This Agreement (“Agreement” or “PNDNC Agreement”) is made and entered into as of date Recipient entered into this Agreement via electronic signature (“Effective Date”). It is by and between UNDER THE INFLUENCE INC., A DELAWARE CORPORATION, and its parents, subsidiaries and affiliates (collectively, the “Discloser”) and you and your parents, subsidiaries and affiliates (collectively, the “Recipient”) (each a “Party” and collectively, the “Parties”).

1.         Purpose.  “Discloser’s Proprietary Parties” refers to the customers, clients, suppliers, vendors and other business relationships of Discloser. This Agreement is to govern the protection of Discloser regarding Discloser’s Proprietary Parties and of Discloser’s Confidential Information. To the extent any other agreement between the parties is deemed to encompass the subjects and terms of this Agreement, this Agreement shall be deemed to be additional to such other agreements. However, in the event of a conflict between the degrees of protection provided under this Agreement and that provided under any other agreement, the terms most protective of Discloser shall take precedence. No other agreement may supersede or modify this Agreement unless such agreement specifically references this Agreement and indicates the degree to which it modifies this specific Agreement. 

2.         Confidential Information.  “Confidential Information” refers to any information which is disclosed by the Discloser to the Recipient, either directly or indirectly, or acquired in the course of the business relationship of the parties, either in writing, orally, by inspection of tangible objects or electronically, or any other means, that i) Discloser indicates is confidential or proprietary, ii)  concerns or relates to the Discloser’s Proprietary Parties, iii) involves the contracts, finances, business plans, relationships, product development, service development, technology, know-how, methodologies, customer/client information or vendor/supplier information of Discloser, or iv) is information that by its nature a reasonable person would conclude is likely to be considered by Discloser to be the confidential information of Discloser.

3.         Non-Use and Non-Disclosure; Non-circumvent.  Recipients will not disclose, distribute, copy or use any Confidential Information, without the prior written consent of the other Party and then only to the extent specified in such consent. Confidential Information may be used only to the extent reasonably required for the Purposes hereof; provided however, that Recipients may only disclose the Confidential Information to those of its directors, officers, advisors, agents and employees (“Representatives”) who need to know such Confidential Information for the Purposes and who shall be bound by an agreement or other legally enforceable duty to preserve the confidentiality of the Confidential Information in a manner consistent with this Agreement.  In addition, Recipients may authorize access to the Confidential Information to non-employees only after obtaining written consent from the Discloser to do so, and then only to those persons who have entered into appropriate confidentiality agreements, and Recipient will ensure compliance with the terms of such agreements. The Recipient will be responsible for any breach of this Agreement by it or its Representatives, whether or not such Representatives are associated with the Discloser at the time of the breach.   

The obligations of confidentiality set forth hereunder do not extend to any item of Confidential Information which (i) is publicly known at the time of its disclosure, (ii) is lawfully received by a Recipient from a third party not under a similar confidential agreement with the other Recipient, (iii) is published or otherwise made known to the public by the Discloser of Confidential Information, (iv) was generated independently by the receiving Recipient without reliance on Confidential Information (with supporting documentation evidencing such independent generation) or (v) was received either prior to the effectiveness of this Agreement or was received for the first time only after the termination or expiration of this Agreement.

At no time during the Term of this Agreement or afterward shall Recipient, directly or indirectly, i) divert any business opportunity from Discloser, including but not limited to any of those with Discloser’s Proprietary Parties, ii) disparage Discloser, its officers, directors, employees or Discloser’s Proprietary Parties, or iii) enter into any agreement or provide any products or services to or with any of the Discloser’s Proprietary Parties if such would compete with Discloser.

4.         Maintenance of Confidentiality.  Recipient agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information.  Without limiting the foregoing, Recipient shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no event less than reasonable measures.  Recipient shall reproduce Discloser’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original.  Recipient shall immediately notify Discloser upon discovery of any loss or unauthorized disclosure of any Confidential Information.  In the event that the Recipient receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or governmental body, or pursuant to applicable regulatory or professional accounting standards, Recipient agrees to (i) immediately notify the Discloser of the existence, terms and circumstances surrounding such a request, so that the Discloser may seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the disclosed information, and (ii) only disclose that portion of the Confidential Information which counsel advises is legally required to be disclosed.  At all times, the Discloser shall retain sole ownership of its Confidential Information.

5.         Return of Materials.  At the request of the Discloser, Recipient will promptly return to the Discloser or destroy any written or electronic Confidential Information and all physical media on which Confidential Information was received from the other Recipient, including any copies thereof, with a letter confirming that the Confidential Information has in no way been reproduced or copied or that all copies have been returned and that none of the Confidential Information was furnished to anyone except in accordance with this Agreement.  The Recipient and its Representatives shall not retain any copies, extracts or other reproductions, in whole or in part, of such written or electronic material. 

6.         Term.  This Agreement shall be effective as of the Effective Date, and may be terminated by either Party at any time upon 30 days written notice to the other Party. The terms of this Agreement shall survive termination, however, for clarity of doubt, information received for the first time only after the termination of this Agreement shall not be considered Confidential Information. Recipient’s obligations under this Agreement shall survive termination of the Agreement between the Parties and shall be binding upon the Recipient’s heirs, successors and assigns.

7.         Remedies.  Each Recipient acknowledges that a violation of this Agreement would cause irreparable harm to the Discloser for which no adequate remedy at law exists and each Recipient therefore agrees that, in addition to any other remedies available, Discloser will be entitled to seek injunctive relief to enforce the terms of this Agreement.  In the event a dispute arises under this Agreement, the Discloser shall be entitled to reasonable attorneys’ fees and costs in addition to all other remedies available to the Discloser under this Agreement, at law or otherwise.

8.         Miscellaneous.  The terms of this Agreement may be modified or waived only by a separate writing signed by the Parties expressly so modifying or waiving such terms.  No failure or delay by the Discloser in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege hereunder.  The unenforceability of any provision of this Agreement will not affect the validity or enforceability or any other provision.  This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to any conflicts or choice of laws provisions that would cause the application of the domestic substantive laws of any other jurisdiction.  This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and neither party shall have any lesser obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth herein.  This Agreement may be executed in counterparts, with each an original and both of which together shall constitute one and the same instrument, and the Parties agree that they will be bound by telecopy signatures, with original signatures to follow.  The Recipient expressly agrees and acknowledges that any disputes relating to this Agreement will be adjudicated exclusively by federal and state courts located in Los Angeles County, California, USA.