Strictly Private & Confidential
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made as of the day of August 2024.
Between
Lotus Asset Management Limited, a company incorporated in Hong Kong with registration no.
2675890, whose registered office is at
ICBC Tower 1103, Garden Road No.3, Central. HKSARFlat 5608C, 56/F, Hopewell Centre, No.183
Queen’s Road East, Wan Chai, Hong Kong
(the “Company” or “Disclosing Party”)
-and-
XXX
XXX,
XXX
(the “Receiving Party”)
WHEREAS the Company, together with its Associates (jointly the “Group”), wishes to discuss with XXX
and its Associates (together, “[Fountain IV)”) the basis on which the parties can discuss, negotiate or
collaboratework together in the fund investment (the “Project”). It will be necessary for the Group to
disclose or may disclose to XXX certain confidential information relating to the Disclosing Party’s current
business activities and product offerings, including but not limited to the its financial reports and information
relating to its (or its Associates’) proposed future business activities, product offerings and such other
information as may be disclosed relating to past, current and future business activities for the purpose of
enabling the parties to conduct further discussions of, and to consider and evaluate, the proposed Project (the
“Specified Purpose”). The Receiving Party are willing to ensure that such Confidential Information shall be
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treated as confidential and used only as permitted by the terms of this Agreement. Both Parties agree that the
disclosure and receipt of Confidential Information shall be subject to the terms and conditions as set out in
this Agreement.
NOW THEREFORE, in consideration of the promises, covenants and obligations contained in this
Agreement, the parties agree as follows:
CONFIDENTIALITY UNDERTAKING
1. For the purposes of this letter agreement (this “Agreement”):
(a) “Confidential Information” means any confidential business, financial, operational, legal or
other information or data relating to the Project which is disclosed to the Receiving Party or any
of its respective directors, officers, employees, agents, representatives or advisers from the
Disclosing Party or any of its Associates, its or its Associates’ respective directors, officers,
employees, agents, representatives or advisers, including without limitation any information
relating to the Disclosing Party’s (or its Associates’) business, the content of the parties’
discussions to date and the future (including the fact of such discussions) and negotiations and
any other information disclosed by the Disclosing Party, for the avoidance of doubt,
Confidential Information does not include information (i) which was lawfully in the Receiving
Party’s possession without any confidentiality obligation prior to such disclosure; (ii) which at
the time of disclosure is in the public domain (or which after such disclosure, comes into the
public domain) other than through an unauthorised disclosure by such Receiving Party or any of
its Permitted Persons or Associates or any other person in breach of its confidentiality
obligations; (iii) which was or becomes legally available to the Receiving Party or its Permitted
Persons or Associates from a source other than the Disclosing Party and is not in violation of
any confidentiality obligation; or (vi) which is independently developed by the Receiving Party,
without reliance in whole or in part on the Confidential Information received from the
Disclosing Party;
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(b) “Disclosing Party” means a Party to this Agreement that discloses Confidential Information,
directly or indirectly, to the other Party, i.e. the Receiving Party under or in anticipation of this
Agreement.
(c) “Receiving Party” means a Party to this Agreement that receives Confidential Information,
directly or indirectly from the other Party, i.e. the Disclosing Party.
(d)[(b)] “Associate” means any person or entity (whether directly or indirectly) which controls or is
controlled by or is under common control with a party.
(e)[(c)] "Control" means being entitled to excise or control 30% or more of the voting power at
general meeting of a company or any power to exercise significant influence over the operation
or financial policies of any person or entity; and
[(d)] “Permitted Persons” means a party’s directors, officers, employees, agents, partners, advisors
(including, without limitation, financial advisors, counsel and accountants), financing
providers, co-investors, controlling persons, and any other person directors, officers,
employees, servants and professional advisers whose knowledge of the Confidential
Information is necessary for the Specified Purpose.
(f) “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic
of China.
[2.] The Receiving Party shall keep all Confidential Information strictly confidential at all times and not
disclose any such information (in whole or in part) to any other person without the Disclosing Party’s prior
written consent except to such Permitted Persons or Associates who are required to receive and acquire the
Confidential Information on a need-to-know basis for the Specified Purpose and/or for the purpose of
implementing the Project.
2. Each Party represents and warrants that it is entitled to enter into this Agreement and has obtained all
necessary authorisations to enable it to do so and it has the right to disclose to the other Party all
Confidential Information which it discloses.
3. If in any event that the Confidential Information does not belong to the Disclosing Party, the Disclosing
Party hereby confirm that he/she/it has the right to deliver such Confidential Information to the Receiving
Party and undertake to fully indemnify the Receiving Party in case the owner of the Confidential
Information makes any claim against the Receiving Party.
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4. Notwithstanding the foregoing, the Receiving Party will not be liable for disclosure of the Confidential
Information if the Receiving Party becomes obliged to disclose information to (or pursuant to) any law,
regulation, regulatory authority, stock exchange, order of a court of competent jurisdiction or requirement
of a competent statutory or regulatory body or governmental authority (“Applicable Law”).
5. The Receiving Party shall:
(a) use the Confidential Information only in relation to the Project and for the Specified Purpose;
(b) only recommend clients based on regulatory requirements. Without successful Know Your
Client completion on the Disclosing Party's end, the Receiving Party are not authorized to
publicly promote or market on our behalf, and the Disclosing Party do not consider that as
soliciting.
(c) not without the Disclosing Party’s prior written consent make any commercial use or gain from
the Confidential Information;
(d) notify all its Permitted Persons and Associates who receive Confidential Information of the
obligations, undertakings and restrictions of this Agreement and such obligations, undertakings
and restrictions shall be imposed on them; and
(e) upon termination or expiry of this Agreement or at Disclosing Party’s request, at the Receiving
Party’s discretion, the Receiving Party shall forthwith return to the Disclosing Party or destroy
all such Confidential Information, to the extent technically possible, and shall not retain any
copies thereof and make no further use or disclosure of any of the Confidential Information.
Notwithstanding the foregoing, the Receiving Party may retain such copy of Confidential
Information as it may be required to do so to comply with its internal compliance procedures or
as required by any Applicable Law provided that such copy should be retained subject to the
confidentiality obligations under this Agreement.
(f) The information received by receiving parties does not constitute any legal document for the
sale of any item in any jurisdiction.
(g) notify all its Permitted Persons and Associates who receive Confidential Information of the
obligations, undertakings and restrictions of this Agreement; and
[(c)] upon Disclosing Party’s request, at the Receiving Party’s discretion, return to the Disclosing
Party or destroy all such Confidential Information, to the extent technically possible, and shall
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not retain any copies thereof. Notwithstanding the foregoing, the Receiving Party may retain
such copy of Confidential Information as it may be required to do so to comply with its internal
compliance procedures or as required by any Applicable Law provided that such copy should
be retained subject to the confidentiality obligations under this Agreement.
6. The confidentiality obligations of the parties hereto in respect of the Confidential Information shall
terminate upon the earlier of (a) one year from the date hereof and (b) the execution of the definitive
documents in relation to the proposed Project (if any) .
[7.] Subject to the exception under Clause 32 above each of the parties undertakes not to disclose its
relationship with the other to any third party nor use either party’s name, logo, abbreviation, trademark or
brand in any promotion publications, promotion or marketing or public announcement to be disseminated to
the public or any portion thereof without the other party’s prior written consent.
7.[8.] This Agreement (a) may be executed in counterparts and together shall constitute one and the same
agreement; and (b) constitutes the entire agreement between the parties regarding the subject matter
hereof and may not be assigned, transferred or modified except with the prior written consent of the
parties.
8. This Agreement shall be binding on and enure for the benefit of the successors and permitted assigns of
each of the Parties hereto, and references to a Party in this Agreement shall include its successors and
permitted assigns.
9. If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other
competent authority, all other provisions of this Agreement will remain in full force and effect and will not
in any way be impaired. If any provision of this Agreement is held to be invalid or unenforceable but
would be valid or enforceable if some part of the provision were deleted, the provision in question will
apply with the minimum modifications necessary to make it valid and enforceable.
10. This Agreement and any non-contractual obligations arising out of or in relation to it shall be governed
by and construed in accordance with the laws of Hong Kong. The Parties hereby submit to the exclusive
jurisdiction of the Hong Kong courts. Any dispute, controversy or claim arising out of or relating to this
Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in
Hong Kong by the Hong Kong International Arbitration Centre under the Hong Kong International
Arbitration Centre Administered Arbitration Rules in force when the Notice of Arbitration is submitted in
accordance with these Rules. The number of arbitrators shall be one. The arbitration proceedings shall be
conducted in Chinese or English.
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11. Unless expressly provided to the contrary in this Agreement, a person who is not a party has no right
under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) to enforce or to enjoy the benefit of any
terms under this Agreement. The Parties hereby declare that nothing in this Agreement confers or purports to
confer on any third party any benefit or any right to enforce any term of this Agreement. Notwithstanding any
terms in this Agreement, the consent of any third person who is not a party is not required to rescind or vary
this Agreement at any time.
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This Agreement is executed by the Parties and takes effect on the date at the beginning of this Agreement.
For and on behalf of Lotus Asset Management Limited
______________________________
Name: _ ____________
Title: Director
For and on behalf of XXX
______________________________
Name: _________________________
Title:
