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Sparklite Beta Program

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement is made and entered into on the date the Sparklite beta program was submitted by and between Merge Games Limited, a United Kingdom company with offices at Windsor Court, 103 King Street, Knutsford Cheshire WA16 6EQ (hereinafter "MG"), and the individual who details were submitted at the time of requesting access to the Sparklite beta program, (hereinafter the "Participant").

Whereas,  MG is in the business of developing, publishing and distributing interactive software and related products for use on various interactive media, and

Whereas,  the Participant a private individual.

Whereas,  the parties desire to have certain discussions related to the Participant providing feed back relating to MG’s video game, Sparklite and to provide for the confidentiality of those discussions and the information relayed during such discussions.  

Therefore, in consideration of the representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, MG and the Participant agree as follows:

1.    Confidential Information.  This Agreement shall apply to all information disclosed by either party to the other during the term of this Agreement relating to either party's financial or business plans and affairs, financial statements, internal management tools and systems, products and product development plans, marketing plans, clients and contracts, which information is deemed by the disclosing party as confidential (hereinafter the "Confidential Information"). No formal identification of information as "Confidential Information" shall be required by the disclosing party.

 2.    Non-Disclosure.  Each party represents and warrants to the other that (i) it shall not copy or reproduce any of the Confidential Information without the express consent of the other; (ii) it agrees to use the same care and discretion to avoid disclosure, publication, or dissemination of Confidential Information of the disclosing party as the receiving party employs with similar information of its own which it does not desire to publish, disclose or disseminate; (iii) it will only disclose the Confidential Information of the disclosing party to those employees, attorneys, accountants and other advisors of the receiving party and its subsidiaries ("Agents") who have a need to know for purposes of this Agreement and it shall inform any Agents to whom it discloses Confidential Information of the confidentiality provisions of this Agreement and obtain written agreement to abide by such provisions, except where such obligation exists by reason of a prior agreement or relationship; (iv) it will not make any public statement or comment on the existence or provisions of this Agreement, or the existence or content of the discussions with respect to the Mutual Business Purpose, without the prior written consent of the other, except as may be required in the reasonable opinion of the its legal counsel; and (v) it will not use any copyrighted, patented or patentable Confidential Information of the other except for the sole purpose of evaluating the Mutual Business Purpose between the Participant and MG.

 

3.    Limitations.  Notwithstanding the foregoing, neither party shall be under any obligation to maintain the confidentiality of any Confidential Information of the other which it can demonstrate;

(i) was known by it prior to the disclosure thereof by the other party; (ii) properly comes into its possession from a third person which is not under any obligation to maintain the confidentiality of such Confidential Information; (iii) has become part of the public domain other than through its fault and/or (iv) is disclosed in compliance with a legal requirement of a governmental agency or otherwise where disclosure is required by operation of law.

4.    Equitable Relief.  Each party acknowledges and agrees that the Confidential Information of the other is deemed by the other to constitute valuable trade secrets of such other party, and that any unauthorised reproduction and/or disclosure of such information by it may cause the other party irreparable harm for which its remedies at law may be inadequate.  Each party hereby agrees that the other may be entitled, in addition to any other remedies available to it at law or in equity, to seek injunctive relief to prevent the breach or threatened breach of the other's obligations hereunder.

 5.    No Impairment.  Nothing in this Agreement will impair the right of either party to use, develop or market technologies, ideas or products similar to those of the other so long as such use, development or marketing does not infringe on the copyright, trademark or patent rights of the other.  The parties expressly disclaim any obligation or liability to the other for use of the Confidential Information related to technologies, ideas or products which does not infringe the copyright or patents of the other party.  The foregoing will not be deemed to impair the obligations of confidence set forth in this Agreement.

 6.    No Representations.  Although each party will use reasonable efforts to ensure the accuracy of Confidential Information disclosed to the other, neither party makes any representation or warranty as to the accuracy or completeness of such Confidential Information.  Neither party will have any liability to the other under this Agreement for the accuracy or completeness of Confidential Information.

 7.    No Obligation to Complete Transactions.  Nothing herein shall imply any obligation of either party to proceed with any transaction between the parties, and each party explicitly reserves the right to terminate the discussions contemplated by this Agreement for any reason or no reason, without liability for such termination.

 8.    Governing Law.  This Agreement will be governed by and interpreted in accordance with the substantive laws of England and Wales. The parties agree that any dispute arising under this Agreement will be resolved in the appropriate courts of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English Courts..

 9.    No Assignment.  Neither party may assign this Agreement, nor may any of the rights hereunder be assigned or otherwise transferred to any third party, without the prior written consent of the other party.  Any attempted or purported assignment or other such transfer by either party to any third party without such consent having first been obtained shall be void.

 10.  Term.  This Agreement shall have a term of commencing with the date first set forth above and shall continue in full force and effect for Confidential Information disclosed for a period of twelve (12) months immediately following.  The obligations of confidence set forth above in this Agreement shall continue for a period of three (3) years from expiration of this Agreement.

11.  Entire Agreement.  This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral.  Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall not affect the remaining provisions hereof which shall remain in full force and effect.  No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties.