MUTUAL NONDISCLOSURE AGREEMENT

MUTUAL NONDISCLOSURE AGREEMENT

This Mutual Nondisclosure Agreement (this “Agreement”) is made and entered into as of ________________________________ the “Effective Date”) by and between Stephen Nice of Shield Nutraceuticals, Inc. (the “Company”), and _______________________________________________________________ (the “Second Party”).

1. Purpose

The parties wish to explore an opportunity of mutual interest (the “Opportunity“), and, in connection with the Opportunity, each party (as applicable, the “Disclosing Party“) may disclose to the other party (as applicable, the “Recipient“) certain confidential, technical, and/or business information that the Disclosing Party desires the Recipient to treat as confidential. As a material inducement to the Disclosing Party to make such Confidential Information (as defined below) available to the Recipient in connection with the Opportunity, the Recipient agrees to hold and treat such Confidential Information in accordance with this Agreement.         

2. Confidential Information

“Confidential Information” means, with respect to the Disclosing Party, any information that is disclosed by the Disclosing Party to the Recipient during the term of this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible and intangible objects, including, technical data, trade secrets and/or know-how (such as, research, product plans, products, photographs, digital images, software, computer programs, source code, object code, ideas, inventions (whether or not patentable), processes, formulas, technology, designs, drawings and engineering, hardware configuration information, lists and data and other technical, customer and product development plans, forecasts, strategies and information, business opportunities and strategic partnerships and alliances).  Such information will be considered Confidential Information if (i) such information is identified as Confidential Information, or under the circumstances surrounding the disclosure, the Recipient reasonably should have known that such information was confidential or proprietary.  Notwithstanding the foregoing, Confidential Information will not include any information that (i) was publicly known before the Disclosing Party’s disclosure of the information, or becomes publicly known, through no violation of the terms of this Agreement, after the Disclosing Party’s disclosure of the information; (ii) the Recipient can demonstrate, through its files and written records, was already known by or in the possession of the Recipient at the time of disclosure; (iii) the Recipient obtains from a third party without a breach of such third party’s obligations of confidentiality; (iv) the Recipient can demonstrate, through documents and other competent evidence in its possession, was independently developed by the Recipient in the course of work by its employees who neither used nor had access to Confidential Information; or (v) the Recipient is required to disclose by law or by a subpoena or order issued by a court of competent jurisdiction (each, an “Order“), provided that the Recipient gives the Disclosing Party written notice of the Order within twenty-four (24) hours after receiving it and cooperates fully with the Disclosing Party prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order and seek a protective order or other appropriate relief. 

3. Nonuse and Nondisclosure

The Recipient agrees not to, directly or indirectly, (i) use any of the Disclosing Party’s Confidential Information for any purpose except to evaluate and engage in discussions concerning the Opportunity, (ii) divulge or disclose any of the Disclosing Party’s Confidential Information to third parties, or (iii) permit any of the Disclosing Party’s Confidential Information to be divulged or disclosed to or examined or copied by any third party; provided, however, that the Recipient may disclose the Disclosing Party’s Confidential Information to its employees, agents, representatives, assignees or subcontractors on a “need to know” basis (each such person, a “Permitted Disclosee“).  The Recipient will (i) inform each Permitted Disclosee of the requirements of this Agreement, (ii) ensure that each Permitted Disclosee complies with each of the Recipient’s obligations, as set forth in this Agreement, and (iii) obtain written agreements from each Permitted Disclosee requiring such Permitted Disclosee to abide by the requirements of this Agreement.  The Recipient further agrees not to (x) reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that contain or embody any of the Disclosing Party’s Confidential Information, or (y) export or reexport (within the meaning of U.S. or other export control laws or regulations) any of the Disclosing Party’s Confidential Information or product thereof.

4. Maintenance of Confidentiality

The Recipient agrees that it will take all reasonable measures necessary to protect the secrecy of, and avoid disclosure and unauthorized use of, the Disclosing Party’s Confidential Information.  Without limiting the foregoing, the Recipient will take measures to protect the Disclosing Party’s Confidential Information that are no less restrictive than those it takes to protect its own confidential information.  The Recipient will immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.  In any event, the Recipient will be responsible for any breach of this Agreement by such employees or Permitted Disclosee, and Recipient will take all reasonable measures (including but not limited to initiating court proceedings) to enforce the terms of this Agreement with respect to such employees or Permitted Disclosee.

5. No Warranty

ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.”  NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ACCURACY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY CONFIDENTIAL INFORMATION.  NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, REMOTE, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE USE OF CONFIDENTIAL INFORMATION.

6. No License

Nothing in this Agreement is intended to grant any license or rights to either party under any patent, copyright, trade secret or other proprietary or intellectual property right of the other party, nor will anything in this Agreement grant the Recipient any rights in or to any of the Disclosing Party’s Confidential Information.

7. Term

The term of this Agreement will commence on the Effective Date and continue until this Agreement is terminated by mutual written agreement of the parties or by either party upon written notice to the other party.  The parties’ obligations hereunder will survive until the earlier of (i) five (5) years after the termination of this Agreement, and (ii) the date all Confidential Information becomes publicly known and generally available through no action or inaction of the applicable Recipient; provided, however, that such duties and obligations with respect to Confidential Information that constitutes a trade secret of the Disclosing Party shall continue so long as such Confidential Information remains a trade secret under applicable law.

8. Remedies

Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the Disclosing Party and the Disclosing Party’s business, and expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach of this Agreement by the Recipient.  Accordingly, each party acknowledges and agrees that (i) any such violation or threatened violation may cause irreparable injury to the Disclosing Party and (ii) in addition to any other remedies that may be available to the Disclosing Party at law, in equity or otherwise, the Disclosing Party will be entitled to seek injunctive relief against any threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting a bond (or other security).

9. Assignment

This Agreement will be binding upon, enforceable by and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Neither party may assign or otherwise transfer this Agreement or its rights, interests or obligations under this Agreement without the prior written consent of the other party.  Such consent shall not be unreasonably withheld.  Notwithstanding the foregoing, the Company may assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, without the Second Party’s consent.

10. Miscellaneous

This Agreement will be governed by and construed in accordance with the laws of Tennessee without reference to conflict of laws principles. 

This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and there are no agreements or understandings between the parties, express or implied, except as are expressly set forth in this Agreement. 

No waiver by the Disclosing Party of any provision of this Agreement or of any default by the Recipient under this Agreement, and no failure of the Disclosing Party to insist upon strict performance under this Agreement, will affect the right of the Disclosing Party thereafter to enforce such provision or to exercise any right or remedy in the event of any other default, whether or not similar. 

This Agreement may not be modified or amended except by a writing signed by both parties.  If any provision of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain valid and enforceable as though such void or unenforceable provision were absent upon the date of its execution. 

Any notice required or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery via email.

This Agreement may be executed in any number of separate counterparts, all of which, when taken together, shall constitute one and the same instrument.

Signature Page(s) to Follow

IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed by its duly authorized officer or representative as of the Effective Date.