This Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of the later of the two signature dates below by and between:
(A) Exicon Limited, a company incorporated under the laws of Hong Kong with its principal offices at Room 302, 3/F Wilson House, 19-27 Wyndham Street, Central, Hong Kong; and
(B) _____________________________ [Insert full name] of ______________________________________________________ [Insert full address]
for the purpose of exploring a possible business relationship, including the introduction of potential partners under referral fee arrangements to be agreed between the parties (“Purpose”).
A party disclosing confidential information and a party receiving confidential information are hereafter referred to as “Discloser” and “Recipient” respectively, both of them are referred to as “parties” collectively.
IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE DISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Definition of Confidential Information and Exclusions
a) “Confidential Information”, regardless of the form or manner in which it is disclosed, shall include, but is not limited to, past, present or future customers or employees; business practices and concepts; costs, prices and pricing methods; marketing and customer information; financial results, budgets, forecasts and projections; technical data, schematics, analyses, designs, specifications, drawings, ideas; methods, trade secrets, processes, know-how, computer programs, prototypes, research and development activities; and information on production, manufacturing and distribution; whether received from clients or other third parties that Discloser is obligated to treat as confidential and any other information received or acquired by Recipient from the Discloser in the course of exploring the possible business relationship.
b) Except as otherwise indicated in this Agreement, “Discloser” also includes all Affiliates of Discloser and, except as otherwise indicated, the term “Recipient” also includes all Affiliates of the Recipient. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control or are controlled by, or are under common control with a party.
c) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available through no wrongful act of the Recipient; (ii) is already known to the Recipient at the time of disclosure; (iii) is rightfully received by the Recipient from a third party without restriction on disclosure and without breach of this Agreement; (iv) is independently developed by Recipient and without the use of any of the Confidential Information. The receiving Party shall bear the burden of proof in any dispute regarding the applicability of any exclusion.
2. Limitation to use
Recipient agrees to accept Discloser’s Confidential Information solely for use in connection with Recipient’s business discussions with Discloser. Recipient shall refrain from reverse engineering, decompiling or disassembling Confidential Information and shall not disclose, publish, distribute or disseminate Confidential Information to anyone other than those of its employees with a need to know in pursuance of Recipient’s business relationship with Discloser.
Both parties acknowledge that their cooperation is highly confidential information. In no event shall either party disclose partly or wholly any information related to the cooperation to public or any third party. Without the other party’s prior written consent, neither party shall identify the other party as a customer or partner in any publications or statements.
Recipient agrees to use reasonable care, but in no event less than the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, to prevent the unauthorized use, disclosure, publication and dissemination of Confidential Information. Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of Discloser.
3. Mandatory Disclosure Exemption
Recipient may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Recipient either (i) gives the undersigned Discloser representative reasonable notice prior to such disclosure to allow Discloser to have a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection under applicable law or regulation.
4. Return of Confidential Information
Upon the first request of Discloser, Recipient shall return all originals, copies, reproductions and summaries of all Confidential Information which were, at any time, in its possession and all materials (in any medium) which contain or embody Confidential Information.
Each party acknowledges that any breach by it of this Agreement could cause irreparable injury to the other party and that, as monetary damages would not be an adequate remedy for that breach, the other party will be entitled to the remedies of injunction, specific performance and any other available relief in accordance with applicable law in any court of competent jurisdiction restraining it from any further or threatened breach or from disclosing any Confidential Information of the other party. Nothing in this Agreement will prohibit a party to it from pursuing any other remedies available to it, at law, for any breach or threatened breach including (without limitation) recovery of monetary damages.
6. No warranty, no contract, no reliance
Neither party makes any warranty as to the accuracy or completeness of its Confidential Information unless it has stated otherwise in writing. Each party must make its own business decisions based on the Confidential Information of the other. Each party is fully responsible for those decisions unless the parties enter into a separate agreement to the contrary.
Both parties acknowledge that any Confidential Information disclosed to it by the other is the property of the Disclosing Party and that neither party will acquire by implication or otherwise any right (including without limitation copyright or other intellectual property rights) in or title to or licence in respect of any Confidential Information of the other party. Each party further acknowledges that it may not adapt, modify or amend any part of the Confidential Information of the other party or otherwise deal with any party of the Confidential Information of the other party without the prior express written authority of the Disclosing Party.
Each party agrees and covenants that it will not, directly or indirectly contract and/or engage in competition with the other party’s clients and/or its Affiliates on any associated work engagements without obtaining prior written approval. This clause 8 shall survive termination of the Specified Purpose of the Agreement and continue for a period of two (2) years thereafter.
The parties hereby legally, wholly, and irrevocably bind themselves and guarantee to each other that they shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate each other’s interest, or the interest of relationship between the parties, by any means for the purpose of changing, increasing or avoiding, directly or indirectly, the payment of established or to be established referral fees and/or commissions. The parties further agree not to initiate any transactional relationships that by pass one of the parties in favor of any other individual or entity, in connection with the Purpose or any related future subject matter.
The obligations of the Receiving Party under this Agreement shall survive any termination of the Specified Purpose and shall continue for a period terminating three (3) years following the date of this Agreement.
11. Governing Law and Jurisdiction
This Agreement shall be governed in all respects by the non-exclusive jurisdiction of the Hong Kong Special Administrative Region (“Hong Kong”) and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.