IT IS AGREED AS FOLLOWS:
1.1 This Agreement is entered into between Qloud Games Pty Ltd (ACN 658 781 885) (Discloser, we, us or our) and you, the person receiving our Confidential Information (Recipient, you or your), together the Parties and each a Party.
1.2 You acknowledge that you have read, understood and agree to be bound by this Agreement, and accept these terms by proceeding beyond this step.
1.3 This Agreement will commence on the Commencement Date and will continue for a period of 12 months (Term).
1.4 The Discloser would like to provide Confidential Information to the Recipient solely in order to facilitate discussions in relation to the video game called “Loftia” (the Alpha playtest), which the Recipient will interact with and provide feedback on (Purpose).
2.1 This Agreement will operate for the Term.
2.2 In consideration for the Confidential Information being disclosed to it, the Recipient agrees for the duration of the Term to:
(a) not disclose the Confidential Information to any third party;
(b) treat the Confidential Information as strictly confidential, and to use the same care to prevent the disclosure of the Confidential Information as the Recipient uses with respect to its own confidential and proprietary information (and, in any event, not less than the care a reasonable person would use under similar circumstances);
(c) only use the Confidential Information for the Purpose and not for any other purpose, including, but not limited to, for personal interest or gain;
(d) protect the Confidential Information from unauthorised disclosure and immediately notify the Discloser of any loss or unauthorised use or disclosure of Confidential Information; and
(e) only disclose Confidential Information to its Personnel on a strictly need to know basis and only for the Purpose and ensure that such Personnel are subject to confidentiality obligations at least as extensive as those contained in this Agreement. The Recipient will be responsible and liable for the acts and omissions of its Personnel.
2.3 The obligations under clause 1.1 do not apply to information:
(a) which the Discloser expressly agrees in writing is free of any non-disclosure obligations;
(b) which at the time of disclosure to the Recipient, was known to the Recipient or any of its Personnel (as evidenced by documentation in the possession of the Recipient or its Personnel) free of any non-disclosure obligations;
(c) which is lawfully received by the Recipient or any of its Personnel from a third party, free of any non-disclosure obligations, and where the Recipient or its Personnel reasonably believe the third party has the right to disclose the Confidential Information;
(d) that is already in the public domain, except as a result of the Recipient’s (or its Personnel’s) breach of this Agreement or any other duty of confidence owed by the Recipient; and
(e) that must be disclosed by law, regulation or an order of a court to disclose, provided that the Recipient only discloses that portion of the Confidential Information that the Recipient is required to disclose by law, and gives sufficient notice to the Discloser in order to allow the Discloser to object to, or prevent, the Confidential Information being disclosed. The Recipient agrees to provide all reasonable assistance to the Discloser in objecting to, or preventing, the Confidential Information from being disclosed.
3.1 The Recipient agrees that, as between the Parties, the Discloser owns all Intellectual Property Rights in the Discloser’s Materials, and that nothing in this Agreement constitutes a transfer of any Intellectual Property Rights in the Discloser’s Materials to the Recipient.
3.2 The Discloser’s disclosure, and the Recipient’s use, of the Confidential Information does not grant it a licence, or act as a right of use, to any Intellectual Property Rights subsisting in Discloser’s Materials, except as stated in this Agreement or with the Discloser’s express written permission.
All Confidential Information is provided on an “as is” basis for use by the Recipient at its own risk. The Discloser makes no representations, warranties, assurances or guarantees of any kind, whether express or implied, with respect to the Confidential Information, including, without limitation, any representation or warranty of merchantability, fitness for any particular use or purpose, or non-infringement of Intellectual Property Rights or other third party rights.
5.1 The Recipient agrees that:
(a) if the Recipient breaches its obligations under this Agreement, the Discloser may suffer loss and/or damage;
(b) monetary damages may not be an adequate remedy for the Discloser in relation to such loss and/or damage; and
(c) the Discloser is entitled to seek an injunction, specific performance or any other remedy available at law or in equity, in its discretion, to protect its Confidential Information from breach (or threatened or continuing breach) of this Agreement by the Recipient, its Personnel or any other persons directly or indirectly acting for, or on behalf of, the Recipient.
6.1 The Recipient must (and must ensure that its Personnel) immediately, upon the expiry or termination of this Agreement, or when requested by the Discloser (at the Discloser’s election), destroy any copies of any information, data and/or documents containing or relating to the Confidential Information not returned to the Discloser, and provide written confirmation to the Discloser that it has complied with the provisions of clauses 5.1(a) or 5.1(b), as applicable.
6.2 The Recipient may keep one copy of such information, in secure and confidential storage, if required by law for record keeping purposes, and only to the extent and for the period required by law. The Recipient agrees that its obligations in relation to Confidential Information will continue to apply to any Confidential Information in its custody or control under this clause 5.2.
6.3 This clause 6 will survive the termination or expiry of this Agreement.
7.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
7.2 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
7.3 Electronic Execution: This Agreement may be executed using an Electronic Signature. The Parties acknowledge and agree that if a Party executes this Agreement using an Electronic Signature, then the Party is taken to have entered into this Agreement in electronic form and the Electronic Signature is deemed to be an original execution of the Agreement by the Party. “Electronic Signature” means an electronic method of signing that identifies the person and indicates their intention to sign this Agreement which may include software programs such as DocuSign.
7.4 Governing law: This Agreement is governed by the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
In this Agreement, capitalised terms have the meanings set out below:
Agreement means this Non-Disclosure Agreement and all schedules, annexures and attachments included, or referred to, in this Non-Disclosure Agreement.
Commencement Date means the date that the last Party has executed this Agreement.
Confidential Information includes but is not limited to:
(a) any commercially sensitive or valuable documentation or information of the Discloser;
(b) the game’s storyline, characters, levels, gameplay mechanics, user interface, game modes, art, 3D models, textures, music, sound effects, voice recordings, details about the game engine, programming, source code, APIs, development tools and processes, software architecture, release plans, marketing strategies, budgets, sales projections, licencing deals, publishing agreements, feedback, bug reports, usability findings, player metrics, analytics, survey responses; and
(c) analytical information, business plans, concepts, customer and supplier lists, designs, financial or monetisation plans, funding arrangements, ideas, information, knowledge, know-how, intellectual property, inventions, operating procedures, processes, software and source code, technology, techniques, or trade secrets.
Discloser’s Materials means any and all work, models, processes, technologies, strategies, materials, information, documentation and services, and any Intellectual Property Rights subsisting in any of the aforementioned, owned, licensed or developed by or on behalf of the Discloser or its Personnel, and includes any future materials.
Intellectual Property Rights means any intellectual property or other proprietary rights in any copyright, registered or unregistered designs or trade marks, domain names, know-how, inventions, processes, trade secrets or right to keep confidential information confidential; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not.
Personnel means, in respect of a Party, any of its employees, consultants, contractors, officers, professional advisers or agents.