Take 44 Inc.,


as of May 15, 2020

This Mutual Non-Disclosure Agreement (“NDA”) is by and between Take 44, Inc. a corporation organized under the laws of the State of Delaware (“Take 44”) and the agency (“Agency”) named in the Online Subscription Order Form to initiate a Subscription License by the Agency for use of Take 44’s software, NextAgency. This NDA is effective upon the date of Agency’s completion of the Online Subscription Order Form.

Take 44 and Agency may be referred to individually as “Party” and collectively as “Parties.”

WHEREAS, Take 44 is the maker of software known as NextAgency and Agency wishes to subscribe to this software; and

WHEREAS, the Parties will be sending specific information to each other to complete this subscription (“Subscription” or “Transactions”), the Parties recognize the need to disclose to one another and to protect certain Confidential Information (as defined below); and

WHEREAS, the Parties wish to provide the terms and conditions upon which such Confidential Information will be disclosed to the other Party;

NOW, THEREFORE, the Parties agree as follows:

1. Confidential Information

As used in this Agreement, the term “Confidential Information” means information in whatever form disclosed by or on behalf of one Party ("Disclosing Party”) to the other Party or its Representatives (“Receiving Party”), disclosed on or after this NDA becomes effective, which relates to a Disclosing Party’s Transactions, including without limitation, electronic and hard copy documentation regarding the Disclosing Party’s current and planned products; descriptions of such products and their capabilities; physical samples of such products; plans; markets; projected activities and results of operations; customers; contracts. The term “Confidential Information” includes not only written information but also information transferred orally, visually, electronically or by any other means including any notes, analyses, compilations, memoranda or other documents prepared by the Receiving Party which contain, reflect or are based upon, in whole or in part, any Confidential Information furnished by or on behalf of the Disclosing Party.

The term “Representatives” means a Party’s directors, officers, affiliates, employees, financing sources, consultants, agents, advisors and contracted insurance companies or carriers and other providers of insurance-related products and services. The term " affiliate” means any person or entity controlling, controlled by or under common control with the Party in question. Notwithstanding the foregoing definition, the term “Confidential Information” does not include any information that (i) becomes generally available to the public other than as a result of its disclosure in violation of this Agreement by the Receiving Party or its Representatives, (ii) was known or becomes available to the Receiving Party on a non- confidential basis from a source other than the Disclosing Party, provided, that such source is not to the Receiving Party’s knowledge prohibited from disclosing such information to the Receiving Party by a contractual, legal, or fiduciary obligation to the Disclosing Party, or (iii) was developed by the Receiving Party without reference to the Confidential Information.

2. Disclosure and Use of Confidential Information

The Receiving Party shall hold in confidence and shall not disclose to any person outside its organization (except as provided for below), any Confidential Information. Each party will protect the confidentiality of the Confidential Information with no less care than it protects the confidentiality of its own proprietary and confidential information and materials of like kind, but in no event will either party protect the confidentiality of the Confidential Information with less than a reasonable standard of care. The Receiving Party shall use such Confidential Information only for the purpose of the request and shall protect such Confidential Information from disclosure to third parties. The Receiving Party may disclose the Disclosing Party’s Confidential Information (a) as required by applicable law, regulation, legal or administrative process; or (b) to its Representatives, in each case if such Representatives to process the Disclosing Party’s Transaction (i) have a need to know the Confidential Information, and (ii) use the Confidential Information only for purposes of evaluating the Transactions.

The Parties shall each be responsible for any breach of the terms of this Agreement by them or their Representatives and agree, at their sole expense, to take all reasonable measures to restrain their respective Representatives from prohibited or unauthorized disclosure or use of the Confidential Information. The Receiving Party of Confidential Information shall promptly notify the Disclosing Party of any use or disclosure of such Confidential Information in violation of this Agreement of which the Receiving Party becomes aware. The Disclosing Party acknowledges that the Receiving Party currently operates in a business that is similar to the Disclosing Party’s, and that the Receiving Party is otherwise knowledgeable with respect to the industry to which the Confidential Information applies, and the Receiving Party agrees that the Receiving Party’s employment of the same or similar practices, techniques, concepts or information as those used by the Disclosing Party or disclosed as part of the Confidential Information will not give rise to any inference that any Confidential Information was utilized or disclosed. The Disclosing Party agrees that this Agreement does not in any way prohibit or restrict any competition by the Receiving Party.

3. Ownership of Confidential Information

The Receiving Party agrees that the Disclosing Party is and shall remain the exclusive owner of Confidential Information. No license or conveyance of any such rights to the Receiving Party is granted or implied under this Agreement.

4. Accuracy of Information

Each Party acknowledges that neither Party nor any of its respective Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information and neither Party shall have any liability to the other Party or any Representative resulting from any use of the Confidential Information.

5. Termination and Return of Confidential Information

Discussions between the parties may be terminated by any one party to this Agreement, as evidenced by a written termination notice to the other party. Following termination and upon written request by the Disclosing Party, the Receiving party will, at the option of the Disclosing Party, either (i) promptly destroy all copies of written Confidential Information in its possession and confirm such destruction to the Disclosing Party in writing or (ii) promptly deliver to the Disclosing Party, at the Disclosing Party’s expense, all copies of the written Confidential Information in its possession. Any Evaluation Materials will be destroyed, and written certification of such destruction will be provided to the Disclosing Party provided, however, the Receiving Party will be able to retain one (1) copy of the Confidential Information only as required to comply with its record retention policies and/or to comply with regulatory obligations. Confidential Information provided to either party electronically shall be subject to any destruction obligations contained herein. Additionally, neither party shall have any obligation to destroy electronic copies of Confidential Information which are retained in standard archival or computer back-up systems.

6. Miscellaneous

A. To the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of interest with respect to such matters and it is their respective desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.

B. This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns.

C. The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose. The Receiving Party agrees that any breach of this Agreement may cause the Disclosing Party substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Disclosing Party shall have the right to seek specific performance and other injunctive and equitable relief. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.

D. This Agreement will commence on the Effective Date and remains in full force and effect in perpetuity or until the Disclosing Party sends the Receiving Party written notice releasing it from this Agreement.

E. Each provision of this Agreement is independent, and if any term, covenant, or condition in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement and the covenants herein contained shall not be affected thereby and the residue shall be valid and enforceable to the fullest extent permitted by law.