Non-disclosure agreement simple (unilateral), in Eng

NON-DISCLOSURE AGREEMENT

            THIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into on this Date of conclusion (the “Effective Date”) between:

(1) Повне найменування (Eng.) , a corporation organised and existing under the laws of Країна реєстрації (Eng.) , with its registered office at Адреса місцезнаходження (юридична адреса) (Eng.) (hereinafter - Disclosing Party)

And

(2) Повне найменування (Eng.) , a legal entity organized and existing under the laws of Країна реєстрації (Eng.) , having its registered office at Адреса місцезнаходження (юридична адреса) (Eng.) , company registration number Код компанії (hereinafter - Receiving Party)

together are referred to herein, collectively as the “Parties”.

Recitals:

The Parties are currently entering into discussions with each other with a view to specify the purpose of diaclosing confidential information, e.g. a possible investment in a projects owned by the Disclosing Party and/or its Affiliates (the “Proposed Transaction”).  The Disclosing Party agrees to provide the Receiving Party with Confidential Information in accordance with the terms and conditions of this Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. Definitions

In this Agreement:

 “Affiliate” means any company which is controlled by, under common control with or controls the other.  A company shall be deemed to have control of another if (directly or indirectly) it owns a majority of the voting shares of, or is entitled (directly or indirectly) to appoint a majority of the directors of the other company and the term “Affiliate” shall also include any entity managed by the respective Party.

 “Confidential Information” means any information in whatever form concerning the Disclosing Party, whether before, during or after this Agreement, and includes (but is not limited to): (i) information relating to the Disclosing Party’s business affairs, financial dealings, operations, shareholders, reports, data, forecasts, commercial strategies, financial statements, processes, technical information, production information, client and supplier information, goodwill and reputation, know-how, proprietary rights, designs, trade secrets, market opportunities, commercial agreements, tolling agreements and the Proposed Transaction; (ii) analyses, studies or other documents prepared by the Receiving Party or any of its Relevant Persons which contain or otherwise reflect such information or any part of it; (iii) information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information; and (iv) the existence and contents of this Agreement, but excludes information that:

 (i)        is or becomes public information other than as a direct or indirect result of any breach by the receiving party of this agreement; or

(ii)        is identified in writing at the time of delivery as non-confidential by the disclosing party or its relevant persons; or

(iii)       is known by the receiving party before the date the information is disclosed to the receiving party by the disclosing party or any of the disclosing party’s relevant persons or is lawfully obtained by the receiving party after that date, other than from a source which the receiving party knows has not been obtained in violation of any obligation of confidentiality to the disclosing party.

“Relevant Person” means any or all of the officers, directors, employees, consultants, agents, professional advisers, insurers and auditors of a Party.

“Permitted Purpose” means considering, evaluating, negotiating and performing the Proposed Transaction.

2. CONFIDENTIALITY UNDERTAKING

In consideration of the Disclosing Party agreeing to make available Confidential Information to the Receiving Party, the Receiving Party undertakes during the term of this Agreement to:

(i)         use the confidential information only for the permitted purpose;

(ii)        keep the confidential information confidential and not to disclose it to anyone except as provided for in paragraph 3 below;

(iii)       keep confidential and not disclose to anyone the fact that the confidential information has been made available or that discussions or negotiations are taking place or have taken place between the parties in connection with the proposed transaction except as provided for in paragraph 3 below;

(iv)       use reasonable endeavours to ensure that any person to whom it passes any confidential information (unless disclosed under clauses 3(ii), (iii) and (iv) below) acknowledges and complies with the provisions of this agreement as if that person was also a party to it; and

(v)        ensure that the confidential information is protected with security measures and a degree of care that would apply to its own confidential information.

3. PERMITTED DISCLOSURE

The Receiving Party may disclose Confidential Information:

(i)         only to its relevant persons, and the relevant persons of its affiliates, who need access to the confidential information to the extent necessary for the permitted purpose or as may be required by any law, regulation or internal policy established pursuant to law;

(ii)        where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory, self-regulatory or regulatory body

(iii)       where requested or required by the rules of any stock exchange on which the shares or other securities of the receiving party are listed;

(iv)       where requested or required by the laws or regulations of any country with jurisdiction over the affairs of the receiving party, provided that, to the extent reasonably practicable and permitted by law, the receiving party shall use best  efforts to consult in advance with the disclosing party on the proposed form, timing, nature and purpose of the disclosure and to provide the disclosing party with advance notice of the same for the purpose of permitting the disclosing party to apply for a protective order or similar device intended to limit further disclosure of such confidential information; or

(v)        with the disclosing party’s prior written consent.

4. RETURN OF COPIES

If the Disclosing Party so requests in writing, the Receiving Party shall:

(i)         promptly return all Confidential Information supplied to the Receiving Party by the Disclosing Party or anyone on its behalf; and

(ii)        destroy or permanently erase (to the extent reasonably practicable) all copies of Confidential Information made by the Receiving Party; and

(iii)       use reasonable endeavours to ensure that anyone to whom the Receiving Party has supplied any Confidential Information destroys or permanently erases such Confidential Information and any copies made by them, in each case save to the extent that the Receiving Party or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, or regulatory body, or where the Confidential Information has been disclosed under Clauses 3(ii),(iii) and (iv) above.

5. CONTINUING OBLIGATIONS

The obligations in this Agreement are continuing and, in particular, shall continue for three (3) years from the Effective Date of this Agreement or one (1) year after the expiry/termination of the Proposed Transaction, whichever is the later.

6. CONSEQUENCES OF BREACH

6.1.      The Receiving Party acknowledges that the Disclosing Party and its Relevant Persons:

(i)         make no representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied to the Receiving Party, or the assumptions on which it is based; and

(ii)        shall not be otherwise liable to the Receiving Party or any other person in respect to the Confidential Information or any other information supplied to the Receiving Party.

6.2.      The Receiving Party agrees to indemnify, defend and hold harmless the Disclosing Party from any damages, costs, liabilities or expenses (including reasonable attorney fees of in-house or outside counsel) arising from any breach by the Receiving Party, its Representatives and its Affiliates of the obligations herein.  The Receiving Party further acknowledges and agrees that the unauthorized disclosure or use of Confidential Information disclosed to it by the other party or any other breach by it, its Representatives, or its Affiliates of the obligations hereunder may result in irreparable injury to the Disclosing Party.  Therefore, the Receiving Party agrees that the Disclosing Party may be entitled to receive injunctive relief in any legal proceeding.

7. WAIVER

7.1.      If a Party delays in enforcing its rights under this Agreement (whether in relation to a breach by the other Party or otherwise) or agrees not to enforce its rights or to delay doing so, then unless the Party concerned expressly agrees otherwise, that delay or agreement will not be treated as waiving the rights of the Party concerned. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement.

8. ASSIGNMENT

8.1. Neither Party may assign, transfer, charge, sub-contract or deal in any other manner with all or any rights or obligations under this Agreement without the prior written consent of the other Party.

8.2. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.

9. MISCELLANEOUS

9.1.      If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such provision shall not affect the other provisions of this Agreement, which shall remain in full force and effect. The Parties shall use reasonable endeavours to find a new provision, resembling the invalid one, taking the original intent and purpose into consideration.

9.2.      All notices under this Agreement shall be in writing and shall be sent by fax or first class registered or recorded delivery post.

9.3.      Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement

9.4.      This Agreement is personal to the Parties and shall not be assigned or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

9.5.      This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

9.6.      This Agreement constitutes the entire Agreement and understanding between the Parties and supersedes any previous agreement, understanding, warranties and arrangements between the Parties relating to the Confidential Information and the Proposed Transaction.

9.7.      The terms of this Agreement may only be amended or modified by written agreement between the Parties.

10. GOVERNING LAW AND JURISDICTION

10.1.    This Agreement shall be governed by and construed in accordance with the laws of England & Wales.

10.2.    Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and resolved by arbitration in London in accordance with the Arbitration Rules of the London Court of International Arbitration (“LCIA Rules”) for the time being in force, which rules are deemed to be incorporated by reference into this Agreement, save that the waiver of rights to appeal, review or recourse to any state court or other legal authority set out in Article 26.8 of the LCIA Rules (or such equivalent provision in any subsequent version of the LCIA Rules) shall not apply or be incorporated into this Agreement.

            The tribunal shall be constituted by 3 arbitrators, with each Party nominating and appointing one arbitrator, and the third arbitrator to be appointed by the 2 arbitrators appointed by the Parties (“Tribunal”).

The language of the arbitration shall be English. The seat, or legal place, of the arbitration shall be London.

Notwithstanding the provisions of this clause, either Party shall have the right to commence and pursue proceedings for interim or conservatory relief against the other Party in any court having jurisdiction.

            Judgment upon the award rendered by the Tribunal may be entered in any court having jurisdiction whether in accordance with the New York Convention of 1958 on Recognition and Enforcement of Arbitration Awards or otherwise.

Signatures of the Parties

Duly authorised, for and on behalf of

Повне найменування (Eng.)

Signed:   ...………………………………..................                                    

Name:     ПІБ представника (Eng.)                             

Title:       Посада представника (Eng.)

Duly authorised, for and on behalf of

Повне найменування (Eng.)

Signed:   ...………………………………..................

Name:       ПІБ представника (Eng.)

Title:    Посада представника (Eng.)