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NON-DISCLOSURE AGREEMENT
This Non-disclosure Agreement (this “Agreement”), dated [ ] (“Effective Date”), is entered into by and between
Wargaming Public Company Limited, registered in Cyprus under number HE 290868, with registered office at 105, Agion Omologiton Avenue, Nicosia 1080, Cyprus (“Wargaming” or “Discloser”)
and [INSERT FULL NAME, CITIZENSHIP, ADDRESS, PASSPORT DETAILS] (“Recipient”)
(each herein referred to individually as a “Party,” or collectively as the “Parties” and "Affiliate" means, in relation to Wargaming, any entity that Wargaming Controls, is Controlled by or is under common Control with, where “Control” means, in respect of an entity, the power of a person or entity, directly or indirectly, to secure: (a) by means of the holding of shares or stock or the possession of voting power in or in relation to such entity or any other body corporate; or (b) by virtue of any powers conferred by the articles of association or other document regulating such entity or any other body corporate; that the affairs of such entity are conducted in accordance with the wishes or directions of such other person or entity.)
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INTRODUCTION
(A) Recipient receives or will receive certain Confidential Information (as defined below) from Wargaming for the purpose of performing testing of video games or other products owned or operated or published by Wargaming or its Affiliates and performing other cooperation intentions between the Parties (the “Opportunity”), and in connection with the Opportunity.
(B) This Agreement sets out the terms on which such information is received.
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AGREED TERMS
1. Defined Term - Confidentiality
In this Agreement:
“Confidential Information” means: (i) any information (including any and all combinations of individual items of information) which relates to Discloser and/or any of its Affiliates' business that is disclosed or made available (directly or indirectly) by Discloser to Recipient, whether in oral, visual or written form (including graphic material), prior or after the Effective Date of this Agreement. Confidential Information includes but is not limited to:
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(a) proprietary information, technical data, know-how, formulae, engineering processes, strategies, photographs, patents, technology, technical literature, research, product plans, products, services, equipment, customers, markets, software, inventions, discoveries, ideas, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment or other material including information which is attributable to or the existence of which is derived from discussions relating to the Opportunity;
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(b) the existence and terms of this Agreement;
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(c) information otherwise reasonably expected to be treated in a confidential manner under this Agreement or by the nature of the information itself.
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2. NON-USE AND NON-DISCLOSURE
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2.1 In consideration of any access Recipient may have to the Confidential Information of Discloser, Recipient shall:
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(a) keep the Confidential Information strictly confidential, not disclose it to any third party (unless prior approved in writing by Discloser) and not make any use whatsoever of the Confidential Information for any purpose, whether commercial or non-commercial, other than to carry out the Opportunity;
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(b) not copy, reduce into writing, or summarise any Confidential Information except to the extent strictly necessary to carry out the Opportunity;
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(c) Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement;
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(d) not, without Discloser's prior written consent, copy or store the Confidential Information electronically or transmit it.
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2.2 Recipient shall not, without Discloser's prior written consent, use the Confidential Information for its advantage, commercial or otherwise. Wargaming reserves the right to use video footage and audio recordings of the game testing processes for internal purposes, however personal or sensitive data in regard to the Recipient will not be circulated outside the Discloser or its Affiliates.
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3. MAINTENANCE OF CONFIDENTIALITY
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3.1 Recipient shall take all reasonable steps and security measures necessary to protect the Confidential Information from being disclosed to any third party (except as prior approved in writing by Discloser).
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3.2 Recipient shall not make any copies of the Confidential Information of Discloser (except as previously approved in writing by Discloser). Recipient shall reproduce Discloser’s proprietary rights notices on any such authorised copies in the same manner in which such notices were set forth in or on the original. Recipient shall promptly notify Discloser of any unauthorised use or disclosure, or suspected unauthorised use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
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4. NO OBLIGATION
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Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity. Nothing in this Agreement shall be construed to restrict either Party’s use or disclosure of its own Confidential Information.
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5. NO WARRANTY
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ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.
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6. RETURN OF MATERIALS
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6.1 When the Opportunity comes to an end or when requested to do so in writing by Discloser, Recipient shall promptly:
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(a) deliver all documents, materials and other tangible objects containing any of the Confidential Information that have been disclosed by Discloser to Recipient, which for the avoidance of doubt includes all copies or extracts thereof or notes derived there from that are in the possession of Recipient.
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(b) permanently delete, destroy and erase all electronic copies of the Confidential Information from any computer or data storage system into which the Confidential Information was entered; and
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(c) make no further use of the Confidential Information.
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6.2 Recipient shall, if required to do so by Discloser, provide a certificate signed by Recipient certifying that the provisions of paragraphs 6.1(a) and (b) above have been complied with.
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7. NO LICENSE
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7.1 Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask work right or copyright of Discloser.
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7.2 Recipient acknowledges and agrees that all property, including intellectual property, in the Confidential Information and in documents and other materials containing the Confidential Information shall remain with and be vested in Discloser or its licensors (as applicable).
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7.3 Nothing in this Agreement shall be construed as granting to or conferring on Recipient any licence, right, title or interest in or to the Confidential Information or to give any licence to use, sell, copy or further develop such Confidential Information. This Agreement shall not be construed so as to require the parties to enter into any further agreements.
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8. REMEDIES
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8.1 Recipient agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Discloser, entitling Discloser to seek injunctive relief in addition to all other legal remedies.
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8.2 Each Party undertakes to indemnify the other Party against any loss or damage arising from the unauthorised disclosure of the other Party's Confidential Information and from all actions, proceedings, claims, demands, costs (including reasonable legal costs, awards and damages) arising as a result of any breach or non-performance of any of its undertakings or obligations under this Agreement.
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8.3 Recipient acknowledges and agrees that any disclosure by Recipient in violation of this Agreement shall constitute and be treated as a material breach of this Agreement, which will cause very great and irreparable harm to Discloser. Since it would be difficult or impossible to compute the total actual damages from any such unauthorized use or disclosure, it is agreed that Recipient shall pay Discloser the sum of 100,000 US Dollars (USD one hundred thousand) for each individual use or disclosure of Confidential Information hereunder by Recipient, which amount is agreed upon by the parties as liquidated damages and not as a penalty, and which amount has been computed, estimated and agreed upon as an attempt to make a reasonable forecast of probable actual loss because of the difficulty of estimating with exactness the damages which shall result. The liquidated damages provided for hereunder shall not be deemed an “adequate remedy” precluding equitable relief and the right to such damages shall be cumulative rather than alternative to Discloser other rights and remedies
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9. FEEDBACK
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9.1 Any ideas, suggestions, guidance or other information disclosed by Recipient related to Discloser’s Confidential Information and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback.” Discloser shall own all Feedback, and Recipient agrees to assign and hereby assigns to Discloser all of its rights, title, and interest in and to any Feedback. Recipient agrees to execute, sign and do all such further instruments, applications, documents, acts and things and give any further assistance (all at the reasonable expense of Recipient) as Discloser may at any time reasonably request, properly to secure the vesting in Discloser absolutely of the full right, title and interest in and to any Feedback.
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9.2 To the extent that any assignment in clause 9.1 is unenforceable or ineffective for whatever reason, Recipient agrees to grant and hereby grants to Discloser a nonexclusive, perpetual, irrevocable, royalty free, freely transferable and sub-licensable licence, worldwide licence, commencing on the date that the relevant Feedback was provided to Discloser, for any purpose, including to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit the relevant Feedback and all Intellectual Property Rights associated with the Feedback or relating thereto without restriction.
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10. ASSIGNMENT
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10.1 This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. Subject to clause 10.2, neither Party may assign, transfer, charge, sub-contract or deal in any other manner with all or any rights or obligations under this Agreement without the prior written consent of the other Party.
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10.2 Either Party may assign this Agreement without consent in connection with a merger, reorganization, consolidation, change of control, or sale of all or substantially all of the assets to which this Agreement pertains, provided that the assigning Party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
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11. GOVERNING LAW AND ARBITRATION
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11.1 This Agreement will be governed, interpreted and construed in accordance with the laws of Cyprus.
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11.2 Any dispute, controversy or claim arising out of or relating to this Agreement, including but not limited to the formation, performance, breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the CEDRAC Arbitration Rules. Wargaming PCL shall have the right to disclose to the public the details of any ongoing or completed arbitration in any form it deems appropriate. The parties further agree that:
(a) The appointing authority shall be the CEDRAC Court.
(b) The number of arbitrators shall be three.
(c) The place of arbitration shall be Nicosia, Cyprus.
(d) The language to be used in the arbitral proceedings shall be English.
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12. MISCELLANEOUS
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12.1 Each Party confirms that, in entering into and performing this Agreement, it is acting on its own behalf and not for the benefit of any other person. Each Party hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind such Party to the terms of this Agreement.
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12.2 A person who is not a Party to this Agreement shall not have any rights under or in connection with it.
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12.3 This Agreement shall be effective for a period of 10 (ten) years upon execution.
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13. ENTIRE AGREEMENT
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13.1 This Agreement constitutes the entire agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.
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13.2 Provided always that nothing will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, each Party acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of this Agreement other that as expressly set out in this Agreement.
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14. SEVERANCE
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14.1 If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, the other provisions will remain in full force and effect.
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14.2 If any invalid or unenforceable provision would be valid, enforceable or legal if some part of it were deleted, such provision will apply with whatever modification is necessary so as to give effect the intention of the Parties.
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15. WAIVER AND VARIATION
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15.1 If a Party delays in enforcing its rights under this Agreement (whether in relation to a breach by the other Party or otherwise) or agrees not to enforce its rights or to delay doing so, then unless the Party concerned expressly agrees otherwise, that delay or agreement will not be treated as waiving the rights of the Party concerned. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement.
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15.2 Save as expressly provided in this Agreement, no provision of this Agreement may be amended or otherwise modified unless in writing and signed by a duly authorised representative of each of the Parties to this Agreement.
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16. COUNTERPARTS
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The Parties may execute this Agreement in any number of counterparts all of which, taken together, shall constitute one and the same instrument. Either Party may enter into this Agreement by signing any such counterpart.
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IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.
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Duly signed by WARGAMING PCL
acting by the undermentioned person
in accordance with the laws of the territory of its incorporation
………………………………………
(Signature)
Evangelos Georgiou, managing director
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Duly signed by
………………………………………
(Signature)
………………………………………
(Print name)
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