Confidentiality AND RESTRICTED USE AGREEMENT
AN AGREEMENT dated [DATE] (the Effective Date) between
[COMPANY A]
a Netherlands company having its registered office at
Carel van Bylandtlaan 23, 2596 HP, The Hague, The Netherlands
(hereinafter referred to as “COMPANY A“)
and
[COMPANY B]
a company incorporated in [COUNTRY]
having an office at [ADDRESS]
(hereinafter “RECIPIENT“)
RECITALS
1. RECIPIENT has requested [COMPANY A] to provide a proposal for a coal gasification plant using the Process in relation to which RECIPIENT may need to have access to certain information which [COMPANY A] considers confidential, proprietary and valuable; and
2. [COMPANY A] is willing to disclose such information as [COMPANY A] deems appropriate, and RECIPIENT is willing to receive such information, for the Purpose (as defined) on the following terms and conditions.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1.1. The following expressions shall have the meanings specified in this Clause.
(a) “Affiliate of [COMPANY A]”
means Royal Dutch [COMPANY A] plc and any entity other than [COMPANY A] which is at the time in question directly or indirectly controlled by Royal Dutch [COMPANY A] plc. For the purpose of this definition an entity (i) directly controls another entity if it owns fifty per cent (50%) or more of the voting rights attached to the issued share capital of the other entity; and (ii) indirectly controls another entity if a series of entities can be specified, beginning with the first entity and ending with the other entity, so related that each entity of the series (except the ultimate controlling entity) is directly controlled by one or more of the entities earlier in the series.
(b) “the Purpose“
means evaluation of the [COMPANY A] information by RECIPIENT in order to determine its interest in seeking a licence for use of the Process in [insert country and preferably project reference].
(c) “the Process“
means the Coal and Coke Gasification Process developed by [COMPANY A] and/or Affiliates of [COMPANY A] for the production of synthesis gas by the non-catalytic partial oxidation of coal or coke, optionally followed by the treatment of raw synthesis gas to shift the CO/H2 ratio therein and/or to remove acidic or sulphur containing compounds therefrom
(d) “[COMPANY A] Information“
means information relating to the Process including any general knowledge of the business plans and/or activities of [COMPANY A] and/or any Affiliate of [COMPANY A] received or obtained by RECIPIENT either directly or indirectly from [COMPANY A] and/or any Affiliate of [COMPANY A]. Furthermore, the expression “[COMPANY A] Information” shall include the results, conclusions and findings of any evaluation or any other use by RECIPIENT of [COMPANY A] Information.
2.2. In consideration of the disclosure of [COMPANY A] Information to RECIPIENT, RECIPIENT agrees:
(a) save as set forth in Clause 3(b) not to disclose any [COMPANY A] Information to any third party, (including, for the avoidance of doubt, disclosure in any patent application or to any patent office); and
(b) not to use [COMPANY A] Information except for the Purpose.
2A. [COMPANY A] acknowledges that in the course of its discussion with the RECIPIENT or in the course of the carrying out of the Purpose, the RECIPIENT may disclose to [COMPANY A] or to [COMPANY A]’s affiliates certain commercial, financial, economic or technical information which is confidential information of the RECIPIENT (such information herein collectively called “Recipient Information”). Accordingly [COMPANY A] agrees that it shall not (and it shall procure that its Affiliates shall not) disclose any Recipient Information to any third party (including, for the avoidance of doubt, disclosure in any patent application to any patent office) and that it shall not use Recipient Purpose except for the purpose of working with or assisting RECIPIENT in the Purpose; except however, that [COMPANY A] may disclose such Recipient Information as is reasonably to carry out the Purpose to those employees of [COMPANY A] or its Affiliates who before the date of disclosure (i) have been informed of the confidential nature of the Recipient Information in question, and (ii) are bound by written obligations no less stringent than those assumed by RECIPIENT under this Agreement.
3.3. RECIPIENT may disclose such [COMPANY A] Information as is reasonably necessary to carry out the Purpose to:
(a) those employees of RECIPIENT who before the date of disclosure (i) have been informed of the confidential nature of the [COMPANY A] Information in question; and (ii) are bound by written obligations no less stringent than those assumed by RECIPIENT under this Agreement.
and, notwithstanding the provisions of Clause 2,
(b) any contractor, up to a total maximum of two (2) contractors, of RECIPIENT approved in writing by [COMPANY A] provided that contractor has agreed in writing with [COMPANY A] before the date of disclosure:
(i) to be bound by obligations no less stringent than those assumed by RECIPIENT under this Agreement;
(ii) to use the [COMPANY A] Information only for the benefit of RECIPIENT under this Agreement; and
(iii) not to disclose further the [COMPANY A] Information,
unless [COMPANY A] notifies RECIPIENT in writing that the contractor entity is no longer bound by, or is not acting in accordance with, its agreement.
5.4. The provisions of Clause 2 above shall not apply to any [COMPANY A] Information which, at the time it is received or obtained by RECIPIENT,
(a) is lawfully known to RECIPIENT without binder of secrecy; or
(b) is publicly available
and shall cease to apply to any [COMPANY A] Information which, after it is received or obtained by RECIPIENT,
(c) is received or obtained by RECIPIENT without restriction on disclosure from a source free to disclose it other than [COMPANY A] or an agent or Affiliate of [COMPANY A]; or
(d) becomes publicly available through no act or omission on the part of RECIPIENT.
The foregoing exceptions shall only be effective to the extent that RECIPIENT can prove the facts.
6.5. Specific disclosures made hereunder shall not be deemed to be subject to any of the above exceptions merely because they are embraced by general disclosures in the public knowledge or literature or in the possession of RECIPIENT (in relation to [COMPANY A] Information) or [COMPANY A] (in relation to Recipient Information), and any combination of features disclosed hereunder shall not be deemed subject to the above exceptions merely because individual features are in the public knowledge or literature or in the possession of RECIPIENT (in relation to [COMPANY A] Information) or [COMPANY A] (in relation to Recipient Information), but only if the combination itself is publicly available or lawfully known to RECIPIENT (in relation to [COMPANY A] Information) or [COMPANY A] (in relation to Recipient Information) without binder of secrecy.
6.6. RECIPIENT shall have the right, to the extent necessary to carry out the Purpose,
(a) to make copies of [COMPANY A] Information; and
(b) to use, reproduce, transform or store any [COMPANY A] Information in a computer or electronic information retrieval system under control by RECIPIENT.
9.7. If RECIPIENT receives a subpoena, order, notice or other legal process seeking disclosure of [COMPANY A] Information, RECIPIENT shall immediately notify [COMPANY A] in order to allow [COMPANY A] the opportunity to oppose the order, notice or process, or seek a protective order. If requested by [COMPANY A], RECIPIENT shall co-operate fully with [COMPANY A] in contesting such disclosure. Except as such demand shall have been limited, quashed or extended, RECIPIENT may thereafter comply with such demand, but only to the extent required by law. Where a protective order is obtained by [COMPANY A], nothing in this Agreement shall be construed to authorise RECIPIENT to use in any manner or disclose [COMPANY A] Information to third parties other than such governmental or judicial agency or body or beyond the scope of the protective order.
10.8. At the request and option of [COMPANY A], RECIPIENT shall
(a) either destroy or return promptly to [COMPANY A], or its nominee, all tangible records containing [COMPANY A] Information and excerpts and portions thereof and other information derived from [COMPANY A] Information, which are in the possession of RECIPIENT; and
(b) remove all [COMPANY A] Information and excepts and portions thereof (including any backup copies) from any computer and/or other electronic storage system and in such case RECIPIENT shall, if so requested by [COMPANY A], provide independent auditor’s confirmation of completion of such removal.
11.9. Nothing in this Agreement shall be construed as granting RECIPIENT a licence under intellectual property rights of [COMPANY A] or an Affiliate of [COMPANY A], or any rights in respect of [COMPANY A] Information other than those specifically set out herein. Furthermore, RECIPIENT shall have no right to make any changes, modifications or enhancements to [COMPANY A] Information, or to create any derivative work from such [COMPANY A] Information.
12.10. [COMPANY A] shall not be liable in negligence or otherwise for any loss, damage, cost and expenses arising from or in connection with the use made by RECIPIENT of any [COMPANY A] Information or any allegation that such use infringes any third party intellectual property right or otherwise. RECIPIENT shall indemnify [COMPANY A] against any third party claim for loss or damage (including personal injury or death) arising from or in connection with RECIPIENT’s use of any [COMPANY A] Information.
10A. Recipient shall not be liable in negligence or otherwise for any loss, damage, cost and expenses arising from or in connection with the use made by [COMPANY A] of any Recipient Information or any allegation that such use infringes any third party intellectual property right or otherwise. [COMPANY A] shall indemnify Recipient against any third party claim for loss or damage (including personal injury or death) arising from or in connection with [COMPANY A]’s use of any Recipient Information.
13.11. RECIPIENT hereby certifies that in exercising its rights and in carrying out its obligations under this Agreement, it shall comply with all applicable governmental laws, regulations, decrees and orders governing the export and re-export of goods, technology, software and/or services, including, without limitation, the U.S. Export Administration Regulations administered by the U.S. Department of Commerce, the U.S. trade sanctions legislation administered by the U.S. Department of the Treasury and European Council Regulation 428/2009 and any amendments thereto. This clause shall survive the termination or expiry of this Agreement.
14.12. [COMPANY A] makes no representation and extends no warranty, express or implied, and assumes no responsibilities whatsoever with respect to the completeness, utility or accuracy of any [COMPANY A] Information; merchantability or fitness for a particular purpose; or the freedom from infringement of any third party intellectual property rights by RECIPIENT’s use of [COMPANY A] Information.
15.13. RECIPIENT shall not assign any of its rights or obligations arising from this Agreement without the prior written consent of [COMPANY A].
16.14. This Agreement shall be effective from the Effective Date.
16.15. This Agreement, and the relationship between [COMPANY A] and RECIPIENT under this Agreement, shall in all respects be interpreted in accordance with and governed by the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the courts in England in relation to any dispute arising out of or in connection with this Agreement (whether based in contract, tort (including negligence) or otherwise).
AS WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate original at the places and on the dates indicated below.
[COMPANY A]
Signed by: ——————————————-
Name: ——————————————-
Title: ——————————————-
Date: ——————————————-
[COMPANY B]
Signed by: ——————————————-
Name: ——————————————-
Title: ——————————————-
Date: ——————————————-
