This Confidentiality Agreement (the “Agreement“) is entered into upon the client’s agreement, between CLIENT, and Vital Medias LLC, a limited liability company, having its principal office at 7495 W Azure Dr Las Vegas NV 89145 (“VENDOR“).
WHEREAS, the parties to this Agreement are engaging in a transaction between (CLIENT) and VENDOR whereby CLIENT may provide confidential information to VENDOR with certain rights to utilize and create content and/or Intellectual Property. Such work product requires the sharing of non-public, confidential and/or proprietary information between the parties; and WHEREAS, the parties to this Agreement desire to establish terms governing the confidentiality of certain non-public, confidential and proprietary information that they may disclose to each other, and other matters as set forth herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definition of Confidential Information.
• For purposes of this Agreement, “Confidential Information” shall mean: (a) financial statements and other accounting data, business plans, strategic plans, proprietary market information, analyses, technologies and other technical data, engineering information, designs, drawings, research and development information, specifications, ideas, concepts, innovations, know-how, methods, processes, compilations and any other strategic, competitively sensitive or proprietary information or trade secrets shared between the parties as a result of the discussions contemplated by this Agreement; (b) this Agreement and all documents and materials relating thereto and to the negotiation and execution thereof, including, without limitation, the existence of this Agreement and the fact that discussions and negotiations may be taking place between the parties with respect to the potential Transaction; and (c) all observations, estimates, conclusions, analyses, compilations, studies, ideas or concepts and other material containing or reflecting, in whole or in part, any such information furnished to a party to this Agreement by or on behalf of the other party to this Agreement in connection with a Transaction.
• Notwithstanding anything in this Agreement to the contrary, Confidential Information shall not include information (a) lawfully in the receiving party’s possession or available to the receiving party before receipt from the disclosing party without any obligation or duty of confidentiality; (b) lawfully acquired by the receiving party from others who have no confidentiality agreement, or other obligation or duty of confidentiality, with the disclosing party; (c) already in, or which becomes part of, the public domain other than as a result of a disclosure by the receiving party in breach of this Agreement; or (d) independently conceived and developed by the receiving party or its Representatives without use of the disclosing party’s Confidential Information.
• No party shall have any obligation hereunder to keep confidential any Confidential Information if and to the extent disclosure of any such Confidential Information is specifically required by applicable law (including, without limitation, statutes, regulations and ordinances), the requirements of a national securities exchange (including, without limitation, NASDAQ regulations), or could proceedings or similar legal process. In such event, and to the extent permitted by applicable law, rule, regulation or legal process, the party under an obligation to disclose shall provide the other party with prompt notice of such requirement before making any disclosure and the parties shall make reasonable efforts to agree upon the form, timing and content of such disclosure, and the parties shall cooperate in seeking through appropriate procedures a protective order or other reasonable assurances of confidential treatment customary in such circumstances.
2. Disclosure to Representatives; Use of Confidential Information.
(a) Neither party shall divulge or disclose any Confidential Information, in whole or in part, to any person, firm or entity other than the employees, agents, officers, directors, accountants, attorneys and other advisors of or to the parties (and any applicable affiliates of the parties) who have a need to know such information and who agree to be bound by the terms of this Agreement (each a “Representative”). Each Representative shall be informed of the confidential nature of the Confidential Information and shall be directed to abide by the terms hereof. Each party shall be responsible to the other party for any breach of this Agreement by any of its Representatives. Any copies made of Confidential Information shall be accounted for strictly.
(b) Neither party shall use any Confidential Information, either directly or through any other entity, for any purpose other than the evaluation of the Transaction. The covenants of this Section 2(b) shall survive any termination of this Agreement.
3. Term; Termination of Discussions.
This Agreement shall commence as of the date first set forth above and shall expire in 730 Days (the “Term”). Each party reserves the right, at any time, in its sole discretion, for any reason or no reason, to (i) reject any and all proposals made by the other party or any of its Representatives with regard to a potential Transaction, (ii) terminate discussions or negotiations with the other party without any further obligation to the other to consummate any Transaction, or (iii) refuse to provide any further Confidential Information. Upon termination of discussions or negotiations concerning a potential Transaction or when otherwise requested in writing by either party, each party shall immediately return to the other party or destroy (and confirm in writing to the other party such fact) all Confidential Information of the other party, including all copies, reproductions, summaries, or extracts thereof, which are then in the possession or control of the party under the obligation to return or destroy, and shall not (except for this Agreement) retain any copies, reproductions, summaries, or extracts thereof. The return of such materials shall have no effect on the parties’ obligations under this Agreement, which obligations are continuing throughout the Term of this Agreement notwithstanding the termination of discussions about a potential Transaction.
4. No Rights Except Pursuant to Written Agreement.
Each party understands and agrees that it shall not have any rights or claims whatsoever against the other party or any of their respective directors, officers, stockholders, owners, affiliates, subsidiaries or agents arising out of or relating to the Transaction (other than any rights or claims arising out of any definitive written agreement between the parties (a “Written Agreement”) in accordance with its terms). Each party agrees that unless and until a Written Agreement has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever (other than this Agreement) with respect to a Transaction by virtue of this or any written or oral expression with respect to a Transaction by any of either party’s directors, officers, employees, agents, advisors or other representatives.
5. No Representations or Warranties.
Each party understands that, except as and only to the extent provided in a Written Agreement, when, as and if it is executed and delivered (and subject to the restrictions and conditions specified therein), neither party nor any of their respective Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of its Confidential Information and each party (i.e., the “using party”) agrees that neither the other party nor any of its respective Representatives shall have any liability to the using party resulting from any use or reliance by the using party or any of its Representatives on the other party’s Confidential Information.
6. Compliance with Securities Laws.
Each party hereby acknowledges that, in its examination of the Confidential Information, it will have access to material non-public information concerning the other party. Each party hereby acknowledges that it is aware of its obligations under the United States securities laws with respect to material non-public information.
• The parties recognize that money damages may not be an entirely sufficient remedy in the event of a breach of this Agreement and that in addition to all other remedies, the non-breaching party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. The non-breaching party will not be required to post bond as a condition precedent to its equitable remedies.
• The foregoing remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to the parties.
8. Waiver; Amendment; Severability; Non-binding Effect.
No failure or delay by either party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. No provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent given, except by way of a writing signed by a duly authorized representative of the party to be bound, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or consent is given. In the event that any provision of this Agreement shall be deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. This Agreement is not intended to be a letter of intent or agreement in principle, or otherwise commit or bind either party to negotiate the terms of the proposed Transaction or to consummate the Transaction contemplated herein.
9. Governing Law.
The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to provisions relating to conflicts of law.
The parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.
This Agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by either party without the express written consent of the other party.
13. Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and no prior promises or conditions in connection with the subject matter of this Agreement shall be binding on the parties.
This Agreement may be executed in counterparts with each signed document being an original and, together, shall constitute one agreement. The exchange of copies of this Agreement and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or other electronic means shall be deemed to be their original signatures for any purpose whatsoever.
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives to execute this Agreement as of the date of Services.
Services by any client of Vital Medias LLC constitutes agreement to these terms by both parties.