NON-DISCLOSURE AGREEMENT

THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made between BabyFi LLC, organized under the laws of the State of California and having its principal place of business at 1043 Garland Avenue, Unit C #934, San Jose, California, 95126 (“BabyFi” or “Company”), and Party submitting an idea(s) to BabyFi’s Gestation Tank (“Submitter”)  (each a “Party” and jointly, the “Parties”).  The Agreement is made as of the date electronically signed  (“Effective Date”) The Parties acknowledge that they may exchange or have exchanged information which is secret, nonpublic or proprietary in nature (“Confidential Information”).

1. The Parties wish to explore a possible business opportunity of mutual interest, hereto (the “Relationship”) in connection with which the Parties may disclose Confidential Information (as defined below).  This Agreement is intended to allow the Parties to discuss and evaluate the prospective Relationship while protecting the Confidential Information (as defined below) of the Company and Recipient against unauthorized use or disclosure.


2. Confidential Information means any oral, written, graphic or machine-readable information and/or data including, without limitation, financial and/or business information, patents, patent applications, trade secrets, research, product plans, business plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source code and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, services, customers, prospective customers, and/or marketing or strategic plans of the Company or its third-party suppliers (as applicable), or which information would, due to the nature thereof and/or the circumstances surrounding disclosure, appear to a reasonable person to be confidential or proprietary to the discloser and/or its third-party suppliers.


3. Non-Disclosure of Confidential Information and Permitted Use:
   1. If during the course of discussions between the Parties, one party should deliver any information (“Disclosing Party”) to the other party (“Receiving Party”) then the Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose such information, in whole or in part, of the Disclosing Party to the extent that:
      1. it has been designated orally or in writing as “Confidential” or “Proprietary” or in like words;
      2. it contains certain information which is generally treated as proprietary, such as information regarding its business, its clients, intellectual property, developments, inventions, processes, business plans, agreements with third parties, finances, operations or personally identifiable and sensitive data, or
      3. it contains certain information, whether or not in written form and whether or not designated as confidential or proprietary, which the Receiving Party knows or should know is treated as confidential by the Disclosing Party.
   2. The Receiving Party shall not use Confidential Information other than in connection with the Transaction described above and then only to the extent specified by the Disclosing Party in such written consent.  Confidential Information may be used and disseminated within the Receiving Party’s own organization and authorized contractors only to the extent reasonably required for the purposes hereof.
   3. The Receiving Party shall exercise the same degree of care in safeguarding the Confidential Information of the Disclosing Party that it would exercise for its own information of the same type provided that no less than reasonable care shall be used.  The Receiving Party shall authorize access to the Disclosing Party’s Confidential Information only to its personnel and other appropriately authorized agents, representatives and contractors who need to know this information, are made aware of the terms and conditions of this Agreement and have agreed to comply with such Agreement.

4. The restrictions on use or disclosure described in Paragraphs 2 and 3 above do not extend to any item of information which:

1. 1. is publicly known at the time of its disclosure;
   2. is received from a third party provided that, to the Receiving Party’s knowledge, such source is not precluded by law or confidentiality obligations from disclosing the same;
   3. is published or made known to the public by the Disclosing Party subsequent to receipt by the Receiving Party;
   4. was independently developed by the Receiving Party without reference to any Confidential Information disclosed hereunder; or
   5. is required by law or other legal authority to be disclosed, provided that the Receiving Party gives the Disclosing Party prior notice of the required disclosure so that appropriate protective orders or other legal remedies may be sought and provided that such information be used only for the purposes for which the order was issued and only to the extent necessary for compliance with the order.

5. The Parties understand that each Party and its respective affiliates are actively engaged in activities, investments, technology exploitation and research and development efforts (collectively the “Business Activities”) and that Confidential Information disclosed hereunder may include, without limitation, descriptions of ideas, works in progress and projects in development that may be similar to or coincident with such Business Activities. The parties further acknowledge that such Business Activities may have originated with each Party’s (or its respective affiliates’) own employees or others and may duplicate, parallel or resemble portions of the other Party’s Confidential Information. The parties agree that this Agreement shall in no way limit, restrict or preclude either party or its respective affiliates from pursuing any of its present or future Business Activities or interests, either done alone or in conjunction with others, or from entering into any agreement or transaction of any kind with any other person or entity, regardless of whether the subject matter of any such agreement or transaction involves elements similar to or coincident with any of the other party’s Confidential Information exchanged hereunder or is in any other way similar to or coincident with any transaction considered or evaluated by the parties.

6. No license, interest or right of any kind is granted or implied to the Receiving Party under any trademark, patent, copyright or other intellectual property rights which are now or may hereafter be owned by the Disclosing Party.

7. Each party agrees that money damages may not be a sufficient remedy for its breach of this Agreement as such violation could cause irreparable injury to the other party.  Accordingly, either party shall be entitled to seek an injunction or other appropriate equitable or legal relief to restrain any breach or threatened breach of this Agreement.

8. Upon written demand by the Disclosing Party, the Receiving Party shall delete or destroy any Confidential Information of the other and all physical media on which Confidential Information was received, including any copies thereof, with a letter confirming that the Confidential Information has been deleted or destroyed. Notwithstanding the foregoing, each Receiving Party will be entitled to (i) retain copies of the Confidential Information preserved or recorded in any computerized data storage device or component or saved automatically to standard back-up or archival systems, and (ii) retain copies of Confidential Information to the extent required by law, regulation or normal document retention policies; provided that for so long as the Receiving Party retains any Confidential Information, it shall employ reasonable security measures and shall exercise reasonable care in protecting the confidentiality of such information as it does protecting its own information similarly recorded or saved and will continue to be bound by the obligation under this Agreement in regards to all such Confidential Information.

9. The Parties have entered into this Agreement only for the purposes of facilitating discussions regarding the Transaction and neither party shall be under any further obligation to consummate the Transaction or divulge any Confidential Information merely by executing this Agreement.

10. The Disclosing Party shall not transmit and the Receiving Party shall not use Confidential Information in violation of any law, rule or regulation nor the proprietary, privacy or other rights of any third party.  Except for this Paragraph and Paragraph 7, neither party shall bear liability for any expenses, costs, losses or actions incurred or undertaken as a result of the receipt or use of Confidential Information by the Receiving Party.

11. This Agreement shall be binding on the parties, their subsidiaries, successors and assigns.  It shall be governed by and construed in accordance with the laws and in the state and federal courts of the State of California and both parties agree to the personal jurisdiction of and waive any objections to the venue of such courts.  THE PARTIES WAIVE TRIAL BY JURY IN CONNECTION WITH ANY CLAIM, ACTION OR SUIT ASSERTED, BROUGHT OR ARISING UNDER THIS AGREEMENT.

12. To the fullest extent permitted by law, the party proposing an idea to BabyFi agrees that it will not now or at any time in the future pursue any charge, claim, or action of any kind, nature and character whatsoever against BabyFi, or cause or knowingly permit any such charge, claim or action to be pursued, in any federal, state or municipal court, administrative agency, arbitral forum, or other tribunal, arising out of any of matters related to this Agreement.

13. Unless this Agreement is terminated as provided below, this Agreement shall expire one hundred eighty (180) days after the Effective Date.  Notwithstanding the foregoing, either Party may terminate this Agreement upon ten (10) days’ prior written notice to the other Party.  The obligations of the Recipient set forth in this Agreement shall survive for a period of three (3) years after the expiration or earlier termination of this Agreement, provided, however, that with respect to any Confidential Information of the Company that is comprised of trade secrets, such obligations shall survive indefinitely for so long as such information remains a trade secret under applicable law.

14. If any provision of this Agreement is for any reason found to be invalid, illegal or unenforceable, the remainder of this Agreement will continue in full force and effect, and such invalid, illegal or unenforceable provision shall be deemed to be excised from this Agreement to the minimum extent required in order to achieve compliance with applicable laws and regulations and, to the extent possible, in a manner that most closely effectuates the function and purpose of such provision as currently set forth in this Agreement.

15. This Agreement comprises the full and complete agreement of the Parties with respect to its subject matter and supersedes and cancels all prior or contemporaneous communications, understandings and agreements between the Parties, whether written or oral, expressed or implied, with respect to such subject matter.

16. This Agreement may not be amended or modified except in a writing duly executed by the Party against whom enforcement of such amendment or modification is sought.  No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.

17. All notices, requests and other communications under this Agreement will be sent in writing, and must be (a) mailed by nationally-recognized overnight courier or registered or certified mail, postage prepaid and return receipt requested, or (b) delivered by hand via courier to the party to whom such notice is required or permitted to be given, or (c) transmitted by facsimile or by e-mail.  If mailed, any such notice will be considered to have been given upon receipt, as evidenced by the written confirmation of delivery or return receipt (as applicable).  If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given.  The mailing address for notice to either party will be the address shown on the signature page of this Agreement.  Either party may change its mailing address by notice as provided by this Section 17.

18. This Agreement may be executed by the Parties with BabyFi’s electronic signature below and the Submitter’s electronic signature provided on BabyFi’s website whereby the Submitter checks a box to indicate the Submitter has read, understood, and agrees to BabyFi’s Non-Disclosure Agreement.  All Parties need not sign the same counterpart.  Any counterpart or other signature hereunder delivered by electronic transmission, such as e-mail or PDF, shall be deemed for all purposes as constituting a good and valid execution and delivery of this Agreement by such Party.

By: /S/ Ana Newman
Title:     CEO
Address: BabyFi LLC
1043 Garland Avenue
San Jose, California 94126