MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of [________] (the “Effective Date”), by and between Catch Media, Inc.,a Delaware company, WhaleClear (“Company”), and ______ (“Entity”) Company and Entity are sometimes referred to collectively in this Agreement as the “Parties”, and individually as a “Party”. The Parties desire to obtain Confidential Information (as defined below) for the sole purpose of evaluating possible business opportunities relating to [_______] (the “Purpose”). 1. Definition of Confidential Information. “Confidential Information” means all information, data and materials concerning either Party’s business and affairs, and that of its affiliates (“Affiliates”), whether such information: (i) exists in written, oral or electronic form, (ii) is prepared by either Party or its Affiliates, or its and their respective directors, officers, principals, shareholders, members, partners, managers, employees, agents, representatives, associates, attorneys, accountants, lenders or advisors (collectively, the “Disclosing Party”), as applicable, or (iii) is furnished to the other Party (the “Recipient”)and/or its parents, subsidiaries, affiliates, or any of its directors, officers, principals, shareholders, members, partners, managers, employees, agents, representatives, associates, attorneys, accountants, lenders or advisors (collectively, the “Recipient Representatives”), as applicable, by or on behalf of the Disclosing Party prior to, on or after the Effective Date. Confidential Information shall include, without limitation, business plans; financial reports, financial data and budgets; marketing data; employee, agent and independent contractor data; personnel training techniques and materials; the names, backgrounds and personnel/business records concerning shareholders, members, partners, directors and officers; information concerning vendors and suppliers; operating or design standards; market studies; customer lists and guest information; forecasts, strategies and other business information; software, codes, layouts, diagrams, designs, algorithms, inventions, unpublished patent, trademark, copyright applications or registrations or other know-how, specifications, drawings, schematics, technology, processes; any other trade secrets, discoveries, ideas, concepts, techniques, formulae, compositions, information, results, plans, surveys and/or reports of a business development and/or of a marketing nature; and Derivative Confidential Information (as defined below). Confidential Information may be that of the Disclosing Party or of third parties to whom such Disclosing Party has an obligation to treat the disclosed information as confidential. In addition, the existence of this Agreement, the Purpose and the possibility of a transaction (and any discussions and/or negotiations relating thereto) are deemed to be Confidential Information. “Derivative Confidential Information” means any analyses, compilations, studies, notes, abstracts or other documents, tangible embodiments and records, and any copies thereof, prepared by or on behalf of the Recipient, its Recipient Representatives, or others, which contain, reflect or are based on the Confidential Information. Additionally, during the term of this Agreement, the Recipient acknowledges and agrees to adhere to all of the Disclosing Party’s and its Affiliates’ applicable policies and procedures related to data and system security and privacy. From time to time, the Disclosing Party and its Affiliates may update, modify or alter its policies and the Recipient agrees that when such policies are delivered to it, it will ensure that its and its personnel are in compliance with the same. 2. Protection of Confidential Information. The Recipient agrees: (a) to preserve the confidentiality of the Confidential Information; (b) that it and its Recipient Representatives shall use the Confidential Information solely for the Purpose and for no other purpose whatsoever; (c) not to publish or disclose the Confidential Information to any other person, except to its Recipient Representatives who: (i) have a need to know such Confidential Information for the Purpose, (ii) have been instructed to safeguard such Confidential Information from disclosure and to treat such Confidential Information as confidential, (iii) have been made aware of this Agreement, and (iv) are bound by professional duties of confidentiality or by a written agreement containing substantially similar obligations of confidentiality; (d) that it shall cause its Recipient Representatives to comply with the provisions of this Agreement as if they were a party to this Agreement; (e) that it shall be liable for any breach of this Agreement by any of its Recipient Representatives; and (f) to use at least the same degree of care to protect the Confidential Information from unauthorized use or disclosure as it would use to protect its own Confidential Information, but in no event with less than reasonable care including, without limitation, court proceedings, if reasonably necessary and at its own expense, to restrain its Recipient Representatives (including former Recipient Representatives) from unauthorized use of the Confidential Information. The Recipient agrees that all of its employees, its agents and other third parties under its control who have or will have access to Confidential Information will have passed a criminal [Signature page – Non-Disclosure Agreement] 21398454 background check. The Recipient shall promptly notify the Disclosing Party upon discovery of any loss or unauthorized disclosure or use of the Confidential Information. 3. Exclusions from Confidential Information; Permitted Disclosure. (a) The confidentiality obligations under this Agreement shall not apply to the extent that: (i) one Party authorizes the other Party in writing to disclose such information; (ii) the Recipient is already in possession of such Confidential Information at the time of its disclosure by the Disclosing Party, provided that such information is not subject to any other obligation to keep it confidential or any other confidentiality agreement; (iii) such Confidential Information is or becomes generally known and available to the public other than as a result of a disclosure by the Recipient or any Recipient Representatives in breach of this Agreement; (iv) the Recipient independently develops such information without access to or use of the Confidential Information and without otherwise violating its obligations hereunder; or (v) the Recipient rightfully obtains such information on a nonconfidential basis from a third party who has the right to disclose it without violation of any confidentiality obligations. For clarity, the entirety of the Confidential Information shall not be deemed to be within the foregoing exceptions merely because some portion of such Confidential Information falls within one or more of such exceptions. (b) In the event the Recipient or any Recipient Representative is required by law, regulation, government or court order to disclose any portion of the Confidential Information, the Recipient or the relevant Recipient Representative, as the case may be, may disclose only such information as advised by the written opinion of counsel that the Recipient or the Recipient Representative is legally required to disclose and will, unless expressly prohibited by law from doing so, promptly notify the Disclosing Party in writing prior to making any such disclosure to allow the Disclosing Party to seek a protective order or other appropriate remedy from the proper authority. Such notice shall contain sufficient information to allow the Disclosing Party to challenge or protect such disclosure. The Recipient shall cooperate with the Disclosing Party (and shall ensure that the Recipient Representatives will cooperate) in seeking such order or other remedy or in defining the scope of any required disclosure and, in any event, (i) notify the applicable authority of the confidential or proprietary nature of the Confidential Information and (ii) seek confidential treatment of such Confidential Information. (c) Notwithstanding the foregoing, Confidential Information may be disclosed in connection with the Recipient’s or any Recipient Representative in reporting or communicating or participating in any investigation or proceeding with respect to possible violations of securities laws to any governmental agency or entity including, without limitation, to the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress and any U.S. agency inspector general, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. 4. Ownership; No License or Warranty. All right, title and interest in and to any Confidential Information disclosed by any Disclosing Party shall remain the exclusive property of such Disclosing Party. The Parties acknowledge and agree that this Agreement shall not be construed as a transfer or sale by the Disclosing Party any other Disclosing Party of any right whatsoever, by license or otherwise, in or to any Confidential Information, and nothing herein will be construed to constitute or imply an option, grant or license to the Recipient or any Recipient Representative under any patent, copyright, trademark, trade secret or other rights now or hereinafter held by the Disclosing Party or any other Disclosing Party, as applicable. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, A WARRANTY THAT IT IS ACCURATE OR COMPLETE OR A WARRANTY AGAINST INFRINGEMENT. The Recipient agrees that neither the Disclosing Party nor any other Disclosing Party shall have any liability to the Recipient or to any Recipient Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom. 5. No Commitment. No discussions and/or communications between the Parties hereunder or otherwise (a) will require the Disclosing Party or any other Disclosing Party to disclose any Confidential Information to the Recipient or (b) will result in any obligation of the Disclosing Party or any other Disclosing Party to enter into any further agreement of any kind, and the Recipient shall have no claim against the Disclosing Party or any other Disclosing Party in connection with any of the foregoing. If the Parties desire to pursue any business opportunities, the Parties will execute a separate written agreement with respect to such opportunities. [Signature page – Non-Disclosure Agreement] 21398454 6. Term and Survival. This Agreement will be effective from the Effective Date and will continue for two years; provided, however, the confidentiality obligations set forth herein shall survive (a) with respect to Confidential Information that constitutes trade secrets under applicable law, until such Confidential Information no longer constitutes trade secrets under applicable law, and (b) with respect to any Confidential Information retained by the Recipient, for as long as such Confidential Information is so retained. 7. Return of Confidential Information. All Confidential Information remains the property of the Disclosing Party. Following expiration or earlier termination, (i) the Recipient and Recipient Representatives shall immediately discontinue any use of the Disclosing Party’s Confidential Information for any purpose and (ii) all Confidential Information of the Disclosing Party will be returned to it or destroyed at its request; provided, however, that nothing herein shall require the Recipient or any Recipient Representative to delete or purge any records in backup or archival systems kept in the normal course of business. Following expiration or earlier termination, to the extent requested in writing by Disclosing Party, within 30 days of receipt of such written notice, the Recipient will, and will cause its Recipient Representatives to, comply with the request to either return or destroy the Disclosing Party’s Confidential Information and shall provide a written certification, signed by an officer, of its compliance. 8. Privilege; Joint Defense. To the extent that any Confidential Information may include materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Recipient understands and agrees that the Parties hereto have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of such Parties that the sharing of such materials is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorneyclient privilege, work product doctrine or other applicable privilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 9. Assignment and Binding Effect. Neither Party may assign this Agreement without the other Party’s prior written consent, except that no such consent is required for any assignment to an affiliate of the Disclosing Party or in the event of the Disclosing Party’s assignment or transfer of at least a majority of its stock or all or substantially all of its assets as part of a merger, acquisition or other form of stock or asset sale or transfer. Any assignment in violation of this Agreement will be void. This Agreement benefits and binds the Parties to this Agreement and their respective successors and permitted assigns. 10. Governing Law; Venue. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of the State of Nevada exclusive of its choice of law principles. The state and federal courts located in Clark County, Nevada shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement. THE PARTIES HEREBY CONSENT TO JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS IN THE STATE OF NEVADA, AND HEREBY WAIVE TRIAL BY JURY AND/OR ANY DEFENSE BASED UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, OR THE LACK OF PERSONAL JURISDICTION IN ANY ACTION OR SUIT ARISING FROM SUCH DISPUTE WITH JURISDICTION AND/OR VENUE SO SELECTED. 11. Entire Agreement and Amendment. This Agreement contains the entire understanding, and supersedes any and all prior and contemporaneous agreements (oral or written), between the Parties regarding this Agreement’s subject matter. This Agreement may not be amended or modified by course of dealing, usage in trade, conduct or any exchanges of communication including, without limitation, e-mail or any other electronic or digital means, other than by amendment, in writing duly executed. A Party’s failure to require performance will not affect the right to require performance at any later time. If any part of this Agreement is unenforceable, the remainder will remain in effect. 12. Injunctive Relief. The Recipient acknowledges the competitive value and/or confidential nature of the Confidential Information and that breach of this Agreement would cause irreparable harm to the Disclosing Party and/or the other Disclosing Parties and that monetary damages would be inadequate compensation for such breach or threatened breach. Accordingly, the Recipient agrees that the Disclosing Party and/or the other Disclosing Parties shall be entitled to injunctive or other equitable relief against any breach or threatened breach, without the necessity of proving actual damages or the requirement of posting a bond or other security. Such remedies shall [Signature page – Non-Disclosure Agreement] 21398454 not be exclusive but shall be in addition to all other rights and remedies available to the Disclosing Party and/or the other Disclosing Parties at law or in equity. 13. Indemnity. The Recipient shall indemnify and hold harmless the Disclosing Party and the other Disclosing Parties from any and all losses, liabilities, obligations, damages, penalties, judgments, suits, costs, expenses or disbursements of any kind (including, without limitation, attorneys’ fees and expenses) arising out of, or incurred by the Disclosing Party or any other Disclosing Party, as the result of any violation, breach or nonperformance of any of the terms or conditions of this Agreement by the Recipient or its Recipient Representatives. 14. Attorneys’ Fees. In the event any dispute between the Parties relating to or arising from this Agreement results in litigation, arbitration or mediation, the prevailing party in such dispute shall be entitled to recover from the losing party the reasonable attorneys’ fees and costs incurred by the prevailing party in such proceeding (including any appeal related thereto). 15. Authorization. The Recipient has taken all necessary action to authorize the execution, delivery and performance by the Recipient of its obligations under this Agreement. The individual signing this Agreement on behalf of the Recipient has been duly authorized to do so by the Recipient. 16. Third Party Beneficiaries. The Recipient acknowledges and agrees that the Disclosing Parties are third party beneficiaries to this Agreement. 17. Notices. Any notice or other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by (a) personal delivery, or (b) overnight DHL, FedEx, UPS or other similar courier service, addressed to the applicable Party at the addresses specified below, or at such other address as a Party may designate in writing, and shall be deemed to have been received by the Party to whom such notice or other communication is sent upon (i) delivery to the address of such Party, provided that such delivery is made prior to 5:00 p.m. (local time for such Party) on a business day, otherwise the following business day, or (ii) the attempted delivery of such notice if such Party refuses delivery, or such Party is no longer at such address, and failed to provide the sending Party with its current address. Company’s Notice Address [INSERT ADDRESS] Entity Notice Address [INSERT ADDRESS] 18. Counterparts. This Agreement may be executed in two or more identical counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute this Agreement when a duly authorized representative of each Party has signed a counterpart. The Parties may sign and deliver this Agreement by facsimile or electronic (i.e., .pdf) transmission. Each Party agrees that the delivery of this Agreement by facsimile or electronic transmission will have the same force and effect as delivery of original signatures. [Signatures appear on the following page] IN WITNESS WHEREOF, Company and Entity have duly executed this Agreement as of the Effective Date. ENTITY: COMPANY: WHALECLEAR INC. By: Name: Title: By: Name: Title: [Signature page – Non-Disclosure Agreement] 21398454
