Mutual Non-Disclosure Agreement – DRAFT
This Mutual Non-Disclosure Agreement (the “Agreement”) is made as of the date executed by the parties electronically, (the “Effective Date”), by and between FanJolt, LLC, a Georgia limited liability company (“FanJolt”) and the person executing this Agreement (“Counterparty”).
The parties wish to discuss and learn more about a possible marketing, investing and/or transaction relationship between FanJolt and Counterparty (the “Authorized Purpose”). In relation with this Authorized Purpose, each party may disclose certain of its “Confidential Information” (as defined below) to the other. Hereafter, with respect to any specific item of information, the party disclosing such information shall be referred to as the “Disclosing Party” and the party receiving such information shall be referred to as the “Receiving Party.”
2. Confidential Information.
“Confidential Information” shall include all data, materials, products, technology, specifications, designs, business plans, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, by the Disclosing Party to the Receiving Party, whether or not identified as confidential. Notwithstanding anything to the contrary herein, FanJolt may freely disclose the name of the Counterparty and the Counterparty’s affiliation with FanJolt.
3. Recipient’s Obligations.
(a) Recipient’s Treatment of Confidential Information . The Receiving Party agrees that the Confidential Information is considered confidential and proprietary to the Disclosing Party. The Receiving Party shall hold the same in confidence, shall not use the Confidential Information other than for the Authorized Purpose, and shall disclose it only to its officers, directors, or employees with a specific need to know. The Receiving Party will not disclose, publish or otherwise reveal any of the Confidential Information received from the Disclosing Party to any other party whatsoever except with the specific prior written authorization of the Disclosing Party. Notwithstanding anything to the contrary herein, the Receiving Party may disclose Confidential Information to its employees and contractors in furtherance of the Authorized Purpose (the “Representatives”), provided that the Receiving Party will be liable for any disclosure or use of the Confidential Information (other than in assisting the Receiving Party in evaluating the Authorized Purpose) by any of its Representatives.
(b) Tangible Confidential Information. Confidential Information furnished in tangible form shall not be duplicated by the receiving part except for purposes contemplated by this Agreement. Upon the written request of the Disclosing Party, the Receiving Party shall destroy or return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request.
(c) Exceptions. The foregoing obligations and restrictions do not apply to that part of the Confidential Information that the Receiving Party demonstrates:
(i) was available or became generally available to the public other than as a result of a disclosure by the Receiving Party; 1
(ii) was available, or became available, to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party or it’s representative, but only if such information was not made available through a breach of confidentiality owed to the Disclosing Party;
(iii) was requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar process) or is required by a regulatory body to make any disclosure which is prohibited or otherwise constrained by this Agreement, provided, that Receiving Party shall: (A) provide the Disclosing Party with prompt notice of any such request(s) so that the Receiving Party may seek an appropriate protective order or other appropriate remedy, and (B) provide reasonable assistance to the Disclosing Party in obtaining any such protective order. If such protective order or other remedy is not obtained or the Disclosing Party grants a waiver hereunder, then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of counsel reasonably acceptable to the Disclosing Party, the Receiving Party is legally compelled or is otherwise required to disclose; provided , that the Receiving Party shall use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so disclosed; or (iv) was independently developed by the Receiving Party without breach of this Agreement.
The obligations herein shall be binding upon the parties for two (2) years from the date a party last discloses any Confidential Information to the other pursuant to this Agreement; provided, however, that Section 5 of this Agreement will survive termination indefinitely.
5. No License.
Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information. The Counterparty agrees not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product to any product owned by FanJolt LLC or Premier Live LLC.
6. Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of Georgia and the United States. Other than disputes seeking injunctive relief, any dispute arising hereunder, or related to the terms hereof, will be brought exclusively through binding arbitration in the state of Georgia. Such arbitration shall be initiated by the parties within ten (10) days after either party sends written notice (the “Arbitration Notice”) of a demand to arbitrate. The dispute shall be resolved by binding arbitration before the American Arbitration Association (“AAA”) in the State of Georgia.
7. Entire Agreement.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. 2 By executing this document electronically, the parties have accepted the terms hereof. 3