A.07.23_16-R-0019_Att_1_October_2015_NDA_110915_Battelle_Vendor.pdf

Battelle NDA

NON-DISCLOSURE AGREEMENT

BUSINESS SENSITIVE

The Parties to this Agreement are *** (hereinafter RECIPIENT) and Battelle Memorial Institute, Pacific Northwest Division, under its own right and under the authority of Contract No. DE-AC05- 76RL0 1830 for the management and operation of the Pacific Northwest National Laboratory for the U.S. Department of Energy (hereinafter BATTELLE). Both Parties have concluded that the following understanding will establish the conditions under which the Proprietary Information can be disclosed.

For and in consideration of the mutual understandings by RECIPIENT and BATTELLE, collectively referred to as Parties, or individually referred to as Party, it is hereby agreed:

1. BATTELLE’s “Proprietary Information” is information owned or controlled by BATTELLE, for which BATTELLE has the right to prevent the dissemination thereof, and that may comprise of confidential and proprietary information. BATTELLE's Proprietary Information relates to IPID 30341-E (“Injectable acoustic transmission devices and process for making and using same,” US2015/0063072), IPID 30642-E (“Acoustic transmission devices and process for making and using same,” WO2015/031853), and reference documents for implementation.

2. All disclosures of Proprietary Information by BATTELLE to RECIPIENT, whether seen, heard, or written, shall be identified as proprietary at the time of disclosure and any writing shall be marked proprietary at the time such writings are first furnished to RECIPIENT. All non-written disclosures containing Proprietary Information shall be identified as proprietary at the time of disclosure and summarized in writing, marked proprietary and furnished to RECIPIENT within thirty (30) days of the oral disclosure to the following address:

Company Attn: *** e-mail***

3. RECIPIENT shall maintain the identified Proprietary Information in confidence for a period of five

(5) years from the date of disclosure by BATTELLE. During this period, RECIPIENT shall not divulge such information to any third party or use such information for any purpose other than evaluation for a potential licensing agreement (“Purpose”) without the prior written consent of BATTELLE. RECIPIENT shall treat such information with the same degree of care as it accords to its own proprietary information but, in any event, not less than reasonable care.

4. It is understood by the Parties that this obligation of confidentiality shall not apply to information which:

a. is published or becomes published or otherwise becomes generally available to the public through no breach of this Agreement by RECIPIENT; or

b. RECIPIENT can show was properly in its possession prior to receipt of the disclosure from

BATTELLE; or

c. is independently developed by RECIPIENT as demonstrated by competent documentary evidence; or

d. becomes available to RECIPIENT from an independent source without breach of agreement or violation of law.

In addition to the above exceptions, the RECIPIENT may disclose that portion of Proprietary Information which, in the opinion of its legal counsel, is required to be disclosed pursuant to proper governmental or judicial process, provided that notice of such process is promptly provided to BATTELLE in order that BATTELLE may have every reasonable opportunity to intervene in such process to contest such disclosure.

5. Proprietary Information disclosed hereunder shall remain the property of BATTELLE. No license under any patent, copyright, trademark or trade secret is granted or implied.

6. Promptly after receipt of a written request from BATTELLE and in the absence of such a request no later than thirty (30) days prior to the completion of the confidentiality period set forth in Article 3, above, RECIPIENT shall return all documents concerning the Proprietary Information to BATTELLE and all copies of any such documents or certify in writing their destruction, subject to RECIPIENT’s right to retain one copy of each such document in the files of its law department or outside legal counsel for record purposes only.

7. This Agreement shall be governed by and construed in accordance with the laws of the State of

Washington and any action brought to enforce any provision or obligation hereunder shall be brought in a court of competent jurisdiction in the State of Washington. The prevailing Party in any such proceeding shall be entitled to receive from the other Party all reasonable attorneys’ fees incurred by such prevailing Party and all costs reasonably incurred in connection therewith.

8. Notice: The export or deemed export of goods and/or technical data from the United States may require some form of export control license or other authority from the United States Government and failure to obtain such export control license may result in criminal liability under the United States laws.

9. Neither Party shall have the right to assign or otherwise transfer its rights or obligations under this

Agreement, in whole or in part, without the prior written consent of the other Party.

10. BATTELLE warrants that it has the right to make the disclosures made under this Agreement. NO

OTHER WARRANTIES, INCLUDING WARRANTIES AGAINST INFRINGEMENT, ARE MADE

UNDER THIS AGREEMENT. ANY INFORMATION PROVIDED BY BATTELLE UNDER THIS

AGREEMENT IS PROVIDED “AS IS”, AND IS SUBJECT TO THE EXPRESS LIMITATIONS

SET FORTH IN THIS PARAGRAPH. Certain information exchanged under this Agreement results from active and on-going research and development activities, and is by its nature incomplete, subject to change and high risk. BATTELLE does not endorse any particular technology or company, and makes no representation or warranty whatsoever as to the commercial viability, potential markets or future prospects for any technology or company. Any decision RECIPIENT makes with respect to any technology or company should not be made in reliance on any information exchanged under this

Agreement. BATTELLE is not selling, offering for sale, or soliciting offers to purchase any securities of any company, and nothing said or done by BATTELLE shall be construed as such.

11. This Agreement may be transferred to the DOE or its designee upon termination, if any, of

BATTELLE’s Management & Operation Contract with the DOE to operate the Pacific Northwest National Laboratory. BATTELLE shall also continue to be bound by the terms of this Agreement regardless of such assignment or transfer.

The period of time during which BATTELLE may disclose Proprietary Information to RECIPIENT under the terms of this Agreement shall be six (6) months from the effective date of this Agreement, or as extended by written modification and agreed to by both Parties. This Agreement may be terminated upon thirty (30) days advance written notice to the other Party. Termination of this Agreement shall not extinguish any obligations accrued hereunder at the time of termination, and such obligations shall survive termination to the extent necessary to permit their complete fulfillment or discharge. The effective date of this Agreement shall be determined by the date affixed hereto by the Party last signing this Agreement.

Facsimile signatures are deemed equivalent to original signatures for purposes of this Agreement.

BATTELLE MEMORIAL INSTITUTE

PACIFIC NORTHWEST DIVISION

COMPANY

BY:

BY:

PRINTED

NAME:

Erica T. Belsito

PRINTED

NAME:

TITLE:

Authorized Agent

TITLE:

DATE:

DATE: