NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT is made the day and year stipulated in Section 1 of the First Schedule hereto between:-
AND
B. The party and its authorized representatives whose particulars are stipulated in Section 3 of the First Schedule hereto (hereinafter called “Company B”) of the other part.
RECITAL
WHEREAS:-
(a) Company A undertakes and carries on the Business and is the proprietor of the Confidential Information relating to the Business.
(c) To enable the Company B to undertake the Purpose, Company A may be required to disclose the Confidential Information to Company B.
(d) Company A desires to maintain secrecy and protect the confidentiality of the Confidential Information that Company A may at any time or from time to time disclose to the Recipient and to procure to itself the commercial benefits from the utilization of the Confidential Information.
(e) Company B has agreed that it shall maintain the Confidential Information that it receives from Company A in strict confidentiality upon the provisions of this Agreement.
NOW THIS AGREEMENT WITNESSETH as follows:
1. INTERPRETATION
“Business”
means the business of _________________ presently and at time hereafter undertaken and carried on by Company A.
“Confidential Information”
means any and all non-public (i) technical and non-technical information including patents, copyrights, trade secrets and proprietary information, techniques, sketches, drawings, samples, models, inventions, know-how, processes, data, operating procedures, apparatus, equipment, software programs, software source documents, algorithms, blueprints, patterns, dies, molds, tools, plate cuts and gauges and formulas related to the business of Company A and the current future and proposed products and services of Company A; and (ii) the information of Company A concerning research, experimental work, development, design details and specifications engineering, (iii) all notes memoranda analyses or other writings prepared by either Company A and/or the Company B using or referring to any information of Company A not generally known to the public through legitimate origins.
For the purposes of this Agreement, such information is ‘not generally known to the public through legitimate origins’ if it is not generally known to third parties who can obtain economic value from its disclosure and use. Company B acknowledges that it may obtain Confidential information in discussions with the officers and employees of Company A and from inspections of Company A equipment, manufacturing, facilities or otherwise, that may not be identified or marked as “Proprietary” or “Confidential”. The failure to identify or mark the confidential information as ‘proprietary’ or ‘confidential’ shall not mean that the information is not subject to the requirements of this Agreeement.
includes its holding company, its subsidiary companies and any subsidiary companies of its holding company.
includes its holding company, its subsidiary companies and any subsidiary companies of its holding company.
2. NON-DISLOSURE AND NON USE UNDERTAKING OF COMPANY B
2.1 Except for the purpose Company B agrees that it will not directly or indirectly make use of, disseminate or in any way disclose any Confidential Information of Company A to any person, firm or business, except to the extent necessary for negotiations, discussion and consultations with personnel or authorised representatives of Company A and any purpose Company A may hereafter authorise in writing; The existence of any business negotiations, discussion, consultations or agreements between Company A and Company B shall not be released to any form of media without the prior written approval of Company A. Company B agrees that it shall treat all Confidential Information of Company A with the same degree of care as it accords to its own confidential information.
3. EXCLUSION FROM NON-DISCLOSURE AND NON-USE UNDERTAKINGS
3.1. Company B shall not be liable to Company A for disclosure of any of the Confidential Information if Company B can document and establish that the Confidential Information:-
3.1.1. was available in the public domain at or subsequent to the time it was disclosed or communicated to Company B by Company A through no fault of Company B. .
3.1.2. was disclosed with the prior written approval of Company A
3.1.3. was rightfully received by Company B from a third party without any obligation of confidentiality.
3.1.4. was independently developed or ascertained by Company B.
3.2. Any of the Confidential Information may be disclosed to any governmental or other authority or regulatory body but only to such extent as required by the law.
3.3. If Company B is required to disclose Confidential Information in response to a valid court order or other governmental body or as otherwise required by the law, the Recipient shall give Company A written notice prior to any disclosure of the Confidential Information so that Company A may contest the disclosure or obtain a protective order.
4. INTELLECTUAL PROPERTY AND DERIVATIVES
4.1 Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise to the Recipient, whether expressly, implied or otherwise for any patents, copyrights, trademarks, know-how or other proprietary rights acquired by Company A prior to or after the date of this Agreement.
4.2 Any Derivatives created by either Company A or Company B from the Confidential Information shall remain the property of Company A and except any herein provided no licence or other rights to Confidential Information and Derivatives is granted or implied hereby. For the purposes of this Agreement, “Derivatives” shall mean: (i) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which be protected by copyright, patent and/or trade secret
5. CONFIDENTIALITY MEASURES
5.1 Company B undertakes that it will maintain the confidentiality of all Confidential Information that it may acquire from Company A in any manner and to secure the confidentiality attaching to the Confidential Information the Company A shall:-
5.1.1 keep separate all Confidential Information and all information generated by Company B based thereon from all documents and other records of Company B.
5.1.2 keep all documents and any other material bearing or incorporating any of the Confidential Information at the usual place of business of Company B.
5.1.3 not use reproduce transform or store any of the Confidential 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.
5.1.4 allow access to the Confidential Information exclusively to those employees of Company B who have reasonable need to see and use it for the purposes of its evaluation by the Recipient and shall inform each of the said employees of the confidential nature of the Confidential Information and of the obligations on Company B in respect thereof.
5.1.5 wherever reasonably practicable obtain a written statement from each of its employees having access to the Confidential Information undertaking t
o maintain the same confidential and shall take such steps as may be reasonably desirable to enforce such obligations
5.1.6 make copies of the Confidential Information only to the extent that the same is strictly required for the purposes of its evaluation by Company B.
5.1.7 on request of Company B made at any time shall deliver up to Company B all document and other material in the possession custody or control that bear or incorporated any part of the Confidential Information.
6. UNDERTAKING OF NON-SOLICITATION AND NON-COMPETITION
6.1 Company B covenants that neither Company B nor any other individual, person or entity, directly or indirectly, controlled by or affiliated with Company B shall, directly or indirectly, (i) own, (ii) manage, (iii) operate, (iv) render services to, (v) become interested in or associated with, (vi) join in, (vii) control, (viii) participate in or otherwise carry on any business that solicits orders away from Company A or negotiate contract with or have any commercial dealings with any customers or potential customers of Company A. Company B shall not provide to such customers any service andlor products which utilise or incorporates any of the Confidential Information.
6.2 Company B or any other individual, person or entity, directly or indirectly, controlled by or affiliated with Company B shall not directly or indirectly carry on or be engaged or interested in any business competing with the business of Company A.
6.3 Company B or any other individual, person or entity, directly or indirectly, controlled by or affiliated with Company B shall not solicit or entice away or endeavour to solicit or entice away any director or employees of Company A or its subsidiaries.
6.4 Each undertaking contained in Clause 6 shall be read and construed independently of the other covenants herein contained so that if one or more should be held to be invalid as an unreasonable restraint or trade or for any other reason whatsoever then the remaining covenants shall be valid to the extent that they are not held to be so invalid.
6.5 Company A warrants that it has the right to make the disclosures under this Agreement.
7. REVERSE-ENGINEERING
7.1 Company B shall not reverse-engineer, decompile, or disassemble any hardware or software provided or disclosed to Company B and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend or other notice of ownership from any originals or copies of Confidential Information Company B obtains from Company A..
8. PROPRIETARY RIGHTS
8.1 Company B hereby acknowledges that the Confidential Information disclosed by Company A to Company B shall remain the property of Company A.
9. COMPANY A’S CONFIDENTIAL INFORMATION
9.1 It is agreed that Company A does not wish to receive any proprietary or Confidential Information from Company B. If Company B determines that it is necessary and appropriate for Company A to receive proprietary or confidential information from Comp B such disclosure to Comp A shall be pursuant to a separate written Non-disclosure and Confidentiality Agreement between Comp A and Comp B.
