This Agreement is made on _____________ by and between ___________________________________ (Business Registration No._______________), a company incorporated in Macau and having its registered address at _________________________________________________________________. (hereinafter called “Company”)
and
DKSH Macau Limited, a company incorporated in Avenida de Venceslau de Morais Ctro Indl Keck Seng Fs, 3, 5 andar V, Macau (hereinafter called “DKSH”)
Each a “Party” and collectively referred to as the “Parties”.
WHEREAS, DKSH is a member of the DKSH Group - headquartered in Switzerland - which is a leading international solution provider specialized in sourcing, marketing, sales, warehousing, distribution and after-sales services; and
WHEREAS, the Company is a goods or services provider; and
WHEREAS, the Parties are considering and discussing the possibility of entering into the possible business or transaction of distribution or logistics services at the terms and conditions to be further negotiated and mutually agreed (“Purpose") and such discussion may require disclosure of certain confidential information, either directly or indirectly, by one of the Parties (as “Disclosing Party”) to the other (as “Receiving Party”) and/or to their respective employees; and
WHEREAS, neither Party is willing to make disclosure of confidential information to the other Party concerning such discussion without the other Party’s agreement to hold such information in trust and confidence.
NOW, THEREFORE, in consideration of the business discussions between the Parties and each giving access to its 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. Scope. “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 property, financial data, strategic and business plans, company information, customer and supplier information, 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 proprietary or not, or which ought to be treated as confidential.
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.
Confidential Information does not include information which the Receiving Party can show:
a) that at the time of the disclosure by the Disclosing Party, is in the public domain;
b) 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;
c) 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;
d) 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
e) that it is authorised in writing by the Disclosing Party to disclose without restriction.
2. Obligations.The Receiving Party agrees that unless specifically authorized by the Disclosing Party in writing it shall:
a) 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;
b) not use the Confidential Information for its benefits or for the benefit of any third party except for the purpose set forth herein;
c) 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.
3. Ownership. 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.
4. Confidential Information. 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.
5. No license. 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.
6. Subject Matter. 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.
7. Term and Termination. This Agreement shall become effective on the signing date and continue in full force and effect for a period of two (2) years. The termination of this Agreement shall not relieve either party of the obligations imposed by this Agreement with respect to the Confidential Information of the 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 one (1) year from the date of said termination.
8. No obligation. 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.
9. Non-solicitation. 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.
10. Injunctive Relief. 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.
11. Severance. 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.
12. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the substantive Laws of Hong Kong Special Administrative Region (SAR) on Contracts and any national conflict of law rules are hereby excluded from application to this Agreement.
13. Dispute Resolution. The Parties shall use their best endeavours to settle any differences relating to this Agreement that they may have in an amicable and expeditious manner. In the event that any such differences may not be so settled within two (2) months from the commencement date of such discussions between the Parties, such disagreement, dispute, controversy or claim arising out of or relating to this Agreement, including the validity, invalidity, breach or termination hereof, shall be finally resolved and settled exclusively before the courtsin Hong Kong SARHaving jurisdiction thereon.
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.