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action, or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs.
No modification of this Agreement shall be effective unless it is in writing and signed by both parties. If any provision of this Agreement is held not to be valid, such provision shall be severed from this Agreement, which shall then be read as if such provision was not incorporated in this Agreement. If any provision is held as going beyond what is reasonable, but would be enforceable if the extent of the restriction were reduced or modified, then such restriction shall apply with such reduction or modification as may be necessary to render it valid.
Either party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every provision hereof.
This Agreement shall be interpreted and enforceable in accordance with the laws of the State of Delaware. Any judicial proceeding brought against either of the parties to this Agreement on any dispute arising out of this Agreement will be brought in the courts of the State of Delaware, or in a United States District Court in the State of Delaware.
This Agreement supersedes and cancels any and all prior communications and agreements between the parties with respect thereto. This Agreement may be executed in several counterparts, all of which together shall constitute one and the same agreement. Neither party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party, provided that Gravnetix may assign any of its rights and delegate any of its obligations hereunder to any person or entity that acquires substantially all of the Gravnetix’s assets. Any purported assignment or delegation in violation of this Section shall be null and void.