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CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY
AGREEMENT
(the
“
Agreement
”) is made and
entered into as of this
___ day of ___
20___, between [________________], a company
incorporated under the laws of the
[
Place of
Incorporation
]
(
“
Party A
”); and
Sinohydro Corporation Limited, a
company organized and
existing under
the laws of the Peoples Republic of China
(the “Company”
) (each of
Party A and the
Company being a
WITNESSETH:
WHEREAS,
the
Parties
are
about
to
enter
into
discussions
and
to
exchange
information
regarding
opportunities for [
Brief Description of
the Contemplated Transaction
] (the
WHEREAS,
in the course of
such discussions regarding the Transaction, each
Party expects
to disclose certain
confidential, proprietary and trade secret
information to the other Party; and
WHEREAS
,
Party
A
and
the
Company
seek
to
safeguard
and
protect
their
respective
confidential
proprietary and trade secret information.
NOW, THEREFORE,
in consideration of the mutual promises
contained herein, the receipt
and
sufficiency of which are hereby acknowledged, the
Parties hereto hereby agree as follows:
1.
1.1
As
used
herein,
the
term
“
Proprietary
Information
”
shall
mean
all
confidential
o
r
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,
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
either
Party
(the
“
Disclosing
Party
”)
to
the
other
Party
(the
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 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
Proprietary
Information.
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.
2.
Nondisclosure.
In
consideration
of
the
Disclosing
Party’s
disclosure
of
Proprietary
Information to the Receiving Party, the
Receiving Party agrees that it: (i) shall treat
all Proprietary
Information as strictly
confidential; (ii) shall not disclose or use any
Proprietary Information except
for the
purpose (a) of evaluating the information
disclosed by the Disclosing Party with respect to
the
Transaction or (b) performing its
duties or exercising its rights under a written
agreement entered into
by the Parties
regarding the Transaction (collectively the
“
Purpose
”); (iii) shall
protect all Proprietary
Information,
whether in storage or in use, with the same degree
of care as the Receiving Party uses to
protect
its
own
Proprietary
Information
against
public
disclosure,
but
in
no
case
with
less
than
reasonable
care
and
shall
not
take
copies
(whether
electronic
or
otherwise)
of
any
Proprietary
Information;
(iv)
shall
disclose
Proprietary
Information
only
to
such
partners,
officers,
directors,
employees,
agents
and
professional
advisers
(including
without
limitation
attorneys,
accountants,
consultants,
bankers and financial advisors)
(collectively
“
Representatives
”) of the
Receiving Party
who need to know such
Proprietary Information for the Purpose, provided
such Representatives are
informed of
the confidential nature of such Proprietary
Information and the terms of this Agreement
prior to disclosure and provided
further that the Receiving Party shall be
responsible in the event of
such
Representative’s breach of this Agreement as if
the Receiving Party had committed such breach;
(v) shall be permitted to disclose
Proprietary Information to its Affiliates and to
allow its Affiliates to
receive
Proprietary
Information
from
the
Disclosing
Party,
provided
that,
prior
thereto,
such
Affiliates agree to be
bound by the terms hereof, and provided further
that the Receiving Party shall
be
responsible in the event of such Affiliates’
breach of this Agreement as if the Receiving
Party
had
committed such
breach; and (vi) shall not reverse engineer any
such Proprietary Information. Except
upon mutual written agreement, or as
may be required by law, neither Party to this
Agreement shall
in any way or in any
form disclose the existence of the Transaction,
the discussions that gave rise to
this
Agreement or the fact that there have been, or
will be, discussions or negotiations covered by
this
Agreement.
The
Receiving
Party
will
notify
the
Disclosing
Party
in
writing
promptly
upon
the
occurrence
of
any
unauthorized
release
of
Proprietary
Information
or
breach
of
this
Agreement
of
which it is aware.
3.
Required Disclosure.
If
the
Receiving
Party
is
required
to
disclose
Proprietary
Information
pursuant to any applicable legal requirement or
the order of any court or governmental
agency of competent jurisdiction or
recognized stock exchange the Receiving Party
shall first notify
the Disclosing Party
of any such order and, if practicable, afford such
Party the opportunity to seek a
protective
order
relating
to
any
such
disclosure
and,
the
Receiving
Party
shall
then
be
entitled,
without breaching
its non-disclosure obligations under this
Agreement, to furnish only that portion
(in the opinion of counsels) of the
Proprietary Information that it is legally
required to disclose and
will
exercise all
reasonable
efforts
to
obtain
reliable
assurances
that confidential
treatment
will
be
accorded
the remaining Proprietary Information.
4.
Return of
Proprietary Information.
Upon
the
completion
or
termination
of
the
discussions regarding
the Transaction, or at any time upon the
Disclosing Party’s written request, the
Receiving Party shall either (i)
immediately return to the Disclosing Party or (ii)
destroy and then
certify
to
the
Disclosing
Party
the
destruction
of
all
items
of
Proprietary
Information
of
the
2
Disclosing Party.
Notwithstanding the return or destruction of
Proprietary Information, the Receiving
Party will continue to be bound by the
terms and obligations of this Agreement.
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.
6.1
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 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.
Notwithstanding anything to the contrary
contained
herein,
neither
Party
shall
be
liable
to
the
other
for
any
indirect,
incidental,
special
or
consequential 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.
7.
Relationship
of Parties.
T
his
Agreement
is
neither
intended
to
create,
nor
shall
it
be
construed as creating, (i) a joint
venture, partnership or other form of business
association between
the
Parties,
(ii)
an
obligation
to
buy
or
sell
products
using
or
incorporating
the
Proprietary
Information,
(iii)
an
implied
or
express
license
grant
from
either
Party
to
the
other,
(iv)
any
obligation to continue discussions or
negotiations with respect to any potential
agreement between
the Parties or (v) an
agreement to enter into any agreement.
8.
Warranty.
Each
Party warrants its right to disclose Proprietary
Information to the
other and to
authorize the use by the other or by third parties
in accordance with the terms of this
Agreement of the Proprietary
Information.
9.
Term.
The term of this
Agreement shall continue for a period of two (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.
3
6.
Remedies; No Waiver.
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