MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (hereinafter referred to as this “NDA”) is made and entered to between: GeneX Cybertech Limited Room 6-7, 1/F, GITIC Centre 26 Queen’s Road East, Wan Chai Hong Kong (hereafter referred to as “the Agent”) and
_________________________ (hereafter referred to as “the Client”) Hereinafter individually referred to as “Party” and jointly referred to as “Parties” WHEREAS, the Agent is in business of marketing telephony exchange services, and WHEREAS, the Client is in business of providing long distance telephony traffic (hereinafter referred to as “traffic) and desires to use the Agent’s marketing expertise to purchase or sell traffic to different destinations all over the world, and WHEREAS, the Parties are discussing and from time to time, will have discussion(s) in connection with potential arrangements for the sales of traffic and other related services, including, but not limited, the disclosure of some certain Confidential Information, and WHEREAS, in order to protect the Parties’s investment, efforts and their Confidential Information; and to protect their goodwill in associated with the third party, the Parties, intending to be legally bound, hereby agree as follows: Article 1 / DEFINITION Confidential Information shall mean the proprietary and confidential data or information of a Party, which is of tangible or intangible value to that Party, and is not public information; or is not generally known; or available to that Party’s competitor(s) but only known to that Party and its employee(s). Confidential Information shall include, but not limited to, information regarding that Party’s customer(s) or prospective customer(s), marketing method(s), business plan(s) and/or the rate(s) gained by the other Party as the result of that Party’s efforts, with which they becomes familiar during the discussions
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between the Parties, which has been marked by the disclosing Party as confidential or which the recipient Party understand or reasonably ought to understand is of a confidential nature. Article 2 / CONFIDENTIAL INFORMATION USE The Parties shall use the Confidential Information solely for the purpose of evaluating whether or not to enter into an agreement with the Disclosing Party or to perform any obligations which the Recipient Party may undertake or have undertaken with the Disclosing Party and the Parties shall not use any part of the Confidential Information for any other purpose whatsoever. Article 3 / CONFIDENTIALITY Both Parties shall keep confidential the terms and conditions of this NDA and any/all information about other Party. The Parties agree to keep Confidential Information strictly in confidence, and at all times use the Confidential Information only for the purpose stated in this NDA unless hereafter agreed to in writing by the Disclosing Party, and will deliver to recipient Party in accordance with any written request, all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the Confidential Information. The obligation of secrecy shall not apply to information which: (a) is already in the possession of or is previously known to the Recipient Party at the time of its receipt from the Disclosing Party other than by breach of the present obligation of secrecy; (b) is in or comes into the public domain otherwise than by breach of the present obligation of secrecy; (c) is obtained from a third party who is free to disclose such information, or has been generated by the recipient Party without any use of the confidential information received from the disclosing Party. Article 4 / DISCLOSURE OF CONFIDENTIAL INFORMATION The Parties will not disclose any portion of the Confidential Information to any person except those of its employees, consultants and appointees having a need to know such portion in order to accomplish the purpose stated above, and will require each such person, before he or she receives direct or indirect access to the information, to acknowledge the confidential, proprietary and trade secret nature of the Confidential Information and to agree to be bound by an agreement of confidentiality with the terms as least as restrictive as herein stated. Each Party agrees to give notice to the other of any demands to disclose or provide the other of any demands to disclose or provide the other Party’s Confidential Information
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under lawful process prior to disclosing or furnishing such confidential information, and agrees to co-operate in seeking reasonable protective arrangements requested by the other Party. In addition, a Party may disclose or provide confidential information of the other Party requested by a government agency having jurisdiction over the Party provided that the Party obtains protective arrangements satisfactory to the other Party, and provided further, that the other Party may not unreasonably withhold approval of protective arrangements. The Parties agree that, all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party, and in the event one party is required to bring an action to enforce the provisions of this agreement, the damages to the party for improper disclosure of the Confidential Information or any portion thereof are irreparable, and the party is entitled to equitable relief, including but not limited to an injunction and a preliminary injunction, in addition to other relief. Article 5 / OWNERSHIP AND RIGHT TO CONFIDENTIAL INFORMATION Upon the Disclosing Party’s request, the Recipient Party will promptly return to the Disclosing Party all tangible items containing or consisting of the Disclosing Party’s Confidential Information and all copies thereof. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Recipient Party, by license or otherwise, to any of the Disclosing Party’s Confidential Information except as expressly specified in this NDA. Article 6 / INDEMNIFICATION Each Party undertakes to indemnify the other and to keep the other Party at all times fully indemnified from and against any loss or disclosure of Confidential Information and from all actions, proceedings, claims, demands, costs, awards and damages however arising directly or indirectly as a result of any breach or non-performance by either Party of its warranties, undertakings or obligations under this Agreement. Article 7 / BASIS OF INFORMATION PROVIDED The parties acknowledge that the information to be provided shall be provided on an “as is” basis without any warranty either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose except to the extent that such implied warranties cannot be validly waived at law. Reliance on the information is made at the parties’ own risk. Article 8 / DURATION AND TERMINATION This NDA shall become effective on the date it is signed by both Parties under the Laws of Hong Kong S.A.R and will terminate two (02) years later after the date of the last
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receipt by the Parties of any portion of the Confidential Information, unless terminated earlier by either Party giving to the other Party three (03) months’ prior written notice signed by a duly authorized representative of that Party. Notwithstanding the above, the Parties’ obligations not to disclose any Confidential Information and to keep the other Party indemnified for any loss or disclosure of Confidential Information by the Recipient Party shall survive the earlier termination provided under this NDA. This NDA may only be amended by writing signed by the Parties’ authorized officers hereto. On termination of this NDA for whatever reason, the Recipient Party shall return to the disclosing Party (or, at the discretion of the Disclosing Party, destroy) all copies of Confidential Information of the other Party which it has in its possession. Obligations and provisions of each Party under the terms of this NDA relating confidentiality of information and dispute resolution shall survive the termination of this NDA. Drawn up and signed in duplicate at Hong Kong and (place) GeneX Cybertech Limited on (date)
The Client
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Authorized signature ____________________________ Name of representative ____________________________ Title Contact Tel: Fax: Mobile: E-mail:
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Authorized signature ____________________________ Name of representative ____________________________ Title Contact Tel: Fax: Mobile: E-mail:
Mutual Non-Disclosure Agreement GeneX Cybertech Limited
Strictly Confidential
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