NON-DISCLOSURE AGREEMENT
This Non- Disclosure Agreement (“Agreement”) is entered on the Hytech
Industries “25/11/2023”)
BY AND BETWEEN
Mecwin Technologies India Private Limited, a company incorporated
under the provisions of Companies Act, 2013, having its registered office
at 4F & 5F No 9C Prasad Global Solutions, Chokkasandra Main Road,
Peenya Industrial Estate, Stage-2, Bengaluru – 560058, Karnataka, India
(hereinafter referred to as “Mecwin, which expression, unless repugnant
to the meaning or context hereof, shall deem to include its successors and
assigns) of the FIRST PART.
AND
Hytech Industries, a company incorporated under the Companies Act,
2013 and having its principal place of business #548, 4th Phase, Peenya
Industrieal Area Bangalore-560058 (hereinafter referred to as
“Hytech”, which expression, unless repugnant to the meaning or context
hereof, shall deem to include its successors and assigns) of the SECOND
PART;
Mecwin and Hytech shall hereinafter be individually referred to as the
“Party” and collectively as the “Parties” and as “Disclosing Party” and
“Receiving Party”, wherever required in this Agreement.
RECITALS
A. AND WHEREAS MECWIN and Hytech are in the process of
consultations and discussions for exploring <joint business
opportunities> (hereinafter referred to as the “Proposed
Transaction”).
B. AND WHEREAS it is anticipated that in relation to the Proposed
Transaction, it may be necessary for the Parties to exchange certain
confidential and proprietary information in written, oral and/ or
physical/ sample/ model form (collectively referred to as
“Confidential Information” and more appropriately defined
hereunder).
C. AND THEREFORE, the Parties agree to disclose, receive, use and
secure Confidential Information, while carrying out the Proposed
Transaction, and with the intention to prevent the dissemination or
misuse of such Confidential Information desirous to enter this
Agreement with the following terms and conditions.
1
NOW, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
1.1. “Business Partner” means clients, vendors, customers, suppliers,
business partners and any entity, whether incorporated in India or a body
corporate with which the Party has or may have any Business relations.
For the purposes of this Agreement, Business Partners shall include the
employees, directors, officers, advisors, consultants and authorized
representatives of the Business Partners.
1.2. “Confidential Information” means any information, which shall
include but is not limited to, technical or technological data or
specifications, field tests,processes, systems,techniques, testing methods,
application methods, manufacturing methods, samples, material safety
data sheets, models, formulae, codes, apparatus, drawings, recipes,
formulations, Business or financial information, research and
development activities, product development plan, marketing plan
(including customer list, pricing data, sources of supply and
merchandising systems), design, know-how, processes, intellectual
property (whether registrable or not, and whether or not protection has
been applied for or granted), proprietary information, trade secrets,
internet domains, agreements with third parties, market opportunities, or
business or financial affairs of the Party or Business Partners, inventions,
concepts and any other technical and/or commercial information,
disclosed directly or indirectly and in any form whatsoever (including,
but not limited to, disclosure made in writing, oral or in the form of
samples, models, computer programs, drawings or other instruments)
furnished by the Disclosing Party. Confidential Information shall also
include but shall not be limited to the information of the Disclosing Party
orally, marked “Confidential Information” at the time of disclosure.
Notwithstanding the above, any information whose nature makes it
obvious that it is confidential and that the disclosure of such information
is detrimental to the Disclosing Party, including the terms and conditions
of this Agreement.
2. PURPOSE & USE OF CONFIDENTIAL INFORMATION
2.1 The purpose of the disclosure of the Confidential Information is for
exploring joint business opportunities motor for electric vehicles
applications.
2.2 Both the Parties agree that by entering into this Agreement neither
Party is obligated to disclose any Confidential Information but only such
information, at its discretion, and which it thinks is necessary to disclose
in relation to the Proposed Transaction.
2.3 Receiving Party shall use the Confidential Information for the
Proposed Transaction only and shall refrain from using, disclosing,
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reproducing, summarizing and/or distributing Confidential Information
and confidential materials of the Disclosing Party except about the
Proposed Transaction or its implementation. The Receiving Party
recognizes that this Agreement imposes an affirmative duty on the
Receiving Party to hold such information in confidence and to protect it
from dissemination to, and use by, any unauthorized person or entity.
3. OWNERSHIP
3.1 The Confidential Information shall be the exclusive property of the
Disclosing Party and may not be copied or reproduced by the Receiving
Party without the Disclosing Party’s prior written consent. The Disclosing
Party retains all right, title and interest in the Confidential Information.
4. WARRANTIES & OBLIGATIONS
4.1 Each Party represents and warrants that its actions with respect to
this Agreement do not conflict with any prior obligations to any third
party. The Parties warrant that they have the right to make the
disclosures under this Agreement but makes no warranties of any kind,
whether express or implied, as to the accuracy or completeness of the
disclosed Confidential Information. The Disclosing Party assumes no
responsibility for any loss or damages, which may be suffered by the
Receiving Party, its customers or any third parties because, or arising
from, the Confidential Information.
5. NON-DISCLOSURE
5.1 The Receiving Party agrees to use the same degree of care to
protect the Confidential Information as it would exercise to protect its
own Confidential Information, but in no event, less than a reasonable
degree of care, including taking reasonable measures at its own expense
to restrain prohibited or unauthorized disclosure or use of the
Confidential Information. Neither Party shall issue or release or confirm
any statement with respect to any Confidential Information, to the public,
to the news media, or to any third party, except with the prior written
concurrence of the other Party.
5.2 The Receiving Party will grant access to the Confidential
Information to its Business Partners on a “need to know” basis and shall
advise the Business Partners of the existence and terms of this
Agreement and enter into a similar agreement of non-disclosure with
them. Each Party shall be responsible for the breach of terms of this
Agreement by its Business Partner.
6. RETURN OF CONFIDENTIAL INFORMATION
6.1 At any time during the term of this Agreement and on its expiry or
earlier termination, the Receiving Party shall return to the Disclosing
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Party, or certify in writing to the Disclosing Party as to the destruction of,
all originals, copies, reproductions, summaries and back-ups of
Confidential Information furnished to, or created by or on behalf of, the
Receiving Party. Notwithstanding the return of any Confidential
Information, the Receiving Party shall continue to hold in confidence all
Confidential Information, which obligation shall survive any expiration or
early termination of this Agreement.
7. EXCEPTIONS
7.1 Notwithstanding anything contained hereinabove, no information
shall be considered Confidential Information if such information: (a) is or
becomes part of the public domain without breach of this Agreement; (b)
is lawfully in the possession of the Receiving Party prior to disclosure
under this Agreement and is not subject to any legal or contractual
obligation to keep such information confidential; (c) became or becomes
available to the Receiving Party from a third-party without violating any
obligation of confidentiality to the Disclosing Party; (d) is independently
developed by the Receiving Party, without making use of any disclosure
herein; and (e) is released pursuant to a direction given by a Court of
competent jurisdiction/ appropriate Court or government regulation or
applicable law, if prior written notice is given to the Disclosing Party so
that a protective order or other relief, if appropriate, may be sought by
the Disclosing Party.
7.2 In the event Receiving Party receives a summons or other validly
issued administrative or judicial process requiring the disclosure of
Confidential Information of the Disclosing Party, the Receiving Party
shall promptly notify the Disclosing Party. The Receiving Party may
disclose Confidential Information to the extent such disclosure is
required by law, rule, regulation or legal process; provided however,
that, to the extent practicable, the Receiving Party shall give prompt
written notice of any such request for such information to the Disclosing
Party, and agrees to co-operate with the Disclosing Party, at the
Disclosing Party’s expense, to the extent permissible and practicable, to
challenge the request or limit the scope there of, as the Disclosing Party
may reasonably deem appropriate.
8. INDEMNITY & OTHER REMEDIES
8.1 The Parties recognize and acknowledge that Confidential
Information is of a special, unique and extraordinary character to the
Disclosing Party and that disclosure, misappropriation or unauthorized
use of such Confidential Information by the Receiving Party may cause
irreparable loss to the Disclosing Party. The Receiving Party expressly
agrees, therefore, that the Disclosing Party, in addition to claim damages,
shall be entitled to seek injunctive and other equitable relief to prevent
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the breach, or the further breach, of any of the terms and provisions
hereof.
8.2 Defaulting Party undertakes to indemnify and hold the non-
defaulting Party harmless against any or all claims, charges, demands,
expenses, liability, losses, costs, suits, proceeds, legal fees or damages
made or asserted against the non-defaulting Party because of any breach
of the confidentiality provisions of this Agreement. Disclosing Party shall
not be liable for any special, consequential, incidental or exemplary
damages or loss (or any lost profits, savings or business opportunity)
regardless of whether it was advised of the possibility of the damage or
loss asserted.
9. TERM AND TERMINATION
9.1 The Parties agree that this Agreement shall come into force from
the Effective Date and shall survive and continue for a period of five (5)
years. The Parties may terminate this Confidentiality Agreement at any
time by giving a notice of not less than thirty (30) days in writing, in case
the Proposed Transaction is not feasible or the Parties are not desirous to
execute a formal agreement in respect of the Proposed Transaction. Each
Party’s obligation shall survive after termination for a subsequent period
of three (3) years.
10. APPLICABLE LAW & DISPUTE RESOLUTION
10.1 This Agreement and any non-contractual obligations arising from or
about it, will be governed by and construed in accordance with the laws of
India.
10.2 In the event of any dispute, difference, claim or controversy (the
"Dispute") about the validity, interpretation, implementation or alleged
breach of any provision of this agreement, such dispute or difference shall
be settled amicably between the Parties through escalation and mediation.
If parties are not able to settle the "Dispute" within a period of 15 days or
such other extended period as agreed by the parties, then either party may
submit the Dispute to arbitration to be conducted in accordance with the
provisions of the Indian Arbitration and Conciliation Act 1996, as amended.
Arbitration shall be held in Bangalore, India. The dispute shall be referred
to a sole arbitrator who shall be a neutral and suitably qualified third party
mutually agreed upon by the parties to the dispute, failing which, each
party shall appoint one arbitrator each and the two arbitrators shall
appoint the third or the presiding arbitrator. The arbitration proceedings
shall be conducted and the award shall be rendered in the English
language. The award rendered by the arbitrator or arbitrators shall be
final, conclusive and binding on all parties to this Agreement and shall be
subject to enforcement in any court of competent jurisdiction. Each party
shall bear the cost of preparing and presenting its case, and the cost of
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arbitration, including fees and expenses of the arbitrators, shall be shared
equally by the parties, unless the award otherwise provides.
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11. MISCELLANEOUS
11.1 This Agreement represents the entire agreement and
understanding between the Parties with respect to the subject matter
herein and supersedes all prior agreements and understandings and
writings of any kind, written or oral, express or implied, with respect to
the subject matter hereof.
11.2 No variation of this Agreement will be valid unless it is in writing
and signed by or on behalf of both Parties. If one or more of the
provisions of this Agreement is or becomes wholly or partly invalid or
unenforceable, or if this Agreement fails to cover an issue, this will not
affect the validity of the remaining provisions of this Agreement. The
invalid or unenforceable provision will be replaced by a valid one which
best reflects the intentions of the Parties in accordance with the
provisions of this Agreement.
11.3 Waivers of provisions or breaches of, or consents with respect to,
this Agreement must be made in writing and signed by the waiving or
consenting Party and no waiver or forbearance shall constitute a
continuing waiver unless expressly so stated.
11.4 All notices hereunder shall be in writing and delivered, via
reputable courier service or registered mail, to the other Party at the
addresses written above, or at such other address as the Parties may
notify in writing from time to time.
11.5 During the term of this Agreement and two (2) years thereafter,
each Party agrees not to hire, solicit, nor attempt to solicit for itself or
any third party, directly or indirectly, the services of the Business Part-
ners, who is associated with the execution of the Proposed Transaction,
without the prior written consent of the other Party; provided however,
that each Party is not prevented from employing any such person who
contacts that Party on his or her own initiative and without any direct or
indirect solicitation by that Party.
IN WITNESS, WHEREOF, the undersigned have understood the terms
of this Agreement, to be executed in two counterparts, and obtained
independent legal representation and voluntarily accept same under
applicable law.
Hytech Industries . Mecwin Technologies
India Pvt Ltd
Authorized Signatory Authorized Signatory
Dr HM Shivakumar, CEO
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SIGNED in the presence of SIGNED in the presence of
WITNESSED BY: WITNESSED BY:
___________________________ _______________________________
Name: Ayoob Pasha Name:
Address: Bangalore Address:
Occupation/Designation: Production Manager. Designation:
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