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Mutual nondisclosure agreement

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1. Purpose.  The Parties desire to disclose and exchange Confidential Information (as defined below), so that the Parties may make use of such information for the sole purpose of evaluating potential engagement between them (the “Purpose“). 

2. Definitions.  For purposes of this Agreement, the terms listed below shall have the meanings indicated beside them:

(a) “Affiliate” means, any legal entity controlled by, controlling, or under common control, where “control” (and its derivatives) means: direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of shares or any class of voting or equity interests in the other corporation, person, or entity.

(b) “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party in connection with this Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (including any information disclosed prior to the Effective Date).  

(c) “Disclosing Party” means each Party in its capacity as a discloser of Confidential Information.

(d) “Receiving Party” means each Party in its capacity as a recipient of Confidential Information.  

3. Obligations of Confidentiality.  The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own confidential and proprietary information of a similar nature, but in no event less than a reasonable standard of care.  The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party, and shall not use or reproduce in any form the Disclosing Party’s Confidential Information, except as required to exercise its rights and discharge its responsibilities in connection with the Purpose. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps reasonably requested by the Disclosing Party to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.

4. Exceptions.  The term “Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement, with no obligations of confidentiality; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party’s Confidential Information.

5. Representatives.  The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to its officers, directors, employees, professional advisors, or subcontractors (collectively, “Representatives”) who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities in connection with the Purpose.   Prior to such disclosure, the Receiving Party will inform such Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the non-disclosure requirements and limitations on use set forth herein and shall make sure that each such Representatives is bound by a non-disclosure undertaking of terms not less restrictive than the terms hereof.

6. Mandatory Disclosure.   Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to a request or order made pursuant to applicable law, regulation or legal process, provided that: (a) the Receiving Party gives the Disclosing Party prompt written notice of such request or order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such request or order; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.  

7. No Warranty.  All Confidential Information provided by both Parties hereunder is provided “as is,” and neither Party makes any express or implied representation or warranty regarding the accuracy or completeness of any Confidential Information.

8. No License.  Except for the limited right to use the Confidential Information to facilitate the Purpose hereunder, no right or license of any kind to the Confidential Information or intellectual property of either Party is granted or implied by this Agreement.  

9. Term.  This Agreement shall be effective beginning on the Effective Date, and shall continue unless and until the Parties enter into a subsequent written agreement, which expressly addresses the treatment of Confidential Information disclosed hereunder.  Notwithstanding the foregoing, either Party shall have the right to terminate this Agreement at any time for its convenience upon thirty (30) days prior written notice to the other Party.  The obligations with respect to Confidential Information disclosed prior to the effective date of termination of this Agreement shall survive the termination of this Agreement, for a period of five (5) years thereafter.

10. Return of Materials.   Upon the termination of this Agreement or upon the earlier request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party all Confidential Information (and all copies thereof) of the Disclosing Party, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of the Disclosing Party’s Confidential Information.

11. No Commitment.  Nothing contained in this Agreement shall obligate the Parties to enter into any business arrangement relating to the Purpose or to proceed with any other relationship or transaction.

12. Remedies.  Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party may irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from damages in an action at law.  Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.  

13. Governing Law and Jurisdiction.   This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, excluding its rules of conflicts of law.  Both Parties hereby consent and submit to the exclusive jurisdiction of the competent courts within the Central District, Israel. 

14. Notices.   All notices or other communications to be given pursuant to, or in connection with, this Agreement shall be in writing and shall be deemed received: (a) on the date of delivery, when delivered personally; (b) three (3) business day after deposit for next day delivery with a national overnight delivery service; or (c) on the earlier of the date of delivery or four (4) business days after mailing when mailed by registered or certified mail return receipt requested, postage prepaid, to the address of the other Party set forth in the first paragraph of this Agreement or such other address as a Party may by notice specify to the other Party.  A copy of all notices to be provided to __________ hereunder shall be sent to the attention of its Legal Department.

15. Assignment.    Neither Party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld.  

16. Miscellaneous.  This Agreement represents the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes any other agreement or understanding, whether written or oral, that the Parties may have had with respect thereto.  The provisions of this Agreement shall not be modified or amended except by a written instrument duly executed by both Parties.  No waiver of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a waiver in any other instance.  No waiver shall be binding unless executed in writing by the Party making the waiver.  Every provision of this Agreement shall be construed, the extent possible, so as to be valid and enforceable, provided that if any portion of this Agreement is found by a competent authority to be illegal or unenforceable, such provisions shall be severed or modified to the extent necessary to make this Agreement enforceable, and so severed or modified, this Agreement shall remain in full force and effect.   This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement.  

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