Mutual Non-Disclosure Agreement
Between1THING Design & Innovation Private Limited
This Agreement is made as of Sep 08, 2017
1thing Design & Innovation Pvt. Ltd. a company incorporated under the laws of Indian Companies Act 2013 and having its offices at 80-24B, Malviya Nagar , New Delhi (hereinafter referred to as 1THING which expression shall unless repugnant to the context or meaning thereof, be deemed to mean and include its affiliates and successors in business) of the One Part.
YOU (hereinafter referred to as Partner, which expression shall unless repugnant to the context of meaning thereof, be deemed to mean and include its affiliates and successors in business) of the Other Part hereinafter together referred to as “the Parties”.
The Parties are desirous of exploring a Tech Development agreement. For the purposes of negotiating and concluding such an agreement, it may be necessary or desirable for either Party to disclose to the other Party valuable confidential information. The Parties have therefore agreed to enter into this Reciprocal Non-Disclosure Agreement in respect of such information disclosed on the terms set out below. Now Therefore, in consideration of the mutual covenants and undertakings herein contained, the Parties hereby agree as follows.
DEFINITIONS Unless the context otherwise requires, when used in this Agreement
• “Agreement” shall mean this Reciprocal Non Disclosure Agreement and shall include any subsequent written modifications and amendments thereto;
• “Confidential Information” shall mean all information relating to the business activities of either Party, whether in written, oral (provided such oral disclosure has been documented in writing and marked as “Confidential” within two days of the disclosure), or electronic form, and all record bearing media containing or disclosing such information, including all technology and the proprietary method of process systems, applications, instructions, methodology, concepts, etc., designed and developed by either Party for providing various services/products/technologies to its clients/customers, and other information relevant to the business of the Parties including but not limited to proprietary, technical, development, marketing, sales, operating, performance, cost, know-how, product concepts, computer programming techniques, trade secrets, data, drawings, designs, past data concepts and ideas, whether protected under law or not, which is not already in the public domain, nor already available with either Party through other legitimate sources and which is specifically marked “Confidential”, including any verbal indication that has been documented in writing and marked as “Confidential” within two days of such oral disclosure;
• “Party” and “Parties” shall mean 1THING and Partner individually or collectively as the context may require;
• “Intellectual Property” shall mean any intellectual property including, without limitation, patents (including patent applications and patents arising from such applications, and continuations of or relating to patents), trade marks, copyrights, registered designs, rights of license, assignment, use, right of confidence in know-how or technical or commercial information generally and any other such rights or interests in intellectual property relating to the Confidential Information whether or not protected under any law in force; • “Specific Purpose” means a possible Tech development agreement;
• “Furnishing Party” means the party that furnishes the Confidential Information to the Receiving Party;
• “Receiving Party” means the Party that receives the Confidential Information from the Furnishing Party. The Receiving Party is further defined to include its or their employees and directors during their tenure with the Party.
• “Representatives” shall mean legal, accounting, and any technical and business consultants appointed by either Party.
CONSIDERATION The Parties hereby agree that the consideration for due performance of their obligations under this Agreement is the mutual goodwill between the Parties, other good and valuable consideration, and the recognition by both Parties that without this Agreement, business discussions would be severely limited and ineffectual.
CONFIDENTIALITY • Both Parties agree that they will not, without the prior written consent of the other Party, disclose to any third party other than their respective Representatives, Shareholders or Supervisory Board Members with whom non disclosure agreements are duly executed, the fact that discussions are taking place concerning a possible transaction between the Parties or any of the terms, conditions, facts or status relating to such possible transaction.
• The Receiving Party shall keep confidential and shall not disclose to any third party other than their respective Representatives with whom non-disclosure agreements are duly executed, any and all Confidential Information revealed to it or all information that comes into its knowledge by the Furnishing Party and shall not use the same for any purpose whatsoever other than for the Specific Purpose.
• The Receiving Party shall not carry out any business using the Confidential Information disclosed to it by the Furnishing Party either within the territory of India or abroad. Furthermore, the Receiving Party shall not participate in any business that might have significant / few similarities with the Furnishing Party’s intellectual property, in India or abroad. And further, the Receiving Party and its Representatives may not make or have made any copy, record or duplication of any of the Confidential Information, whether disclosed electronically or in writing, or reduce the Confidential Information disclosed orally or electronically to writing or any other medium, except in each case as is reasonably necessary for the Specific Purpose, unless of course such information is available to it from another legitimate source.
• The Receiving Party and its Representatives shall be responsible for ensuring that the Confidential Information revealed to it in good faith by the Furnishing Party is not used in any manner other than for the Specified Purpose.
• The Receiving Party shall take all reasonable steps to ensure that the Confidential Information is revealed to its Representatives only on a need to know basis and further be used by it or its Representatives as defined in section 1.7 in the course of project evaluation and for the Specified Purpose; and who are bound to protect the confidentiality of such confidential information under terms at least as restrictive as the terms in this Agreement.
• The Confidential Information shall remain the property of the Furnishing Party and the Receiving Party hereby agrees with the Furnishing Party that it shall not sell/lease/license or otherwise deal in any manner whatsoever the Confidential Information without the prior written permission of the Furnishing Party. Upon the request of the Furnishing Party, the Receiving Party shall return to the Furnishing Party all Confidential Information furnished to the Receiving Party or any of its Representatives, without retaining any written or electronic copy thereof.
• In the event of the Receiving Party being required to reveal by governmental or judicial process any of the Confidential Information, such Receiving Party shall provide the Furnishing Party with written notice in accordance with Clause 11 hereof so that the Furnishing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of any such protective order, remedy or waivers from the Furnishing Party, the Receiving Party is nonetheless legally compelled to disclose Confidential Information to any governmental body or tribunal, the Receiving Party may, without liability hereunder, disclose to such governmental body or tribunal only that portion of the Information which is legally required to be disclosed, provided that the Receiving Party exercises its reasonable efforts to preserve the confidentiality of the Information, including, without limitation, by cooperating with the Furnishing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information by such governmental body or tribunal.
EXCEPTIONS TO OBLIGATIONS The obligations of the Receiving Party specified in section 3 above shall not apply to any Confidential Information to the extent that such Confidential Information: a) is generally known to the public at the time of disclosure or becomes generally known in the ordinary course of business of the Receiving Party through no wrongful act on the part of the Receiving Party; or b) is already in possession of the Receiving Party at the time of disclosure; or c) is disclosed to Receiving Party without the breach of any confidentiality obligation by sources other than Furnishing Party having the legal right to disclose such Confidential Information.
DISCLAIMERS The Parties shall have no obligation to disclose any information or to compensate each other for disclosures of any information under this Agreement and shall also have no obligation to enter into any further agreement with each other. It is understood and agreed that no warranties of any kind are given by Furnishing Party with respect to Confidential Information provided hereunder except that Furnishing Party warrants that Furnishing Party has the right to make the disclosure. Nothing in this Agreement shall be construed to prevent the Furnishing Party at any time from itself using in any manner, or disclosing in any way to third parties, any or all of its Confidential Information or from entering into negotiations or agreements of any type with any party.
INTELLECTUAL PROPERTY • All Intellectual Property and Confidential Information provided to the Receiving Party by the Furnishing Party under this Agreement shall remain the sole and absolute property of the Furnishing Party and nothing under this Agreement shall deem to provide the Receiving Party any rights other than rights of use / analysis as envisaged under this Agreement.
• The Receiving Party hereby undertakes that it will not apply for any copyright patent or any other intellectual property rights for any aspect of the Intellectual Property and Confidential Information provided by the Furnishing Party under this Agreement.
TERMS OF TERMINATION • This Agreement shall be in full force and effect for a period of 12 months or until such time as either of the Parties agree to terminate this Agreement whichever is earlier.
• Either Party shall be entitled immediately to terminate this Agreement by written notice to the other if:
• Either Party commits any material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within fifteen (15) days after receipt of a written notice from the non breaching party giving particulars of the breach and requiring it to be remedied;
• Either Party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
• Either Party goes into liquidation (except for the purposes of amalgamation or reconstruction) and that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on such party under this Agreement;
• Either Party ceases, or threatens to cease, to carry on business or there is a change in control of the either Party; or
• Anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to either Party.
CONSEQUENCES OF TERMINATION The obligations of Section 3 and all other obligations of keeping confidential all the Confidential Information received by the Furnishing Party under the terms of this Agreement shall remain binding on the Receiving Party for a period of one (1) year from the date of termination / expiry of this Agreement.
SEVERABILITY • Should any part of this Agreement be declared illegal or unenforceable, the Parties will co-operate in all ways open to them to obtain substantially the same result or as much thereof as may be possible, including taking appropriate steps to amend, modify or alter this Agreement.
• If any term or provision of this Agreement shall be hereafter declared by a final adjudication of any tribunal or court of competent jurisdiction to be illegal, such adjudication shall not alter the validity or enforceability of any other term or provision unless the terms and provisions declared (by any of the Parties) shall be one expressly defined as a condition precedent or as of the essence of this Agreement, or comprising an integral part of, or inseparable from the remainder of this Agreement.
ASSIGNMENT In the event this Agreement is assigned under the terms of this Clause, the assignees of the respective Parties shall be bound by the same terms and conditions of this Agreement and shall, if deemed necessary by the Parties at the time of such assignment, undertake in writing to be so bound by this Agreement.
WAIVER The failure, with or without intent, of any Party hereto to insist upon the performance of the terms of this Agreement by the other Party, shall not be treated as, or be deemed to constitute, a modification of any terms or stipulations of this Agreement nor shall such failure or election be deemed to constitute a waiver of the right of such Party, at any time whatsoever thereafter, to insist upon performance by the other, strictly in accordance with any terms or provisions hereof. All terms, conditions and obligations under this Agreement shall remain in full force and effect at all times during the subsistence of this Agreement except where otherwise amended or modified by the Parties by mutual written agreement
If the performance by either Party hereto, of any of its obligations hereunder is prevented, restricted or interfered with by reason of fire, or other causality or accident; strike or labour disputes; war or other violence; any law, or regulation of any government; or any act or condition whatsoever beyond the reasonable control of such Party (each such occurrence being hereinafter referred to as a "Force Majeure"), then such Party shall be excused from such performance to the extent of such prevention, restriction or interference; provided, further that the receiving party in the normal course of business of due diligence shall ensure all reasonable efforts to maintain confidentiality; information would remain as hard copies/ soft copies, files in the computer networking or overheard by any source while on travel /flight or any such situation that exposes the information inadvertently cannot be held against the Receiving Party.
The Parties confirm and acknowledge that this Agreement shall constitute the entire agreement between them and shall supersede and override all previous communications, either oral or written, between the Parties with respect to the subject matter of this Agreement, and no agreement or understanding varying or extending the same shall be binding upon any Party unless arising out of the specific provisions of this Agreement and is in writing.
LANGUAGE OF CONTRACT
The language of the contract and its fulfillment is English.
This Agreement and all contracts signed to execute this Agreement shall be governed by the laws of India.
• Should there be any dispute or difference of opinion regarding this contract or other agreements for the execution of this contract both the Parties will make all efforts to amicably settle such disputes. Efforts at reaching an amicable settlement will be deemed to have failed as soon as one of the contractual parties informs the other in writing about such a deadlock.
• If efforts at amicable settlement fail, all disputes arising out of this contract or its validity will be finally decided in accordance with the provisions of the Indian Arbitration and Conciliation Act 1996. This arbitration shall comprise of three arbitrators, one each appointed by the parties and the third arbitrator appointed by the two arbitrators already appointed.
• The decision of the arbitrators so appointed shall be binding upon the Parties. The law governing the arbitration proceedings shall be Indian law and the proceedings shall be held at Chennai and conducted in the English language. The arbitration judgment shall be a reasoned one and in writing. The arbitration court will further stipulate the costs of the arbitration procedure payable by the defaulter along with the damages awarded as relief in the arbitration proceedings. The Parties, intending to be bound by the terms hereof, have caused this Agreement to be executed hereby.
1THING DESIGN & INNOVATION PVT. LTD.