NON-DISCLOSURE AND RESTRICTED USE AGREEMENT
by and between
- hereinafter referred to as “PARTY” or “PARTIES” respectively -
填具体Whereas, the PARTIES intend to engage in discussions concerning 业务内容 ("PURPOSE");
Whereas, in the course of such activities it is anticipated that the PARTIES will disclose to each other proprietary information for the PURPOSE, which information the PARTIES regard as confidential;
Now therefore, the PARTIES enter into the following agreement (“AGREEMENT”):
1. Definitions. “CONFIDENTIAL INFORMATION” shall mean any information and data,including,but not limited to,any kind of business,commercial or technical information and data disclosed between the PARTIES in connection with the PURPOSE,irrespective of the medium in which such information or data is embedded, which is - when disclosed in tangible form - marked “Confidential” by the disclosing PARTY or which is - when disclosed orally or
visually - identified as such prior to disclosure and summarized in writing by the disclosing PARTY and said summary is given to the receiving PARTY within thirty (30) days after such disclosure marked “Confidential”. In case of
disagreement, the receiving PARTY must present its objections to the summary in writing within thirty (30) days of receipt. CONFIDENTIAL INFORMATION shall include any copies or abstracts made thereof as well as any apparatus, modules, samples, prototypes or parts thereof. “RELATED COMPANY” shall mean any corporation, company or other entity, which controls,or is controlled by one PARTY or by another RELATED COMPANY of such PARTY, where control means ownership or control, direct or indirect, of more than fifty (50) percent of such corporation’s, company’s or other entity’s voting capital. However, any such corporation, company or other
entity shall be deemed to be a RELATED COMPANY of one PARTY only so long as such ownership or control exists.
2. Confidentiality. All CONFIDENTIAL INFORMATION
a) shall be used by the receiving PARTY exclusively for the PURPOSE, unless otherwise expressly agreed to in writing by the disclosing PARTY; b) shall not be distributed or disclosed in any way or form by the receiving PARTY to anyone except its own, its RELATED COMPANIES’ or its consulting firms’employees, who reasonably need to know such CONFIDENTIAL
INFORMATION for the PURPOSE and who are bound to confidentiality either by their employment agreement or otherwise to an extent not less stringent than the obligations under this AGREEMENT. Prior to any disclosure to its RELATED COMPANIES or to its consulting firms, the receiving PARTY must
have an appropriate agreement with any such RELATED COMPANY or any such consulting firm sufficient to require the RELATED COMPANY or the consulting firm to treat CONFIDENTIAL INFORMATION in accordance with this AGREEMENT. Any unauthorized disclosure of CONFIDENTIAL
INFORMATION by RELATED COMPANIES or by RELATED COMPANIES’
employees or by any PARTY’s consultants shall constitute a breach of this
c) shall be kept confidential by the receiving PARTY with the same degree of care as is used with respect to the receiving PARTY's own equally important confidential information to avoid disclosure to any third party, but at least with reasonable care;
d) shall remain the property of the disclosing PARTY.
3. Exceptions. The obligations under Article 2 shall not apply, however, to any information which:
a) was in the receiving PARTY's possession without confidentiality obligation prior to receipt from the disclosing PARTY;
b) is at the time of disclosure already in the public domain or subsequently becomes available to the public through no breach by the receiving PARTY of this AGREEMENT;
c) is lawfully obtained by the receiving PARTY from a third party without an obligation of confidentiality, provided such third party is not, to the receiving PARTY’s knowledge, in breach of any confidentiality obligation relating to such information;
d) is developed by the receiving PARTY or its RELATED COMPANIES independently from CONFIDENTIAL INFORMATION or under the exceptions as set out in Article 3 lit. a)-c) or f);
e) is required to be disclosed by law or the rules of any governmental organization, provided that written notice of such judicial action was given to the disclosing PARTY; or
f) is approved for release by written agreement of the disclosing PARTY. The PARTY seeking the benefit of such exception shall bear the burden of proving its existence.
4. Refusal. Each PARTY shall have the right to refuse to accept any information under this AGREEMENT prior to any disclosure; information disclosed despite such a refusal is not covered by the confidentiality obligation under this AGREEMENT. Nothing herein shall obligate either PARTY to disclose any particular information.
5. No license. Licenses or any other rights such as, but not limited to, patents, utility models, trademarks or tradenames, are neither granted nor conveyed by this AGREEMENT, nor does this AGREEMENT constitute any obligation of the disclosing PARTY to grant or convey such rights to the receiving PARTY. 6. No remuneration; warranty/liability. The PARTIES shall not be obligated
to pay any remuneration for disclosure of any information under this
AGREEMENT and agree that any information is made available “as is” and no
warranties are given or liabilities of any kind are assumed with respect to such information, including, but not limited, to its fitness for the PURPOSE, non-infringement of third party rights, or its correctness.
7. Termination; other contracts. This AGREEMENT shall come into force
upon execution by both PARTIES and shall automatically terminate one (1) year later. It may be prematurely terminated with thirty (30) days’ prior written notice. The rights and obligations of the PARTIES which have accrued prior to termination shall, however,survive the termination of this AGREEMENT for a period of four (4) years. The PARTIES shall not be legally obligated to conclude any other contract with regard to the PURPOSE.
8. Return. All CONFIDENTIAL INFORMATION exchanged between the
PARTIES electronically and/or on record-bearing media, as well as any copies thereof, shall,upon respective request of the disclosing PARTY, either be returned to the disclosing PARTY or be destroyed by the receiving PARTY after termination of this AGREEMENT. Such request shall be made in writing by the disclosing PARTY to the receiving PARTY within ninety (90) days after termination of this AGREEMENT. The receiving PARTY shall confirm in writing such destruction or return to the disclosing PARTY within fourteen (14) days after receipt of the respective request.
This clause shall not apply to routinely made back-up copies of electronically exchanged CONFIDENTIAL INFORMATION as well as to each PARTY’s
consulting firms who are bound to keep a copy under the applicable law, provided that any such copy shall be subject to an indefinite confidentiality obligation to the terms and conditions set out herein.
9. Arbitration. All disputes arising out of or in connection with this AGREEMENT, including any question regarding its existence, validity or termination, shall, unless amicably settled between the PARTIES, be finally settled by arbitration according to the Rules of Arbitration of the International Chamber of Commerce, Paris (“RULES“) by three arbitrators in accordance
with said RULES.The arbitration proceedings shall be conducted in English. Each PARTY shall be entitled to seek necessary and appropriate injunctive relief to maintain the status quo depending on the outcome of the arbitration or any other temporary measures from the courts of competent jurisdiction to enjoin the other PARTY from taking certain actions which allegedly infringe the rights of the PARTY bringing such claim, provided that any proceedings and decisions as to the merits of the dispute, including permanent injunctions, are exclusively governed and resolved by arbitration in accordance with the first paragraph of this Article 9.
10. No assignment. This AGREEMENT may not be assigned by either
PARTY without the prior written consent of the other PARTY.
11. Written form. This AGREEMENT may not be modified or amended except
by written amendments duly executed by the PARTIES. This requirement of written form can only be waived in writing.
12. Export Regulations. The PARTIES shall abide by the applicable export license regulations of the respective country(ies) and the disclosing PARTY
shall be required to apply for an export license grant prior to any transmission
of CONFIDENTIAL INFORMATION and to inform the receiving PARTY
sufficiently of any existing limitation. 13. Third parties. A person who is not a party to this AGREEMENT may not
enforce any of its terms.
ACCEPTED AND AGREED WITHOUT CHANGE.
Name: ;Signature of Authorized Representative；
ACCEPTED AND AGREED WITHOUT CHANGE.
Name: ;Signature of Authorized Representative；