Surat NDA
Surat NDA
Surat NDA
WITNESSETH:
WHEREAS, the Parties are about to enter into discussions and to exchange information
regarding opportunities for cooperation in XXXXXXXXXXXXXX (the "Transaction");
WHEREAS, in the course of such discussions regarding the Transaction, the Disclosing
Party expects to disclose certain confidential, proprietary and trade secret information to
the Receiving Party; and
WHEREAS, the Disclosing Party seeks to safeguard and protect its respective
confidential proprietary and trade secret information.
1. Explanation of Term
1.1 As used herein, the term “Proprietary Information” shall mean all
confidential or proprietary information including, without limitation, trade secrets, names
and expertise of employees and consultants, know-how, formulae, processes, ideas,
inventions (whether or not patentable), schematics, tapes, drawings, part prints, concept
sketches, tool drawings, tool making technology, manufacturing plans, investment plans,
business plans, equipment specifications, records, parts, samples, prototypes,
specifications, photographs, reports, and other technical, business, financial, company and
product development information , documents and data (whether or not reduced to
writing), which is disclosed or made available by the Disclosing Party to the Receiving
Party in connection with the Transaction and (a) if disclosed orally, is orally identified at
the time of disclosure or promptly thereafter in writing or electronically as confidential or
proprietary, or (b) that, regardless of the form of disclosure, should reasonably have been
understood by the Receiving Party because of legends or other markings, the
circumstances of disclosure, or the nature of the information itself to be proprietary or
confidential to the Disclosing Party, an Affiliate of the Disclosing Party or to a third
party. Notwithstanding the foregoing, Proprietary Information shall not include
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information that: (i) is in the public domain on the date hereof or comes into the public
domain other than through the fault or negligence of the Receiving Party; (ii) is lawfully
obtained by the Receiving Party from a third party without breach of this Agreement and
otherwise not in violation of the Disclosing Party’s rights; (iii) is known to the Receiving
Party at the time of disclosure as shown by its written records in existence at the time of
disclosure; or (iv) is independently developed by the Receiving Party, provided the
Receiving Party can demonstrate that it did so without making any use of any Proprietary
Information or other information that the Disclosing Party disclosed in confidence to any
third party.
1.2 For the purposes of this Agreement the term “Affiliate” shall mean any
company, corporation, or other entity, which controls, is controlled by, or is under
common control with a Party now and shall be considered an Affiliate only so long as the
ownership or control, directly or indirectly, meets the conditions set forth herein. For
purposes of this definition, “control” shall mean ownership or control, directly or
indirectly, of more than fifty (50%) percent of the shares having voting rights, or other
equivalent rights of the subject entity entitled to vote.
5. Ownership. All right, title and interest in and to the Proprietary Information
disclosed by the Disclosing Party shall remain the exclusive property of the Disclosing
Party. The Parties acknowledge and agree that this Agreement shall not be construed as a
transfer or sale by the Disclosing Party of any right whatsoever, by license or otherwise,
in or to any of its Proprietary Information, and no licenses or rights under any patent,
copyright, trademark, or trade secret are granted or implied or are to be implied by this
Agreement.
6. Remedies; No Waiver.
6.1 The Parties acknowledge that the extent of damages in the event of the breach of
any provision of this Agreement would be difficult or impossible to ascertain, and that
there will be available no adequate remedy at law in the event of any such breach. Each
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Party therefore agrees that in the event it breaches any provision of this Agreement, the
other Party will be entitled to specific performance and injunctive or other equitable
remedies, in addition to any other relief to which it may be entitled at law or in equity.
Any such relief shall be in addition to and not in lieu of any appropriate relief in the way
of monetary damages.
6.2 The waiver, express or implied, by any Party of any of its rights arising
under this Agreement shall not constitute or be deemed a waiver of any other right
hereunder, whether of a similar or dissimilar nature.
9. Term. The term of this Agreement shall continue for a period of 2 years from
the termination of the Transaction (or the discussions in respect thereof) by either Party,
provided that the non-disclosure and use restriction obligations under this Agreement
shall survive with respect to the Proprietary Information for such longer period during
which such Proprietary Information retains its status as a trade secret or qualifies as
confidential under applicable law.
11. Dispute Resolution. In the event of any dispute with respect to the
construction and performance of this Agreement, the Parties shall first resolve the dispute
through friendly negotiations. In the event the Parties fail to reach an agreement on the
dispute within thirty (60) days after either Party’s request to the other Party for resolution
of the dispute through negotiations, either Party may submit the relevant dispute to
Singapore International Arbitration Centre (“SIAC) for arbitration, in accordance with the
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Rules of Arbitration of Singapore International Arbitration Centre (“SIAC Rules”) and
any amendment or re-enactment thereof. Any Dispute arising out of or in connection with
this Agreement thereof shall be referred to arbitration by three arbitrators, each one to be
appointed by each Party within 30 days after it summit or receive the application of
arbitration, and an Umpire shall be appointed by the director of SIAC or his/her delegator.
The venue of the arbitration proceedings shall be Singapore, the arbitration proceedings
shall be held in English language. The arbitration award shall be final and binding on the
Parties, and consequently neither Party shall appeal or seek re-judgment from any judicial
court in any jurisdiction, however, either Party may apply with a judicial court of
competent jurisdiction for enforcement of the arbitration award.
13. Assignment. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective successors and assigns. This Agreement shall not
be assigned, nor shall any Proprietary Information be transferred to any successor or
assignee, without the prior written consent of the Disclosing Party.
15. Headings. The headings of the various Sections of this Agreement are for
convenience of reference only and shall not modify, define, expand or limit any of the
provisions hereof.
16. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall remain
enforceable to the fullest extent permitted by law.
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17. Costs. Unless otherwise provided, each Party shall bear its own costs in
connection with the preparation and performance of this Agreement.
18. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed or sent by
telecopy as follows:
(b) if to the Receiving Party: Level 19 West Exchange Tower, 322 Des Voeux Rd
Central, Hong Kong
All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt.
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[Signature Page]
PT. BBE
Signature: ________________________
Date:
Signature: ________________________
Date: