Non-Disclosure, Non-Use and Confidentiality Agreement

 

By participating the Beta Test, you (sometimes referred to herein as “Recipient”) agree to the terms of and to be bound by this Non-Disclosure, Non-Use and Confidentiality Agreement (the “Agreement”) for the benefits of Jack Brewster and Newsreel (“Newsreel”).  

 

WHEREAS, Newsreel possess certain valuable and proprietary business, technical and/or financial information and documentation, including trade secrets, relating to its current and future business and/or products, services and devices, which is not generally available to the public, and which Newsreel desires to protect against disclosure or competitive use (as more fully described below as the “Confidential Information”); and

 

WHEREAS, NEWSREEL is in the business of gathering political news; and

 

WHEREAS, the Recipient acknowledge and agree that Newsreel has identified a novel opportunity, market or application to deliver news through a variety of novel and proprietary approaches and/or methods developed or in development by Newsreel.  

 

WHEREAS, Newsreel intends to disclose or has disclosed (Newsreel also referred to herein as “Disclosing Party”) certain Confidential Information (as hereinafter defined) to the Recipient (sometimes referred to herein as “Receiving Party”) which disclosure could result in a competitive disadvantage to the Disclosing Party if not protected and the Receiving Party prevented from using or disclosing such Confidential Information; and

 

WHEREAS, in order to properly evaluate and determine the feasibility of one or more possible transactions or engagements between Newsreel and Recipient (the “Purpose”), Confidential Information, including trade secrets may be disclosed subject to the terms and conditions of this Agreement.

 

NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, Recipient agree as follows:

 

1. The recitals are true and correct and are incorporated herein by reference as if fully set forth herein.

 

2.             “Confidential Information”.  All information (in any form, including but not limited to written, pictorial, oral or electronic form) of whatever kind or nature, which belongs to or is disclosed by the Disclosing Party at any time, including but not limited to proprietary, patent, copyright and trade secret information of the Disclosing Party including any markets or applications therefore and any specifications, designs, plans, drawings, software, data, prototypes, procedures, formulas, inventions, improvements, concepts, whether patentable or copyrightable or not, and any business, financial and/or technical information, and all copies and derivatives contain such information.  Confidential Information shall also include (i) any material prepared by the Receiving Party which contains any portion of the Confidential Information; and (ii) information disclosed to the Receiving Party by the third parties on behalf of the Disclosing Party.

 

3.             Obligations of Receiving Party.  In consideration of the disclosure of Confidential Information by the Disclosing Party, the Receiving Party shall:

 

a.             Use the Confidential Information received solely for the furtherance of the Purpose;

b.             Prevent disclosure of Confidential Information to third parties and maintain the confidentiality of the Confidential Information with at least the same degree of care as the Receiving Party uses to protect its own similar confidential and proprietary information, but no less than a reasonable degree of care under the circumstances;

c.             Except as necessary under the Purpose, not analyze, decompile, disassemble, reverse engineer (or the like) any tangible product, design or media which constitutes, contains, records or in any way documents or embodies Confidential Information;

d.             Will only make copies of the Confidential Information when necessary.  Any copies of Confidential Information or any part thereof will be marked Confidential and shall remain the property of the Disclosing Party.  The Receiving Party shall maintain all confidential or proprietary markings placed upon or contained within the Confidential Information of the Disclosing Party, and shall refrain from removing, destroying or rendering illegible any such markings;

e.             Upon the written request of the Disclosing Party, promptly destroy or return (at Disclosing Party’s option) any and all copies on any media containing such Confidential Information, refrain from further usage of such Confidential Information, and certify so, in writing, to the Disclosing Party; and

f.              Not develop a device, approach or method for performing the treatment disclosed by the Disclosing Party’s Confidential Information.

 

4.             Exclusions.  The Receiving party will not be liable for the disclosure of any Confidential Information that, as can be demonstrated by the Receiving Party’s written records:

 

a.             is rightfully in the public domain without fault on the part of the Receiving Party;

b.             is lawfully obtained from any source other than the Disclosing Party, free of any obligations to keep it confidential;

c.             was known to the Receiving Party and received from a third party, without the obligation of confidentiality, and such prior knowledge can be substantiated by written records;

d.             is expressly released in writing from the obligations of confidentiality imposed by this Agreement by the Disclosing Party;

e.             is required to be disclosed pursuant to any applicable law, regulation, judicial or administrative order or decree, or request by other regulatory organization having authority pursuant to the law; provided that the Receiving Party gives prompt notice of the demand to the Disclosing Party, prior to any such disclosure, to allow the Disclosing Party to intervene and protect its interests in the Confidential Information, should the Disclosing Party so desire and reasonably cooperate with the Disclosing Party’s efforts to secure an appropriate protective order; or

f.              is independently developed by the Receiving Party without access, use or knowledge of the Confidential Information as evidenced by written records.

 

5.             Injunctive Relief.  The Parties agree that unauthorized disclosure or use of Confidential Information may cause irreparable injury to the Disclosing Party, which may not be adequately compensated by damages.  Accordingly, the Parties agree that the Disclosing Party shall have the right to obtain an injunction against any breach or threatened breach of this Agreement, as well as the right to pursue all rights and remedies available at law or in equity, for such breach or anticipated breach.

 

6.             Title.  All rights, including all intellectual property rights, title and interests in and to the Confidential Information will remain the sole property of the Disclosing Party.  Nothing in this Agreement shall be construed as granting to a Receiving party, expressly or by implication, any license or other rights in the Confidential Information and/or in any underlying intellectual property disclosed to the Receiving Party under this Agreement, other than to use the Confidential Information in the manner and to the extent authorized by this Agreement.

 

7.             No Representations or Warranties.  All Confidential Information is provided “AS IS”.  Other than the warranty that Disclosing Party has the right to make disclosures under this Agreement, no other warranties, of any kind, whether express or implied, are made by Disclosing Party under this Agreement with respect to any Confidential Information.  Recipient acknowledges and agrees that Disclosing Party shall not be liable to Recipient for any errors or omissions, or for any damages a Receiving Party may suffer as a result of its reliance on the Confidential Information.

 

8.             Term of Agreement.  The term of this Agreement shall be three (3) years from the date first accepted by Recipient.  The obligations of confidentiality and non-disclosure set out herein shall commence as of the initial disclosure and continue to apply, with respect to each respective item of Confidential Information, for a period of five (5) years from the expiration of this Agreement; provided, however the obligations of confidentiality and nondisclosure of any party or their Representatives shall continue to the extent any such Confidential Information constitutes a trade secret under applicable law for so long as such Confidential Information continues to be a trade secret.

 

9.             Relationship of the Parties.  Neither this Agreement nor the disclosure or receipt of Confidential Information shall create an obligation for either party to make any further agreement or business arrangement, purchase products or services or engage in any present or future marketing activities.  This Agreement does not create an agency, partnership or employment relationship between the Parties hereto.

 

10.          General.

 

a.             No failure or delay on the part of Newsreel to exercise any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by Newsreel of any right, power or remedy.  The rights, powers and remedies provided herein are cumulative and are not exclusive of any rights, powers or remedies by law.

b.             This Agreement shall be binding on Recipient, its successors and assigns, and shall be governed by the laws of New York without giving effect to such law’s provisions regarding conflict of laws.  Recipient irrevocably consents to the exclusive jurisdiction of the applicable courts in New York City, Manhattan for any matter arising out of or relating to this Agreement.  

c.             Should any provision of this Agreement be held unenforceable, the remainder of this Agreement shall not be affected thereby, and illegal invalid provisions shall be deleted from this Agreement and no longer incorporated herein by all other provisions of this Agreement shall continue.

d.             This Agreement constitutes the entire agreement and supersedes any prior or contemporaneous oral or written representations regarding the subject matter hereof.  This Agreement may not be modified except by agreement of the parties hereto.