This Non-Disclosure Agreement (the “Agreement”) is duly executed with full authority by and between Sparxs Studio, LLC doing business as Indie Sparxs (the “Discloser”) and the individual receiving confidential information identified at the end of this Agreement (the “Recipient”), individually a “Party” and collectively the “Parties.” This Agreement is effective as of the date of Recipient’s execution.
PURPOSE & CONSIDERATION: This Agreement aims to facilitate the free flow of information regarding Discloser’s interactive multi-platform streaming and distribution company, Indie Sparxs, while ensuring that confidential and proprietary information shared during the beta testing phase remains strictly confidential (the “Purpose”). Obligations under this Agreement are necessary to protect the business, goodwill, and proprietary interests of the Discloser. In consideration of the execution of this Agreement, the Recipient will be granted the privilege of being privy to Discloser’s confidential information and have the chance to experience Indie Sparxs’ Services before they launch to the public.
SCOPE OF THE TERM “CONFIDENTIAL INFORMATION”: Under this Agreement, the term “Confidential Information” means any and all information, including technology or intellectual property, whether printed, in electronic form or otherwise communicated, that is proprietary or confidential in nature. For purposes of this Agreement, “Confidential Information” includes, without limitation, unreleased information, products or Services, product samples, prototypes, printed documents, trademarks or proposed trademarks, marketing or promotional plans or items, business policies or practices, prospective licensees, legal agreements including this Agreement, methods, processes, code, copyrights, trade secrets, processes, research, technical data, software, financial information, vendor and prospective vendor information, information received from third parties that Discloser is obligated to treat as confidential and any other business, finance or technical information.
Confidential information does not include information that:
is publicly known at the time of disclosure;
was known to the Recipient without the obligation of confidentiality;
is received by the Recipient without obligation of confidence from a third party who is free to disclose the information;
is required to be disclosed by law or administrative or judicial action; or
is authorized for release by the written consent of the Discloser.
USE OF CONFIDENTIAL INFORMATION: The Recipient shall only use the Confidential Information to the extent necessary to effectuate the Purpose and will not use the Confidential Information for personal or other business purposes. The Recipient shall not share the Confidential Information with other beta testing participants, other third-parties, employees, representatives, or agents unless Recipient has verified with the Discloser that such other parties have also signed a non-disclosure agreement and the Recipient is free to discuss the Confidential Information with them. The Recipient shall not make unauthorized reproductions of Confidential Information and shall not modify, destroy or edit any Confidential Information without the Discloser’s written consent.
STANDARD OF CARE: The Discloser may expressly designate certain information as Confidential Information by containing an express notice on copies, records, notes, or reproductions. However, the Discloser is in no way obligated to make such designations and Confidential Information that is not expressly designated as confidential, but that is by its character confidential in nature, shall nevertheless be treated in accordance with this Agreement. If the Recipient is unsure as to whether the information they have received is Confidential Information, they must consult with the Discloser and treat the information as Confidential Information until the Discloser confirms that the information is not Confidential Information. Documents containing Confidential Information shall be kept separate from other documents owned by the Recipient. Recipient must take reasonable steps to prevent unauthorized access to the documents by keeping the documents securely stored and locking all access to the Confidential Information upon conclusion of permitted use of the Confidential Information. The Recipient shall notify the Discloser immediately upon discovery of any unauthorized use of Confidential Information and cooperate with the Discloser to regain possession and prevent further dissemination of the Confidential Information.
TERM AND TERMINATION: This Agreement is effective from the date it is executed and will continue perpetually until the Confidential Information is no longer confidential in nature or until another agreement is executed between the parties that expressly terminates this Agreement. This Agreement shall apply to any primary and ancillary business that takes place between the Parties, and the termination of the beta testing phase shall not terminate the duties under this Agreement.
REMEDIES: The Recipient acknowledges and agrees that breach of any of the obligations under this Agreement may give rise to irreparable harm to the Discloser that cannot be adequately compensated with monetary damages. Accordingly, the Discloser will be entitled to seek injunctive relief against any breach of this Agreement or any threatened breach of this Agreement. The Discloser will not be required to post a bond if any injunctive relief is sought and will have full access to any other additional legal or equitable remedies that may be available against the Recipient for breach, or threatened breach, of this Agreement.
RETURN OF CONFIDENTIAL INFORMATION: The Discloser may at any time request for the Recipient to return or destroy Confidential Information or documents relating to the Confidential Information. The Recipient shall comply with any demand for return or destruction of the Confidential Information in a prompt manner. Any Confidential Information that is incapable of being returned or destroyed will remain subject to this Agreement. At the conclusion of the beta testing period, the Recipient is obligated to return all Confidential Information in their possession unless the Discloser has authorized in writing the Recipient’s right to retain the Confidential Information.
RIGHTS IN THE CONFIDENTIAL INFORMATION: The Confidential Information shall remain the sole property of the Discloser, and the Confidential Information shall be held in trust by the Recipient. All rights, interests, and title in the Confidential Information shall remain with the Discloser and the Discloser shall be at all times the sole and exclusive owner of their intellectual property, including any code, ideas, software, designs, drawings, copyrights, formulas, concepts or branding, that is developed by the Discloser. This Agreement shall not be construed to limit or restrict the Discloser's ability to assert intellectual property infringement claims against the Recipient.
WARRANTIES AND REPRESENTATIONS: THE DISCLOSER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH RESPECT TO THE COMPLETENESS OR ACCURACY OF ANY CONFIDENTIAL INFORMATION, OR WHETHER THE CONFIDENTIAL INFORMATION INFRINGES THE RIGHTS OF ANY THIRD PARTY OR COMPLIES WITH ANY LAWS. THE DISCLOSER WILL NOT BE HELD LIABLE FOR ANY ERRORS OR OMISSION IN THE CONFIDENTIAL INFORMATION.
LEGALLY REQUIRED DISCLOSURE: The Recipient shall give prompt written notice to the Discloser if the Recipient is compelled under law to disclose Confidential Information and shall cooperate with the Discloser, at the Discloser’s expense, in seeking a protective order or any other remedy to prevent or limit the compelled disclosure. If the Discloser is unable to prevent or limit the compelled disclosure, the Recipient shall limit the Confidential Information disclosed to only what is necessarily required by law.
NO OBLIGATION: This Agreement shall not be construed to obligate the Discloser to disclose any particular Confidential Information. This Agreement does not create any partnership, joint venture, or relationship of principal and agent between the Parties. This Agreement is not an employment or independent contractor agreement.
INDEMNIFICATION: The Recipient shall indemnify and hold harmless the Discloser from any and all claims, losses, liability, damages, expenses, and costs (including attorney fees and court costs) arising from any breach of this Agreement by the Recipient or its employees, representatives or agents.
EMPLOYEES AND SUBCONTRACTORS: Recipient shall only disclose Confidential Information to their employees or subcontractors if such employees and subcontractors have been cleared by the Discloser and have also signed a non-disclosure agreement with Discloser. Recipient shall be liable for any breach of this agreement by any employee or subcontractor that they have shared the Confidential Information with.
NOTICES: Any notice required or permitted under this Agreement shall be given by personal delivery; or mailed by United States registered or certified mail, return receipt requested, postage prepaid; or transmitted by electronic mail or facsimile copy. Notices shall be deemed effective on the date of receipt. Any Party may change its address for the service of notice by giving written notice of such change ten (10) business days prior to the effective date of such change.
If to Discloser:
Address: 17350 State Highway 249 Ste 220
Houston, TX 77064
If to Recipient: As stated below.
ADVICE OF COUNSEL: PARTIES ACKNOWLEDGE THAT THEY HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL BEFORE EXECUTING THIS AGREEMENT AND HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
DISPUTE RESOLUTION & PREVAILING PARTY: If a dispute arises out of or relating to this Agreement that cannot be amicably resolved, the Parties agree to attempt to settle the dispute with the help of a mutually agreed-upon mediator, unless mediation is otherwise mutually waived, or the amount in dispute is less than USD $10,000 and would be more efficiently and cost-effectively resolved in a small claims court. Except for attorney fees, all other costs associated with the mediation will be shared equally. A prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and reasonable attorneys' fees incurred in enforcing this Agreement.
MISCELLANEOUS: (a) Recipient may not assign this Agreement, in whole or in part, without the written consent of the Discloser. If written consent has been granted to assign this Agreement, this Agreement will be binding upon any respective successor or permitted assignee. Discloser may freely assign this Agreement, in whole or in part. (b) If any provision in this Agreement is declared to be invalid, illegal or unenforceable, for any reason, the remainder of the provisions will remain in effect and enforceable to the fullest extent possible. (c) No waiver of any term or condition of this Agreement will be deemed or construed to be a waiver of such term or condition in the future or of any preceding or subsequent breach of the same or any other term or condition of this Agreement or any other agreement. (d) Parties warrant that we have the full power, capacity, and authority to execute this Agreement and perform its obligations (e) This Agreement is to be governed by, and interpreted, constructed and enforced in accordance with the laws of the State of Texas without regard to conflict of laws and all disputes are to be resolved in the exclusive jurisdiction of Travis County, Texas. (f) This Agreement represents the entire and exclusive agreement between the Parties, and all previous written and oral agreements and communication related to the subject matter of this Agreement are superseded. Any subsequent amendments will only be effective if made in writing and signed by both Parties.
I have read and agreed with the non-disclosure agreement.