THIS NON-DISCLOSURE AGREEMENT
") is made and entered into as of the ___ day of ______________, 2015, by and between Palm Aisles Pictures, LLC
”), on the one hand, and __________________________________, (“Recipient
”), on the other, with reference to the following facts:
, PAP and Recipient desire to enter into discussions regarding the possibility of entering into a business relationship, and, in this connection, Recipient will likely receive, become exposed to or otherwise become aware of information which is confidential and proprietary to PAP; and
, PAP and Recipient have agreed upon, and wish to memorialize their agreement concerning the ownership, confidentiality and non-disclosure of such information.
in consideration of the foregoing recitals, and of the mutual agreements, promises and covenants hereinafter set forth, and in order to induce the parties to provide information to one another, the parties do hereby agree as follows:
- Definitions. As used herein, the following words, terms and phrases shall have the meanings set forth below:
(a) “Confidential Information
" shall mean and include any and all Information (as hereinafter defined) of the following types: (i) marketing and investor data (including, but not limited to, the identity of investors and investor lists); (ii) business or financial information, budgets, tax returns, financial statements, projections, business plans or strategic or marketing plans, market studies or analyses; (iii) cost and expense information, pricing information, gross or net profit margins or analyses; (iv) trade secrets, secret or proprietary processes and formulae; (v) codes, designs, programs, processes, techniques, databases and web-page designs; (vi) original screenplays, treatments, dramatic concepts (including pitches, movie or TV concepts, or stories), artistic renderings, unpublished and/or unreleased sound recordings, musical compositions, lyrics, music video footage, and other original intellectual property provided to PAP under a duty of confidentiality; (vii) the terms, conditions, provisions or obligations of any contracts or agreements and the identity of any Person who is a party to any such contract or agreement; and (viii) any other information which PAP (and/or its affiliates, parents or subsidiaries) maintains as confidential, that is disclosed by PAP to Recipient or that is otherwise learned by Recipient in the course of its discussions or business dealings with, or its physical, telephonic or electronic access to the premises of, PAP; provided that such information (a) has not been previously disclosed to the public, (b) is not ascertainable from public or published information or trade sources, or (c) is not subsequently publicly disclosed (other than in violation of this Agreement). Any Information which is marked or otherwise identified as "Confidential Information" at the time of Disclosure shall be deemed to be Confidential Information for the purposes of this Agreement; provided, however, that the failure of PAP to mark any Information as “Confidential Information” at the time of Disclosure shall create no presumption that such Information is not “Confidential Information.”
" shall mean and include any data or information Disclosed (as hereinafter defined) in the form of (i) any written information, reports, documents, books, notebooks, memoranda, charts or graphs; (ii) computer tapes, disks, CD-ROM, files, E-Mail or other mechanical or electronic media; (iii) oral statements, representations or presentations; (iv) audio, visual or audio-visual materials or presentations, including audiotapes, videocassettes, laser discs or CD's; and (v) any other documentary, written, magnetic or other permanent or semi-permanent form.
" or "Disclosure
" shall mean and include any delivery, transmittal, presentation or representation of Information, by any Person to any other Person.
" shall mean and include any individual or natural person, corporation, trust, partnership, limited partnership, joint venture, limited liability company, limited liability partnership, S.A., GmbH, PLC or other entity.
- Confidentiality of Agreement; No Required Disclosure; No Representations. Recipient hereby agrees and acknowledges that the nature and terms of the agreement(s) between the parties, if any, and the existence of such agreement(s), shall be deemed to be Confidential Information. Nothing in this Agreement shall be construed as an obligation for PAP to disclose proprietary information or evaluation materials to Recipient. PAP shall not be considered to have made or make any representation or warranty as to the accuracy or completeness of any information provided hereunder. Recipient and its affiliates will be responsible for conducting and completing its own independent investigation, evaluation and due diligence relative to engaging in a transaction with PAP.
- Agreement to Maintain Confidentiality; Non- Disclosure.
(a) In consideration of the Disclosure to Recipient of Confidential Information, and in order to induce PAP to Disclose the Confidential Information to Recipient, Recipient hereby agrees to retain and maintain in strict confidence, and to require its parents, subsidiaries, affiliates, employees, agents, consultants and professional representatives and advisors to retain in strict confidence, any and all Confidential Information Disclosed to any of them by PAP. Recipient agrees that, without the prior express written consent of PAP, or except as may be required by applicable law, it shall not, either directly or indirectly, independently or in concert with others: (i) Disclose any such Confidential Information to any other Person; (ii) use any such Confidential Information for its own benefit or for the benefit of any Person other than PAP; or (iii) permit any Confidential Information to be Disclosed to or used by any Person. Recipient expressly acknowledges and agrees that the foregoing covenant shall, by way of example and not limitation, prohibit Recipient from using any Confidential Information to solicit or otherwise contact any customers, clients, contract parties, or any Person with whom PAP has a business relationship, or from using any codes, designs, programs, processes, techniques or similar information constituting a portion of the Confidential information, in connection with the operation of a business similar to that conducted by PAP.
(b) The foregoing covenant shall not be deemed or construed to prohibit Recipient from Disclosing Confidential Information, as necessary for the performance of services for PAP to employees, agents, or consultants of Recipient, or any of them; provided, however, that Recipient shall (i) inform any such employees, agents or consultants of the terms and conditions of this Agreement, and (ii) be liable for any use or Disclosure of any Confidential Information by any such employees, agents or consultants of Recipient in violation of this Agreement. In addition, the foregoing covenant shall not be deemed or construed to prohibit Recipient from Disclosing any information, including Confidential Information, pursuant to any legal process or order of court; provided, however, that Recipient agrees to notify PAP immediately upon receipt of any subpoena, request for production of documents, court order or similar instrument requiring such Disclosure, and thereafter to cooperate with PAP in seeking and enforcing any protective orders which PAP deems necessary to protect the Confidential Information.
- Disclaimer. Nothing in this Agreement shall be construed or interpreted as granting, creating or giving rise to: (i) any obligation on the part of PAP to Disclose any Confidential Information whatsoever or under any circumstance; (ii) any license or any other rights with respect to PAP’s proprietary rights or Confidential Information; (iii) any obligation or expectation on the part of PAP to enter into a business or financial relationship with Recipient, or to refrain from entering into a business or financial relationship with any third party; or (iv) a joint venture, partnership, employment relationship, or any business or financial relationship between the parties.
- Term of Agreement.
(a) Recipient expressly agrees and acknowledges that this Agreement, and the obligations of Recipient hereunder, shall continue so long as Recipient, or any parent, subsidiary, affiliate, representative, agent, employee, officer, director, shareholder, partner, successor, assignee, or member of Recipient, has any knowledge, possession or control of, or access to, any Confidential Information of PAP.
(b) Upon the completion or earlier termination of discussions regarding a business relationship between PAP and Recipient, for any reason, Recipient shall promptly return to PAP (without retaining copies thereof, in any medium) any and all Confidential Information Disclosed by PAP, as well as any summaries, synopses or analyses thereof prepared by Recipient.
(a) This Agreement constitutes the entire understanding between the parties pertaining to the subject matter hereof. No supplement, modification, waiver or termination of this Agreement shall be binding unless expressly made in writing and executed by both parties hereto.
(b) No term, condition or provision of this Agreement may be waived except by an express written instrument to such effect signed by the party to whom the benefit of such term, condition or provision runs. No such waiver of any term, condition or provision of this Agreement shall be deemed a waiver of any other term, condition or provision, irrespective of similarity, or shall constitute a continuing waiver of the same term, condition or provision, unless otherwise expressly provided. No failure or delay on the part of any party in exercising any right, power or privilege under any term, condition or provision of this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any other right, power or privilege.
(c) Notices. Any and all notices which are required or permitted to be given by any party to any other party hereunder shall be given in writing, sent by registered or certified mail, or by electronic communications (including telegram or facsimile) followed by a confirmation letter sent by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or messenger service, with the charges therefore prepaid, addressed to such party as follows:
Notices to PAP:
Palm Aisles Pictures, LLC
57 West 57th
Street, Suite 321
New York, New York 10019
Attn: Mr. Brian McLane
(347) 922-8500 (mobile)
Attn: Mr. Brian McLane
Notices to Recipient:
or to such other address as the parties shall from time to time give notice of in accordance with this Section. Notices sent in accordance with this Section shall be deemed effective on the date of dispatch, and an affidavit of mailing or dispatch, executed under penalty of perjury, shall be deemed presumptive evidence of the date of dispatch.
(d) All terms, conditions, provisions, covenants, agreements, representations and warranties made herein shall survive the completion or earlier termination of the business relationship of the parties, for any reason.
(e) The headings of the paragraphs contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof.
(f) In the event that any party to this Agreement shall commence any suit, action or other proceeding to interpret this Agreement, or determine or enforce any right or obligation created hereby, the prevailing party in such action shall recover such party's costs and expenses incurred in connection therewith, including attorney's fees and costs of appeal, if any.
(g) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Any or all of such counterparts may be executed within or outside the State of California. Signed signature pages may be transmitted by facsimile and any such signature shall have the same legal effect as an original.
(h) This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles, and regardless of the place of execution of all or any of the counterparts hereof.
(i) The parties each hereby agree and acknowledge that a breach by a Recipient hereunder, or any parent, subsidiary, representative, agent, employee, officer, director, shareholder, partner, successor, assignee, member or affiliate of such Recipient, of any material term, condition or provision of this Agreement would result in severe and irreparable injury to PAP, which injury could not be adequately compensated by an award of money damages, and PAP therefore agrees and acknowledges that PAP shall be entitled to injunctive relief in the event of any breach of any material term, condition or provision of this Agreement, or to enjoin or prevent such a breach, including, without limitation, an action for specific performance hereof. Recipient further agrees that no bond or other surety shall be required in connection with obtaining such injunction, and acknowledges that, if a bond or other surety is required by any court, a bond in the amount of One Thousand Dollars ($1,000) shall be sufficient surety.
IN WITNESS WHEREOF
, the parties hereto have executed this Non-Disclosure Agreement as of the day and year first above written.