This Nondisclosure Agreement (the “Agreement”), effective as of the date You accept this Agreement (“Effective Date”), is by and between ZeniMax Media Inc., with offices at 1370 Piccard Drive, Rockville, Maryland 20850 on its own behalf and on behalf of its affiliate, ZeniMax Online Studios LLC, with offices at 200 International Circle, 2nd Floor, Hunt Valley, Maryland 21030, both Delaware companies, (collectively “ZeniMax”), and You, an individual, as a playtester (“You” or “Reviewer”), relating to any and all content pertaining to the Game (defined below).
ZeniMax is engaged in the creation and development of an unreleased massively multiplayer online game entitled The Elder Scrolls® Online (“TESO” or the “Game”). If You are selected to be a Reviewer, Your confidential access to and participation in the Beta Trial are subject to the following terms and conditions, which constitute a binding legal agreement between You and ZeniMax, as of the Effective Date.
1. Representations of Reviewer. To confirm Your agreement, You must click on the “I Accept” button at the end of this Agreement. By clicking the “I Accept” button, You represent and warrant to ZeniMax that (i) You have read this Agreement prior to accepting and are fully familiar with its contents; (ii) You are 18 years of age or older as of the Effective Date; (iii) You have not, and will not in the future, enter into any agreement or understanding, whether written or oral, with any third party that impedes or conflicts with the performance of Your obligations set forth in this Agreement; and (iv) Your representations are true and correct as of the Effective Date. If You do not so agree or if You cannot make such representations, You will not be permitted to playtest the Game.
2. Role of Reviewer.
(a) If selected, You will be eligible to participate in a Beta Trial of the Game (“Beta Trial”) and play the Game as part of the Beta Trial pursuant to all of ZeniMax’s instructions and requirements, and provide comment to ZeniMax from the perspective of a consumer concerning the features or related elements of the Game. You agree to perform such tasks as ZeniMax shall direct in a timely manner as requested by ZeniMax.
(b) You warrant that You will not commercially exploit or otherwise deal with any ZeniMax intellectual property, trademark, copyright, or trade secret that is embedded in the Game or part of the Beta Trial. You shall make no use of, nor derive any benefit, or permit others to make any such use or derive any such benefit from the Game, Confidential Information (defined below), directly or indirectly, unless expressly authorized in writing by ZeniMax.
(c) You acknowledge the reliance of ZeniMax on Your honest, good faith, and unbiased commentary, suggestions, and evaluations of the Game. You represent and agree that You will act at all times with the highest ethical standards.
(d) You acknowledge that ZeniMax may request suggestions, feedback, commentary, ideas, concepts, inventions, characters, plots, titles, designs, art work, programs, programming techniques, or other statements (collectively, “Feedback”) from You concerning the Game or other Confidential Information. You acknowledge that any feedback that You may suggest, disclose, or present to ZeniMax during the term of this Agreement, expressly including but not limited to any and all patent, copyright, trademark, and trade secret rights related thereto, is original, voluntary and automatically shall become the property of ZeniMax and its designees. You acknowledge and agree that ZeniMax shall be free to disclose and use Your Feedback as it sees fit without any obligation of any kind to You. You hereby assign and agree to assign ZeniMax all right, title, and interest in and to, and hereby waive and agree not to exercise any “moral rights” to, all Feedback provided to ZeniMax that relate to the Beta Trial (including the Game and Confidential Information). You hereby constitute and appoint ZeniMax as Your attorney-in-fact for the purpose of executing such documentation. The rights of ZeniMax pursuant to this subparagraph constitute a power coupled with an interest, with rights of substitution and delegation, and are irrevocable.
(e) You acknowledge that all tasks that You may undertake for or on behalf of ZeniMax relating to the Beta Trial, whether at the request of ZeniMax or otherwise, shall be performed without monetary or financial compensation or benefit of any kind, and without any expectation of such financial compensation or benefit now or in the future.
(f) You agree that You are acting as an independent contractor. Nothing contained in this Agreement shall in any way constitute or establish an intention of any association, partnership, or joint venture between the parties hereto. Neither party shall have the right, power, or authority to make any representation or warranty on behalf of, or to assume or create any obligation, whether express or implied, binding on, the other party in any manner whatsoever.
3. You acknowledge and agree that all intellectual property associated with or relating to the Beta Trial, Confidential Information (including the Game), software, techniques, know-how, processes and methodologies (including but not limited to test results, statistical information, and other information generated from or created during the undertaking of the Beta Trial) are and shall remain the absolute property of ZeniMax. Nothing in this Agreement shall be construed in any way to grant You any license, right, interest, or expectation whatsoever, express or implied, under any patent, trademark, copyright, trade secret, know-how or technology that ZeniMax may now have or hereafter have or generate relating to the Beta Trial, Confidential Information, this Agreement, other ZeniMax games or ZeniMax affiliates’ game or property that may be disclosed hereunder. Nothing in this Agreement shall be construed in any way to create or confer a right, interest, or expectation of You in or to any tangible or intangible property or property right of ZeniMax, or in or to any Confidential Information, as hereinafter defined, which may be disclosed by ZeniMax to You.
4. Nondisclosure of Confidential Information. You acknowledge that
ZeniMax, through the investment of significant time, effort, and
expense, is providing You confidential and/or proprietary trade
information, intellectual property, business information or materials as
part of the Beta Trial and that ZeniMax wishes to maintain the
confidentiality of its Confidential Information. As a material
inducement to ZeniMax to enter into this Agreement and to permit You
access to participate in the Beta Trial, You hereby expressly represent
and agree that You will not disclose, nor make any use of, or benefit
from, directly or indirectly, the Confidential Information of ZeniMax.
(a) “Confidential Information” as used in this Agreement shall mean any and all information or material, of every kind and form, in electronic or tangible form, relating to the Beta Trial, Game or any other ZeniMax products and services which are made available to You by ZeniMax under this Agreement, whether or not designated as Confidential Information by ZeniMax. Confidential Information includes, but is not limited to, all information relating to the Beta Trial, Your selection as a Beta Trial participant, the Game (including but not limited to information and ideas relating to the Game, software, software code, designs, graphics, rules, playing strategies, artwork, visual depictions, plot, theme, settings, characters, characterizations, skills, emails, screenshots, marketing emails, marketing and promotional plans, current, future or proposed products or services of ZeniMax, written or printed documents, announcements or prereleases, product samples, artwork, graphics, promotional and/or marketing items), the Beta Trial forums and other private ZeniMax forums, business and/or trade secrets, testing protocols, processes, and standards relating to the Game and/or associated products or services of ZeniMax.
(b) For the purposes of this Agreement, the term Confidential Information does not include information or material that You can demonstrate by written record (i) was known to You and in Your possession, without restriction as to use or disclosure prior to the disclosure by ZeniMax; or (ii) is obtained, without restriction as to use or disclosure, from a source lawfully in possession of the information and having the right to disclose it; or (iii) is independently developed by You without use or knowledge of ZeniMax’s Confidential Information.
(c) You agree to hold in strictest confidence and not to disclose or reveal to any person or entity Confidential Information without the express prior written consent of a duly authorized representative of ZeniMax. In particular, You must not discuss the Beta Trial with anyone associated with a competing videogame, any videogame publisher or developer, any news or information service (whether television, magazine, online, newspaper or otherwise), or review, report, online blog, or in any online forum or chat room, other than the official Beta Trial forum or specifically designated private ZeniMax forum. Except as expressly authorized by ZeniMax, You additionally agree not to use any of the Confidential Information for any purpose whatsoever or to disclose any of the Confidential Information at any time to any third party by direct or indirect means. Without limiting the generality of the foregoing, You agree that any reports or announcements concerning Confidential Information which are not made or authorized by ZeniMax, and which appear prior to ZeniMax’s official disclosure of such Confidential Information, shall not release You from Your obligations hereunder with respect to such Confidential Information. It shall be Your duty to secure the authorization of ZeniMax in the event of any reasonable doubt on Your part regarding the status of disclosed Confidential Information.
(d) You shall not copy, alter, modify, disassemble, reverse engineer, or decompile the Game, Confidential Information, or any materials received during the Beta Trial without the prior written consent of ZeniMax. If such a prohibition is not permitted pursuant to applicable law, You shall provide ZeniMax written notice prior to undertaking any such reverse engineering, and shall give ZeniMax a reasonable amount of time to provide any interface information required by law prior to commencing such reverse engineering. At ZeniMax’s request or upon completion, You agree to promptly return to ZeniMax any and all of these materials and all copies and notes that may have been made.
(e) Nothing contained in this Agreement shall be construed to create any obligation on the part of ZeniMax to disclose any Confidential Information to You. ZeniMax reserves the right to suspend, restrict, or cancel the Beta Trial, and/or may terminate Your participation in the Beta Trial at ZeniMax’s sole and absolute discretion.
6. No Warranty. ZENIMAX MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, FUNCTIONALITY OR PERFORMANCE OF THE BETA TRIAL, GAME, CONFIDENTIAL INFORMATION, OR ASSOCIATED SERVICES AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. ZENIMAX FURTHER DISCLAIMS ALL LIABILITY FOR ANY SETTINGS SELECTED BY YOU AND FOR ANY PROGRAMS, FILES, OR CONTENT ON OR IN YOUR COMPUTER, SYSTEMS, OR COMMUNICATIONS. ZENIMAX EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE CONFIDENTIAL INFORMATION, BETA TRIAL, OR ASSOCIATED SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
7. During the Beta Trial, ZeniMax may modify the Game software, forums, and related content and services automatically and without notice. You acknowledge and agree that software and/or content may be modified by ZeniMax and that modifications may cause a loss of data or content or loss of function or utility in or on Your hardware. You hereby acknowledge and agree that ZeniMax may make all such modifications and that, to the extent permitted by applicable law, is not liable for any loss of data, content, function or utility. You WAIVE protections afforded by statute or law, and agree that ZeniMax is not liable for nor has control over Your actions; Your account and/or sub-account(s); any loss of data, content, function or utility; or any behavior of other testers participating in the Beta Trial. You further release, discharge, and hold harmless ZeniMax, its affiliates, and each of its and their respective officers, directors, employees, stockholders, members and agents from any and all claims, losses, causes of action and liabilities of any kind arising out of or relating in any way to Your participation in the Beta Trial.
8. Limitations of Liability. ZeniMax shall have no liability to YOU for any loss or damage whatsoever caused or arising out of the provision of Confidential Information, Beta Trial access, or other related services, whether due to ZeniMax’s negligence or failure to perform or FOR any other reason. In no event SHALL ZeniMax’s aggregate liability related to this Agreement, regardless of legal theory, exceed $100.00.
9. Remedies of ZeniMax. The parties agree that Your obligations pursuant to this Agreement are of a unique character and that the material breach of any obligation by You provided in this Agreement will cause ZeniMax irreparable injury. Therefore, ZeniMax shall be entitled to immediate equitable relief to prevent such injury and/or damage. All remedies hereunder, and all remedies provided at law, shall be deemed cumulative and are not exclusive.
10. Term and Termination. This Agreement will remain in effect unless and until terminated by ZeniMax with or without cause at any time. The obligations of confidentiality hereunder with respect to any and all Confidential Information shall survive any termination of this Agreement.
11. Continuing Effect. The provisions of Sections 1, 2(b-d inclusive), 3, 4, 6-14 inclusive shall survive termination of this Agreement.
12. Entire Agreement; No Waiver; Assignment and Miscellaneous. This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof. No prior or present agreements or representations regarding the subject matter hereof shall be binding upon the parties hereto unless incorporated in this Agreement. The paragraph headings are intended for reference convenience only and will not be of any effect in construing the meanings of the paragraphs. Any waiver or modification of this Agreement shall not be valid unless in writing and signed by ZeniMax. In the event any provision of this Agreement is determined by a court of competent to be void, invalid, or otherwise unenforceable, the remainder of the Agreement will continue in full force and remain in effect according to its stated terms and conditions. This Agreement shall bind and inure to the benefit of Zenimax and its successors and assigns. This Agreement is personal to You and You shall not sublicense, subcontract, assign, transfer, or convey Your rights hereunder.
13. Attorney's Fees. In the event that ZeniMax commences an action to enforce any provision of this Agreement against You, then ZeniMax in such action (including any appeals), shall be entitled, in addition to all other applicable remedies, to payment of the costs of suit and the reasonable attorney's fees incurred by ZeniMax.
14. Governing Law.
Applicable to residents of the United States, its Territories and Possessions, North and South America:
This Agreement and all disputes arising out of or related to this Agreement (or any part thereof) shall be governed by, and any arbitration hereunder shall apply, the laws of the State of Maryland, USA, excluding its conflicts of laws principles. Any dispute, controversy or claim arising out of or relating to this Agreement (or any part thereof), including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted by three (3) arbitrators, one to be appointed by ZeniMax, one to be appointed by You and a third being nominated by the two arbitrators so selected or, if they cannot agree on a third arbitrator, by the President of the American Arbitration Association (“AAA”). The arbitration shall be conducted in English and in accordance with the then-current arbitration rules of the AAA applicable to the dispute (such as, for example, the AAA international rules if You are not a United States resident). The arbitration, including the rendering of the award, shall take place in Rockville, Maryland USA, and Rockville, Maryland USA shall be the exclusive forum for resolving any such dispute, controversy or claim. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction. Notwithstanding anything contained in this Paragraph to the contrary, ZeniMax shall have the right to institute judicial proceedings against You or anyone acting by, through or under You, in order to enforce ZeniMax’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Applicable to all other residents:
ENGLISH LAWS GOVERN THIS AGREEMENT, REGARDLESS OF EACH COUNTRY’S CHOICE OF LAW PRINCIPLES, WITH A FORUM AND VENUE OF LONDON, ENGLAND. This Agreement may be modified only by a written instrument specifying the modification and executed by both parties. In the event that any provision of this Agreement shall be held to be unenforceable, such provision shall be enforced to the greatest possible extent, with the other provisions of this Agreement to remain in full force and effect.