The Nutcracker Stories: Non-Disclosure Agreement

THIS AGREEMENT dated and effective Submission Date, is made between: 

JOHN CARTER and THEUNS du PLESSIS (“Producers / Creative Directors / Writers”)

jointly and severally on behalf of themselves and their affiliates, directors, officers, employees, agents, representatives, independent and dependent contractors and licensees

– and – 

“Recipient”

jointly and severally on behalf of themselves and their affiliates, directors, officers, employees, agents, representatives, independent and dependent contractors and licensees.

FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is mutually acknowledged, including the opportunity to be considered for involvement in a business venture proposed by the Producer, THE PARTIES AGREE AS FOLLOWS: 

1. Confidential Information: “Confidential Information” means any non-public information, materials or items that the Producer marks or otherwise designates as confidential or which, under the circumstances surrounding the disclosure, ought to be treated as confidential, including, without limitation, story concepts, scripts, treatments, synopses, story outlines, character concepts, character biographies, world-building documents, visual development materials, mood boards, concept art, production designs, storyboards, franchise concepts, sequel concepts, pitch decks, investor materials, production strategies, and related creative works. “Confidential Information” includes but is not limited to business plans, designs, inventions, prototypes, source code, finances, trade secrets, intellectual property rights and other proprietary information, business and marketing plans.  “Confidential Information” does not include any information, material or item that the Recipient can show: (i) was rightfully in the possession of the Recipient at the time of disclosure; (ii) becomes a matter of public knowledge other than as a result of a breach of any obligation of confidentiality; (iii) was independently developed by the Recipient without reference to any Confidential Information of the Producer; (iv) was lawfully received from a third party without a duty of confidentiality; or (v) was approved for  release by the Producer in writing. 

2. Permitted Use & Restrictions: The Recipient shall not use any Confidential Information of the Producers for any purpose except to evaluate, discuss and further the purpose of any business relationship between the Recipient and the Producer (the “Permitted Purposes”). The Confidential Information cannot be used (directly or indirectly) or disclosed for any other purposes except with the prior written consent of the Producers and in connection with the Permitted Purposes. The Recipient shall not disclose any Confidential Information of the Producers to any third party except those directors, officers and employees of the Recipient who are required to have such information in order to carry out the Permitted Purposes and who are under confidentiality obligations to the Recipient sufficient for the Recipient to comply with all the provisions of this Agreement. The Recipient shall not print, copy, adopt, modify, store, decompile, disassemble or reverse engineer/translate any items or discover the source code or trade secrets thereof that constitute Confidential Information of the Producers otherwise than as required for the Permitted Purpose. Without limiting the generality of the foregoing, the Recipient shall not disclose Confidential Information publicly through any social media platform, digital service, publication, interview, press release, or other communication medium.

3. Duty of Care & Notification: The Recipient shall prevent the unauthorized use, disclosure, dissemination or publication of the Producers’ Confidential Information with the same degree of care that the Recipient uses to protect its own Confidential Information of a similar nature, but no less than a reasonable degree of care. The Recipient agrees to notify the Producer in writing of any misuse or misappropriation of the Producers’ Confidential Information which may come to the Recipient’s attention.

4. Compelled Disclosure: Disclosure of Confidential Information shall not be precluded if such disclosure is pursuant to the requirement or request of a governmental body or by operation of law; provided that the Recipient shall give prompt notice so that the Producers may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Recipient shall disclose only that portion of the Confidential Information which its counsel advises it is legally required to disclose.

5. Ownership & No Warranty: Confidential Information shall remain the sole and exclusive property of the Producers. By disclosing information to the Recipient, the Producers do not grant any express or implied right to Recipient in, to or under the Producers’ patents, copyrights, trademarks or trade secrets. The Recipient shall claim no right or license in or to the Confidential Information except for temporary use solely for the Permitted Purposes.  All Confidential Information disclosed hereunder is provided “as is”, and without any representation or warranty that such Confidential Information is accurate, complete or error-free and the Producers make no representation or warranty, express or implied, oral or written with respect thereto including all warranties of merchantability or fitness for any particular purpose and all warranties implied from any course of dealing or usage of trade. Nothing in this Agreement obligates any Party to disclose or receive any Confidential Information.

6. No Ownership Transfer: Disclosure of Confidential Information shall not constitute any transfer, assignment, license, or waiver of intellectual property rights, authorship rights, franchise rights, sequel rights, derivative work rights, or any ownership interest in the project.
7. Return or Destruction: The Recipient shall return all originals, copies, reproductions and summaries of the Confidential Information furnished by the Producers upon the written request of the Producer, or promptly after termination of this Agreement or at the Producer’s option, certify destruction or deletion of the same.
8. Non-Circumvention: The Recipient shall not directly or indirectly circumvent, bypass, engage, or exploit relationships, opportunities, contacts, or project participants introduced by the Producers without prior written consent.
9. Equitable Relief: The Recipient acknowledges that monetary damages may not be an adequate remedy for unauthorized disclosure of Confidential Information, and that the Producers shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
10. Independent Development & Project Evolution: The Recipient and the Producers acknowledge that project concepts, stories, characters, settings, and development materials may evolve, change, or be modified during development, certain aspects of their respective businesses may overlap and that they may have some of the same customers and suppliers. As such, the terms of confidentiality under this Agreement shall not be construed to limit the Recipient’s right to independently develop or acquire services or products without using any of the Producers’ Confidential Information.
11. Term & Survival: Confidentiality obligations shall survive for five (5) years from disclosure, and trade secrets shall remain protected until publicly disclosed by the Producers.
12. This Agreement may be exchanged electronically and in counterparts. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. If any provision of this Agreement is held unenforceable, the remainder of this Agreement shall remain in full force and effect. No provisions of this Agreement can be modified, nor any provision or breach waived, except by writing signed by an authorized person from each party. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario, Canada without regard to conflicts of any foreign laws, rules and regulations. The prevailing party in any dispute under this Agreement shall be entitled to an award of reasonable lawyers’ fees and costs.

IN WITNESS WHEREOF the parties have executed this Agreement as of the date below entered.