Mutual Non-Disclosure Agreement

This Mutual Non-Disclosure Agreement (“Agreement”) is effective as of the date fully executed by both Parties (“Effective Date”) and is entered into between Sonar Software US Inc., a Delaware corporation (“Sonar”), and any individual or corporation requesting a demo of Sonar Software. Sonar and Company hereinafter may be collectively referred to as the “Parties” or individually as a “Party.”  

In consideration of the mutual covenants contained herein, the Parties agree to the following:

1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), Sonar and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the Party disclosing such Confidential Information being the “Disclosing Party” and the Party receiving such Confidential Information being the “Receiving Party”).

2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and identified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a reasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any information about or concerning any third Party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third Party); (f) software and related documentation; and (g) product offerings, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information has not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the Disclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. 

3. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other professional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by the Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act in accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.

4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third Party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such Party free of restriction; or (d) Disclosing Party agrees in writing is free of such restrictions.

5. Neither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially similar to those involved herein.

6. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.

7. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up.

8. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information.

9. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the Parties, neither Party shall be under any legal obligation or have any liability to the other Party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each Party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such Party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third Party without notice to the other Party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other Party) the procedures relating to the Parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other Party and requesting that the other Party return or destroy the Confidential Information as described above). Either Party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either Party makes in anticipation of definitive agreements is at the sore risk of the Party making the decision, even if the other Party is aware of or has indicated approval of, such decision.

10. Without prejudice to the rights and remedies otherwise available to either Party hereto, each Party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other Party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement.

11. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.

12. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles or rules regarding conflicts of laws. The Parties agree the courts of the State of Delaware shall be the exclusive venue for disputes arising under this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.

13. This Agreement constitutes the entire understanding between the Parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the Parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either Party or software license provisions and rights, then this Agreement shall not supersede either Party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or modification of this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each of the Parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

14. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either Party at such Party’s sole discretion upon thirty (30) days written notice to the other Party. The provisions herein concerning the disclosure, protection and use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. 

This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.