Mutual Nondisclosure Agreement

This Mutual Nondisclosure Agreement (this “Agreement”), effective as of the date of acceptance (the “Effective Date”), is made between SecureSync Inc. dba Photon Commerce (together with its subsidiaries, “Photon Commerce”) and the party countersigning or accepting this Agreement (“Participant”). Each of Photon Commerce and Participant are referred to as a “Party,” or collectively, the “Parties.” In connection with the Parties’ actual or potential commercial relationship or transactions (the “Purpose”), each Party may receive confidential information from the other Party. Accordingly, Photon Commerce and Participant hereby agree as follows:

1. Affiliates; Confidential Information

The term “Affiliate” means, with respect to either Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party, where “control” is defined as the ownership of at least 50% of the beneficial interests of such entity or the right to vote for or appoint a majority of the governing body of such entity. The term “Confidential Information” means all nonpublic information concerning the Purpose disclosed by either Party or its Affiliates (collectively, the “Disclosing Party”) to the other Party or its Affiliates (collectively, the “Receiving Party”), provided that (i) the Disclosing Party marks any documentary or tangible information as “Confidential,” “Proprietary,” or the like; (ii) with respect to information disclosed intangibly such as orally or visually, the Disclosing Party advises the Receiving Party of its confidential nature at or shortly after the time of initial disclosure; or (iii) a reasonable person under similar circumstances and due to the character or nature of the information would treat that information as proprietary and confidential. Confidential Information includes, without limitation, (x) nonpublic information relating to the Disclosing Party’s technology, products, services, processes, data, customers, business plans and methods, promotional and marketing activities, finances and other business affairs, (y) third-party information that the Disclosing Party is obligated to keep confidential, and (z) the nature, content and existence of a Purpose, this Agreement, and discussions or negotiations between the Parties.

2. Exclusions

Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement by the Receiving Party (provided, however, information that is rumored or reported does not become public based only on such rumors or reports), (ii) is disclosed on a non-confidential basis to the Receiving Party by any third party, except where the Receiving Party knows, or reasonably should know, that such disclosure is in breach of a confidentiality obligation, or (iii) is independently developed by the Receiving Party without use of any Confidential Information, as demonstrated by the Receiving Party’s written records.

3. Use and Disclosure of Confidential Information

The Receiving Party will use Confidential Information only in connection with the Purpose. Except as provided in this Agreement, the Receiving Party will not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party will take reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information. The Receiving Party may not reverse engineer, decompile or disassemble any Confidential Information of the Disclosing Party.

4. Receiving Party Personnel

The Receiving Party will restrict the possession, knowledge and use of Confidential Information to its directors, officers, employees, contractors, agents, and legal and accounting advisers (collectively, “Personnel”) who (i) have a need to know Confidential Information in connection with the Purpose, (ii) are informed of the confidential nature of the Confidential Information, and (iii) have written obligations of confidentiality to the Receiving Party with respect to the Confidential Information that are at least as stringent as this Agreement. Each of Photon Commerce and Participant will remain liable for the acts and omissions of its Affiliates and its/their Personnel.

5. Disclosures Required by Law

If the Receiving Party is required to disclose Confidential Information of the Disclosing Party in order to comply with orders of governmental entities that have jurisdiction over the Receiving Party or as otherwise required by applicable law, rule, regulatory or judicial, legal or administrative process or authority (collectively, “Law”), the Receiving Party shall (i) give the Disclosing Party written notice as soon as practicable; (ii) take all reasonable steps to preserve the confidentiality of the Confidential Information (including, without limitation, by cooperating with the Disclosing Party to obtain at the Disclosing Party’s cost a confidentiality order or other appropriate remedy); and (iii) disclose only that portion of Confidential Information which is legally required to be disclosed, if any.

6. Ownership of Confidential Information

All Confidential Information will remain the exclusive property of the Disclosing Party. The Disclosing Party’s disclosure of Confidential Information will not constitute an express or implied grant to the Receiving Party of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks or other intellectual property rights. Each Party is prohibited from using any trade name, trademark, logo or any other proprietary rights of the other Party or any of its Affiliates in any manner without a separate written agreement between the Parties. No representation or warranty, express or implied, is made by the Disclosing Party as to the accuracy, completeness or sufficiency of its Confidential Information, and no Disclosing Party shall have liability to the Receiving Party resulting from the Receiving Party’s use of the Confidential Information.

7. Notice of Unauthorized Use

The Receiving Party will notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party. The Receiving Party will cooperate with the Disclosing Party to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use and disclosure.

8. Return or Destruction

Promptly following the Disclosing Party’s written request, the Receiving Party will return or destroy all tangible materials or portions thereof constituting Confidential Information (including, without limitation, all summaries, copies and excerpts of Confidential Information), and will certify such return or destruction in writing to the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may retain copies of the Confidential Information (a) as part of the archival records (including backup systems) maintained by the Receiving Party in the ordinary course of business, but only to the extent required by the Receiving Party’s records retention policies; or (b) to the extent required by applicable law; provided that all such copies shall remain subject to the confidentiality obligations herein for so long as they are retained.

9. Injunctive Relief

The Receiving Party acknowledges that a breach of its obligations under this Agreement could cause irreparable harm to the Disclosing Party as to which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek injunctive relief for any actual or potential breach of this Agreement.

10. Scope; Termination

This Agreement covers Confidential Information disclosed by the Disclosing Party on or after the Effective Date. Each Party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other Party, whether express, implied, in fact or in law. The Parties are independent contractors, and this Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or any obligation to form any such relationship or entity. Either Party may immediately terminate this Agreement upon written notice to the other Party; provided, however, that (i) except as outlined in Section 8, each Party’s obligations with respect to the other Party’s Confidential Information will survive for three (3) years following termination, and (ii) Sections 6 (Ownership of Confidential Information), 9 (Injunctive Relief), 10 (Scope; Termination), and 11 (Miscellaneous) will survive indefinitely.

11. Miscellaneous

11.1This Agreement constitutes the entire agreement between the Parties relating to the matters discussed herein and supersedes all prior communications and agreements between the Parties with respect thereto. This Agreement may be amended, modified or waived only upon the written agreement of the Parties. The waiver by either Party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of this Agreement. This Agreement may be assigned by a Party to an Affiliate with prior written notice to the other Party, but otherwise is not assignable without the prior written consent of the other Party.

11.2If a provision of this Agreement is held invalid under Law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under Law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.

11.3All adversarial proceedings arising out of this Agreement will be governed by internal laws of the State of California. Exclusive jurisdiction over and venue of any suit arising out of or relating to this Agreement will be in the state and federal courts located in Los Angeles County, California, and each of the Parties consents to the personal jurisdiction of, and venue in, those courts.

11.4All notices hereunder will be given in writing, will refer to this Agreement and will be personally delivered or sent by overnight courier, electronic mail, or registered or certified mail (return receipt requested) to the address set forth below the Parties’ signatures to this Agreement.

Signatures & Notices

In witness whereof, the Parties hereby execute and authorize this Agreement as of the Effective Date.