BY and BETWEEN
___________________, hereinafter referred to as "Company A",
___________________, with its registered office at ___________________ hereinafter referred to as "COMPANY B";
When appropriate each of these parties will be hereinafter individually referred to as "Party" and/or "receiving Party" and/or "communicating Party", and collectively referred to as "Parties";
WHEREAS, the Parties have engaged in and/or wish to carry on confidential discussions and/or negotiations for the purpose of ______________________ (hereinafter referred to as the "Project") and;
WHEREAS, the Parties expect that during the aforesaid discussions and/or negotiations it may be necessary for each Party, at its discretion, either itself or through a third party, to disclose and communicate, in writing and/or orally, information which herein below is defined as "Confidential Information", to the other Party;
AND WHEREAS, the Parties wish to reciprocally protect and safeguard their respective proprietary rights in respect of aforesaid Confidential Information and desire to define their respective rights and obligations in relation thereto in this Agreement;
NOW THEREFORE THE PARTIES HAVE HEREBY AGREED THE FOLLOWING:
"Confidential Information" shall mean any and all information, including but not limited to ideas, discoveries, inventions, specifications, formulae, programs, plans, drawings, models, requirements, standards, financial data, trade and manufacturing and know-how, as well as any and all intellectual and industrial property rights contained therein and/or in relation thereto, title to which
belongs to the communicating Party or for which the communicating Party has obtained a right to disclose or divulge.
2. OBLIGATIONS AND RIGHTS OF THE PARTIES
2.1. The Parties hereby reciprocally acknowledge that the Confidential Information which either Party, at its sole discretion provides to the other Party, and all rights contained therein and/or in relation thereto, are the exclusive property of the communicating Party and shall be held in trust by the receiving Party for the benefit of the communicating Party.
Confidential Information, if disclosed in writing shall be marked "Confidential" and, if disclosed orally and/or by visual inspection, Confidential Information will first be identified as confidential at the time of oral and/or visual disclosure and will subsequently be confirmed in writing within at the latest thirty (30) days following oral and/or visual disclosure, such written confirmation specifying and identifying the Confidential Information disclosed orally and/or visually.
2.2. Each Party therefore undertakes to keep in the strictest confidence the Confidential Information received in whatever form as specified hereinafter, and to protect and safeguard the same by taking measures at least equal to those applied or applicable to its own Confidential Information.
Each Party agrees to use the Confidential Information received from the other Party solely in connection with the Project and shall refrain from any use of such Confidential Information for any purpose other than the Project.
2.3. Furthermore, each Party agrees not to divulge or disclose, either directly or indirectly, in whatever form or by whatever means, the Confidential Information received from the other Party or any part thereof to third parties without the prior written approval of the communicating Party.
2.4. Any copies and/or reproductions of the Confidential Information shall contain any and all references to the relevant ownership rights and intellectual proprietary rights, as well as any and all markings expressing the confidential nature of the copied Confidential Information.
2.5. The Parties hereby agree that each Party has the right to disclose or give access to the Confidential Information received from the other Party and/or any part thereof to its employees to the extent such employees have a need to know within the framework of the Project and provided the receiving Party obtained the necessary secrecy, confidentiality and non-disclosure undertakings from such employees prior to such disclosure or such giving access.
2.6. The confidentiality obligation as set forth in this Article 2 shall commence as from the date of execution of this Agreement by both Parties and shall survive the termination of this Agreement for _____ years.
2.7. The confidentiality and non-disclosure obligation as set forth in this Article 2 shall not apply to Confidential Information:
(I) of which the receiving Party has proved to the reasonable satisfaction of the communicating Party that it was in its possession prior to or at the time of the execution of this Agreement;
(ii) which, at the time of communication to the receiving Party was publicly available or in the public domain;
(iii) which the receiving Party has proved to the reasonable satisfaction of the communicating Party was obtained by the receiving Party from a third party without any non-disclosure and/or confidentiality obligation;
(iv) which the receiving Party has proved to the reasonable satisfaction of the communicating Party, became publicly available through no breach of its obligations under this Agreement by the receiving Party;
(v) which was independently developed by the receiving Party or its associated or affiliated companies without the benefit of data received from the communicating Party or an associated or affiliated company thereof.
(vi) which the Receiving Party is legally required (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar process) to disclose, provided that the Receiving Party promptly (and, in any event, before complying with any such requirement) has provided the communicating Party with notice of such requirement so that it may seek a protective order or other appropriate remedy.
If only a portion of any Confidential Information falls within one or more of the foregoing exceptions, the remainder shall however continue to be subject to the prohibitions and restrictions set out in this Agreement.
2.8. The communication of the Confidential Information supplied under this Agreement does in no event confer or imply the grant or agreement to grant any license or other rights (e.g. intellectual property rights) to the receiving Party, except as specifically set forth in this Article 2.
The communication of the Confidential Information supplied under this Agreement does not allow or entitle the receiving Party to use, lease, sell, disclose to or otherwise dispose for the benefit of any party or person other than the communicating Party, the analysis, products, sub-assemblies, assemblies or components, manufactured, designed or otherwise generated on the basis or by making use of the Confidential Information or by using the Confidential Information in combination with other information.
NO WARRANTY WHATSOEVER IS HEREBY MADE BY THE COMMUNICATING PARTY AS TO THE COMPLETENESS, FITNESS FOR ANY PARTICULAR PURPOSE OR ANY USE OF RESULTS BASED ON THIS INFORMATION AND ON THE NON-INFRINGEMENT OF INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OF AND BY THE CONFIDENTIAL INFORMATION SUPPLIED UNDER THIS AGREEMENT.
3. TERM AND TERMINATION
3.1. This Agreement shall come into force upon execution by both Parties and shall continue thereafter for [enter term] and may, other than in respect of the provisions relating to confidentiality contained in clause 2.6. Herein above, be earlier terminated by either Party upon thirty (30) days prior written notice to the other Party.
3.2. Unless the rights and obligations of the Parties under this Agreement shall be incorporated "in a subsequent Agreement between them, each Party shall, upon termination of this Agreement, immediately return all Confidential Information received from the other Party, together with any and all authorized copies or reproductions, or a duly executed certificate of destruction if such copies or reproductions have been destroyed.
4. SETTLEMENT OF DISPUTES
4.1. This Agreement shall be construed in accordance with and governed by ________ laws.
4.2. Any dispute arising in connection with or out of the performance or the interpretation of this Agreement, which the Parties cannot settle amicably, shall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with said Rules unless the Parties agree on one (1)
The arbitration proceedings shall be conducted in English. Any decision resulting from such arbitration shall be final and binding upon the Parties.
5. GENERAL PROVISIONS
5.1. Nothing in this Agreement shall grant to either Party the right to make commitments of any kind for or on behalf and or for account of the other Party without the latter's prior written consent.
5.2. No amendment to terms and conditions of this Agreement shall be valid and binding on the Parties hereto unless made in writing and signed by an authorized representative of each of the Parties.
5.3. This Agreement shall be binding upon the Parties hereto and their respective successors, assigns, subsidiaries and affiliates.
5.4. The Parties hereto agree to perform their obligations hereunder without any charge or expenses to each other.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year set forth below.