NON-DISCLOSURE AGREEMENT

 

This non-disclosure agreement (“Agreement”) is made on [insert date](“Effective Date”) by and between:

 

ABC Limited, a company incorporated under the Companies Act, 1956 having its registered office at __________________________________ (hereinafter referred to as the as the “Disclosing Party”, which term, unless repugnant to the context shall include its successors and assigns); and

 

<< name of Business associate >>(hereinafter referred to as the “the Recipient”, which term shall include its, successors and permitted assigns).

 

WHEREAS:

 

A. The Disclosing Party is engaged in the business of ________________________________.

 

B.                 The Recipient is engaged in the business of _______________________. Due to the business relationship with the Disclosing Party, the Recipient will have access to Confidential Information (as defined hereinafter) related to the Disclosing Party’s business, including those provided by the Disclosing Party directly or obtained from Disclosing Party’s customers, suppliers, fashion designers or any other persons using the Website.

 

C.    The Recipient acknowledges that during the term of this Agreement, the Disclosing Party will be privy to the Disclosing Party’s Confidential Information pertaining to Disclosing Party’s business activities and has agreed to enter into this Agreement with the Recipient with an object to set forth the rights and obligations of the parties with respect to the use, handling, protection and safeguarding of the Confidential Information.

 

NOW THEREFORE, for consideration received by the Recipient under the Contract, the adequacy and sufficiency of which consideration is hereby acknowledged and agreed, the parties hereby agree as follows:

 

1.  Definitions:

 

a. “Confidential Information” means all information of the Disclosing Party whether, oral or written and whether or not such information is marked as confidential by the Disclosing Party, to which the Recipient is/has been made privy during the course of the aforesaid business relationship and shall include:

 

1. Any information or data, whether financial, commercial or technical in nature including but not limited to information concerning trade secrets, know-how, techniques, processes, plans, formulae, algorithms, software programs, source code, flow-charts, business models, business methods, consumer lists and contact details, consumer personal data or information, consumer passwords, consumer preferences and browsing history, consumer feedback, any other information including sensitive personal data or information obtained either from the consumer or any other person using the Website, sales details, sales forecast, databases, details about any upcomingsale or schemes or offers or promotions, details, designs or images of any merchandise, pricing policies, price lists, audio, video, graphics, marketing plans, any notes, memoranda, brochures, catalogues, pamphlets, any other marketing materials write-ups, presentations, analysis, or other documents which contain, relate to or are based upon the Confidential Information disclosed by the Disclosing Party, irrespective of the medium in which such information is embedded;

 

2. Confidential Information shall also include any copies or abstracts made of Confidential Information as well as any audio file, video file, graphics, animation, or parts thereof. Confidential Information may be disclosed in oral, written, graphic, machine recognizable, and/or sample form.

 

3. Confidential Information, that is disclosed orally shall be identified as such at the time of disclosure and shall be confirmed in writing by the Disclosing Party within ten (10) days after each disclosure by sending an e-mail or a letter containing substantially similar information to the Recipient;

 

2.                  Obligation of the Recipient:

 

1. The Recipient will use Confidential Information solely to fulfil its business obligations to the Disclosing Party under the Contract. The Recipient shall not, directly or indirectly, use or commercialize any Confidential Information unless expressly agreed in writing by the Disclosing Party.

 

2. The Recipient shall not directly or indirectly, undertake to copy or manufacture any Disclosing Party’s products using any of the Disclosing Party’s Confidential Information or part thereof.

 

3. The Recipient shall not, directly or indirectly, disclose or communicate any Confidential Information to any person except to its directors, employees, on a need to know basis, who have prior to the disclosure of or access to any such Confidential Information agreed in writing to receive it under terms at least as restrictive as those specified in this Agreement.

 

4. Notwithstanding anything in this Clause, the Recipient may, for the purposes of fulfilling its obligations towards the Disclosing Party, disclose or communicate any Confidential Information to any third party provided the Recipient shall enter into a written agreement with such third party, restricting such third party from making any unauthorized use of Confidential Information of the Disclosing Party. The Recipient shall ensure that the terms of the written agreement shall be atleast as restrictive as those specified in this Agreement.

 

5. The Recipient undertakes that it will not approach or make contact with any person with whom the Disclosing Party has business relations with respect to the matters contemplated under business relationship unless the Recipient has written approval from the Disclosing Party to do so.

 

6. It is clarified that in the event the Recipient has by itself or through any other means developed any derivative, enhanced, improved or modified product/service (“Derivative Product”) based on the Confidential Information or any part thereof, the Recipient hereby agrees that the intellectual property rights in any such Derivative Product shall be the unconditional and unencumbered property of the Disclosing Party for perpetuity and throughout the world. The Recipient agrees that it shall do all such things and procedures and execute all documentation necessary to establish or assign or transfer the absolute ownership of the intellectual property rights of the said Derivative Product to the Disclosing Party.

 

7. The Recipient shall retain and will not remove any Confidential Information stamps or markings appearing on such Confidential Information, if any.

 

8. The Recipient shall use at least the same degree of care in safeguarding the Confidential Information as it uses or would use in safeguarding its own confidential information and materials, and shall take all steps necessary to protect the Confidential Information from any unauthorized or inadvertent use. In particular, the Recipient shall immediately give notice in writing to the Disclosing Party of any unauthorized use or disclosure of the Confidential Information. The Recipient hereby agrees to assist, when requested, by the Disclosing Party, in remedying such unauthorized use or disclosure of the Confidential Information.

 

9. The Recipient shall not, directly or indirectly, disclose or communicate any Confidential Information to any competitor or customer or supplier of the Disclosing Party.

 

3.     Exceptions to obligation of the Recipient:

 

The obligations with respect to handling Confidential Information set forth in this Agreement are not applicable to any informa­tion which:

 

a.       The Recipient can show by written record to have been in its pos­se­ssion at the time of transmission or to have been subse­quently, indepen­dently developed by its employees who did not have any access to the Confidential Informa­tion; or

 

b.      Such Confidential Information is or becomes publicly known through no wrongful act or breach of this Agreement by the Recipient; or

 

c.       Such Confidential Information is rightfully received by the Recipient from a third party without similar re­stric­tions as set out in this Agreement; or

 

d.      Information is required to be disclosed to any government body or other authority pursuant to a lawful requirement of such body or authority or as required by law provided that the Recipient gives the Disclosing Party, in due time, a written notice of such requirement in order to enable the Disclosing Party to seek or to obtain protective order or other relief as appropriate. In the event the Recipient being compelled to make a disclosure as stated above, the Recipient shall only disclose so much of Confidential Information to the authority compelling disclosure, as is required by law and when requested, the Recipient shall assist the Disclosing Party in obtaining such preliminary, temporary or permanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect the Disclosing Party; or

 

e.       Information is approved for release or use by written authorization of the Dis­closing Party.

 

For avoidance of doubt, it is clarified that the burden of proof that the disclosed Confidential Information resides within one of the exceptions set forth in this Clause shall be on the Recipient.

 

4.      Ownership of Confidential Information:

 

a.  The Recipient agrees and acknowledges that all the information including the Confidential Information, whether or not formally marked or identified as confidential is, and shall remain the exclusive property of the Disclosing Party and the Disclosing Party retains all right, title and interest in the information including the Confidential Information.

 

b.    The Recipient agrees and acknowledges that by virtue of this Agreement, it has not acquired, does not and will not (directly or indirectly) acquire at any time any right, title or interest of any nature whatsoever in the Confidential Information and agrees and undertakes that it will not (directly or indirectly) at any time take advantage of any legal possibility to acquire rights of its own in the Confidential Information, or any variation thereof capable of causing deception or confusion, and hereby unconditionally renounces all such right(s), if any.

 

5.     Limited Obligations:

 

Notwithstanding anything else to the contrary, the Disclosing Party is not under any obligation to disclose any Confidential Information or other information to the Recipient.

 

6.     No License /Warranty:

 

a.                   By disclosing the Confidential Information to the Recipient, the Disclosing Party do not grant to the Recipient any express or implied license or other right to or under the Disclosing Party’s intellectual properties or trade secrets.

 

b.                  The Recipient understands that the Disclosing Party will endeavour to include in the Confidential Information those materials which it believes to be reliable and relevant for the purpose of business relationship, but the Recipient acknowledges that no, expressed or implied, representation or warranty is made by the Disclosing Party or its Representatives as to the accuracy, completeness, fitness for a particular purpose or function of the Confidential Information and Recipient agrees that the Disclosing Party and/or its customers, suppliers, designers, employees or representatives shall have no liability for any direct, indirect or consequential loss/damage caused to the Recipient or its representatives resulting from any receipt or omission to receive the Confidential Information.

 

7.                  Return of Confidential Information:

 

a.                   The Recipient shall, within seven (7)days of (i) receipt of any notice from the Disclosing Party or (ii) at end of the term of this Agreement, as the case may be, return or confirm to the Disclosing Party the deletion of all soft copies or destruction of all physical copies of the Confidential Information including any abstracts, summaries thereof or references thereto in its documents.

 

b.                  The Recipient shall also certify in writing to the Disclosing Party within ten (10) days of receipt of the notice from the Disclosing Party that it has complied with this Clause.

 

8.                  Remedies for Breach by Recipient:

 

a.       The parties agree that the Recipient shall be responsible for any breach of any of the terms of this Agreement by the Recipient or by any person to whom any Confidential Information have been disclosed by the Recipient. The Recipient agrees to indemnify the Disclosing Party from and against all claims, liabilities, costs, expenses, losses or damages (including but not limited to legal expenses) which may arise directly or indirectly from the unauthorized disclosure or use of the Confidential Information by the Recipient or by any person to whom any Confidential Information have been disclosed by the Recipient or from any claim brought by any third party as a result of breach of the terms of this Agreement.

 

b.      The Recipient also agrees and acknowledges that the Disclosing Party may, in addition to all other remedies available to it at law or in equity or under this Agreement, obtain such preliminary, temporary or permanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect the Disclosing Party against, or on account of, any breach by the Recipient of the provisions contained herein.

 

9.      Term:

 

a.                   This Agreement will come in force from the Effective Date. The Agreement shall continue till such time the Contract for the___________________________________ expires/terminates.

 

b.                  Notwithstanding whatever is stated above, all the Confidential Information received by the Recipient under this Agreement shall be maintained by the Recipient in confidence in perpetuity from the date hereof.

 

c.                   For avoidance of doubt, the duty to protect the Confidential Information as stated in this Agreement shall survive termination or expiration of the Agreement forever.

 

10.              Governing Law and Jurisdiction:

 

This Agreement shall be governed by and construed with solely in accordance with the laws of India. Any proceedings arising out of or in connection with this Agreement shall be brought only before the courts of competent jurisdiction in Mumbai.

 

11.              Arbitration:

 

All disputes and differences arising out of or in connection with the Agreement shall be referred for arbitration under the provisions of the then prevailing Indian Arbitration & Conciliation Act, 1996. The Parties agree that the seat of arbitration shall be at Mumbai and the arbitral proceedings shall be conducted by a sole arbitrator to be appointed by the Parties mutually within 15 (fifteen) days from the date of the first recommendation for an arbitrator in written form from a Party to the other Party. If the Parties fail to decide on the sole arbitrator within stipulated period of 15 (fifteen) days, the sole arbitrator shall be appointed in accordance with the provisions of the then prevailing Indian Arbitration & Conciliation Act, 1996. The arbitration proceedings shall be conducted in English language. The cost of Arbitration shall be borne equally by both Parties.

 

12.              Miscellaneous:

 

a                     This Agreement contains the entire understanding between the parties, superseding all prior communications, agreements and understandings between the parties with respect to the purpose of this Agreement.

 

b                    No change, modification, alteration deletion or addition to any provision of this Agreement shall be binding unless in writing and signed by an authorized representative of each party.

 

c                     The rights of the Disclosing Party under this Agreement are cumulative and such right may be exercised by the Disclosing Party as often as the Disclosing Party considers appropriate and are in addition to its rights under any law.

 

d                    No term or provision hereof will be considered waived and no breach of this Agreement excused by the Disclosing Party, unless such waiver or consent is in writing signed by or on behalf of the Disclosing Party. Any failure by the Disclosing Party to exercise any of its rights under this Agreement shall not operate as a waiver or variation of that or any other right. No consent or waiver of a breach by the Disclosing Party will constitute consent to the waiver of or excuse of any different or subsequent breach by the Recipient.

 

e                     The parties agree to do or execute any further assurances and documents that may be required by law or that the Disclosing Party may consider necessary to establish, maintain and protect its rights and generally to carry out the true intent of this Agreement.

 

f                     If at any time any one or more of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

g                    If any provision of this Agreement is rendered illegal by any present or future law, ordinance or regulation then that provision shall be curtailed or limited only to the minimum extent necessary to bring the provision into compliance with the law, ordinance or regulation. All other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation. Further, if any provision of this Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force.

 

h                    Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered, or by a recognised courier service providing confirmation of delivery or by e-mail with confirmation from the receiving party of the receipt the e-mail or when mailed by registered mail, return receipt requested and postage prepaid at the addresses hereinabove mentioned and marked to:

 

Particulars	Disclosing Party	Recipient
Name
Designation	Authorised Signatory
E-mail address

 

i                      The Disclosing Party may assign its rights under this Agreement to any person. However, the Recipient shall not assign its rights to any person unless agreed in writing by the Disclosing Party.

 

j                      The headings are for ease of reference only and shall not affect the meaning or interpretation of the provisions of this Agreement.

 

k                    This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as on Effective Date:

 

SIGNED AND DELIVERED for and on behalf of ABC  LIMITED	SIGNED AND DELIVERED for and on behalf of <<name of the business associate>>
Name:	Name:
Title:	Title:
Place:	Place:
Date:	Date:
Witness:   1   2	Witness:   1   2