MUTUAL NON-DISCLOSURE AGREEMENT

MUTUAL NON-DISCLOSURE AGREEMENT

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This MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the undersigned counterparty and Halcyon Tech, Inc., a Delaware corporation.  In consideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:

1. Scope of Confidential Information.  “Confidential Information” is any information or data, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party hereto (the “Disclosing Party”) to the other party hereto (the “Receiving Party”) and that (a) the Disclosing Party has marked or identified as confidential or proprietary or (b) the Disclosing Party identifies as confidential in writing or electronically within 30 days of disclosure to the Receiving Party. or (c) notwithstanding the above requirement for marking or other identification of Confidential Information, the parties agree that all non-public technology, algorithms, source code, prototypes, trade secrets, designs, know-how, inventions (whether patentable or not), financial plans and records, sales and marketing plans, contracts, customer and client lists, pricing information, and all historical and current financial information shall be deemed “Confidential Information” and handled as such, without the requirement of marking or other form of identification. Notwithstanding the foregoing, “Confidential Information” shall not include any information that the Receiving Party can demonstrate: (a) is made available to Receiving Party by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Disclosing Party; (b) was available to or in possession of Receiving Party (free of any confidentiality obligation in favor of Disclosing Party known to Receiving Party at the time of disclosure or availability) prior to disclosure of such information by Disclosing Party to Receiving Party; (c) is subsequently developed by the Receiving Party independently of the information received from the Disclosing party; or (d) is, or becomes, public knowledge through no wrongful act or omission of the Recipient.
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2. Use and Disclosure of Confidential Information.  The Receiving Party shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”), and for no other purpose.  The Receiving Party shall not, without the prior written consent of the Disclosing Party, directly or indirectly, disclose or otherwise make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential Information to (a) if applicable, the Receiving Party’s employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) if applicable, Receiving Party’s professional advisers, in each case, during the time that the Receiving Party is permitted to retain such Confidential Information hereunder; provided that any and all such employees and consultants are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Receiving Party shall be responsible for any breach of the terms and conditions of this Agreement by such employees, consultants and professional advisors, as though they were party hereto.  The Recipient shall safeguard and hold in strict confidence the Confidential Information of the Discloser, and protect Discloser’s Confidential Information to the same degree and standard of care that Recipient protects its own confidential information, but with no less reasonable care and adequate measures.  The Receiving Party agrees to notify the Disclosing Party promptly in writing if the Receiving Party becomes aware of any breach of this Agreement.  In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide reasonable cooperation and assistance to the Disclosing Party in seeking to obtain such protection.  
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3. Certain Rights and Limitations.  All right, title and interest in the Confidential Information shall remain the property of Disclosing Party, and there are no implied rights granted hereunder.  All tangible embodiments of the Confidential Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the "Tangible Embodiments"), shall at all times be and remain the exclusive property of the Disclosing Party. This Agreement imposes no obligations on either party to exchange any Confidential Information or to engage in any transactions. Neither Party shall act as an agent or representative of the other Party. Nothing in this Agreement shall grant to either Party any right to make commitments of any kind for or on behalf of the other Party without prior written consent of the other Party.  NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT.  ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”   
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4. Remedies.  Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing Party for which Disclosing Party could not be adequately compensated by money damages.  Accordingly, Receiving Party agrees that, in addition to all other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms of this Agreement, the Disclosing Party shall be entitled to seek temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. 
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5. ‍Termination.  This Agreement may be terminated by either party with thirty (30) days prior written notice.  The terms and conditions of this Agreement shall survive any such termination with respect to Confidential Information that is disclosed prior to the effective date of termination for a period of five (5) years.  Upon the termination of this Agreement, the Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments. However, Recipient may retain any Confidential Information that: (i) it is required to keep by applicable law, court order or other regulatory agency; or (ii) has been created electronically pursuant to an automatic archiving, back-up, or security or disaster recovery system; provided, however, that any such retained information shall remain subject to this Agreement.   
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6. ‍Miscellaneous.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts-of-law principles.  The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of Delaware, and the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens.  Neither party shall assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise) or any rights or obligations hereunder without the other party’s prior written consent.  This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings whether written or oral, express, or implied.  No amendment, waiver, or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto.

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