This Confidentiality Agreement (this “Agreement”) is
entered into as of 2nd September 2018, between M/S Yoto
Engineering Solutions, a company formed under the laws of India whose principal office is situated at
Vatika Business Center Powai, Supreme Business Park,7th Floor,
Wing B, Behind Lake Castle Building, Hiranandani Gardens, Powai,
Mumbai-400076, India , and (Company Name & Address of th Registering
Suppllier)
[or insert applicable subsidiary name and state of formation]
(each, a “Party” and collectively, the “ Parties”).
In consideration of, and as a condition to, the disclosure of certain
information (whether in the form of documents, verbal communications or
visual examination) made or permitted by one Party to or for the benefit of
the other in connection with casting(the “ Project”) and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Parties agree as follows:
A. Confidential Information
.
1. “Confidential Information” shall mean all information
provided or made available to a Party, its affiliates or agents (the “ Receiving Party”), in connection with the Project, by the
other Party, its affiliates or agents (the “ Disclosing Party”), or made available to it by the
Disclosing Party, wherein the information provided or made available
pertains to the Project or the business of the Disclosing Party. Such
information includes, but is not limited to, all business and/or technical
information, business plans and strategies (both current and proposed),
marketing data (including analyses and projections), customers (including
customer accounts, addresses and personal information), employees, data,
finances, methods of operations, inventions and product designs and
drawings, product development plans and strategies (both existing and
future), records, research, systems, technology, and trade secrets, and any
other information identified as confidential or commonly understood to be
of a confidential or proprietary nature. Such information shall be
Confidential Information whether or not it is designated in writing or
labeled as confidential or proprietary and whether or not provided
verbally, visually, in writing, electronically or in other form. The term
“Representatives” shall refer to a party’s partners, members, directors,
officers, employees, agents, advisors (including financial, legal and
accounting advisors), affiliates, consultants, potential debt or equity
financing sources and other representatives.
2. This Agreement does not grant or transfer any license or other right to
use the Confidential Information other than for the Project stated above,
and does not obligate either Party to provide any such rights in the
future. All rights in and to the Confidential Information shall be and will
remain the exclusive property of the Disclosing Party until and unless some
other written agreement is made regarding the Confidential Information.
Each Party hereby warrants and represents that the terms of this Agreement
are not inconsistent with any other contractual or legal obligations they
may have.
3. Each Party receiving Confidential Information acknowledges and agrees
that no representation or warranty, express or implied, is or will be made,
and no responsibility or liability is or will be accepted by the Party
disclosing Confidential Information, or by any of its respective directors,
officers, employees, agents or advisers, as to, or in relation to, the
accuracy or completeness of any Confidential Information made available
hereunder; it is responsible for making its own evaluation of such
Confidential Information.
B. Disclosure and Use Restrictions
.
1. The Receiving Party shall:
(a) keep confidential and restrict disclosure of such Confidential
Information solely to its Representatives who have a need to know such
Confidential Information to further the Project;
(b) use at least the same degree of care to protect such Confidential
Information as is used with its own confidential and proprietary
information, but no less than a reasonable degree of care;
(c) use such Confidential Information solely in relation to the Project
described above;
(d) notify the Disclosing Party immediately in the event of the loss or
unauthorized disclosure of any item of such Confidential Information;
(e) ensure that every employee, representative and agent of the Receiving
Party who receives or has access to such Confidential Information agrees or
is otherwise subject to the same restrictions on non-disclosure, use and
care as the Receiving Party; and
(f) cease all use of the Confidential Information upon termination of this
Agreement, or upon request of the Disclosing Party.
2. Confidential Information does not include information to the extent that
it:
(a) is or becomes part of the public domain other than as a result of any
disclosure by the Receiving Party in violation of this Agreement;
(b) is made available to the Receiving Party from another source, which
source is not (to the Receiving Party’s knowledge) prohibited from
disclosing the information by the Disclosing Party;
(c) can be demonstrated to have been developed independently by the
Receiving Party without reference to the Confidential Information; or
(d) was legally in the Receiving Party’s possession prior to any disclosure
of information to the Receiving Party under this Agreement.
3. Each Party’s obligations concerning the use, non-disclosure, and care of
the Confidential Information shall be subject to any disclosure
requirements imposed by law, court or administrative order, or the rules
and regulations of any applicable securities exchange. Upon receiving a
request to disclose any Confidential Information of the other Party
pursuant to any such laws, orders, rules or regulations, the Receiving
Party shall immediately notify the Disclosing Party of such request and
shall cooperate with the Disclosing Party in its efforts to protect the
Confidential Information from disclosure. In the event disclosure is still
required, the Receiving Party shall disclose only the minimum amount of
Confidential Information as, in the opinion of the Receiving Party’s legal
counsel, is legally required to be disclosed.
C. Disposition of Confidential Information
. Upon written request of the Disclosing Party, or promptly upon
termination of this Agreement for any reason, the Receiving Party shall
return all originals and all copies of the Disclosing Party’s Confidential
Information or, in the discretion of the Receiving Party, shall destroy all
originals and copies of such Confidential Information and certify in
writing that such originals and all copies have been destroyed. Upon
written request of the Disclosing Party, the Receiving Party shall also
destroy all papers, reports, summaries, analyses or other works that
included the Disclosing Party’s Confidential Information and certify in
writing that such works have been destroyed. All information deemed a trade
secret under applicable law, and any Confidential Information not capable
of being returned or destroyed, shall remain subject to the obligations of
confidentiality, non-use and restricted use in accordance with the terms of
this Agreement, despite any termination hereof.
D. Injunctive Relief
. The Parties acknowledge that the Confidential Information disclosed by
each Party is of a unique character, contains trade secrets, and has other
substantial proprietary value to the Disclosing Party, such that if the
Receiving Party does not uphold its obligations, the Disclosing Party may
be irreparably harmed and that monetary remedies may be inadequate to
compensate or protect the Disclosing Party. The Disclosing Party shall thus
have the right to have the Courts specifically enforce this Agreement and
to seek, without proof of actual damages, injunctive relief to prevent
disclosure or other misuse of the Disclosing Party’s Confidential
Information.
E. Severability
. To the extent that any provision, portion or extent of this Agreement is
determined by the final judgment of a Court having competent jurisdiction
to be invalid, illegal or unenforceable, then that provision, portion or
extent will be severed or limited, but only to the extent necessary to
render this Agreement valid and enforceable. The remaining provisions,
portions and extent of this Agreement will be enforced to give effect to
the intention of the Parties in so far as possible.
F. Governing Law
. This Agreement will be governed Indian laws
F. Miscellaneous
. This Agreement may not be assigned or sublicensed by either Party, and
any such transfer shall be null and void. This Agreement contains the
entire understanding of the Parties with respect to the matters it
addresses. It supersedes any prior agreements or understandings, whether
written or oral. This Agreement may not be amended, discharged, or
abandoned except by a written agreement executed by both Parties. Each
Party will each bear their own costs and expenses incurred in connection
with the proposed Project, whether or not it occurs. Unless and until a
definitive agreement between the Parties has been executed and delivered,
neither Party will be under any legal obligation with respect to the
proposed Project, except for the matters specifically agreed to in the
Agreement. The provisions in section B shall survive termination of this
agreement.