| Language: |
This non-disclosure agreement (“Agreement”) is made on the date that you confirm your acceptance to these terms (“Effective Date”) by and between Gamecan OÜ, a limited liability company registered in Estonia with the registry code 12931206, address Lai 15a-3, 80010, Pärnu, Estonia (“Gamecan”) and you (“Beta Tester”) (Gamecan and Beta Tester also collectively “Parties” and each separately “Party”).
WHEREAS, Gamecan will share certain information with the Beta Tester for the purposes of the Beta Tester to be able to participate in the beta testing environments for video games developed by Gamecan and other related products and perform the relevant testing ("Purpose”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definition of Confidential Information. In this Agreement “Confidential Information” means:
1.1 the contents of this Agreement and the fact that the Parties may negotiate, are negotiating, or have negotiated with each other with respect to the Purpose and/or this Agreement;
1.2 any information relating to any Group Company that the Beta Tester receives (or has access to) as a result of entering into this Agreement and/or in connection therewith (a) that is marked, or at the time of disclosure is otherwise designated, as being confidential and/or (a) that would be regarded as confidential or commercially sensitive by a reasonable business person. In this Agreement “Group Company” means Gamecan and any company either directly or indirectly controlled by Gamecan, under the common control with Gamecan and/or controlling Gamecan;
1.3 without prejudice to the above, in case of any Group Company: (a) its financial data, including budgets, regular financial reports, balance sheets, income statements, cash-flow statements, KPIs and other business and financial metrics and targets, performance against targets, progress; (b) its business secrets, its business strategies and plans, marketing and sales strategies and plans, expansion strategies and plans, market research and surveys, customer feedback, market and business opportunities, research and development, other sales and marketing information; (c) its existing and planned products and services, including product and service roadmaps, concepts and models, pricing models and structures, price lists (including discounts, special prices or special terms offered to or agreed with customers); (d) the names, addresses, contact details and other information of its customers or potential customers as well as its suppliers or potential suppliers, licensors, licensees, agents, distributors and other contractors; (e) its agreements, including the fact that any such agreements have been signed as well as their terms, conditions and other content; (f) its prospective agreements and transactions, including information relating to any offers made to or received from any party, ongoing negotiations with any party, the terms, conditions and other content of any drafts of agreements; (g) its current and prospective intellectual property as well as its technology relating to products and services as well as techniques, methods and processes used for development of concepts, products and services, any other know-how, methods, processes, techniques and technical data, software code, source code, design, visuals, sounds; (h) its IT systems (including websites) as well as software and technical information (including passwords) necessary for the operation, maintenance and/or development of IT systems; (i) the members of its management board, supervisory board and advisory board and any similar governing body, its employees, consultants and advisors; (j) its investors and shareholders; (k) any and all information concerning or provided to or by third parties, in respect of which a Group Company owes a duty of confidence.
1.4 any other information (in whatever form) which any Group Company has an apparent or reasonably identifiable interest in keeping secret from third parties.
Regardless of the above, Confidential Information shall not, however, include any information that (a) is, or becomes in the future, without violation of any obligation of confidentiality, available to the public generally without requiring a significant expenditure of labour, skill or money; (b) is, or subsequently comes, into the possession of the Beta Tester without a violation of any obligation of confidentiality; (c) is explicitly approved for release by Gamecan at least in a form reproducible in writing.
2. Protection of Confidential Information. The Beta Tester shall: (a) use the Confidential Information only for the Purpose (in accordance with this Agreement and without violating any third persons rights or applicable laws and regulations); (b) treat all Confidential Information as being strictly confidential and implement and maintain all such technical and organizational security measures as may be reasonably available (having regard to technical developments at the time) and as are appropriate in the circumstances to protect Confidential Information against unauthorized or unlawful processing, accidental loss, distribution or damage; (c) in case the Confidential Information includes personal data, follow Gamecan’s instructions on processing personal data and adhere to the applicable data protection regulation; (d) not, without the express prior written consent of Gamecan, disclose any Confidential Information to any person other than its advisors and members of governing bodies, directors, officers, members, employees, agents, managers, consultants, and individuals seconded to work (the “Representatives”) required to carry out the Purpose, and will ensure that all those to whom the Confidential Information is disclosed are aware of and observe the terms of this Agreement in all respects as if they were a party to this Agreement; (e) procure confidentiality undertakings from any third party to whom Confidential Information is disclosed pursuant to this Agreement; (f) not make any copies of the Confidential Information; (g) not copy or store the Confidential Information electronically or transmit it outside Beta Tester’s usual place of business, unless otherwise agreed between the Parties in writing; (h) not, without Gamecan's prior written consent, use the Confidential Information for its advantage, commercial or otherwise; and (i) refrain from disassembling or decompiling software, peeling semiconductor components, or otherwise attempting to reverse engineer the design and function of any of the Confidential Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Confidential Information or any portion thereof by any means, including, without limitation, the requirements for compatibility with the system(s) and compatible software. The Beta Tester shall be fully responsible for any breach of this Agreement by any of its Representatives or its affiliates or subsidiaries. Notwithstanding the foregoing, disclosure of Confidential Information is not considered a breach of this Agreement if the Beta Tester is required to disclose it by applicable law or a court of competent jurisdiction, but only to the minimum extent of such requirement and provided that the Beta Tester, to the extent permitted by applicable law, gives Gamecan prior advance notice before making such disclosure so as to afford Gamecan a reasonable opportunity to object to and obtain a protective order or other appropriate relief regarding such disclosure.
3. Intellectual Property, no warranty. Except for the limited right to use the Confidential Information for the Purpose, this Agreement does not grant the Beta Tester any right to such information, including to use, sell, copy, further develop or create derivative works based on such information. The Beta Tester agrees that (a) all documents and other materials containing the Confidential Information, and any parts or copies of the Confidential Information, will always remain the property of the relevant Group Company; and (b) Gamecan and/or its licensors (as applicable) will retain all intellectual property rights in the Confidential Information always and for all purposes, including the copyright in any materials produced by the Beta Tester relating to the Confidential Information. Gamecan makes no representation or warranty as to the accuracy, completeness or otherwise of the Confidential Information supplied, and the Beta Tester agrees that it is responsible for making its own evaluation of such information.
4. Return of Confidential Information. On Gamecan’s request, given at least in a form reproducible in writing, the Beta Tester will immediately (a) return to Gamecan all Confidential Information (and any copies of it) in the Beta Tester’s control or possession; (b) delete and destroy all Confidential Information from any computer or data storage system into which it was entered; and (c) if required by Gamecan at any time, certify in writing that the provisions of paragraphs (a) and (b) above have been complied with.
5. Contractual penalties and damages. Upon each individual breach of this Agreement by the Beta Tester, the Beta Tester shall pay to Gamecan, upon its request, a contractual penalty of EUR 25,000.00 within 10 days as of making of such request by Gamecan. Each contractual penalty set forth in this Agreement operates as a measure for achieving the performance and not as a substitute for the performance of the Agreement. Therefore, the payment of any penalty set forth herein shall not release the Beta Tester from the obligation to perform the relevant obligations set forth in the Agreement. The obligation to pay penalty exists regardless of the actual damage caused by the relevant breach. Before Gamecan becomes entitled to claim a penalty hereunder, the Beta Tester must be given a reasonable term (being not more than 14 days) to cure the respective breach and its negative consequences. In case the breach and its negative consequences are not cured entirely during the described cure period or the breach is not curable, Gamecan will become entitled to claim the penalty hereunder. Gamecan loses its right to claim contractual penalty if it fails to notify the Beta Tester of its intention to claim the penalty within 12 months after Gamecan becomes aware of the respective breach. In case the Beta Tester breaches this Agreement, Gamecan is entitled to claim, in addition to the contractual penalty, compensation for any damages (including direct patrimonial damage and loss of profit) caused by the breach to the extent not covered by the contractual penalty and/or use any other remedies available under law.
6. Term of obligation and termination. This Agreement shall commence on the earlier of either the Effective Date or the date of first disclosure of any Confidential Information to the Beta Tester and remain in effect for a period of
10 years as of the Effective Date. For the sake of clarity, the Confidential Information shall be subject to confidentiality obligations of the Beta Tester set forth herein throughout the term of this Agreement. Gamecan may at any time unilaterally terminate this Agreement by notifying the Beta Tester thereof at least in form reproducible in writing.
7. Notices. All notices and other communications made or to be made under this Agreement shall be made in English in writing or in a form reproducible in writing (unless a written form is explicitly required hereunder).
8. Expenses. Each Party shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement.
9. Entire agreement and severability. This Agreement constitute the full and entire understanding and agreement between the Parties regarding the subjects hereof and supersedes any agreement or understanding between the Parties prior to signing of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions will remain in full force and effect and will not in any way be impaired. The Parties agree to replace the invalid or unenforceable provision by a valid or enforceable provision, which shall best reflect the Parties’ original intention and shall to the maximum extent possible achieve the same economic result.
10. Governing law and dispute resolution. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Estonia, excluding the conflict of laws rule. Any disputes resulting from this Agreement will be re solved in the Pärnu County Court Pärnu Court House in Estonia as the court of first instance.
WHEREAS, Gamecan will share certain information with the Beta Tester for the purposes of the Beta Tester to be able to participate in the beta testing environments for video games developed by Gamecan and other related products and perform the relevant testing ("Purpose”).
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definition of Confidential Information. In this Agreement “Confidential Information” means:
1.1 the contents of this Agreement and the fact that the Parties may negotiate, are negotiating, or have negotiated with each other with respect to the Purpose and/or this Agreement;
1.2 any information relating to any Group Company that the Beta Tester receives (or has access to) as a result of entering into this Agreement and/or in connection therewith (a) that is marked, or at the time of disclosure is otherwise designated, as being confidential and/or (a) that would be regarded as confidential or commercially sensitive by a reasonable business person. In this Agreement “Group Company” means Gamecan and any company either directly or indirectly controlled by Gamecan, under the common control with Gamecan and/or controlling Gamecan;
1.3 without prejudice to the above, in case of any Group Company: (a) its financial data, including budgets, regular financial reports, balance sheets, income statements, cash-flow statements, KPIs and other business and financial metrics and targets, performance against targets, progress; (b) its business secrets, its business strategies and plans, marketing and sales strategies and plans, expansion strategies and plans, market research and surveys, customer feedback, market and business opportunities, research and development, other sales and marketing information; (c) its existing and planned products and services, including product and service roadmaps, concepts and models, pricing models and structures, price lists (including discounts, special prices or special terms offered to or agreed with customers); (d) the names, addresses, contact details and other information of its customers or potential customers as well as its suppliers or potential suppliers, licensors, licensees, agents, distributors and other contractors; (e) its agreements, including the fact that any such agreements have been signed as well as their terms, conditions and other content; (f) its prospective agreements and transactions, including information relating to any offers made to or received from any party, ongoing negotiations with any party, the terms, conditions and other content of any drafts of agreements; (g) its current and prospective intellectual property as well as its technology relating to products and services as well as techniques, methods and processes used for development of concepts, products and services, any other know-how, methods, processes, techniques and technical data, software code, source code, design, visuals, sounds; (h) its IT systems (including websites) as well as software and technical information (including passwords) necessary for the operation, maintenance and/or development of IT systems; (i) the members of its management board, supervisory board and advisory board and any similar governing body, its employees, consultants and advisors; (j) its investors and shareholders; (k) any and all information concerning or provided to or by third parties, in respect of which a Group Company owes a duty of confidence.
1.4 any other information (in whatever form) which any Group Company has an apparent or reasonably identifiable interest in keeping secret from third parties.
Regardless of the above, Confidential Information shall not, however, include any information that (a) is, or becomes in the future, without violation of any obligation of confidentiality, available to the public generally without requiring a significant expenditure of labour, skill or money; (b) is, or subsequently comes, into the possession of the Beta Tester without a violation of any obligation of confidentiality; (c) is explicitly approved for release by Gamecan at least in a form reproducible in writing.
2. Protection of Confidential Information. The Beta Tester shall: (a) use the Confidential Information only for the Purpose (in accordance with this Agreement and without violating any third persons rights or applicable laws and regulations); (b) treat all Confidential Information as being strictly confidential and implement and maintain all such technical and organizational security measures as may be reasonably available (having regard to technical developments at the time) and as are appropriate in the circumstances to protect Confidential Information against unauthorized or unlawful processing, accidental loss, distribution or damage; (c) in case the Confidential Information includes personal data, follow Gamecan’s instructions on processing personal data and adhere to the applicable data protection regulation; (d) not, without the express prior written consent of Gamecan, disclose any Confidential Information to any person other than its advisors and members of governing bodies, directors, officers, members, employees, agents, managers, consultants, and individuals seconded to work (the “Representatives”) required to carry out the Purpose, and will ensure that all those to whom the Confidential Information is disclosed are aware of and observe the terms of this Agreement in all respects as if they were a party to this Agreement; (e) procure confidentiality undertakings from any third party to whom Confidential Information is disclosed pursuant to this Agreement; (f) not make any copies of the Confidential Information; (g) not copy or store the Confidential Information electronically or transmit it outside Beta Tester’s usual place of business, unless otherwise agreed between the Parties in writing; (h) not, without Gamecan's prior written consent, use the Confidential Information for its advantage, commercial or otherwise; and (i) refrain from disassembling or decompiling software, peeling semiconductor components, or otherwise attempting to reverse engineer the design and function of any of the Confidential Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Confidential Information or any portion thereof by any means, including, without limitation, the requirements for compatibility with the system(s) and compatible software. The Beta Tester shall be fully responsible for any breach of this Agreement by any of its Representatives or its affiliates or subsidiaries. Notwithstanding the foregoing, disclosure of Confidential Information is not considered a breach of this Agreement if the Beta Tester is required to disclose it by applicable law or a court of competent jurisdiction, but only to the minimum extent of such requirement and provided that the Beta Tester, to the extent permitted by applicable law, gives Gamecan prior advance notice before making such disclosure so as to afford Gamecan a reasonable opportunity to object to and obtain a protective order or other appropriate relief regarding such disclosure.
3. Intellectual Property, no warranty. Except for the limited right to use the Confidential Information for the Purpose, this Agreement does not grant the Beta Tester any right to such information, including to use, sell, copy, further develop or create derivative works based on such information. The Beta Tester agrees that (a) all documents and other materials containing the Confidential Information, and any parts or copies of the Confidential Information, will always remain the property of the relevant Group Company; and (b) Gamecan and/or its licensors (as applicable) will retain all intellectual property rights in the Confidential Information always and for all purposes, including the copyright in any materials produced by the Beta Tester relating to the Confidential Information. Gamecan makes no representation or warranty as to the accuracy, completeness or otherwise of the Confidential Information supplied, and the Beta Tester agrees that it is responsible for making its own evaluation of such information.
4. Return of Confidential Information. On Gamecan’s request, given at least in a form reproducible in writing, the Beta Tester will immediately (a) return to Gamecan all Confidential Information (and any copies of it) in the Beta Tester’s control or possession; (b) delete and destroy all Confidential Information from any computer or data storage system into which it was entered; and (c) if required by Gamecan at any time, certify in writing that the provisions of paragraphs (a) and (b) above have been complied with.
5. Contractual penalties and damages. Upon each individual breach of this Agreement by the Beta Tester, the Beta Tester shall pay to Gamecan, upon its request, a contractual penalty of EUR 25,000.00 within 10 days as of making of such request by Gamecan. Each contractual penalty set forth in this Agreement operates as a measure for achieving the performance and not as a substitute for the performance of the Agreement. Therefore, the payment of any penalty set forth herein shall not release the Beta Tester from the obligation to perform the relevant obligations set forth in the Agreement. The obligation to pay penalty exists regardless of the actual damage caused by the relevant breach. Before Gamecan becomes entitled to claim a penalty hereunder, the Beta Tester must be given a reasonable term (being not more than 14 days) to cure the respective breach and its negative consequences. In case the breach and its negative consequences are not cured entirely during the described cure period or the breach is not curable, Gamecan will become entitled to claim the penalty hereunder. Gamecan loses its right to claim contractual penalty if it fails to notify the Beta Tester of its intention to claim the penalty within 12 months after Gamecan becomes aware of the respective breach. In case the Beta Tester breaches this Agreement, Gamecan is entitled to claim, in addition to the contractual penalty, compensation for any damages (including direct patrimonial damage and loss of profit) caused by the breach to the extent not covered by the contractual penalty and/or use any other remedies available under law.
6. Term of obligation and termination. This Agreement shall commence on the earlier of either the Effective Date or the date of first disclosure of any Confidential Information to the Beta Tester and remain in effect for a period of
10 years as of the Effective Date. For the sake of clarity, the Confidential Information shall be subject to confidentiality obligations of the Beta Tester set forth herein throughout the term of this Agreement. Gamecan may at any time unilaterally terminate this Agreement by notifying the Beta Tester thereof at least in form reproducible in writing.
7. Notices. All notices and other communications made or to be made under this Agreement shall be made in English in writing or in a form reproducible in writing (unless a written form is explicitly required hereunder).
8. Expenses. Each Party shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement.
9. Entire agreement and severability. This Agreement constitute the full and entire understanding and agreement between the Parties regarding the subjects hereof and supersedes any agreement or understanding between the Parties prior to signing of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions will remain in full force and effect and will not in any way be impaired. The Parties agree to replace the invalid or unenforceable provision by a valid or enforceable provision, which shall best reflect the Parties’ original intention and shall to the maximum extent possible achieve the same economic result.
10. Governing law and dispute resolution. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Estonia, excluding the conflict of laws rule. Any disputes resulting from this Agreement will be re solved in the Pärnu County Court Pärnu Court House in Estonia as the court of first instance.