NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement, hereinafter known as the “Agreement”, is executed on this _______, hereinafter to be referred as the “Effective Date”, between
LP CASE MANAGEMENT II LLP, an LLP incorporated under the laws of India bearing LLP Identification Number – AAZ-1356 and having its registered office at D 9, Ground Floor, Sector 3, NOIDA, Gautam Buddha Nagar, Uttar Pradesh, 201301, India (hereinafter referred to as “LLP”, which expression will, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors-in-interest and permitted assigns) hereinafter to be referred as the “Disclosing Party”, [FIRST PARTY].
_______________, r/o _______________________ hereinafter to be referred as the “Receiving Party”, [SECOND PARTY].
WHEREAS the Disclosing Party and Receiving Party are evaluating or considering to enter into a business relationship with corporate debtors represented by Resolution Professional including but not limited to providing of Interim Finance to such corporate debtor and in this regard, both the Parties wish to discuss and exchange certain information and documents hereinafter to be referred as the “Proposed Transaction”, which the Parties hereto consider highly confidential and proprietary.
WHEREAS, in connection with its respective evaluation of the Proposed Transaction, each party, their respective affiliates and their respective directors, officers, employees, agents or advisors, hereinafter to be referred collectively as the “Representatives”, may provide or gain access to certain confidential and proprietary information.
NOW THEREFORE, the Parties hereto, intending to be legally bound in consideration of the mutual covenants and agreements set forth herein, hereby agree as follows:
“Confidential Information” shall mean all information (whether electronic or otherwise) provided by the Disclosing Party to the Receiving Party, or information that is value to the Disclosing Party and the information relating to its personal customers/clients, affiliates or agents or any information which by its nature and the circumstances surrounding its disclosure or Disclosing Party’s customers or clients, including but not limited to: –
business information and data related to specific cases notified by the Disclosing Party, marketing, technical, financial information, legal claims exchanged during the course of Proposed Transaction and any other receipt, a reasonable person would reasonably understand is proprietary or confidential;
‘Intellectual Property’ which includes patents, trademarks, service marks, logos, trade names, internet or website domain names, rights in designs and schematics, copyrights (including rights in computer software), moral rights, database rights, in each case whether registered or unregistered and including applications for registration, in all rights or forms anywhere in the world.
Protection of Confidential Information.
The Receiving Party shall not disclose the Confidential Information to any person other than its Representatives as is necessary for the Proposed Transaction.
Receiving Party shall ensure that each such Representative is bound by a back-to-back written agreement not to divulge such Confidential Information with terms that protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party is bound herein.
The Receiving Party shall protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care as the Receiving Party uses to protect its own confidential information.
The Receiving Party shall not disclose, at any time, to any third party, any of the Confidential Information which it has received from the Disclosing Party. The Receiving Party undertakes not to exploit the Confidential Information or any part of it for any commercial, research or any other purposes but for the evaluation and determination of its interest in the know how unless otherwise agreed in writing.
The Receiving Party shall not disclose the Confidential Information to any third party even in case the Disclosing Party decides not to proceed further with the Proposed Transaction due to any reason, whatsoever or the circumstances.
Exclusions. This Agreement imposes no obligation upon the Receiving Party with respect to Confidential Information which: (i) is a part of or enters into the public domain; (ii) is approved for release (and only to the extent so approved) by the Disclosing Party or (iii) is required to be disclosed by operation of law or governmental authority.
Term & Termination.
This Agreement shall be co-terminus and subservient to the LLP Agreement dated _______ and shall stand terminated upon the termination of LLP Agreement dated ________.
The Parties hereto agree that the Receiving Party’s obligations with respect to the Confidential Information hereunder shall survive even after the termination of this Agreement.
Upon request from the Disclosing Party, Receiving Party shall at the option of the Disclosing Party, return or destroy all Confidential Information and all copies, notes, summaries or extracts thereof and certify the same.
Proprietary Rights. The Disclosing Party shall retain all right, title and interest to its Confidential Information. The Receiving Party neither acquires any intellectual property rights or any other rights or licenses under this Agreement, impliedly or otherwise, except for the limited right to use as set out during the Proposed Transaction.
Remedies. Each party agrees that use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which: (a) money damages may not be a sufficient remedy for any breach of this Agreement by such party; (b) the other party may be entitled to specific performance and injunction and other equitable relief with respect to any such breach; (c) such remedies will not be the exclusive remedies for any such breach, but will be in addition to all other remedies available at law or in equity; and (d) in the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final non-appealable order that one party, or any of its Representatives, has breached this Agreement, such party will be liable to pay the legal fees and expenses incurred by the other party on actuals in connection with such litigation, including, but not limited to, any appeals.
Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement between the Parties, and so notified by way of “Notice” in writing by either Party to the other Party (the “Dispute” hereinafter) shall, in the first instance, be attempted to be resolved amicably.
If the Parties fail to resolve their inter-se disputes amicably within 30 (thirty) days of the Notice in writing as referred to in Clause 7.1(i), or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 7.2.
Any Dispute which is not resolved amicably as per Clause 7.1, shall be finally decided by a Sole Arbitrator. The appointment of the such Sole Arbitrator and the consequent arbitration proceedings shall be carried out in accordance with the Rules of Arbitration of The Delhi International Arbitration Centre (Arbitration Proceedings) Rules, 2018 (the “Rules” hereinafter). The seat of such arbitration shall be New Delhi, the arbitral proceedings shall be conducted in New Delhi or such other place as may be mutually agreed and the language of arbitration proceedings shall be English.
Any Award made in any arbitration held pursuant to this Clause 7.2 shall be final and binding on the Parties as from the date it is made, and the Disclosing Party and Receiving Party agree and undertake to carry out such Award without any delay.
Notice. Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been properly given if delivered by hand or by courier, or sent by prepaid registered mail or by facsimile, addressed to intended recipient’s address as specified below or such other address as either Party may notify to the other for this purpose from time to time. Any notice shall be treated as having been served on delivery if delivered by hand; two (2) working days after dispatch if sent by courier; on confirmation of transmission if sent by facsimile; and four (4) working days after posting if sent by pre-paid registered mail.
This Agreement sets forth the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous agreements concerning such Confidential Information relating to the Proposed Transaction, whether written or oral.
This Agreement may be executed in several counterparts (physical or electronic form), each of which shall be deemed an original, but all of which together shall continue to be one and the same instrument.
Except to its Representatives, neither party shall assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise) or any rights or obligations hereunder without the other party’s prior written consent.
The Receiving Party will take reasonable steps to ensure that its Representatives adhere to the terms of this Agreement. The Receiving Party will be responsible for any breach of this Agreement by any of its Representatives.
Any additions or modifications to this Agreement must be made in writing by mutual consent of both the Parties and must be signed by an authorized officer of both the Parties.
If the Receiving Party faces legal action to disclose Confidential Information received under this Agreement, then the Receiving Party shall promptly notify the Disclosing Party in order that it may have the opportunity to intercede and contest such disclosure and, upon request, shall cooperate with the Receiving Party in contesting such a disclosure. Except in connection with failure to discharge the responsibilities set forth in the preceding sentence, neither Party shall be liable to damages for any disclosures pursuant to such legal action.
Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. Any waiver to be effective must be in writing signed by an authorized officer of the waiving party.
If any provision of this Agreement shall be held, for any reason to be illegal, invalid or non-enforceable, the remaining provisions shall nonetheless be legal, valid and enforceable.
For the avoidance of doubt, it is clarified that:
The terms of this Agreement are confidential; and
The recitals given hereinabove form an integral part of this Agreement.
The Parties have executed this Agreement under signa and seal as on the Effective Date.
On behalf of the FIRST PARTY (Disclosing Party)
Name – Kundan Kumar
Title – Designated Partner
E-mail id – firstname.lastname@example.org
On behalf of the SECOND PARTY (Receiving Party)
E-mail id –