Details
This is a two-way Confidentiality/Non-Disclosure Agreement (NDA) for discussion of the business relationship with a mutual obligation of confidentiality. This is drafted in neutral form.
THIS NON DISCLOSURE AGREEMENT is entered into on
BETWEEN
(1) whose principal place of business is at (Party 1)
(2) whose principal place of business is at (Party 2)
WHEREAS
(A) The parties are the beneficial owner of certain confidential information, as defined below, relating to respectively.
(A) The Parties are the beneficial owner of certain confidential information, as defined below, relating to respectively, the details of which are set out in Schedule.
(B) The parties, for their mutual benefit, wish to exchange their proprietary information in order that each of them may evaluate such information for the purpose of determining their respective interest in establishing a business relationship subject to the terms and conditions of this Agreement.
It is agreed as follows:
1. Interpretation
1.1 In this Agreement unless the context otherwise requires the following expressions shall have the following meanings:
Approved Representatives means those Representatives of the party in accordance with the provisions of Clause 3.1(a);
Associate means, in relation to either party, any company within the same Group as that party;
Group means, in relation to either party, companies which are holding Companies or Subsidiaries of it or of any such holding Company;
Information means any and all information which is now or at any time after the date of this Agreement in the possession of either party, including, but not limited to discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, the products, flow charts, data, computer programs, drives, disks, diskettes, tapes, patents, patent applications, copyrighted materials, marketing plans, customer names and other technical, financial or commercial information and intellectual properties, whether in writing, oral or other tangible or intangible forms and is disclosed to the other pursuant to this Agreement;
Information means any and all information which is now or at any time after the date of this Agreement in the possession of either party, including, but not limited to discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, the products, flow charts, data, computer programs, drives, disks, diskettes, tapes, patents, patent applications, copyrighted materials, marketing plans, customer names and other technical, financial or commercial information and intellectual properties, whether in writing, oral or other tangible or intangible forms and is disclosed to the other pursuant to this Agreement, more particularly set out in the Schedule;
Purpose means any discussions and negotiations between the parties concerning or in connection with the evaluation or establishment of a business relationship between the parties relating to ;
Representatives means, in relation to either party, its directors, officers, employees and consultants or those of other companies within its Group and its professional advisors consulted in relation to the Purpose; and
Writing includes e-mail, fax and other forms of written material transmitted electronically.
2. Obligations of Confidentiality
2.1 In consideration of the mutual exchange and disclosure of the Information, each party undertakes in relation to the other's Information:
(a) to maintain the confidentiality of the Information and to use it exclusively for the Purpose and for no other purpose;
(b) not to copy, reproduce or reduce to writing any part of the Information except as may be reasonably necessary for the Purpose and that any such copies or reductions to writing shall be the property of the disclosing party; and
(ᴄ) not to use, reproduce, transform or store any of the Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside of its usual place of business/server/emails.
3. Confidentiality measures
3.1 To maintain the confidentiality of the disclosed Information each party shall:
(a) not disclose the Information to anyone other than to the Representatives of the receiving party who in the reasonable opinion of the disclosing party require access to the information for the Purpose and who are aware of the obligations of confidentiality relating to the Information and are obliged by their contracts of employment or service not to disclose the Information to any third party (Approved Representatives);
(b) keep separate all Information from all documents and other records of the receiving party;
(ᴄ) apply to the Information no lesser security measures and degree of care than those which the receiving party applies to its own confidential information and which the receiving party warrants as providing adequate protection from unauthorised disclosure, copying or use;
(d) keep a written record of:
(i) any document or other Information received from the other in tangible form;
(ii) any copy made of all or part of the Information; and
(iii) any Approved Representative of the receiving party having possession or control of theInformation or any part of it;
(e) ensure that any document or other records containing Information shall be kept at its premises and shall not remove or allow to be removed such document or other records from its premises without the prior written approval of the other; and
(f) ensure that its Representatives do not contact any Representatives, other than the ApprovedRepresentatives, of the other party with a view to obtaining information about the other party, its Group or its business.
3.2 To the extent that any Information is stored within a computer system or is stored in machine-readable form the receiving party shall ensure that the Information is secured so that access may not be gained and copies may not be made other than in accordance with this Agreement.
3.3 The receiving party shall enforce the obligations set out in this clause at its own expense and at the request of the disclosing party insofar as any breach of those obligations relates to the unauthorised disclosure of the other's Information.
4. Excepted Information
4.1 The undertakings contained in Clause 2 shall not apply to any Information in relation to which the receiving party can prove by documentary evidence produced to the other within 14 days of disclosure that Information:-
(a) was, is or has become lawfully available to the public otherwise than through a breach of thisAgreement; or
(b) was previously known to and at the free disposal of the receiving party;
(ᴄ) was disclosed to the receiving party by a third party having the right to make that disclosure;or
(d) is at any time independently developed by the receiving party without the Information.
4.2 If either party is required to disclose all or part of the Information pursuant to any legal requirement of any country which has jurisdiction over either party or any governmental or quasi-governmental authority it will be entitled to do so Provided That the party required to make the disclosure shall immediately upon becoming aware that the disclosure is required, advise the other party of the circumstances in which the disclosure is alleged to be required (where legally permissible).
5. Return of information
5.1 Each party shall immediately on the written request of the other return all documents and materials containing the Information or if so required shall at the request of the other destroy all documents and materials containing the Information (including any copies, analysis, memoranda or other notes made by the receiving party, its Representatives or Associates) in its possession or under its custody or control and shall, in addition, take reasonable steps to remove any Information stored within any computer or word processing system whether or not in machine-readable form and certify in writing to the other that all such documents and materials have been destroyed.
5.2 Notwithstanding the completion of the Purpose or return or destruction of the documents and materials containing the Information, both parties shall continue to be bound by the undertakings set out in this Agreement.
6. Disclaimer and warranty
6.1 Each party reserves all rights in its Information and no rights or obligations other than those expressly granted are to be implied from this Agreement. In particular, no licence is granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right now or in the future held, made or obtained by either party prior to or after the date of this Agreement whether or not contained in the Information.
6.2 The parties agree that the Information does not purport to be all-inclusive and that no representation or warranty is made as to its accuracy, reliability or completeness. Accordingly, neither party, their Associates or Representatives, will have any liability to the other party or any other person resulting from the use of the Information by the other party and/or them, nor incur any obligation to provide further Information, to update Information nor to correct any inaccuracies in it. This clause will not exclude any liability for, or remedy in respect of, fraudulent misrepresentation. Save as expressly set out in this Agreement, neither Party, their Associates or Representatives shall owe any duty of care to the other party or any other person.
6.3 Nothing in this Agreement or its operation shall constitute an obligation on either party to enter into the business relationship contemplated by the Purpose.
6.4 Each party warrants its right to disclose its Information to the other and to authorise the other to use the Information for the Purpose.
7. Confidentiality
7.1 Each party agrees to keep the existence and nature of this Agreement confidential and any announcement or circular relating to the existence or the subject matter of this Agreement shall first be approved by both parties as to its content, form and manner of publication.
7.2 The obligations to us under this Agreement will terminate years after the earlier of (i) the termination of discussions with us with respect to the Purpose and (ii) the execution of the documents governing the Purpose.
8. Remedies
8.1 The parties acknowledge and agree that:-
(a) damages would not be an adequate remedy for any breach of the provisions of thisAgreement;
(b) the disclosing party shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement; and
(ᴄ) no proof of special damages shall be necessary for the enforcement of this Agreement.
9. Waiver
9.1 No waiver by a party of a failure or failures by the other party to perform any provision of this Agreement shall operate or be construed as a waiver in respect of any other or further failure whether of a like or different character.
9.2 The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers or remedies provided by law.
10. Assignment
10.1 Neither of the parties may assign any of its rights or obligations under this Agreement in whole or in part.
11. Entire agreement
11.1 This Agreement sets out the whole agreement and understanding between the parties with respect to the subject matter of this Agreement.
11.2 It is agreed that:
(a) neither party has entered into this Agreement in reliance upon any representation, warranty or undertaking of the other party, its Associates or Representatives which is not expressly set out or referred to in this Agreement;
(b) a party may claim in the contract for breach of an express warranty under this Agreement but shall have no claim or remedy in respect of misrepresentation (whether negligent or otherwise, and whether made prior to and/or in this Agreement) or untrue statement made by the other party, its Associates or Representatives; and
(ᴄ) this clause shall not exclude any liability for, or remedy in respect of, fraudulent misrepresentation by a party or its Associates or Representatives.
12. No License
Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, mask work right, trade secrets, or other intellectual property of the other party, nor shall this Agreement grant either party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
13. Governing Law and Jurisdiction
14. Notices and service
14.1 Any notice so served by hand, e-mail or post shall be deemed to have been duly given:
a. in the case of delivery by hand, when delivered;
b. in the case of fax or electronic mail on a Business Day prior to 5.00 pm, at the time of receipt ;
c. in the case of prepaid recorded delivery, special delivery or registered post, at 10 am on the second Business Day following the date of posting
provided that in each case where delivery by hand or by e-mail occurs after 5 pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9 am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.
14.2 The addresses of the parties for the purpose of clause 14.1 are as follows: Party 1
Address:
E-mail:
For the attention of:
Party 2
Address:
E-mail:
For the attention of:
15. No Rights under Contracts (Rights of Third Parties) Ordinance
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance to enforce any of its terms.
As witness this Agreement has been signed by the duly authorised representatives of the Parties the day and year first before written.
SCHEDULE
