ABC Company having its principal office at _________ (hereinafter referred to as “ABC”) and XYZ Company having its principal office at _________ (hereinafter referred to as “XYZ”) in consideration of the mutual covenants of this Agreement, hereby agree as follows:
Article 1 In connection with negotiations between both parties regarding a strategic alliance (hereinafter referred to as “Subject Matter”), each party to this Agreement may wish to disclose its proprietary information (hereinafter referred to as “Information”) to the other party on a confidential basis. The disclosing party may consider such Information proprietary under this Agreement either because it has developed the Information internally, or because it has received the Information subject to a continuing obligation to maintain the confidentiality of the Information, or because of other reasons.
Article 2 When information deemed to be proprietary is furnished in a tangible form, the disclosing party shall mark the Information in a manner to indicate that it is considered proprietary or confidential or otherwise subject to limited distribution as provided herein. When Information is provided orally, the disclosing party shall, at the time of disclosure, clearly identify the information as being proprietary or confidential or otherwise subject to limited distribution as provided herein, and promptly thereafter provide written confirmation of the proprietary or confidential nature of such information. In addition, the existence and terms of this Agreement, and the fact and substance of discussions and correspondence between the parties concerning the Subject Matter, shall be deemed Proprietary Information.
Article 3 With respect to Information disclosed under this Agreement, the party to whom the Information is disclosed, its employees and employees of its affiliated companies shall:
(1) Hold the Information in confidence, exercising a degree of care not less than the care used by disclosing party to protect its own proprietary of confidential information that it does not wish to disclose, and in any event, not less than a reasonable degree of care;
(2) Restrict disclosure of the Information solely to those directors, officers, employees and/or agents/consultants with a need to know and not disclose it to any other person;
(3) Advise those persons to whom the Information was disclosed of the obligations to keep in confidence with respect to the Information; and
(4) Use the Information only in connection with continuing correspondence and discussions by the parties concerning the Subject Matter, except as may otherwise be mutually agreed upon in writing.
Article 4 If the party to whom information has been disclosed proposes to disclose that Information to any unaffiliated consultant or agent, it shall obtain the prior written consent of the party from whom the Information was originally received, and shall arrange for the execution of the consultant or agent of non-disclosure agreement in a form satisfactory to the party from whom the Information was originally received.
Article 5 The Information shall be deemed the property of the disclosing party and, upon request, the other party shall return all Information received in tangible form to the disclosing party or shall destroy all such information at the disclosing party’s direction. If either party loses or makes an unauthorised disclosure of the other party’s Information, it shall notify such other party immediately and use reasonable efforts to retrieve the lost or wrongfully disclosed Information.
Article 6 The party to whom Information is disclosed shall have no obligation to preserve the proprietary nature of any Information which:
(1) Was previously known to such party free of any obligation to keep it confidential; or
(2) Is or becomes generally available to the public by means other than unauthorized disclosure; or
(3) Is developed by or on behalf of such party independent of any information furnished under this Agreement; or
(4) Is received from a third party whose disclosure does not violate any confidentiality obligation; or
(5) Is required to be disclosed by law or by any government agency having jurisdiction pursuant to an order to produce or in the course of a legal proceeding pursuant to a lawful request for discovery provided, however, that if a party is so required to disclose the Information such party shall promptly notify the other party of the order or request in discovery and cooperate with such other party in any reasonable manner requested in the event the other party elects (at its expense) to intervene in the proceeding in which the order was entered or the request for discovery made for the purpose of limiting or avoiding such disclosure by any lawful means including, but not limited to in camera review and protective order.
Article 7 Neither this Agreement, nor the disclosure of Information under this Agreement, nor the ongoing discussions and correspondence between the parties, shall constitute or imply a commitment or binding obligation between the parties or their respective affiliated companies, if any, regarding the Subject Matter. If, in the future, the parties elect to enter into binding commitments regarding the Subject Matter, such commitments shall be explicitly stated in a separate written agreement executed by both parties, and the parties hereby affirm that they do not intend their discussions, correspondence, and other activities to be construed as forming a contract regarding the Subject Matter or any other transaction between them without execution of such separate written agreement.
Article 8 Neither party is responsible or liable for other party’s actions taken pursuant to this Agreement, or for any business decisions made or inferences drawn by the other party in reliance on the Information provided according to this Agreement. Neither party solicits any changes in the business practices or services of the other, and no obligations are incurred with regard to the accuracy of the observations of either party. Neither party makes any warranty, express or implied, with respect to the Information. Neither party shall be liable to the other hereunder for amounts representing loss of profits, loss of business, or indirect, consequential, or punitive damages of the other party in connection with the provision or use of the Information hereunder.
Article 9 This Agreement shall be binding upon the parties hereto and their respective successors and assignees.
Article 10 This Agreement shall be governed by and construed in accordance with Britain Law and shall be subject to the jurisdiction of the English Courts. In the event of a dispute arising under this Agreement resulting in litigation, the loosing party shall pay the court costs and reasonable attorney’s fees of the prevailing party.
Article 11 Disclosures of Information under this Agreement may take place for a period (the “Information Disclosure Period”) of no more than one (1) year following the Effective Date set forth below. The obligations of the parties contained in Paragraphs 3 and 4 shall survive and continue beyond the expiration of the Information Disclosure Period for a term of three (3) years.
Article 12 The parties acknowledge that in the event of an unauthorized disclosure, damages to the disclosing (Information-owning) party as a resu lt thereof may be difficult or impossible to ascertain, and in any event inadequate to compensate such disclosing party; and therefore such disclosing party may seek injunctive relief and/or specific performance as well as monetary damages against the party that breaches this Agreement.
Article 13 So long as this Agreement is not breached as a result thereof, this Agreement shall not be construed to prevent either party from pursuing any other business activity, whether or not related to the Proprietary Information exchanged.
Article 14 This Agreement constitutes the entire understanding between the parties with respect to the Information provided hereunder. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative.
Each party represents that it has caused this Agreement to be executed on its behalf as of the date written below by a representative empowered to bind that party with respect to the undertakings and obligations contained herein.