Mutual Non-Disclosure and Confidentiality Agreement

This mutual Non-Disclosure and Confidentiality Agreement (“Agreement” of “NDA”) is made effective this _______ day of ______________ by and between:

_________________________________________________________________________________________, having its registered office ______________________________________ hereinafter referred to as ‘___________(which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) of the FIRST PART;

AND

_________________________________________________________________________________________, having its registered office ______________________________________ hereinafter referred to as ‘___________(which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors and assigns) of the SECOND PART;

_____________ and ‘_______’ are hereinafter referred to collectively as “Parties” and individually as “Party”.

“Disclosing Party” shall mean the Party disclosing the information and the Party in receipt of such disclosed information shall be referred to as the “Receiving Party” or ‘recipient’ as conveniently may be referred.

WHEREAS ________ is engaged in the business of ______.

 WHEREAS _________ is engaged in the business / profession of ________________________.

AND WHEREAS, the parties are in discussion and evaluation of business possibilities of _________ and related services (herein after may be referred to as the "Purpose") which may require both to disclose certain technical, non-technical, financial, business and other proprietary Confidential Information (as defined hereinafter below) to each other

AND WHEREAS, the Parties desire to protect the confidentiality of any Confidential Information disclosed or exchanged to each other pursuant to this Agreement; and

NOW THEREFORE, in consideration of foregoing and mutual covenants contained herein, the Parties agree as follows that:

1.CONFIDENTIAL INFORMATION

The term "Confidential Information" means, with respect to either Party and/or its subsidiaries, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of or relating to the disclosing Party (including, but not limited to, information identified as being confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and suppliers lists, financial or technical or service matters or data, trade secrets, designs, programming codes, employee/agent/ consultant/officer/director related personal or sensitive data, intellectual property and any information which might reasonably be presumed to be confidential in nature and also includes all information identified by the disclosing Party as confidential.

The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with the Disclosing Party, (iv) not to copy or reverse engineer any such Confidential Information and (v) not to export or reexport (within the meaning of export control laws or regulations, as applicable) any such Confidential Information or product thereof. If the receiving party is an organization, then the Receiving Party also agrees that, even within Receiving Party,

2. EXCLUSIONS

Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after _____ years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding.

Immediately upon a request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party all Confidential Information of the Disclosing Party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. The Receiving Party understands that nothing herein (i) requires the disclosure of any Confidential Information of the Disclosing Party or (ii) requires the Disclosing Party to proceed with any transaction or relationship.

3. TERM AND TERMINATION:  

This Agreement shall come in effect from ______ ("Effective Date") and remain in effect up to _____years from the Effective Date.  However, the obligation to maintain confidentiality of Confidential Information shall survive for immediate next two (2) years from the expiry or termination of this Agreement.

4. RELATIONSHIP:

Nothing contained in this Agreement is intended to construe, constitute, create, give effect to, expect or otherwise recognize a joint venture, partnership or any other form of business relationship of any kind and the rights and obligations of the Parties shall be limited to those expressed and set forth herein. Each Party shall act as an independent contractor and not as an agent or master of the other Party for any purpose whatsoever, and no Party shall have any authority to bind the other Party by virtue of this Agreement in any manner.

5. REMEDIES:

The Receiving Party acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information.  The damages to Disclosing Party that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate.  Therefore, the Receiving Party hereby agrees that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof.  Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the disclosing party shall be entitled to recover it’s reasonable attorney’s fees and expenses. 

6. RETURN OF CONFIDENTIAL INFORMATION:

Each Party shall promptly upon the request of the Disclosing Party, return to the Disclosing Party, the documents comprising the Confidential Information or any part thereof or at the option of the Disclosing Party will destroy any copies, notes, or extracts thereof, without retaining any copy thereof and provide a declaration of destruction, provided that the Receiving Party shall be entitled to retain and preserve the Confidential Information that is required to be retained under any applicable law.

7. NO WAIVER:

No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.

9. JURISDICTION

In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the laws of the State of _____ without regard to the conflicts of law provisions thereof.

10. SEVERABILITY:

In the event if any of the portions of this Agreement is declared invalid under any applicable law, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.

11. ENTIRE AGREEMENT:

This Agreement constitutes the entire understanding between the Parties herein with respect to the subject matter of this Agreement and it supersedes any and all prior or contemporaneous written communications or Agreement (if executed) relating to the subject matter hereof.

___________________                                                                     ____________________

FOR RECEIVING PARTY                                                            FOR DISCLOSING PARTY

___________________                                                                     ____________________

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