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NDNC

CONFIDENTIALITY / NON-DISCLOSURE / NON-CIRCUMVENTION UNDERTAKING

This mutual CONFIDENTIALITY / NON-DISCLOSURE / NON-CIRCUMVENTION UNDERTAKING (the “Undertaking”) is made between MobiusRE Division, MobiuSolar Corporation, a Federal Canadian Corporation, with its principal office located at 380 York Street, London, Ontario, Canada, N6B 1P9 (“MobiusRE”);

And;

The MobiusRE Membership Registrant identified in the Online Membership Registration Form to be submitted by the Registrant.  The Membership Registrant’s legal name, address and other contact information are deemed to be those entered in the Membership Registration Form (“Member”);

Collectively, referred to herein as the “the Parties”

Is entered into as of the date of the submission of the Membership Registration (the “Effective Date”).

Each Party wishes to receive certain information concerning the Other Party, its Business, its Projects, its Intellectual Property and its Strategic Partners; and Each Party will need access to certain Confidential Information, prepared by the Management of the Other Party, relating to the Other Party, its Associate Companies, its Partners, its Businesses, its Intellectual Property and its Services, for the purpose of entering into discussions regarding Project cooperation, joint ventures, strategic alliances, equity investment, financing or such other purposes (the “Permitted Purposes”) as may be agreed to by Both Parties.

1. Definitions

For the purposes of this Undertaking:

“Advisor” shall mean lawyers, accountants, auditors, financial and technical advisors, brokers, nominated advisors (“NOMADS”), bankers and consultants.

“Businesses” shall mean all and any commercial activities of a Party.

“Confidential Information” shall mean
(a) any and all information of whatever nature relating to a Party, the equity investors, Projects or other Concerns which it represents, its Businesses, proposed partners (including but without limitation the identity of brokers, NOMADS or other persons providing similar services to be engaged by a Party), such information to be exchanged or otherwise obtained or provided at any time by a Party, or any of its Directors, Officers, Employees, Agents, Representatives or Advisors, or by any Subsidiary or Associated Company, or a Company in which a Party has a direct or indirect interest, or by any of that Company’s Directors, Officers, Employees, Agents, Representatives or Advisors (collectively referred to in this Undertaking as “Specified Persons” and each a “Specified Person”) in written, electronic, pictorial, or oral form, from or pursuant to discussions between the Parties or any of the Parties’ Directors, Officers or Employees, including, without limitation, all technical information and all other information, know-how, records, designs, specifications, drawings, data, operations, manuals, instructions, all customer and supplier lists, sales information, business plans and forecasts, business methods, maturing new business opportunities, research and development projects, all technical or other expertise and all computer software and all accounting and tax records, correspondence, orders, inquiries, contracts (in whatever form held and whether or not recorded in documentary form or on computer media) in any way connected with the Parities, their Businesses, Products and Services;
(b) all analyses, compilations, studies and other documents prepared by a Party, or any Specified Person, which contain or otherwise reflect or are generated from the information specified in paragraph (a) above; and
(c) the content of discussions or negotiations that may take place, are taking place, or have taken place between the Parties, or a Specified Person, the Parties’ Businesses or its Proposed Partners.

“Disclosees” shall mean any company, person or persons to whom Confidential Information is disclosed hereunder.
“Intellectual Property Rights” shall mean designs, drawings, plans and specifications, patents, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world.

“Potential Transaction” shall mean any intended set of agreements, relating to a specific Project, Joint Venture, Strategic Alliance, Equity Investment, Acquisition, Merger, Financing Arrangement, Product Purchase, Provisions of Services, or other such Business Transaction, where the Parties to this Agreement have exchanged Confidential Information, whether as Principal Parties to the intended transaction, or acting as Brokers, Advisors, Facilitators or Intermediaries.

“Proprietary Information” means information that is not in the public domain, relating in any way to the Discloser’s business, that is not a Trade Secret and that is provided to the Recipient by the Discloser.

“Services” shall mean a Party’s Services as provided by it from time to time, including (but without limitation) any services that are offered or sold by a Party from time to time.

“Trade Secret” has the meaning ascribed to that term in the Uniform Trade Secrets Act (Canada, 1989).

2. Undertakings

In consideration of the Parties agreeing to supply, and so supplying, the Confidential Information and agreeing to enter into discussions, the Parties hereby Represent, Undertake and Agree as follows:

(a) to hold the Confidential Information in confidence and not to disclose or permit it to be made available to any person, firm or company without the Other Party’s prior written consent and in particular but without limitation, to hold the identity of prospective equity investors, partners, suppliers, brokers, NOMADS or other persons providing similar services to be engaged in any Potential Transaction, in confidence and not to disclose or permit it to be made available to any person, firm or company (including but without limitation, any licensor of any joint venture of either Party);

(b) to only use the Confidential Information for the Permitted Purpose(s);

(c) to ensure that each person, or entity, to whom disclosure of Confidential Information is made by a Party, is made fully aware in advance of that Party’s obligations under this Undertaking and that each such person or entity gives that Party a written undertaking in respect of the Confidential Information, in accordance with the terms of this Undertaking;

(d) upon written demand from either Party, the Other Party shall return the Confidential Information to the Requesting Party, and any copies of it, or to confirm to the Requesting Party in writing that, save as required by law or regulation, it has been destroyed. A Party shall not be required to return reports, notes or other material prepared by the Other Party, or other disclosers on its behalf, which incorporate Confidential Information (“Secondary Information”) provided that the Secondary Information is kept confidential;

(e) to keep confidential and not reveal to any person, firm or company the fact that discussions or negotiations are taking place, or have taken place, or will take place, between the Parties in connection with the Permitted Purpose(s), unless agreed to in writing by the Other Party;

(f) that neither Party gives any warranty or makes any representation as to the accuracy or otherwise of the Confidential Information, save as may subsequently be agreed.

This Section 2 does not exclude liability for, or any remedy in respect of, fraudulent misrepresentation.

3. Non-Circumvention

The Parties hereby agree to be bound to each other with respect to Prospective Buyers, Sellers, Prospective Business Partners, Agents, Clients or Consultants introduced to One Party by the Other Party, regarding any Potential Transaction the Receiving Party is considering or is engaged for, and the Parties shall not circumvent each other, or cause others with whom they may have contact, to circumvent the Other Party, on any Potential Transaction which is subject to this Undertaking. The Parties further Agree that they will not in any way circumvent, avoid, bypass, or obviate each other, either directly or indirectly in connection with specific Potential Transaction(s), unless otherwise mutually agreed.

The Parties further Undertake and Agree that, at no time, now or in the future, will they, or any associated person or entity, use knowledge of the Other Party’s Intellectual Property, or Trade Secrets, to create, or allow other persons or entities to create, similar proprietary Products or Services to those shared with a Party under this Undertaking, unless otherwise mutually agreed.

Nothing in this Section 3 shall prevent or limit the Parties from originating or participating in transactions not identified and/or disclosed to One Party by the Other Party, without any responsibility or liability to either Party. Furthermore, this Section 3 shall not apply to Prospective Buyers, Sellers, Prospective Business Partners, Agents, Clients or Consultants known to a Party prior to their introduction to One Party by the Other Party.

4. Intellectual Property

The Parties hereby Acknowledge and Agree that all Intellectual Property Rights in and associated with the Businesses and/or the Products and Services of a Party, whether arising or created before or after the date of this Undertaking, vest absolutely in the Party creating said Intellectual Property, and it is the intention of the Parties that all such Intellectual Property Rights shall at all times hereafter, and for all purposes, remain vested in the Party creating said Intellectual Property.

The Parties further Agree that in no circumstances shall either Party, or any Specified Person, or any associated entity, ever apply for registration as proprietor, or owner, of any of the Intellectual Property Rights in and associated with the Other Party’s Businesses and/or the Products and Services of the Other Party in any part of the World.

5. No Representations or Warranties

5.1 Neither Party, nor any of their respective Directors, Officers, Employees, or Advisors, makes any representation or warranty (express or implied) as to the accuracy or completeness of the Confidential Information. The Parties Acknowledge and Agree that Confidential Information made available to them by the Other Party, or any other Disclosee authorized by a Party hereunder, in the course of, or for the purpose of, negotiation, shall not constitute an offer or invitation to make an offer in connection with the Permitted Purpose(s), nor will any such Confidential Information form the basis of any offer or of a constructive representation or warranty in relation to any contract.

5.2 Neither Party, nor any of their Respective Directors, Officers, Employees or Advisors shall have any liability to each other, or any of the Disclosees, arising out of or resulting from the use of the Confidential Information.

6. No Obligation

6.1 Any decision by the Parties to enter into discussions relating to the Permitted Purpose(s) may be changed at any time without notice or explanation. The Parties shall not be under any obligation to recommend any offer, or accept any proposal, which may be made by in the course of any negotiations.

6.2 Neither Party, nor any of their respective Directors, Officers, Employees or Advisors are under any obligations or liability to reimburse each other or any Specified Person for any loss, damage, cost or expense incurred or suffered in connection with any negotiations, actions, or omissions relating to any such negotiations.

7. No Waiver

Any failure or delay by either Party in exercising any right, power, or privilege under this Undertaking shall not operate as a waiver thereof, nor shall any single or partial exercise thereof, or the exercise or waiver of any other right, power or privilege of any right, power, or privilege preclude any further exercise.

8. No Assignment

This Undertaking is exclusive and specific to the Parties, and may not be assigned without mutual consent.

9. Notice

9.1 Any notice or other communication given under this Undertaking shall be in writing and may be delivered to the relevant Party or sent by letter, email, or facsimile transmission to the address of that Party specified herein, or in their Membership Registration Form, or to that Party’s facsimile transmission number thereat, or to such other address or number as may be notified hereunder by that Party from time to time for this purpose, and shall be effectual notwithstanding any change of address not so notified.

9.2 Unless the contrary shall be proved, each such notice or communication shall be deemed to have been given or made and delivered; if by letter, 7 clear days after posting. If by hand delivery; when left at the relevant address. If by facsimile or email transmission; when transmitted.

10. Agreement Term

This Agreement shall remain in effect for a Term of two (2) years from the Effective Date hereof, unless Terminated in writing earlier by one of the Parties.

All Proprietary and Confidential Information shall be safeguarded by the Recipient as required by this Undertaking for a period of two (2) years from the date of disclosure to the Recipient. All Trade Secret information shall be safeguarded by Recipient as required by this Undertaking in perpetuity, or for so long as such information remains a Trade Secret under applicable law, whichever occurs first.  Each Party’s responsibilities with respect to all Proprietary and Confidential Information, and all Trade Secrets, shall survive the Termination of this Agreement.

11. Governing Law

This Undertaking shall be governed by and construed in accordance with laws of Ontario, Canada and the Parties irrevocably submit to the jurisdiction of the Courts of Ontario, Canada in respect of any claim, dispute or difference arising out of or in connection with this Undertaking.

12. Acceptance

In expressing their agreement to the foregoing, the Parties do so indicate by the Member submitting its online Membership Registration Form to MobiusRE, and in return by MobiusRE approving the Member’s application for membership, whereupon these actions will constitute each Party’s, and the Parties’, agreement with respect to the subject matter hereof.