1. MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”) is made and entered into as of
________________ (the “Effective Date”) by and between Brand2Mobile, Inc., located at 3017 Douglas
Blvd., Roseville, CA 95661 (“Brand2Mobile”), and ____________________, located at
____________________________________ (“Company”).
WHEREAS, in connection with a possible business transaction utilizing Brand2Mobile
proprietary wireless applications services platform and service to develop, support and host for wireless
applications for Company or its customers to enable certain end-users to access certain materials, data and
information via such wireless applications (the quot;Transactionquot;), the parties hereto recognize that there is a
need for each of the parties (individually, the “Disclosing Party”) to disclose to the other party
(individually, the “Recipient”) for the purposes of evaluating the Transaction certain confidential
information;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Brand2Mobile and Company, intending to be legally bound, agree as follows:
1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all
information or materials about the Disclosing Party and its business, products and services, furnished to the
Recipient that is non-public, confidential or proprietary in nature or which is information that such party is
obligated by law or contract to keep confidential, including, without limitation, (i) all business, marketing
and technical plans, all documents or manuals with respect to the services, products, finances, business
methods or techniques of the Disclosing Party, including marketing, manufacturing, design, pricing,
product, and financial information and (ii) all information deemed to be trade secrets under applicable law,
software, system designs, technical drawings, specifications, models, source code, object code, technical
documentation, technical ideas, procedures and methods, systems, program code, user interfaces, file
layouts, algorithms, inventions, technical know-how, partner and customer lists, user, training and
operational manuals and all other similar information of the party’s technologies and services.
Notwithstanding the above, Confidential Information shall also include (i) the fact that discussions and
negotiations regarding a Transaction are ongoing, (ii) the terms of any discussions and negotiations related
to the parties' possible Transaction, and (iii) any reports or other documents resulting from such
Confidential Information, including reports prepared by the Recipient for its internal use. It is expressly
understood by the parties that Confidential Information includes written information whether or not marked
“secret” or “confidential,” and information disclosed orally or in writing or by any other media.
2. Exceptions. The Recipient shall not be required to maintain the confidentiality of those portions of the
Confidential Information that (i) become generally available to the public other than as result of a
disclosure by the Recipient, (ii) were available to the Recipient on a non-confidential basis prior to the
disclosure of such Confidential Information to the Recipient pursuant to this Agreement, provided that the
source of such information was not known to be bound by a confidentiality agreement with respect to such
material, (iii) are independently developed or acquired without violation of this Agreement or the use of the
Confidential Information, (iv) become available or is acquired on a non-confidential basis from a source
other than the Disclosing Party provided that the source of such information was not known to be bound by
a confidentiality agreement with respect to such material, or (v) are approved for release by written
authorization of the Disclosing Party. The Recipient may disclose Confidential Information requested or
required in connection with any legal proceeding, provided, however, that prior to disclosing the
Confidential Information the Recipient must give the Disclosing Party prompt written notice of such
request or requirement.
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2. 3. Ownership. All Confidential Information shall remain the property of the Disclosing Party and/or its
licensors. This Agreement shall not be construed as granting or conferring any rights by license or
otherwise, expressly or impliedly, to the Recipient to use the Confidential Information in any manner,
except for the authorized purpose stated herein.
4. Use. The Recipient agrees that it will not use the Confidential Information for any purpose other than
evaluating a possible Transaction. The Recipient agrees not to disclose or allow disclosure to others of any
Confidential Information and to restrict disclosure of Confidential Information to only those
Representatives bound in writing to treat such Confidential Information in accordance with this Agreement
and who have a “need to know” such information in order to carry out the above-stated purpose. (As used
herein, “Representatives” shall mean, without limitation, a party’s officers, directors, employees and
contractors.) The Recipient agrees to take reasonable efforts to protect the Confidential Information with no
less restrictive measures than it uses to protect its own confidential and proprietary information,
immediately notify the Disclosing Party upon discovery of any unauthorized use or discovery of
Confidential Information, and reasonably assist the Disclosing Party upon request in regaining possession
of such Confidential Information. Recipient shall not reverse engineer, decompile or disassemble any
software or computer code disclosed, in whole or in part, to Recipient. The Recipient shall be liable to the
Disclosing Party in connection with any failure of its Recipients to comply with the terms and conditions of
this Agreement.
5. Disclaimer. Neither the Disclosing Party nor any of its Representatives (i) have made or make any
representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential
Information or (ii) shall have any liability whatsoever to the Recipient or its Representatives relating to or
resulting from the use of the Confidential Information or any errors therein or omissions therefrom.
6. Term and Termination. The term of this Agreement shall begin on the Effective Date and extend
until the earlier of (i) one (1) year or (ii) until election by either party in writing to terminate further access
to the Confidential Information for any reason. Upon termination, the Recipient shall be promptly return to
the Disclosing Party upon written request (or destroyed at the Disclosing Party’s option) all Confidential
Information, all copies thereof and any notes or memorandum created by Recipient or its Representatives
containing of such Confidential Information, and deliver to the Disclosing Party a written confirmation that
the requirements of this sentence have been satisfied in full. Notwithstanding the return or destruction of
such Confidential Information, the Recipient will continue to be bound by its obligations of confidentiality
hereunder. The obligations of confidentiality hereunder with respect to the Confidential Information
deemed a trade secret under applicable law shall continue after termination of the Agreement until such
information ceases to be a trade secret under applicable law. Such obligations of confidentiality hereunder
with respect to all other Confidential Information shall continue for a period of three (3) years after
termination or expiration of this Agreement.
7. No Exclusivity. Each party hereto agrees that unless and until a definitive agreement between them
with respect to any Transaction has been executed and delivered, neither party will be under any legal
obligation of any kind whatsoever with respect to such Transaction. Nothing in this Agreement shall be
construed to prohibit either party from dealing with any other entity regarding a similar transaction. If the
parties hereto enter into a definitive agreement with respect to a Transaction, the terms of the definitive
agreement shall control in the event of a conflict with any provision herein.
8. Equitable Relief. The Recipient agrees that money damages would not be a sufficient remedy for any
breach of this Agreement by it or its Representatives, that in addition to all other remedies, the Disclosing
Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any
such breach, and the Recipient further agrees to waive any requirement for the securing or posting of any
bond in connection with such remedy.
9. General. All modifications of, waivers of and amendments to this Agreement or any part hereof must
be in writing signed on behalf of each undersigned party. It is further understood and agreed that no failure
or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any
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3. right, power or privilege hereunder. In the event that any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent
permitted by applicable law. Neither party may assign its rights or delegate its obligations hereunder
without prior written consent of the other party, such consent not to be unreasonably withheld. Subject to
the limitations herein contained, this Agreement shall inure to the benefit of and be binding upon the
parties, their successors and assigns. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California, without regards to its conflict of laws principles. If
either party employs an attorney to enforce any rights arising out of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney fees This Agreement sets forth the entire understandings of
the parties with respect to the furnishing of Confidential Information by the Disclosing Party and the
retention, disclosure and use thereof by the Recipient.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this
Agreement as of the Effective Date set forth above.
BRAND2MOBILE, INC. COMPANY:
By: By:
Name: Name:
Title: Title:
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