MUTUAL NON-DISCLOSURE AGREEMENT WITH NON-CIRCUMVENTION PROVISIONS This Mutual Non-Disclosure Agreement (“Agreement”) is made as of April 7th, 2017 (“Effective Date”) by and between XXX Company, a XXX Company, with the commercial registration XXXX, and its registered address at XXX (“XXX”), and XXXXXX, a XXXcompany with its registered address at XXXX (“Company”).
Statement of Purpose
I n analysis of a possible transaction involving the development and realization of certain Real Estate transactions within the Kingdom of Bahrain (the “Projects”) which have been identified by UXB and to determine if the Parties wish to cooperate on such Projects in any capacity whatsoever. The party receiving or learning such Confidential Information is referred to herein as the “Receiving Party,”and the party disclosing such Confidential Information is referred to as the “Disclosing Party.” In consideration of furnishing the other party with Confidential Information, the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.Definition of “Confidential Information”.
a.Confidential Information. For purposes of this Agreement, “Confidential Information”means all information that is not generally known, in whatever form, disclosed by a Disclosing Party to a Receiving Party or learned as a result of such disclosure, including information about a Disclosing Party’s finances, costs and pricing; and the Disclosing Party’s actual or potential employees, vendors or customers; competitive and market conditions; and any other information which is not generally known to others.
b.E xceptions. C onfidential Information does not include information that: (i) is, or later becomes generally known other than as a result of misappropriation or a breach of this Agreement; (ii) is in the possession of the Receiving Party without restriction prior to its receipt from the Disclosing Party, as evidenced by contemporaneous written records; (iii) is received by the Receiving Party from a third party lawfully holding such Confidential Information and with no restrictions on its disclosure; or (iv) was independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information, as evidenced by contemporaneous written records. The Receiving Party shall have the burden
of proving the existence of the foregoing exceptions. Confidential Information shall not be deemed to be generally known merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are now or become generally known.
2.Treatment of Confidential Information.
a.Each party agrees to keep secret and confidential the Confidential Information of the other party, and further agrees to use such information solely as is reasonably necessary for the Purpose defined above. The Receiving Party shall not otherwise use any of the other’s Confidential Information for its own or any third party's benefit, without the prior written approval of an authorized representative of the Disclosing Party.
b.Each party further agrees that it shall not disclose the other’s Confidential Information to any outside party (with the exception of the Third and Fourth Party defined elsewhere within this Agreement, provisions of which are discussed in 2(f) below) without the Disclosing Party’s express prior written consent, except that a Receiving Party may disclose the Confidential Information or portions thereof to those of its directors, shareholders, officers, employees, representatives and agents (collectively, the “Representatives”) who need to know such information for the Receiving Party to accomplish the Purpose defined above. Prior to disclosing any of the other’s Confidential Information to any Representative, the Receiving Party will inform such Representative in writing of the confidential nature of the Confidential Information and will ensure that such Representative is bound by written confidentiality and use-restriction terms substantially similar to the terms in this Agreement.
c.Each party further agrees t o protect and safeguard the other’s Confidential Information against unauthorized use, publication or disclosure with the same level of care it employs to safeguard its own Confidential Information, and in no event with less than reasonable care.
d.Each party further agrees that it shall not reverse engineer, decompile or otherwise disassemble the Disclosing Party’s Confidential Information.
e.The Receiving Party may disclose the Confidential Information of the Disclosing Party without breach of this Agreement solely to the extent such Confidential Information is required to be disclosed pursuant to any government statute, regulation or any court order, to
the extent actually so required and after notice of such requirement to the Disclosing Party, provided that such notice is allowed by law.
f.Prior to release of any Confidential Information to any Third Parties, UXB and the Compnay shall ensure that each has in place Non-Disclosure Agreements between their respective client with similarly restrictive terms. UXB and Company may request from the other the Terms of the Non-Disclosure Agreements with their prospective clients.
3.Limits on Disclosure Obligations. Either party shall have the right to refuse to accept any information under this Agreement, and nothing in this Agreement obligates either party to disclose to the other any particular information. Neither party makes any warranties or representation as to the accuracy, completeness, utility or value of Confidential Information it discloses. Neither party is obligated to enter into any further agreement with the other as a result of this Agreement or any disclosures made hereunder.
4.Ownership of Confidential Information.
a.UXB and Company each agree and acknowledge that all Confidential Information of a Disclosing Party hereunder shall remain the sole property of the Disclosing Party. Nothing in this Agreement shall be deemed a license to the Receiving Party to use the intellectual property of the Disclosing Party, other than as is expressly authorized herein.
b.To the extent Confidential Information, and any matter including, embodying, constituting, reflecting, derived from or arising from the Confidential Information, is or becomes cognizable under the patent, copyright, trademark or other intellectual property laws of any jurisdiction, the parties agree that the Disclosing Party will solely own all such rights. The Receiving Party shall not publicly disclose or offer for sale any such invention, discovery, creation or improvement, and such subject matter shall be deemed to be Confidential Information owned by the Disclosing Party until such time, if ever, that it no longer meets the definition of same. The Receiving Party shall not contest or challenge the Disclosing Party’s patent, copyright or other intellectual property rights in the Disclosing Party’s Confidential Information, and the other party further agrees to assign whatever rights it may acquire in such intellectual property to the Disclosing Party, and further to provide whatever assistance the Disclosing Party reasonably requests to protect, register, enforce or defend such intellectual property rights. The Receiving Party further agrees that it shall not
take any action that would infringe, misappropriate or otherwise impair such rights or the acquisition of such rights.
5.Return of Confidential Information. At the request of a Disclosing Party, the Receiving Party will promptly return to the Disclosing Party all of the Disclosing Party's Confidential Information, together with all copies thereof and all notes, drawings, abstracts and other information in whole or in part containing the Disclosing Party’s Confidential Information. In the event the Disclosing Party’s Confidential Information is embodied or stored in a medium incapable of being returned (such as a hard drive), the Receiving Party shall destroy such Confidential Information in a manner that prevents undeletion or recovery and, upon request, shall certify in writing to the Disclosing Party that it no longer has in its possession and is not using the Disclosing Party’s Confidntial Information.
6.No Representations. UXB and Company acknowledge that neither party is making, nor will either party make at the time of delivery of the Confidential Information, any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and neither UXB nor Company, nor any of their respective officers, directors, employees, stockholders, owners, affiliates, agents or representatives will have any liability to the other party or any other person resulting from the use of the Confidential Information.
7.Non-Solicitation/No-Hire. Given the nature of the discussions leading to a possible Transaction, UXB and Company agree they will not solicit, recruit, nor hire employees of the other for a period of two (2) years after the termination or expiration of this Agreement without the written consent of, the other party. For the purposes of this section, the obligation to seek the consent of the other party shall commence when the party knows, or reasonably should have known, of the employement histroy of the employee.
8.Non Circumvention. As a material inducement to enter into this Agreement, the Parties agree that the Company will not attempt to deal directly with any Third Party in any Transaction of any nature as anticpated by the “Statement of Purpose” of this Agreement. The Parties agee that his Non-Circmvention shall remain valid for the later of (1) a period of three (3) years from the effective date of this Agreement or (2) for the period of (1) year past any expiration, termination, or non-renewal of the Agreement. Ine the event this provision is
violated by either Party, the aggreived party may petition the court for damages amounting to lost profit, as well as other damages allowed by law, and may seek injunctive relief to block or prohibit any Transaction from proceeding in violation of this provision.
9.Term; Termination; Survival of Confidentiality Obligation. The term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year. Either party may terminate this Agreement for convenience upon five (5) days prior written notice to the other party. The confidentiality obligations set forth in this Agreement are in addition to any confidentiality obligations imposed by circumstance or underlying law. The obligations of confidentiality hereunder shall survive the termination or expiration of this Agreement for a period of three (3) years, provided that each party’s obligations of confidentiality with respect to any Confidential Information that constitutes a trade secret shall continue until such Confidential Information fits an exception set forth in Section 1(b) hereof.
10.Remedies. Each party acknowledges that the unauthorized use or disclosure of the other’s Confidential Information shall cause the Disclosing Party irreparable harm not fully compensable in money damages, and it therefore agrees that the Disclosing Party shall have the right to immediate injunctive relief, without the requirement of posting security or bond. Each party agrees that it shall indemnify the other and hold it harmless against any damage, injury, or cause of action arising from the unauthorized use or disclosure of the other’s Confidential Information by it or its Representatives.
11.Nonassignment. N either party shall have the right to assign its rights under this Agreement, whether expressly or by operation of law, without the prior written consent of the other party. Subject to the foregoing, this Agreement and the Receiving Party’s obligations hereunder shall be binding on the representatives, permitted assigns, and successors of the Receiving Party and shall inure to the benefit of the representatives, permitted assigns and successors of the Disclosing Party.
12.Miscellaneous.
a.This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this Agreement, and it supersedes all previous agreements, negotiations and commitments between the parties related to such subject matter. This
Agreement shall not be modified in any manner, except by mutual written consent signed by duly authorized representatives of each of the parties.
b.Failure to insist upon strict compliance with any provision of this Agreement shall not be deemed waiver of such provision or any other provision hereof.
c.This Agreement will be governed by, construed and enforced in accordance with the laws of the Kingdom of Bahrain, without regard to its conflicts of law rules. The Parties agree that any action brought under this Agreement shall be brought in the Courts of the Kingdom of Bahrain.
d.If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be entitled to recover from the other its costs and expenses, including attorneys’ fees.
e.If any provision of this Agreement shall be finally held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be deemed automatically to be deleted, and the remaining provisions that can be given effect without such deleted terms shall remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall remain in full force and effect in all other circumstances.
f.The execution of this Agreement shall not create any agency, partnership, joint venture, association or any other relationship between the parties other than as independent contracting parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
XXXXXXXX Company XXXXXXXX Company
By: ________________________________ B y: ___________________________________ XXXXXXXXXXXXXX Print Name: XXXXXXXXXXX
XXXXX Title: XXXXXXXXXXX
Date:_______________________________ Date: XXXXXXX
THANKS !!!
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