MUTUAL NON-DISCLOSURE AGREEMENT

 

This Mutual Non-Disclosure Agreement (“Agreement”), effective as of June 5, 2022 is entered into by and between CGX, LLC, having a principal place of business at 8445 Camino Santa Fe, #213, San Diego, CA 92121 on behalf of itself, and ORGANIZATION ENTERED BELOW having a principal place of business at ADDRESS ENTERED BELOW on behalf of itself and its Affiliates (including its Affiliates “Business Associate”).

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The Parties may disclose to each other certain Confidential Information (as defined below) for the purpose of evaluating and/or engaging in a business relationship between the Parties (the “Purpose”).  To protect each Party’s Confidential Information, the Parties agree as follows:

1. Definitions.  CGX and Business Associate may each be referred to as a “Party” or collectively as the “Parties.”  The Party disclosing Confidential Information is referred to as “Discloser” and the Party receiving Confidential Information is referred to as “Recipient”.  Each Party may be a “Discloser” and a “Recipient” of Confidential Information.  “Affiliates,” means, with respect to any person or entity, any other person or entity that directly or indirectly controls, is controlled by or is under common control with such person or entity.

2. Confidential Information.  Business Associate “Confidential Information” means financial, business, product roadmap, and product performance information disclosed by Business Associate to CGX (including through its agents, representatives, or contractors), by any means, in any form (including, without limitation, oral, written, or visual), regardless of any restrictive markings.  For clarity, Business Associate Confidential Information does not include material formulation information or information regarding the way a product or service works or the methods for producing it.  CGX does not wish to receive such information at this stage of the discussions related to the Purpose.  CGX “Confidential Information” means all information and materials disclosed by CGX to Business Associate (including through CGX’s agents, representatives, or contractors), by any means, in any form (including, without limitation, oral, written, or visual), regardless of any restrictive markings.  The existence and terms of this Agreement, and the existence of, and any information concerning, the relationship of the Parties are Confidential Information of each Party.

3. Restrictions.  Recipient shall not use or reproduce Confidential Information except in good faith furtherance of the Purpose.  Recipient shall not disclose, distribute, or allow access to any Confidential Information to anyone except employees, contractors, and consultants of Recipient, who have a need to know Confidential Information to further the Purpose and are obligated to Recipient to keep such information confidential and use it solely for the Purpose.

4. Exceptions. The use and disclosure obligations of this Agreement shall not apply to information that Recipient can demonstrate: (a) was lawfully known by Recipient prior to receiving it from Discloser; (b) was developed by Recipient without use of or reference to Discloser’s Confidential Information; (c) was lawfully obtained by Recipient from a third party without obligation of confidentiality; or (d) is or subsequently becomes publicly available other than through the fault or negligence of Recipient.  If only a portion of the Confidential Information falls within any of the above exceptions, the remainder of the Confidential Information shall continue to be subject to the requirements of this Agreement.

5. Court Orders.  Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to comply with applicable law or a valid court or governmental order, provided that Recipient (a) promptly provides written notice to Discloser, to the extent permitted by applicable law, to enable Discloser to protect such Confidential Information, (b) discloses only such Confidential Information as is legally required to be disclosed, and (c) uses reasonable efforts to ensure confidential treatment of such Confidential Information.

6. Publicity.  Neither Party shall issue any press release, article, advertising or other publicity relating to this Agreement, its existence, or the relationship of the Parties without the prior written consent of the other Party.

7. Security.  Recipient shall secure Discloser’s Confidential Information against unauthorized use and disclosure with at least the same degree of care it uses with regard to its own confidential information of a similar nature, but in no event less than a reasonable degree of care.  Without limiting Recipient’s other liabilities, Recipient shall be liable to Discloser for any misappropriation or unauthorized disclosure or use of Discloser’s Confidential Information by any person or entity to which it has disclosed such Confidential Information.

8. Unauthorized Use or Disclosure. Recipient shall notify Discloser in writing promptly after it becomes aware of any misappropriation or unauthorized disclosure or use of Confidential Information by any person or entity to which it has disclosed such Confidential Information (including by Recipient’s employees, contractors, and consultants).  Recipient shall take all steps reasonably requested by Discloser to stop, limit, or otherwise remedy such misappropriation or unauthorized disclosure or use.

9. Return of Materials.  Promptly following a written request by Discloser, Recipient shall return or destroy (as determined by Recipient) all materials containing Confidential Information, including all copies in any form, unless otherwise required by law; provided that Recipient shall not be required to return or destroy electronic copies stored in enterprise-wide archival back-up systems that are not reasonably accessible or retrievable for destruction.  Recipient agrees to provide Discloser a signed confirmation of compliance with this paragraph upon request.

10. Term and Termination. The term of this Agreement shall continue for three (3) years following the effective date.  Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party; provided, however, that Recipient’s obligations under this Agreement with respect to Confidential Information disclosed prior to such termination or expiration shall survive in perpetuity.  In all cases, Recipient’s obligations under this Agreement with respect to Discloser’s trade secrets shall survive in perpetuity.

11. Injunctive Relief. The Parties agree, and shall acknowledge in any action related hereto without further proof of damage, that any actual or threatened breach of this Agreement by Recipient shall cause Discloser immediate and irreparable harm and that monetary damages shall be an inadequate remedy.  In the event of any such actual or threatened breach, Recipient shall not object to equitable remedies by asserting the adequacy of monetary damages, and shall waive any requirement for securing or posting of any bond in connection with equitable remedies.  Nothing contained herein shall be construed as prohibiting Discloser from pursuing such other remedies as may be available to Discloser for an actual or threatened breach of this Agreement, including recovery of damages at law from Recipient.

12. Rights in Confidential Information.  No patent, copyright, trademark, or other proprietary right or interest is hereby licensed, granted or otherwise transferred by this Agreement or any disclosure hereunder, other than the right to use such information in accordance with this Agreement.  No warranties of any kind are given with respect to Confidential Information disclosed under this Agreement or any use thereof, except that Discloser warrants that it has the right to disclose to Recipient the Confidential Information.

13. Waiver. Failure or delay by a Party in exercising or enforcing any right under this Agreement shall not operate as a waiver.  A waiver by a Party of any right under this Agreement shall not be construed as a waiver on any subsequent occasion.  A waiver will be effective only if made in writing and signed by the Party against whom the waiver is asserted.

14. Governing Law.  Governing law will default to the jurisdiction of the party being sued. For claims against CGX, his Agreement shall be construed in accordance with, and governed by, the laws of California, without regard to its conflict of law principles.

15. Service of Process.  Each Party consents and agrees that service of process may be made in any manner permitted by law or by registered or certified mail, return receipt requested, or nationally recognized overnight courier, signature required, at its principal place of business (or the address above); and that service made in accordance with the foregoing is reasonably calculated to give actual notice; and waives and agrees not to assert any claim that service of process made in accordance with the foregoing does not constitute good and sufficient service of process.

16. Further Agreements.  The furnishing of information hereunder does not obligate either Party to enter into any further agreement or negotiation with the other Party.

17. Compliance. Recipient shall not disclose or disseminate Confidential Information except in accordance with applicable law, including, without limitation, export control and privacy and data security laws and regulations.

18. Miscellaneous.  With respect to its subject matter, this Agreement constitutes the entire understanding between the Parties and supersedes all prior agreements.  If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable for any reason, such provision shall be deemed automatically adjusted to conform to the requirements for enforceability so as to effect the intent of the Parties.  If the provision is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement.  In any event, the unenforceability of any provision of this Agreement shall not affect any other provision hereof, and shall not render such provision unenforceable in any other jurisdiction.  This Agreement shall not be assigned by a Party without the prior written consent of the other Party; any attempted assignment without such consent shall be void.  This Agreement shall not be modified except by a writing expressly referencing this Agreement and duly executed by both Parties.  Each Party represents that its signatory of this Agreement is duly authorized to bind it.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile signature or by email in portable document format (PDF) or similar facsimile format. Accepted and Agreed:

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CGX LLC

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Ira Friedman

President