This Non-Disclosure Agreement (this “Agreement”) is entered into by and between Orbital Studios LLC (“Orbital”) and the other signatory company or individual hereto (“Recipient”). Orbital and Recipient may be referred to herein individually as a “Party” and collectively as the “Parties.”
In order to evaluate and possibly enter into one or more business transactions (the “Purpose”), Orbital and Recipient hereby agree to the following terms and conditions:
1. This Agreement is effective upon the date of the later of the two signatures below.
2. Orbital may disclose to the other Recipient information pertaining to the Purpose that (a) if disclosed in writing or other tangible form, is marked “Confidential” or in some other manner to indicate its confidential nature; (b) if disclosed orally, is designated as confidential at the time of disclosure; or (c) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself (“Confidential Information”). For clarity, Confidential Information from and about Orbital shall include, but not be limited to, documents, records, information and data (whether verbal, electronic or written), drawings, models, apparatus, sketches, designs, schedules, product plans, marketing plans, technical procedures, analyses, compilations, studies, software, prototypes, samples, formulas, methodologies, product developments, patent applications, know-how, specifications, conversations and other business information, relating to the Orbital’s business, assets, operations or contracts, furnished to the Recipient and/or the other Recipient’s affiliates, employees, officers, owners, agents, consultants or representatives. Confidential Information does not include information that: (a) was known to the Recipient without restriction before receipt from Orbital; (b) is publicly available through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without a duty of confidentiality; or (d) is independently developed by the Recipient.
3. Both parties agree that they shall not copy or use any Confidential Information of Orbital, except to the extent authorized by the other Party. The Recipient shall be responsible for any breach of this Agreement that is caused by any of its employees or independent contractors, and the Recipient agrees to indemnify and hold harmless Orbital and its client from and against any liabilities, claims, damages, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) resulting directly or indirectly, from any breach of the Recipient, or any of its employees or independent contractors, of any provision of this Agreement.
As used in this Agreement, “affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with, a Party. For purposes of the foregoing, “control” means having more than 50% ownership of the equity or voting rights of a Party, or otherwise having the right or ability to direct the management or operations of a Party.
4. Notwithstanding the foregoing, a Party may disclose Confidential Information to the extent compelled to do so by law if it (i) provides reasonable prior notice to the other Party, unless a court orders that the other Party not be given notice and (ii) reasonably cooperates with the other Party in seeking a protective order or other remedies to avoid or minimize the required disclosure.
5. Recipient acknowledges that neither Orbital nor any of its directors, officers, agents or employees shall be liable for errors, omissions or inaccuracies of any kind in the Confidential Information and Recipient shall be responsible for verifying the accuracy and correctness of the Confidential Information. Recipient acknowledges that no warranty of any kind is given regarding the Confidential Information, the same being “as is”, where is and with all faults and the warranties of merchantability and fitness for a specific purpose to the extent applicable, are excluded. The foregoing in no way modifies the retention by Orbital of all right, title and interest in the Confidential Information.
6. Whether or not Recipient and Orbital enter into or continue a business relationship, the covenants pertaining to confidentiality, nondisclosure and non-use in this Agreement shall nevertheless remain in full force, unless and until Orbital specifically agrees in writing to release all or part of the Confidential Information from the confidential restrictions imposed by this Agreement.
7. Either Party may terminate this Agreement by providing thirty (30) days’ prior written notice to the other Party. The Recipient’s duty to protect Confidential Information expires ten (10) years from the effective date of termination of this Agreement.
8. Each Party represents and warrants that it has the right to share the Confidential Information with the other Party.
9. This Agreement imposes no obligation on either Party to proceed with any business transaction.
10. Neither Party acquires any intellectual property rights under this Agreement except the limited rights necessary to use the Confidential Information for the Purpose.
11. This Agreement does not create any joint venture, agency or partnership relationship between Parties. This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party.
12. Neither Party may make any public statement in any form or medium, including all social media, regarding (a) the Purpose, (b) the existence of this Agreement or any of the terms or conditions set forth herein, or (c) any meeting, discussion, conversation or other correspondence (including via email) between the Parties or any of their respective affiliates.
13. This Agreement is the Parties’ entire agreement with respect to the subject matter hereof, superseding any prior or contemporaneous agreements between the Parties. Accordingly, in the event an affiliate of Orbital has entered into a non-disclosure agreement with Company on behalf of itself and Orbital, this Agreement shall govern the Parties’ rights and obligations with respect to any information exchanged between the Parties in connection with the Purpose. The Parties may execute this Agreement electronically and in counterparts, which taken together will constitute one instrument. Failure to enforce any of provisions of this Agreement will not constitute a waiver by either Party.
14. This Agreement is governed by the laws of the State of California, excluding its conflict-of-laws principles. The exclusive venue for any dispute relating to this Agreement shall be Los Angeles County, California. The failure of either Party to enforce any term or condition of this Agreement shall not be deemed a waiver of any other term or condition of this Agreement.