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This Agreement is made by and between Broadjam, Inc., a Delaware corporation having a principal place of business at P.O. Box 6, Oregon, WI 53575 ("COMPANY");
and you, each referred to individually as a "Party" and collectively as the "Parties."
A. COMPANY has invested considerable capital, time and effort in establishing a proprietary position in the entertainment, software, and digital applications industries, and has confidential and proprietary information relating thereto.
B. COMPANY is developing and intends to launch a new services-delivery platform, including but not limited to content and services delivered by and through the website at www.broadjam.com (individually and collectively, the "Site").
C. COMPANY engaged or intends to engage RECIPIENT to be a beta-tester for the Site (the "Services").
D. In connection with the Services, COMPANY disclosed or may disclose COMPANY's Confidential Information to RECIPIENT; and/or RECIPIENT encountered or may encounter the Confidential Information of COMPANY.
E. The Parties wish to enter into this Agreement to set forth their mutual understandings regarding the use and protection of Confidential Information.
IN CONSIDERATION of the mutual covenants and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, RECIPIENT and COMPANY agree as follows:
1. The foregoing Recitals are by this reference incorporated and made a part of this Agreement.
2. This Agreement shall bind and extend to any entity as to which RECIPIENT holds an ownership interest or exercises substantial control.
3. This Agreement shall become effective when an authorized representative of each Party has executed the Agreement in an authorized manner. Once effective, the terms and conditions of this Agreement shall apply retroactively to RECIPIENT's first encounter with Confidential Information.
4. RECIPIENT hereby acknowledges and agrees that any questions, comments, suggestions, ideas, feedback, or other information that RECIPIENT might develop in connection with the Services, whether or not shared with COMPANY (individually and collectively, RECIPIENT's "Submissions"), become at creation the sole property of COMPANY. RECIPIENT hereby irrevocably assigns to COMPANY all rights in and to all tangible media in which Submissions may be embodied, along with all worldwide intellectual property rights in and to all Submissions, including but not limited to copyright, trademark, patent, industrial design, trade secret, and any other.
5. As full and complete consideration for this Agreement, COMPANY shall credit RECIPIENT's Site account with membership and/or purchase credits, depending on RECIPIENT's level of Site activity. In the event this obligation is found by a court of competent jurisdiction to fail as adequate consideration for this Agreement, COMPANY shall pay RECIPIENT One United States Dollar ($1.00). COMPANY shall owe RECIPIENT nothing further, ever, for any purpose related to this Agreement.
a. The term "Confidential Information" means information that is of a proprietary or confidential nature that (except as otherwise provided herein) becomes known to RECIPIENT by reason of RECIPIENT'S engagement to provide the Services.
b. Unless otherwise required by the context, the term "Confidential Information," in this Agreement, shall mean both COMPANY's Confidential Information and the Confidential Information of COMPANY's licensors.
c. By way of illustration and not limitation, "Confidential Information" includes: all Submissions; any/all content and services of the Site that has not been made available to the public; all designations serving or intended to serve as indicators of source for COMPANY's goods and services that have not been used publicly; COMPANY works of authorship, whether copyrightable or not; data, both raw and compiled; databases; any/all information as to which COMPANY has any legal obligation to protect and/or maintain in confidence; know-how; customer/subscriber information; vendor information; vendor work product; proprietary software; outlines, notes, sketches, and specifications; cost, profit and marketing plans, materials, and information; pricing; financial and other business information that COMPANY has not made publicly available; legal plans and information; information about or pertaining to beta testing; reports; business plans, intentions, business and personnel associations; contractual arrangements; this Agreement.
d. Confidential Information may be furnished on paper, verbally, electronically or through any other means now known or hereafter devised, and regardless of the medium(s) used shall be protected hereunder.
e. Notwithstanding the foregoing: Confidential Information shall not include that portion of information that: (i) is now or subsequently becomes generally available to the public through no wrongful act or omission of the RECIPIENT; or (ii) RECIPIENT can demonstrate by its records to have had rightfully in its possession prior to disclosure by the DISCLOSER.
7. RECIPIENT will maintain the confidentiality of Confidential Information.
8. RECIPIENT agrees to use Confidential Information solely for purposes of performing and delivering the Services, and not to use or disclose Confidential Information for any other purpose.
9. Any use or misappropriation of Confidential Information for any purpose not expressly permitted herein, whether by RECIPIENT directly or facilitated by RECIPIENT, shall constitute RECIPIENT's material breach of this Agreement.
10. With respect to Confidential Information, RECIPIENT shall use at least the same degree of care that it uses to protect its own confidential information but in no event shall RECIPIENT exercise less than reasonable care. RECIPIENT shall take such security precautions as may reasonably be necessary to protect Confidential Information, including without limitation protecting documents and files from theft, unauthorized duplication, discovery and access by unauthorized persons, entities or associations.
11. RECIPIENT shall immediately notify COMPANY of any information about which it becomes aware that does or might indicate that there has been any loss of confidentiality of Confidential Information. In such event, RECIPIENT shall take all reasonable steps within its power to limit the spread of such information.
12. Notwithstanding any provision of this Agreement to the contrary: RECIPIENT's duties and obligations with respect to any Confidential Information that constitutes a trade secret shall continue so long as such Confidential Information remains a trade secret under applicable law.
13. RECIPIENT shall not have any rights, express or implied, to Confidential Information or derivatives thereof. At any time upon COMPANY's request, RECIPIENT shall immediately furnish to COMPANY all tangible records of Confidential Information in RECIPIENT's possession. The return of Confidential Information shall not abrogate RECIPIENT's continuing obligations under this Agreement.
14. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS," WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND.
15. It is absolutely necessary for the continued success of COMPANY that the confidentiality of Confidential Information be maintained, and that Confidential Information not be misappropriated for competitive or other unauthorized use. RECIPIENT acknowledges that irreparable injury and damage will result from its unauthorized disclosure of Confidential Information, as will use of Confidential Information for purposes other than those expressly permitted herein. In the event of a breach or threatened breach of any provision of this Agreement, COMPANY, in addition to and not in limitation of any other rights or remedies at law or in equity, shall be entitled to seek injunctive relief in order to prevent or restrain any breach by RECIPIENT and any person directly or indirectly acting on RECIPIENT's behalf, without the necessity of proving actual damages.
16. This Agreement shall be construed in accordance with the laws of the State of Wisconsin, without regard to any applicable conflict of laws provisions.
17. COMPANY expressly retains all rights and remedies afforded it under the laws of the United States, the individual States and all other jurisdictions, worldwide, including without limitation any laws designed to protect copyrights, trademarks, patents, trade secrets, rights to privacy and publicity, and other rights protecting proprietary or confidential information.
18. In the event that any of the terms of this Agreement are held to be in any respect an unreasonable restriction upon either Party, then the court so holding may modify the terms hereof, including without limitation the period of time during which it operates or the geographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being acknowledged by the Parties that their obligations as set forth herein are of the essence of this Agreement. If any portion of this Agreement is found to be void or unenforceable for any other reason, the remaining portion shall be enforceable with the invalid portion removed, giving all reasonable construction to permit the essential purposes of the Agreement to be achieved.
19. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, administrators, principals, executors, successors, and assigns.
20. No waiver or modification of this Agreement shall be valid unless set forth in a writing signed by the Parties hereto. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
21. All provisions of this Agreement, which by their nature should survive termination and by applicable law are permitted to survive termination, shall survive if necessary to achieve the intent of the Parties. Provided, however, that no provision shall survive if the consequence of its survival is its invalidity or that of any other provision of this Agreement.
22. Each Party warrants and represents that its undersigned representative is duly authorized to bind such Party to this Agreement.
23. All notices required to be sent to either Party shall be in writing and sent by certified mail, return receipt requested, postage paid, or by overnight delivery service, to the other Party at the address first set forth above.
24. This Agreement may be executed in counterparts and/or electronically, each counterpart of which shall be deemed to be an enforceable original and all of which together shall constitute one enforceable instrument.
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