This Confidentiality Agreement (this "Agreement") is made on the _____ day of _____ _____ (the "Effective Date" by and between
DKSH (Myanmar) Limited, a company duly incorporated and existing under the laws of the Republic of the Union of Myanmar ("Myanmar") and having its registered address at No.13, Thitsar Road, Yankin Township, Yangon, Myanmar (hereinafter called "DKSH")
and
___________________________________, company duly incorporated and existing under the laws of _________ and having its registered address at ____________________________________________________________________________________________ (hereinafter called "Company").
Each a "Party" and collectively referred to as the "Parties".
WHEREAS, DKSH is a member of the DKSH Group which is a leading international solution provider specialised in marketing, logistics and distribution, fulfillment and after-sales services; and
WHEREAS the Parties are considering and discussing the possibility of collaboration for _______________________________ in Myanmar in accordance with the terms and conditions to be further negotiated and mutually agreed ("Purpose") and the Purpose may require disclosure of certain confidential information, either directly or indirectly, by one of the Parties and its Affiliates (as defined below) (as a "Disclosing Party") to the other Party and its Affiliates (as a "Receiving Party") and/or to their respective employees; and
WHEREAS, neither Party is willing to make disclosure of Confidential Information (as defined below) to the other Party concerning the Purpose without the other Party’s agreement to hold such information in trust and confidence.
NOW, THEREFORE, in consideration of the Purpose and each Party giving access to their Confidential Information, the Parties hereby agree to the terms and conditions related to the treatment of Confidential Information and other considerations as set forth in this Agreement:
1. "Confidential Information."shall mean proprietary information, any information, secret and non-public, tangible or intangible information, documentation and know-how including but not limited to research, products, designs, drawing, software, services, development, inventions, specifications, techniques, manual, formulations, trade secret, intellectual properties, financial data, strategic and business plans, company and personnel information, customer, supplier and marketing information, employee data, business methods and processes, disclosed by the Disclosing Party for or in connection with the Purpose, directly or indirectly to the Receiving Party in writing, orally, electronically or otherwise and whether marked or designated as being confidential or propriety or not, or which ought to be treated as confidential.
1.1 Any reproductions, notes, summaries or similar documents relating to the Confidential Information shall itself be Confidential Information and as such shall become and remain the Disclosing Party’s property upon the creation.
1.2 Confidential Information does not include information which the Receiving Party can show:
1.2.1 that at the time of the disclosure by the Disclosing Party, is in the public domain;
1.2.2 that after disclosure by the Disclosing Party, becomes part of the public domain by publication or otherwise through no action or fault of the Receiving Party;
1.2.3 that was in its possession at the time of the disclosure by the Disclosing Party and was not obtained directly or indirectly from the Disclosing Party;
1.2.4 that comes into the possession of the Receiving Party through a third party who is under no legal duty to the Disclosing Party to keep the information in confidence; or
1.2.5 that is the information which the Receiving Party can establish by competent proof is developed by the Receiving Party independent of any disclosure from the Disclosing Party; or
1.2.6 that it is authorised in writing by the Disclosing Party to disclose without restriction.
1.3 For the purpose of this Section, specific information disclosed by Disclosing Party shall not be deemed to be public knowledge merely because it is embraced by more general information that is already public knowledge at the time of disclosure.
2. "Affiliate"shall mean a corporation, company or other entity, now or hereafter, directly or indirectly owned or controlled by, or owning or controlling, or under common control with one of the Parties, but such corporation, company or other entity shall be deemed to be an Affiliate only so long as such ownership or control exists. For purposes of this definition, “control” of a corporation, company or other entity shall mean to have, directly or indirectly, the power to direct or cause the direction of the management and policies of a corporation, company or other entity whether (i) through the ownership of voting securities providing for the right to elect or appoint, directly or indirectly, the majority of the board of directors or similar managing authority, (ii) by contract or (iii) otherwise. Specifically, DKSH “Affiliates” include: DKSH Services Limited and DKSH South East Asia Pte. Ltd.
3. The Receiving Party agrees that unless specifically authorized by the Disclosing Party in writing it shall:
3.1 not disclose, or allow anyone else to disclose, any Confidential Information of the Disclosing Party to any third party, provided, however, that the Receiving Party may disclose such Confidential Information to its officers, employees, advisers and agents to the necessary extent for them to accomplish the Purpose, namely evaluating the merits of a business relationship, provided that the Receiving Party shall assure that such officers, employees, advisers and agents are bound by the confidentiality and non-use obligations at least equivalent to those contained in this Agreement;
3.2 not use the Confidential Information for its benefits or for the benefit of any third party except for the purpose set forth herein;
3.3 safeguard the Confidential Information with the same degree of care to avoid the unauthorized disclosure it uses to protect its own information of a similar nature, but in no case less than reasonable care.
4. If the Receiving Party is required by law or by any governmental agency, court or other judicial or regulatory body to provide any confidential information received under this Agreement, the Receiving Party shall not be deemed to be in violation of this Agreement for such disclosure provided that the Recipient shall, as promptly as reasonably possible, give notice to the Disclosing Party of the requirement to provide such confidential information and shall cooperate with the Disclosing Party so that the Disclosing Party, in its discretion, may contest the requirement to provide such confidential information. The Receiving Party shall disclose only that portion of the confidential information that it is legally required to furnish. To the extent the disclosure will be subject to a protective order or restrictions apply as to further disclosure or use of such information, the information shall continue to be subject to the non-use and non-disclosure obligations herein (except that the required disclosure will be allowed or required by law or by any governmental agency, court or other judicial or regulatory body).
5. The Receiving Party acknowledges that the Receiving Party has no ownership or proprietary rights in the Confidential Information of the Disclosing Party. Upon the Disclosing Party’s request or termination of this Agreement, the Receiving Party shall immediately return all the Confidential Information and the copies thereof to the Disclosing Party within fourteen (14) days of the date of such notice or termination and shall destroy all summaries, extract, translation and the like prepared by the Receiving Party that incorporated the Disclosing Party’s Confidential Information provided however that the Receiving Party may retain one complete copy of Confidential Information in its archives for the purpose of determining its obligations under this Agreement.
6. This Agreement, the subject matter of this Agreement, and the related contacts between the Parties itself are regarded as Confidential Information and shall be treated on the basis set forth herein.
7. No licence or any other rights relating to the Confidential Information of the Disclosing Party are granted to the Receiving Party, expressly or impliedly, by this Agreement or by any disclosure made under this Agreement, unless otherwise expressly provided herein.
8. The Receiving Party acknowledges that the Disclosing Party does not make any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and that the Disclosing Party expressly disclaims any and all liability that may be based on the Confidential Information, errors therein or omissions therefrom. The Receiving Party agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information.
9. This Agreement contains the entire and only agreement between the Parties relating to the subject matter hereof and supercedes and replaces any and all prior agreements or understandings, written or oral, express or implied, between the Parties relating to the subject matter hereof.Further amendments and additions to this Agreement must be in writing and signed by the Parties in order to be binding.
10. This Agreement shall come into effect on the Effective Date and continue in full force and effect until the later of a) a period of twelve (12) months. The termination of this Agreement shall not relieve either Party of the obligations imposed by this Agreement with respect to the Confidential Information of Disclosing Party disclosed prior to the effective date of termination and the provisions of secrecy and non-use obligations hereof shall survive the termination of this Agreement for a period of five (5) years.
11. Neither Party has an obligation under this Agreement to enter into a further agreement relating to the Confidential Information and/or the Purpose with the other Party by virtue of entering into this Agreement or performing under this Agreement.
12. Without the other Party’s prior written consent no Party shall during the term of this Agreement and – if the discussion would not result in the Purpose – also for a period of one (1) year after the end of the discussions or negotiations, whether directly or indirectly through third parties, solicit for employment or hire, try to hire or enter into any kind of employment agreement with employees of the other Party or its affiliates who are involved in the discussions or negotiations. This clause shall not apply to any engagement, hire or employment resulting from any media advertisements, responses through employment agencies or through any other form of unsolicited means.
13. The Parties acknowledge and understand that monetary damages alone may not be an adequate remedy for any breach of the provisions of this Agreement and each Party is entitled, without waiving any other rights or remedies, to injunctive relief issued by the court of competent jurisdiction.
14. Neither Party may assign its rights or delegate its duties hereunder without the prior written consent of the other Party. This Agreement will be binding upon the successors and assigns of both Parties.
15. The failure to enforce any right will not be deemed a waiver of such right or any other right, including the right to enforce a subsequent breach of the same obligation.
16. Neither Party shall be made liable or responsible to the other Party under this Agreement for any punitive, exemplary, indirect, consequential or incidental damages, whether foreseeable or unforeseeable including lost goodwill, lost profit, business custom, income or revenue or any other form of economic loss, incurred by a such Party, regardless of whether such claim arises under or results from contract, tort or strict liability.
17. In the event that any of the provisions of this Agreement is determined to be invalid, illegal, void or in conflict with regulations or rulings of authorities, governmental or other, or otherwise unenforceable, all other provisions of this Agreement shall be severable and remain valid, binding and enforceable in accordance with their terms, and the Parties agree that a provision which shall be determined to be or which shall become invalid, illegal, void or Version 26.11.2021 Page 4 of 4 unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the Parties hereto.
18. This Agreement shall be governed by and construed in accordance with the substantive Laws of the Republic of Singapore ("Singapore"). The U.N. Convention on Contracts for the International Sale of Goods as of April 11, 1980 ("Vienna Convention") and any national conflict of law rules are hereby excluded from application to this Agreement. The Parties shall seek to settle any dispute between them, arising out of or in connection with this Agreement or the termination or alleged breach or invalidity hereof (the "Dispute"), by means of amicable negotiations. In the event that the Parties fail to settle such Dispute through such negotiations within thirty (30) days or such longer period as the Parties may mutually agree upon, in writing, after the receipt by one Party of a notice from the other Party of the existence of the Dispute, such Dispute shall be resolved by arbitration administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the Arbitration Rules of SIAC ("SIAC Rules") in force at that time. The seat of arbitration shall be Singapore and the language of the arbitration shall be English. The arbitration tribunal shall consist of three arbitrators, chosen in accordance with the SIAC Rules. If, however, the aggregate award sought by the parties is less than US$2.5 million and equitable relief is not sought, a single arbitrator shall be chosen in accordance with the SIAC Rules.
19. This Agreement may be executed in any number of counterparts and all such counterparts when taken together shall constitute one and the same instrument with full legal force and effect. Signatures transmitted by means of facsimile machine or electronic means in portable document format, shall all be deemed to be original signatures, shall be valid and binding, and shall be considered to have the same binding legal effect as if they were the original signed version thereof delivered in person.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized representatives in duplicate, each Party retaining one (1) copy thereof, respectively.