This Non-Disclosure Agreement (“Agreement”) is entered into as of the date of agreement to become a beta-tester between Joyall Loyalty Games, with offices at 7 Cutty Cottages, North Cadbury, BA22 7DQ Somerset, England, and the person agreeing to enter into this Agreement with Joyall. In consideration of the promises and covenants contained in this Agreement and the disclosure of confidential information to each other, the parties to this Agreement agree as follows:
1. Confidential Information Defined
“Confidential Information” is all information identified in written or oral format by one party hereto (the “Disclosing Party”) to the other party hereto (the “Receiving Party”) as confidential, trade secret or proprietary information, and if, disclosed orally, summarised in written format within thirty (30) days of disclosure.
The Confidential Information to be disclosed under this Agreement is described as follows: business plans, technology, designs, know-how, computer programs, products, markets, research and development, sales and marketing information and plans, financial information and employee information relating to the parties’ respective businesses, business plans, products, services, and technology.
2. Use of Confidential Information
The Receiving Party may use the Confidential Information solely for the purpose of determining a business partnership that is mutually beneficial to both parties; understanding the product in development; other parties involved in its development; and the insights that support the commercial opportunity.
The Receiving Party shall not disclose the Confidential Information to any third party other than persons in the direct employ of the Receiving Party who have a need to have access to and knowledge of the Confidential Information solely for the purpose authorised above. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorised use or disclosure.
The Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or analysis of products offered for sale; (vi) is transmitted by a party after receiving written notification from the other party that it does not desire to receive any further Confidential Information; or (vii) is disclosed by the Receiving Party pursuant to a valid order issued by a court or government agency, provided that the Receiving party provides (a) prior written notice to the Disclosing party of such obligation and (b) the opportunity to oppose such disclosure.
Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
3. Independent Development
The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information. The Disclosing Party acknowledges that the Receiving Party 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 Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for its 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 the Receiving party does not violate any of its obligations under this Agreement in connection with such development.
4. Retention of Ownership; No License
Each party shall retain all right, title and interest to such party’s Confidential Information. No license under any trademark, patent or copyright, or application for same which are now or thereafter may be obtained by such party is either granted or implied by the conveying of Confidential Information.
5. Reverse Engineering
The Receiving Party shall not reverse-engineer, decompile, or disassemble any product or technology disclosed to it and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party.
6. Accuracy of Confidential Information
Confidential information is provided “as is” with all faults. In no event shall the disclosing party be liable for the accuracy or completeness of the confidential information.
7. No Representations
None of the Confidential Information disclosed by the parties constitutes any representation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement of trademarks, patents, copyrights; any right of privacy; or any rights of third persons.
8. Term and Termination
This Agreement shall continue from the date last written below until terminated by either party by giving thirty (30) days’ written notice to the other party of its intent to terminate this Agreement. Notwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five (5) years following receipt of the Confidential Information.
9. Independent; Assignment
The parties hereto are deemed independent. Neither this Agreement nor any right granted hereunder shall be assignable or otherwise transferable.
10. No Commitment
No contract or agreement providing for any transaction between the parties will be deemed to exist between them unless and until a definitive Transaction Agreement has been executed and delivered. Unless and until a definitive Transaction Agreement between the parties has been executed and delivered, neither party will have any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term “definitive Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer except and to the extent that any such written agreement is binding and enforceable by its terms. The parties will be free to conduct or terminate the process hereby they may enter into a proposed transaction as either party in their sole discretion will determine. Neither party hereto will have any claims whatsoever against the other, or any of their respective directors, officers, shareholders, owners, affiliates, or agents arising out of or relating to a proposed transaction other than those against the other parties to a definitive Transaction Agreement in accordance with the terms thereof or pursuant to any other binding written agreement between the parties. Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of each party hereto.
The parties hereto will indemnify and hold each other harmless for any damages the other may sustain as a result of any breach of this Agreement by the other party or any of its Representatives.
12. Equitable Remedies
Each party hereto will be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party or its Representatives, in addition to all other remedies available to them at law or in equity.
13. No Waivers
No failure or delay by a party hereto in exercising any right, power, or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement may be modified only in writing signed by both parties.
This Agreement shall be construed in accordance with the laws of England and the United Kingdom.
This Agreement represents the entire agreement of the parties hereof pertaining to the subject matter of this Agreement, and supersedes any and all prior oral discussions and/or written correspondence or agreements between the parties with respect thereto.