Non Disclosure Agreement
1 - Purpose:
The Disclosing Party desires to enter into discussions with the Receiving Party regarding already existing/upcoming projects, which are extremely confidential in nature.
2 - Definitions:
“Confidential Information” shall mean all information disclosed (whether orally, in writing or by any other means), including but not limited to information relating to that party’s products, operations, processes, plans or intentions, production information, know-how, copyrights, patents, trademarks, design rights, trade secrets,business strategies, designs, specifications, market opportunities, existing clients/shareholders, any communication whether oral or written shared with any third party, client, stakeholder by the Disclosing Party and business affairs, but shall not include any part of such information which:
(a) already is or comes into the public domain in any way without breach of this Agreement by the Receiving Party; or
(b) the Receiving Party can show that it was already in their possession or knowledge by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or
(c) is hereafter furnished by the Disclosing Party to a third party without restriction on disclosure or use; or
(d) is required to be disclosed under law provided that it shall first notify the Disclosing Party forthwith of any such required disclosure and limit such disclosure as far as is possible under applicable law. Receiving Party shall take all reasonable and lawful actions to obtain confidential treatment for any such disclosure. Such disclosure shall, however, not relieve the Receiving Party of its other obligations contained herein.
“Trade Secrets” means any information including, but not limited to, technical or non-technical data, a formula pattern, compilation, programme, device, method, technique, process, financial data, or lists of actual or potential customers or suppliers which
- derives economic value, actual or potential, from not being generally known to other persons who can derive economic value from its disclosure or use; and
- is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.
“Person” means any individual, corporation, limited or general partnership, Company, joint venture, association, trust or other entity or organisation, whether or not a legal entity.
3 - Obligations to maintain confidentiality
3.1. In relation to Confidential Information received from the Disclosing Party and the Receiving Party, the Receiving Party agrees and acknowledges as follows:
3.1.1. to treat the Confidential Information in confidence and not publish it or disclose it to any third party and not use it for any other commercial purpose or obtain commercial advantage over the Disclosing Party;
3.1.2. not to use, copy, distribute, install or download any of Confidential Information except as is reasonably necessary for the purposes aforesaid and in such circumstances the copies or written documentation shall remain at all times the property of the Disclosing Party;
3.1.3. to treat the Confidential Information with the same degree of care and with utmost protection from any unauthorised disclosure as the Receiving Party maintains its own confidential or proprietary information.
3.2 Upon termination of the Agreement between the Disclosing Party and the Receiving Party, the Receiving Party shall:
3.2.1. promptly return all documents, materials and records and all copies thereof of the Confidential Information to the Disclosing Party;
3.2.2. remain bound by Clause 2 above for a period of 5 years from the execution date of this Agreement.
4 - Exception to obligation to maintain confidentiality
4.1 In the event the Receiving Party, or any of his/her representatives, is requested or becomes legally compelled to disclose any Confidential Information, then the Receiving Party (or his/her representative) shall provide the Disclosing Party with prompt written notice of such request or requirement so the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions hereof, the Receiving Party (or his/her representative) so requested or compelled agrees to furnish only that portion of the Proprietary and Confidential Information that it is advised by counsel is legally required to be disclosed and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded the Proprietary and Confidential Information
5 - Damages and Remedies
- Receiving Party agrees to pay the Disclosing Party all-monetary damages caused by Receiving Party’s breach or threatened breach of this Agreement, including but not limited to, lost revenues and sponsorship. The Receiving Party also agrees to pay for all costs and expenses, including reasonable attorneys’ fees, incurred by the Disclosing Party in enforcing its rights hereunder, in addition to any other relief to which the Disclosing Party may be entitled. Receiving Party further agrees to indemnify and defend Disclosing Party for all damages incurred as a result of claims brought against Disclosing Party by Persons caused by, flowing from or relating in any way to Employee’s breach or threatened breach of this Agreement.
- The Receiving Party acknowledges that any such damages will be difficult if not impossible to calculate in monetary terms and therefore agrees that in the event of a breach of any material provision of this Agreement, the Receiving Party will not oppose a claim for equitable relief, including any affirmative temporary restraining order with or without notice, any preliminary injunction and/ or a permanent order to enjoin any further violation of this Agreement, in addition to any prayer for monetary relief for damages suffered by Disclosing Party and the exercise of any other rights available to Disclosing Party under law or in equity.
6 - General
- Amendment & Waiver: Any and all additions, modifications, and waivers of this agreement must be made in writing and signed by all parties. However, the failure of a party to insist on full compliance with any provisions of this agreement in a particular instance shall not preclude it from requiring full compliance thereafter.
- Severability: If any portion of this agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this agreement are to be and shall be deemed severable. If any party hereto incurs any legal fees, whether or not action is instituted, to enforce the terms of this agreement or to recover damages or injunctive relief for breach of this agreement, it is agreed that the successful or prevailing parties shall be entitled to reasonable attorney fees and other costs in addition to any other relief to which it or they may be entitled.
- Entire Agreement: This agreement constitutes the entire understanding between all the parties and supersedes all previous understandings, agreements, communications and representations, whether written or oral, concerning the discussions by and between the parties hereto and the confidential information.
- Mutuality: To the extent that confidential information is disseminated or exchanged by both parties, such information shall be confidential as to both parties.
- Notices: Any communication in connection with this Agreement must be in writing and be delivered by registered mail receipt acknowledged, e-mail to the address set out at the beginning of this Agreement. The respective email addresses of both the parties are as under:-
- Representations & Warranties: Parties represent and warrant that they may lawfully enter into this Agreement and that they have no obligations or commitments inconsistent with this Agreement. No other warranty, express or implied is hereby made or shall be deemed to have been made by any Party.
- Independent Parties: Nothing in this Agreement shall be construed as establishing any joint venture, partnership, employment, agency or other business relationship between the Parties and no Party shall have any authority to incur any obligations or commitments or make any representations, warranties or guarantees or to act for or on behalf of the other Party.
- Counterparts: This Agreement is signed in two counterparts, each of which is an original and both of which taken together constitute one and the same instrument.
- Governing law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of India. Any disputes shall be subject to the exclusive jurisdiction of the courts and dispute resolution forums at New Delhi.