Apple inc. Confidentiality agreement (Apple Discloses)

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Confidentiality Agreement (Discloses)

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This Confidentiality Agreement (the "Agreement") is entered into and is effective as of the date signed by Apple below (the “Effective Date”) by and between Apple Inc., 1 Infinite Loop, Cupertino, California 95014 ("Apple") and Crackle, Inc., 10202 W. Washington Blvd., Culver City, California 90232 ("Recipient").
1. Definition Of Confidential Information. Recipient agrees that Apple’s White Paper on FairPlay Streaming for iOS and information disclosed by Apple in the parties’ discussions related thereto (the “Project”), and other information disclosed to Recipient in connection with the Project, including but not limited to information learned by Recipient from Apple employees, agents or through inspection of Apple's property, that relates to Apple's products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information disclosed to Recipient by Apple, the terms and conditions of this Agreement, and the existence of the discussions between Recipient and Apple will be considered and referred to collectively in this Agreement as "Confidential Information." Confidential Information, however, does not include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of Recipient; (b) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Apple; (c) is independently developed by Recipient without the use of any Confidential Information; or (d) Recipient rightfully obtains from a third party who has the right to transfer or disclose it to Recipient without limitation.
2. Nondisclosure And Nonuse Of Confidential Information. Recipient agrees to protect Apple’s Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. Recipient agrees to use Apple's Confidential Information for the sole purpose of evaluation in connection with Recipient’s discussions with Apple related to this Agreement. Recipient will not disclose, publish, or disseminate Confidential Information to anyone other than Recipient’s employees and contractors who have a need to know in order to accomplish such purpose or advise Recipient in connection with the Project, and who are also bound by a written agreement that prohibits unauthorized disclosure or use of Apple’s Confidential Information. In addition, Recipient may disclose such information to its legal and financial advisers for the purpose of obtaining advice in connection with the Project, provided that such disclosure is subject to a written confidentiality agreement or other legally binding duty of confidentiality. Recipient agrees not to use Confidential Information for any other purpose or for its own or any third party's benefit without the prior written consent of an authorized representative of Apple in each instance. Recipient may disclose Confidential Information to the extent required by law, including but not limited to when required in connection with a judicial or governmental proceeding, provided Recipient make reasonable efforts to give Apple notice of such requirement prior to any such disclosure and take reasonable steps to obtain protective treatment of the Confidential Information.
3. No License to Confidential Information. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby and Apple retains all of its rights therein.
4. Feedback and independent development. Notwithstanding any other provision in this Agreement, except as otherwise set forth in a subsequent written agreement between Apple and Recipient, if Recipient provides any ideas, suggestions or recommendations to Apple regarding Apple’s Confidential Information ("Feedback"), Apple is free to use and incorporate such Feedback in Apple’s products or technology, without payment of royalties or other consideration to Recipient, so long as Apple does not infringe Recipient's patents, copyrights or trademark rights in the Feedback. Nothing in this Agreement is intended to grant a license or waive any rights in either party's patents, copyrights or trademarks. Nothing in this Agreement is intended to prohibit Recipient from developing, or having developed for it, media content, products, programs, services, goods, concepts, opportunities, documents or information that are coincidentally similar to Apple’s media, content, products, programs, services, goods, concepts, opportunities, documents or information, provided that in doing so, Recipient does not use or disclose Apple’s Confidential Information.
5. No Warranty. All information is provided "AS IS," and without any warranty, whether express or implied, as to its accuracy or completeness.
6. Return Of Documents. Within ten business days of receipt of Apple’s written request, and at Apple’s option, Recipient will either return to Apple all tangible Confidential Information, including but not limited to all electronic files, documentation, notes, plans, drawings, and copies thereof, or will provide Apple with written certification that all such tangible Confidential Information has been destroyed.
7. Term and Termination. Either party may terminate this Agreement: (a) upon ten days’ written notice or (b) due to the other party’s breach of this Agreement, immediately upon giving written notice of such termination; however, any termination of this Agreement shall not relieve Recipient of its confidentiality and use obligations with respect to Confidential Information disclosed prior to the date of termination of affect any other provisions of this Agreement that are intended, by their terms or by necessary implication, to survive such expiration or termination.

8. Equitable Relief. Recipient hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Apple that may be difficult to ascertain. Accordingly, Recipient agrees that Apple will have the right to seek injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
9. No Export. Recipient agrees that no Confidential Information, or any portion thereof, will be exported to any country in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export control laws or regulations.
10. No Implied Waiver. Neither party’s failure or delay in exercising any of its rights will constitute a waiver of such rights unless expressly waived in writing.
11. No Assignment. This Agreement may not be assigned by Recipient by any means, including without limitation, by operation of law or merger. Any attempted assignment of this Agreement by Recipient in violation of this section will be void.
12. Entire Agreement and Governing Law. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed pursuant to this Agreement and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement may not be amended except by written agreement signed by authorized representatives of both parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of California law concerning conflicts of law. The parties further submit to and waive any objections to the exclusive jurisdiction of and venue in any of the following forums: U.S. District Court for the Northern District of California, California Superior Court for Santa Clara County, or any other forum in Santa Clara County, for any litigation arising out of this Agreement.
13. Notices. Notices required to be given by one party to the other in connection with this Agreement will be given in writing and delivered via personal delivery, recognized air courier service (e.e., Federal Express, DHL) or by facsimile with a copy sent by first class, postage paid, return receipt mail to the other party’s address set forth in the introductory paragraph of this Agreement (in the case of notices to Recipient to the attention of: EVP, Corporate Legal, with a copy to the attention of; General Counsel, c/o Sony Pictures Entertainment Inc., and in the case of Apple, to the Attention of General Counsel), or such other address as a party may substitute by giving notice to the other in accordance with this Section.
Understood and agreed:

Apple Inc. Recipient

___________________________ ___________________________

By (Signature) Date By (Signature) Date

___________________________ ___________________________

Printed Name and Title Printed Name and Title



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