NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT (Agreement) is made and entered into upon logging into www.wheresthebeefmusical.com/vip by and between Marlene Necheles and Geoff Shell (Playwrights” or the Disclosing Party), and End User (the Receiving Party).
1. Purpose. The Parties are involved in conversations/negotiations regarding "Clara and The Beef" may disclose to End User certain Confidential Information (as defined below) that the Playwrights desire End User to treat as confidential. And End User may disclose certain Confidential Information to the Playwrights that End User desires to treat as confidential.
2. Confidential Information. As used herein, Confidential Information” means all proprietary, confidential, trade secret, and other sensitive or nonpublic information that Disclosing Party or its agents or representatives designates as being confidential or which the Receiving Party knew, or should have reasonably known under the circumstances, was confidential and had been communicated to it in confidence. As used herein, Confidential Information” includes, without limitation, information relating to released or unreleased software, plays, musical scores, song lyrics, processes and process controls, techniques, protocols, reference implementations and documentation, all technical knowhow and trade secrets which relate to the play owned or developed by Disclosing Party, all marketing and sales information relating to the marketing or sales of any product or Service of Disclosing Party, any non-public business plans, projections, and financial information of the Disclosing Party, and all confidential third-party information that Disclosing Party is obligated to treat as confidential. Confidential Information may be disclosed in written or other tangible form (including on magnetic media) or by oral, visual or other means. Confidential Information shall not include information that (i) is now or later becomes generally known or publicly available (other than as a result of a breach of this Agreement, (ii) is independently developed by Receiving Party without use of or reference to Confidential Information, as evidenced by records of Receiving Party, iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information, or (iv) has been published or generally disclosed or made available to the public by Disclosing Party, Receiving Party shall bear the burden of showing that any of the foregoing exclusions apply to any information or materials.
3. Non-use and Non-disclosure. Receiving Party agrees not to use any Confidential Information for any purpose except to engage in discussions between the Parties concerning the furthering of the business plan. Receiving Party agrees not to disclose any Confidential Information to third parties or to Receiving Partys employees, except to those employees, agents and consultants (the Representatives) of Receiving Party who have a bona fide need to know the information in order to evaluate or engage in discussions on behalf of Receiving Party concerning the furthering of the business plan or to those individuals who have a bona fide need to know the information in order to provide the services specifically identified in connection with the furthering of the business plan (e.g. accountants or other experts), provided, Receiving Party may disclose Confidential Information if and to the extent: (i) required by any written request or order of any government authority; (ii) otherwise required by law; or (iii) necessary to establish its rights under this Agreement; provided further that, in each case, Receiving Party will first promptly notify Disclosing Party of such requirement, permit Disclosing Party to contest such requirement if reasonably appropriate, cooperate with Disclosing Party at Disclosing Partys expense in limiting the scope of the proposed disclosure, and permit Disclosing Party to obtain any additional means of protecting the confidentiality of the Confidential Information. Receiving Party shall take reasonable measures to ensure that its Representatives comply with the obligations contained in this Agreement and shall be liable to Disclosing Party for any breach by such Party or its Representatives of confidentiality with respect to the Confidential Information.
4. Maintenance of Confidentiality, Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information, but in no event less than reasonable degree of care, and shall ensure that any Representatives of the Receiving Party, who have access to Confidential Information, are aware of the confidentiality provisions of this Agreement prior to any disclosure of Confidential Information to such Representatives. Receiving Party shall notify Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement by Receiving Party, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use. Receiving Party shall not make any copies of the Confidential Information except for the purpose contemplated hereby, Receiving Party shall reproduce Disclosing Partys proprietary rights notices on any such copies, in the same manner in which such notices were set forth in or on the original,
5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information and all copies thereof which are in the possession of Receiving Party shall be and remain the property of Disclosing Party and shall be promptly returned by the Receiving Party and its Representatives upon Disclosing Partys written request.
6. No License. Nothing in this Agreement is intended to grant any rights to Receiving Party under any patent, trademark, mask work right or copyright of Disclosing Party, nor shall this Agreement grant to Receiving Party any rights in or to the Confidential Information except as expressly set forth herein.
7. Term. The obligations of Receiving Party hereunder shall survive with respect to each item of Confidential Information received by Receiving Party until such time as such Confidential Information becomes publicly known or is made generally available through no action or inaction of Receiving Party,
8. Remedies. Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive and all other appropriate equitable relief (including a decree of specific performance), without being required to post a bond.
9. Miscellaneous.
(a) This document contains the entire agreement between the Parties with respect to the subject matter of this Agreement and Supersedes any prior agreement with respect to any other disclosure concerning this subject matter. This Agreement shall bind and inure to the benefit of Disclosing Party and its successors and permitted assigns. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
(b) This Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of laws principles. Both Parties consent to jurisdiction by the state and federal courts sitting in the County of Cook, State of Illinois.
(c) If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein.
(d) This Agreement may not be amended, nor any obligation waived, except by a writing signed by authorized representatives of both Parties. This Agreement may not be assigned or transferred by the Receiving Party without the prior written consent of Disclosing Party,
e) EXCEPT AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT BETWEEN THE PARTIES, DISCLOSING PARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL INFORMATION OF DISCLOSING PARTY.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.
Clara and The Beef
By: Thomas T. Field
On Behalf of Playwrights
Beermann Pritikin Mirabelli Swerdlove LLP
161 N. Clark Street, Suite 2600
Chicago, IL 60661
Telephone: 312-621-9700
Email address: ttfield@beermannlaw.com
