MUTUAL CONFIDENTIALITY AND NON-CIRCUMVENTION AGREEMENT

 

MUTUAL CONFIDENTIALITY AND NON-CIRCUMVENTION AGREEMENT

 

This Confidentiality and Non-Circumvention Agreement (“Agreement”) is made as of 20th May 202x by and between:

 

XXXX CORPORATION, ADDRESS

 

And

 

XXXXX Co., Ltd, ADDRESS

 

The parties to this agreement wish to clearly state the treatment of all aspects of mutual confidentiality and non-circumvention as set out below:

 

 

1. Confidential Information. The Parties intend to provide and disclose certain confidential and proprietary information (the “Confidential Information”) to each other relating to proposed Business Opportunities (the “Opportunities”).  Confidential Information shall include all data, materials, products, specifications, manuals, business plans, software, marketing plans, financial information, contact details and other information disclosed or submitted, orally, in writing, or by any other media, by the party hereto disclosing the Confidential Information (the “Discloser”) to the party hereto receiving the Confidential Information (the “Recipient”) in respect of the Opportunities. For the avoidance of doubt Confidential Information shall only include information in respect of such Opportunities that have been requested by the Recipient from the Discloser. Confidential Information shall also include the existence and nature of the Opportunities as well as the identities of any parties associated with the Opportunities. However, Confidential Information does not include information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Recipient, (b) was available to the Recipient on a non-confidential basis prior to its disclosure to the Recipient, or (c) becomes available to the Recipient on a non-confidential basis from a person, other than the Discloser or any parties associated with the Opportunities, who is not known by the Recipient to be bound by a confidentiality agreement with the Discloser, with respect to the Opportunities or with respect to the Confidential Information, or otherwise prohibited from transmitting the information to the Recipient.

 

2. Undertakings of the Recipient. The Recipient agrees that unless required to disclose any Confidential Information by law, regulation, legal process or regulatory authority, unless otherwise agreed to by the Discloser in writing, the Confidential Information is to be considered confidential and proprietary and the Recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of evaluating the possible Opportunities and shall disclose it only to its officers, directors, 

employees, advisors, business partners or representatives having a specific need to know and shall procure that they are similarly bound by the terms of this Agreement. The Recipient will not disclose, publish or otherwise reveal any of the Confidential Information to any other party whatsoever without obtaining specific prior written authorization from the Discloser. For the purposes of this agreement written authorization to disclose Confidential Information shall include email communication. Additionally, written authorization to disclose Confidential Information to a number of parties may be conferred upon the Recipient by the Discloser under the terms of an

executed letter of engagement between the parties. In the event that the Recipient is required by law, regulation, legal process or regulatory authority to disclose any Confidential Information or any other information concerning the Opportunities, the Recipient agrees to provide the Discloser, and/or any party specified by the Discloser, with immediate notice of such request or requirement where practicable in order to enable that the Discloser or any party specified by the Discloser (a) to seek an appropriate order or other remedy; (b) to consult with the Recipient with respect to the Discloser or any party specified by the Discloser taking steps to resist or narrow the scope of  such request or requirement; (c) to waive compliance, in whole or in part, with the terms of this Agreement; or (d) take such other action as may be appropriate to prevent the disclosure of any Confidential Information.  Upon the request of the Discloser, the Recipient shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At the option of

the Recipient, any documents or other media developed by the Recipient containing Confidential Information may be destroyed by the Recipient, who may in turn request written confirmation of such destruction. Notwithstanding the foregoing, the parties may retain copies of the Confidential Information pursuant to their customary automatic data back-up systems or document retention policies related to regulatory compliance requirements.

 

3. Non-Circumvention. The Recipient shall take no action with respect to the Opportunities or in any way seek to utilize or exploit the Confidential Information without prior express written permission from the Discloser. The Recipient shall not initiate or solicit any discussions (a) with any parties associated with the Opportunities or (b) looking toward or contemplating the Opportunities, except through the Discloser. At no time shall the Recipient attempt in any manner or agree in any manner to deal directly with the Opportunities or any parties associated with the Opportunities or to circumvent the Discloser to gain access to or deal directly with the Opportunities or any parties associated with the Opportunities, or otherwise to exploit the Discloser’s relationships to gain access to or to deal directly with the Opportunities or any

parties associated with the Opportunities, or to attempt in any way to gain direct or indirect contact with the Opportunities or any parties associated with the Opportunities, without prior express written permission from the Discloser.

 

4. Equitable Relief, Governing Law and Arbitration. The Recipient agrees that in the event of any breach or threatened breach by the Recipient, the Discloser or any party specified by the Discloser, may obtain, in addition to any other legal remedies which may be available, such injunctive relief and/or equitable relief as may be necessary to protect the Discloser or any party specified by the Discloser against any such breach or threatened breach.  Any dispute arising out of or relating to this Agreement including any question regarding its existence, validity or termination (a “Dispute”) shall be governed by and construed in accordance with the Laws of France. The parties shall maintain in confidence and not disclose (i) the existence of any Dispute, controversy or claim under this Agreement, (ii) the fact, existence substance and/or status of any proceedings, and (iii) the outcome or resolution of any such Dispute, controversy or claim, whether by settlement or litigation.

 

5. Other Matters. Save as expressly set out in this Agreement, this Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns; provided, that Recipient may not assign any right or obligation under this Agreement without the prior written consent of the Discloser. Nothing in this Agreement is intended to confer on any person, other than the affiliates of the Discloser any right to enforce any term of this Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999. If any provision of this Agreement is found by a proper authority to be unenforceable in any relevant jurisdiction, that provision shall be severed and the remainder of this Agreement will continue in full force and effect (and such provision will continue in full force and effect in any other jurisdiction). No failure or delay on the part of a party hereto in exercising any right, power or

privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. This Agreement may not be amended, or any of its provisions waived, except by an agreement executed by the Discloser and Recipient. References to this Agreement include this Agreement as amended or varied in accordance with its terms. This Agreement shall expire and cease to have any force or effect on the second anniversary of the date hereof, except that the Recipient shall not use or disclose the Confidential Information in any manner that violates the securities laws of any country or any other law in any jurisdiction, which obligation shall survive any termination  hereof. The signatories confirm that they are authorized to sign on behalf of the respective parties hereto. Neither party warrants the accuracy of the information it discloses. No License or right is granted by either party under the patent, patent application, trademark, copyright, software or trade secret.

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

 

Signed for and on behalf of XXXXXX by XXXXXXX: 

 

 

 

 

 

 

 

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Signed for and on behalf of XXXXX Co., Ltd by XXXXXXXXX

 

 

 

 

 

 

 

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