NON-DISCLOSURE AGREEMENT

1. Purpose. PLAION GmbH, Embracer Platz 1, 6604 Höfen (“Company”) may disclose to you (“Recipient”) certain Confidential Information (as defined below) in connection with conducting play tests (the “Purpose”).
2. Confidential Information. “Confidential Information” shall mean all information, whether disclosed in oral, written or other form that Company or its affiliates (“Discloser”) or their respective officers, directors, advisers, employees or agents (collectively, its “Representatives”) discloses to Recipient, including without limitation any technology (including computer programs (source and object code) and documentation) whether patented or copyrighted or not (including builds), technical information, financial information (including pricing and costs), sales information (including customer lists), personnel information, product information (including features and qualities), operational information (including production and manufacturing plans, processes and sources), marketing information (including plans, strategies, names and titles), the existence or details of any proposed or completed transactions with third parties (including any license arrangements or other asset acquisitions) and the Purpose (including any proposed or accepted contract terms between the Parties and the fact that the Parties may negotiate, are negotiating or have negotiated with each other with respect to the Purpose of this Agreement). In addition, game ideas, plots, story lines, concepts, character types, content ideas, “look and feel” of the user interface and other non-technical information provided by Discloser shall be considered Confidential Information. Each Party considers the Confidential Information to be valuable, proprietary, and competitively sensitive. Recipient acknowledges that certain Confidential Information may be licensed or that Discloser may otherwise have contractual obligations with third parties to protect the Confidential Information Discloser discloses hereunder and that such third parties may be third party beneficiaries of this Agreement.
3. Identification of Confidential Information. Confidential Information protected under this Agreement may be identified as such by appropriate markings on any disclosure document, unless it should be reasonably understood to be confidential and/or proprietary by the receiving Party.
4. Protection of Confidential Information. Recipient agrees: (a) to keep all of the Confidential Information strictly confidential and use the Confidential Information only in connection with the Purpose and prevent any unauthorized access to, reproduction of, disclosure of, or use of the Confidential Information; (b) to take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information by using at least the same degree of care as it uses with its own confidential information, but in no event less than reasonable care;; (c) to respect all patents, trademarks and copyrights covering the Confidential Information to the full extent required by law; (d) to refrain from disassembling or decompiling software or otherwise attempting to reverse engineer the design and function of any of the Confidential Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Confidential Information or any portion thereof by any means, including, without limitation, the requirements for compatibility with the system(s) and compatible software.
   The confidentiality obligations in Paragraph 4(a)-(d) (“Confidentiality Obligations”) shall apply until the release of the game. Notwithstanding any of the foregoing, none of this Paragraph 4 shall apply to information which (i) Recipient knew, free of any confidentiality obligation, prior to the disclosure hereunder; (ii) is or becomes generally publicly known, through no fault of Recipient; (iii) Recipient independently developed without the use of any Confidential Information; (iv) is approved for release by written authorization of the Discloser, but only to the extent of such disclosure or (v) Recipient rightfully obtains from a third party who has the right to transfer or disclose it. Notwithstanding anything to the contrary herein, protection of technology (including computer programs (source and object code) and information constituting a trade secret shall never expire.
   Notwithstanding anything contained herein to the contrary, if Recipient is required to disclose any Confidential Information due to any government or judicial order Recipient will, to the extent feasible and legally permissible, provide Discloser prompt written notice, and will, upon Discloser's request, use reasonable efforts to assist Discloser in seeking a protective order or another appropriate remedy if available. If Discloser fails to obtain a protective order or other appropriate remedy, Recipient will use reasonable efforts to furnish only that portion of the Confidential Information that is required to be disclosed. In the event that the Recipient complies fully with the provisions of this paragraph, such disclosure may be made without any liability hereunder. Any Confidential Information disclosed pursuant to this paragraph shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

5. Consequences of Breach. The Recipient acknowledges that any unauthorized disclosure, use, or dissemination of Confidential Information in violation of this Agreement would cause the Discloser immediate and irreparable harm for which monetary damages alone would be inadequate. Accordingly, the Recipient agrees that, in the event of any actual or threatened breach of its confidentiality obligations under Sections 4(a)–(d), the Discloser shall be entitled, in addition to any other rights or remedies available at law or in equity, to seek immediate injunctive relief (including temporary, preliminary, and permanent injunctions), specific performance, and any other equitable relief necessary to prevent or remedy such breach, without the necessity of proving actual damages or posting any bond.
   The Recipient shall further be liable to compensate the Discloser for all losses, costs, and expenses (including reasonable legal fees) arising out of or in connection with any breach of its confidentiality obligations.
   The Recipient’s obligations and the Discloser’s rights under this Section shall survive indefinitely and remain in full force and effect notwithstanding the termination or expiration of this Agreement.

6. Ownership; Return of Confidential Information. Confidential Information remains the property of the Discloser. Unless otherwise agreed, all Confidential Information shall remain the property of the Discloser and shall be returned to it or destroyed or purged promptly at its request.
7. Warranty, Disclaimer and Limitation of Liability. Each Party warrants that is has the right to enter into and perform this Agreement and to disclose the Confidential Information it discloses hereunder. Each Party warrants that it will use all information received in a safe, prudent manner and acknowledges that it is responsible for all risk or loss arising out of such use. EXCEPT AS EXPRESSLY AGREED IN A SUBSEQUENT WRITING, THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, A WARRANTY AGAINST INFRINGEMENT, OR A WARRANTY OF ACCURACY OR COMPLETENESS. IN NO EVENT SHALL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FOR ANY CAUSE OF ACTION, EVEN IF IT HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY THEREOF, WHETHER IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
8. No Inducement or Commitment. Neither the execution of this Agreement nor the provision of Confidential Information to Recipient represents (i) an offer or inducement by Discloser to Recipient or a commitment by either Party to enter into any business relationship with the other Party or with any other entity, or (ii) a license or offer or promise of a license to copy, exploit, sell, distribute, retain, or otherwise use any Recipient Confidential Information or other Recipient intellectual property. Therefore, nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Purpose. If the Parties desire to pursue any business opportunity, the Parties will execute a separate written agreement to govern such business relationship. Nothing in this Agreement shall be construed to restrict either Party’s use or disclosure of its own Confidential Information.
9. Export Regulations. Neither Party may export or re-export any Confidential Information acquired under this Agreement, except in full compliance with all applicable law.
10. Effective Date and Termination. This Agreement shall be effective from the Effective Date specified below and shall automatically terminate upon the later of (i) achievement of the Purpose; and (ii) the expiry of Confidentiality Obligation; provided, however, that all rights and obligations incurred with respect to disclosures made hereunder prior to such termination shall continue under the terms hereof.
11. Governing Law and Equitable Relief. This Agreement shall be governed by and construed in accordance with the laws of Austria, exclusive of its choice of law principles. Each Party consents to jurisdiction by court sitting in Innsbruck, Austria. Each Party acknowledges and agrees that the other Party, as Discloser, may, in addition to all other remedies available at law or equity, seek injunctive relief to protect its Confidential Information.
12. No Recipientship or Joint Venture. The exchange of Confidential Information between the Parties is not and does not create a Recipientship, joint venture, or other form of legal entity or business enterprise. Any business relationship between the Parties will be governed by a separate agreement.
13. Miscellaneous. This Agreement and its exhibits constitute the entire understanding between the Parties with respect to the subject matter hereof, superseding all prior negotiations, correspondence or understandings, written or oral, with respect to the subject matter hereof. The failure of any Party to require performance by another Party of any provision of this Agreement shall in no way affect the full right to require such performance at any time thereafter, unless so specified in a binding waiver. No waiver, modification or amendment of any provision of this Agreement will be binding against a Party unless it is in writing and signed by an authorized officer (vice president or higher) of the Party against whom enforcement is sought. Neither Party may assign this Agreement without the other’s prior written consent, and any purported assignment in violation of this Agreement shall be void. Should any provisions of this Agreement be found unenforceable, the remainder shall remain in full force and effect. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or against either Party. All notices under this Agreement shall be deemed to have been duly given 3 days following the mailing of the notice, postpaid, to the address set forth above. Either the original or copies, including facsimile transmissions, of this Agreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument. The Parties have caused their respective duly authorized representatives to execute and deliver this Agreement.