Confidentiality Agreement

PARTIES

Apxic Technologies Pvt. Ltd. whose registered office is at  SCO-12, 1st Floor, Opp. D.A.V. Riverside School, Kardhan Road, Ambala Cantt, 133001 Haryana, India (hereinafter referred to as the “Party 01”)

[INSERT FULL LEGAL NAME OF COMPANY] incorporated and registered in India with company number [INSERT COMPANY NUMBER] whose registered office is at [INSERT REGISTERED OFFICE ADDRESS](hereinafter referred to as the “Party 02”)

Hereinafter Party 01 and Party 02 are individually referred to as “Party” and collectively referred to as “Parties”.

BACKGROUND

The Parties intend to enter into discussions relating to the Purpose which will involve the direct or indirect disclosure of Confidential Information belonging to the Discloser by the Discloser and its Representatives to the Recipient and its Representatives.

The Parties have agreed to comply with this agreement in connection with the disclosure and use of Confidential Information.

AGREED TERMS
1. INTERPRETATION
Definition

Confidential Information: has the meaning given in Clause 2.

Discloser: a Party who discloses Confidential Information directly or indirectly to the other Party.

Group: In relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.

Group Company: in relation to a company, any member of its Group.

Holding company: has the meaning given in Clause 1.2(e)

Purpose: [STATE THE PURPOSE OF THE DISCLOSURE OF CONFIDENTIAL INFORMATION i.e. TO EVALUATE THE VIABILITY OF BOTH PARTY01 AND PARTY 02 ENTERING INTO A BUSINESS TRANSACTION OR PROJECT]

Recipient: a Party who receives Confidential Information directly or indirectly from the other Party

Representative(s): in relation to each Party and any member of its Group:

  1. Its officers and employees need to know the Confidential Information for the Purpose.
  2. Its professional advisers and sub-contractors engaged by that Party and/or any member of its Group in connection with the Purpose.
  3. Its contractors and sub-contractors engaged by that Party and/or any member of its Group in connection with the Purpose.
  4. Any other person to whom the other party agrees in writing that Confidential Information may be disclosed in connection with the Purpose.

Subsidiary: has the meaning given in Clause 1.2(e).

1.2  Interpretation

(a)  A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b)  Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.

(c)  A reference to writing or written includes email.

(d)  A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
(e)  A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in a section of the Companies Act.

CONFIDENTIAL INFORMATION

2.1  Confidential Information means all information, excluding any information referred to in Clause 2.2, in whatever form, relating to the Purpose which the Discloser or its Representatives or any of its Group Companies, or their Representatives directly or indirectly discloses, or makes available, to the Recipient or its Representatives or any of its Group Companies, or their Representatives, before, on or after the date of this agreement. This includes but is not limited to:

(a)  the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;

(b)  the existence and terms of this agreement;

(c)  all confidential or proprietary information relating to:

(i)  the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Discloser or of any of the Discloser’s Group Companies; and

(ii)  the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Discloser, or of any of the Discloser’s Group Companies;

(d)  any information, findings, data, or analysis derived from Confidential Information; and

(e)  any other information that is identified as being of a confidential or proprietary nature.

2.2  Information is not Confidential Information if:

(a)  it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or its Representatives or by any of the Recipient’s Group Companies or their Representatives in breach of this agreement;

(b)  it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;

(c)  it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient’s knowledge, is not under any confidentiality obligation in respect of that information;

(d)  it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser;

(e)  it is developed by or for the Recipient independently of the information disclosed by the Discloser and the Recipient provides documentary evidence of such independence to the reasonable satisfaction of the Discloser; and

(f)  the parties agree in writing that the information is not confidential.

CONFIDENTIALITY OBLIGATIONS

3.1  In return for the Discloser making Confidential Information available to the Recipient, the Recipient undertakes to the Discloser that it shall:

(a)  keep the Confidential Information secret and confidential;

(b)  not use or exploit the Confidential Information in any way except for the Purpose;

(c) not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this agreement;

(d)  not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose. Any such copies, reductions to writing and records shall be the property of the Discloser;

(e)  not use, reproduce, transform or store the Confidential Information in a generally accessible computer or electronic information retrieval system or transmit it in any form or by any means outside its usual place of business or information technology infrastructure;

(f)  apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorized disclosure, copying, or use;

(g)  keep a written record of:

(i)  any document or Confidential Information received from the Discloser in tangible form; and

(ii)  any copies made of the Confidential Information; and

(h)  ensure that any tangible document or other records containing Confidential Information shall be kept at its usual place of business and shall not remove or allow those documents and records to be moved from such premises;

3.2  The Recipient shall establish and maintain adequate security measures to safeguard the Confidential Information from unauthorized access or use.

PERMITTED DISCLOSURE

4.1  The Recipient may disclose the Confidential Information to its Representatives, any of its Group Companies, or their Representatives on a need to know basis only and on the basis that it:

(a)  informs those Representatives, Group Companies, or their Representatives of the confidential nature of the Confidential Information before it is disclosed; and

(b)  procures that those Representatives, Group Companies, or their Representatives comply with the confidentiality obligations in Clause 3.1 as if they were the Recipient and if the Discloser so requests, procure that any of them enters into a confidentiality agreement with the Discloser on terms equivalent to those contained in this agreement; and

(c)  keeps a written record of those persons.

4.2  The Recipient shall be liable for the actions or omissions of the Representatives, any of its Group Companies, or their Representatives in relation to the Confidential Information as if they were the actions or omissions of the Recipient.

MANDATORY DISCLOSURE

5.1  Subject to the provisions of this Clause 5, the Recipient may disclose Confidential Information to the minimum extent required by:

(a)  an order of any court of competent jurisdiction or any regulatory, judicial, governmental, or similar body or any taxation authority of competent jurisdiction;

(b)  the rules of any listing authority or stock exchange on which its shares are listed or traded; or

(c)  the laws or regulations of any country to which its affairs are subject.

5.2  Before the Recipient discloses any Confidential Information pursuant to Clause 5.1 it shall, to the extent permitted by law, give the Discloser as much notice of this disclosure as possible. Where notice of such disclosure is not prohibited and is given in accordance with Clause 5.2, the Recipient shall take into account the Discloser’s requests in relation to the content of this disclosure.

5.3  If the Recipient is unable to inform the Discloser before Confidential Information is disclosed pursuant to Clause 5.1 it shall, to the extent permitted by law, inform the Discloser of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.

RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION

6.1  If so requested by the Discloser at any time by notice in writing to the Recipient, the Recipient shall promptly:

(a)  destroy or return to the Discloser all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Discloser’s Confidential Information;

(b)  to the extent technically and legally practically possible, erase all the Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form; and

(c)  to the extent technically and legally practicable, erase all the Confidential Information which is stored in electronic form on systems and data storage services provided by third parties; and

(d)  certify in writing to the Discloser that it has complied with the requirements of this Clause 6.1.

6.2  Nothing in Clause 6.1 shall require the Recipient to return or destroy any documents and materials containing or based on the Confidential Information that the Recipient is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject. The provisions of this agreement shall continue to apply to any documents and materials retained by the Recipient pursuant to this

Clause 6.2 and Clause 6.1

RESERVATION OF RIGHTS AND ACKNOWLEDGEMENT

7.1  The Discloser reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Discloser to the Recipient does not give the Recipient or any other person any license or other right in respect of any Confidential Information beyond the rights expressly set out in this agreement.

7.2  Except as expressly stated in this agreement, the Discloser makes no express or implied warranty or representation concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.

7.3  The disclosure of Confidential Information by the Discloser shall not form any offer by, or representation or warranty on the part of, the Discloser to enter into any further agreement with the Recipient in relation to the Purpose of the development or supply of any products or services to which the Confidential Information relates to.

INADEQUACY OF DAMAGES

Without prejudice to any other rights or remedies that the Discloser may have, the Recipient acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement. Accordingly, the Discloser shall be entitled to the remedies of injunctions, specific performance, or other equitable relief for any threatened or actual breach of this agreement by the Recipient.

NO OBLIGATION TO CONTINUE DISCUSSIONS

Nothing in this agreement shall impose an obligation on the Discloser to continue discussions or negotiations in connection with the Purpose, or an obligation on the Discloser or any of its Group Companies to disclose any information (whether Confidential Information or otherwise) to the Recipient.

ENDING DISCUSSIONS AND DURATION OF CONFIDENTIALITY OBLIGATIONS

10.1  If the Discloser decides not to continue to be involved in the Purpose with the Recipient, it shall notify the Recipient in writing immediately.

10.2  Notwithstanding the end of discussions between the parties in relation to the Purpose pursuant to Clause 10.1, each party’s obligations under this agreement shall continue in full force and effect for a period of five years from the date of this agreement.

10.3  The end of discussions relating to the Purpose shall not affect any accrued rights or remedies to which either party is entitled.

NO PARTNERSHIP OR AGENCY

11.1  Nothing in this agreement is intended to or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party.

11.2  Each party confirms it is acting on its own behalf and not for the benefit of any other person.

GENERAL

12.1  Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

12.2  Entire agreement.

(a)  This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

(b)  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

12.3  Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

12.4  Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.5  Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

12.6  Notices

(a)  Any notice or other communication was given to a party under or in connection with this agreement shall be in writing and shall be:

(i)  delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii)  sent by email to the address specified in the signature block below.

(b)  Any notice or communication shall be deemed to have been received:

(i)  if delivered by hand, on signature of a delivery receipt, or at the time the notice is left at the registered address; and

(ii)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

(iii)  if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume. In this Clause 12.6(b)(iii), business hours mean 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c)  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

12.7 Third-party rights.

(a)  This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act to enforce any term of this agreement.

(b)  The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

12.8  Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of India.

12.9  Jurisdiction. Each party irrevocably agrees that the courts of India shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the beginning of it.

Signed by Ashwani for and on
behalf of Apxic Technologies Pvt. Ltd.

……………………….
Email address for service of notice of any
other communication by Discloser:
[email protected]
Signed by [NAME OF AUTHORISED SIGNATORY]
for and on behalf of [NAME OF PARTY 02 COMPANY]
……………………Director
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