NON-DISCLOSURE AGREEMENT
This Non-disclosure Agreement (“Agreement”) is made and executed on , by
and between:
AURIGIN PTE. LTD. (formerly Bankerbay Technologies Pte. Ltd.), a company
incorporated under the laws of Singapore, having its principal office at 20 Bendemeer Road
#03-12, BS Bendemeer Centre Singapore-339914, of the One Part;
AND
,a corporation, with offices
at , of the Other Part.
WHEREAS:
1. The parties wish to explore a business opportunity/enter into a business transaction of
mutual interest ("Purpose");
2. In connection with the Purpose, each party (“Disclosing Party”) has disclosed and may
further disclose to the other party (“Receiving Party”), Confidential Information (as
defined below) that the Disclosing Party desires the Receiving Party to treat as
confidential; and
3. The Disclosing Party wishes to protect its Confidential Information against any
unauthorized use and disclosure in strict accordance with the terms of this Agreement.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. CONFIDENTIAL INFORMATION
1.1 For the purposes of this Agreement, the term “Confidential Information” shall mean
all information, whether or not reduced to writing, possessed by or disclosed by the
Disclosing Party or relating to the business of the Disclosing Party, of any actual or
demonstrably anticipated business development and strategies of the Disclosing Party,
which gives the Disclosing Party an advantage over competitors who do not know or
use it or is otherwise not generally known in the trade or available to others, or the
utility or value of which is not known or recognised, whether or not the same is in
public domain, including but not limited to:
1.1.1 information or material relating to the Disclosing Party and its business as
conducted or anticipated to be conducted, trade secrets, business plans and
strategies, research and operations past, current or anticipated, research and
development, computer software techniques, programs and systems, methods,
technology, know-how, processes, concepts, experimental methods, results
and scientific plans, data processing, technical documentation, user manuals,
data files and data bases, purchasing, accounting, marketing activities and
strategy, pricing, financial data and confidential and propriety information of
similar nature received or to be received from third parties with whom the
Disclosing Party does business;
1.1.2 all information received, utilized, conceived, originated or developed by the
Receiving Party independently or with others in furtherance of the Purpose;
and
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1.1.3 all information of whatsoever nature, disclosed by the Disclosing Party to the
Receiving Party, whether directly or indirectly, through any means of
communication or observation, in connection with the Purpose and designated
as confidential.
1.2 Confidential Information shall not, however, include any information that: (i) was
publicly known and made generally available in the public domain prior to the time of
disclosure by the Disclosing Party; (ii) becomes publicly known and made generally
available after disclosure by the Disclosing Party to the Receiving Party without any
breach by the Receiving Party of its obligations hereunder; (iii) is already in the
possession of the Receiving Party at the time of disclosure by the Disclosing Party, as
shown by the Receiving Party's files and records, immediately prior to the time of
disclosure; (iv) is obtained by the Receiving Party from a third party lawfully in
possession of such information and without a breach of such third party's obligations
of confidentiality; or (v) is independently developed by the Receiving Party without
use of or reference to the Disclosing Party's Confidential Information, as shown by
documents and other competent evidence in the Receiving Party's possession.
2. USAGE OF CONFIDENTIAL INFORMATION
2.1 The Receiving Party shall not to use any Confidential Information of the Disclosing
Party for any purpose, directly or indirectly, except in connection with the Purpose.
3. DISCLOSURE OF CONFIDENTIAL INFORMATION AND STANDARD OF
CARE
3.1 The Receiving Party agrees that, notwithstanding anything contained in this
Agreement, it shall: (i) use reasonable efforts to maintain the confidentiality of the
Disclosing Party’s Confidential Information; (ii) employ reasonable procedures for
safeguarding the Disclosing Party’s Confidential Information, at least as rigorous as
the Receiving Party would employ for its own most highly confidential information;
(iii) disclose the Disclosing Party’s Confidential Information only to its employees who
have an absolute need to know the Disclosing Party’s Confidential Information for the
purposes hereof; and (iv) not use and ensure that its employees, agents and
representatives shall not use the Disclosing Party’s Confidential Information in any
manner which might be detrimental to the Disclosing Party’s existing or projected
business operations.
3.2 The Receiving Party shall ensure that every employee or other personnel identified by
the Receiving Party to perform work related to or in connection with the Purpose, or
has access to the Disclosing Party’s Confidential Information has executed an
appropriate confidentiality agreement with the Receiving Party.
3.3 In the event that the Receiving Party is required under law to disclose any of the
Confidential Information, the Receiving Party shall provide the Disclosing Party with
prompt written notice of such request(s), so that the Disclosing Party may seek an
appropriate protective order or other appropriate remedy and/or waive compliance with
the confidentiality provisions of this Agreement. If the Disclosing Party is unable to
obtain or does not seek a protective order and the Receiving Party is legally required to
disclose such Confidential Information, the Receiving Party will disclose only that
portion of the Confidential Information that it is legally required to disclose.
4. OWNERSHIP AND RETURN OF CONFIDENTIAL INFORMATION.
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4.1 All documents and other tangible objects, in any form or media, containing or
representing Confidential Information that have been disclosed by the Disclosing Party
to the Receiving Party, and all copies or extracts thereof that are in the possession of
the Receiving Party, shall be and remain the property of the Disclosing Party and shall
be forthwith returned to the Disclosing Party upon completion or termination of the
Purpose, or upon the Disclosing Party's request, as the case may be.
4.2 Nothing in this Agreement is intended to grant any rights to the Receiving Party under
any trade mark, patent, copyright, trade secret or other intellectual property right of the
Disclosing Party, nor shall this Agreement grant the Receiving Party any rights in or to
the Disclosing Party's Confidential Information.
5. NO OBLIGATIONS
5.1 Nothing in this Agreement shall obligate the Disclosing Party to disclose Confidential
Information to the Receiving Party or proceed with the Purpose.
6. NO REPRESENTATIONS AND WARRANTIES
6.1 All confidential information is provided "as is." The Disclosing Party makes no
representation, warranty, assurance or guarantee with respect to any Confidential
Information disclosed hereunder, including without limitation any representation or
warranty of accuracy and completeness, merchantability, fitness for any particular
purpose, non-infringement of intellectual property or other rights of third parties.
7. TERM
7.1 This Agreement shall be effective upon its execution and the obligations of the
Receiving Party under this Agreement shall survive for a period of 1 (one) year after
the completion or termination (as the case may be) of the Purpose.
8. EQUITABLE RELIEF
8.1 The Receiving Party acknowledges that each provision in this Agreement providing for
the protection of the Disclosing Party’s rights, title and interests in the Confidential
Information is material to this Agreement which gives them a peculiar value, the loss
of which cannot be reasonably or adequately compensated for by means damages in
an action of law. Accordingly, Disclosing Party shall be entitled to injunctive and other
equitable relief to compel the Receiving Party to cease and desist all unauthorized use
and disclosure of the Confidential Information in addition to any other remedies
available to the Disclosing Party in law or equity, to prevent or cure any breach or
threatened breach of these provisions.
9. INDEMNITY
9.1 The Receiving Party shall indemnify, defend and hold harmless the Disclosing Party,
its directors, employees, agents, officers and subcontractors from and against any and
all liability, losses, costs and expenses (including reasonable attorneys fees) relating to
or arising out of the breach of this Agreement, the negligence or willful misconduct of
the Receiving Party, or its employees or agents.
10. GOVERNING LAW/JURISDICTION AND DISPUTE RESOLUTION
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10.1 This Agreement will be governed by the laws of Singapore. Further, the courts at
Singapore shall have exclusive jurisdiction for all matters arising out of or in
connection with this Agreement.
10.2 The parties shall amicably resolve any and all disputes arising out of or in connection
with this Agreement, failing which, the disputes shall be finally settled by arbitration
in accordance with the rules of arbitration of the Singapore International Arbitration
Centre, which rules are deemed to be incorporated by reference into this clause. The
parties shall mutually appoint a sole arbitrator to conduct the arbitration proceedings.
The venue for arbitration shall be Singapore and the language for arbitration shall be
English.
10.3 Nothing in this Clause 10 shall prevent the Disclosing Party from resorting to judicial
process if injunctive or other equitable relief from a court is necessary to prevent
serious and irreparable injury.
11. MISCELLANEOUS PROVISIONS
11.1 All notices, requests, demands or other communications which are required to be given
pursuant to the terms of this Agreement will be in writing and will be deemed to have
been duly given when received. The notices shall be sent to the addresses as set forth
above and to the attention of the signatories of this Agreement, or to such other
address(es) or individual(s) as the parties may specify in writing from time to time.
11.2 This Agreement may not be assigned by a party without the prior written consent of
the other party.
11.3 This Agreement can be modified, supplemented or amended only by a written
agreement executed by both parties.
11.4 The parties have executed this Agreement as independent contractors and shall not be
construed for any purpose as the agent, employee, servant or representative of the other
party.
11.5 If any provision of this Agreement is held to be invalid, illegal or unenforceable, such
provision will be struck from the Agreement and the remaining provisions of this
Agreement shall remain in full force and effect.
11.6 No failure on the part of the Disclosing Party to exercise or delay in exercising any
right hereunder will be deemed a waiver thereof, nor will any single or partial exercise
preclude any further or other exercise of such or any other right.
11.7 This Agreement constitutes the entire agreement between parties relating to the subject
matter hereof.
11.8 The Receiving Party agrees to execute and deliver any further instruments and perform
any act which are or may become necessary to effectuate the purposes of this
Agreement.
11.9 This Agreement may be executed in counterparts, which together will constitute one
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and date first
set out hereinabove.
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By AURIGIN Pte. Ltd. (formerly By
Bankerbay Technologies Pte. Ltd.), Through its authorised signatory
Through its authorised signatory
Name : Romesh Jayawickrama Name :
Designation : Director Designation :
