PARTICIPATION AGREEMENT
THIS AGREEMENT (hereinafter, “Agreement”) is made as of the date indicated herein
below, by and between the individual identified herein below as “Participant” (hereinafter
referred to as the "Participant"), and Condé Nast International. (hereinafter, Condé Nast
International or CNI), a corporation having its corporate headquarters at 25 Maddox Street
London W1S 2QN United Kingdom, Telephone: +44 20 7499 9080
WHEREAS, the Participant wishes to participate on a voluntary basis in the “Condé Nast
International Hackathon” , an event (hereinafter, the “Event”), to be held at Condé Nast
International College of Fashion and Design premises on November 22 and 23, 2014, in which
participants would be given a limited and continuous period of time, approximately 36 hours, in
which to conceive, create, design, and develop software code and entertainment concepts,
services, and/or products for consumers or internal Condé Nast employees (hereinafter,
collectively, the “Concept”), and to then disclose any such Concept to Condé Nast International
for evaluation of its marketing and sales potential and its commercial viability;
WHEREAS, each party hereto wishes to exchange information that may be proprietary
to them and wishes to treat certain aspects of such information as confidential; and
WHEREAS, Participant wishes to give Condé Nast International an exclusive first option
for an exclusive sale and/or worldwide license for the use of any such Concept in connection
with the development of an application etc. used by Condé Nast International, its affiliates,
distributors, and licensees; it is therefore
AGREED, as follows:
1.
All information created or disclosed under this Agreement, including but
not limited to any information related to the Concept, shall be clearly designated or labeled as
confidential (or with words clearly to that effect) at the time of disclosure or, with respect to any
oral disclosures, within ten (10) days thereafter; whether or not such the information is so
identified, all information disclosed will be referenced herein as “Information”). It is specifically
agreed that the disclosure of Information hereunder by either party to the other shall not be
construed as the grant of a license for the use thereof, or as the transfer of any right of
ownership in such Information or other intellectual property rights whatsoever. Each party shall
retain all intellectual property rights in any Information that it may disclose to the other party,
including but not limited to any copyrights in any such Information, any trademark rights in any
such Information, any trade secret rights in such Information, any patents pertaining to such
Information, and any right that the disclosing party may have to seek patents related to such
Information. Condé Nast International reserves the right to require that any description be
supplemented by additional written materials or otherwise modified to more accurately describe
the unique qualities, if any, of the concept disclosed. Condé Nast International has no
obligation to compensate the Participant for any loss or damage which may occur to such
materials in storage or shipment.
2.
Notwithstanding anything herein to the contrary, with respect to
disclosures by the Participant to Condé Nast International of information relating to any
characters (including the appearance thereof, as well as any unique and identifying combination
of character traits assigned thereto), style guides, music, scripts, screenplays, storylines, and/or
plot outlines (referenced herein collectively or separately as “Materials”), Condé Nast
International assumes no obligation of confidentiality or in any other respect with regard to
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Materials, and such materials disclosed by the Participant to Condé Nast International related to
such Materials shall not constitute “Information,” regardless of whether such material has been
labeled or otherwise identified as confidential.
3.
The receiving party agrees, during the period of confidentiality specified in
Paragraph 13 (2 years), to handle, preserve, and protect Information with the same
degree of care which the receiving party normally affords its own confidential
information including taking efforts (equivalent to those efforts which the receiving party
uses to protect its own confidential information) to avoid disclosure to any third party.
Without limiting the foregoing, Condé Nast International may disclose such Information, as well
as any Materials, to its officers, directors, agents, attorneys, and employees (who shall be
subject to the same obligations of confidentiality as Condé Nast International) for the purpose of
enabling it to determine its interest in licensing the Concept from the Participant. Participant
agrees to treat any Information disclosed by other participants in the Event, and to which
Participant may be exposed during the course of the Event, as the Information of Condé Nast
International for purposes of this Agreement, regardless of whether Participant is given a written
summary of any such Information to which Participant may be exposed.
4.
The receiving party acknowledges that, during the period of
confidentiality, as specified by Paragraph 13 (2 years), it will not Use Information for
Commercial Purposes without the consent of the disclosing party. "Use" shall mean conscious
consideration and implementation of the Information in connection with development and/or
design of a product or service. "Commercial Purposes" shall mean the Use of the Information in
products or services that the receiving party intends to offer for sale or license. Furthermore, at
no time, either during the period of confidentiality or thereafter, shall the Participant have the
right to copy or otherwise utilize any Materials or other Information that Condé Nast International
might suggest in an attempt to help the Participant develop the Concept, absent Condé Nast
International’s express prior written permission.
5.
Participant acknowledges and agrees that:
Condé Nast International and its affiliates and their licensees have developed,
manufactured and distributed, and will continue to develop, manufacture and/or
distribute, numerous product lines, including but not limited to applications,
under a variety of brand names, in any and all media and through any and all
distribution channels now known or hereinafter devised or developed
(collectively, the “Condé Nast International Products”);
(ii) Condé Nast International and its affiliates and their licensees have developed and
will continue to develop, and/or third parties have submitted and/or disclosed to
Condé Nast International and will continue to submit and/or disclose to Condé
Nast International, a great many ideas pertaining to the Condé Nast
International Products (collectively, the “Condé Nast International Product
Ideas”);
(iii)
Any Condé Nast International Product Ideas that Participant submits and/or
discloses to Condé Nast International and/or its affiliates may be similar or
identical to Condé Nast International Product Ideas that have been or may be
developed by Condé Nast International and/or its affiliates, or that have been
submitted and/or disclosed by third parties to Condé Nast International and/or its
affiliates;
(iv)
The adoption by Condé Nast International of any such Condé Nast International
Product Ideas from such an alternative source (instead of the Information or
(i)
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Materials submitted by the Participant) may be due (without limitation) to market
conditions at the time at which such alternative submission is received by Condé
Nast International and/or the positioning of the similar concepts suggested by
the party making the submission, as well as to the relative inherent merit of the
Condé Nast International Product Ideas received from such an alternative
source and any Information, Materials, and any such similar submissions
received from Participants, and that, in such event, Condé Nast International
and/or its affiliates would be free to develop and exploit any Condé Nast
International Product Ideas, whether developed internally by Condé Nast
International and/or its affiliates or by a third party licensor, without any
confidentiality restrictions or any confidentiality obligation whatsoever to
Participant;
(v)
Without limiting the foregoing, Condé Nast International shall be permitted to
disclose Information of the Participant to its representatives, agents, contractors,
and customers as may be necessary to evaluate such issues as manufacture,
marketing, promotional, and sales potential therefor.
(vi)
Participant hereby waives any claim, action, and/or suit (collectively,
“Claims”) against Condé Nast International, and/or Condé Nast International’s
affiliates, distributors, customers, and/or licensees, and/or their respective
officers, directors, employees, agents, and/or assigns, relating to any
alleged use or misappropriation by Condé Nast International of Concepts,
including but not limited to any app, concepts, ideas, innovations,
modifications, or improvements disclosed to Condé Nast International as
part of the Concept, except insofar as such Claims involve alleged
copyright infringement by Condé Nast International. Moreover, Participant
hereby waives and forever discharges and releases Condé Nast
International, its affiliates, distributors, customers, and licensees, and
their respective officers, directors, employees, agents, and assigns, from
and against, all Claims related to any Materials; and
(vii)
The Event will be a long and mentally/physically exhausting and strenuous
event, requiring physical and mental endurance for all participants, and
Participant acknowledges and voluntarily assumes the obvious risks to health
associated with any such activities. Furthermore, Participant hereby waives
any and all Claims for ordinary negligence that might otherwise be
brought based on his or her participation in the Event, including but not
limited to actions for premises liability and/or negligent supervision.
(viii)
Participant will not, unless the option has lased or the Concept been released
back to the Participant under cluse 8 below, disclose the Concept to any third
party during the Review Period (120 days), as defined herein below, nor at any
time during the Review Period (120 days) offer any third party a license, or an
option for a license, to use the Concept.
6.1
The obligations of the receiving party with respect to Information as set forth in
this Agreement are not applicable to any Information which:
(A) was demonstrably known to the receiving party prior to the date of the
disclosure thereof to the receiving party by the disclosing party; or
(B) was known to the public or generally available to the public prior to
the date of the disclosure to the receiving party by the disclosing party; or
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(C) becomes known to the public or generally available to the public
subsequent to the date of disclosure to the receiving party through no act of the
receiving party contrary to the obligations imposed by this Agreement; or
(D) has not been described with specificity as required by Condé Nast
International pursuant to Paragraph 1 hereof, if applicable; or
(E) is or was disclosed by the disclosing party to any third party without an
obligation to maintain confidentiality; or
(F) is or was independently developed by the receiving party or one of its
subsidiaries, divisions, or parent or affiliated companies without any breach of
this Agreement; or
(G) is received in good faith by the receiving party from a third party and is not
subject to an obligation of confidentiality owed by said party to the disclosing
party; or
(H) was not duly identified in writing as confidential pursuant to the
requirements of Paragraph 1 above.
6.2
Failure by the receiving party to disclose the existence of any of the conditions
listed in A through H, above, shall not be deemed a representation that such conditions do not
exist or be deemed a waiver of the right to assert the existence of such conditions. Participant
understands and acknowledges that although one employee, group, or division of Condé Nast
International is legally entitled under this Agreement to share the Information with another
employee, group, or division, there shall be no presumption of such sharing and, specifically no
presumption against independent development solely by virtue of prior disclosure of Information
to one or more employees, groups, or divisions of Condé Nast International.
6.3
A disclosure shall not be deemed to violate this Agreement if it is:
(A) disclosed by the receiving party, or by a person(s) for whom the receiving
party is responsible, without the receiving party's informed authorization despite
the exercise of the degree of care which the receiving party affords its own
confidential information; or
(B)
required to be disclosed by judicial or governmental action; or
(C) disclosed in a judicial or governmental proceeding subject to a protective
order.
7.1
The Participant represents and warrants that:
(A) it is the sole owner of all Information disclosed by the Participant to Condé
Nast International, and its disclosure thereof or any grant of rights thereto to
Condé Nast International shall not violate the rights of any third party; or that
(B) if a third party has ownership of or a claim to all or any part of the
Information, then Participant shall fully and immediately disclose to Condé Nast
International any affiliation of Participant with any third party and, by virtue of an
arrangement with such third party, Participant has the unqualified and exclusive
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right to make the disclosure of same pursuant to this Agreement, and the third
party in interest has been informed of the terms of this Agreement and agrees to
be bound by them, and Participant’s disclosure of such Information or any
exclusive grant of rights thereto to Condé Nast International shall not violate the
rights of any third party; and that
(C) in any event, Participant has the sole control over the disposition of the
Information by licensing same or otherwise, and that it has the sole control over
enforcement of rights to the Information as by litigation or otherwise.
(D) Participant is at least eighteen (18) years of age and is of good mental
and physical health and sufficient physical fitness to participate in the Event.
7.2
Notwithstanding anything herein to the contrary, it is hereby agreed that, except
as to disclosures made to third parties referenced in 7.1(B) above, Participant shall not disclose
to any third party during or after the Term any terms of this Agreement or the terms of any
proposed or executed license agreement or of any other proposed or executed agreement with
Condé Nast International, nor any information concerning Condé Nast International’s product
concepts, line, or plans or Condé Nast International’s other business plans. If Participant
violates the terms of this Paragraph, all of Condé Nast International's obligations hereunder
shall cease forthwith and be void and of no effect.
8.
Participant agrees that Condé Nast International has an exclusive first option
over any Concept. Within 10 days of the end of the Event, Condé Nast International will notify
the Participant if it does not want to exercise the option, in which case the option lapses and the
Concept will therefore have been released back to the Participant. If the Participant is not so
notified of release of the Concept, Condé Nast International and the Participant will enter into
discussions around the execution of a license or other agreement for Condé Nast International
use and exploitation of the Concept, and Participant and Condé Nast International will negotiate
in good faith for the terms of a mutually acceptable agreement governing the use of the Concept
by Condé Nast International or a subsidiary or affiliate designated by Condé Nast International.
The parties will have a period of one hundred twenty (120) days following the end of the Event
to conclude such negotiations, unless expended by mutual agreement ("the Review Period"). If
Condé Nast International expressly and unequivocally rejects the proposed Concept during the
Review Period, or fails to notify Participant of its wish to enter into an agreement for use of the
Concept by the end of the Review Period, or the parties hereto are unable after negotiation in
good faith to conclude an agreement for the use of the Concept within the Review Period, the
option lapses and Participant may exploit the Concept independently including by entering into
an agreement for use thereof with a third party, subject to that being on terms no more favorable
to the third party than those offered to Condé Nast International. Condé Nast International shall
have the full and unfettered right, upon reasonable notice and during all normal business hours,
to audit the terms and conditions of any such third party license in order to confirm Participant’s
compliance with the foregoing. For the avoidance of doubt, Information disclosed by Condé
Nast International will in any event remain confidential for the Confidentiality Period of 2 years.
9.
In the event of any breach or violation of Paragraph 7 hereof or the confidentiality
provisions herein, the Participant shall defend, indemnify, and hold completely harmless Condé
Nast International, its subsidiaries, divisions, groups, or parent or affiliated companies, as well
as their respective officers, directors, employees, attorneys, and agents, from any claim, loss, or
damage (including reasonable attorneys’ fees) against or suffered by any or all of them brought
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or caused by any party and related to or arising out of any submission made under this
Agreement.
10.
The parties do not intend that any agency or partnership relationship be created
between them by this Agreement. This Agreement is solely for the purpose of an exchange of
Information, not for a transfer of rights therein nor to create a licensing relationship. Participant
acknowledges that the nonrefundable registration fee that he or she paid upon
registering for the Event, in the amount of U.K £ 10.00 was paid to a third party organizer,
AngelHack, to cover operational costs and expenses related to the Event, not to Condé
Nast International. Participant understands and acknowledges that, nothwithstanding
such payment to AngelHack, Condé Nast International shall be under no obligation
whatsoever to utilize the Concept in any manner or form, or to enter into any agreement
with Participant to provide compensation for disclosure of the Concept to Condé Nast
International.
11.
This Agreement contains the entire understanding between the parties relative to
the protection of the Concept and any Information that may be exchanged, and supersedes any
prior or collateral related communications and understandings, whether written or oral, between
the parties. The terms of this Agreement shall remain in effect notwithstanding any specific
legend or statement associated with any particular Information exchanged, and in the event of a
conflict between the terms of this Agreement and any such legend or statement, the terms of
this Agreement will control. Moreover, no subsequent agreement between the parties hereto
concerning the protection of information nor any termination or purported modification of this
Agreement shall have effect upon the parties unless such agreement or modification is in
writing, signed by a duly authorized officer of Condé Nast International and an authorized
representative of Participant and specifically makes reference to this Agreement.
12.
This Agreement shall extend from the date of execution hereof until the end of
the Confidentiality Period (the “Term”).
13.
The obligation of confidentiality imposed by this Agreement shall extend, with
respect to each item of Information, for two (2) years from the date of the initial disclosure of any
portion of such Information (the “Confidentiality Period”); provided, however, that the foregoing
shall not be construed as preventing Condé Nast International from disclosing a portion of the
Information to the public at any time after entering into a binding agreement with Participant for
the use of that portion of the Information, and it is recognized that the terms of this Agreement
may be superseded only by the express terms and conditions of any such agreement. Upon the
expiration of the stated period Condé Nast International shall have no further obligations to
Participant with respect to such Information.
14.1 This Agreement shall be governed by and construed in accordance with the laws
of England and Wales, and the parties submit to the exclusive jurisdiction of the English Courts.
14.2 If any provision of this Agreement is held by any court or other competent
authority to be void or unenforceable in whole or in part, this Agreement shall continue to be
valid as to the other provisions of it and the remainder of the affected provision.
IN WITNESS WHEREOF, the Participant has agreed to the terms and conditions of this
Agreement as of the day and year first above written.
Signed:
____________________________________
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Print Name:
___________________________________ (“Participant”)
Address:
________________________________________________________________
Date:
____________________________
E-mail:
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