Layer Mutual NDA Editor

MUTUAL NON-DISCLOSURE AGREEMENT

This Mutual Non-Disclosure Agreement (the “Agreement”), effective as of (the “Effective Date”), is entered into by and between 7Layer.Studio LLC, an Ohio LLC (“7Layer”), and , a (“Company”). 7Layer and Company shall hereinafter collectively be referred to as the “Parties”, and each, separately, as a “Party.” In consideration of the mutual promises and covenants contained in this Agreement, each Party agrees to access, disclose, retain, or otherwise use Confidential Information as follows:

1. Purpose. The purpose for which any Confidential Information (as defined in Section 2, below) of a Party (the “Discloser”) may be disclosed to or used by the other Party (the “Recipient”) under this Agreement is strictly limited to (the “Purpose”).

2. Confidential Information. Except as set forth in Section 3, below, the term “Confidential Information” shall mean all non-public, confidential or proprietary information disclosed prior to, on, or subsequent to, the Effective Date hereof, by the Discloser to the Recipient (or to any of Recipient’s affiliates, or to any of Recipient’s or its affiliates’ employees, officers, directors, members, partners, shareholders, agents, attorneys, accountants, advisors, or other representatives (collectively, “Representatives”)), in whatever form or medium (e.g., written, oral, graphic, electronic, visual, pictorial, physical, via walk-through examination of the Discloser’s premises, or any other form, medium or manner)), and whether or not marked, designated or otherwise identified as “confidential” or “proprietary”, including, without limitation: (a) information concerning the Discloser’s and its affiliates’ past, present and future business affairs, including, without limitation, finances, customer information, supplier information, products, services, financial results, marketing and development, sales and other commercial strategies; (b) inventions (patentable or unpatentable), unpublished patent applications, ideas, concepts, discoveries, improvements, enhancements, trade secrets, know-how, and other confidential intellectual property; (c) designs, specifications, data, formulae, algorithms, technology, applications, programs, software, source code, interfaces, screens, images, audiovisual components, schematics, drawings, protocols, and visual depictions (in whole or in part) of any of the foregoing; (d) other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the Parties’ businesses; and (e) notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, observations, and other materials (the “Notes”) prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing. For the avoidance of doubt, non-public documentation and information about the MemoryKeep™ application is Confidential Information of 7Layer.

3. Exclusions from Confidential Information. The term ‘Confidential Information’ as used in this Agreement shall not include information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public, except as a result of, directly or indirectly, any breach of this Agreement by the Recipient or any of its Representatives; (b) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any legal, fiduciary, or contractual obligation; (c) prior to the time of disclosure, was known by or in the possession of the Recipient, as established by documentary evidence; or (d) was independently developed by the Recipient, as established by documentary evidence, without access to or use of any of the Discloser’s Confidential Information.

4. Recipient’s Obligations. The Recipient shall: (a) use the Discloser’s Confidential Information only for the Purpose set forth in this Agreement; (b) hold the Discloser’s Confidential Information in strict confidence; (c) protect and safeguard the confidentiality of Confidential Information and prevent and protect it from unauthorized use or disclosure, in each case using the same standard of care that the Recipient uses to protect its own confidential information of a similar nature, but in no event with less than a reasonable standard of care; (d) not use or permit Confidential Information to be accessed or used, in any manner to compete with the Discloser, including without limitation, to reverse engineer, disassemble, decompile, or design around the Discloser’s products, services, algorithms, trade secrets and/or other intellectual property (whether included in the Discloser’s Confidential Information or otherwise) or to otherwise use it to Discloser’s detriment; and (e) restrict the use and disclosure of or access to any of the Discloser’s Confidential Information to the Recipient’s Representatives who: (i) need to know the Confidential Information to perform their duties on behalf of the Recipient in relation to the Purpose; (ii) are informed in writing by the Recipient of the confidential nature of the Confidential Information; and (iii) are subject to written confidentiality obligations no less restrictive than the terms and conditions of this Agreement. If such consent is granted, Recipient shall only use the Confidential Information for the specific Purpose. The Recipient shall be responsible for any breach of this Agreement by any of its Representatives.

5. Additional Confidentiality Obligations. Except as otherwise mutually agreed in writing by the Parties, the Recipient shall not, and shall not permit its Representatives to, disclose to any person: (a) that Confidential Information has been made available to the Recipient or its Representatives; (b) that discussions or negotiations may be or are underway between the Parties regarding the Confidential Information or the Purpose; or (c) any terms or conditions of this Agreement, or any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or the Purpose.

6. Legally Compelled Disclosures. Notwithstanding Sections 4 and 5, above, in the event the Recipient is required by applicable law or a valid order issued by a court or governmental agency of competent jurisdiction to disclose the Discloser’s Confidential Information (a “Legal Order”), the Recipient shall provide the Discloser with prompt written notice of same, so that the Discloser may seek a protective order or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. Until such time as the appropriate judicial or other authority has ruled upon the Discloser’s protective order or other request for remedy, the Recipient shall refrain from disclosing any of the Discloser’s Confidential Information in response to any such Legal Order. The Recipient shall cooperate with and assist the Discloser, at the Discloser’s expense, in seeking any protective order or other relief requested or otherwise available under applicable law. If such protective order or other remedy is ultimately not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally compelled to disclose, and any and all such disclosures shall be made under seal or other appropriate assurances of confidentiality to the fullest extent possible.

7. Cumulative Duties and Obligations. The Recipient’s duties and obligations of confidentiality under this Agreement are in addition to, and not in substitution for, any duties and obligations of confidentiality, non-disclosure or non-use owed by the Recipient to the Discloser under any applicable law.

8. Ownership of Confidential Information. Confidential Information (including any and all right, title and interest therein and in and to any and all any patent, trademark, copyright, trade secret or other intellectual property rights therein) is and shall remain the sole and exclusive property of the Discloser. Except as otherwise set forth in this Agreement, neither this Agreement nor any disclosure of the Discloser’s Confidential Information hereunder shall operate or be construed as an express or implied grant, transfer, conveyance, assignment or license to the Recipient or any of its Representatives of any right, title or interest in and to the Discloser’s Confidential Information and/or in and to any of the Discloser’s patent, trademark, copyright, trade secret or other intellectual property rights. Notwithstanding the foregoing, and in the absence of a separate written agreement relating thereto, Company agrees that any and all intellectual property jointly made, developed, conceived, first reduced to practice, fixed in any tangible medium of expression, or created by the parties during the term of this Agreement, shall be the sole and exclusive property of 7Layer (“Developments”). Company hereby assigns, conveys, and transfers its entire right, title, and interest in and to the Developments to 7Layer and agrees to take any other actions, and to execute such other documents as are reasonably necessary to perfect 7Layer’s rights in and to the Developments.

9. No Obligation. The Parties agree that this Agreement does not require or compel the Discloser to disclose any Confidential Information to the Recipient and does not constitute a commitment by either Party to enter into a business relationship, including, without limitation, any license agreement or contractual relationship. Any such relationship is to be entered into only upon the execution of a separate written agreement between the Parties concerning such relationship.

10. Mutual Representations and Warranties. Each Party represents and warrants that the individual executing this Agreement on behalf of such Party has all necessary corporate power and authority to execute this Agreement and that it has a right to disclose its Confidential Information to the Recipient. Except as stated herein: (i) the Discloser does not make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Recipient hereunder, (ii) the CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, and the Discloser shall have no liability to the Recipient relating to, or resulting from, the Recipient’s use of the Confidential Information, or any errors therein or omissions therefrom.

11. Term and Termination. This Agreement shall commence on the Effective Date and shall expire from the Effective Date, unless earlier terminated by either Party pursuant to this Section 11 (the “Term”). Either Party may terminate this Agreement at any time for any reason by providing written notice to the other Party.

12. Survival. Notwithstanding termination of this Agreement, the obligations of confidentiality, non-disclosure and non-use set forth herein shall survive the expiration or termination of this Agreement for a period of ; provided, however, that with regard to any Confidential Information that constitutes a trade secret, the obligations of confidentiality, non-disclosure and non-use shall survive the expiration or termination of this Agreement for so long as such Confidential Information qualifies as a trade secret under applicable law.

13. Return of Confidential Information. Upon the expiration or termination of this Agreement, or upon the request of the Discloser, the Recipient and its Representatives shall immediately cease any and all further use of the Discloser’s Confidential Information, and shall, within ten (10) calendar days from such request, and, at the option of the Discloser, either return all copies of Confidential Information (inclusive of all Notes) to the Discloser (whether in written, electronic or other form or media), or delete, destroy and expunge all such copies of Confidential Information (inclusive of all Notes) (whether in written, electronic or other form or media) from the Recipient’s and its Representatives’ files, repositories and systems (physical, electronic or otherwise), and provide the Discloser with written certification of the method and date of completion of such destruction. Notwithstanding the foregoing, with regard to any Discloser Confidential Information that Recipient archived electronically (whether via automatic archiving or back-up procedures, and whether on backup tapes, servers or other media), Recipient shall use reasonable efforts to destroy such Confidential Information without undue expense or business interruption, and, where infeasible, shall store such electronically-archived Confidential Information subject to the duties and obligations of confidentiality under this Agreement until such copies are overridden in the ordinary course of the Discloser’s business.

14. Breach. Recipient shall notify the Discloser promptly, and without delay, upon the discovery of (i) the actual or reasonably suspected unauthorized use, or disclosure, of Confidential Information, or (ii) any actions that the Recipient, or a third-party on the Recipient’s behalf, has undertaken that are inconsistent with the obligations set forth in this Agreement. In the event of a breach of any aspect of this Agreement, the Recipient shall fully cooperate, at its own expense, to help regain possession of Confidential Information and/or take other measures to mitigate against, or prevent, the unauthorized (or further unauthorized) use of Confidential Information. The Recipient acknowledges that money damages may not be a sufficient remedy for any breach or threatened breach of this Agreement by the Recipient or its Representatives. Therefore, in addition to any other rights and remedies to which the Discloser may be entitled (which other rights and remedies the Discloser hereby expressly reserves and does not waive by the exercise of any rights hereunder), the Discloser shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Recipient hereby waives any requirement for the Discloser to secure or post any bond or to otherwise show actual monetary damages in connection with any such remedy sought under this Section 14. The Recipient shall be and remain liable for any breach of the terms or conditions of this Agreement by its Representatives.

15. Jurisdiction and Choice of Law. This Agreement shall in all respects be governed by, and construed and interpreted in accordance with, the laws of the State of Ohio without giving effect to any conflicts of law principles. The Parties agree that all actions arising out of or related to this Agreement shall be instituted exclusively in the state or federal courts of the State of Ohio, and the Parties hereby submit to the exclusive jurisdiction and venue of any said state or federal courts, and hereby waive any objection based on improper venue or forum non conveniens.

16. Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces all prior communications, understandings and agreements, written or oral, between the Parties relating to the subject matter hereof. No waiver by a Party of any of the terms or provisions hereof shall be effective unless explicitly set forth in writing signed by such Party. A waiver shall not operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of this Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction, then the validity and enforceability of the other provisions of this Agreement, shall not in any way be affected or impaired thereby; and such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties. Neither Party shall be permitted to assign, transfer, convey or delegate, in whole or in part, this Agreement or any of its rights, duties or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent thereto. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. All notices hereunder shall be in writing and must be sent to the respective parties at the addresses or emails, as applicable, set forth in the signature page of this Agreement (or to such other address, email or facsimile number that may be designated by a Party from time to time in accordance with this Section). No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each Party. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same Agreement. Electronic signatures, or scanned original signatures (e.g., PDF) shall be deemed as original.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the dates set forth below.