This Non-Disclosure Agreement (the “Agreement”) is made and effective as of the ____ day of______________, ______ (the “Effective Date”) by and between Teradek, LLC (“Teradek”), a California Limited Liability Corporation, and ___________________________, (“Company”), a ________________________ ____________________.

WHEREAS, the disclosing party to this Agreement wishes to disclose certain Confidential Information for the following purpose(s):

NOW, THEREFORE, the parties hereto agree as follows:

1. Definitions. 

1.1 (a) “Disclosing Party” shall refer to Teradek disclosing its Confidential Information. 

1.2 (b)“Receiving Party” shall refer to the Company receiving the Disclosing Party’s Confidential Information. 

1.3 (c) For the purpose of this Agreement, “Confidential Information” shall mean any information and data of a confidential nature, including but not limited to, written in  physical form, be marked “Confidential” or similarly legended by the disclosing party before being turned over to the receiving party, proprietary, developmental, technical, marketing, sales, operating, performance, cost, know-how, business and process information, computer files, computer printouts, computer programs (in any form), computer programming techniques, drawings, documents, specifications, formulas, sketches, evaluations, findings, methods, processes, descriptions and information concerning customers, markets, product sales, costs, current products, future product plans and product investigations and all record bearing media containing or disclosing such information and techniques which is disclosed pursuant to this Agreement. Confidential Information shall include any samples, models or prototypes, or parts thereof.  Notwithstanding the foregoing, data transferred electronically to the receiving party, i.e. by modem, e-mail, or physical transfer of computer-readable files, shall be deemed Confidential Information. It shall include all information of Disclosing Party that is disclosed or submitted, orally, in writing, or by any other media, to Receiving Party that is designated by Disclosing Party as confidential or a reasonable person would find as proprietary information. Notwithstanding the foregoing, data transferred electronically to the receiving party, i.e. by modem, e-mail, or physical transfer of computer-readable files, shall be deemed Confidential Information.

2. Confidentiality Obligation. 
Receiving Party agrees that the Confidential Information is to be considered confidential and proprietary to Disclosing Party and Receiving Party shall hold the same in confidence, shall not use the Confidential Information other than for the Purpose, and shall treat such Confidential Information with at least the same degree of care as it treats its own Confidential Information (but in no case with less than a reasonable degree of care). Receiving Party shall disclose the Confidential Information only to its officers, directors, employees, contractors, or vendors with a specific need to know, only for the Purpose, and that are bound by obligations of confidentiality that are no less restrictive than those contained herein. Receiving Party will not disclose, publish or otherwise reveal, directly or indirectly, any of the Confidential Information received from Disclosing Party to any other party whatsoever except as specifically stated above. Receiving Party shall be responsible to insure that the Confidential Information provided to its officers, directors, employees, contractors, or vendors remains confidential and is not disclosed to any third parties. Nothing herein shall require either party to disclose any of its Confidential Information. 

Further, Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Disclosing Party’s Confidential Information and that are provided to the party hereunder. Receiving Party  agrees not to use any Confidential Information for the purpose of preparing one or more patent applications or otherwise secure intellectual property rights without Discloser’s express written consent.

Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Receiving Party, nor by the rejection of any agreement between Disclosing Party and Receiving Party, by a trustee of Receiving Party in bankruptcy, or by the Receiving Party as a debtor-in-possession or the equivalent of any of the foregoing under local law. 

If disclosure of Confidential Information is demanded by subpoena or other validly issued judicial or administrative process, the Receiving Party shall promptly notify the Disclosing Party to enable the Disclosing Party to defend any such demand, shall cooperate with Disclosing Party in opposing said demand (at Disclosing Party’s expense), and shall only disclose the requested Confidential Information to the extent required by law and after notification to Disclosing Party. 

3. Return of Confidential Information. 
Confidential Information furnished in tangible form shall not be duplicated by Receiving Party except for carrying out the purposes of this Agreement or the parties’ business relationship. Upon the request of Disclosing Party, Receiving Party shall return all Confidential Information, and any copies or data derived there from within ten (10) days of such request. Disclosing Party may also require Receiving Party to destroy any notes, memoranda, documents, or data derived from the Receiving Party. Receiving Party shall provide a written certificate to Disclosing Party regarding destruction within ten (10) days thereafter. 

4. Term.
The obligations of Receiving Party herein will be effective so long as the Confidential Information remains confidential and proprietary to the Disclosing Party.

5. Other Information.
Receiving Party shall have no obligation under this Agreement with respect to Confidential Information which is (a) already known by Receiving Party; (b) becomes publicly available without breach of this Agreement by Receiving Party; (c) is rightfully received by Receiving Party without breach of obligations of confidentiality; or (d) is independently developed by Receiving Party without breach of this Agreement; provided, however, such Confidential Information shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to Disclosing Party along with the asserted grounds for disclosure. It is understood for the purpose of interpretation of this Agreement that specific Confidential Information disclosed by Disclosing Party shall not be deemed available to the public or known to the Receiving Party or to any third party merely because the specific information is embraced by more general information which is available to the public or known to a party hereto. 

6. No License. 
Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information. It is understood and agreed that neither party solicits any change in the organization, business practice, service or products of the other party, and that the disclosure of Confidential Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party nor as an encouragement to expend funds in development or research efforts. Confidential Information may pertain to prospective or unannounced products. Receiving Party agrees not to use Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product. 

7. No Warranty. 
The parties acknowledge that all information exchanged under this Agreement is exchanged “as is” and neither party makes any warranties or representations as to the information being provided. 

8. No Publicity. 
The parties agree not to disclose their participation in this undertaking, the existence or terms and conditions of this Agreement, or the fact that discussions are being held between the parties hereto. This Agreement does not obligate the parties to enter into a business relationship together.       
9. Governing Law.
This Agreement shall be governed and construed in accordance with the laws of the United States and the State of California. The parties consent to the exclusive jurisdiction of the state courts and U.S. federal courts located in Orange County, California for any dispute arising out of this Agreement, and the parties waive their right to have an action under this Agreement brought or tried elsewhere. The parties agree that in the event of any breach by Receiving Party, Disclosing Party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Disclosing Party against any such breach or threatened breach. The prevailing party in any action under this Agreement shall be entitled to recover its reasonable attorneys’ fees in addition to any other damages or other awards ordered by the Court. 

10. Equitable Relief.
Recipient acknowledges and agrees that due to the unique nature of Teradek’s Proprietary Information, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Recipient or third parties to unfairly compete with Teradek resulting in irreparable harm to Teradek, and therefore, upon any such breach or threat thereof, Company shall be entitled to seek injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.

11.Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

12. Assignment.
The parties may not assign this Agreement or any interest herein without the other party’s express prior written consent. 

13. Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. 

14. Notice.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to that appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. 

If to Teradek:

Email: legal@teradek.com

Teradek, LLC
Attn: Legal Dept.
8 Mason
Irvine, CA 92618 

If to Company: 

15. No Implied Waiver.
Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

16. Headings.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 

17. Counterparts.
This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. 

18. Acceptance of Facsimile/Electronic Signatures 
The Parties agree that this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission or by electronic transmission (electronic mail). Such facsimile signature or electronic signature must be treated in all respects as having the same effect as an original signature.

IN WITNESS WHEREOF, the parties have executed this Agreement as of this date first above written. This Agreement shall be effective upon its execution below by all applicable parties. The persons executing the agreement on behalf of the parties warrant that they are duly authorized to execute this agreement on behalf of the parties for whom they sign.


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