REELGOOD EVALUATION AND NONDISCLOSURE AGREEMENT
Thank you for choosing to evaluate the API and data offered by MyFlickList LLC (“Reelgood”). Review these terms (“Agreement”) thoroughly as this Agreement is a legal agreement between you (or the entity you represent) (respectively, “Customer”) and Reelgood. By clicking “Accept,” indicating acceptance electronically, or by installing, accessing, or using the Reelgood API or Reelgood Data, you agree, on behalf of Customer, to all of the terms of this Agreement. If you are accepting these terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not have the authority to bind such entity, or you do not accept and agree to this Agreement, then you may not use the Reelgood API or Reelgood Data.
If Customer is a direct competitor of Reelgood, Customer is prohibited from accessing or using the Reelgood API and Reelgood Data, except with Reelgood’s prior written consent. Notwithstanding anything else herein, Reelgood, in its sole discretion, may deny access to the Reelgood API and Reelgood Data at any time.
In consideration of their mutual promises herein, ReelGood and Customer hereby agree as follows:
1. Effective Date and Termination. This Agreement is effective between Reelgood and Customer as of the date of Customer’s accepting this Agreement (the “Effective Date”). The term of this Agreement commences on the Effective Date and continues for one week provided that either party may terminate this Agreement immediately on notice to the other party.
2. Reelgood Data and Reelgood API. Reelgood has collected, developed, compiled, and maintained valuable programming data (“Reelgood Data”) and has developed and licenses to certain third parties an application programming interface to enable authorized parties to access the Reelgood Data (“Reelgood API”) (Reelgood Data and the Reelgood API are referred to herein as “Reelgood Materials”).
3. Confidential Information. Confidential Information” means: (a) any and all information disclosed by Reelgood, including without limitation, business plans, current or planned products or services, roadmaps, charts, contracts, data, descriptions, documents, drawings, financial information, marketing plans, software, algorithms, models, specifications, technical information, whether disclosed in written, oral, electronic or other form, which information is marked confidential, proprietary or similar, Reelgood states is confidential at the time of disclosure, or would normally be considered confidential due to its nature or the circumstances of its disclosure and (b) all notes, summaries, reports and analyses prepared by Customer or its Representatives which reflect or contain any such information. Without limiting the foregoing, the parties agree that Reelgood Materials are Confidential Information.
4. License Grant and Restrictions on Use.
(a) Customer shall only use the Confidential Information for purposes of evaluating the Reelgood Materials (the “Evaluation”) and for no other purpose. Customer shall protect the Confidential Information with the same standard of care it uses to protect its own non-public, proprietary, and otherwise confidential information, but in no event less than reasonable care. Customer shall not disclose, in whole or in part, any the Confidential Information to any third party or reveal any of the Confidential Information to anyone other than those of its officers, directors, employees, consultants, advisors and counsel (collectively, its "Representatives") who need to know such Confidential Information in connection with the Evaluation; provided that Customer shall ensure that: (i) each of its Representatives is legally bound to maintain the confidentiality of such Confidential Information and (ii) such Confidential Information is used by Representatives solely in connection with the Evaluation. Customer shall be responsible for any violations of this Agreement by its Representatives.
(b) The parties agree that the Confidential Information remains the property of Reelgood. Nothing herein grants to Customer any right or license under any patent, copyright, trade secret and/or any other right relating to the Confidential Information. Customer shall not: (i) make any commercial use, in whole or in part, of the Confidential Information and/or (ii) mechanically copy or otherwise reproduce the Confidential Information except for copies which contain the same confidential marking as the original provided that any such copies shall be deemed Confidential Information.
(d) Upon any termination or expiration of this Agreement or Reelgood's request at any time, Customer shall immediately: (i) return to Reelgood all Confidential Information (including all copies thereof) in Customer's or its Representatives’ possession or control; (ii) destroy all copies of any analyses, computations, analyses, summaries or other written or tangible material prepared by or for the use of Customer or any of its Representatives containing or reflecting any of the Confidential Information; and (iii) provide Reelgood a written certification stating that all such Confidential Information has been returned or destroyed as required hereunder.
(e) Without limiting the foregoing, upon any termination or expiration of this Agreement, all rights and licenses granted hereunder shall immediately terminate and Customer will no longer have the right to access, use, reproduce, perform, or display any Reelgood Materials and Customer shall promptly cease using all Reelgood Materials and shall destroy or purge from its online and offline storage all copies of Reelgood Data (including cached versions and any component of or information derived from Reelgood Data) that are in Customer’s possession or control.
(f) If Customer or any of its Representatives is required by law to disclose Confidential Information of the Reelgood, Customer or its Representative, as applicable, may do so only to the extent reasonably necessary to comply with the requirements of law, legal process (including without limitation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) or valid order of a court competent jurisdiction; provided that the such party notifies the Reelgood prior to making any such disclosure in order to permit the Reelgood to reasonably seek confidential treatment of its Confidential Information.
5. Evaluation of Reelgood Data and Further Restrictions.
(a) Reelgood in its sole discretion may make Reelgood Data available to Customer for evaluation as set forth in this Agreement. The method of providing Reelgood Data to Customer shall be in Reelgood’s discretion and may include a variety of access methods (such as API trial keys, FTP, HTTP, cloud access) or delivery via electronic mail or a physical medium.
(b) Subject to Customer’s compliance with the terms of this Agreement, Reelgood grants Customer a non-exclusive, non-sublicensable, revocable, non-transferable, limited license to use the Reelgood Materials provided by Reelgood solely during the term of this Agreement at locations controlled by Customer or, in the case of Customer employees working from home, controlled by such employees, solely for purposes of performing the Evaluation.
(c) Without limiting the terms of Section 4(a), all use of the Reelgood Materials (in whole or in part) by Customer shall be subject to the following further restrictions: Customer shall not (i) make available, transfer or provide the Reelgood Materials to, or use the Reelgood Materials on behalf of, any third party; (ii) apply to or process the Reelgood Data utilizing artificial intelligence (AI) or machine learning; (iii) modify, reuse, disassemble, decompile, reverse engineer, or otherwise translate the Reelgood Materials; (iv) modify the Reelgood Materials or incorporate any portion of the Reelgood Materials into or with any Customer or third-party content or materials, or create a derivative work of the Reelgood Materials; or (v) remove any copyright or other proprietary notices from the Reelgood Materials or any copies thereof.
(d) Reelgood reserves all rights in and to the Reelgood Materials and intellectual property rights therein not expressly granted hereunder. Customer acknowledges and agrees that the rights granted to Customer herein do not constitute a sale of the Reelgood Materials or any portions or copies thereof. Customer agrees not to challenge Reelgood’s ownership or rights in and to the Confidential Information and Reelgood Materials, including without limitation, all copyrights, and other intellectual property rights.
6. Survival. Customer’s obligations with respect to the Confidential Information will expire 2 years from the termination or expiration date of this Agreement. Notwithstanding any termination or expiration of this Agreement, Customer’s obligations hereunder shall survive and continue in effect with respect to any Confidential Information that is a trade secret for survive for so long as the information remains a trade secret under applicable law. This Section 6 will survive the termination of this Agreement.
7. No Warranties. Customer acknowledges and agrees that Reelgood is not making any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and Reelgood shall have not have any liability to Customer, its Representatives or any third party resulting from their use of the Confidential Information.
8. LIMITATION OF LIABILITY. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL REELGOOD, OR ITS LICENSORS OR DATA SOURCES, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE REELGOOD MATERIALS OR OTHERWISE OUT OF THIS AGREEMENT. IN NO EVENT WILL REELGOOD’S AGGREGATE LIABILITY HEREUNDER EXCEED $1000, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. NOTHING IN THIS SECTION SHALL BE TAKEN AS EXCLUDING ANY LIABILITY OF A PARTY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
9. Jurisdiction; Venue; Injunctive Relief.
(a) This Agreement shall be governed by and construed in accordance with the laws of California without regard to any choice of laws rules or principles that would result in the application of any other laws. In the event any suit, action or proceeding is brought by either party with respect to this Agreement, such action, suit or proceeding shall be brought in a state or federal court located in San Francisco, California and both parties hereby accept and submit to the exclusive jurisdiction of such courts. In addition, both parties hereby irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of this Agreement or any judgment entered by any court in respect of any part thereof brought in California and hereby irrevocably waive any claim that any suit, action or proceedings brought in San Francisco, has been brought in an inconvenient forum. Except with respect to damages resulting from either party’s negligence, willful misconduct, or fraud, in no event shall either party be liable to the other party, or to any third-party for: (1) any amounts representing loss of profits or revenues howsoever arising; or (2) special, indirect, punitive, incidental, or consequential damages even if advised of the possibility of same.
(b) Customer agrees that its obligations provided in this Agreement are necessary and reasonable in order to protect Reelgood and its business, and Customer expressly agrees that monetary damages would be inadequate to compensate Reelgood for any breach by the Customer, or its Representatives, of its covenants and agreements set forth in this Agreement. Accordingly, Customer agrees that, in the event of a breach or threatened breach of this Agreement by Customer or its Representatives, Reelgood is entitled to require specific performance of all acts and undertakings required hereunder and to seek injunctive and other equitable relief to prevent any further violation of the terms of this Agreement without the necessity of posting a bond. Such remedy is not the exclusive remedy for any breach or threatened breach of this Agreement, but is in addition to all other rights and remedies available at law or equity.
(a) Any notice, request, demand or other communication required or permitted hereunder shall be in writing and delivered by mail, courier, or electronic mail to the parties’ respective addresses or email addresses, effective on receipt, as verified by written or automated receipt or by electronic log (as applicable):
Email address for Reelgood: email@example.com
(b) This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Neither this Agreement nor any of the terms hereof may be amended, supplemented, waived or modified except by an instrument in writing signed by both parties. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by either party (whether by operation of law or otherwise) without the prior written consent of the other party, and any purported assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inures to the benefit of the parties, their permitted successors and assigns.
(c) No failure or delay on the part of either party in exercising any right, power or privilege hereunder and no course of dealing between or among the parties shall operate as a waiver of any right, power or privilege hereunder. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any party to any other or further action in any circumstances without notice or demand