Tester Sign-up & NDA

MUTUAL NONDISCLOSURE AGREEMENT

This Mutual Nondisclosure Agreement, is made as of [Date of Submission] by and between Flow State Technologies and [Beta Tester Name] to assure the protection and preservation of the confidential and or proprietary nature of information to be disclosed to each other in connection with discussions regarding a potential business opportunity (the “Discussions”).

NOW THEREFORE, in reliance upon and in consideration of the following undertakings, the parties agree as follows:

1. Subject to the limitations set forth in Paragraph 2, all information disclosed to the other party in connection with the Discussions that is marked “Confidential” at the time of disclosure or, if disclosed orally, is described as confidential at the time of disclosure shall be deemed to be “Confidential Information.” Confidential Information may include any information, idea, discovery, process, technique, design, drawing, research, analysis, evaluation, or test data relating to the Discussions, whether in oral, written, graphic or electronic form. Any unpublished patent applications disclosed shall be deemed to be Confidential Information.

2. The term “Confidential Information” shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (ii) is known by the receiving party at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the disclosing party.

3. Each party shall maintain in trust and confidence and not disclose to any third party other than its legal counsel or use for any unauthorized purpose any Confidential Information received from the other party, and in any event shall protect the Confidential Information received with the same degree of care used to protect their own information of a confidential nature from unauthorized use or disclosure. Each party may use such Confidential Information only in connection with the Discussions. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement.

4. Both parties shall advise their employees and legal counsel who might have access to Confidential Information of the confidential nature thereof. No Confidential Information shall be disclosed to any officer, employee or legal counsel of either party who does not have a need for such information in connection with the Discussions.

5. All Confidential Information (including all copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party or destroyed after the receiving party’s need for it in connection with the Discussions has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this Agreement.

6. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body, provided, however, that the responding party shall first have given notice to the other party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued, or (ii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

7. This Agreement shall continue in full force and effect for so long as the parties continue to engage in the Discussions. This Agreement may be terminated at any time upon thirty (30) days written notice to the other party. The termination of this Agreement shall not relieve either party of the obligations imposed by Paragraphs 3, 4, 5, 7 and 10 of this Agreement with respect to Confidential Information disclosed prior to the effective date of such termination and the provisions of these Paragraphs shall survive the termination of this Agreement for a period of five (5) years from the date of such termination.

8. This Agreement shall be governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties.

9. This Agreement contains the final, complete and exclusive agreement of the parties relative to the subject matter hereof and may not be changed, modified, amended or supplemented except by a written instrument signed by both parties.

10. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement by the other party, including, without limitation, the actual or threatened disclosure of a disclosing party’s Confidential Information without the prior express written consent of the disclosing party, the disclosing party will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under this Agreement, as well as such further injunctive relief as may be granted by a court of competent jurisdiction.

Document ID: sf-2895334