1 CONFIDENTIAL – The Media Zoo



This Mutual Confidentiality and Non-Disclosure Agreement (this “Agreement”) is made and entered into as of the ___ day of __________, 2015, by and between The Media Zoo. (“TMZ”) and _____________________________________ (“Contractor”). Each of TMZ and Contractor is sometimes referred to as a “Party” and, collectively, the “Parties”.

WHEREAS, Each Party, in preparation for or in connection with a possible business transaction or series of business transactions with the other Party (the “Transaction”), has or will receive Confidential Information (as defined below); and

WHEREAS, In the course of due diligence and exploring, discussing and negotiating the Transaction, each Party may request of, and may disclose to, the other Party certain information, data, documents, analyses, compilations, studies, records, proposals, correspondence, reports and other materials concerning the other Party’s business, affairs that the Disclosing Party (as defined below) considers to be proprietary and confidential, and that it therefore desires to protect from disclosure to other parties;

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the Parties hereto agree as follows:

  1. When used herein, the following capitalized terms shall have the following meanings:

(a) “Confidential Information” shall mean all information, data, documents, analyses, compilations, studies, records, proposals, correspondence, reports and other materials concerning the Disclosing Party’s business or affairs that Disclosing Party provides to Receiving Party pursuant to this Agreement, including inventions, designs, technological developments and processes, “know-how,” operational methods, financial information (including information concerning revenues, profits and profit margins), business operations, business relationships, business strategy, past, present or future product or service offerings, plans for future developments, or other tangible material containing such information, shall be deemed Confidential Information without the Disclosing Party being obligated to specifically identify, by notice or any other action, any information or material as to which the protection of this Agreement is desired. Notwithstanding the foregoing Confidential Information shall not include information that: (i) at the time of disclosure is generally available to the public or the Disclosing Party’s business community; or (ii) must be disclosed pursuant to applicable law or the order of a court of competent jurisdiction or the order of a governmental regulator with jurisdiction over the Receiving Party, its subsidiaries or their respective assets; or (iii) following disclosure, become generally available to the public or the Disclosing Party’s business community other than as a result of unauthorized disclosure by the Receiving Party or its Representatives; or (iv) can be shown by written documentation to have been received by the Receiving Party on a non-confidential basis from a third party lawfully possessing and lawfully entitled to disclose such material to the Receiving Party; or (v) can be shown by the Receiving Party to be in the Receiving Party’s rightful possession prior to disclosure by the Disclosing Party; or (vi) can be shown by the Receiving Party’s records to have been independently developed by the Receiving 2 CONFIDENTIAL – The Media Zoo.

Party without direct or indirect access to the Confidential Information provided by the Disclosing Party to the Receiving Party.

(b) “Disclosing Party” shall mean the Party disclosing any Confidential Information under this Agreement.

(c) “Receiving Party” shall mean the Party receiving any Confidential Information under this Agreement.

(d) “Representative” shall mean the shareholders, directors, officers, members, employees, subsidiaries, affiliates, (including, without limitation, financial advisors, attorneys, and accountants) of a Party.

  1. The Receiving Party agrees that all Confidential Information disclosed to it by the Disclosing Party (a) will be used solely for the purpose of evaluating its interest in entering into the Transaction with the Disclosing Party, (b) will not be disclosed to third parties without the prior written consent of the Disclosing Party, and (c) will be kept confidential by the Receiving Party and its Representatives at all times following such disclosures. However, the Receiving Party may disclose Confidential Information to the Receiving Party’s Representatives who need to know such information for the purpose of evaluating the Transaction between the Disclosing Party and the Receiving Party. The Receiving Party will inform all Representatives of (i) the confidential nature of such information and (ii) the terms of this Agreement and the obligation of confidentiality undertaken by the Receiving Party under this Agreement; the Receiving Party shall be responsible for disclosure of Confidential Information to such. Receiving Party may furthermore make any disclosure of Confidential Information as may be required by applicable law or legal proceedings, as provided in Section 4, and subject to compliance with the other terms of this Agreement applicable to such permitted or required disclosure.
  2. Subject to Section 4, and except as otherwise permitted by this Agreement, neither the Receiving Party nor the Disclosing Party, nor any their respective Representatives, will disclose to any person or entity without the other Party’s prior written consent: (a) the fact that TMZ and Contractor are or have previously been receiving, preparing or reviewing Confidential Information; (ii) the fact that TMZ and Contractor and their respective Representatives are or have previously been considering and evaluating the Transaction or that any discussions or negotiations concerning the Transaction are or have previously been taking place between TMZ or any of its respective Representatives, on the one hand, and Contractor or any of its respective Representatives, on the other hand; (iii) any of the terms, conditions or other facts with respect to the Transaction or such evaluation, discussions or negotiations, including the status thereof; or (iv) that this Agreement exists or was entered into (the above are collectively referred to as the “Transaction Facts”).
  3. In the event that the Receiving Party is requested or required by applicable law, regulation or legal process to disclose any of the Confidential Information or Transaction Facts, or in the event that either Party or its respective Representatives is so requested or required to disclose any of the Transaction Facts, the Party receiving the request or requirement to disclose will notify the other Party promptly (to the extent legally permitted) so that the other Party may seek a protective order or other appropriate remedy, or, in the other Party’s sole discretion, waive compliance with the terms of this Agreement. Each Party agrees not to, and agrees to cause its respective Representatives not to, oppose any action by such other Party to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that other Party waives compliance with the terms of this Agreement, the Party (or its Representatives) requested or required to make disclosure will furnish only that portion of the Confidential Information or Agreement Facts which it is legally required to

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disclose at that time and will exercise its reasonable efforts to obtain confidential treatment, to the extent available, for such Confidential Information or Transaction Facts.

  1. The Receiving Party acknowledges and agrees that all Confidential Information, and all physical embodiments thereof, are confidential to and shall be and remain the sole and exclusive property of the Disclosing Party. If either Party decides not to proceed with the Transaction, the Receiving Party may make and retain a copy of the Confidential Information (a) as required to satisfy legal or regulatory obligations, or (b) as archive copies on its disaster recovery and/or information technology backup systems (such copies will be destroyed upon normal expiration under such backup systems); provided, however, that a Party retaining such Confidential Information shall continue to be bound by the terms and conditions of this Agreement; the Receiving Party and all of its Representatives will otherwise, within ten (10) days of a written request from the Disclosing Party, either promptly return to the Disclosing Party or destroy all written Confidential Information, and will destroy any other written material to the extent containing any such Confidential Information (whether prepared by the Disclosing Party, the Receiving Party, or any Representatives thereof) and will confirm in writing that such actions have been taken. Except as provided above, neither the Receiving Party nor any of its Representatives will retain any copies, extracts or other reproductions in whole or in part of such Confidential Information, in whatever medium or format.
  2. Regardless of the outcome of any discussions between the Parties regarding the Transaction, all persons who receive Confidential Information pursuant to this Agreement shall continue to be bound by its terms and conditions upon the conclusion of such discussions.
  3. No license or other interest in Confidential Information shall be deemed to have been granted hereunder by the Disclosing Party to the Receiving Party or any affiliates thereof or the Representatives.
  4. Each Party agrees and confirms that the subject matter of this Agreement is unique, and that it may be impossible to measure the damages which would result to a Party from violation of the various agreements and covenants set forth herein. Accordingly, in addition to any other remedies which may be available under this Agreement or at law or in equity, each Party agrees that the other Party shall have the right to have all obligations, undertakings, covenants and other provisions of this Agreement specifically performed and shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance, and to prevent a breach or contemplated breach, of this Agreement.
  5. The Parties understand and agree that no contract or agreement providing for any Transaction shall be deemed to exist unless and until the Parties thereto execute and deliver a definitive agreement (a “Definitive Agreement”), and that unless and until a Definitive Agreement has been executed and delivered, there is no legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction except, in the case of this Agreement, for the matters specifically agreed to herein. No agency or partnership relationship is being created among the parties and their affiliates by entering into this Agreement.
  6. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns (including successive, as well as immediate, successors and assigns) of each Party hereto; provided, however, that this Agreement shall not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that TMZ may assign this Agreement, without consent, to any affiliate of TMZ.

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  1. Each Party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a waiver thereof or the exercise of any other right, power or privilege hereunder.
  2. Neither Party shall have any liability under this Agreement to the other Party or any of its Representatives resulting from any use of the Confidential Information in accordance with the terms of this Agreement, nor does either Party make any representation or warranty as to the accuracy or completeness of the Confidential Information.
  3. Unless terminated sooner, this Agreement shall expire automatically two (2) years after the Effective Date. Either Party may terminate this Agreement at any time by providing the other Party with ten (10) days written notice. Provided, however, that all confidentiality and other related obligations contained herein shall survive the expiration of this Agreement and the termination of any negotiations or discussions with respect to the Transaction for a period of five (5) years following termination, and may not be modified or terminated, in whole or in part, and no release shall be effective except by means of a written instrument executed by TMZ and Contractor.
  4. This Agreement supersedes any and all prior agreements between the Parties relating to the Confidential Information or the Transaction. The provisions of this Agreement may be modified or waived only by a separate writing signed by the Parties expressly so modifying or waiving such provisions.
  5. If any provision hereof is unenforceable or invalid, it shall be given effect to the extent it may be enforceable or valid, and such unenforceability or invalidity shall not affect the enforceability or validity of any other provision of this Agreement.
  6. This Agreement shall be governed by, and construed in accordance with, the internal substantive laws of the State of Florida, without regard to conflicts of laws principles. Any dispute relating to or arising out of this Agreement will be litigated in the state or federal courts located in Broward County, Florida, and both Parties waive any objection to such jurisdiction and venue, and waive any claim or assertion that such jurisdiction and venue could be considered improper or forum non conveniens. The Parties further agree to waive the right to trial by jury in any dispute relating to or arising out of this Agreement.
  7. This Agreement may be executed in separate counterparts, all of which considered together shall constitute a single instrument.

IN WITNESS WHEREOF, the parties, individually or by their duly authorized officers, have executed this Agreement as of the Effective Date specified above.

The Media Zoo, L.L.C.

The Media Zoo                                                                         Contractor

By:                                                                                           By:

Title:                                                                                         Title: