Mutual Nondisclosure Agreement

NOT FOR EDITING OR NEGOTIATION

Version Date: July 10, 2024

This Elastic Mutual Nondisclosure Agreement ("NDA") is entered into as of the date of the contract, order, or similar agreement ("Agreement") between the Elastic entity ("Elastic") and the counterparty ("Counterparty") set forth in the Agreement (the "Effective Date").

1. 1. Background and Purpose. The parties wish to explore a possible business opportunity of mutual interest (the "Purpose"). Each party has disclosed and/or may disclose its Confidential Information (as defined below) to the other in connection with the Purpose. This NDA is intended to allow the parties to continue to discuss and evaluate the Purpose while protecting Discloser's Confidential Information (including Confidential Information previously disclosed to Recipient) against unauthorized use or disclosure. As used herein, the term "Discloser" shall refer to Elastic whenever the context refers to Elastic's Confidential Information being disclosed to Counterparty, which is referred to as "Recipient" in that context. Conversely, the term "Discloser" shall refer to Counterparty whenever the context refers to Counterparty's Confidential Information being disclosed to Elastic, which is referred to as "Recipient" in that context.
2. 2. Definition of Confidential Information. "Confidential Information" means information and physical material not generally known or available outside Discloser and information and physical material entrusted to Discloser in confidence by third parties. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Discloser (whether by oral, written, graphic or machine-readable format), and technical infrastructure, security and compliance documentation, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure. Failure to mark or designate information as "Confidential Information" at the time of disclosure, shall not relieve Recipient of its obligations hereunder if the nature of the information and the circumstances of disclosure are such that Recipient knew or should have known the information was "Confidential Information".
3. 3. Limitations on Use and Disclosure. Recipient shall not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than the Purpose. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties other than Recipient's Affiliates and/or Personnel who: (a) have a need to know that information to accomplish the Purpose, and (b) have agreed in writing to non-disclosure obligations substantially similar to those in this NDA. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this NDA to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient shall notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient's attention. The term "Affiliate" means, with respect to either party, any entity that directly or indirectly controls, is controlled by or is under common control with that party (and for purposes of such definition, the term "control" shall mean the power to direct or cause the direction of the management and policies of the entity, directly or indirectly, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor). The term "Personnel" means, with respect to either party and its Affiliates, their respective directors, officers, employees (whether full-time or part-time), contractors, agents, contract staff, subcontractors and advisors. Each party shall be responsible for the compliance of their respective Affiliates and Personnel with the terms and conditions of this NDA.
4. 4. Exceptions. Notwithstanding the above, information disclosed hereunder shall not be considered "Confidential Information" as defined herein where such information: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of Recipient; (ii) was known to Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Recipient without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (iv) is disclosed generally to third parties by Discloser without restrictions similar to those contained in this NDA; (v) becomes known to Recipient, without restriction, from a source other than Discloser without breach of this NDA by Recipient and otherwise not in violation of Discloser's rights; or (vi) is disclosed with the prior written approval of Discloser.
5. 5. Return of Materials. Any materials or documents that have been furnished by Discloser to Recipient in connection with the Purpose shall be promptly returned by Recipient, accompanied by all copies of such documentation, within ten (10) days after (a) the Purpose has been rejected or concluded or (b) the written request of Discloser; provided, however, that Recipient may at its option retain one (1) copy of such materials or documents for archival purposes and/or retain Confidential Information that has been archived on electronic backup media, provided that such copies will remain subject to the terms and conditions of this NDA.
6. 6. No Rights Granted. Nothing in this NDA shall be construed as granting any rights under any patent, copyright or other intellectual property right of Discloser, nor shall this NDA grant Recipient any rights in or to Discloser's Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Purpose. Nothing in this NDA requires the Recipient to proceed with the Purpose or any transaction in connection with which the Confidential Information may be disclosed.
7. 7. No Representations Made. Recipient acknowledges that neither Discloser, nor any of its representatives, in the course of providing the Confidential Information as contemplated hereunder, is making any representation or warranty (express or implied) as to the accuracy or completeness of any such information, and Recipient assumes full responsibility for all conclusions derived from such information. Recipient shall be entitled to, and shall, rely solely on representations and warranties made in a definitive agreement, if any, relating to the Purpose.
8. 8. Independent Development. Recipient's confidentiality obligations under this NDA shall not be construed to limit Recipient's right to develop independently or acquire products without use of Discloser's Confidential Information. Discloser acknowledges that Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this NDA will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that Recipient does not violate any of its obligations under this NDA in connection with such development.
9. 9. No Publicity. Neither party shall, without the prior consent of the other party, disclose to any other person the fact that Confidential Information of Discloser has been and/or may be disclosed under this NDA, that discussions or negotiations are taking place between the parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the other party.
10. 10. Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party's Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party's cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party's Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
11. 11. Non-Acceptance of Confidential Information. Recipient shall have the right to refuse to accept any Confidential Information tendered by Discloser, and nothing in this NDA shall obligate Recipient to accept any such Confidential Information.
12. 12. Right to Disclose. Notwithstanding anything in this NDA to the contrary, Discloser hereby represents and warrants that Discloser may rightfully disclose or make available the Confidential Information to Recipient without the violation of any contractual, legal, fiduciary or other obligation to any person.
13. 13. Term and Termination. This NDA shall be effective for a period of two (2) years commencing on the Effective Date and Recipient's rights to use the Confidential Information shall cease as of the termination date, but the obligations of Recipient with respect to the Confidential Information shall survive for a further five (5) year period after termination or expiration of this NDA. Notwithstanding the foregoing, either party may terminate this NDA effective immediately upon notice if the other party violates the provisions of this NDA or upon ten (10) days' written notice to the other party.
14. 14. Independent Contractors. The parties are independent contractors, and nothing contained in this NDA shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
15. 15. Remedies. Each party's obligations set forth in this NDA are necessary and reasonable in order to protect Discloser and its business. Due to the unique nature of Discloser's Confidential Information, monetary damages may be inadequate to compensate Discloser for any breach by Recipient of its covenants and agreements set forth in this NDA. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to seek injunctive relief against the threatened breach of this NDA or the continuation of any such breach by Recipient.
16. 16. Securities Regulation. Each party will comply with all federal, state, local and foreign law applicable to it. In discussing the Purpose, the parties may become privy to information considered material inside information under applicable securities laws. Recipient will not use Confidential Information in connection with any securities transaction or communicate that information to any person who may do so.
17. 17. Miscellaneous.
    1. (a) Amendments and Waivers. No modification of or amendment to this NDA, nor any waiver of any rights under this NDA, shall be effective unless in writing signed by the parties to this NDA. No delay or failure to require performance of any provision of this NDA shall constitute a waiver of that provision as to that or any other instance.
    2. (b) Construction. This NDA is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this NDA shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
    3. (c) Governing Law, Jurisdiction and Venue.
       1. (i) Counterparties in California. If Counterparty is located in California (as determined by the Counterparty address set forth below), this NDA will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
       2. (ii) Counterparties Outside of California. If Counterparty is located anywhere other than California (as determined by the Counterparty address set forth below), this NDA will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
    4. (d) Successors and Assigns. Neither party may assign this NDA, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this NDA in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this NDA or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party's assets. Any assignment in violation of this Section 17(e) shall be void, ab initio, and of no effect. Subject to the foregoing, this NDA is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
    5. (e) Notices. Any notice, demand or request required or permitted to be given under this NDA shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party's address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Elastic's books and records. Either party may from time to time change its addresses for notices under this Section by giving the other party notice of the change in accordance with this Section 17(f).
    6. (f) Severability. If one or more provisions of this NDA are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this NDA, (ii) the balance of the NDA shall be interpreted as if such provision were so excluded and (iii) the balance of the NDA shall be enforceable in accordance with its terms.
    7. (g) Entire Agreement. This NDA sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.