This Proprietary Information Agreement (“Agreement”) is entered into effective as of the date of signing below (the “Effective   Date”), by   and   between   the   undersigned   and   HVDC AMERICA, and all related entities having a place of business at 135 S. State College Blvd., Suite 200, Brea, California 92821.

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WHEREAS the parties are discussing a potential business relationship and said discussions necessitate an exchange of information considered confidential and proprietary by each of them.

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NOW, THEREFORE, the parties hereby agree as follows:

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“Proprietary Information” means all information, including, but not limited to, proprietary, technical, developmental, operating, financial, performance, cost, know-how, process, patents, intellectual property, trade secrets, marketing strategies, customers, clients, employees, officers, directors, all affiliated entities, business models and all samples, models and prototypes containing or disclosing such information which (a) if in tangible form or other media that can be converted to readable form, whether or not marked as proprietary, confidential or private when disclosed, or (b) if oral or visual, is identified as proprietary, whether or not marked as proprietary, confidential or private.   The term “Proprietary Information” shall also include all notes, analyses, compilations, studies and other documents that contain, reflect or are based upon Proprietary Information.

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1.   The recipient of Proprietary Information disclosed under this Agreement (the “Receiving Party”) shall (i) treat such information with the same degree of care (provided that such is at least a reasonable degree of care) to avoid disclosure to third parties as it normally uses to protect its own confidential or proprietary information; and (ii) shall only use the Proprietary Information for the purposes of evaluating the potential business relationship, unless otherwise agreed to in writing signed by the party disclosing the Proprietary Information (the “Disclosing Party”), including but not limited to direct or indirect communications and contact within the scope of this Agreement and as defined above. Without limiting the generality of the foregoing:​​​

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(a) The Receiving Party shall disclose Proprietary Information only to those of the Receiving Party's employees, directors, representatives, advisors and agents who need access to such Proprietary Information for the purpose of evaluating the potential business relationship and to no one else;

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(b) The Receiving Party shall assure that all persons who receive any of the Proprietary Information from it will abide by the terms and conditions of this Agreement as if such persons were parties hereto; and

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(c) The Receiving Party acknowledges that any unauthorized disclosure, circumvention or use of any Proprietary Information shall be considered a material breach of this Agreement and will result in irreparable harm to the Disclosing Party. In addition to the right to recover legal fees and monetary damages for such a breach, the Disclosing Party shall have the right to seek injunctive relief from a court of competent jurisdiction.

 

Except as to the conditions of non-circumvention, there shall be no liability for breach of the restrictions contained in Section 2 on use and disclosure of Proprietary Information if:

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(a) Such information was already in the public domain or became publicly available through no breach of this Agreement by the Receiving Party;

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(b) The information was rightfully in the Receiving Party's possession without obligation of confidence prior to receipt from the Disclosing Party or if the Receiving Party lawfully obtained said information from a third party who was under no obligation of confidence; or

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(c) Such information was independently developed by employees of the Receiving Party without use of the Disclosing Party's Proprietary Information.

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2.   If Proprietary Information of the Disclosing Party is legally compelled to be disclosed by the Receiving Party to comply with a judicial order or decree, or to comply with applicable law, the Receiving Party agrees to give prior written notice of such disclosure to the Disclosing Party and to take any reasonable and lawful actions available to it to avoid and/or minimize the extent of such disclosure.

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3.   This Agreement shall be effective as of the Effective Date and be effective for three (3) years from the date of signing. This Agreement shall automatically terminate three (3) years after the Effective Date. The confidentiality and use restrictions with respect to Proprietary Information disclosed to the other Party prior to termination shall survive for a period of three (3) years after termination.

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4.   Upon any termination of this Agreement in accordance with its terms, each party will, within thirty (30) days after receipt of written request from the other party hereto, return all Proprietary Information and copies thereof received from the other party under this Agreement and destroy all other Proprietary Information based thereon.

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5.   The Receiving Party acknowledges and understands that no warranties of any kind are given by the Disclosing Party with respect to the accuracy or completeness of the Proprietary Information.

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6.   Proprietary Information shall remain the sole and exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting to the Receiving Party any right, title or interest in or to any patent, trademark, license, copyright or other right to transact.

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7.   Nothing in this Agreement shall be deemed to create, either express or implied, the power in either party to bind the other. This Agreement is not intended to create a joint venture, partnership or other formal business organization, nor to transfer ownership of intellectual property such as patents, copyrights or trade secrets, and neither party is under any obligation to enter into any further agreement with the other party. No binding legal obligation among the parties shall arise with respect to the potential business relationship unless and until the parties enter into duly negotiated and fully executed definitive documents covering the business relationship shall be in form and content satisfactory to all parties.

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8.   This Agreement shall not be construed in any manner to be an obligation to enter into any definitive agreement or to result in any claim whatsoever by one party against the other for reimbursement of cost for any efforts expended with respect to the potential business relationship.

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9.   Except as specifically set forth herein, this Agreement does not: (i) restrict either party from developing new products, improving existing products, or marketing any new, improved or existing products provided that the party does not compete in any manner or, use the Proprietary Information of the other party; or (ii) commit either party to disclose any particular information, or to develop, make, use, buy, sell, or otherwise dispose of any existing or future products, or to favor or recommend any product or service of the other.

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10.   No waiver of any provision of this Agreement, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a waiver in any other instance. No waiver shall be binding unless agreed to in writing and signed by both parties.

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11.   Each party represents that it has the right to disclose its Proprietary Information in furtherance of the purpose set forth above without violating any agreement with or right of any other person. Proprietary Information may include information of a third party provided that the third party has authorized such disclosure. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their respective successors and assigns. This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party. Any attempted assignment without such prior written consent shall be considered a breach of contract, void and unenforceable.

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12.   This Agreement is the only agreement between the parties concerning the Proprietary Information and it supersedes and replaces any and all existing agreements, written, oral or otherwise, concerning the disclosure of Proprietary Information.

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13.   If any provision of this Agreement is declared invalid by any court of competent jurisdiction, applicable statute or rule of law, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein.

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14.   No modification to this Agreement shall be binding on either party unless such modification is in writing and signed by an authorized representative of each of the parties.

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15.   All notices or other communications contemplated by this Agreement shall be in writing and shall be deemed properly delivered when (i) delivered personally or ( ii) electronically signed with existing emails serving as authorized means of notice, or, (iii) mailed by registered or certified mail, postage prepaid, return receipt requested to the address of the other party set forth in the first paragraph of this Agreement or such alternative address as either party may communicate to the other from time to time in accordance with this Section.

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16.   This Agreement shall be governed by and interpreted according to the laws of the State of California with all matters, disputes, controversies and claims being venued within the County of Los Angeles, State of California waiving any conflicts of laws provisions. The parties agreed to accept service of process and notices via electronic email, and waive the The Hague Convention or other local service requirements.

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17.   The parties agree to submit any and all claims and disputes to mediation before initiating any legal action. Any party who initiates legal action without first submitting and attending mediation shall not be entitled to recovery of any attorney’s fees.

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18.   The parties agree and stipulate that damages arising out of breach would be difficult to calculate and agree that a reasonable measure of liquidated damages would be the gross value of the transaction that occurred in circumvention of or in breach of the Proprietary Information conditions herein.