CONFIDENTIALITY, NON-DISCLOSURE, NON-SOLICITATION AGREEMENT
NOW THEREFORE, in consideration for the premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
For the purposes of this Agreement, "Confidential Information" means all information disclosed by or on behalf of one Party (the "Disclosing Party") to the other Party (the "Receiving Party') or the Receiving Party's advisors (whether orally, electronically, or in tangible form) regarding the Disclosing Party's business dealings, customers, operations, affairs, products, corporate information (including, but not limited to, contractual arrangements, plans, strategies, tactics, policies, and resolutions); marketing information (including, but not limited to, sales or product plans), strategies, tactics and methods, employments and concentration information; financial reports or other information (including, but not limited to, cost and performance data, balance sheets, income statements, cash flow statements, statements of shareholder equity, debt arrangements, equity structure, accounts receivable reports and agings, accounts payable reports, and asset holdings); and operational information (including, but not limited to, information related to intellectual property, patents, trademarks or copyright, trade secrets, methods, know-how, and other
2. The Receiving Party acknowledges and agrees that, as between the Receiving Party and the Disclosing Party, the Confidential Information, together with all intellectual property rights embodies therein, is the sole and exclusive property of the Disclosing Party. The Disclosing Party retains all right and title to the Confidential Information and all intellectual property rights embodies therein. Except as expressly provided herein, the Receiving Party is not granted any rights or license, either express or implied, to use or redistribute any of the Confidential Information. The Receiving Party also agrees that it disclaims all rights to all inventions, improvements, copyrightable works, designs, and derivatives related to the Confidential Information of the Disclosing Party, and, the Receiving Party further disclaims the rights to market, license, and otherwise use the Confidential Information, and any such inventions, improvements, and copyrightable works.
3. The Receiving Party agrees to receive and hold all Confidential Information in strict confidence. Without limiting the scope of the foregoing, the Receiving Party agrees: (a) to protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; (b) not to reveal, report, publish, disclose, transfer, copy or otherwise use any Confidential Information except provided herein or as specifically authorized by the Disclosing Party in writing; (C) not to use any Confidential Information for any purpose other than evaluation of a potential business relationship between the Parties; (d) to restrict access to Confidential Information to those of its advisors, officers, directors, members, affiliates and employees (collectively, "Representatives') who have a need to know, who have been advised of the confidential nature thereof, and who are under express obligations of confidentiality at least as protective of the Confidential Information as the terms of this Agreement; and (e) to exercise at least the same standard of care and security to protect the confidentiality of the Confidential Information received by it as it protects its own confidential information, but in no event less than a reasonable standard of care. Any "Representatives" must be named to 929Media Inc and sign an individual agreement before Confidential Information can be shared.
4. 929Media Inc must provide signed approval before any work completed for and/or behalf of 929Media Inc or it can clients can be displayed public, shown or described to potential clients, or used for marketing purposes both online and offline. All work for 929Media Inc must be kept confidential unless agreed to in writing by 929Media Inc.
5. The provisions of this Agreement shall not apply to information that: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives; (b) has been independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information; (c) is disclosed by Receiving Party with the prior written consents of the Disclosing Party; (d) becomes known to the Receiving Party from a source other than the Disclosing Party, provided any such source is not reasonably believed by the Receiving Party to be bound by a confidentiality obligation to the Disclosing Party; or (e) is at the time such Confidential Information is provided already in the possession of the Receiving Party or its Representatives; provided that such Confidential Information is not reasonably believed by the Receiving Party to be subject to a confidentiality obligation to the Disclosing Party.
6. The Receiving Party acknowledges that all copies (including electronic copies) of the Confidential Information received by it are the property of the Disclosing Party. The Receiving Party shall return, or destroy all Confidential Information immediately upon the expiration of this Agreement, or, if earlier, upon the Disclosing Party's written request, except as required by law, rule or regulation, or as necessary to comply with standard computer back-up procedures.
7. Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party. This Agreement and each Party's rights and obligations hereunder shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties.
8. If the Receiving Party or any of its Representatives is requested or required in a judicial, administrative, regulatory or governmental proceeding to disclose any Confidential Information, it shall notify the Disclosing Party as promptly, if permissible, as practicable so that the Disclosing Party may seek an appropriate protective order or waiver for that instance the provisions of this Agreement with respect to such Confidential Information.
9. The Receiving Party agrees that any breach, or threatened breach, by it of this Agreement may cause damages to the Disclosing Party that are difficult to ascertain or measure and that the Disclosing Party may be entitled to seek injunctive relief, without need of posting bond, to prevent such breach or threatened breach in addition to, and without waiving, any remedies otherwise available to the Disclosing Party at law or in equity.
10. All Confidential Information is disclosed "as is" and without warranty of any kind, implied or express, including warranties of fitness or purpose, merchantability and performance.
11. Beginning on the date of this agreement and continuing for six (6) months after expiration or termination of this Agreement, whichever occurs first, the Receiving Party agrees that it and its employees, agents and independent contractors shall not solicit any client or customer of 929Media Inc with whom Receiving Party knew of or worked with at any time during the term of this Agreement for the provision of any services. It is understood and agreed that in the event of a breach of this section, damages are deemed not to be an adequate remedy, that irreparable harm is immediate and imminent, that 929Media Inc shall automatically be entitled to injunctive relief to restrain any such breach, threatened or actual, and that the equities of such an injunction tip decidedly in favor of 929Media Inc.
12. The term of this Agreement shall be a period of six (6) months following the Effective Date. Notwithstanding the expiration or termination of this Agreement, all Confidential Information shall be protected by the Receiving Party in accordance with the terms and conditions of this Agreement for a period of six (6) months following such expiration, except for information which is deemed to be a trade secret by the Disclosing Party which shall be protected by Receiving Party in perpetuity.
13. No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of such right or any other right under this Agreement.
14. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding that body of law applicable to conflicts of law. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of New York. If any provision of this Agreement is for any reason found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
15. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior arrangements and understandings relating to the subject matter hereof, whether oral or written. This Agreement shall not be amended or modified except by written instrument duly executed by each of the Parties hereto.
IN WITNESS WHEREOF, the Parties' authorized representatives have executed this Agreement as of the date first written above.