Purple Hat, Inc.™ Non Disclosure Agreement

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This Mutual Nondisclosure Agreement (“Agreement”) is made on Date listed below (the “Effective Date”), between Purple Hat , Inc. ™  (“PHI” or “Disclosing Party”), with its executive offices located in Utah and Name listed below(“Recipient”), for the purpose of protecting and preserving the confidential and/or proprietary nature of information to be disclosed or made available by each party (“Discloser”) to the other party (“Recipient”) under this Agreement. The Agreement will apply to all divisions, locations and subsidiaries of PHI and Recipient, unless specified to the contrary in writing by either party. 

PHI owns or possesses certain information relating to proprietary business data, markets, customers, technologies, processes and services and such information is confidential (hereinafter referred to as “Confidential Information”). The parties wish to exchange such information for the purpose of evaluating a potential opportunity with PHI. Said information is proprietary as to the respective party and involves certain information (including trade secrets, product and process know‑how, techniques and material specifications) of a character regarded by the disclosing party as confidential.

 1. Confidential Information. “Confidential Information” means any information, data or know-how of either party identified above that is considered confidential or proprietary by the Discloser, disclosed, in writing, or orally, or by access to the disclosing party’s premises, which is designated in writing as confidential, or if given orally or visually, by providing the Recipient with written notice that such information is deemed to be Confidential Information within thirty (30) days of disclosure of the information to Recipient. Confidential Information includes, without limitation, any form (including, without limitation, engineering documents, research and development, manuals, reports, designs, drawings, plans, flowcharts, products, product information, new product plans, sales and marketing plans and/or programs, pricing information, customer lists and other customer information, financial information and employee files or other employee information) relating to either party’s business or technology identified above that is disclosed by Discloser either directly or indirectly to Recipient.

2. Recipient agrees that all Discloser’s Confidential Information obtained from or through Discloser shall remain the property of Discloser. Recipient agrees to return all such Confidential Information to Discloser, and all copies thereof, at the request of Discloser.

3. Recipient agrees that it will not publish or release any information pertaining to Discloser’s Confidential Information without the written consent of Discloser.

4. Representatives. The representatives primarily responsible for the disclosure or receipt of Confidential Information, as applicable, are from PHS.

5. Limited Use of Confidential Information. Unless agreed to in writing to the contrary, the parties agree to use Discloser’s Confidential received hereunder solely for the purpose of engaging in discussions between PHI & Recipient. Recipient agrees to use Discloser’s Confidential Information only to the extent necessary to engage in such discussions.

6. No Right or License. No right or license is granted hereby to Recipient, expressly or by implication, with respect to Discloser’s Confidential Information, or other proprietary right of Discloser, notwithstanding the expiration of the confidentiality obligations of this Agreement. Nothing in this Agreement shall be construed as a representation that either party will not independently pursue similar opportunities, provided that the obligations of this Agreement are not breached.

7. Obligation of Confidentiality. Each party agrees that, for a period for three (3) years from receipt of Discloser’s Confidential Information from the other party hereunder, it shall use the same degree of care and means that it utilizes to protect its own information of a similar nature, but in any event not less than reasonable care and means, to prevent the unauthorized use or the disclosure of Discloser’s Confidential Information to third parties. Discloser’s Confidential Information shall not be disclosed only to employees, associates, acquaintances or contractors of the Recipient. Recipient is not to disclose Discloser’s Confidential Information nor to use the Confidential Information for any purpose, except as set forth herein.

8. Exceptions to Obligation of Confidentiality. Confidential Information does not include that which (i) is in the Recipient’s possession at the time of disclosure without restriction, (ii) is or becomes part of the public knowledge or literature, not as a result of any action or inaction of the Recipient, (ii) is approved for release by written authorization of the Discloser, or (iv) is independently developed by the Recipient without access to the Confidential Information. In the event Recipient is required to disclose Confidential Information pursuant to a judicial or governmental order, such party will promptly notify the Discloser to allow intervention in response to such order. Each party will advise the other party in writing of any misappropriation or misuse of the Confidential Information of which the notifying party becomes aware.

9. Injunctive Relief. If Recipient fails to comply with any of its obligations under this Agreement, Discloser may suffer immediate, irreparable harm due to the unique nature of Discloser’s Confidential Information. In addition to monetary damages to compensate Discloser for any such breach, Discloser may seek immediate injunctive relief or other equitable remedies in addition to any other available legal remedies.

10. Term and Termination. This Agreement will become effective as of the date written above and will continue for a period of three (3) years unless earlier terminated. Either party may terminate this Agreement at any time without cause upon written notice to the other; however, the confidentiality obligations will survive expiration or termination of this Agreement for the period of time set forth herein. Recipient's obligations hereunder with respect to any item of Confidential Information will continue for a period of three (3) years from the date of disclosure to Recipient. Upon termination of this Agreement, either party may, at its option, request the return or destruction of any of the Discloser’s Confidential Information in the possession of the Recipient, provided, however, that the Recipient may retain one copy thereof in the confidential, restricted access files of its legal department for use only in the event a dispute arises between the parties hereunder and only in connection with that dispute.

11. Attorney’s Fee Jurisdiction. In the event of any litigation between the parties, the prevailing party will be entitled to reasonable attorneys’ fees and all costs incurred in enforcing this Agreement. The parties agree that this Agreement and the transactions hereunder will be governed by Utah law, excluding its conflict of laws rule.

12. This Agreement shall not be assigned by one party without the written consent of the other party. This Agreement represents the entire agreement and understanding between the parties with respect to the subject matter hereof. No modification to this Agreement shall be effective unless made in writing and signed by both parties. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, U.S.A., without regard to its conflicts of law principles. 

13. Arbitration. All disputes under this Agreement that cannot be resolved by the parties shall be submitted to arbitration under the rules and regulations of the American Arbitration Association. Either party may invoke this paragraph after providing 30 days' written notice to the other party. All costs of arbitration shall be recovered by the prevailing party and upfront fees shall be divided equally between the parties. Any award may be enforced by a court of law. 

14. Transfer of Rights. This Agreement shall be binding on any successors of the parties. Neither party shall have the right to assign its interests in this Agreement to any other party, unless the prior written consent of the other party is obtained. 

15. Amendment. This Agreement may be modified or amended, if the amendment is made in writing and is signed by both parties. 

16. Severability. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be permitted by the parties to be modified by the court. 

17. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 

18. Miscellaneous. This Agreement is intended as the complete and exclusive agreement as to the protection of the Confidential Information disclosed hereunder and supersedes all prior proposals, discussions, agreements, or commitments, whether oral or written, between the parties regarding such subject matter. This Agreement may be modified only in writing signed by the parties. This Agreement will not be construed as a teaming agreement, joint venture or other business relationship. This Agreement will be binding upon the successors and assigns of both parties.

 The undersigned represent and warrant that they have the authority to enter into this Agreement on behalf of the person, entity or corporation listed.