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BUSINESS
NON - DISCLOSURE AGREEMENT (NDA)
This Agreement made on this ......... day of ....................., ................... (the ‘Effective Date’)
BETWEEN
Details of Disclosing Party, .............................................. having its Registered
Office at ............................................................................................
herein after referred to as the "Disclosing Party"
AND
Details of Receiving Party, the .............................................. having its Registered Office at ............................................................................................
herein after referred to as the "Receiving Party"
(hereinafter referred to,
individually, as the “Party” and collectively, as the “Parties”)
Background:
i)
The
Parties are, or will be, evaluating, discussing and negotiating a potential
contractual relationship concerning the ............................................................................................
(the ‘Project’).
ii)
The
Parties may, in these evaluations, discussions and negotiations, disclose to
each other information that is technically and /or commercially confidential.
iii)
The
Parties have agreed that disclosure and use of such technical and/or commercial
confidential information shall be made and on the terms and conditions of this
Agreement.
Now it
is agreed as follows:
1.0
Definitions:
In this Agreement the following terms
shall, unless the context otherwise requires, have the following meanings:
1.1
‘Disclosing
Party’ means the Party
disclosing Confidential Information to the other Party under this
Agreement.
1.2
‘Receiving
Party’ means the Party
receiving Confidential Information from the other Party under this
Agreement.
1.3
‘Confidential
Information’ means
any information, which shall include but is not limited to, design,
fabrication & assembly drawings, know-how, processes, product
specifications, raw materials, trade secrets, market opportunities, or business
or financial affairs of the Parties or their customers, product samples,
inventions, concepts and any other technical and/or commercial information, disclosed
directly or indirectly and in any form whatsoever (including, but not limited
to, disclosure made in writing, oral or in the form of samples, models,
computer programs, drawings or other instruments) furnished by the Disclosing
Party to the Receiving Party under this Agreement.
1.3.1
Such
Confidential Information shall also include but shall not be limited to:
1.3.1.1
information
disclosed by the Disclosing Party in writing marked as confidential at the time
of disclosure;
1.3.1.2
information
disclosed by the Disclosing Party orally which is slated to be confidential at
the time of disclosure;
1.3.1.3
information
disclosed in any other manner is designated in writing as Confidential
Information at the time of disclosure; or
1.3.1.4
notwithstanding
sub-clauses 1.3.1.1, 1.3.1.2 and 1.3.1.3 of this definition, any information
whose nature makes it obvious that it is confidential.
1.3.2
Such
Confidential Information shall not include any information which:
1.3.2.1
is, at
the time of disclosure, publicly known; or
1.3.2.2
becomes
at a later date, publicly available otherwise than a wrongful act or negligence
or breach of this Agreement of or by the Receiving Party; or
1.3.2.3
the
Receiving Party can demonstrate by its written records was in its possession,
or known to the Receiving Party, before receipt under this Agreement, and which
was not previously acquired under an obligation of confidentiality; or
1.3.2.4
is legitimately
obtained at any
time by the Receiving Party from a third party
without restrictions in respect of disclosure or use; or
1.3.2.5
the Receiving
Party can demonstrate to the satisfaction of the Disclosing Party, has
been developed independently of its obligations under this Agreement and
without access to the Confidential Information.
1.4
‘Purpose’
means the
evaluations, discussions, negotiations and execution regarding a
contractual relationship between the Parties in respect of the Project defined
in paragraph (i) of the Background section.
1.5
‘Affiliate’
means any legal
entity which, at the time of disclosure to it on any Confidential
Information, is directly or indirectly controlling, controlled by or under
common control with any of the Parties.
1.6
‘Contemplated
Agreement’ means
any future legally binding Agreement between the Parties in respect of
the Project envisaged under this Agreement.
1.7
"Project" shall mean and include any
assignment, work, job being offered or given by Disclosing Party to Receiving
Party in directly or indirectly in relation to this agreement.
1.8
"NDA" shall mean this Non-Disclosure
Agreement unless otherwise specified.
2.0
Non-Disclosure of Confidential Information:
2.1
In
consideration of the disclosure of Confidential Information by the Disclosing
Party to the Receiving Party solely for the Purpose, the Receiving Party
undertakes whether by itself, its successors and heirs, not to disclose
Confidential Information to any third party, unless in accordance with Clause
4.
2.2
In
addition to the undertaking in Clause 2.1, the Receiving Party shall be liable
for:
2.2.1
Any
loss, theft or other inadvertent disclosure of Confidential Information, and
2.2.2
Any
unauthorized disclosure of Confidential Information by persons (including, but
not limited to, present and former employees) or entities to whom the Receiving
Party under this Agreement has the right to disclose Confidential Information,
except where, the Receiving Party has used the same degree of care in
safeguarding such Confidential Information as it uses for its own Confidential
Information of like importance and in no event less than a reasonable degree of
care; and upon becoming aware of such inadvertent or unauthorized disclosure
the Receiving Party has promptly notified the Disclosing Party thereof and
taken all reasonable measures to mitigate the effects of such disclosure and to
prevent further disclosure.
2.3.1 Any
information known only to a few people to whom it might be of commercial
interest and not generally known to the public is not public knowledge;
2.3.2 A
combination of two or more parts of the Confidential Information is not public
knowledge merely because each part is separately available to the public.
2.4
The
Receiving Party acknowledges the technical, commercial and strategic value of
the Confidential Information to the Disclosing Party and understands that
unauthorized disclosure of such Confidential Information will be injurious to
the Disclosing Party.
3.0
Use of Confidential Information:
The Receiving Party is entitled to use the Confidential Information
but only for the Purpose.
4.0
Permitted Disclosure of Confidential Information:
4.1
The
Receiving Party may disclose in confidence Confidential Information to any of
its Affiliates and employees, in which event the Affiliate and employee shall
be entitled to use the Confidential Information but only to the same extent the
Receiving Party is permitted to do so under this Agreement. The Receiving Party
agrees that such Affiliates or employees are subject to confidentiality
obligations no less restrictive than those of this Agreement.
4.2
The
Receiving Party shall limit the dissemination of Confidential Information of
its Affiliates and employees having a need to receive such information to carry
out the Purpose.
4.3
The
Receiving Party may disclose Confidential Information to its consultants,
contractors, sub-contractors, agents or similar persons and entities having a
need to receive such information to carry out the Purpose on the prior written
consent of the Disclosing Party. In the event that the Disclosing Party gives
such consents, the Receiving Party agrees that such individuals are subject to
confidentiality obligations no less restrictive than those of this Agreement.
4.4
Notwithstanding
Clause 2.1, the Receiving Party shall not be prevented from disclosing
Confidential Information, where (i) such disclosure is in response to a valid
order of a court or any other governmental body having jurisdiction over this
Agreement or (ii) such disclosure is otherwise required by law, provided that
the Receiving Party, to the extent possible, has first given prior written
notice to the Disclosing Party and made reasonable efforts to protect the
Confidential Information in connection with such disclosure.
5.1
The
Receiving Party shall not be entitled to copy samples, models, computer
programs, drawings, documents or other instruments furnished by the Disclosing
Party hereunder and containing Confidential Information, unless and to the
extent it is necessary for the Purpose.
5.2
All
samples, models, computer programs, drawings, documents and other instruments
furnished hereunder and containing Confidential Information shall remain the
Disclosing Party’s property.
5.3
At any
time upon request from the Disclosing Party or upon the conclusion of the
Purpose or expiry of this Agreement, the Receiving Party, at its own cost, will
return or procure the return, promptly and in any event within 14 days of
receipt of such request, of each and every copy of Confidential Information
given by the Disclosing Party, and satisfy the Disclosing Party that it no
longer holds any further Confidential Information.
6.0
Non-Disclosure of Negotiations:
Except as provided in Clause 4, each
Party agrees that it will not, without the other Party’s prior written
approval, disclose to any third party the fact that the Parties are discussing
the Project. The Parties acknowledge that the provisions of this Agreement
shall apply in respect of the content of any such discussions. The undertaking
set forth in this Clause 7 shall survive the termination of this Agreement.
7.0
Term and Termination:
7.1
This
Agreement shall become effective on the Effective Date. The provisions of this
Agreement shall however apply retroactively to any Confidential Information,
which may have been disclosed in connection with discussions and negotiations
regarding the Project prior to the Effective Date.
7.2
This
Agreement shall remain in force for five (5) years from the Effective Date, except to the extent
this Agreement is superseded by stipulations of the Contemplated Agreement/s.
7.3
The
rights and obligations of each Party with respect to all Confidential
Information of the other Party that is received under this Agreement shall
remain in effect for a period of five (5) years from the date of disclosure of Confidential
Information.
8.0
Intellectual Property Rights:
All Confidential Information
disclosed herein shall remain the sole property of the Disclosing Party and the
Receiving Party shall obtain no right thereto of any kind by reason of this
Agreement.
Nothing in this Agreement shall
obligate either Party to enter into any further Agreements.
10.0
Amendments:
Any amendment to this Agreement shall
be agreed in writing by both Parties and shall refer to this Agreement.
11.0
Severance:
If any term or provision in this
Agreement is held to be either illegal or unenforceable, in whole or in part,
under any enactment or rule of law, such term or provision or part shall to
that extent be deemed not to form part of this Agreement, but the validity and
enforceability of the remainder of this Agreement shall not be affected.
12.0
Governing Law:
This Agreement shall be governed by
and construed in accordance with the laws of India and in any dispute arising
out of or relating to this agreement, the Parties submit to the exclusive
jurisdiction of the Courts situated at Mumbai, India.
13.0
General:
13.1
Upon 45 days written notice,
the Disclosing Party may audit the use of the programs, materials, marketing
materials, services, and such additional disclosed resources. The Receiving
Party agrees to co-operate with the Disclosing Party’s audit and to provide
reasonable assistance and access to information.
13.2
The
Disclosing Party shall not have any liability to the Receiving Party for any
claims made by third parties arising out of their use of the Disclosing Party’s
trademarks (including “Logo”) or marketing materials. The Receiving Party
agrees to indemnify the Disclosing Party for any loss, liability, damages, cost
or expense (including attorney’s fees) arising out of any claims, which may be
made against the Disclosing Party arising out of their use of the Logo or
marketing materials where such claim relates to their activities, products or
services. Notwithstanding above, the Receiving Party shall have no obligation
to indemnify the Disclosing Party with respect to a claim of trademark or copyright
infringement based upon their use of the Logo or marketing materials, as
expressly permitted under this Agreement.
13.3
The
Receiving Party shall disclose of any similar agreements explicit or otherwise,
for similar purpose/application with in its own organization, or any other
third party.
13.4
In the
event of a breach or threatened breach by the Receiving Party of any provisions
of this Agreement, the Disclosing Party, in addition to and not in limitation
of any other rights, remedies or damages available to the Disclosing Party at
law or in equity, shall be entitled to a temporary restraining order /
preliminary injunction in order to prevent or to restrain any such breach by
the Receiving Party, or by any or all persons directly or indirectly acting
for, on behalf of, or with the Receiving Party.
This Agreement was duly executed on behalf of the Parties on the day
and year first above written.
For and
on behalf of
Disclosing Party
For and on
behalf of Receiving Party
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Date: DD/MM/YYYY
Place: ..................
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