Mutual Nondisclosure Agreement

Each undersigned party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to a potential business relationship between the parties and both parties want to protect any such information from improper disclosure or use. "Proprietary Information” shall mean all such information disclosed by the Disclosing Party, including, without limitation, software, customer requirements, know-how, processes, ideas, inventions (whether patentable or not), and other technical, business, financial, customer and product information, whether or not such information is marked as such, and whether disclosed before or after the date of this agreement.

• 1. In consideration of the parties' discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the Receiving Party hereby agrees: (i) to hold the Disclosing Party's Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its own most confidential materials), (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally whether to enter into the currently contemplated business relationship, (iv) not to remove or export from the United States or re-export any such Proprietary Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under applicable U.S. and foreign export laws and regulations, and (v) not to copy or reverse engineer any such Proprietary Information. Any employee or agent given access to any such Proprietary Information must have a legitimate "need to know" and be bound in writing to the restrictions of this agreement.
• 2. This agreement shall not apply to any information that the Receiving Party can document: (i) is or (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee) becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may make disclosures required by court order provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding.
• 3. Immediately upon (i) the decision by either party not to enter into the business relationship, or (ii) a request by the Disclosing Party at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party's address herein), the Receiving Party will turn over to the Disclosing Party all Proprietary Information of the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. The Receiving Party understands that nothing herein (x) requires the disclosure of any Proprietary Information of the Disclosing Party, which shall be disclosed if at all solely at the option of the Disclosing Party (in particular, but without limitation, any disclosure is subject to compliance with export control laws and regulations), or (y) requires the Disclosing Party to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed. The Receiving Party acknowledges that the Disclosing Party makes no express or implied representation or warranty as to the accuracy or completeness of the Proprietary Information and the Receiving Party will be entitled to rely solely on such representations and warranties as may be included in definitive agreements (if any), subject to such limitations and restrictions as may be contained therein.
• 4. This agreement will terminate three (3) years after the latest execution date set forth below. However, the obligations hereunder with respect to any disclosure made within that period will continue for the shorter of: (i) five years or (ii) until all Proprietary Information falls into one of the exceptions described above.
• 5. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party may be entitled to appropriate equitable relief without the posting of a bond in addition to whatever remedies it might have at law. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware.
• 6. 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 illegal, invalid, or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this agreement shall otherwise remain in full force and effect. This agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof. This agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this agreement shall be entitled to costs and attorneys' fees. No waiver or modification of this agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver.