*This is a great template for parties who intend to commence negotiation or disclose/exchanges private & confidential information before conclusion of any contracts, this mutual non disclosure agreement in effect binds both parties to keep information confidential and protected.
MUTUAL NON DISCLOSURE AGREEMENT
This deed is made as of __________[DATE]____________
BETWEEN [COMPANY A]
[ADDRESS]
(‘Party A‘)
AND [COMPANY B]
[ADDRESS]
(‘Party B‘)
RECITALS
A. Party A and Party B are considering arrangements which may contemplate Party A assisting [OTHER PARTIES] (collectively, the ‘Shareholder Group’, for the benefit of whom Party B is engaging in discussions with Party A) to procure the issuance of a Standby Letter of Credit on behalf of any or all of the members of the Shareholder Group (collectively, the ‘Purpose‘).
B. Each party has agreed to keep confidential any and all Confidential Information disclosed to it by the other party for or in connection with the Purpose.
AGREEMENT
In this document:
‘Affiliates’, in relation to any person or entity (the “first-mentioned entity”), means any other entity that is, directly or indirectly, owned by or controlled by the first-mentioned entity or any entity which controls the first-mentioned entity or is under common control with the first-mentioned entity. A person or entity (the “controlling entity”) shall be deemed to control another entity if the controlling entity possesses, directly or indirectly, more than fifty percent. (50%) of the voting rights of the other entity or the power to direct, or to cause the direction of, the management of such other entity, whether through ownership of voting rights, securities or otherwise.
‘Confidential Information‘ of the Disclosing Party includes the following, whether or not in material form:
(a) any information (in any form) howsoever disclosed by the Disclosing Party to the Recipient and which the Disclosing Party designates as confidential, including, but not limited to, technical, market, business or financial information, trade secrets, know-how, methodologies, techniques, principles or processes of manufacture, source and object codes, business and marketing plans, projections, databases, computer programs, algorithms, products designs, arrangements with other entities, client, customer or project information, test results, client or customer lists, formulae, concepts not reduced to material form, the technical principles, features or functionality of any product, the appearance, ergonomics or user interface for any product, product development plans, concepts or timescales, designs, plans, drawings, models, any invention or discovery or any provisional or complete patent application, any unregistered or registered trademarks, applications for trademark registration or similar rights and any registered design, application for design registration or similar rights;
(b) any documents prepared by the Recipient based on or incorporating any such information;
(c) the contents of this document;
(d) the existence and nature of the relationship between Party A and Party B;
(d) all copies of the information and other records referred to in any of paragraphs (a) and (b),
but excludes information that:
(i) is or becomes public knowledge through no fault of the Recipient;
(ii) the Recipient acquires from others;
(iii) is established by means of written records or otherwise as having already been known to the Recipient prior to the date of disclosure;
(iv) is independently owned or developed by the Recipient without reference to information of the Disclosing Party provided under this document and the terms hereof;
(v) is hereafter furnished to others by the Disclosing Party without restriction on disclosure; or
(vi) is required to be disclosed by law.
For the purpose of this definition of Confidential Information, information is designated as confidential if, in the case of information provided in tangible form, by electronic media or by visual display, it is marked with or accompanied by the legend “CONFIDENTIAL”, or, in the case of information disclosed orally, such disclosure is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of information disclosed, delivered to the Recipient within thirty (30) days of such disclosure. All information disclosed orally which is identified as confidential when revealed shall be treated as Confidential Information pending timely delivery of the relevant writing referred to above.
‘Disclosing Party‘ means, as the case may be, the party disclosing Confidential Information to the other party.
‘Recipient‘ means, as the case may be, the party receiving Confidential Information from the other party.
‘Recipient Authorised Person‘ means all employees and officers of the Recipient who reasonably require access to Confidential Information to facilitate the Purpose, including Affiliates of either party to this Agreement who have a need to know such Confidential Information in connection with the Purpose or any part of the Purpose.
2. DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION
2.1 The Recipient undertakes that it will for a period of one hundred and twenty (120) months from the date it receives any Confidential Information:
(a) use Confidential Information solely for the Purpose;
(b) keep confidential all Confidential Information (subject to the disclosure permitted under clause 2.2); and
(c) otherwise comply with the terms of this document.
2.2 The Recipient may disclose Confidential Information only to Recipient Authorised Persons who:
(a) have a reasonable need to know (and only to the extent that each has a need to know);
(b) are aware that Confidential Information must be kept confidential; and
(c) have signed a service agreement with the Recipient which imposes confidentiality obligations, a copy of which confidentiality clause is available from the Recipient for inspection on request (it being the case in any event that the Recipient must procure and ensure that each Recipient Authorised Person also observes all obligations imposed on Recipient under this document); and, for the avoidance of doubt, each party hereby agrees that the other party may make such disclosure in accordance with this sub-paragraph (c) of this clause 2.2.
The Recipient must:
(a) establish and maintain security measures to safeguard Confidential Information from access or use not authorised by this document at least to the same level used by the Recipient to protect its own confidential information; and
(b) keep Confidential Information under the Recipient’s control.
4. ACKNOWLEDGMENT
The Recipient acknowledges that it is aware that any breach of this Confidentiality Deed may result in the Disclosing Party suffering damage.
5. QUALITY OF INFORMATION AND LIMITATION OF LIABILITY
5.1 The Disclosing Party warrants to the Recipient that the Disclosing Party has the right to disclose to the Recipient the Confidential Information which the Disclosing Party discloses. However, the Recipient acknowledges that:
(a) the Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information or any other information disclosed to the Recipient; and
(b) the Disclosing Party is not obliged to disclose any information (including any Confidential Information) to the Recipient.
6.1 The Disclosing Party may terminate the Recipient’s rights to use Confidential Information at any time with immediate effect by giving written notice to the Recipient.
6.2 On such termination the Recipient’s right to use Confidential Information ceases and the Recipient must immediately, at the Disclosing Party’s option and request:
(a) return to the Disclosing Party;
(b) destroy and certify in writing to the Disclosing Party the destruction of; or
(c) destroy and permit the Disclosing Party to witness the destruction of,
all Confidential Information then in the Recipient’s possession or control (with the exception of one copy of same which the Recipient may retain in safe custody for insurance and record purposes).
6.3 Termination under this clause does not affect any accrued rights or remedies either party may have and the obligations of confidentiality and other terms of this document continue to apply to each party unless otherwise agreed in writing with the other party.
7. WAIVER
Any failure of a party to at any time insist on performance of any of the provisions of this document is not a waiver of that party’s right to later insist on performance of that or any other provision of this document.
8. GOVERNING LAW AND JURISDICTION
This document is governed by the laws of [COUNTRY] and the parties to this document irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of the Republic of [COUNTRY], and Courts entitled to hear appeals from those Courts.
If for any reason any provision of this document would render the document ineffective, void, voidable, illegal or unenforceable, that provision or the relevant part thereof must, without in any way affecting the validity of the remainder of this document, be severable and this document must be read and construed and take effect for all purposes as if that provision or part were not contained herein.
10. NO THIRD PARTY BENEFICIARY
Save for the interests of any member of the Shareholder Group or [THIRD PARTY] (incorporated in [COUNTRY]) in relation to any Confidential Information of or concerning such person which is disclosed in connection with the Purpose, the terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other person. Save for each member of the Shareholder Group and [THIRD PARTY], a person who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act (Cap 53B) to enforce any of its terms.
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