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MUTUAL CONFIDENTIAL NON-DISCLOSURE AGREEMENT

Cerasis, Inc. (“CERASIS, INC.”), a Delaware corporation, having a principal place of business at 3200 Courthouse Lane, Eagan, MN 55121, and the “Disclosing Party” hereby agree as follows:’

  1. To further a possible business relationship between CERASIS, INC. and the Disclosing Party it is necessary and desirable that CERASIS, INC. and the Disclosing Party disclose to each other certain of their proprietary and confidential information concerning certain technology, know-how, data, and/or other information relating to their current and/or proposed products and operations (hereinafter referred to as “Confidential Information”). “Confidential Information” includes information, technical data, or know-how, including, but not limited to, research, products, services, development, inventions, processes, designs, flowcharts, software, methods, algorithms, product plans, drawings, marketing, or finances, disclosed by one party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall include, but not be limited to, all materials marked “Confidential Information”. If the information is disclosed orally and/or visually it shall be confirmed in a written letter within twenty (20) days following such disclosure by the party disclosing the Confidential Information (the “Disclosing Party”). ‘
  2. The party receiving disclosure of Confidential Information (the “Receiving Party) hereby agree not to disclose Confidential Information to any person or entity and agrees to use its best efforts to prevent inadvertent disclosure of Confidential Information to others. The Receiving Party agrees to treat the Confidential Information with at least the degree of care that it treats similar materials of its own, or a higher standard of care if reasonable under the circumstances.
  3. The Receiving Party agrees not to use Confidential Information for its own use or for any purpose except to evaluate whether it desires to become engaged with the Disclosing Party in a business possibility or, after becoming engaged, to carry out the business with the Disclosing Company. The Receiving Party agrees not to disclose Confidential Information to any third parties or to any of its employees except employees who are required to have the Confidential Information to evaluate the business possibility and in compliance with paragraph 7 hereof.
  4. The Receiving Party’s obligations of paragraphs 2 and 3 hereof shall terminate with respect to any particular portion of the Confidential Information:
    (i) when the Receiving Party can document that:
    (a) it was in the public domain at the time of the Disclosing Party’s communication thereof to the Receiving Party; or
    (b) it entered the public domain through no action of the Receiving Party or its employees subsequent to the time of the Disclosing Party’s communication thereof to the Receiving Party.(ii) when it is communicated by the Disclosing Party to a third party free of any obligation of confidence; or
    (iii) upon the prior written consent of the Disclosing Party.
  5. All materials, including, without limitation, documents, drawings, models, apparatus, sketches, designs, and lists, furnished to the Receiving Party by the Disclosing Party shall remain the property of the Disclosing Party and nothing contained herein shall be construed as giving the Receiving Party any license or rights with respect to any information or materials which may be disclosed to the Receiving Party including Confidential Information. The Receiving Party shall make no copies of any Confidential Information without the prior written consent of the Disclosing Party and the Receiving Party shall return to the Disclosing Party promptly at its request all Confidential Information along with all copies made thereof and all documents or things containing any portion of any Confidential Information.
  6. Communications from either party to personnel and authorized representatives of the other shall not be in violation of the proprietary rights of any third party.
  7. Prior to disclosing any Confidential Information to any of its employees, agents, affiliates or any other party, the Receiving Party shall notify the Disclosing Party, in writing, of the names of any such person or persons and the relationship of such person or persons to the Receiving Party, and shall not disclose any Confidential Information to such person or persons until such time as the Disclosing Party shall have approved such disclosure and shall have obtained from each such person or persons an executed confidentiality agreement containing similar substance to this agreement. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse or misappropriation of such Confidential Information of the Disclosing Party which may come to its attention.
  8. This Agreement shall be construed in accordance with the laws of the State of Minnesota. The federal and state courts within the State of Minnesota shall have exclusive jurisdiction to adjudicate any dispute arising out of this agreement.
  9. This agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that Confidential Information may not be assigned without the consent of the Disclosing Party.
  10. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.
  11. Both Parties hereto acknowledge that a breach of this Agreement would result in irreparable harm to the Disclosing Party, the extent of which would be difficult to ascertain, and in any event money damages would be inadequate in the event of such a breach. Accordingly, the parties hereto agree that, in the event of a breach of this Agreement, the Disclosing Party shall be entitled to injunctive or other equitable relief as the court deems appropriate without the necessity of proving actual damages, in addition to any other remedies which it may have available.
  12. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
  13. In the event that any portion of this Agreement may be held to be invalid or unenforceable for any reason, it is hereby agreed that said invalidity or unenforceability shall not affect the other portions of this Agreement and that the remaining terms and conditions or portions thereof shall remain in full force and effect and any court of competent jurisdiction may so modify the objectionable provision as to make it valid, reasonable and enforceable.
  14. This Agreement contains the entire agreement of, and supersedes any and all prior understandings, arrangements, and agreements between, the parties hereto, whether oral or written, with respect to the subject matter hereof.

Creation of an account at the Cerasis Developers Portal constitutes agreement with the above non-disclosure agreement in full.

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