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MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (“Agreement”) is dated today, by and between [i-POS Systems, LLC] a Delaware Limited Liability Partnership, having an address at 393 Jericho Turnpike, Suite 203, Mineola NY 11501 (“i-POS”) and yourself, with an address filled in above(“Company”). I-POS and Company are sometimes collectively referred to herein as the “Parties” and individually as a “Party”. RECITALS A. In connection with the evaluation and/or pursuit of a mutually beneficial business opportunity or relationship (the “Purpose”), each Party hereto may disclose certain non-public and proprietary information to the other relating to their respective operations and businesses. B. The Parties wish to preserve the confidentiality and prevent the unauthorized disclosure and use of any such non-public and proprietary information disclosed to the other hereunder. AGREEMENT The Parties hereby agree as follows: 1. As used herein, the term “Information” shall mean all non-public information disclosed hereunder, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Information shall include, but not be limited to, financial papers and statements, customer lists, research and development activities, technology, vendors, computer hardware and software, products, drawings, trade secrets and information regarding operating procedures, pricing methods, marketing strategies, customer relations, future plans and other information deemed proprietary or confidential by the Disclosing Party. 2. As a condition to receiving the Information which either Party or any of its employees, representatives or agents (the “Disclosing Party”) may furnish to the other (the “Receiving Party”) or to which the Receiving Party is afforded access, directly or indirectly, the Receiving Party shall take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Information, including, at a minimum those measures that it takes to protect its own confidential information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care) and shall not, without the prior written consent of the Disclosing Party, use or disclose the Information or any part thereof except as necessary for the 3. The term Information does not include information which: without breach of this Agreement or breach of a similar agreement by a third-party; (a) Has been or becomes published or is now, or in the future, in the public domain (b) prior to disclosure hereunder, is property within the legitimate possession of the Receiving Party which can be verified by independent evidence; (c) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of third party's or the Receiving Party's rights to disseminate the information and without notice of any restriction against its further disclosure; or had, either directly or indirectly, access to or knowledge of such Information which can be verified by 4. Information shall not, without the prior written consent of the Disclosing Party, be disclosed to any person or entity other than employees or agents of Receiving Party who need to know the Information (d) Is independently developed by the Receiving Party through persons who have not and in those instances only to the extent justifiable by that need. The Receiving Party shall ensure that all such entities and personnel comply with the terms of this Agreement. Receiving Party will not export any Information in any manner contrary to the export regulations of the United States. 5. Without the written consent of i-POS or the Company will have no discussions, correspondence, or other contact with their respective employee, representatives or agents. 6. All Information shall remain the exclusive property of the Disclosing Party, and the Receiving Party shall have no rights, by license or otherwise, to use the Information except as expressly provided herein. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement with respect to the Information. 7. Receiving Party agrees to return to the Disclosing Party or destroy, and verify in writing its destruction, all written, tangible or otherwise accessible material in any form (including electronic media such as computer diskettes, CD-ROM, electronic copies or any material resident in the hard or external drive of any computer) containing or reflecting any Information (including all copies, summaries, excerpts, extracts or other reproductions) promptly following the Disclosing Party’s request. At the Disclosing Party’s option, the Receiving Party will provide written certification of compliance with this Section. 8. Nothing in this Agreement shall impose any obligation upon either Party to consummate a transaction, to enter into any discussion or negotiations with respect thereto, or to take any other action not expressly agreed to herein. Neither Party shall have any obligation to the other for any action such other Party may take or refrain from taking, based on or otherwise attributable to any information (whether or not constituting Information) furnished to such other Party hereunder. 9. If Receiving Party is requested by a Governmental entity or other third party to disclose any Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Information. If, in the absence of a protective order, Receiving Party, in the written opinion of its counsel addressed to Disclosing Party, is compelled as a matter of law to disclose the Information, it may disclose to the party compelling the disclosure only the part of the Information as is required by law to be disclosed (in which case, prior to such disclosure, Receiving Party will advise and consult with Disclosing Party and its counsel as to such disclosure and the nature and wording of such disclosure) and Receiving Party will use its best efforts to obtain confidential treatment therefor. 10. This Agreement is intended to cover Information received by Receiving Party both prior to and subsequent to the date hereof. Unless extended by mutual written consent of both Parties hereto this Agreement shall expire either one (1) year from the date hereof or upon the termination of the evaluation or pursuit of the Purpose, whichever first occurs, provided, however, that the Receiving Party’s obligations with respect to the Information shall survive for three (3) years following the date of such termination of this 11. Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the Receiving Party shall not develop, or have developed for it, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development. 12. Because money damages may not be a sufficient remedy for any breach of the foregoing covenants and agreements, the Disclosing Party shall be entitled to specific performance and injunctive and other equitable relief as a remedy for any such breach of this Agreement in addition to all monetary remedies available at law or in equity. 13. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and Receiving Party agrees that Disclosing Party and its employees and agents shall have no liability to Receiving Party resulting from any use of the Information. 14. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement without the prior written consent of the other Party. 15. This Agreement represents the entire agreement between the parties with respect to the subject matter contained herein. This Agreement shall inure to the benefit of the respective parties, their legal representatives, successors, and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 16. If any provision of this Agreement is illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision. If any provision of this Agreement does not comply with any law, ordinance or regulation, such provision to the extent possible shall be interpreted in such a manner to comply with such law, ordinance or regulation, or if such interpretation is not possible, it shall be deemed to satisfy the minimum requirements thereof. This Agreement may be executed by facsimile and in counterpart copies. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. I-POS Systems, LLC.
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