This NON-DISCLOSURE AGREEMENT is made and entered into upon signing, by and between T H E SPICY LIFE, INC. ("SPICY LIFE"), and ("Recipient").
WHEREAS, both parties contemplate entering into discussions concerning SPICY LIFE, with respect to the provision of relationship consulting services, production, merchandising, publishing and/or other services in connection with SPICY LIFE’s services and intellectual property;
WHEREAS, both parties for their mutual benefit acknowledge that SPICY LIFE, and/or its parents, subsidiaries, or affiliates have disclosed or made available and may in the future disclose or make available to Recipient, information and/or materials concerning SPICY LIFE’s services, productions and/or intellectual property (collectively, "Proprietary Information"). Proprietary Information includes but is not limited to: data, products, processes, inventions, trade secrets, know-how, concepts, and video clips/tapes related to SPICY LIFE’s productions, services and/or intellectual property. It is understood that any information that may be considered Proprietary Information prior to or as of the date of this Non-Disclosure Agreement would be excluded from this category once it is considered in the public domain, except if in the public domain due to the fault or negligence of Recipient;
WHEREAS, SPICY LIFE and its parents, subsidiaries, and/or affiliates desire to provide for proper safeguards to protect all Proprietary Information that has been or may be disclosed or made available and is willing to deliver such Proprietary Information to Recipient upon the condition Recipient enters into this Non-Disclosure Agreement;
NOW THEREFORE, the parties, intending to be legally bound, hereby agree as follows;
1. That this Non-Disclosure Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather the parties hereto expressly agree that this Non-Disclosure Agreement is for the purpose of protecting said Proprietary Information only.
2. The Recipient shall keep in strict confidence any Proprietary Information disclosed or made available by SPICY LIFE, its parents, subsidiaries, and/or affiliates and shall not disclose or make available to any person or entity not bound by this Non-Disclosure Agreement any Proprietary Information except as provided by the terms and conditions hereof. The Recipient shall not use any Proprietary Information except for the purposes identified above without SPICY LIFE’s prior written approval. The Recipient shall not authorize, circulate, publish or otherwise disseminate (including without limitation, by posting or referring to such information on websites or blogs or social networking sites or “Twitter” type sites) any information, news articles or other publicity of any kind relating directly or indirectly to any Proprietary Information. The Recipient shall be liable for any disclosure or use of any Proprietary Information by its agents, employees, representatives and/or affiliates that would not be a permissible disclosure or use by the Recipient under the terms of this Non-Disclosure Agreement. Recipient also agrees not to edit or amend the Proprietary Information in any way, without SPICY LIFE’s prior approval. Proprietary Information rights, obligations and restrictions contained herein shall survive the termination of this Non-Disclosure Agreement.
3. SPICY LIFE, upon ten (10) days’ notice in writing to Recipient, may terminate Spicy Life’s professional relationship with said Recipient; in the event of termination, the rights and obligations hereunder as to disclosures made prior to such termination shall survive and not be affected by such termination. If applicable, the Recipient shall return the Proprietary Information to SPICY LIFE within five (5) business days after notice of termination.
4. Recipient agrees not to duplicate (by any means or manner) the Proprietary Information without SPICY LIFE’s express prior authorization. All Proprietary Information disclosed or made available to the Recipient shall be duplicated only as authorized in writing by SPICY LIFE and all copies of all information shall be returned to SPICY LIFE upon request or upon termination of this Non- Disclosure Agreement, whichever shall first occur.
5. The Recipient shall not be liable for disclosure or use of such information defined as Proprietary Information as provided above, which the Recipient establishes:
(i) has been published or is otherwise within the public knowledge or is generally known to the public at the time of its disclosure to the Recipient;
(ii) becomes part of the public domain without breach of this Non-Disclosure Agreement;
(iii) is disclosed with the written approval of SPICY LIFE; or
(iv) is required to be disclosed by law, regulation, or stock-exchange listing requirement, or by order of a governmental agency, legislative body, stock exchange, or court of competent jurisdiction, in which case Recipient shall as early as possible (and in any event no later than two (2) business days prior to the time of such required disclosure) notify SPICY LIFE thereof, and upon SPICY LIFE’s request, shall reasonably cooperate with SPICY LIFE in contesting such requirement or otherwise minimizing such disclosure. If after such contest, disclosure is still required, then Recipient shall request confidential treatment of such information from such governmental agency, legislative body, stock exchange or court.
6. Recipient shall have no right to manufacture, produce, publish, advertise, promote, or sell any goods or services to third parties based on or referring to any Proprietary Information in any way without SPICY LIFE’s prior written consent which must be expressed via a fully executed license agreement. To the extent SPICY LIFE grants Recipient any rights to use any SPICY LIFE intellectual property, including, without limitation any Proprietary Information, Recipient acknowledges that any use of Proprietary Information on any materials created by Recipient (“Materials”) shall be created as “works (made) for hire” for SPICY LIFE under U.S. copyright law, that SPICY LIFE shall be the author and sole owner of all Materials throughout the universe, that Recipient waives any rights Recipient may have including moral rights, and if at any time, any of the Materials are deemed not to be works made for hire, Recipient hereby assigns, grants, transfers and conveys to SPICY LIFE all of its right, title, and interest to the Materials for the entire length of time they are protected by any applicable law. Except as provided in this Section 6, no license or permission to Recipient under any intellectual property law is granted or implied by conveying any Proprietary Information or other information, and none of such information which may be transmitted shall constitute any representation, warranty, assurance, or inducement by SPICY LIFE with respect to the infringement of patents or other rights of others.
7. This Non-Disclosure Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to its conflict of law principles.
8. Recipient acknowledges that it would be difficult or impossible to ascertain with specificity the monetary damage to SPICY LIFE and/or its parents, subsidiaries or affiliates from disclosure of the Proprietary Information. Accordingly, SPICY LIFE and/or its parents, subsidiaries or affiliates shall be entitled, without the posting of a bond, to seek a temporary restraining order, preliminary injunction, permanent injunction and/or such other appropriate remedy in order to enforce this Non-Disclosure Agreement. Public disclosure by SPICY LIFE and/or its parents, subsidiaries or affiliates that it seeks such a remedy shall not be deemed inconsistent with the purpose of this Non-Disclosure Agreement and shall not bar or otherwise affect their right to such equitable relief. Recipient agrees to stipulate that SPICY LIFE and/or its parents, subsidiaries or affiliates may require the court records in any such injunctive or other action for equitable relief to be sealed and such other measure to be adopted to assure the confidentiality of the proceedings.