Effective date: January 12, 2023

This Non-Disclosure and Non-Solicitation Agreement (this “Agreement”) strictly restricts the use of Seller’s Confidential Information (as defined below) by any party using the Services. With respect to this Agreement, any user of the Services who seeks access to Seller’s Confidential Information through the Baton Platform or otherwise from Baton, the applicable prospective Buyer (such user and Buyer together, the “Recipient”), and Seller to a proposed Transaction shall herein be referred to collectively as, the “Parties” and Baton Market Inc. (“Baton”) shall be a third party beneficiary with the right to enforce all of its terms. Any capitalized terms used in this Agreement without definitions have the definitions given to them in the Terms of Use.

With respect to each Seller, this Agreement is effective as of the date Recipient first accesses Confidential Information from such Seller, Baton or the Baton Platform and shall continue until the earlier of two years thereafter or the signing of a definitive agreement consummating the Transaction (“Term”).

Seller and Recipient have entered into agreements with Baton to use certain Services offered by Baton (the “Baton Platform”). Recipient agrees that access to and use of Confidential Information provided by Seller and obtained by Recipient through the Baton Platform or otherwise provided by Baton is restricted in accordance with the terms hereunder. Additionally, if you are a Recipient that is acting as a broker on behalf of a prospective Buyer, you agree that you will require your referred Buyer to be bound by terms relating to Seller’s Confidential Information that are at least as restrictive as the provisions of this Agreement.

1. Confidentiality and Security.

   1. Confidential Information. As used herein, “Confidential Information” means any and all technical, business, financial and legal information provided or made available by Seller whether disclosed on the Baton Platform, orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” Confidential Information may include, without limitation, information regarding: (i) trade secrets; (ii) proprietary information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Seller, including without limitation, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising and marketing plans; (iii) all other information that a reasonable person knows or should know is confidential or proprietary; and (iv) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials prepared by Seller, Recipient, Baton, or their respective Representatives (as defined below), that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.

      The terms and conditions of any Transaction or possible Transaction between the Parties, the fact that disclosures, evaluations or discussions are taking place, and the status and results thereof are all Confidential Information.

   2. Notwithstanding Section 1(a), Confidential Information shall not include, and this Agreement shall not apply to, any information which: (i) becomes generally available to the public other than as a result of disclosure by Recipient or its Representatives in breach of this Agreement; (ii) can reasonably be demonstrated is already in the Recipient’s rightful possession prior to disclosure of the Confidential Information hereunder, provided that such information is not reasonably known by the Recipient to be subject to confidentiality and non-use obligations or other obligation of secrecy to the Seller; (iii) Recipient can reasonably demonstrate becomes available to it on a non-confidential basis, provided that such source is not known by the Recipient to be bound by confidentiality and non-use obligations or other obligation of secrecy to the Seller prohibiting such disclosure; or (iv) Recipient can reasonably demonstrate is independently developed by Recipient without using Confidential Information and without otherwise violating its obligations hereunder.

   3. Affirmative Covenants Relating to Protection and Non-Disclosure of Confidential Information. Notwithstanding the termination or cessation of Recipient’s evaluation or business relationship with Seller, Recipient covenants and agrees:

      1. Confidential Information is and shall remain the sole property of Seller;

      2. To hold the Confidential Information in strict confidence both during and after the Term;

      3. To use the Confidential Information for no purpose other than determining whether to consummate a Transaction;

      4. To protect Confidential Information with the highest degree of care; and

      5. To limit access to the Confidential Information to only those of its or any of its employees, consultants, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors having a need to know for purposes of evaluating a potential Transaction and are bound by written confidentiality and non-use obligations at least as restrictive as those contained herein (collectively, “Representatives”). Recipient is fully liable for any breach of this Agreement by its Representatives.

      6. These affirmative covenants shall survive the termination of this Agreement until the Seller notifies the Recipient in writing of their termination.

   4. Negative Covenants Relating to Protection and Non-Disclosure of Confidential Information. Notwithstanding the termination or cessation of Recipient’s evaluation or business relationship with Seller, Recipient covenants and agrees that it shall not:

      1. Directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow this Confidential Information to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever except as permitted hereunder or approved in advance in writing by Seller (provided that, if Recipient is a broker acting on behalf of a prospective Buyer, Recipient may disclose Confidential Information to such prospective Buyer that is bound by terms at least as restrictive as the provisions contained hereunder);

      2. Make, use or sell for any purpose any product or other materials using, incorporating or derived from any Confidential Information;

      3. Modify, copy, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, including any software programs contained therein, without the prior written consent of Seller;

      4. Reproduce or copy Confidential Information in any form except as permitted hereunder or approved in advance in writing by Seller; or

      5. Remove Confidential Information from the premises or control of Recipient, except as permitted hereunder or with the prior written consent of Seller in each instance.

      6. These negative covenants shall survive the termination of this Agreement until the Seller notifies the Recipient in writing of their termination.

   5. Permitted Disclosure. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, pursuant to the valid order, subpoena or similar demand of a court of competent jurisdiction or an authorized government agency, or pursuant to an ordinary course examination or audit by a regulator, bank examiner or self-regulatory organization, provided that the audit or examination is not specifically directed at Seller or the Confidential Information. Recipient shall promptly provide written notice of any such audit, examination, legal request, order, subpoena or similar demand to Seller so that Seller may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Recipient agrees to provide reasonable cooperation (at Seller’s request and sole expense) to resist or limit any disclosure pursuant to this Section 1(e) and shall only provide the minimum amount of Confidential Information required by the applicable order, request, audit or examination.

   6. During the Term, Recipient will not, and will direct its Representatives not to, make any inquiry about Seller’s business to any known customer, officer, director, employee, consultant, agent, supplier, creditor or competitor of the Seller, except as may occur in the ordinary course of business unrelated to the contemplated Transaction or as otherwise permitted by Seller.

   7. Irreparable Harm Caused by Recipient’s Improper Use of Confidential Information. Seller's Confidential Information and Seller's ability to reserve it for the exclusive knowledge and use of Seller is of great competitive importance and commercial value to Seller, and Recipient agrees that any improper use or disclosure of Confidential Information by Recipient will cause irreparable harm to Seller, for which remedies at law will not be adequate and will likely cause Seller to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties. Seller shall be entitled to seek an injunctive relief against any actual or suspected breach and other equitable relief to enforce any and all of the provisions of this Agreement. To the extent permitted by applicable law, Recipient hereby waives any requirement that Seller must prove actual damages or to post a bond in connection with the remedies described in the immediately preceding sentence. The remedies afforded to the Seller by this Section 1(g) shall be in addition to any and all other remedies available to the Seller for any violation, breach or threatened breach of this Agreement by the Recipient or its Representatives.

2. Non-Solicitation. Recipient covenants and agrees that neither Recipient nor its Representatives shall, for itself or on behalf of another person or entity, during the Term: (i) directly or indirectly solicit for employment or otherwise induce, influence or encourage to terminate employment with Seller, or employ or engage as an independent contractor, any employee or independent contractor of Seller; or (ii) directly or indirectly solicit business from, or induce, influence or encourage, any client, customer, supplier or other similar third party engaged with Seller to alter, terminate or breach its contractual or other business relationship with Seller. Notwithstanding the foregoing, nothing in this Section 2 shall prohibit the Recipient from (a) advertising to the general public, such as through website job postings and newspaper and trade journals, or other general solicitation (including by a bona fide search firm or recruiting agency) not targeted at such persons, or (b) hiring any individual who has not been employed by the Company for not less than ninety (90) days prior to commencement of employment or engagement discussions with such person.

   1. This non-solicitation provision includes but is not limited to all forms of oral, written and electronic communication, including text messaging, instant messaging and social media such as Facebook, Linkedln, Instagram, Twitter and other similar social media platforms, virtual reality or other yet to be created medium for communication.

3. Return of Confidential Information to Seller. Upon the termination or cessation of Recipient’s business relationship with Seller, or at Seller's written request at any time during the Term of this Agreement, Recipient shall promptly return to Seller all copies of Confidential Information, whether in written, electronic or other form or media, or destroy all such copies (including those stored in electronic form on systems and data storage services provided by third parties) and certify in writing to Seller that such Confidential Information has been destroyed upon Seller’s written request for such certification. Notwithstanding the foregoing, (i) neither Recipient nor any of its Representatives shall be required to destroy any electronic copy of any Confidential Information that is created pursuant to such Recipient’s standard electronic backup, archival or document retention procedures if (a) only Recipient’s personnel whose functions are primarily information technology in nature have access to such retained copies or as reasonably necessary for the performance of their information technology duties, (ii) Recipient and its Representatives may each retain (a) one copy of Confidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the Confidential Information, or established document retention policies and (b) such copies of the Confidential Information to the extent required to comply with requirements of applicable law, and (iii) neither Recipient nor any of its Representatives shall be required to destroy any proprietary financial analyses or models prepared by Recipient or its Representatives in connection with the evaluation of the proposed Transaction after the Term so long as all Confidential Information is deleted or redacted from all such financial analyses and models. Further, any Confidential Information so retained shall continue to be subject to the terms of this Agreement, including, but not limited to, the confidentiality and non-use provisions hereof. Upon the written request of the Seller, Recipient shall provide a written certification to the Seller confirming compliance with Recipient’s obligations under this Section 3. Notwithstanding the termination of Seller's relationship with Recipient, Recipient’s obligations under this Agreement will survive termination or cessation of Recipient’s business relationship with Seller and will be binding upon Recipient’s heirs, successors, and assigns.

4. Recipient agrees that unless and until a final definitive agreement consummating the Transaction has been executed and delivered, neither the Seller, the Recipient, nor any Buyer referred by the Recipient will be under any legal obligation of any kind whatsoever with respect to such a potential Transaction by virtue of this Agreement except for the matters specifically agreed to herein. No course of dealing, negotiations or other actions shall bind the Seller or Recipient in respect of a potential Transaction except as may be set forth in a definitive written agreement duly executed and delivered by an authorized representative of each such party.

5. Disclaimers. Seller’s business information and Confidential Information shall be provided to Recipient “AS IS” without prior review or auditing of the accuracy of information by Baton. The Recipient will access and evaluate Seller’s business and Confidential Information and otherwise negotiate with Seller to pursue the purchasing activities it chooses to pursue with Seller. Therefore, the Parties agree that Baton has no liability whatsoever for any deficiency or inaccuracy of, or any other representations or warranties of any kind with respect to Confidential Information provided by Seller and/or used by Recipient, and all such liability shall remain solely a liability of Seller, and the Parties hereby waive any claims known or unknown or are a result of the Seller’s disclosure of its business and Confidential Information, defined herein, to Recipient. The Parties further agree that Baton is not liable for any errors or omissions in Confidential Information made available through the Baton Platform or otherwise provided by Baton or for any damages or loss either Party might suffer in connection with use of the Confidential Information. Recipient acknowledges and agrees that its use of and reliance on Seller’s Confidential Information is solely at its own risk.

6. Arbitration. THE SELLER AND RECIPIENT AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO, OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL BE FINALLY SETTLED BY BINDING ARBITRATION TO BE HELD IN NEW YORK, NEW YORK IN ACCORDANCE WITH THE JAMS STREAMLINED ARBITRATION RULES AND PROCEDURES (THE “RULES”) THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR. THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATOR’S DECISION IN ANY COURT HAVING COMPETENT JURISDICTION. THE SELLER AND RECIPIENT SHALL BE LIABLE FOR ANY COSTS AND EXPENSES OF SUCH ARBITRATION (AND BATON SHALL HAVE NO LIABILITY FOR SUCH COSTS AND EXPENSES), AND EACH OF SELLER AND RECIPIENT SHALL SEPARATELY PAY FOR THEIR RESPECTIVE COUNSEL FEES AND EXPENSES, UNLESS OTHERWISE PROVIDED IN SECTION 7(E) OR AS MUTUALLY AGREED BY THE PARTIES. THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF BOTH PARTY’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES AND ANY CLAIMS ARISING HEREUNDER.

7. Additional Terms.

   1. No Rights in Confidential Information. Nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to Recipient in any Confidential Information disclosed under this Agreement or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information.

   2. Unauthorized Disclosure. Recipient will immediately notify Seller in the event of any unauthorized access, disclosure, loss or misuse of any Confidential Information, and Recipient shall use its best efforts to immediately contain and remedy any such unauthorized access, disclosure, loss or misuse.

   3. Notice. All notices or reports permitted or required under this Agreement must be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.

   4. Applicable Law. This Agreement shall be construed in accordance with, and its validity and effect (including any claims of breach of any of the terms thereof) shall be governed by, the laws of the State of New York, without regard to the conflicts of laws provisions thereof.

   5. Attorneys' Fees and Fee Shifting. If an arbitrator determines that either Party to this Agreement has materially breached this Agreement, then the Party the arbitrator determines has breached this Agreement hereby agrees to pay reasonable attorneys' fees and costs incurred by the other Party seeking to enforce the terms of this Agreement and that such arbitrator shall enter judgment in favor of the successful Party in the arbitration for the amount of these fees and costs.

   6. Miscellaneous. If any of the provisions of this Agreement shall be held to be invalid, unlawful or unenforceable, then the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Strict performance of the terms of this Agreement is required. All of the terms, provisions and conditions herein shall bind and inure to the benefit of, the heirs, executors, administrators, legal representatives, successors, assigns, officers, directors, employees and affiliates of the parties hereto. This Agreement may not be amended or terminated before expiration without the written consent of all of the parties hereto. No waiver by any Party hereto of any breach or default hereunder shall be deemed a waiver of any other or subsequent breach or default. In the event that any signature to this Agreement is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof. No Party shall raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data file to deliver any such signature page or the fact that such signature was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data file as a defense to the formation or enforceability of a contract and each Party waives such defense.