310 Shake Shop Non-Disclosure Agreement

Receiving Party (as defined in the submission form) desires to receive certain confidential information from 310 Nutrition, LLC (“Disclosing Party”). To ensure the protection of such information and for good and valuable consideration, the receipt and adequacy of which is acknowledged, the parties agree as follows:

1. As used in this Agreement, Confidential Information includes all technical, financial and business information relating to Disclosing Party’s and its subsidiaries’ and affiliates’ business, including without limitation proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial information, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is marked as “Confidential Information,” and all other information marked as “Confidential” at the time of, or shortly following, disclosure. Notwithstanding the foregoing, “Confidential Information” does not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party or its representatives; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party's clear and convincing written evidence prior to the time of disclosure; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as shown by clear and convincing written evidence in the Receiving Party's possession.

2. Receiving Party shall safeguard the confidentiality and ensure the non-dissemination of all Confidential Information including by enacting at least those measures Receiving Party takes to protect its own most valuable confidential information. Receiving Party may use the Confidential Information only for the purpose of evaluating its potential business relationship with Disclosing Party.

3. Receiving Party shall limit disclosure of Confidential Information within its own organization to its directors, officers, employees and/or professional advisors, (or in the case of an individual, such individual’s spouse and professional advisors) who have agreed to maintain such information as strictly confidential in accordance with the terms of this Agreement and have a need to know such information. Receiving Party will be liable for all act of such third parties. Receiving Party shall not disclose Confidential Information to any other third party without prior written consent.

4. This Agreement shall not be construed as creating, conveying, transferring, granting or conferring upon either party any rights, license or authority in or to the information exchanged. No license or conveyance of any intellectual property rights is granted or implied by this Agreement.

5. Nothing in this Agreement constitutes an obligation by Disclosing Party to disclose any specific information to Receiving Party or constitutes a representation or warranty that any disclosure is full and accurate. Neither party has an obligation under this Agreement to offer or to purchase any services, goods, or intangibles from the other party or to do business with the other party. Furthermore, both parties acknowledge and agree that the exchange of information under this Agreement shall not commit or bind either party to any present or future contractual relationship (except as specifically stated herein), nor shall the exchange of information be construed as an inducement to act or not to act in any given manner.

6. Neither party shall be liable to the other in any manner whatsoever for any decisions, obligations, costs or expenses incurred, changes in business practices, plans, organization, products, services, or otherwise, based on either party’s decision to use or rely on any information exchanged under this Agreement.

7. Upon the Disclosing Party's request, all documents, emails, and other tangible objects containing or representing the Confidential Information and all copies thereof which are in the possession or control of the Receiving Party (or any third parties receiving such information from the Receiving Party), in all forms and formats, shall be promptly returned to the Disclosing Party and, in the case of emails or other soft copies, permanently deleted.

8. The Receiving Party agrees that its obligations hereunder are necessary and reasonable in order to protect the Disclosing Party and the Disclosing Party’s business, and expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of any covenants and agreements set forth herein. Accordingly, the Receiving Party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Disclosing Party shall be entitled to obtain specific performance, injunctive relief and/or other equitable relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages. The Receiving Party further agrees to waive any requirement for security or posting of any bond in connection with any such remedy.
9. Except as otherwise specifically provided, the obligations of the Receiving Party under this Agreement shall survive the termination of this Agreement for as long as any disclosed information remains “Confidential Information” as defined above.

10. This Agreement states the entire agreement between the parties concerning the disclosure of Confidential Information and supersedes any prior agreements, understandings, or representations. Any addition or modification to this Agreement must be made in writing and signed by authorized representatives of both parties. This Agreement shall be governed by the laws of the State of California without reference to conflict of laws principles. Any suit to enforce this Agreement shall be brought in Las Vegas, NV, and the Parties hereby submit to the exclusive personal jurisdiction of such courts and waive any venue objection. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution. The prevailing party in any litigation or other proceeding (“Proceeding”) relating to the enforcement or interpretation of this Agreement may recover from the other party all costs, expenses, and actual attorney’s fees (including expert witness and other consultants’ fees and costs) relating to or arising out of the Proceeding and the collections thereof.