Non Disclosure Agreement
THIS AGREEMENT, made and entered into this ____ day of _________________, by and between [COMPANY A] (hereinafter called “[COMPANY A]”) a company organized and existing under the laws of [COUNTRY], having its principal place of business at [ADDRESS] and [COMPANY B] (hereinafter called the “[COMPANY B]”), a company organized and existing under the laws of [COUNTRY], having its principal place of business at [ADDRESS].
In connection with the evaluation of the feasibility of acquiring and equity stake in the the [COMPANY B]’s plantation (the “Project” or the “Purpose”), [COMPANY A] has received or is receiving certain information which is non-public, confidential or proprietary in nature. That information and any other information( in whatever form, including information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information) concerning the [COMPANY B], the Project or the Purpose, which is furnished to [COMPANY A] by the [COMPANY B] or any of its Affiliates (defined below) at any time on, before or after the date of this agreement, together with analyses, compilations or other materials prepared by [COMPANY A] or its directors, officers, employees, agent, auditors, attorneys, consultants or advisors, or those of [COMPANY A]’s Affiliates (collectively, “Representatives”), which contain or otherwise reflect such information or [COMPANY A]’s review of or interest in the Purpose, are hereinafter referred to as the “Confidential Information.” In consideration of the disclosure of the Confidential Information by the [COMPANY B] and/or its Affliated to [COMPANY A], [COMPANY A] agrees that:
1. It will not, without the prior written consent of the [COMPANY B], use, either directly or indirectly, any of the Confidential Information except in connection with the proposed Purpose.
2. It agrees that it will not reveal the Confidential Information except to its Representatives who need to know the Confidential Information for the Purpose, who are informed by it of the confidential nature of the Confidential Information, and who agree to be bound by a like covenant of confidentiality. [COMPANY A] agrees to be liable for any breach of this agreement by any of its Representatives.
3. Without the [COMPANY B]’s prior written consent, [COMPANY A] shall not disclose to any person (except as otherwise expressly permitted herein) the fact that the Confidential Information has been made available to [COMPANY A], that discussions are taking place between the [COMPANY B] and [COMPANY A] concerning the Project or the Purpose, or any of their terms, conditions or other facts with respect thereto (including the status thereof), or that the Purpose has been consummated.
4. This Agreement will not apply to any portion of the Confidential Information that (i) is or becomes generally available to the public on a non-confidential basis through no fault or action by [COMPANY A] or its Representatives, or (ii) is or becomes available to [COMPANY A] on a non confidential basis from a source other than the [COMPANY B] or their Representatives, which source is, to the best of the knowledge of [COMPANY A], not prohibited from disclosing such Confidential Information to [COMPANY A] by a contractual, legal or fiduciary obligation to the [COMPANY B] or (iii) [COMPANY A] can demonstrate to have had rightfully in its possession prior to disclosure by the [COMPANY B] or (iv) is independently developed by [COMPANY A] or its Affiliates without use of any Confidential Information.
5. If [COMPANY A] are required by any law, regulation, regulatory or supervisory authority having jurisdiction over it to disclose any Confidential Information, [COMPANY A] will promptly notify the [COMPANY B] of such requirement so that the [COMPANY B] may seek an appropriate injunction or waive compliance with the provisions of this Agreement. If, after such notice is provided, [COMPANY A] is, in the opinion of its counsel, compelled to disclose the Confidential Information, [COMPANY A] may disclose that portion of the Confidential Information which its counsel advises it that it is compelled to disclose. [COMPANY A] shall further request the recipient of such Confidential Information to accord it with confidentiality treatment to the extent permitted by law.
In the event that discussions between the [COMPANY B] and [COMPANY A] concerning the Purpose are discontinued or [COMPANY A]’s participation in the Purpose is otherwise terminated, [COMPANY A] shall return to the [COMPANY B] all copies of the Confidential Information that were furnished to it by or on behalf of the [COMPANY B] and confirm to the [COMPANY B] in writing that it has used commercially reasonable means to destroy or permanently erase all other copies thereof provided that [COMPANY A] will be entitled to retain one copy of the Confidential Information, and all summaries, internal memos or correspondence incorporating or making reference to the Confidential Information for its records in compliance with its internal procedures and regulatory requirements. All of [COMPANY A]’s obligations hereunder and all of the [COMPANY B]’s rights and remedies hereunder shall survive any return or destruction of the Confidential Information.
6. [COMPANY A] acknowledges that disclosure of the Confidential Information in violation of the terms of this Agreement will have serious consequences, and agrees that, in the event of any breach by [COMPANY A] or its Representatives of this Agreement, the [COMPANY B] will be entitled to equitable relief (including injunction and specific performances) in addition to all other remedies available to it at law or in equity.
7. The [COMPANY B] warrants that it has the right to disclose the Confidential Information to [COMPANY A].. [COMPANY A] acknowledges and agree that none of the [COMPANY B] or any of its Representatives (i) makes any representation or warranty, express or implied, as to, or assumes any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or be otherwise liable to [COMPANY A] or any other person in respect of the Confidential Information.
8. [COMPANY A] acknowledges that some or all of the Confidential Information is or may be price-sensitive Confidential Information and that the use of such Confidential Information may be regulated or prohibited by applicable legislation relating to insider dealing and [COMPANY A] undertakes not to use any Confidential Information for any unlawful purpose.
9. [COMPANY A] acknowledges that this Agreement is made for the benefit of the [COMPANY B] and its Affiliates and that each of them shall have the right to enforce the terms of this Agreement.
10. For the purpose of this Agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with the relevant party.
11. This agreement and [COMPANY A]’s obligations with respect to the Confidential Information received under this Agreement expire on the third anniversary of the date hereof.
12. This Agreement shall be governed by and constructed in accordance with the laws of Singapore. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force which rules are deemed to be incorporated by reference into this Paragraph 12. The arbitration shall be conducted in the English language by one arbitrator who, if not agreed by the parties, shall be appointed by the Chairman of the SIAC upon the request of either party. Each of the parties hereby agrees that this arbitration agreement shall be irrevocable. The arbitration award shall be final, binding and enforceable by any court having jurisdiction for that purpose.
13. The [COMPANY B] understands that [COMPANY A] or its Affiliates may currently or in the future be developing information internally, or receiving information from other parties that may be similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or inference that [COMPANY A] or its Affiliates will not (i) develop products, services or systems; (ii) have products, services or systems developed for it; or (iii) invest in entities that develop products, services or systems, that, without violation of this Agreement, compete with the products, services or systems contemplated by the [COMPANY B]’s Confidential Information, provided that [COMPANY A] has not breached its confidentiality obligations under this Agreement.
14. Neither party hereto shall have any obligation to enter into the Project, or any other business transaction, with the other by reason of disclosing or receiving Confidential Information under this Agreement, and no such obligation shall arise unless set forth in a further written agreement signed by the parties hereto.
15. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed hereunder, and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of all parties.
Signed by )
For and on behalf of )
[COMPANY B] )
Signed by )
For and on behalf of )
[COMPANY A] )
