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MUTUAL NON-DISCLOSURE AGREEMENT

This Mutual Non-Disclosure Agreement (the “Agreement”), "effective date" as posted above is entered into by and between Smith Medical Holdings Inc., (“SMHI”) a Florida corporation, having its principal place of business at 800 Belle Terre Parkway, Suite 200-152 Palm Coast, Florida 32164 and the "recipient" referred to and posted above.

WHEREAS, in connection with the evaluation of a potential business arrangement between the Parties (the “Purpose”), the Parties desire to share certain information that is non-public, confidential or proprietary in nature.

NOW, THEREFORE, in consideration of the mutual covenants, agreements, terms and conditions contained herein, the Parties agree as follows:

1. Confidential Information.

a. “Confidential Information” means all non-public, confidential, or proprietary information disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or its affiliates, or to any of such Receiving Party’s or its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, the “Representatives”) whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” or “proprietary” including, without limitation:

i. all information concerning the Disclosing Party’s and its affiliates’, and their customers’, suppliers’, and other third parties’ past, present, and future business affairs including, without limitation, business plans, proposed transactions (e.g., business combinations, acquisitions), tax and regulatory positions, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies;

ii. the Disclosing Party’s unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property;

iii. all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing;

iv. any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party to the Receiving Party or its Representatives; and

v. all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Materials”) prepared by or for the Receiving Party or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.

2. Exclusions from Confidential Information. Except as required by applicable federal, state, or local law or regulation, the term “Confidential Information” as used in this Agreement shall not include information that:
a. at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Receiving Party or any of its Representatives;

b. at the time of disclosure is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Receiving Party by a legal, fiduciary, or contractual obligation to the Disclosing Party;

c. was known by or in the possession of the Receiving Party or its Representatives, as established by documentary evidence, before being disclosed by or on behalf of the Disclosing Party under this Agreement; or

d. was or is independently developed by the Receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.

3. Receiving Party Obligations. Unless otherwise consented to in writing by the Disclosing Party, the Receiving Party shall:

a. protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;

b. not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than the Purpose, or otherwise in any manner to the Disclosing Party’s detriment;

c. not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who: (i) need to know the Confidential Information to assist the Receiving Party, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (ii) are informed by the Receiving Party of the confidential nature of the Confidential Information; (iii) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the terms and conditions of this Agreement; and (iv) be responsible for any breach of this Agreement caused by any of its Representatives;

d. be responsible for any breach of this Agreement caused by any of its Representatives;

e. not make copies of the Confidential Information, in whole or in part, except for a reasonable number of copies necessary for the Purpose, such copies to be reproduced, without modification, and with any and all proprietary markings and other legends contained thereon; and

f. Use the Confidential Information only for the Purpose.

4. Required Disclosures. Any Disclosure by the Receiving Party or its Representatives of any of the Disclosing Party's Confidential Information under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this Section. Before making any such disclosure, the Receiving Party shall make commercially reasonable efforts, if not prohibited by law or the Legal Order, to provide the Disclosing Party:

a. prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and

b. reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

If, after providing such notice and assistance as required herein, the Receiving Party remains subject to a Legal Order to disclose any Confidential Information, the Receiving Party (or its Representatives or other persons to whom such Legal Order is directed) shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, such Legal Order specifically requires the Receiving Party to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

5. Return or Destruction of Information. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed; provided, however, that one copy of the Confidential Information may be retained by the Receiving Party solely for archival purposes and, in such an instance, the confidentiality obligations contained in this Agreement shall survive and continue to apply to such Confidential Information notwithstanding anything herein to the contrary. In addition, the Receiving Party shall also destroy all copies of any Materials created by the Receiving Party or its Representatives and certify in writing to the Disclosing Party that such copies have been destroyed.

6. No Transfer of Rights, Title, Interest. Each Party hereby retains its entire right, title, and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title, or interest whatsoever to the Receiving Party or any of its Representatives.

7. No Representations or Warranties. Neither the Disclosing Party nor any of its Representatives make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Receiving Party hereunder. Neither the Disclosing Party nor any of its Representatives shall be liable to the Receiving Party or any of its Representatives relating to or resulting from the Receiving Party’s use of any of the Confidential Information or any errors therein or omissions therefrom.

8. No Other Obligation. The Parties agree that neither Party shall be under any legal obligation of any kind whatsoever, or otherwise be obligated to enter into any business or contractual relationship, investment, or transaction, by virtue of this Agreement, except for the matters specifically agreed to herein. Either Party may at any time, at its sole discretion with or without cause, terminate discussions and negotiations with the other Party, in connection with the Purpose or otherwise.

9. Term. The term of this Agreement shall commence on the Effective Date and shall expire three (3) years from the Effective Date, provided that either Party may, upon thirty (30) days written notice to the other Party, terminate this Agreement at any time by providing written notice to the other Party. Notwithstanding anything to the contrary herein, each Party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of five (5) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Receiving Party; provided, however, that any obligations with respect to trade secrets shall continue indefinitely.

10. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice, or other document by mail to such Party's address set out herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

11. Equitable Relief. Each Party acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by such Party or its Representatives. Therefore, in addition to all other remedies available at law (which neither Party waives by the exercise of any rights hereunder), the non-breaching Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach.

12. Notice of Rights Pursuant to the Defend Trade Secrets Act (“DTSA”). Notwithstanding any provisions in this Agreement or company policy of any Party hereto applicable to the unauthorized use or disclosure of trade secrets, the Parties are hereby notified that, pursuant to Section 7 of the DTSA, an individual (including, but not limited to, an employee, consultant or independent contractor) shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.

13. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof (a “Dispute”), shall be resolved: (a) first, by negotiation; and (b) then, if negotiation fails, by binding arbitration. These procedures shall be the exclusive means for resolution of any Dispute. The initiation of arbitration hereunder will toll the applicable statute of limitations for the duration of any such proceedings. If either party serves written notice of a Dispute upon the other party (a “Dispute Notice”), the parties will first attempt to resolve such Dispute by direct discussions and negotiation. If negotiation fails to resolve the Dispute within fifteen (15) days of delivery of the Dispute Notice, either party shall have the right to commence arbitration. In that event, the Dispute shall be resolved by final and binding arbitration administered by jamsadr.org (“JAMS”) pursuant to its Arbitration Rules and Procedures other than as modified hereby or by mutual agreement of the Parties. The place of arbitration shall be [Agreed upon neutral Location]. Any question regarding the arbitrability of a Dispute shall be submitted to and decided by the arbitrator or arbitrators pursuant to this Section 14. Judgment on the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The arbitrator or arbitrators shall execute nondisclosure agreements acceptable to the Parties that will require that the arbitrator or arbitrators take all reasonable efforts to prevent disclosure of Confidential Information disclosed to such arbitrator or arbitrators during or as part of the arbitration proceedings. The parties acknowledge and agree that a party would suffer irreparable harm from a breach by the other party of this Agreement, and that remedies other than injunctive relief may not fully compensate or adequately protect the non-breaching party for or from such a violation. Therefore, at any time during the pendency of a Dispute between the parties, either party has the right to apply to any court of competent jurisdiction for interim relief, including pre-arbitration attachments or injunctions, necessary to preserve the Parties’ rights or to maintain the Parties’ relative positions until such time as the arbitration award is rendered or the Dispute is otherwise resolved. Recipient Party waives any requirement of Disclosing Party’s posting of bond in connection with obtaining such equitable relief. During the pendency of any Dispute or any such interim relief proceeding, the Parties shall continue to perform all obligations under this Agreement. Each Party shall bear its own costs, expenses and attorneys’ fees in pursuit and resolution of any Dispute; provided, however, that, in any arbitration under this Section 14, the prevailing Party, as determined by the arbitrator or arbitrators, shall recover from the other Party reasonable costs and attorney fees, arbitration fees, and expert fees, as determined by the arbitrator or arbitrators, pursuant to JAMS Rules except as modified by this Section 14. The available costs, fees, and expenses to the prevailing party shall include those incurred from the date of the first written notice under this Section 14 through the latter of (a) entry of the final arbitration award, (b) entry of judgment on the award, or (c) any related appeal or subsequent proceeding.

14. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

16. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, which will not be reasonably withheld. Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

18. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set out on the first page of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section).

19. Entire Agreement. This Agreement sets forth the entire agreement and understandings between the Parties as to the subject matter hereof and supersedes and cancels all agreements, negotiations, commitments, writings, and discussions between the Parties as to the subject matters dealt with herein prior to the date of this Agreement. This Agreement may not be modified except by written mutual agreement by both Parties.