Mattel is asking that all vendors sign this acknowledgement prior to receiving information related to Project FLAME, a highly-sensitive project based on Mattel and third-party IP. This Acknowledgement relates to all of Mattel’s discussions with you about Project FLAME.
The details of Project FLAME have not been publicly announced and are currently maintained by Mattel, its partners, and others in our industry as a trade secret. The trade secret “character” of Project FLAME relates to the design, product, marketing, strategy, and other elements of Project FLAME.
Due to the special nature of Project FLAME, and before you receive any further information about Project FLAME, you acknowledge these important facts:
1. Mattel is publicly-traded companies that operates in a very competitive global business environment. Many of Mattel’s partners and industry peers are also publicly-traded companies.
2. Mattel’s successes come from, among other things:
• the integrity of Mattel’s and its partners’ IP and confidential information that you will be exposed to in the course of working on the Project FLAME;
• the element of surprise in strategically releasing Project FLAME to the public; and
• the integrity of Mattel’s relationships and reputation with its business partners and licensors.
3. Any compromise of Project FLAME confidentiality will result in significant adverse economic and reputational consequences to Mattel and its partners.
4. Mattel is obligated, by contract and statute, to keep Project FLAME confidential and protect it as a trade secret.
5. Mattel will, for a period of time, control access to knowledge about the existence and nature of Project FLAME.
If you receive any information related to Project FLAME, then you must protect it from misuse and unauthorized disclosure. Failure to comply with this obligation as set forth in this Acknowledgement (and as may be set forth in policies, statutes, and other contracts to which you’re bound) may result in:
• Disgorgement of any gains that you realize from misuse or unauthorized disclosure of the Project FLAME information; and
• Disciplinary action, up to and including termination of the relationship between you and Mattel.
Below are examples of safeguards that you should follow in order to protect the Project FLAME information. To be clear, these are merely examples. There may be other safeguards that are prudent or necessary for Project FLAME – so check with Mattel for advice.
Properly Marked Assets “Mattel Confidential Information/Trade Secrets”. You must mark any document you create or deliver related to this project as follows: Mattel Confidential Information/Trade Secrets.
The marking should be conspicuous. At minimum, it should appear prominently on the first page of each document. Ideally, it will also appear on the footer of all pages of each document.
Protect Mattel’s Highly-Sensitive Project Information Within Your Office Environment. Even within your regular office environment, you must ensure no one can view, access, overhear, retrieve, or otherwise gain access to or obtain the Project FLAME information. It’s critical that you be particularly sensitive to this requirement in the context of (a) participating in conference calls in open-office environments or otherwise in the vicinity of others in your working environment; (b) using conference rooms, white boards, and other shared resources in your working environment; (c) using shared network drives, computers, databases, and other similar technology resources; (d) reviewing and editing digital documents in proximity to others in your working environment; and (e) reviewing, editing, storing, and discarding/shredding physical documents in proximity to others at your office.
Protect Mattel’s Highly-Sensitive Project Information Outside Your Office Environment. To the extent you work from home or outside of your office, you must ensure that no one else can view, access, overhear, retrieve, or otherwise gain access to or obtain Project FLAME information. It’s critical that you be particularly sensitive to this requirement in the context of: (a) working from home in an environment with no or limited privacy; (b) traveling; (c) participating in conference calls while at home, in a car with, or otherwise in the vicinity of others; (d) reviewing and editing digital documents in proximity to others; (e) reviewing, editing, storing, and discarding/shredding physical documents in proximity to others; and (f) printing documents on a printer shared with others.
Limited and Prudent Use of Personal Electronic Devices. To the extent you use a personal electronic device to work on business related or involving Project FLAME information, or to access it (all of which must be done consist with Mattel policies), you must ensure that (a) no third party has access to the personal electronic device, (b) the personal electronic device is owned or controlled by you and is password protected, and (c) the personal electronic device has functionality that allows its administrator to remote erase its memory. Access to the device should be automatically locked if the device is not used within a short period of time.
Immediate Notice of any Suspected Inappropriate Disclosure. If at any time you suspect that any other person has inappropriately accessed, overheard, or otherwise gained access to or obtained any Project FLAME information, then you must immediately notify Mattel that a suspected inappropriate disclosure has occurred. This obligation continues after your employment or other relationship with Mattel ends.
Mattel asks all attendees to agree to this Confidentiality Acknowledgement in connection with your attendance at this event. Attendees at this event may have access to products and information that have not been announced and are currently maintained by Mattel as a trade secret.
Due to the special nature of this event, you acknowledge that:
1. Your invitation to this event is yours and yours alone. You may not invite others to this event and you may not permit others to attend this event without Mattel’s prior written consent;
2. Mattel owns all intellectual property rights in the broadcast of this event and you agree to assign any extracts (including screenshots, photos and captures of the event) to Mattel;
3. Mattel’s successes come from, among other things, the integrity of Mattel’s intellectual property and confidential information that you will be exposed to during this event, the element of surprise in releasing products to the public, and the integrity of Mattel’s relationships with its business partners and licensors; and
4. Any compromise of the confidential information disclosed at this event will result in significant adverse economic and reputational consequences to Mattel.
To the extent that you receive any intellectual property and confidential information during this event, you must protect it from misuse and unauthorized disclosure as set forth in all pertinent agreements between Mattel and yourself or your employer. Failure to do say may result in civil and criminal liability to Mattel for its damages, including direct damages and lost profits; disgorgement of any gains that you realize from misuse or unauthorized disclosure; and disciplinary action, up to and including termination of your relationship with Mattel.
If you are not subject to any pertinent non-disclosure obligations to Mattel, the following applies to you:
1. “Confidential Information” means all information or materials that are disclosed to you during this event whether provided by Mattel or its representatives, and whether owned by Mattel or its licensees, licensors, or vendors.
2. Exceptions. Confidential Information does not include information that: (a) is in or enters the public domain through no act or omission of yourself; (b) you lawfully received from a third party without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (c) you knew prior to receiving such Confidential Information and was obtained without restriction as to use or disclosure; or (d) you independently developed without use of, or access to, any Confidential Information. The restrictions on your disclosure of Confidential
Information is excused to the extent that the Confidential Information is required to be disclosed pursuant to court order or other governmental action, provided that (i) You use reasonable efforts to provide advance notice to Mattel in order to permit Mattel to contest the disclosure and/or seek a protective order, and (ii) you provide reasonable assistance at Mattel’s cost in connection with such action.
3. Use and Handling of Confidential Information. You acknowledge that the Confidential Information is highly proprietary to Mattel and includes trade secrets of Mattel. You agree to hold all Confidential Information in strict confidence. You also agree that: (a) you will not disclose Confidential Information to any third party; and (b) you will use a high standard of care to keep the Confidential Information confidential that is commensurate with the confidential and valuable nature of the Confidential Information. Prior to any disclosure to any third party, that third party must have entered into a written non-disclosure agreement with you that has obligations of confidentiality no less restrictive than the ones herein. You must promptly notify Mattel, in writing, of any unauthorized use or disclosure of Confidential Information of which you become aware. That notice must describe the nature of the disclosure with specificity and you must cooperate with Mattel to help retain possession of the Confidential Information and prevent its further unauthorized use or disclosure. Upon Mattel’s written request, you will immediately return all tangible Confidential Information (including all documents, whether in hard copy or electronic form, including copies, summaries, extracts, and other forms thereof) within your possession or control, or at Mattel’s option, certify in writing to Mattel that you have destroyed the Confidential Information. In such an event, you will not re-create any of the Confidential Information.
4. Ownership of Confidential Information. As between Mattel and you, all Confidential Information is and will remain the exclusive property of Mattel. You do not receive any intellectual property rights or other rights, by license or otherwise, in or to any portion of the Confidential Information.
5. Disclaimers. All Confidential Information is provided “as is” and nothing contained in this Agreement or in any Confidential Information will constitute any express or implied warranty of any kind, including, without limitation, any warranty of non-infringement.
6. Remedies and General Matters. a. If you breach this agreement, then Mattel is entitled to seek and obtain, in addition to any other rights and relief available in law or equity, (i) immediate injunctive relief in any court of competent jurisdiction, without any requirement to post a bond or other security, and (ii) its costs and expenses (including, without limitation, reasonable attorneys’ and expert witness’ fees). You will indemnify, defend, and hold harmless Mattel from and against any claims, losses, expenses, and liabilities related to any breach of this Agreement by yourself or your employees, agents, or other representatives.
b. These terms will be governed by the laws of the State of California, without regard to conflict of law principles. You consent to and waive any objections to the federal and state courts located in Los Angeles County, California and agree that such courts will have exclusive jurisdiction and be the exclusive venue for any litigation relating to this Agreement.
HIGHLY SENSITIVE PROJECT – CONFIDENTIALITY AGREEMENT