This Non-Disclosure Agreement (the “Agreement”) was made and entered into this the (Date) day of, (Year) (the “Effective Date”) by and between the 1st Laboratory Name having its principal place of business at 1st Laboratory Name Address and 2nd Company/Laboratory Name having its registered office at 2nd Company/Laboratory Address (Collectively referred herein as “Parties”, and individually as a “Party”).
WHEREAS, the Parties are sharing with each other certain oral and written information, all of which are non-public, confidential, and/or proprietary in nature; and
WHEREAS, the Parties have agreed to enter into this agreement to protect the confidential and proprietary information of both Parties while sharing such information with each other.
NOW, THEREFORE, in consideration of the promises and agreement made herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. DEFINITIONS
When used in the Agreement, unless the context otherwise requires, the terms used herein shall have the meanings set forth below.
The term “Proprietary Information” shall mean collectively, “Confidential Information” and “Trade Secrets”.
The term “Permitted Purpose” shall mean assessment of possibilities for collaboration in research and development or business transactions, or both, between the Parties.
The term, “Confidential Information” shall mean any information, technical data or know-how (whether disclosed before or after the date of this Agreement), orally or in writing, including but not limited to, information relating to business activities, business plans, product or service plans, financial projections, client information, alliance or associate information, technical information, marketing information, financial information, patents, patent applications, software, object or surface code, patterns, research activities, inventions, processes, designs, drawings, which information is designed in writing to be confidential or which information would, under the circumstances, appear to a reasonable person to be confidential, which is disclosed by any Party to the other Party.
Confidential information shall not include the following:
(i) Information that is in the possession of the Receiving Party at the time of disclosure (as shown by the Receiving Party’s files and records immediately prior to the time of disclosure);
(ii) Information which was or is in the public domain or comes into the public domain, not as a result of any improper action or lack of proper action of the Receiving Party;
(iii) Information which was or is lawfully obtained or available from a third party having the legal right to make such disclosure; or
(iv) Information that is approved by the Disclosing Party, in writing, for release.
(v) Information is independently developed by the Receiving Party without use of any of the Disclosing Party’s Confidential Information.
The term “Trade Secrets” shall mean all unpatented business or trade information disclosed by one Party to the other Party relating to the whole or any portion or phase of any scientific, technical or non-technical data, design, pattern, process, formulae, device, method, technique, compilation, program, software, hardware, drawing flow diagram, operating parameter, financial data, financial plans, product plans or lists of actual or potential customers and suppliers relating to the business of either party, which (1) derives an independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
1.5. The term “Disclosing Party” shall mean any Party that discloses Proprietary Information to the Receiving Party.
1.6. The term “Receiving Party” shall mean any Party that receives Proprietary Information from the Disclosing Party.
2. OBLIGATIONS OF THE PARTIES
2.1 The Receiving Party shall:
(i) Keep confidential all Proprietary Information acquired from the Disclosing Party in any manner and any form.
(ii) Use the Proprietary Information exclusively for the Permitted Purpose and agree not to use the Proprietor of Information for its own purpose or benefit.
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(iii) Not disclose the Proprietary Information to anybody, except to authorized employees affiliates or other agents of the Receiving Party who need to have access to such Proprietary Information for the purpose of carrying out their duties in connection with the Permitted Purpose. For the purpose of this Agreement “Affiliate” shall mean any entity, which directly or indirectly controls or is controlled by, or is under common control with the Receiving Party, where control is the possession, directly or indirectly, of indirectly, of indirectly, of the power to (a) direct or cause the direction of the management or operating policies of the entity; (b) appoint the majority of the directors of the entity; or whether through the exercise of voting right, contract, trust or otherwise.
(iv) Inform anyone who receives the Proprietary Information, in whole or in part, that such information is proprietary and confidential in nature and execute a non-disclosure agreement with such individual to keep the Proprietary Information on the same terms as this Agreement.
(v) Preserve such Information in confidence and in strict secrecy, take all reasonable measures to protect such secrecy and avoid disclosure or use of the Proprietary Information in order to prevent it from falling into the public domain or in the wrongful possession of any person other than those persons authorized hereunder to receive such information. These measures shall include the highest degree of care that the Receiving Party utilizes to protect its own confidential information.
(vi) Keep safe any and all Proprietary Information including drawings, documents, presentations, samples, materials, and so on provided by the Disclosing Party.
(vii) Refrain from any attempt to revise, engineer, test, perform or otherwise evaluate, analyze or use the Disclosing Party’s Proprietary information for purposes of determining, developing, designing, fabricating, or manufacturing any device or system, in the whole or in part, that will compete against the Receiving Party’s business or business interests.
(viii) Notify immediately upon becoming aware of any breach of confidence by anybody to whom the Receiving Party has disclosed the Proprietary Information and give all necessary assistance to the Disclosing Party in connection with any step including legal action, which the Disclosing Party may wish to take to prevent, stop or obtain compensation for such breach, actual or threatened.
2.2 If and when the Receiving Party is legally compelled by law, judicial process or order of any competent court or governmental agency to disclose any piece of the Proprietary Information, the Receiving Party shall notify the Disclosing Party about such impending requirement immediately so that the Disclosing Party may seek a protective order or any other appropriate action to stay such disclosure.
2.3 Nothing in this Agreement shall restrict either Party from using, disclosing or disseminating its own Proprietary information in any way whatsoever. The Parties acknowledge and agree that nothing contained herein shall be construed to grant either Party any right, by license or otherwise, in or to other Party’s patented or unpatented invention, ideas, know-how, patents, trademarks, copyrights, trade secrets or any other intellectual property rights. The Parties further acknowledge and agree that nothing contained herein shall grant either Party any rights in or to the other Party’s Proprietary Information, or obligate either into any future transaction, commitment or agreement with the other Party.
2.4 At all times, intellectual and other proprietary right in and to the Proprietary Information shall remain the sole and exclusive property of the Disclosing Party. By entering into this Agreement, neither Party grants, assigns or otherwise transfers such Party’s rights, including licensing rights, to the other Party.
3. AGREEMENT TERM AND SURVIVAL
3.1. The term of this Agreement shall be for a period of five (5) years from the Effective Date of the Agreement.
3.2. Obligations of each Party relating to the confidentiality of the Proprietary Information shall survive any termination of any transaction between the Parties, and shall remain in effect for as long as such information is deemed proprietary and confidential by the Disclosing Party, or until such information enters the public domain through no fault of the Receiving Party or of its obligations hereunder.
4. INTELLECTUAL PROPERTY
4.1. Nothing in this Agreement shall be deemed to grant to either Party a license expressly or by implication under any patent, copyright or other intellectual property rights. Both Parties hereby acknowledge and confirm that all existing and future intellectual property rights relating to any Proprietary Information are the exclusive property of the Disclosing Party.
4.2. Neither Party will apply for nor obtain any intellectual property protection in respect of the Proprietary Information disclosed by the other Party.
5. RETURN OF CONFIDENTIAL INFORMATION
5.1. The Receiving Party agrees to return promptly all tangible items relating to the Proprietary Information, including all written materials, drawings, presentations, plans, models, etc., received from, made available to or supplied by the Disclosing Party, and all copies thereof, upon receipt of a request from the Disclosing Party.
5.2. It is understood that certain tangible items relating to the Proprietary Information, such as biological materials, immunoassay kits, etc., made available to or supplied by the Disclosing Party, may be used up by the Receiving Party during its assessment work for the Permitted Purpose. The Receiving Party, however, agrees to destroy or return promptly all unused quantities of such items and copies thereof, upon the request of the Disclosing Party.
6. INJUNCTIVE RELIEF
The Receiving Party acknowledges and agrees that its obligations under this Agreement are necessary and reasonable to protect the other Party and the other Party’s business. Each Party acknowledges and agrees that monetary damages would be inadequate to compensate the other Party for any breach of this Agreement by either Party in an action at law or in inquiry. Therefore, the Receiving Party expressly agrees that the Disclosing Party, in addition to any other rights or remedies that may be available, shall be entitled to (1) obtain injective relief against the actual or threatened breach of this Agreement and compel its specific performance, and (2) all reasonable fees and costs (including attorneys’ fees and costs) incurred by that Party in enforcing this Agreement.
7. WAIVER
All waivers of any rights or obligations set forth in this Agreement must be in writing. The failure by the Disclosing Party at any time to require or compel the Receiving Party’s specific performance of an obligation under this Agreement shall not affect its right to later require performance of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any prior, continuing or later breach of such provision or a waiver or modification of that provision. The rights and obligations set forth in this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the Receiving Party and the Receiving Party’s successors, heirs and assigns.
8. LAW AND JURISDICTION
The validity and enforceability of this Agreement shall be determined in accordance with the Indian Contract Act, 1872 and other applicable and relevant laws that are in force in India. All judicial proceedings and disputes and shall be subject to the exclusive jurisdiction of the courts in Bangalore, India.
9. AMENDMENT
No supplement, modification or addendum to this Agreement, or any part thereof, shall be binding on any Party unless executed in writing by both the Parties. No provision of this Agreement shall be revised except by a written instrument executed by a duly authorized representative of each Party.
10. VIOLATION OF LAW
If any provision, sentence, clause, word, or a combination thereof in this Agreement is judicially or administratively held, interpreted, or construed to be in violation of any law in India, such provision, sentence, clause, word or combination shall be modified to conform to the requirements for validity as so interpreted. If such provision, sentence, clause, word, or combination cannot be so modified, it shall be severed and deemed inoperative without affecting any other provision, sentence, clause, word or combination thereof and the remainder of this Agreement shall be binding upon the Parties. The enforceability of this Agreement as a whole, except the severed and inoperative part, shall remain unaffected at all times.
IN WITNESS WHEREOF, the Parties have executed this Agreement by and through their duly authorized representatives as of the day and year first above written.
_____________________________
By: 1st Laboratory Name
Name: (of Authorized Person)
Title: (Position in Company)
Date: …………………………..
________________________________
By: 2nd Company/Laboratory Name
Name: (of Authorized Person)
Title: (Position in Company)
Date: …………………………..
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