MutualNondisclosureAgreement(NDA)

Confidential Information

All nonpublic information related to the business of a party to this NDA that such party designates as being confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the other party should in good faith treat as confidential. Confidential Information includes, without limitation, technology; trade secrets; software or computer programs; specifications; technical drawings; algorithms; know-how; concepts; product designs; formulas; processes; ideas; inventions (whether patentable or not); services; data; samples; database technologies, systems, structures, and architectures; past, current, and planned research and development; other technical, business, financial, customer and product development plans, forecasts, strategies and information; and the existence or status of negotiations between the parties in connection with a potential business relationship or the terms thereof.

Disclosing Party

A party to this NDA (either BlueHive or Company) whose Confidential Information is disclosed to the other party under this NDA.

Receiving Party

A party to this NDA (either BlueHive or Company) that receives the other party's Confidential Information under this NDA.

Confidential Information does not include information that:

• (a) was generally known to the public at the time disclosed to the Receiving Party;
• (b) became generally known to the public other than through a breach of this NDA by the Receiving Party after the time of disclosure to the Receiving Party;
• (c) was in the Receiving Party's possession free of any obligation of confidentiality at the time of disclosure to the Receiving Party;
• (d) was rightfully received by the Receiving Party from a third party that was free of any obligation of confidentiality after disclosure to the Receiving Party;
• (e) was independently developed by the Receiving Party without reference to or use of Confidential Information and the Receiving Party is able to demonstrate through written evidence or documents that the information was independently developed; or
• (f) is disclosed to the Receiving Party after the term of this NDA.

a. Use and Disclosure of Confidential Information

The Receiving Party: (i) will not use any of the Disclosing Party’s Confidential Information except in evaluating and/or negotiating a possible business arrangement with the Disclosing Party, or in furtherance of the Receiving Party’s obligations under a separate written agreement signed by both parties that expressly references this NDA; (ii) will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by both parties or in Section 3(a)(iii); (iii) will disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s employees on a need-to-know basis, and the Receiving Party will be liable for any breaches of this NDA by its current and former employees; (iv) will not make any more copies or summaries of the Disclosing Party’s Confidential Information than are necessary for the purposes set forth in Section 3(a)(i), and will ensure that all such copies or summaries are marked as confidential; and (v) will take reasonable security precautions, at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature, to keep the Disclosing Party’s Confidential Information confidential.

The Disclosing Party agrees that the Receiving Party’s obligations under this Section 3(a) do not apply with respect to any information after five (5) years following disclosure of such information except to the extent that the Confidential Information is considered a trade secret under applicable law or protected by another agreement entered into by and between the parties. The parties agree that they will inform all employees, contractors, or agents who may receive Confidential Information that is subject to this NDA of the Receiving Party’s obligations hereunder. The Receiving Party shall be responsible for all actions of any person to whom Confidential Information is provided.

b. Unauthorized Use or Disclosure

The Receiving Party will promptly notify the Disclosing Party if it discovers any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information and will cooperate in every reasonable manner to assist in recovering and/or preventing any further unauthorized use of such Confidential Information.

c. Return of Materials

Immediately upon a request by the Disclosing Party at any time, the Receiving Party will return to the Disclosing Party all documents or media containing the Disclosing Party’s Confidential Information in the Disclosing Party’s possession, custody, or control, or certify in writing to the Disclosing Party the destruction (or, in the case of electronically stored Confidential Information, the permanent deletion) of the same.

d. No Obligation; Independent Development

The parties agree that nothing in this NDA: (i) requires the disclosure of any Confidential Information by either party; or (ii) requires either party to proceed with or enter into any transaction, relationship, or contract. The parties acknowledge that Confidential Information may still be under development or may be incomplete. The Disclosing Party makes no representation or commitment that products, technologies or services disclosed pursuant to this NDA will be made available to the other party or otherwise made commercially available. The Disclosing Party will have no responsibility (except as expressly set forth in a separate written agreement signed by both parties) for any expenses, costs, losses or actions incurred or undertaken as a result of the receipt or use of Confidential Information. Nothing in this NDA will be construed to limit either party’s right to independently develop or acquire products without the use of the other party’s Confidential Information; or to restrict either party from promoting or selling products or engaging in activities in competition with the other so long as such products or activities are not developed or based upon the Confidential Information of the other party.

The Disclosing Party retains all of its rights, title, and interest in and to its Confidential Information. The disclosure of Confidential Information to the Receiving Party under this NDA does not constitute a grant, conveyance or license by the Disclosing Party of any rights under any of the Disclosing Party’s (or any third party’s) patents, copyrights, trademarks, or other intellectual property rights, including without limitation by implication, estoppel, or otherwise.

The Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law. In such cases, however, the Receiving Party will: (a) give the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allow the Disclosing Party to participate in the proceeding.

The Receiving Party may from time to time provide suggestions, comments or other feedback ("Feedback") to the Disclosing Party with respect to the Disclosing Party’s Confidential Information. In such event, the Disclosing Party will be free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of such Feedback (and derivative works thereof) as it sees fit, entirely without obligation of any kind to the Receiving Party. Nothing in this NDA, however, will obligate the Receiving Party to provide Feedback to the Disclosing Party.

The Receiving Party acknowledges and agrees that monetary damages would not be a sufficient remedy for unauthorized disclosure or use of the Disclosing Party’s Confidential Information, and such unauthorized disclosure or use would cause the Disclosing Party immediate and irreparable injury. In such cases, the Disclosing Party will be entitled, without waiving or prejudicing any other rights or remedies, to injunctive or equitable relief without the need to prove actual damages.

This NDA will be effective as of the Effective Date and will continue in effect until terminated in accordance with this NDA. Either party may terminate this NDA on 30 days prior written notice to the other, for any reason or for no reason. The following provisions will survive termination of this NDA: Sections 1-7, this sentence, and Section 9.

• (a) The rights and remedies under this NDA are cumulative and are not exclusive of any rights or remedies available at law or in equity or relating to any other agreement between the parties.
• (b) Nothing in this NDA will be construed to mean that any party is appointed or in any way authorized to act as an agent of the other party. This NDA does not create any joint venture, franchise, partnership or other business entity or organization of any kind.
• (c) During the term of this NDA and for one (1) year thereafter, neither party, nor any of its Affiliates, shall offer to employ or engage as an independent contractor or otherwise obtain the services of any person employed then or within the preceding twelve (12) months by the other party or any Affiliate of the other party.
• (d) No waiver of any provision of this NDA will be effective unless it is in writing and signed by the party making that waiver, and no such waiver will constitute a waiver of any other provisions or of the same provision on another occasion.
• (e) This NDA will be governed by and construed in accordance with the laws of the State of Indiana as such laws apply to contracts performed within Indiana by its residents. In any action to enforce any right or remedy under this NDA or to interpret any provision of this NDA, the prevailing party will be entitled to recover its costs, including attorneys’ fees. The federal courts sitting in Allen County, Indiana, will have exclusive jurisdiction to adjudicate disputes arising under, in connection with, or incident to this NDA or concerning its interpretation, unless no federal subject matter jurisdiction exists, in which case the Indiana state courts in Allen County, Indiana will have such exclusive jurisdiction, and each party irrevocably consents to the exercise of jurisdiction by said courts.
• (f) All notices, requests, and consents under or authorized by this NDA will be in writing and sent to the applicable address set forth in the first paragraph above, and will be effective when received by personal delivery, by next-business-day delivery service with delivery tracking, or by registered or certified U.S. mail with return receipt requested. Either party may change its notice address by providing notice of that change pursuant to this Section 9(f).
• (g) If a court of competent jurisdiction holds any term, covenant or restriction of this NDA to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and provisions will remain in full force and effect and will in no way be affected, impaired or invalidated. If any provision in this NDA is determined to be unenforceable in equity because of its scope, duration, geographical area or other factor, then the court making that determination will have the power to reduce or limit such scope, duration, area or other factor consistent with the parties’ intent in entering into this NDA, and such provision will be then enforceable in equity in its reduced or limited form.
• (h) This NDA is not effective until signed by both parties. This NDA constitutes the entire agreement between the parties with respect to Confidential Information and its other subject matter and supersedes all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to all such subject matter. This NDA may not be modified except by a separate written agreement dated after the date of this NDA and signed by both parties.

This NDA is executed by an authorized representative of each party. Each signature block records the signer name, title, and signature date. The Effective Date is the later of the two signature dates.