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:-
A. The party whose particulars are stipulated in Section 2 of the First Schedule hereto (hereinafter called ‘—–“) of the one part.
AND
B. The party and its authorized representatives whose particulars are stipulated in Section 3 of the First Schedule hereto (hereinafter called “the Recipient”) of the other part.
RECITAL
WHEREAS:-
(a) ——– undertakes and carries on the Business and is the proprietor of the Confidential Information relating to the Business.
(b) The Recipient is an invitee of —– for the purpose stipulated in Section 4 of the First Schedule hereto (hereinafter called “the Purpose”).
(c) To enable the Recipient to undertake the Purpose, ——- may be required to disclose the Confidential Information to the Recipient.
(d) —– desires to maintain secrecy and protect the confidentiality of the Confidential Information that —– 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) The Recipient has agreed that it shall maintain the Confidential Information that it receives from —– in strict confidentiality upon the provisions of this Agreement.
NOW THIS AGREEMENT WITNESSETH as follows:-
1. INTERPRETATION
“Business”
means the business of research development manufacture marketing supply and sale of automation machines and equipment presently and at time hereafter undertaken and carried on by ________________.
“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 ———— and the current future and proposed products and services of —–; and (ii) the information of ——- concerning research, experimental work, development, design details and specifications engineering, (iii) all notes memoranda analyses or other writings prepared by either —— and/or the Recipient using or referring to any information of —— 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. The Recipient acknowledge that it may obtain Confidential Information in discussions with the officers and employees of — and from inspections of —–‘s 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 Agreement includes its holding company, its subsidiary companies and any subsidiary companies of its holding company.
“Recipient”
includes its holding company, its subsidiary companies and any subsidiary companies of its holding company.
2. NON-DISCLOSURE AND NON USE UNDERTAKING OF THE RECIPIENT
2.1 Except for the purpose the Recipient agrees that it will not directly or indirectly make use of, disseminate or in any way disclose any Confidential Information of — to any person, firm or business, except to the extent necessary for negotiations, discussion and consultations with personnel or authorised representatives of —-and any purpose —- may hereafter authorise in writing; The existence of any business negotiations, discussion, consultations or agreements between —- and the Recipient shall not be released to any form of media without the prior written approval of —-. The Recipient agrees that it shall treat all Confidential Information of —- with the same degree of care as it accords to its own confidential information.
3. EXCLUSION FROM NON-DISCLOSURE AND NON-USE UNDERTAKIN
3.1. The Recipient shall not be liable to —- for disclosure of any of the Confidential Information if the Recipient 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 td the Recipient by —- through no fault of the Recipient.
3.1.2. was disclosed with the prior written approval of ——.
3.1.3. was rightfully received by the Recipient from a third party without any obligation of confidentiality.
3.1.4. was independently developed or ascertained by the Recipient.
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 the Recipient 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 —- written notice prior to any disclosure of the Confidential Information so that —– 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 —— prior to or after the date of this Agreement.
4.2 Any Derivatives created by either —- or the Recipient from the Confidential Information shall remain the property of —— 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 MEASURE
5.1 The Recipient undertakes that it will maintain the confidentiality of all Confidential Information that it may acquire from —— in any manner and to secure the confidentiality attaching to the Confidential Information the Recipient shall:
5.1.1 keep separate all Confidential Information and all information generated by the Recipient based thereon from all documents and other records of the Recipient.
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 the Recipient.
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 the Recipient 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 the Recipient 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 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 the Recipient.
5.1.7 on request of —– made at any time shall deliver up to —– 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 The Recipient covenants that neither the recipient nor any other individual, person or entity, directly or indirectly, controlled by or affiliated with Recipient 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 —– or negotiate contract with or have any commercial dealings with any customers or potential customers of —–. Recipient shall not provide to such customers any service andlor products which utilise or incorporates any of the Confidential Information.
6.2 The Recipient or any other individual, person or entity, directly or indirectly, controlled by or affiliated with Recipient shall not directly or indirectly carry on or be engaged or interested in any business competing with the business of ——.
6.3 The Recipient or any other individual, person or entity, directly or indirectly, controlled by or affiliated with Recipient shall not solicit or entice away or endeavour to solicit or entice away any director or employees of ———- 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 —— warrants that it has the right to make the disclosures under this Agreement.
7. REVERSE-ENGINEERING
7.1 The Recipient shall not reverse-engineer, decompile, or disassemble any hardware or software provided or disclosed to the Recipient 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 the Recipient obtains from ——.
8. PROPRIETARY RIGHTS
8.1 The Recipient hereby acknowledges that the Confidential Information disclosed by —- to the Recipient shall remain the property of ——.
9. RECIPIENT’S CONFIDENTIAL INFORMATION
9.1 It is agreed that —– does not wish to receive any proprietary or Confidential Information from the Recipient. If —– determines that it is necessary and appropriate for — to receive proprietary or confidential information from the Recipient such disclosure to — shall be pursuant to a separate written Non-disclosure and Confidentiality Agreement between —- and the Recipient.
10. INJUNCTIVE RELIEF
10.1 A breach of any of this provisions of this Agreement will result in irreparable and continuing damage to — and for which there will be no adequate remedy at law and —- shall be entitled to injunctive relief and/or specific performance and such other relief as may be appropriate (including monetary damages).
11. NON-ASSIGNMENT
11.1 The Recipient shall not assign or transfer any rights or obligations under this Agreement without the prior written consent of —-
12. GOVERNING LAW
12.1 This Agreement shall be governed by and construed in all respects in accordance with Malaysian Law and the parties irrevocably agree that the Courts of Malaysia shall have exclusive jurisdiction in respect of any dispute suit action or proceedings which may arise out of or in connection with this agreement.
13. NO VARIATIONS EXCEPT BY WRITING
13.1 No provision of this Agreement may be voided, amended, waived, discharged, absolved or terminated verbally nor may any breach or omission of any provision of this Agreement be waived or condoned verbally save with the consent of the parties hereto in writing.
14. NO WAIVER OF RIGHTS
14.1 No failure or delay on the part of the parties hereto in exercising nor any omission to exercise any right, power, privilege or remedy accruing to them hereunder upon any default on the part of the other party shall impair any such right, power, privilege or remedy or to be construed as a waiver thereof or an acquiescence in such default nor shall any action by any party in respect of any default by the other party or any acquiescence in any such default affect or impair any right, power, privilege or remedy of any party in respect of any other or subsequent default.
15. NOPARTNERSHIP
15.1 Nothing in this Agreement shall create or be deemed to create a partnership or agency between the parties.
15.2 This agreement imposes no obligation on either party to purchase, sell, license, transfer or otherwise, dispose or any technology, products or service
16. ENTIRETY
16.1 This Agreement contains the whole agreement between —– and the Recipient relating to the transactions provided for in this Agreement and supercedes all previous discussions understanding and agreements (if any) between parties in respect of such matters and each of the parties to this Agreement acknowledges that in agreeing to enter into this Agreement it has not relied on any representations or warranties except as those contained in this Agreement.
17. SEVERABILITY
17.1 If at any time during the currency of this Agreement any provision, condition, term stipulation, covenant or undertaking of this Agreement is or becomes illegal, void, invalid, prohibited or unenforceable in any respect the same shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability without invalidating in any manner whatsoever the remaining provisions hereof.
18. NOTICE
18.1 Any notice or demand required to be served hereto shall be in writing and shall be deemed to be sufficiently served if it is sent by the party, or its/his solicitors by registered post addressed to the other party’s address herein mentioned and in such case it shall be deemed to have been received at the time when such registered letter would in the ordinary course be delivered.
19. SUCCESSORS-IN-TITLE
19.1 This Agreement shall be binding upon the successors-in-title and permitted assigns of the Parties hereto.
IN WITNESS WHEREOF the parties have set their respective hands the day and year first abovewritten.
SIGNED by for and on behalf of —- in the presence of:
SIGNED by for and on behalf of Recipient in the presence of:
