WHEREAS, Flexagon, LLC and Company are engaged in discussions regarding a potential business relationship (the “Relationship”); and

WHEREAS, a party may request from the other (in such case, the “Receiving Party”) and/or disclose to the other (in such case, the “Disclosing Party”) certain business, financial, technical, and other Confidential Information (as defined below) concerning their respective businesses and affairs that is not available to the public.

NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and the mutual disclosure of confidential information to each other, the parties hereto agree as follows:

  1. Confidential Information and Materials.

(a) “Confidential Information” shall mean any nonpublic information that the Disclosing Party specifically marks and designates, either orally or in writing, as confidential or that, under the circumstances, a reasonable person would consider confidential. “Confidential Information” includes but is not limited to, all sales and operating information, existing and potential business and marketing plans and strategies, financial information, cost and pricing information, data media, know-how, designs, drawings, specifications, source codes, technical information, concepts, reports, methods, processes, techniques, operations, devices, and the like, whether or not the foregoing information is patented, tested, reduced to practice, or subject to copyright. “Confidential information” also includes, but is not limited to, policyholder information, the Disclosing Party’s business policies or practices, customer information, descriptive material, specifications, source code or object code, and information received from others that the Disclosing Party is obligated to treat as confidential, and other materials and information of a confidential nature.

(b) “Confidential Information” shall not include any materials or information that the Receiving Party shows: (i) is, at the time of disclosure, generally known by or available to the public or that becomes so known or available thereafter through no fault of the Receiving Party; or (ii) is legally known to the Receiving Party at the time of disclosure; or (iii) is furnished by the Disclosing Party to third parties without restriction; or (iv) is furnished to the Receiving Party by a third party who legally obtained said information and the right to disclose it; or (v) is developed independently by the Receiving Party where the Receiving Party can document such independent development.

(c) “Confidential Materials” shall mean all tangible materials containing Confidential Information, including, without limitation, drawings, schematics, written or printed documents, computer disks, tapes, and compact disks (CD), whether machine or user readable.

  1. Restrictions

(a)  The Receiving Party shall not disclose any Confidential Information to third parties, except to the Receiving Party’s contractors and consultants as provided below. However, the Receiving Party may disclose Confidential Information in accordance with judicial or other governmental order, provided the Receiving Party shall give the Disclosing Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.

(b)  The Receiving Party shall not use any Confidential Information except as expressly authorized by the Disclosing Party.

(c)  The Receiving Party shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to keep confidential the Confidential Information. The Receiving Party may disclose Confidential Information or Confidential Materials only to the Receiving Party’s employees, independent contractors, or consultants on a need-to-know basis. The Receiving Party shall instruct all parties given access to the information to maintain confidentiality and to refrain from making unauthorized copies. The Receiving Party shall maintain appropriate written agreements with its employees, independent contractors, consultants, parent, subsidiaries, affiliates, or related parties who receive, or have access to, Confidential Information sufficient to enable it to comply with the terms of this Agreement.

(d)  Confidential Information and Confidential Materials may be disclosed, reproduced, summarized, or distributed only in pursuance of the Receiving Party’s business relationship with the Disclosing Party, and only as otherwise provided hereunder. The Receiving Party agrees to segregate all such Confidential Materials from the confidential materials of others to prevent commingling.

  1.     Rights and Remedies

(a)  The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclose of Confidential Information or Confidential Materials, or any other breach of this Agreement by the Receiving Party, and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and/or Confidential Materials and prevent further unauthorized use or disclosure.

(b)  The Receiving Party shall return all originals, copies, reproductions, and summaries of Confidential Information and/or Confidential Materials then in the Receiving Party’s possession or control at the Disclosing Party’s requests or, at the Disclosing Party’s option, certify destruction of the same.

(c) The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for damages resulting from the unauthorized disclosure of Confidential Information and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

(d)  The Disclosing Party may visit the Receiving Party’s premises, with reasonable prior notice and during normal business hours, to review the Receiving Party’s compliance with the terms of this Agreement.

  1. Ownership

The Receiving Party recognizes that all tangible information relating to Confidential Information, including notes, reports and other documents prepared by the Receiving Party in connection with the evaluation of the proposed Relationship, including all copies thereof, are and shall be the sole property of Disclosing Party, and the Receiving Party shall keep the same at all times in its custody and subject to the Receiving Party’s control. The Receiving Party does not hereby and shall not acquire by implication or otherwise any right in or title to or license in respect of the Confidential Information disclosed to it by the other Party.

  1. Compelled Disclosure

In the event that the Receiving Party or any of the Receiving Party’s Representatives is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, it is agreed that the Receiving Party or such Receiving Party’s Representative, as the case may be, will provide Disclosing Party with prompt notice of such request(s) so that Disclosing Party may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or Disclosing Party grants a waiver hereunder, Receiving Party or such Receiving Party’s Representative may furnish that portion (and only that portion) of the Confidential Information which Receiving Party is legally compelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.

  1. Return of Confidential Information

Promptly following the earlier of (i) the termination of this Agreement and (ii) the written request of Disclosing Party, Receiving Party will deliver to Disclosing Party all documents or other materials furnished by Disclosing Party to Receiving Party constituting Confidential Information, together with all copies thereof, including computer disks in the possession of Receiving Party. In the event of such request, all other documents or other materials constituting Confidential Information, together with all copies thereof in the possession of Receiving Party, will be destroyed with any such destruction confirmed by Receiving Party in writing to Disclosing Party. Notwithstanding the foregoing, legal counsel for the Receiving Party may retain, solely for archival purposes, one copy of all Confidential Information as well as documents, memoranda, notes and other writings prepared based on the Confidential Information.

  1. No Obligation

Neither Party shall make any commitment or incur any expense or charge for or in the name of the other Party. Neither has any obligation by virtue of this Agreement to procure any products or services from the other Party. Neither execution nor performance of this Agreement shall be construed or deemed to have established any joint venture or partnership or have created the relationship of principal and agent between the Parties.

  1. Miscellaneous

(a)  All Confidential Information and Confidential Materials are and shall remain the sole and exclusive property of the Disclosing Party. By disclosing information to the Receiving Party, the Disclosing Party does not grant any express or implied right to the Receiving Party in, to, or under the Disclosing Party’s patents, copyrights, trademarks, or trade secrets.

(b)  All Confidential Information and Materials are provided “AS IS” and the Disclosing Party makes no warranty regarding the accuracy or reliability of such information or materials. The Disclosing Party does not warrant that it will release any product concerning which information has been disclosed as a part of the Confidential Information or Confidential Materials. The Disclosing Party will not be liable for any expenses or losses incurred or any action undertaken by the Receiving party as a result of the receipt of Confidential Information or Confidential Materials. The entire risk arising out of the use of the Confidential Information and Confidential Materials remains with the Receiving Party.

(c) The Receiving Party agrees that it shall adhere to all U.S. Export Administration laws and regulations and shall not export or re-export any technical data or products received from the Disclosing Party or the direct product of such technical data to any proscribed country listed in the U.S. Export Administration Regulations unless properly authorized by both the Disclosing Party and the U.S. Government.

(d) The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information.

(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and shall not be modified except by a written agreement dated subsequently to the date of this Agreement and signed by both parties. This Agreement may not be assigned by Recipient by operation of law or otherwise without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed.  None of the provisions of this Agreement shall be deemed to have been waived by an act or acquiescence on the part of the Disclosing Party, or its agents or employees, but only by an instrument in writing signed by an authorized officer of the Disclosing Party. No waiver of any provision of this Agreement shall constitute a waiver of any othe provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provisions of this Agreement.

(f)  If any action at law or in equity is necessary to enforce or interpret the rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which it may be entitled.

(g)  This Agreement shall be construed and controlled by the laws of the state of Wisconsin without regard to its choice of laws principles, and both parties further consent to jurisdiction by the state and federal courts sitting in the state of Wisconsin.

(h)  If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. Should any of the obligations of the parties under this Agreement be found to be illegal or unenforceable as being too broad with respect to the duration, scope, or subject matter thereof, such obligations shall be deemed and construed to be reduced to the maximum duration, scope, or subject matter allowable by law.

(i)  All obligations created by this Agreement shall survive any change in or termination of the parties’ business relationship.

(j) All third parties involved are bound by the same constraints as the party they are associated with that is signing this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized representatives as of the date first set forth above.

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