MUTUAL NON-DISCLOSURE AGREEMENT
to limit disclosure and to obtain confidential treatment or a protective order WHEREAS the parties to this Agreement are engaging in exploration and and has allowed the Disclosing Party to participate in the proceedings. discussion of the possibility of entering into a transaction or agreement or series of transactions or agreements under which a business venture (by way of 3. Immediately upon (a) the decision by either party not to enter into the forming a joint venture, acquisition, loan and facility arrangement, appointment, transaction or agreement contemplated by the parties, or (b) a request by the engagement or in any form whatsoever) or relationship will be established, and Disclosing Party at any time, the Receiving Party will deliver or cause to be whereas each undersigned party (the "Receiving Party") understands that the delivered to the Disclosing Party or, at the option of the Disclosing Party, other party (the "Disclosing Party") has disclosed or may disclose documents or destroy or cause to be destroyed all Confidential Information of the information (written or verbal) relating to the business (including, without Disclosing Party and all documents, papers, other media or material limitation, technical drawings, designs, algorithms, names and expertise of containing any such Confidential Information and all copies, records and employees and consultants, know-how, formulas, processes, ideas, inventions extracts thereof. (whether patentable or not), patent applications, schematics, data and other The Receiving Party understands that nothing herein (a) requires the technical, business, financial, customer and product development plans, disclosure of any Confidential Information of the Disclosing Party, which forecasts, strategies and information) or any other confidential information or shall be disclosed, if at all, solely at the option of the Disclosing Party, or (b) information of the Disclosing Party or any of his/her/its affiliates that is not requires the Disclosing Party to proceed with any proposed transaction or common knowledge among competitors or other persons or entities which agreement in connection with which Confidential Information may be desire to possess such information or may find it useful (together with the fact disclosed. that such exploration and discussion of transaction(s) or agreement(s) is taken place, the identity of the parties involved in such transaction or agreement or 4. The Receiving Party acknowledges and agrees that due to the unique nature exploration or discussion and the terms, conditions, facts or status relating to of the Disclosing Party's Confidential Information, there can be no adequate such transaction or agreement, collectively "Confidential Information" of the remedy at law for any breach of its obligations hereunder, that any such Disclosing Party). breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing In consideration of the undersigned parties' such explorations and discussions Party and, therefore, that upon any such breach or any threat thereof, the and any access the Receiving Party may have to Confidential Information of the Disclosing Party shall be entitled to appropriate equitable relief in addition Disclosing Party, the Receiving Party hereby acknowledges that all such to whatever remedies it might have at law. The Receiving Party will notify documents and information is confidential and proprietary to the Disclosing the Disclosing Party in writing immediately upon the occurrence of any Party or his/her/its affiliate(s) from or to which such Confidential Information is such unauthorised release or other breach of which it is aware. disclosed or referred, and hereby agrees as follows: 1. The Receiving Party agrees and undertakes for a duration from the first date 5. Both parties acknowledge that no representation or warranty has been made by any employee agent or adviser of the Disclosing Party as to the accuracy on which the Receiving Party receives any Confidential Information up to or the completeness of the Confidential Information. and inclusive of the second (2nd) anniversary of the last date of receipt of any Confidential Information (a) to hold the Disclosing Party's Confidential 6. No relaxation, forbearance or delay by the Disclosing Party in enforcing Information in confidence and to take reasonable precautions to protect such any rights of this Agreement shall prejudice, affect or restrict the Disclosing Confidential Information (including, without limitation, all precautions the Party’s rights, nor shall waiver by the Disclosing Party of any breach Receiving Party employs with respect to its confidential materials), (b) not operate as a waiver of any subsequent or continuing breach thereof. to directly or indirectly divulge or disclose any such Confidential 7. This Agreement shall be governed by and construed in accordance with the Information or any information derived therefrom to any third party except, laws of the Hong Kong Special Administrative Region of the People’s subject to the provisions hereunder, employee, agent or adviser of the Republic of China (“Hong Kong”), and the parties hereby submit to the Receiving Party or its affiliates, (c) not to use, take away, conceal, destroy non-exclusive jurisdiction of Hong Kong courts. In the event that any of or retain for his/her/its own or another’s advantage whatsoever at any time the provisions of this Agreement shall be held by a court or other tribunal of such Confidential Information except to evaluate internally whether to enter competent jurisdiction to be illegal, invalid or unenforceable, such into the currently contemplated transaction(s) or agreement(s) with the provisions shall be limited or eliminated to the minimum extent necessary Disclosing Party, and (d) not to copy or decompile, disassemble, reverse so that all other provisions of this Agreement shall otherwise remain in full engineer, or attempt to discover any source code or underlying ideas or force and effect. This Agreement supersedes all prior discussions and algorithms of any such Confidential Information. Any employee agent or writings and constitutes the entire agreement between the parties with adviser of the Receiving Party or its affiliates given access to any such respect to the subject matter hereof. The prevailing party in any action to Confidential Information to whom the disclosure is reasonably necessary enforce this Agreement shall be entitled to reasonable costs and attorneys' must have a legitimate "need to know" and shall be similarly bound in fees. writing. 2. Without granting any right or license, the Disclosing Party agrees that 8. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorised representative Clause 1 above shall not apply to any information that the Receiving Party of each party and no failure or delay in enforcing any right will be deemed a can document (a) is or becomes (through no improper action or inaction by waiver. the Receiving Party) generally available to the public, or (b) was in its possession or known by it without any limitation on use or disclosure prior 9. Both parties sign on behalf of their respective affiliates, or any director to receipt from the Disclosing Party, (c) was rightfully disclosed to it by a employer employee agent adviser consultant or contractor of any of the third party without restriction, or (d) was disclosed by the Disclosing Party foregoing. For the avoidance of doubt, for the purposes of this Agreement, to a third party without a duty of confidentiality on the third party. The any act or omission or failure to act on the part of any director employee Receiving Party may make disclosures required by law or order of a court of agent adviser consultant or contractor of or to a party or its affiliates shall be competent jurisdiction provided the Receiving Party uses reasonable efforts deemed an act or omission or failure to act on the part of that party. IN WITNESS WHEREOF the undersigned parties have executed this Agreement on , 2008.
(signature)
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(Name – please print)
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(Title) Address : Tel: Fax:
(Title) Address : Tel: Fax:
Strictly Confidential
Mutual Non- Disclosure Agreement (Mar 08)