Non-Disclosure Agreement 

This Non-Disclosure Agreement (this “Agreement”) is entered into by (i) [___] (such party, together with its affiliates and subsidiaries, is referred to in this Agreement as “Recipient”) for the benefit of (ii) [__] (such party, together with its affiliates and subsidiaries, collectively, the “Company”), as of the effective date set forth on the signature page to this Agreement (the “Effective Date”). 

1. As used in this Agreement, “Confidential Information” means any and all technical and non-technical information provided, disclosed, or made available by the Company or its agents verbally or in writing to Recipient or any of its Representatives (as defined below), whether before, on, or after the date of this Agreement, which includes, without limitation: (a) information, documents, or agreements regarding or relating to the Company’s assets, subsidiaries, subsidiaries’ assets, operations, results, financial or accounting reports, contracts, capitalization, stockholders or other investors; (b) any information or documents provided to Recipient or any of its Representatives under or in connection with any future agreement between Recipient and Company; (c) the Company’s intellectual property or proprietary technology, software, information, data, processes, or knowhow; (d) any information embodied in tangible material (such as documents, drawings, pictures, graphics, software, hardware, graphs, charts, or disks); (e) any information disclosed orally or visually; and (f) all other information that Recipient knew, or reasonably should have known, was the Confidential Information of the Company.  As used in this Agreement, “Representatives” means the officers, directors, employees, accountants, attorneys, and professional advisors of Recipient. 
2. Subject to Section 3, Recipient and its Representative at all times and notwithstanding any termination of this Agreement (i) shall hold in strict confidence and not disclose to any person or entity any Confidential Information, (ii) shall not use the Confidential Information for any purpose other than the purpose of internal review and analysis  (the “Permitted Use”) of a potential transaction involving [130 S Alvarado, Los Angeles, CA], and (iii) shall not copy or transmit in any manner to any person any Confidential Information; provided, however, that Recipient may disclose Confidential Information to Representatives (and only to such permitted Representatives) who reasonably need to know such information in connection with the Permitted Use.  Recipient shall notify such permitted Representatives in writing of the confidential nature of such information and of the existence of this Agreement and Recipient shall obtain written confirmation from each Representative of such Representative’s agreement to treat such information confidentially and to be bound in accordance with this Agreement).  Without limiting the foregoing, Recipient shall also protect such Confidential Information with at least the same degree of care that Recipient uses to protect its own Confidential Information, but in no case less than reasonable care.  Recipient shall limit access to the Confidential Information to Recipient and the Representatives specifically permitted access as set forth above only.   Recipient also shall be responsible and liable for (x) any use or disclosure of the Confidential Information by any of its Representatives that is not specifically permitted by this Agreement and (y) any action or omission by any Representative that, if such Representative were a party to this Agreement, would constitute a violation or breach of this Agreement. 
3. Recipient will not have any obligation under this Agreement with respect to a specific portion of the Confidential Information if Recipient can demonstrate with competent evidence that such Confidential Information: 

1. 1. 1. was in the public domain at the time it was disclosed to Recipient; 
      2. entered the public domain subsequent to the time it was disclosed to Recipient, through no fault or breach of this Agreement by Recipient or any other person subject to confidentiality obligations; 
      3. was in Recipient’s possession free of any obligation of confidence at the time it was disclosed to Recipient; 
      4. was rightfully communicated to Recipient free of any obligation of confidence subsequent to the time it was disclosed to Recipient; or 
      5. was developed prior to the Effective Date by employees or agents of Recipient who had no access to any Confidential Information. 

1. Notwithstanding the above, Recipient may disclose certain Confidential Information, without violating the obligations of this Agreement to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that Recipient, to the extent legally permissible to do so, provides the Company with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Company in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued. 

1. Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any Confidential Information. 

1. Upon termination or expiration of this Agreement, or upon written request of the Company, Recipient shall promptly return to the Company all documents and other tangible materials representing any Confidential Information and all copies thereof. 

1. Confidential Information is and shall remain the sole property of the Company.  Recipient recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed under this Agreement, any intellectual property right that has issued or that may issue, based on such Confidential Information.  Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either party to enter into any further agreement with the other.  Nothing in this Agreement creates or shall be deemed to create any agreement between the parties. 

1. Neither Recipient nor its Representatives shall reproduce any Confidential Information in any form except in furtherance of the Permitted Use.  Any such permitted reproduction of any Confidential Information will remain the property of the Company and Recipient shall ensure that any such permitted reproductions contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Company.  

1. This Agreement will terminate on the earlier of (i) three (3) years after the Effective Date or (ii) such date a definitive written agreement is entered into between the Company and Recipient.  Furthermore, this Agreement may be terminated by the Company at any time upon thirty (30) days’ written notice to Recipient.  Recipient’s and the Representatives’ obligations under this Agreement will survive termination of this Agreement and will be binding upon Recipient’s heirs, successors, and permitted assigns.   

1. THE COMPANY IS PROVIDING CONFIDENTIAL INFORMATION ON AN “AS IS” BASIS FOR USE BY RECIPIENT AT ITS OWN RISK.  THE COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 

1. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state.  Any disputes under this Agreement may be brought in the state courts or federal courts located in Los Angeles County, California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts. This Agreement may not be amended except by a writing signed by both parties.  

1. Recipient hereby agrees that its (or any Representative’s) breach of this Agreement will cause irreparable damage to the Company for which recovery of damages would be inadequate, and that the Company will be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. 

1. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 

1. Recipient shall not (nor shall any Representative) assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. 

1. Recipient shall not (nor shall any Representative) export, directly or indirectly, any U.S. technical data acquired pursuant to this Agreement, or any products utilizing such data, in violation of the United States export laws or regulations. 

1. Recipient shall not use the Company as a reference for new business, or issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the Company’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without obtaining the Company’s prior express written consent. 

1. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested.  Notices will be sent to the addresses set forth at the end of this Agreement or such other address as either party may specify in writing. 

1. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such matters.  No modification of or amendment to this Agreement, or waiver of any rights or benefits hereunder, will be effective unless in writing and signed by all parties hereto.   

 

[Signatures on the Following Page]