Confidentiality Agreement for the World of Warships project (NDA)

MUTUAL NON-DISCLOSURE AGREEMENT

This Mutual Non-Disclosure Agreement (the “Agreement”), dated 01/07/2015(the “Effective Date”), is entered into by and between

(1) Wargaming.net LLP, registered in England and Wales under number OC335225, with the registered office at Sterling House, Fulbourne Road, London E17 4EE, United Kingdom (“Wargaming”); and

(2)  and You (your detailed personal information will be sent to us with this Agreement via our Website)

(each herein referred to individually as the “Party”, and collectively as the “Parties”).

Each Party has received and wishes to receive certain Confidential Information (as defined below) from the other for the purpose of implementing cooperation intentions between the Parties in regard to [DESCRIBE COOPERATION SCOPE] (the “Opportunity”), and in connection with the Opportunity.

This Agreement sets out the terms on which Confidential Information is received.

1. DEFINITIONS

In this Agreement:

1.1. The Party that directly or indirectly discloses or otherwise makes available Confidential Information to the other Party is the “Discloser”. The Party that directly or indirectly receives the Confidential Information from Discloser is the “Recipient”.

1.2. “Confidential Information” means any information (including any and all combinations of individual items of information) which relates to Discloser and/or any of its Affiliates’ business that is disclosed or made available (directly or indirectly) by Discloser to Recipient, whether in oral, visual or written from (including graphic material), whether before or after the Effective Date of this Agreement. Confidential Information includes but is not limited to:

(a) proprietary information, technical data, know-how, formulae, engineering processes, strategies, photographs, patents, technology, technical literature, research, product plans, products, services, equipment, customers, markets, software, inventions, discoveries, ideas, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment or other materials including information which is attributable to or the existence of which is derived from discussions relating to the Opportunity;

(b) the existence and terms of this Agreement;

(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.

1.3. “Affiliate” means, in relation to either Party, any entity that such Party Controls, and where applicable, is Controlled by or is under common Control with, where “Control”means, in respect of an entity, the power of a person or entity, directly or indirectly, to secure:

(a) by means of the holding of shares or stock or the possession of voting power in or in relation to such entity or any other body corporate; or

(b) by virtue of any powers conferred by the articles of association or other document regulating such entity or any other body corporate;

that the affairs of such entity are conducted in accordance with the wishes or directions of such other person or entity.

2. EXCEPTIONS TO CONFIDENTIALITY

2.1. Recipient’s obligations under articles 4 and 5 of this Agreement shall not apply with respect to Confidential Information that Recipient can demonstrate:

(a) is or becomes available to the public generally through no wrongful action or inaction of Recipient or by anyone to whom Recipient lawfully disclosed the Confidential Information;

(b) is in the rightful possession of Recipient without confidentiality obligations at the time of the disclosure by Discloser to Recipient as shown by the Recipient’s then-contemporaneous written files and records kept in the ordinary course of business;

(c) is obtained by Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or

(d) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development,

provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception.

3. COMPELLED DISCLOSURE

3.1. Either Party is permitted to disclose any Confidential Information that is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body (but only to the extent of such requirement), and provided that if such Party is required by any regulatory authority to make any such disclosure, such Party will provide the other with prompt written notice prior to such disclosure, if legally permissible, and will use its best endeavours to assist the other in seeking a protective order or another appropriate remedy.

3.2. If a Party has given the other a notice prior to a required disclosure under clause 3.1, and either the other has consented to such disclosure or failed to obtain a protective order or other appropriate remedy, such Party will disclose only that portion of the Confidential Information that is required to be disclosed under clause 3.1. Any Confidential Information so disclosed shall remain subject to the terms of this Agreement, save for the required disclosure.

4. NON-USE AND NON-DISCLOSURE

4.1. In consideration of any access Recipient may have to the Confidential Information of Discloser, Recipient shall:

(a) keep the Confidential Information strictly confidential, not disclose it to any third party (unless prior approved in writing by Discloser) or, where applicable, to Recipient’s employees (save as permitted under clause 5.2 below) and not make any use whatsoever of the Confidential Information for any purpose, whether commercial or non-commercial, other than to carry out the Opportunity;

(b) not copy, reduce into writing, or summarise any Confidential Information except to the extent strictly necessary to carry out the Opportunity;

(c) not disclose any Confidential Information to any more than the minimum number of Representatives strictly necessary to carry out the Opportunity and shall ensure that all those to whom the Confidential Information is disclosed are aware of and observe the terms of this Agreement in all respects as if they were a party to this Agreement obtaining such undertakings as are necessary, in terms at least as extensive and binding upon the Representatives as the terms of this Agreement are upon the Parties (“Representatives” for the purposes of this subclause 4.1(c) shall mean where applicable directors, officers, members, employees, agents, managers and consultants of, and individuals seconded to work for, a Party and/or any of its Affiliates);

(d) Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement;

(e) on Discloser’s request, require confidentiality undertakings from any third party to whom Confidential Information is disclosed; and

(f) not, without Discloser’s prior written consent, copy or store Confidential Information electronically or transmit it outside Recipient’s usual place of business.

4.2. Recipient shall not, without Discloser’s prior written consent, use Confidential Information for its advantage, commercial or otherwise.

5. MAINTENANCE OF CONFIDENTIALITY

5.1. Recipient shall take all reasonable steps and security measures necessary to protect Confidential Information from being disclosed to any third party (except as prior approved in writing by Discloser). Without limiting the foregoing, Recipient shall use at least those measures that it uses to protect its own Confidential Information in its protection of Discloser’s Confidential Information.

5.2. Recipient shall ensure, where applicable, that all those of its employees who have access to Confidential Information of Discloser are aware of and observe the terms of this Agreement in all respects as if they were a party to this Agreement obtaining such undertakings as are necessary, in terms at least as extensive and binding upon such employees as the terms of this Agreement are upon the Parties.

5.3. Recipient shall not make any copies of Confidential Information of Discloser (except as previously approved in writing by Discloser). Recipient shall reproduce Discloser’s proprietary rights notices on any such authorised copies in the same manner in which such notices were set forth in or on the original. Recipient shall promptly notify Discloser of any unauthorised use or disclosure, or suspected unauthorised use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.

6. NO OBLIGATION

6.1. Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity. Nothing in this Agreement shall be construed to restrict either Party’s use or disclosure of its own Confidential Information.

7. NO WARRANTY

7.1. All confidential information is provided “as is”. Neither Party makes any warranties, express, implied or otherwise, regarding the accuracy, completeness or performance of any Confidential Information, or with respect to non-infringement or other violation of any intellectual property rights of a third party or of Recipient.

8. RETURN OF MATERIALS

8.1. When the Opportunity comes to an end or when requested to do so in writing by Discloser, Recipient shall promptly:

(a) deliver all documents, materials and other tangible objects containing Confidential Information or part thereof that has been disclosed by Discloser to Recipient, which for the avoidance of doubt includes all copies or extracts thereof or notes derived therefrom that are in the possession of Recipient;

(b) permanently delete, destroy and erase all electronic copies of Confidential Information from any computer or data storage system into which Confidential Information was entered; and

(c) make no further use of Confidential Information.

8.2. Recipient shall, if required to do so by Discloser, provide a certificate signed by Recipient certifying that the provisions of subclauses 8.1(a) and (b) above have been complied with.

8.3. Following the date on which Recipient has complied with its obligations under clauses 8.1 and 8.2, Recipient’s obligations under articles 4 and 5 (subject to articles 2 and 3) in respect of Confidential Information disclosed prior to that date shall continue in force for a period of fifteen (15) years from that date.

9. NO LICENSE

9.1. Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask work right or copyright of Discloser.

9.2. Recipient acknowledges and agrees that all property, including intellectual property, in Confidential Information and in the documents and other materials containing Confidential Information shall remain with and be vested in Discloser or its licensors (as applicable).

9.3. Except for the right to use Confidential Information for the Opportunity as set out in this Agreement, nothing in this Agreement shall be construed as granting to or conferring on Recipient any licence, right, title or interest in or to Confidential Information or to give any licence to use, sell, copy or further develop such Confidential Information. This Agreement shall not be construed so as to require the Parties to enter into any further agreements.

10. EXPORT RESTRICTIONS

10.1. Any software and other technical information disclosed under this Agreement may be subject to restrictions and controls imposed by the Export Administration Act, Export Administration Regulations and other laws and regulations of the United States and any other applicable government or jurisdiction, as enacted from time to time (the “Acts”). The Parties shall comply with all restrictions and controls imposed by the Acts.

11. REMEDIES

11.1. Recipient agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Discloser, entitling Discloser to seek injunctive relief in addition to all other legal remedies.

11.2. Each Party undertakes to indemnify the other Party against any loss or damage arising from unauthorised disclosure of the other Party’s Confidential Information and from all actions, proceedings, claims, demands, costs (including reasonable legal costs, awards and damages) arising as a result of any breach or non-performance of any of its undertakings or obligations under this Agreement.

11.3 Recipient acknowledges and agrees that any disclosure by Recipient in violation of this Agreement shall constitute and be treated as a material breach of this Agreement, which will cause very great and irreparable harm to Discloser. Since it would be difficult or impossible to compute the total actual damages from any  such unauthorized use or disclosure, it is agreed that Recipient shall pay Discloser the sum of 1,000,000 US Dollars (USD one million) for each individual use or disclosure of Confidential Information hereunder by Recipient, which amount is agreed upon by the parties as liquidated damages and not as a penalty, and which amount has been computed, estimated and agreed upon as an attempt to make a reasonable forecast of probable actual loss because of the difficulty of estimating with exactness the damages which shall be cumulative rather than alternative to Discloser other rights and remedies.

12. FEEDBACK

12.1. Any ideas, suggestions, guidance or other information disclosed by Recipient related to Discloser’s Confidential Information and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback”.

12.2. Discloser shall own all Feedback, and Recipient agrees to assign and hereby assigns to Discloser all of its rights, title, and interest in and to any Feedback. Recipient agrees to execute, sign and do all such further instruments, applications, documents, acts and things and give any further assistance (all at the reasonable expense of Recipient) as Discloser may at any time reasonably request, properly to secure the vesting in Discloser of the full right, title and interest in and to any Feedback.

12.3. To the extent that any assignment in clause 12.2 is unenforceable or ineffective for whatever reason, Recipient agrees to grant and hereby grants to Discloser a non-exclusive, perpetual, irrevocable, royalty free, freely transferable and sub-licensable licence, worldwide licence, commencing on the date that the relevant Feedback was provided to Discloser, for any purpose, including to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit the relevant Feedback and all intellectual property rights associated with the Feedback or relating thereto without restriction.

13. ASSIGNMENT

13.1. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. Subject to clause 13.2, neither Party may assign, transfer, charge, sub-contract or deal in any other manner with all or any rights or obligations under this Agreement without the prior written consent of the other Party.

13.2. Where applicable, either Party may assign this Agreement without consent in connection with a merger, reorganization, consolidation, change of control, or sale of all or substantially all of the assets to which this Agreement pertains, provided that the assigning Party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.

14. GOVERNING LAW AND JURISDICTION

14.1. This Agreement will be governed, interpreted and construed in accordance with the laws of England and Wales.

14.2. Any dispute that arises out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (“LCIA”), which rules are deemed to be incorporated by reference into this Agreement.

The number of arbitrators shall be one, unless the LCIA determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The place and seat of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English. The decision of the arbitrator shall be final and binding upon the parties. Any reference under this clause 14.2 shall be deemed to be a reference to arbitration within the meaning of the Arbitration Act 1996. Nothing in this Agreement shall prevent either Party, in cases in which interim, injunctive or declaratory relief is required, from commencing proceedings and pursuing claims before a court of competent jurisdiction.

14.3. Subject to clause 14.2, the Parties irrevocably agree that the courts of England have non-exclusive jurisdiction to settle any disputes or claims arising out of or in connection this Agreement, its subject matter or its formation (including non-contractual disputes or claims).

15. MISCELLANEOUS

15.1. Each Party confirms that, in entering into and performing this Agreement, it is acting on its own behalf and not for the benefit of any other person. Each Party hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind such Party to the terms of this Agreement.

15.2. A person who is not a Party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

16. ENTIRE AGREEMENT

16.1. This Agreement constitutes the entire agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.

16.2. Provided always that nothing in this article 16 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, each Party acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of this Agreement other that as expressly set out in this Agreement.

17. SEVERANCE

17.1. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, the other provisions will remain in full force and effect.

17.2. If any invalid or unenforceable provision would be valid, enforceable or legal if some part of it were deleted, such provision will apply with whatever modification is necessary so as to give effect the intention of the Parties.

18. WAIVER AND VARIATION

18.1. If a Party delays in enforcing its rights under this Agreement (whether in relation to a breach by the other Party or otherwise) or agrees not to enforce its rights or to delay doing so, then unless the Party concerned expressly agrees otherwise, that delay or agreement will not be treated as waiving the rights of the Party concerned. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement.

18.2. Save as expressly provided in this Agreement, no provision of this Agreement may be amended or otherwise modified unless they are executed in writing and signed by each Party personally or by a duly authorised representative of a Party, as the case may be.

19. COUNTERPARTS

19.1. The Parties may execute this Agreement in any number of counterparts all of which, taken together, shall constitute one and the same instrument. Either Party may enter into this Agreement by signing any such counterpart.