AppSmart Mutual Nondisclosure Agreement

Legal Name:

AppSmart, Inc.

Jurisdiction of Incorporation:

Delaware, U.S.A.

Principal Company Address:

650 California Street, Floor 25
San Francisco, California 94108
U.S.A.

THIS MUTUAL NONDISCLOSURE AGREEMENT (the “Agreement”) is made and entered into as of the date this Agreement is countersigned by AppSmart, Inc. (“Effective Date”) between AppSmart and the Company, as defined in the table at the beginning of this Agreement. AppSmart and Company are each individually a “Party” and together may be referred to in this Agreement as the “Parties”.

1. PURPOSE. The Parties wish to continue to explore a business opportunity of mutual interest and in connection with this opportunity (“Purpose”), each Party may disclose or have already disclosed to the other Party certain confidential technical and business information which the disclosing Party desires the receiving Party to treat as confidential.

2. CONFIDENTIAL INFORMATION. “Confidential Information” means any information disclosed or otherwise made available previously or in the future by either Party (in such capacity, a “Disclosing Party”) to the other Party (in such capacity, a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as “Confidential”, “Proprietary” or some similar designation or which, under the circumstances surrounding disclosure, including oral disclosure or disclosure by demonstration, would be understood to be confidential or proprietary by a reasonable person. As used herein, “Disclosing Party” and “Receiving Party” include each party’s officers, directors, employees, affiliates, agents, consultants, legal and financial advisors, subsidiaries and assigns. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party's files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as shown by documents and other competent evidence in the Receiving Party's possession.

3. NON-USE AND NON-DISCLOSURE. Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose except to evaluate and engage in discussions concerning the Purpose. Receiving Party agrees not to disclose any Disclosing Party’s Confidential Information to third parties. Receiving Party agrees to limit disclosure of Disclosing Party’s Confidential Information solely to Receiving Party's employees or authorized representatives who are required to have the information in order to evaluate or engage in discussions concerning the Purpose, provided that such Receiving Party employees or authorized representatives have, prior to the receipt of any Disclosing Party’s Confidential Information, signed a non-use and non-disclosure agreement in content at least as protective as the provisions of this Agreement. Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party’s Confidential Information provided to Receiving Party under this Agreement.

4. MAINTENANCE OF CONFIDENTIALITY. Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, Receiving Party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable degree care. Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information unless the same are previously approved in writing by the Disclosing Party. Receiving Party shall reproduce the Disclosing Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Receiving Party shall promptly notify Disclosing Party of any use or disclosure of such Confidential Information in violation of this Agreement of which the Receiving Party becomes aware.

5. LEGAL DISCLOSURE. The Receiving Party may disclose Disclosing Party’s Confidential Information to the extent required by law or regulation. The Receiving Party will provide the Disclosing Party with reasonable advance notice of such required disclosure, unless legally prohibited, and will provide the Disclosing Party with reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure, and will limit the scope of such disclosure to the minimum required by the law or regulation.

6. NO OBLIGATION. Nothing herein shall obligate either Party to proceed with any transaction between them or engage in any discussions.

7. NO WARRANTY. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.

8. RETURN OF MATERIALS. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by a Disclosing Party to a Receiving Party, and all copies thereof which are in the possession of the Receiving Party, shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party or destroyed (with written certification of such destruction) upon the Disclosing Party's written request.

9. NO LICENSE. Nothing in this Agreement is intended to grant any rights to either Party under any patent, mask work right, copyright, trade secret or other intellectual property right of the other Party, nor shall this Agreement grant any Party any rights in or to the Confidential Information of the other Party except as expressly set forth herein.

10. TERM. The Agreement shall expire two (2) years following the Effective Date, unless earlier terminated upon 30 days’ written notice of either Party to the other Party. The obligations of each Receiving Party hereunder shall survive until three (3) years from the date of expiration or termination of this Agreement.

11. REMEDIES. In addition to any legal remedies, nothing in this Agreement is intended to limit any equitable remedies related to this Agreement.

12. MISCELLANEOUS. Neither Party may assign or otherwise transfer this Agreement without the prior written consent of the other Party; except, either Party may assign or transfer this Agreement in connection with a merger, acquisition, sale of substantially all its assets or a corporate reorganization. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns. This Agreement shall be governed by the laws of the state of California, without reference to conflict of laws principles, and each Party expressly consents (and waives any objection) to the venue and jurisdiction of the state courts of Santa Clara County, California and the federal courts located in the Northern District of California. No Receiving Party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the Disclosing Party except as set forth herein. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This document contains the entire Agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or unwritten agreements between the Parties, and this Agreement (a) is solely between the Parties and is not entered into for the benefit of any third party; (b) may not be amended or otherwise modified, nor any obligation waived, except by a writing signed by both Parties; and (c) may be executed in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. Each of the Parties shall comply with and obtain all authorizations required by U.S. and other applicable export control laws and related regulations.