Mutual Non-Disclosure Agreement
CONFIDENTIAL
This Mutual Non-Disclosure Agreement (the "Agreement") is entered into today between "Party A," the creator of the TV show, and its affiliated entities, collectively referred to as "Party A," and "Party B," the visitor interested in viewing the pitch materials for the TV show and any of its related versions, along with its affiliated entities, collectively referred to as "Party B." This Agreement establishes the terms and conditions governing the planned disclosure of Confidential Information (as defined below) by one party, hereinafter referred to as the "Disclosing Party," to the other party, hereinafter referred to as the "Recipient." In this context, the term "Disclosing Party" pertains to the party providing Confidential Information (or acting on behalf of the provider), while "Recipient" refers to any party (including its Related Parties, as defined below) receiving Confidential Information from the Disclosing Party.
WITNESSED
WHEREAS, the parties hereto desire to investigate the potential of working together on certain business opportunities to be further defined;
WHEREAS, the Recipient has requested that Disclosing Party furnish to it certain information relating to Disclosing Party for the purpose of conducting discussions, evaluating and considering areas of mutual business interest;
WHEREAS, the parties desire to ensure that confidential and proprietary information retain its character as such and to withhold it from dissemination and publication to any unauthorized third party. Disclosing Party is willing to disclose its information only on the terms and conditions set forth herein;
WHEREAS, the Disclosing Party further desires that Recipient will not circumvent the Company in connection with the business opportunities and concepts which the Disclosing Party intends to disclose to Recipient in accordance with the terms hereof; and furthermore, in the event that the Recipient does, in fact, desire to join with Disclosing Party in pursuing the goals of a possible mutual business plan, then it is the intention of the parties to attempt to negotiate a definitive agreement for future cooperation that is mutually acceptable. It is the intention of the parties that in the event that a definitive agreement is not executed or consummated for whatever reason, the obligations of the parties hereunder shall survive and continue in full force and effect.
Agreement
1. Incorporation of Preamble Paragraphs. The preamble paragraphs above recited are incorporated herein by reference as if fully set forth.
2. Confidential Information, Ideas, Plans and Concepts. The Confidential Information of Disclosing Party, which is subject to this Agreement, includes, but is not limited to, any information relating to ideas, plans, concepts, financial information, or any other matters relating to the creations, technical information or business of Disclosing Party, information acquired by Recipient from Disclosing Party employees, and all documents, things, and record-bearing media disclosing or containing any of the foregoing information, concerning Disclosing Party's intellectual commercial information in connection with the specific business opportunity which is to be shared with the Recipient (collectively hereinafter referred to as "Confidential Information"). Confidential Information shall also include the business concepts of Disclosing Party, as presented to Recipient, and the names of the entities and/or individuals with whom the Disclosing Party may, has or will do business with, including but not limited to financing sources. Confidential Information disclosed or provided by Disclosing Party, and the evaluations and conceptual planning generated therefrom, constitutes proprietary technical and business information and includes trade secrets of Disclosing Party developed by Disclosing Party through the expenditure of substantial time and money. The Recipient acknowledges that irreparable injury and damage may result from disclosure of the Confidential Information to unauthorized third parties or from utilization of the Confidential Information for purposes other than those connected with the business relationship of the parties hereto. Disclosing Party may, but shall not be required to, provide the Confidential Information to Recipient in writing.
3. Confidentiality. Recipient agrees that all Confidential Information obtained from Disclosing Party will be accepted in confidence and maintained strictly confidential and shall not, without the prior written consent of Disclosing Party, be disclosed to others, copied, photographed, reproduced or transcribed in any manner whatsoever, in whole or in part.
Recipient agrees that it will not reveal the Confidential Information obtained from Disclosing Party to others, except to the extent that it is necessary to disclose such information to its agents, representatives, consultants, auditors, members, financial investors, and employees having a need to know such information (“Related Parties”). Recipient further agrees that all such Related Parties shall be informed by Recipient of the confidential nature of such information and shall agree to be bound by the terms and conditions of this Agreement prior to receiving such information. No other use or disclosure of Disclosing Party’s Confidential Information shall be made by Recipient without the prior written consent of Disclosing Party.
Recipient agrees not to make any disclosure to the public or any third party concerning the parties' discussions of the potential business transaction. Recipient understands and acknowledges that it has been made aware of its obligation to honor the secrecy and strict confidence of the Confidential Information. In the event that a definitive agreement is not executed or consummated for whatever reason, the obligations of the parties shall survive and continue in full force and effect.
4. Return of Confidential Information. Upon Disclosing Party’s request, Recipient agrees to return all Confidential Information and all documents and things connected with or related to such information, without retaining any copies. Recipient further agrees that all plans, drawings, specifications, ideas, concepts, models, studies, documents, things or other tangible work product produced by Recipient (or its Related Parties) in connection with its use of Disclosing Party’s Confidential Information pursuant to this Agreement, shall be and remain the property of Disclosing Party and shall be kept confidential by Recipient subject to the terms of this Agreement. The Disclosing Party shall retain all manufacturing rights to all designs and inventions developed by either party under the terms of this Agreement.
5. Limitations. It is understood by the parties that the Confidential Information disclosed by Disclosing Party to Recipient shall not be subject to this Agreement if such information is:
a. in the public domain, or
b. known to Recipient prior to disclosure by Disclosing Party, and Recipient can establish such prior knowledge by competent documentation, or
c. disclosed to Recipient by a third party subsequent to disclosure by Disclosing Party, and such disclosure by the third party is not in violation of any confidentiality agreement or obligation to Disclosing Party; or
d. Is independently developed by Recipient without use of the Confidential Information.
6. Non-Circumvention. Recipient further agrees that, absent the written consent of the Disclosing Party, Recipient, its officers, Board members, shareholders, agents, financial investors, and employees will not use the Confidential Information and circumvent the Disclosing Party and the opportunity as presented to Recipient for a period of Two (2) years from the date hereof.
7. Solicitation of Employees. It is herein mutually agreed that, for a period of one (1) year from the date of this Agreement, neither party nor any of their affiliates will, either on their own initiative or at the direct or indirect inducement of any individual who was their representative and/or was involved in the evaluation of a potential transaction or otherwise received any Confidential Information, solicit the employment of or hire, or cause to be solicited the employment of or hired, any current officer or employee of either party with whom they have had contact, or who was specifically identified to either party, during the period of investigation, so long as such officer or employee is employed by any party to this Agreement.
8. Miscellaneous.
e. Precautions. All reasonable precautions shall be taken by Recipient to ensure compliance with the terms and conditions of this Agreement.
f. Use. It is expressly understood by Recipient that the disclosure by Disclosing Party is not a public use or disclosure, or sale or offer for sale, of any Disclosing Party product, equipment, process or service.
c. Successors and Assigns. This Agreement shall bind and shall inure to the benefit of the parties and any and all of their successors whether by merger, consolidation, transfer of substantially all assets or similar transaction, and it shall bind the parties and their respective heirs and legal representatives.
d. Waiver of Breach. The waiver of a breach of any provision of this Agreement by either party shall not operate or be construed as a waiver of any subsequent breach.
e. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
f. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the internal laws, and not the law of conflicts, of the State of California applicable to agreements made and to be performed in such state. The parties hereto agree that all actions and proceedings relating directly or indirectly hereto shall be litigated in any state court or federal court located in Los Angeles, California and the parties hereto hereby expressly consent to the jurisdiction of any such court and to venue therein and consent to the service of process in any such action or proceeding by any method permitted under applicable law, or by certified or registered mailing of the summons and complaint therein directed to the parties at their principal place of business.
g. Disputes. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement by the Receiving Party, including, without limitation, the actual or threatened disclosure of the Confidential Information without the express prior written consent of the Disclosing Party, the Disclosing Party may suffer irreparable harm and injury and no remedy at law will afford it adequate protection against, or appropriate compensation for such injury. Accordingly, each party hereby agrees that in any such event the Disclosing Party shall be entitled to seek specific performance of the Receiving Party’s obligations under this Agreement, as well as such further injunctive relief as may be granted by arbitration as herein established:
The exclusive method for resolving any controversy or claim concerning or arising out of this Agreement or the breach, termination, or validity hereof shall be resolved by binding arbitration conducted in Los Angeles, California upon the initiation of any party hereto by a written notice to the other party or parties demanding arbitration and specifying the controversy or claim to be arbitrated. Any controversy or claim shall be settled and finally determined by a single arbitrator selected in accordance with the following procedure. Within 5 business days of the date of delivery of the foregoing notice, the parties shall each provide the other with a list of 10 retired judges from the Hawaii Superior Court in order of preference, and if one or more judges appear on each of such lists, the parties shall designate the duplicated judge who is highest in order of preference on both lists to settle and finally determine the controversy or dispute arising hereunder. If no judge is named on both of such lists, then the parties shall have a period of 2 business days to agree to the designation of any retired judge, and if such parties are unable to agree on the selection of a judge, a retired judge from the California Superior Court (who shall not have any conflicts of interest with respect to the subject matter of, or the parties to, such dispute), shall be chosen by the Presiding Judge of the Superior Court of the County of State of California. The judge ultimately selected to hear the controversy or dispute hereunder is herein referred to as the “arbitrator.” The parties shall each bear one-half of the cost of appointing the arbitrator and of paying the arbitrator’s fee; however, the arbitrator shall award the prevailing party reimbursement of all expenses of the arbitration (including reasonable attorneys’ fees) incurred by said prevailing party. The arbitrator shall have the power to award any and all remedies and relief whatsoever that is deemed appropriate under the circumstances, including, without limitation, money damages and equitable relief. The procedure whereby the evidence (oral and written) relating to the controversy or claim is presented in the arbitration shall be agreed to by the parties, and in the absence of such agreement, shall be as determined by the arbitrator. The written decision of the arbitrator shall be rendered within 30 business days following his appointment. The written decision of the arbitrator shall be binding and conclusive on the parties and enforceable as provided by the laws of the State of California, and judgment on such arbitration decision may be entered by any court having jurisdiction thereof. Notwithstanding the foregoing, the parties hereto may apply to any court of competent jurisdiction in State of California for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without abridgement of the powers of the arbitrator.
h. Remedies. The parties agree that the unauthorized use or disclosure by either of the parties of the Confidential Information may cause irreparable injury to the other party, the measure of which would be extremely difficult, impractical and/or impossible to calculate, or in the event of the breach or threatened breach of any one or more of the covenants set forth in this Agreement, the other party would not have any adequate remedy at law. Accordingly, the parties agree that the injured party shall, subject to the requirements of applicable law, be entitled, in addition to any other remedies and damages available, to seek an injunction or other appropriate order (without necessity of posting or filing a bond or any other security or showing or proving any actual damage sustained by the party) to restrain violations hereof by the other party, its agents, servants, employers, employees and all persons acting therefore.
i. Patent and Other Laws. The parties agree that each party retains all rights and remedies afforded it under the patent, trademark, copyright and other laws of the United States and the States thereof, including, without limitation, any laws designated to protect proprietary or Confidential Information.
j. Entire Agreement. This Agreement constitutes the entire agreement of the parties and merges all prior discussions between the parties respecting Confidential Information. No modification or waiver of this Agreement shall bind either party, unless it is in writing and is signed and accepted by the parties hereto.
k. Facsimile. The parties agree that a facsimile or electronic transmission of the signed Agreement constitutes an original and binding document.
l. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but such counterparts together shall constitute but one and the same instrument.
CONFIDENTIAL