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This agreement is entered into between Stem, Inc. (“Stem”) and Company, as more particularly described below.
1. PURPOSE. The parties want to explore a business opportunity of mutual interest (“Purpose”). In connection with this Purpose, a party may disclose or have already disclosed to the other party certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.
2. CONFIDENTIAL INFORMATION. “Confidential Information” means any information disclosed previously or in the future by disclosing party to the receiving party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant, and equipment), which (a) is designated as “Confidential,” “Proprietary,” or some similar designation; (b) is communicated orally and is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure; or (c) based on the nature of the information and the circumstances of disclosure would be considered to be confidential. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party to the receiving party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records; (iv) is obtained by the receiving party from a third party without a breach, of which the receiving party is aware of at the time of disclosure, of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession.
3. NON-USE, NON-DISCLOSURE, AND MAINTENANCE OF CONFIDENTIALITY. The receiving party agrees to: (a) use the same degree of care as with its own confidential information, which will be at least a reasonable standard of care, to prevent disclosure of the Confidential Information of the disclosing party and any notes, summaries, reports, analyses, or other material derived by the receiving party, or its or their Authorized Parties (defined below), in whole or in part, from the Confidential Information of the disclosing party (collectively, “Notes”); (b) use the Confidential Information and Notes only in furtherance of the Purpose; and (c) not disclose the disclosing party’s Confidential Information to any third party except to its employees, agents, advisors, representatives, service providers, consultants and/or subcontractors (collectively, “Authorized Parties”), to the extent necessary to permit them to assist the receiving party in furtherance of the Purpose. The receiving party further agrees that prior to disclosing any Confidential Information of the disclosing party to its Authorized Parties, as allowed hereunder, the receiving party shall advise such Authorized Parties of the confidential nature of the Confidential Information, and either: (i) direct them to abide by the terms of this agreement; or (ii) ensure they are under written agreement with the receiving party that establishes confidentiality and use restrictions regarding such Confidential Information that are no less restrictive than those set forth herein. The receiving party agrees to be responsible for any breach of this agreement by its Authorized Parties. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this agreement. Accordingly, in the event of any such breach, in addition to any other remedies at law or in equity that a party may have, it may be entitled to seek equitable relief, including injunctive relief, specific performance, or both. Each party will reproduce the other party's proprietary rights notices on any copies of the other party’s Confidential Information, in the same manner in which such notices were set forth in or on the original. The receiving party shall promptly notify the disclosing party of any use or disclosure of the Confidential Information of the disclosing party in violation of this agreement of which the receiving party becomes aware.
4. NO OBLIGATION. Nothing herein will obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this agreement concerning the business opportunity and to undertake similar discussions with third parties.
5. NO WARRANTY. All confidential information is provided “as is.” Neither party makes any warranties, express, implied or otherwise, regarding the accuracy, completeness, or performance of any disclosed confidential information.
6. TERMINATION AND RETURN OF MATERIALS. A party may elect at any time by written notice to the other party to terminate this agreement. In any such case or upon any other termination of this agreement, the receiving party will upon request: (a) return all Confidential Information disclosed to it by the disclosing party; and (b) destroy and/or delete, with such destruction to be certified in writing by the receiving party within 30 working days of receiving such written request, all Notes, computer records, data files, and/or electronic/digital copies of the Confidential Information, without retaining any copies thereof, except as provided below. No such termination of the agreement, or return or destruction of the Confidential Information or Notes will affect the confidentiality obligations of the receiving party, their Authorized Parties, all of which will continue in effect as provided in this agreement. Nothing in this section will require either party or Authorized Parties to return, destroy, or delete copies of any computer records and/or files containing the Confidential Information and/or Notes that have been created pursuant to the receiving party’s automated processes such as document retention/archiving and/or back-up policies/procedures, provided that each and any such copies: (i) are kept confidential and cannot be accessed in the regular course of business; (ii) are Stem, Inc. | 100 California St. 14th Floor San Francisco CA 94111 | www.stem.com | Phone: 877.374.7836 MUTUAL NON-DISCLOSURE AGREEMENT Page 2 of 2 | Proprietary & Confidential version MNDA 2021 maintained and archived in compliance with reasonable information security standards; and (iii) are properly deleted as required by the receiving party’s document retention/archiving and/or back-up policies/procedures.
7. COMPELLED DISCLOSURE. . If a receiving party or any of their respective Authorized Parties is requested or required, by interrogatories, subpoena, or similar legal process, to disclose any Confidential Information of the disclosing party or Notes, such party agrees to provide the disclosing party with prompt written notice of each such request, to the extent practicable, so that the disclosing party may seek an appropriate protective order, waive compliance by the receiving party with the provisions of this agreement, or both. If, absent the entry of a protective order or receipt of a waiver, the receiving party is, in the opinion of its counsel, legally compelled to disclose such Confidential Information or Notes, the receiving party may disclose such Confidential Information or Notes to such persons to the extent required without liability under this agreement, and use reasonable efforts to obtain confidential treatment, consistent with the terms of this agreement, for any such Confidential Information or Notes.
8. NO LICENSE. Nothing in this agreement is intended to grant any rights to either party under any patent, mask work right, copyright, trade secret, or other intellectual property right of the other party, except for the limited use rights to Confidential Information and Notes expressly granted herein.
9. EFFECTIVE DATE AND TERM. This agreement will become effective on the date it is signed by the last party as indicated by the date associated with that party’s signature (“Effective Date”). This agreement will expire two years from the Effective Date. The obligations of each party hereunder will survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party.
10. MISCELLANEOUS. This agreement contains the entire understanding between the parties relating to the subject matter contained herein and supersedes all prior and collateral communication, reports, and understandings between the parties relating thereto. Neither party may assign nor otherwise transfer this agreement without the prior written consent of the other party; however, either party may assign or transfer this agreement in connection with a merger, acquisition, change of control, sale of substantially all its assets, or other such corporate reorganization. Subject to the foregoing, this agreement will bind and inure to the benefit of the parties hereto and their successors and assigns. This agreement will be governed by the laws of the state of California, without reference to conflict of laws principles. If any provision of this agreement is found to be illegal or unenforceable, the other provisions will remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this agreement will not constitute a waiver thereof or of any other provision. This agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. The parties may execute this agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement.
ACCEPTED AND AGREED TO BY THE AUTHORIZED REPRESENTATIVE OF EACH PARTY:
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