1042-00003 · Whitmore & Falk LLP · Transaction Documents

mutual-nda-bcs-nexilis.docx DOCUMENT Litigation

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MUTUAL NONDISCLOSURE AGREEMENT

CONFIDENTIAL TREATMENT REQUESTED

This Mutual Nondisclosure Agreement (this "Agreement") is entered into as of June 19, 2023 (the "Effective Date"), by and between:

Brightfield Cloud Services Inc., a Delaware corporation, with its principal offices at 4200 Bluebonnet Parkway, Suite 1100, Austin, TX 78745 ("Brightfield" or "BCS");

and

Nexilis Innovations Ltd., a Delaware corporation, with its principal offices at 77 Kendall Square, Suite 400, Cambridge, MA 02139 ("Nexilis" or "NIL").

Each of Brightfield and Nexilis is referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Brightfield is an enterprise software-as-a-service ("SaaS") platform and hybrid-cloud hardware appliance company that designs, develops, markets, and supports the "Stratos" cloud-management platform, which enables enterprise customers to provision, monitor, and orchestrate workloads across public, private, and hybrid cloud environments;

WHEREAS, Nexilis is a deep-technology research and development company and the owner of certain patented distributed-cache orchestration technology known as the "DeltaSync Platform," including fourteen (14) issued U.S. utility patents (U.S. Patent Nos. 11,234,567 through 11,234,580) and six (6) pending U.S. patent applications (Application Nos. 17/901,201 through 17/901,206), together with related trade secrets, know-how, technical documentation, and software implementations;

WHEREAS, the Parties wish to explore a potential exclusive technology license pursuant to which Brightfield would license the DeltaSync Platform for integration into its enterprise cloud-management product suite (the "Purpose"), and in connection therewith, the Parties anticipate engaging in detailed technical, commercial, financial, and intellectual-property diligence;

WHEREAS, in connection with the Purpose, each Party may disclose to the other certain confidential and proprietary information, and the Parties desire to establish the terms and conditions under which such information will be disclosed, received, and protected;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1 — DEFINITIONS

Section 1.1 — "Confidential Information." "Confidential Information" means all non-public, proprietary, or confidential information disclosed by or on behalf of one Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether disclosed orally, in writing, electronically, visually, or by any other means, and whether or not marked as "confidential," "proprietary," or with any similar legend or designation. Without limiting the generality of the foregoing, Confidential Information shall include, by way of illustration and not limitation: technical data, trade secrets, patent applications (including, without limitation, pending Application Nos. 17/901,201 through 17/901,206), inventions, discoveries, improvements, know-how, source code, object code, algorithms, software designs, system architectures, network topologies, database schemas, product roadmaps, product specifications, engineering notebooks, prototypes, test results, performance benchmarks, customer lists, customer data, vendor and supplier information, financial data (including revenue figures, projections, and forecasts), business plans, pricing information, cost structures, marketing strategies, competitive analyses, organizational charts, personnel information, and any analyses, compilations, studies, notes, memoranda, summaries, or other documents or materials prepared by the Receiving Party or any of its Representatives that contain, reflect, or are derived from or based upon, in whole or in part, any Confidential Information of the Disclosing Party (collectively, "Derived Materials"). Notwithstanding the foregoing, information that is disclosed orally or visually shall qualify as Confidential Information only if (a) it is identified as confidential at the time of disclosure, and (b) it is summarized in a written memorandum that is delivered to the Receiving Party within thirty (30) days following such oral or visual disclosure; provided, however, that the failure to so identify or summarize orally or visually disclosed information shall not affect the confidential nature of any information that would otherwise constitute Confidential Information under the other provisions of this Section 1.1.

Section 1.2 — "Disclosing Party." "Disclosing Party" means the Party disclosing Confidential Information to the other Party or on whose behalf Confidential Information is disclosed to the other Party.

Section 1.3 — "Receiving Party." "Receiving Party" means the Party receiving Confidential Information from the Disclosing Party or from any Representative of the Disclosing Party.

Section 1.4 — "Representatives." "Representatives" means, with respect to a Party, such Party's directors, officers, employees, agents, advisors (including, without limitation, outside legal counsel, financial advisors, accountants, and consultants), and auditors who (a) have a need to know the Confidential Information in connection with the Purpose, and (b) are bound by confidentiality obligations no less restrictive than those set forth in this Agreement, whether by contract, professional obligation, fiduciary duty, or otherwise.

(a) For the avoidance of doubt, the Representatives of Brightfield expressly include Calderwood & Harkness LLP (outside legal counsel to Brightfield), Crestline Patent Analytics LLC (a patent diligence consultant retained by Calderwood & Harkness LLP on behalf of Brightfield for the purpose of evaluating the DeltaSync patent portfolio), and Vantage Summit Capital Partners, LP (Brightfield's majority equity holder) and its authorized representatives, including Graham Hollister, Managing Director of Vantage Summit Capital Partners, LP, each of whom shall be bound by confidentiality obligations consistent with this Agreement prior to receiving any Confidential Information of Nexilis.

(b) For the avoidance of doubt, the Representatives of Nexilis expressly include Whitmore & Falk LLP (outside legal counsel to Nexilis), each of whose members, partners, associates, and staff shall be bound by confidentiality obligations consistent with this Agreement prior to receiving any Confidential Information of Brightfield.

Section 1.5 — "Purpose." "Purpose" means the evaluation, negotiation, and potential consummation of an exclusive inbound technology license from Nexilis to Brightfield for the DeltaSync distributed-cache orchestration technology and related intellectual property, including the DeltaSync Patents (U.S. Patent Nos. 11,234,567 through 11,234,580) and pending patent applications (Application Nos. 17/901,201 through 17/901,206), for integration into Brightfield's Stratos enterprise cloud-management platform, and all related commercial, technical, financial, and intellectual-property diligence activities undertaken by the Parties and their respective Representatives in furtherance thereof.

ARTICLE 2 — EXCLUSIONS FROM CONFIDENTIAL INFORMATION

Notwithstanding anything to the contrary in this Agreement, the obligations set forth in Articles 3, 5, and 7 shall not apply to any information that the Receiving Party can demonstrate, by clear and convincing evidence:

Section 2.1 — Publicly Available Information. Is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement. For the avoidance of doubt, information shall not be deemed to be generally available to the public merely because it is embraced by more general information in the public domain or because individual features, components, or combinations thereof are separately known in the public domain.

Section 2.2 — Prior Possession. Was already in the possession of the Receiving Party, without any obligation of confidentiality to the Disclosing Party or any third party, prior to the date of disclosure by or on behalf of the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records existing prior to such disclosure.

Section 2.3 — Independent Development. Was independently developed by the Receiving Party or its Representatives without reference to, reliance upon, or use of any Confidential Information of the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records, including, without limitation, laboratory notebooks, engineering logs, version-control histories, or similar documentation.

Section 2.4 — Third-Party Disclosure. Becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party's Representatives, provided that such source is not, to the Receiving Party's knowledge (after reasonable inquiry), bound by a confidentiality obligation to the Disclosing Party or any of its Representatives with respect to such information.

The exclusions set forth in this Article 2 shall be interpreted narrowly, and the burden of establishing the applicability of any exclusion shall rest with the Receiving Party claiming the benefit of such exclusion.

ARTICLE 3 — OBLIGATIONS OF THE RECEIVING PARTY

Section 3.1 — Confidentiality Obligations. The Receiving Party shall: (a) hold all Confidential Information of the Disclosing Party in strict confidence; (b) not disclose, publish, disseminate, or otherwise make available any Confidential Information to any person or entity other than its Representatives who have a need to know such information in connection with the Purpose; and (c) use the Confidential Information solely for the Purpose and for no other purpose whatsoever, whether commercial, competitive, or otherwise, without the prior written consent of the Disclosing Party. Without limiting the generality of the foregoing, the Receiving Party shall not use the Confidential Information to design, develop, manufacture, market, or sell any product, service, or technology, except to the extent expressly contemplated by the Purpose.

Section 3.2 — Standard of Care. The Receiving Party shall protect the Disclosing Party's Confidential Information using at least the same degree of care that the Receiving Party uses to protect its own confidential and proprietary information of a similar nature and sensitivity, but in no event less than a reasonable degree of care. Without limiting the foregoing, the Receiving Party shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to prevent unauthorized access to, disclosure of, or use of the Confidential Information, including, without limitation, access controls, encryption of electronic files in transit and at rest, and secure storage of physical materials.

Section 3.3 — Responsibility for Representatives. The Receiving Party shall be responsible and liable for any breach of this Agreement by any of its Representatives as if such breach had been committed by the Receiving Party itself. Prior to disclosing any Confidential Information to any Representative, the Receiving Party shall (a) inform such Representative of the confidential nature of the Confidential Information and the terms and conditions of this Agreement, and (b) ensure that such Representative is bound by written confidentiality obligations consistent with, and no less restrictive than, those set forth in this Agreement, whether by separate nondisclosure agreement, employment agreement, engagement letter, professional obligation, or fiduciary duty. Upon the Disclosing Party's written request, the Receiving Party shall promptly identify in writing the Representatives to whom Confidential Information has been disclosed and the basis upon which each such Representative is bound by the confidentiality obligations described in this Section 3.3.

Section 3.4 — No Reverse Engineering. The Receiving Party shall not reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure, or organization of any Confidential Information, including, without limitation, any software, prototypes, hardware components, or technical materials disclosed by the Disclosing Party, without the prior written consent of the Disclosing Party. This restriction shall apply regardless of whether such reverse engineering, disassembly, or decompilation is undertaken by the Receiving Party directly or by any of its Representatives. Nothing in this Section 3.4 shall be construed to restrict any rights of the Receiving Party under applicable law to the extent that such rights cannot be waived by contract.

ARTICLE 4 — PERMITTED DISCLOSURES

Section 4.1 — Compelled Disclosure. If the Receiving Party or any of its Representatives becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, judicial or administrative order, governmental investigation, or similar legal process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permissible:

(a) Provide the Disclosing Party with prompt written notice of such requirement, and in any event no later than five (5) business days after receiving notice of the compulsion (or, if such time period is not practicable under the circumstances, as promptly as reasonably practicable), so that the Disclosing Party may seek a protective order, motion to quash, or other appropriate remedy or relief;

(b) Cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in the Disclosing Party's efforts to obtain such protective order, motion to quash, or other appropriate remedy or relief;

(c) If, after the Disclosing Party has been afforded a reasonable opportunity to seek such protective order or other remedy, no such order or remedy is obtained (or the Disclosing Party waives compliance with the notice and cooperation obligations set forth in subsections (a) and (b) above), disclose only that portion of the Confidential Information that is legally required to be disclosed, as advised by the Receiving Party's legal counsel; and

(d) Use commercially reasonable efforts to ensure that all Confidential Information so disclosed is afforded confidential treatment by the tribunal, governmental body, or other person or entity to which it is disclosed.

Section 4.2 — Regulatory or Governmental Disclosure. Disclosures required by applicable law, regulation, or the rules or requirements of any governmental or regulatory authority (including, without limitation, the U.S. Securities and Exchange Commission, any state securities regulatory authority, or any applicable stock exchange) shall be permitted, provided that the Receiving Party complies with the notice and cooperation obligations set forth in Section 4.1 to the extent legally permissible. The Receiving Party shall use commercially reasonable efforts to limit the scope of any such disclosure and to obtain confidential treatment for any Confidential Information so disclosed.

ARTICLE 5 — USE RESTRICTIONS

Section 5.1 — Limited Use. Confidential Information disclosed hereunder shall be used by the Receiving Party and its Representatives solely in connection with the Purpose and shall not be used for any other purpose whatsoever. Without limiting the foregoing, the Receiving Party shall not use the Disclosing Party's Confidential Information (a) for competitive purposes, including, without limitation, to develop, design, engineer, manufacture, market, or sell any product, service, or technology that competes with any product, service, or technology of the Disclosing Party; (b) to obtain any commercial advantage over the Disclosing Party; or (c) for any commercial purpose unrelated to the Purpose.

Section 5.2 — No License Granted. Nothing in this Agreement shall be construed as granting to the Receiving Party or any of its Representatives any license, right, title, or interest, by implication, estoppel, or otherwise, under any patent (including, without limitation, U.S. Patent Nos. 11,234,567 through 11,234,580 and pending Application Nos. 17/901,201 through 17/901,206), copyright, trademark, service mark, trade dress, trade secret, or other intellectual property right of the Disclosing Party. All rights, title, and interest in and to the Confidential Information (and all intellectual property rights embodied therein or arising therefrom) shall remain the sole and exclusive property of the Disclosing Party. The Receiving Party acknowledges that the disclosure of Confidential Information hereunder does not constitute a grant of any right to practice any invention, or a commitment by the Disclosing Party to enter into any further agreement or arrangement with respect to the Confidential Information or the intellectual property of the Disclosing Party.

Section 5.3 — No Obligation to Proceed. Nothing in this Agreement shall obligate either Party to enter into any license agreement, business relationship, definitive agreement, or other transaction with the other Party. Each Party retains the absolute right, in its sole discretion, to terminate discussions regarding the Purpose at any time, for any reason or no reason, without liability to the other Party except for obligations arising under this Agreement. Unless and until the Parties execute a separate definitive written agreement with respect to the Purpose, neither Party shall have any obligation to the other Party with respect to any proposed transaction or business relationship, whether by virtue of this Agreement, any oral or written expression of interest, term sheet, letter of intent, or otherwise (except for the obligations expressly set forth in this Agreement).

ARTICLE 6 — TERM AND TERMINATION

Section 6.1 — Term. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect for a period of two (2) years from the Effective Date (i.e., through and including June 19, 2025), unless earlier terminated in accordance with Section 6.2. During the term of this Agreement, each Party may disclose Confidential Information to the other Party in accordance with the terms and conditions set forth herein.

Section 6.2 — Termination. Either Party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other Party, delivered in accordance with Section 10.8. Upon the effective date of such termination, neither Party shall have any further obligation to disclose Confidential Information to the other Party, but all obligations of the Receiving Party with respect to Confidential Information previously received shall continue in accordance with Section 6.3.

Section 6.3 — Survival of Obligations. The obligations of the Receiving Party with respect to Confidential Information received prior to the termination or expiration of this Agreement shall survive such termination or expiration and shall remain in full force and effect for a period of two (2) years following the date of such termination or expiration. For the avoidance of doubt, the survival period set forth in this Section 6.3 shall apply to all Confidential Information disclosed during the term of this Agreement, regardless of when during such term the disclosure occurred. The provisions of Articles 2, 5, 7, 8, 9, and 10 shall survive any termination or expiration of this Agreement in accordance with their respective terms.

ARTICLE 7 — RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION

Section 7.1 — Return or Destruction. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly, and in no event later than thirty (30) calendar days after such request, termination, or expiration:

(a) Return to the Disclosing Party all originals and copies of tangible materials containing, reflecting, or constituting Confidential Information of the Disclosing Party, including, without limitation, documents, memoranda, notes, reports, analyses, compilations, studies, data, disks, drives, and any other media or materials in the Receiving Party's possession or control (or in the possession or control of any of its Representatives); or

(b) Destroy all such tangible and electronic materials (including all copies and reproductions thereof, in whatever form or medium, including electronic copies stored on servers, workstations, laptops, portable devices, or cloud storage systems) and provide to the Disclosing Party a written certification of such destruction, signed by an authorized officer of the Receiving Party, confirming that all such materials have been destroyed in accordance with this Section 7.1.

The Receiving Party shall direct each of its Representatives that has received Confidential Information to comply with the return or destruction obligations set forth in this Section 7.1.

Section 7.2 — Retention of Copies. Notwithstanding Section 7.1, the Receiving Party may retain:

(a) Copies of Confidential Information that are stored on routine electronic back-up or disaster-recovery systems in the ordinary course of business, provided that (i) such copies are maintained solely for archival or disaster-recovery purposes, (ii) such copies are not intentionally accessed except as required by applicable law or regulation, and (iii) such copies are deleted in accordance with the Receiving Party's standard document-retention and data-destruction policies; and

(b) Copies of Confidential Information retained by outside legal counsel of the Receiving Party in accordance with applicable professional obligations, ethical rules, and document-retention policies, to the extent required by law or professional regulation.

Any Confidential Information retained pursuant to this Section 7.2 shall remain subject to the confidentiality obligations set forth in this Agreement (including the survival provisions of Section 6.3) for so long as such copies are retained.

ARTICLE 8 — NO REPRESENTATIONS OR WARRANTIES

Section 8.1 — "As Is" Disclosure. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, currentness, or fitness for a particular purpose of any Confidential Information disclosed or made available hereunder. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO THE CONFIDENTIAL INFORMATION. Neither Party nor any of its Representatives shall have any liability to the other Party or any of its Representatives relating to or resulting from the use of, or reliance upon, any Confidential Information, or for any errors therein or omissions therefrom, except as may be expressly set forth in a separate definitive written agreement executed by the Parties. Nothing in this Section 8.1 shall limit the obligations of the Parties set forth elsewhere in this Agreement.

ARTICLE 9 — REMEDIES

Section 9.1 — Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach of this Agreement by the Receiving Party or any of its Representatives may cause the Disclosing Party irreparable injury and harm for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek equitable relief, including, without limitation, temporary restraining orders, preliminary and permanent injunctive relief, and specific performance, in any court of competent jurisdiction, without the necessity of (a) proving actual damages, (b) posting any bond or other security, or (c) establishing the inadequacy of monetary damages as a remedy. The Receiving Party hereby waives any requirement that the Disclosing Party post a bond or other security in connection with any application for equitable relief. The seeking or obtaining of equitable relief shall not be deemed to constitute an election of remedies or a waiver of any right to seek monetary damages.

Section 9.2 — Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and shall be in addition to, and not in substitution for or limitation of, any other rights or remedies available to the Parties at law, in equity, or otherwise, including, without limitation, any rights or remedies available under applicable trade secret laws, patent laws, or other intellectual property laws.

ARTICLE 10 — GENERAL PROVISIONS

Section 10.1 — Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflicts-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 10.2 — Jurisdiction and Venue. Each Party irrevocably and unconditionally agrees that any action, suit, or proceeding arising out of or relating to this Agreement or any breach or threatened breach hereof shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if such court declines to accept jurisdiction, in the Superior Court of the State of Delaware), or in the United States District Court for the District of Delaware, and each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of such courts for the purposes of any such action, suit, or proceeding. Each Party irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

Section 10.3 — Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether oral or written, relating to the subject matter hereof, including, without limitation, any prior confidentiality, nondisclosure, or similar agreements between the Parties. There are no representations, warranties, covenants, or agreements between the Parties with respect to the subject matter hereof other than those expressly set forth or referred to in this Agreement.

Section 10.4 — Amendments. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument duly executed by authorized representatives of both Parties. No oral agreement or course of dealing between the Parties shall operate to amend or modify this Agreement.

Section 10.5 — Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, and any attempted assignment, delegation, or transfer in violation of this Section 10.5 shall be null and void and of no force or effect. Notwithstanding the foregoing, either Party may, without the prior written consent of the other Party, assign this Agreement to (a) an affiliate of such Party, or (b) a successor in interest in connection with a merger, consolidation, reorganization, or sale of all or substantially all of such Party's assets, provided that (i) such assignee agrees in writing to be bound by the terms and conditions of this Agreement, and (ii) the assigning Party provides prompt written notice of such assignment to the other Party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

Section 10.6 — Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any such right, power, or remedy shall preclude any other or further exercise thereof, or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Party granting the waiver.

Section 10.7 — Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable under applicable law, the remaining provisions of this Agreement shall continue in full force and effect, and the invalid, illegal, or unenforceable provision shall be reformed and construed so that it is valid, legal, and enforceable to the maximum extent permitted by applicable law and so as to most closely approximate the original intent of the Parties as expressed in such provision.

Section 10.8 — Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by overnight courier service of national reputation (with written confirmation of receipt), or (c) sent by certified or registered mail, return receipt requested, postage prepaid, to the Parties at the following addresses (or to such other address as either Party may designate by notice given in accordance with this Section 10.8):

If to Brightfield:

Daniel Oshiro General Counsel Brightfield Cloud Services Inc. 4200 Bluebonnet Parkway, Suite 1100 Austin, TX 78745

With a copy (which shall not constitute notice) to:

Catherine Bloom Calderwood & Harkness LLP 700 Louisiana Street, Suite 3400 Houston, TX 77002

If to Nexilis:

Nathan Woolsey General Counsel Nexilis Innovations Ltd. 77 Kendall Square, Suite 400 Cambridge, MA 02139

With a copy (which shall not constitute notice) to:

Joanna Whitmore Whitmore & Falk LLP 100 Federal Street, 28th Floor Boston, MA 02110

Notices delivered by hand or overnight courier shall be deemed received on the date of delivery. Notices sent by certified or registered mail shall be deemed received on the third (3rd) business day following the date of mailing.

Section 10.9 — Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic signature (including via Brightwater Software, Ashford Health IT, or any similar electronic signature platform) or by facsimile transmission of a signed counterpart shall be valid and binding and shall have the same force and effect as delivery of an original signed counterpart.

Section 10.10 — No Agency or Partnership. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary relationship, or employment relationship between the Parties. Neither Party shall have any authority to bind the other Party or to incur any obligations on behalf of the other Party.

Section 10.11 — Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective permitted successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity other than the Parties and their respective permitted successors and assigns any legal or equitable right, benefit, remedy, or claim under or by reason of this Agreement.

[Remainder of page intentionally left blank. Signature page follows.]

SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT

IN WITNESS WHEREOF, the Parties have caused this Mutual Nondisclosure Agreement to be executed by their duly authorized representatives as of the Effective Date first written above.

BRIGHTFIELD CLOUD SERVICES INC.

By: ________

Name: Daniel Oshiro

Title: General Counsel

Date: June 19, 2023

NEXILIS INNOVATIONS LTD.

By: ________

Name: Nathan Woolsey

Title: General Counsel

Date: June 19, 2023

MUTUAL NONDISCLOSURE AGREEMENT
CONFIDENTIAL TREATMENT REQUESTED
This Mutual Nondisclosure Agreement (this "Agreement") is entered into as of June 19, 2023 (the "Effective Date"), by and between:
Brightfield Cloud Services Inc., a Delaware corporation, with its principal offices at 4200 Bluebonnet Parkway, Suite 1100, Austin, TX 78745 ("Brightfield" or "BCS");
and
Nexilis Innovations Ltd., a Delaware corporation, with its principal offices at 77 Kendall Square, Suite 400, Cambridge, MA 02139 ("Nexilis" or "NIL").
Each of Brightfield and Nexilis is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Brightfield is an enterprise software-as-a-service ("SaaS") platform and hybrid-cloud hardware appliance company that designs, develops, markets, and supports the "Stratos" cloud-management platform, which enables enterprise customers to provision, monitor, and orchestrate workloads across public, private, and hybrid cloud environments;
WHEREAS, Nexilis is a deep-technology research and development company and the owner of certain patented distributed-cache orchestration technology known as the "DeltaSync Platform," including fourteen (14) issued U.S. utility patents (U.S. Patent Nos. 11,234,567 through 11,234,580) and six (6) pending U.S. patent applications (Application Nos. 17/901,201 through 17/901,206), together with related trade secrets, know-how, technical documentation, and software implementations;
WHEREAS, the Parties wish to explore a potential exclusive technology license pursuant to which Brightfield would license the DeltaSync Platform for integration into its enterprise cloud-management product suite (the "Purpose"), and in connection therewith, the Parties anticipate engaging in detailed technical, commercial, financial, and intellectual-property diligence;
WHEREAS, in connection with the Purpose, each Party may disclose to the other certain confidential and proprietary information, and the Parties desire to establish the terms and conditions under which such information will be disclosed, received, and protected;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — "Confidential Information." "Confidential Information" means all non-public, proprietary, or confidential information disclosed by or on behalf of one Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether disclosed orally, in writing, electronically, visually, or by any other means, and whether or not marked as "confidential," "proprietary," or with any similar legend or designation. Without limiting the generality of the foregoing, Confidential Information shall include, by way of illustration and not limitation: technical data, trade secrets, patent applications (including, without limitation, pending Application Nos. 17/901,201 through 17/901,206), inventions, discoveries, improvements, know-how, source code, object code, algorithms, software designs, system architectures, network topologies, database schemas, product roadmaps, product specifications, engineering notebooks, prototypes, test results, performance benchmarks, customer lists, customer data, vendor and supplier information, financial data (including revenue figures, projections, and forecasts), business plans, pricing information, cost structures, marketing strategies, competitive analyses, organizational charts, personnel information, and any analyses, compilations, studies, notes, memoranda, summaries, or other documents or materials prepared by the Receiving Party or any of its Representatives that contain, reflect, or are derived from or based upon, in whole or in part, any Confidential Information of the Disclosing Party (collectively, "Derived Materials"). Notwithstanding the foregoing, information that is disclosed orally or visually shall qualify as Confidential Information only if (a) it is identified as confidential at the time of disclosure, and (b) it is summarized in a written memorandum that is delivered to the Receiving Party within thirty (30) days following such oral or visual disclosure; provided, however, that the failure to so identify or summarize orally or visually disclosed information shall not affect the confidential nature of any information that would otherwise constitute Confidential Information under the other provisions of this Section 1.1.
Section 1.2 — "Disclosing Party." "Disclosing Party" means the Party disclosing Confidential Information to the other Party or on whose behalf Confidential Information is disclosed to the other Party.
Section 1.3 — "Receiving Party." "Receiving Party" means the Party receiving Confidential Information from the Disclosing Party or from any Representative of the Disclosing Party.
Section 1.4 — "Representatives." "Representatives" means, with respect to a Party, such Party's directors, officers, employees, agents, advisors (including, without limitation, outside legal counsel, financial advisors, accountants, and consultants), and auditors who (a) have a need to know the Confidential Information in connection with the Purpose, and (b) are bound by confidentiality obligations no less restrictive than those set forth in this Agreement, whether by contract, professional obligation, fiduciary duty, or otherwise.
(a) For the avoidance of doubt, the Representatives of Brightfield expressly include Calderwood & Harkness LLP (outside legal counsel to Brightfield), Crestline Patent Analytics LLC (a patent diligence consultant retained by Calderwood & Harkness LLP on behalf of Brightfield for the purpose of evaluating the DeltaSync patent portfolio), and Vantage Summit Capital Partners, LP (Brightfield's majority equity holder) and its authorized representatives, including Graham Hollister, Managing Director of Vantage Summit Capital Partners, LP, each of whom shall be bound by confidentiality obligations consistent with this Agreement prior to receiving any Confidential Information of Nexilis.
(b) For the avoidance of doubt, the Representatives of Nexilis expressly include Whitmore & Falk LLP (outside legal counsel to Nexilis), each of whose members, partners, associates, and staff shall be bound by confidentiality obligations consistent with this Agreement prior to receiving any Confidential Information of Brightfield.
Section 1.5 — "Purpose." "Purpose" means the evaluation, negotiation, and potential consummation of an exclusive inbound technology license from Nexilis to Brightfield for the DeltaSync distributed-cache orchestration technology and related intellectual property, including the DeltaSync Patents (U.S. Patent Nos. 11,234,567 through 11,234,580) and pending patent applications (Application Nos. 17/901,201 through 17/901,206), for integration into Brightfield's Stratos enterprise cloud-management platform, and all related commercial, technical, financial, and intellectual-property diligence activities undertaken by the Parties and their respective Representatives in furtherance thereof.
ARTICLE 2 — EXCLUSIONS FROM CONFIDENTIAL INFORMATION
Notwithstanding anything to the contrary in this Agreement, the obligations set forth in Articles 3, 5, and 7 shall not apply to any information that the Receiving Party can demonstrate, by clear and convincing evidence:
Section 2.1 — Publicly Available Information. Is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement. For the avoidance of doubt, information shall not be deemed to be generally available to the public merely because it is embraced by more general information in the public domain or because individual features, components, or combinations thereof are separately known in the public domain.
Section 2.2 — Prior Possession. Was already in the possession of the Receiving Party, without any obligation of confidentiality to the Disclosing Party or any third party, prior to the date of disclosure by or on behalf of the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records existing prior to such disclosure.
Section 2.3 — Independent Development. Was independently developed by the Receiving Party or its Representatives without reference to, reliance upon, or use of any Confidential Information of the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records, including, without limitation, laboratory notebooks, engineering logs, version-control histories, or similar documentation.
Section 2.4 — Third-Party Disclosure. Becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party's Representatives, provided that such source is not, to the Receiving Party's knowledge (after reasonable inquiry), bound by a confidentiality obligation to the Disclosing Party or any of its Representatives with respect to such information.
The exclusions set forth in this Article 2 shall be interpreted narrowly, and the burden of establishing the applicability of any exclusion shall rest with the Receiving Party claiming the benefit of such exclusion.
ARTICLE 3 — OBLIGATIONS OF THE RECEIVING PARTY
Section 3.1 — Confidentiality Obligations. The Receiving Party shall: (a) hold all Confidential Information of the Disclosing Party in strict confidence; (b) not disclose, publish, disseminate, or otherwise make available any Confidential Information to any person or entity other than its Representatives who have a need to know such information in connection with the Purpose; and (c) use the Confidential Information solely for the Purpose and for no other purpose whatsoever, whether commercial, competitive, or otherwise, without the prior written consent of the Disclosing Party. Without limiting the generality of the foregoing, the Receiving Party shall not use the Confidential Information to design, develop, manufacture, market, or sell any product, service, or technology, except to the extent expressly contemplated by the Purpose.
Section 3.2 — Standard of Care. The Receiving Party shall protect the Disclosing Party's Confidential Information using at least the same degree of care that the Receiving Party uses to protect its own confidential and proprietary information of a similar nature and sensitivity, but in no event less than a reasonable degree of care. Without limiting the foregoing, the Receiving Party shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to prevent unauthorized access to, disclosure of, or use of the Confidential Information, including, without limitation, access controls, encryption of electronic files in transit and at rest, and secure storage of physical materials.
Section 3.3 — Responsibility for Representatives. The Receiving Party shall be responsible and liable for any breach of this Agreement by any of its Representatives as if such breach had been committed by the Receiving Party itself. Prior to disclosing any Confidential Information to any Representative, the Receiving Party shall (a) inform such Representative of the confidential nature of the Confidential Information and the terms and conditions of this Agreement, and (b) ensure that such Representative is bound by written confidentiality obligations consistent with, and no less restrictive than, those set forth in this Agreement, whether by separate nondisclosure agreement, employment agreement, engagement letter, professional obligation, or fiduciary duty. Upon the Disclosing Party's written request, the Receiving Party shall promptly identify in writing the Representatives to whom Confidential Information has been disclosed and the basis upon which each such Representative is bound by the confidentiality obligations described in this Section 3.3.
Section 3.4 — No Reverse Engineering. The Receiving Party shall not reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure, or organization of any Confidential Information, including, without limitation, any software, prototypes, hardware components, or technical materials disclosed by the Disclosing Party, without the prior written consent of the Disclosing Party. This restriction shall apply regardless of whether such reverse engineering, disassembly, or decompilation is undertaken by the Receiving Party directly or by any of its Representatives. Nothing in this Section 3.4 shall be construed to restrict any rights of the Receiving Party under applicable law to the extent that such rights cannot be waived by contract.
ARTICLE 4 — PERMITTED DISCLOSURES
Section 4.1 — Compelled Disclosure. If the Receiving Party or any of its Representatives becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, judicial or administrative order, governmental investigation, or similar legal process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permissible:
(a) Provide the Disclosing Party with prompt written notice of such requirement, and in any event no later than five (5) business days after receiving notice of the compulsion (or, if such time period is not practicable under the circumstances, as promptly as reasonably practicable), so that the Disclosing Party may seek a protective order, motion to quash, or other appropriate remedy or relief;
(b) Cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in the Disclosing Party's efforts to obtain such protective order, motion to quash, or other appropriate remedy or relief;
(c) If, after the Disclosing Party has been afforded a reasonable opportunity to seek such protective order or other remedy, no such order or remedy is obtained (or the Disclosing Party waives compliance with the notice and cooperation obligations set forth in subsections (a) and (b) above), disclose only that portion of the Confidential Information that is legally required to be disclosed, as advised by the Receiving Party's legal counsel; and
(d) Use commercially reasonable efforts to ensure that all Confidential Information so disclosed is afforded confidential treatment by the tribunal, governmental body, or other person or entity to which it is disclosed.
Section 4.2 — Regulatory or Governmental Disclosure. Disclosures required by applicable law, regulation, or the rules or requirements of any governmental or regulatory authority (including, without limitation, the U.S. Securities and Exchange Commission, any state securities regulatory authority, or any applicable stock exchange) shall be permitted, provided that the Receiving Party complies with the notice and cooperation obligations set forth in Section 4.1 to the extent legally permissible. The Receiving Party shall use commercially reasonable efforts to limit the scope of any such disclosure and to obtain confidential treatment for any Confidential Information so disclosed.
ARTICLE 5 — USE RESTRICTIONS
Section 5.1 — Limited Use. Confidential Information disclosed hereunder shall be used by the Receiving Party and its Representatives solely in connection with the Purpose and shall not be used for any other purpose whatsoever. Without limiting the foregoing, the Receiving Party shall not use the Disclosing Party's Confidential Information (a) for competitive purposes, including, without limitation, to develop, design, engineer, manufacture, market, or sell any product, service, or technology that competes with any product, service, or technology of the Disclosing Party; (b) to obtain any commercial advantage over the Disclosing Party; or (c) for any commercial purpose unrelated to the Purpose.
Section 5.2 — No License Granted. Nothing in this Agreement shall be construed as granting to the Receiving Party or any of its Representatives any license, right, title, or interest, by implication, estoppel, or otherwise, under any patent (including, without limitation, U.S. Patent Nos. 11,234,567 through 11,234,580 and pending Application Nos. 17/901,201 through 17/901,206), copyright, trademark, service mark, trade dress, trade secret, or other intellectual property right of the Disclosing Party. All rights, title, and interest in and to the Confidential Information (and all intellectual property rights embodied therein or arising therefrom) shall remain the sole and exclusive property of the Disclosing Party. The Receiving Party acknowledges that the disclosure of Confidential Information hereunder does not constitute a grant of any right to practice any invention, or a commitment by the Disclosing Party to enter into any further agreement or arrangement with respect to the Confidential Information or the intellectual property of the Disclosing Party.
Section 5.3 — No Obligation to Proceed. Nothing in this Agreement shall obligate either Party to enter into any license agreement, business relationship, definitive agreement, or other transaction with the other Party. Each Party retains the absolute right, in its sole discretion, to terminate discussions regarding the Purpose at any time, for any reason or no reason, without liability to the other Party except for obligations arising under this Agreement. Unless and until the Parties execute a separate definitive written agreement with respect to the Purpose, neither Party shall have any obligation to the other Party with respect to any proposed transaction or business relationship, whether by virtue of this Agreement, any oral or written expression of interest, term sheet, letter of intent, or otherwise (except for the obligations expressly set forth in this Agreement).
ARTICLE 6 — TERM AND TERMINATION
Section 6.1 — Term. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect for a period of two (2) years from the Effective Date (i.e., through and including June 19, 2025), unless earlier terminated in accordance with Section 6.2. During the term of this Agreement, each Party may disclose Confidential Information to the other Party in accordance with the terms and conditions set forth herein.
Section 6.2 — Termination. Either Party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other Party, delivered in accordance with Section 10.8. Upon the effective date of such termination, neither Party shall have any further obligation to disclose Confidential Information to the other Party, but all obligations of the Receiving Party with respect to Confidential Information previously received shall continue in accordance with Section 6.3.
Section 6.3 — Survival of Obligations. The obligations of the Receiving Party with respect to Confidential Information received prior to the termination or expiration of this Agreement shall survive such termination or expiration and shall remain in full force and effect for a period of two (2) years following the date of such termination or expiration. For the avoidance of doubt, the survival period set forth in this Section 6.3 shall apply to all Confidential Information disclosed during the term of this Agreement, regardless of when during such term the disclosure occurred. The provisions of Articles 2, 5, 7, 8, 9, and 10 shall survive any termination or expiration of this Agreement in accordance with their respective terms.
ARTICLE 7 — RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
Section 7.1 — Return or Destruction. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly, and in no event later than thirty (30) calendar days after such request, termination, or expiration:
(a) Return to the Disclosing Party all originals and copies of tangible materials containing, reflecting, or constituting Confidential Information of the Disclosing Party, including, without limitation, documents, memoranda, notes, reports, analyses, compilations, studies, data, disks, drives, and any other media or materials in the Receiving Party's possession or control (or in the possession or control of any of its Representatives); or
(b) Destroy all such tangible and electronic materials (including all copies and reproductions thereof, in whatever form or medium, including electronic copies stored on servers, workstations, laptops, portable devices, or cloud storage systems) and provide to the Disclosing Party a written certification of such destruction, signed by an authorized officer of the Receiving Party, confirming that all such materials have been destroyed in accordance with this Section 7.1.
The Receiving Party shall direct each of its Representatives that has received Confidential Information to comply with the return or destruction obligations set forth in this Section 7.1.
Section 7.2 — Retention of Copies. Notwithstanding Section 7.1, the Receiving Party may retain:
(a) Copies of Confidential Information that are stored on routine electronic back-up or disaster-recovery systems in the ordinary course of business, provided that (i) such copies are maintained solely for archival or disaster-recovery purposes, (ii) such copies are not intentionally accessed except as required by applicable law or regulation, and (iii) such copies are deleted in accordance with the Receiving Party's standard document-retention and data-destruction policies; and
(b) Copies of Confidential Information retained by outside legal counsel of the Receiving Party in accordance with applicable professional obligations, ethical rules, and document-retention policies, to the extent required by law or professional regulation.
Any Confidential Information retained pursuant to this Section 7.2 shall remain subject to the confidentiality obligations set forth in this Agreement (including the survival provisions of Section 6.3) for so long as such copies are retained.
ARTICLE 8 — NO REPRESENTATIONS OR WARRANTIES
Section 8.1 — "As Is" Disclosure. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, currentness, or fitness for a particular purpose of any Confidential Information disclosed or made available hereunder. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO THE CONFIDENTIAL INFORMATION. Neither Party nor any of its Representatives shall have any liability to the other Party or any of its Representatives relating to or resulting from the use of, or reliance upon, any Confidential Information, or for any errors therein or omissions therefrom, except as may be expressly set forth in a separate definitive written agreement executed by the Parties. Nothing in this Section 8.1 shall limit the obligations of the Parties set forth elsewhere in this Agreement.
ARTICLE 9 — REMEDIES
Section 9.1 — Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach of this Agreement by the Receiving Party or any of its Representatives may cause the Disclosing Party irreparable injury and harm for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek equitable relief, including, without limitation, temporary restraining orders, preliminary and permanent injunctive relief, and specific performance, in any court of competent jurisdiction, without the necessity of (a) proving actual damages, (b) posting any bond or other security, or (c) establishing the inadequacy of monetary damages as a remedy. The Receiving Party hereby waives any requirement that the Disclosing Party post a bond or other security in connection with any application for equitable relief. The seeking or obtaining of equitable relief shall not be deemed to constitute an election of remedies or a waiver of any right to seek monetary damages.
Section 9.2 — Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and shall be in addition to, and not in substitution for or limitation of, any other rights or remedies available to the Parties at law, in equity, or otherwise, including, without limitation, any rights or remedies available under applicable trade secret laws, patent laws, or other intellectual property laws.
ARTICLE 10 — GENERAL PROVISIONS
Section 10.1 — Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflicts-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.2 — Jurisdiction and Venue. Each Party irrevocably and unconditionally agrees that any action, suit, or proceeding arising out of or relating to this Agreement or any breach or threatened breach hereof shall be brought exclusively in the Court of Chancery of the State of Delaware (or, if such court declines to accept jurisdiction, in the Superior Court of the State of Delaware), or in the United States District Court for the District of Delaware, and each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of such courts for the purposes of any such action, suit, or proceeding. Each Party irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
Section 10.3 — Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether oral or written, relating to the subject matter hereof, including, without limitation, any prior confidentiality, nondisclosure, or similar agreements between the Parties. There are no representations, warranties, covenants, or agreements between the Parties with respect to the subject matter hereof other than those expressly set forth or referred to in this Agreement.
Section 10.4 — Amendments. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument duly executed by authorized representatives of both Parties. No oral agreement or course of dealing between the Parties shall operate to amend or modify this Agreement.
Section 10.5 — Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, and any attempted assignment, delegation, or transfer in violation of this Section 10.5 shall be null and void and of no force or effect. Notwithstanding the foregoing, either Party may, without the prior written consent of the other Party, assign this Agreement to (a) an affiliate of such Party, or (b) a successor in interest in connection with a merger, consolidation, reorganization, or sale of all or substantially all of such Party's assets, provided that (i) such assignee agrees in writing to be bound by the terms and conditions of this Agreement, and (ii) the assigning Party provides prompt written notice of such assignment to the other Party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 10.6 — Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any such right, power, or remedy shall preclude any other or further exercise thereof, or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Party granting the waiver.
Section 10.7 — Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable under applicable law, the remaining provisions of this Agreement shall continue in full force and effect, and the invalid, illegal, or unenforceable provision shall be reformed and construed so that it is valid, legal, and enforceable to the maximum extent permitted by applicable law and so as to most closely approximate the original intent of the Parties as expressed in such provision.
Section 10.8 — Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by overnight courier service of national reputation (with written confirmation of receipt), or (c) sent by certified or registered mail, return receipt requested, postage prepaid, to the Parties at the following addresses (or to such other address as either Party may designate by notice given in accordance with this Section 10.8):
If to Brightfield:
Daniel Oshiro General Counsel Brightfield Cloud Services Inc. 4200 Bluebonnet Parkway, Suite 1100 Austin, TX 78745
With a copy (which shall not constitute notice) to:
Catherine Bloom Calderwood & Harkness LLP 700 Louisiana Street, Suite 3400 Houston, TX 77002
If to Nexilis:
Nathan Woolsey General Counsel Nexilis Innovations Ltd. 77 Kendall Square, Suite 400 Cambridge, MA 02139
With a copy (which shall not constitute notice) to:
Joanna Whitmore Whitmore & Falk LLP 100 Federal Street, 28th Floor Boston, MA 02110
Notices delivered by hand or overnight courier shall be deemed received on the date of delivery. Notices sent by certified or registered mail shall be deemed received on the third (3rd) business day following the date of mailing.
Section 10.9 — Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic signature (including via Brightwater Software, Ashford Health IT, or any similar electronic signature platform) or by facsimile transmission of a signed counterpart shall be valid and binding and shall have the same force and effect as delivery of an original signed counterpart.
Section 10.10 — No Agency or Partnership. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary relationship, or employment relationship between the Parties. Neither Party shall have any authority to bind the other Party or to incur any obligations on behalf of the other Party.
Section 10.11 — Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective permitted successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity other than the Parties and their respective permitted successors and assigns any legal or equitable right, benefit, remedy, or claim under or by reason of this Agreement.
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SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT
IN WITNESS WHEREOF, the Parties have caused this Mutual Nondisclosure Agreement to be executed by their duly authorized representatives as of the Effective Date first written above.
BRIGHTFIELD CLOUD SERVICES INC.
By: ________
Name: Daniel Oshiro
Title: General Counsel
Date: June 19, 2023
NEXILIS INNOVATIONS LTD.
By: ________
Name: Nathan Woolsey
Title: General Counsel
Date: June 19, 2023

MUTUAL NONDISCLOSURE AGREEMENT

CONFIDENTIAL TREATMENT REQUESTED

RECITALS

SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT

BRIGHTFIELD CLOUD SERVICES INC.

NEXILIS INNOVATIONS LTD.

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