This Agreement is made between-
DKSH Malaysia Sdn Bhd (company number 196101000441 (4476-U)), a company incorporated in Malaysia and having its registered address at B-11-01, The Ascent, Paradigm, No. 1, Jalan SS 7/26A, Kelana Jaya, 47301 Petaling Jaya, Selangor Darul Ehsan, Malaysia (hereinafter called “DKSH”)
and
[Company] a company incorporated in [Country] and having its registered address at [address] (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 Market Expansion Services in Asia 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 and its Affiliates (as “Disclosing Party”) to the other and its Affiliates (as “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 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 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 information, customer and supplier 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.
“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.
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:
1.1.that at the time of the disclosure by the Disclosing Party, is in the public domain;
1.2.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;
1.3.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;
1.4. 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
1.5.that is authorized in writing by the Disclosing Party to be disclosed without restriction.
2.The Receiving Party agrees that unless specifically authorized by the Disclosing Party in writing it shall:
2.1.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;
2.2 not use the Confidential Information for its benefits or for the benefit of any third party except for the Purpose set forth herein;
2.3.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.
3. 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.
4.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 destroy all the Confidential Information including all summaries, extract, translation and the like prepared by the Receiving Party that incorporated the Disclosing Party’s Confidential Information within fourteen (14) days of the date of such request or termination 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.
5. 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.
6. No license 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.
7. 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.
8. This Agreement contains the entire and only agreement between the Parties relating to the subject matter hereof and supersedes 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.
9. This Agreement shall become effective on the last signing date and continue in full force and effect for a period of six (6) 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.
10.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.
11.Without the other Party’s prior written consent no Party shall, whether directly or indirectly through third parties, solicit for employment or hire, try to hire or enter into any kind of agreement with employees of the other Party or its Affiliates during the term of this Agreement and – if the discussion would not result in the Purpose – also for a period of two (2) years after the end of the discussions or negotiations.
12.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.
13.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 unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the Parties hereto.
14.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.
15. This Agreement shall be governed by and construed in accordance with the substantive Laws of Malaysia. 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. Any disputes arising out of or in connection with this Agreement shall be resolved exclusively before the courts in Malaysia.