MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”) is made between:
(1)SOURCESQUID GLOBAL PRIVATE LIMITED, a company incorporated under the laws of India with corporate identity number U74999KA2019PTC124693, whose registered office is in Bengaluru, Karnataka, India (“SourceSquid”); and
(2)[Company name], an entity organised and existing under the laws of [jurisdiction], whose registered office is at [registered address] (the “Counterparty”),
each a “Party” and together the “Parties”.
BACKGROUND
(A)The Parties wish to exchange information for the purpose of [purpose] (the “Purpose”).
(B)Each Party is willing to disclose such information to the other on the terms of this Agreement, in consideration of the mutual undertakings set out below.
1.DEFINITIONS AND INTERPRETATION
1.1In this Agreement:
“Affiliate” means, in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party, where “control” means the ownership of more than fifty per cent of the voting interests of an entity or the power to direct its management or policies;
“Confidential Information” means all information, in any form or medium, disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with the Purpose, whether before, on or after the Effective Date and whether in writing, orally, electronically, visually or by the inspection of samples, tooling or premises, that is marked or identified as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of its disclosure, including product designs, drawings, specifications, CAD files, samples, bills of materials, formulations, costings, prices, margins, volumes, forecasts, the identities and terms of customers, manufacturers and suppliers, audit and inspection reports, business plans and know-how, together with all notes, analyses and other materials prepared by the Receiving Party to the extent that they contain or reflect such information;
“Effective Date” means the date on which this Agreement has been signed by both Parties;
“Representatives” means, in relation to a Party, its Affiliates and its and their directors, officers, employees and professional advisers and, in the case of SourceSquid, the manufacturers, suppliers, inspection partners and subcontractors engaged by it for the Purpose; and
“Trade Secret” means Confidential Information that derives independent commercial value from not being generally known and that is the subject of reasonable efforts to maintain its secrecy.
1.2Clause headings do not affect the interpretation of this Agreement. The words “including” and “includes” are illustrative and do not limit the words that precede them. A reference to a statute includes that statute as amended or re-enacted from time to time.
2.CONFIDENTIALITY OBLIGATIONS
2.1The Receiving Party shall: (a) keep the Disclosing Party’s Confidential Information confidential and protect it with at least the degree of care that it applies to its own confidential information of a similar nature, and in any event with no less than reasonable care; (b) use the Confidential Information solely for the Purpose; and (c) not disclose the Confidential Information to any person except as permitted by this Agreement.
2.2The Receiving Party may disclose Confidential Information to those of its Representatives who need to know it for the Purpose, provided that each such Representative is informed of its confidential nature and is bound by written obligations of confidentiality no less protective than those set out in this Agreement or, in the case of professional advisers, by professional duties of confidence. The Receiving Party shall be liable for any act or omission of its Representatives that would constitute a breach of this Agreement if committed by the Receiving Party.
2.3Where the Counterparty so requests in writing in respect of specified Confidential Information, SourceSquid shall not disclose that Confidential Information to any manufacturer or supplier without the Counterparty’s prior written consent.
2.4The Receiving Party shall not reverse engineer, decompile or analyse the composition of any sample, prototype or other tangible item provided by the Disclosing Party, except to the extent necessary for the Purpose.
2.5The Receiving Party shall notify the Disclosing Party promptly on becoming aware of any unauthorised use or disclosure of Confidential Information and shall take reasonable steps to limit its consequences.
3.EXCLUSIONS
3.1Clause 2 shall not apply to information which the Receiving Party can demonstrate by written evidence: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement; (b) was lawfully in its possession, free of any obligation of confidence, before its disclosure by the Disclosing Party; (c) is lawfully received from a third party who is entitled to disclose it without restriction; or (d) is independently developed by or for the Receiving Party without use of, or reference to, the Confidential Information.
3.2Information shall not be deemed to fall within clause 3.1 merely because individual elements of it are public or in the Receiving Party’s possession, unless the combination of those elements is itself public or in its possession.
4.COMPELLED DISCLOSURE
4.1The Receiving Party may disclose Confidential Information to the extent required by law, by any governmental or regulatory authority, by the rules of any stock exchange or by an order of a court or tribunal of competent jurisdiction, provided that, to the extent legally permitted, it: (a) gives the Disclosing Party prompt written notice of the requirement; (b) cooperates, at the Disclosing Party’s cost, with any reasonable effort to obtain a protective order or other remedy; and (c) discloses only that part of the Confidential Information which it is legally required to disclose.
5.TERM
5.1This Agreement shall commence on the Effective Date and shall continue for three (3) years, unless terminated earlier by either Party on thirty (30) days’ written notice to the other.
5.2The obligations in clauses 2, 4 and 6 shall survive the expiry or termination of this Agreement and shall continue in respect of Confidential Information disclosed before such expiry or termination for three (3) years thereafter, save that in respect of Trade Secrets they shall continue for so long as the information remains a Trade Secret.
6.RETURN AND DESTRUCTION
6.1On the Disclosing Party’s written request, or on the expiry or termination of this Agreement, the Receiving Party shall promptly, and in any event within fifteen (15) days, return or destroy all documents and materials containing the Disclosing Party’s Confidential Information, erase it from its systems so far as reasonably practicable and, on request, confirm in writing that it has done so.
6.2Clause 6.1 shall not require the destruction of copies held in automatic electronic back-up systems that are not readily accessible, or of one archival copy retained to evidence compliance with this Agreement or as required by law, provided that such copies remain subject to this Agreement for so long as they are retained.
7.NO LICENCE AND NO WARRANTY
7.1All Confidential Information remains the property of the Disclosing Party. Nothing in this Agreement grants the Receiving Party any licence or right in respect of any Confidential Information or any patent, design, copyright, trade mark or other intellectual property right of the Disclosing Party, other than the limited right to use Confidential Information for the Purpose.
7.2Confidential Information is provided “as is”. The Disclosing Party gives no warranty as to its accuracy or completeness and shall have no liability arising from its use, save as expressly agreed in a definitive written agreement.
8.NO OBLIGATION TO PROCEED
8.1Nothing in this Agreement obliges either Party to disclose any particular information, to continue discussions or to enter into any further agreement or transaction. Any engagement of SourceSquid’s services shall be governed by a separate written agreement.
8.2Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between the Parties.
9.REMEDIES
9.1Each Party acknowledges that damages alone may not be an adequate remedy for a breach of this Agreement. Accordingly, the Disclosing Party shall be entitled to seek injunctive relief, specific performance or other equitable relief for any threatened or actual breach, without proof of special damage and in addition to any other remedy available to it at law or in equity.
10.GOVERNING LAW AND DISPUTE RESOLUTION
10.1This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of India.
10.2Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration before a sole arbitrator appointed by agreement of the Parties or, failing such agreement, in accordance with the Arbitration and Conciliation Act, 1996. The seat and venue of the arbitration shall be Bengaluru, India, and the language of the arbitration shall be English.
10.3Subject to clause 10.2, the courts at Bengaluru shall have exclusive jurisdiction, provided that either Party may seek urgent interim or injunctive relief from any court of competent jurisdiction.
11.GENERAL
11.1Entire agreement. This Agreement constitutes the entire agreement between the Parties in respect of its subject matter and supersedes all prior understandings between them relating to the confidentiality of information exchanged for the Purpose.
11.2Amendment and waiver. No amendment to this Agreement shall be effective unless it is in writing and signed by both Parties. No failure or delay in exercising any right shall operate as a waiver of that right.
11.3Assignment. Neither Party may assign or transfer this Agreement without the prior written consent of the other Party.
11.4Severability. If any provision of this Agreement is held to be invalid or unenforceable, it shall be enforced to the maximum extent permissible and the remaining provisions shall continue in full force and effect.
11.5Notices. Notices under this Agreement shall be given in writing by email to the addresses set out below and shall be deemed received on the business day following transmission, unless the sender receives notice of non-delivery.
11.6Counterparts and electronic execution. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one instrument. It may be executed and delivered by electronic means, including by an electronic signature or by a drawn, typed or scanned signature affixed to an electronic copy, and each Party agrees that a signature so affixed shall be valid and binding on it. In accordance with Section 10A of the Information Technology Act, 2000, this Agreement shall not be deemed unenforceable solely on the ground that electronic form or means were used in its formation.
Signed by the duly authorised representatives of the Parties on the dates set out below.
- Name
- Anirudh Raghavan Murali
- Title
- Founder and Director
- [email protected]
- Date
- On countersignature
- Name
- [Name]
- Title
- [Title]
- [Email]
- Date
- [Date]