Guided by the principles of developing relations on a mutually beneficial basis, observing the conditions of guaranteed protection of Confidential Information, not using it to the detriment of each other, striving to prevent unauthorized disclosure of confidential information to third parties, the Parties to this Agreement have agreed as follows:
1. CONFIDENTIAL INFORMATION
1.1. As used in this Agreement, “Confidential Information” means any information of confidential or proprietary nature disclosed by such Party or on its behalf to the other Party, or otherwise obtained by such other Party, whether directly or not, in connection with the performance hereof, including, but not limited to, business affairs, work relationship, data, designs, materials and documentation, formulas, ideas, inventions, know-how, knowledge of manufacturing processes, mask works, methods, works of authorship whether or not patentable, copyrightable or otherwise protected by law, software, data, processes, research, name, title, designation, prices, financial and accounting data, customer information, personal data, products and product specifications, systems, technical information and the terms of this Agreement, and any other non-public technical or business information that is in written, oral or any other form, and other arrangements between the Parties. For the avoidance of doubt, any information that a Party knew or should have known, under the circumstances, was considered confidential or proprietary by the other Party, will be considered Confidential Information of such other Party.
1.2. Confidential Information shall not include information which: (i) is or comes into the public domain through no fault of the Receiving Party; (ii) is lawfully received by the recipient Party from a third party free of any obligation of confidence at the time of its disclosure; (iii) is independently developed by the recipient Party, without access to or use of such information; (iv) is required by law, by court or governmental or regulatory order to be disclosed, provided that the recipient Party tries to notify the other Party at the earliest opportunity before making any disclosure.
This Agreement will apply to any and all Confidential Information, disclosed by the Disclosing party to the Receiving party.
2. NON-DISCLOSURE AND USE
2.1. The Receiving Party shall retain in confidence any Confidential Information received from the Disclosing Party.
2.2. Except with the prior written consent of the Disclosing Party, the Receiving Party will not:
a. disclose Confidential Information to any third person; or
b. use Confidential Information for any purpose, commercial and non-commercial, to profit from the use of Confidential Information and its result; or
c. use such Confidential Information to produce, create for yourself or for a third party a product/services (Commercial Purpose) similar to the business activities of the Disclosing party; or
d. use Confidential Information for any advertising; or
e. use such Confidential Information for any purpose other than the Business Purpose, agreed by the Disclosing Party.
3.UNDERTAKING
3.1 In consideration of the mutual disclosure of Confidential Information each Party undertakes:
3.1.1 to keep secret and confidential all Confidential Information of the Disclosing Party disclosed under this Agreement;
3.1.2 to use or apply the Confidential Information of the Disclosing Party solely to fulfill obligations under other agreements between the Parties and so as to determine whether or not and on what terms the Parties might wish to proceed;
3.1.3 not: to use, copy, adapt, alter, disclose in full or in part or apply the Confidential Information of the Disclosing Party for any other purpose or its own purposes other than as described in clause 3.1.2;
3.1.4 at any time, whether the negotiations proceed or not, not: to copy, disclose or otherwise make available to any third party without the prior written consent of the Disclosing Party, any of the Confidential Information of the Disclosing Party other than:
3.1.4.1 to those of its directors, officers, employees, customers, partners and/or subcontractors, who are required to receive and consider the Confidential Information under other agreements between the Parties and the Receiving Party agrees that any of its directors, officers, employees, partners and/or subcontractors shall be made aware of and accept the provisions of this undertaking; and/or
3.1.4.2 to its legal, financial or taxation advisers provided that the Receiving Party ensures that they and their staff are made aware of and accept the provisions of this undertaking;
3.1.5 to provide proper and secure storage for each and every part of the Confidential Information received by it in tangible form whilst it is in its custody, power or control;
3.1.6 to return or destroy at its own expense all material containing any of the Confidential Information of the Disclosing Party together with all copies in its possession or in the possession of its directors, officers, employees, subcontractors, and professional advisers at the request of the Disclosing Party.
3.2 In addition to the obligations specified in clause 3.1, each Party undertakes to ensure that the Personal Data is:
3.2.1 processed only according to the instructions received by the Disclosing Party and, in any case, according to the applicable legislation;
3.2.2 disclosed to any third party, including data subject and any government bodies and/or supervisory authorities only upon prior written notification and consent from the disclosing Party;
3.2.3 processed only if and to the extent required to fulfill the purposes of the processing;
3.2.4 always accurate and, where necessary, kept up to date;
3.2.5 kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed;
3.2.6 processed in a manner that ensures appropriate security of the personal data, including protection against unauthorized or unlawful access or processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures.
3.3 A Party that discloses Personal Data shall have the right to request from the receiving Party deletion, return, rectification and/or temporary or permanent suspension of processing of the Personal Data.
3.4 If the Party that receives Personal Data encounter personal data breach, including, but not limited a breach of security leading to the accidental or unlawful destruction, loss, alteration unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed, this Party must inform the Disclosing Party about it, if feasible, within twenty-four (24) hours after revealing the event, but in any case without undue delay. In particular, the Party suffered from the data breach shall provide the information about the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned, the likely consequences of the personal data breach, as well as the measures taken or proposed to be taken to address the personal data leakage, including, where appropriate, measures to mitigate its possible adverse effects. After informing, the Party that suffered from the data breach shall act based on the further instructions from the Disclosing Party in order to mitigate consequences of the data breach.
4. PROPERTY RIGHTS
4.1. All Confidential Information and any Derivatives provided pursuant to this Agreement shall remain the exclusive property of the Disclosing Party. Nothing contained herein shall be construed as a grant, express or implied or by estoppel, of a transfer, assignment, license, lease of any right, title or interest in the Confidential Information. For purposes of this Agreement, “Derivatives” mean: (i) for copyrightable or copyrighted material, any translation, abridgment, revision, or other form in which such material may be recast, transformed, or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent, and/or trade secret.
5. RETURN OF CONFIDENTIAL INFORMATION
5.1. Upon the completion or termination of any discussions between the parties, or at any time within 7 (seven) days of receipt of a request of the Disclosing Party, the Receiving Party shall at its election either (i) promptly return to the Disclosing Party all Confidential Information disclosed in tangible and (or) digital form and copies thereof or (ii) promptly destroy such Confidential Information (including all copies thereof) and certify with evidence such destruction to the Disclosing Party.
6. NO WARRANTY
6.1. All Confidential Information is provided “AS IS” and without any warranty for use of the Confidential Information, express, implied, or otherwise, including, but not limited to, any warranties regarding its accuracy, completeness, performance, or non-infringement of third party rights, or its merchantability or fitness for a particular purpose.
7. LIABILITY
7.1. Each party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing party will have the right to pursue an immediate injunction enjoining any breach of this Agreement, as well as the right to pursue any and all other rights and remedies available in law or equity for such breach including indemnity.
8. GOVERNING LAW
8.1. This Agreement shall be governed, construed, interpreted, and applied in accordance with the laws of the emirate of Dubai (UAE), without giving effect to its choice of law or conflicts of law principles.
8.2. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by relevant judicial authority in the emirate of Dubai (UAE) in accordance with the laws of the emirate of Dubai (UAE). The language to be used shall be English.
9. ENTIRE AGREEMENT
9.1 This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement.
9.2. This Agreement may not be amended except by the written agreement signed by authorized representatives of both parties.
10. SUCCESSORS AND ASSIGNS
10.1. This Agreement will be binding upon the successors and/or assigns of the parties.
11. WAIVER
No failure or delay by the Disclosing Party to enforce or take advantage of any provision or right under this Agreement shall constitute a subsequent waiver of that provision or right, nor shall it be deemed to be a waiver of any of the other terms and conditions of this Agreement.
12. NON-SOLICITATION AND OTHER RESTRICTION
12.1. For the duration of the Term and Duration of this Agreement, the Receiving Party and its representatives, or any other person acting at the request or on behalf of the Receiving Party or on behalf of other persons acting in concert with the Receiving Party will not directly or indirectly:
12.1.1. solicit or attempt to solicit, as an employee, independent contractor or consultant, any person who is or was employed or retained (as independent contractor or consultant etc.) by the Disclosing Party during any period the Term and Duration of this Agreement (each such person, a “Restricted Person”); or
12.1.2. encourage, induce, attempt to induce, solicit or attempt to solicit, any such Restricted Person to terminate, abandon, leave or otherwise discontinue his or her relationship with the Disclosing Party, or in any way interfere with the relationship between the Disclosing Party and any such Restricted Person; provided, however, that nothing in this paragraph shall prevent the Receiving Party or its representatives from (a) publishing a general solicitation of employment not targeted at any or all Restricted Persons, or (b) retaining a recruitment firm to make a general solicitation of employment (provided that neither Receiving Party nor its representatives have directed such recruitment firm to target any or all Restricted Persons); or
12.1.3. solicit, induce or attempt to induce any or all Restricted Persons and/or customers of the Disclosing Party, to terminate, diminish, or materially alter in a manner harmful to the Disclosing Party.
13. TERM AND DURATION
13.1. This Agreement will enter into effect on the Effective Date Date of conclusion
and will remain in effect for a period of 5(five) years from the Effective Date. Notwithstanding the end of the term of this Agreement, the confidentiality provisions of this Agreement will survive for five (5) years after the expiration or termination of this Agreement for Confidential Information that is not a trade secret and, with respect to Confidential Information that constitutes a trade secret, for so long as such Confidential Information remains a trade secret.
14. COUNTERPARTS
14.1. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic (scanned) copy of the Agreement shall have the full force and effect as signed original on paper.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized representatives.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand.
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