Non-Disclosure Agreement
1. INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
1.1 Words shown in bold throughout this Agreement are defined terms:
Agreement
Part A: Front Sheet and Part B: Operative Terms, together with the Schedules.
Appointment
your engagement by the Company to provide game testing services on the terms of this Agreement and in accordance with a Specification (where provided) or as set out by the Company to the Game Tester from time to time.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to our business, clients, customers, products, affairs and finances for the time being confidential to the Company and trade secrets including, without limitation, any Specification, technical data and know-how relating to our business or any of our suppliers, clients, customers, agents, distributors, shareholders or management, including (but not limited to) the games you test in connection with the Appointment, whether or not such information (if in any anything other than oral form) is marked confidential.
Copies records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) including, without limitation, extracts, analysis, studies, plans, compilations or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information.
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Specification
where used, the document Scheduled to this Agreement or any such document titled the same provided by the Company to the Game Tester from time to time which details the Appointment.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules and references to clauses and Schedules are to the clauses and Schedules of this Agreement.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Where any statement is qualified by the expression so far as the Game Tester is aware or to the Game Tester's knowledge (or any similar expression), that statement shall be deemed to include an additional statement that it has been made after due and careful enquiry.
2. CONFIDENTIALITY
2.1 Without prejudice to the Game Tester’s common law duties, the Game Tester shall not (except in the proper course of their duties, as authorised or required by law or as authorised by the Company), either during the Appointment or at any time after termination of the Appointment (howsoever arising):
2.1.1 use any Confidential Information; or
2.1.2 make or use any Copies; or
2.1.3 disclose any Confidential Information to any person, company or other organisation whatsoever.
2.2 The restriction in Clause 2.1 does not apply to any Confidential Information which is or comes into the public domain other than through the Game Tester’s unauthorised disclosure.
2.3 The Game Tester shall be responsible for protecting the confidentiality of the Confidential Information and the Game Tester shall:
2.3.1 use their best endeavours to prevent the use or communication of any Confidential Information by any person, company or organisation (except in the proper course of the Game Tester’s duties, as required by law or as authorised by the Company); and
2.3.2 inform the Company immediately on becoming aware, or suspecting, that any such person, company or organisation knows or has used any Confidential Information.
2.4 All Confidential Information and Copies shall be the Company’s property and on termination of the Appointment, or at the Company’s request, at any time during the Appointment, the Game Tester shall:
2.4.1 deliver all Confidential Information or Copies to the Company;
2.4.2 irretrievably delete any Confidential Information (including any Copies) stored on any magnetic or optical disk or memory, including personal computer networks, personal e-mail accounts or personal accounts on websites, and all matter derived from such sources which is in the Game Tester’s possession or under the Game Tester’s control outside the Company’s premises; and
2.4.3 provide a signed statement that the Game Tester has complied fully with their obligation under this Clause 2.
2.5 Nothing in this Clause 2 shall prevent the Game Tester from making a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996.
3. OBLIGATIONS AND PAYMENT
3.1 It is entirely at the Company’s discretion whether to offer the Game Tester work and it is under no obligation to give any reasons for its decision to offer or not offer work.
3.2 This Agreement places no obligation on the Game Tester to produce work for the Company and the Game Tester is under no obligation to accept any work offered by the Company at any time.
3.3 If the Game Tester accepts work offered by the Company, the precise nature of this work and details of payment due to the Game Tester will be agreed and set out in writing in a letter addressed to the Game Tester.
4. WARRANTIES
4.1 Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement and that those signing this Agreement are duly authorised to bind the party for whom they sign.
5. INDEMNITY
5.1 The Game Tester shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company whether directly or indirectly, arising out of or in connection with:
5.1.1 any breach of the warranties contained in clause 4;
5.1.2 actual or alleged infringement of a third party’s Intellectual Property Rights; and/or
5.1.3 the enforcement of this Agreement.
5.2 At the request of the Company and at the Game Tester's own expense, the Game Tester shall provide all reasonable assistance to enable the Company to resist any claim, action or proceedings brought against the Company as a consequence of that breach.
5.3 This indemnity shall apply whether or not the Company has been negligent or at fault.
6. FURTHER ASSURANCE
6.1 The Game Tester appoints the Company to be its attorney in its name and on its behalf to execute documents, use the Game Tester’s name and do all things which are necessary or desirable for the Company to obtain for itself or its nominee the full benefit of this Agreement.
6.2 This power of attorney is irrevocable and is given by way of security to secure the performance of the Game Tester’s obligations under this agreement and so long as such obligations of the Game Tester remain undischarged, the power may not be revoked by the Game Tester, save with the consent of the Company.
6.3 Without prejudice to clause 6.1, the Company may, in any way it thinks fit and in the name and on behalf of the Game Tester:
6.3.1 take any action that this agreement requires the Game Tester to take;
6.3.2 exercise any rights which this agreement gives to the Game Tester; and
6.3.3 appoint one or more persons to act as substitute attorney(s) for the Game Tester and to exercise such of the powers conferred by this power of attorney as the Company thinks fit and revoke such appointment.
6.4 The Game Tester undertakes to ratify and confirm everything that the Company and any substitute attorney does or arranges or purports to do or arrange in good faith in exercise of any power granted under this clause.
7. WAIVER
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
8. ENTIRE AGREEMENT
8.1 Save for any development and/or manufacturing agreement entered in to between the Parties, this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
8.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
9. VARIATION
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10. SEVERANCE
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
11. EXECUTION
Parties are bound to the terms of this Agreement by conduct and may indicate acceptance of the terms by marking a box with reference to the same.
12. NOTICES
12.1 A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party.
12.2 Notices must be delivered by email to an address given by either party and will be deemed delivered at the time of transmission if on a Business Day, otherwise at 10:00 on the next Business Day after transmission.
12.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13. NO PARTNERSHIP
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
14. GOVERNING LAW AND JURISDICTION
The validity, construction and performance of the Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
This Agreement has been executed and is delivered on the date appearing at Part A: Front Sheet
