NON DISCLOSURE AGREEMENT INDIA

NON DISCLOSURE AGREEMENT

This Agreement made on this          day of                      ,            

(the ‘Effective Date’)

BETWEEN:

(1)      

AND (2)

(hereinafter referred to, individually, as the “Party” and collectively, as the “Parties”)

Background:

i)        The  Parties  are,  or  will  be,  evaluating,  discussing  and  negotiating  a  potential contractual relationship concerning the ______________(the ‘Project’).

ii)        The Parties may, in these evaluations, discussions and negotiations, disclose to each other information that is technically and /or commercially confidential.

iii)       The  Parties  have  agreed  that  disclosure  and  use  of  such  technical  and/or commercial confidential information shall be made and on the terms and conditions of this Agreement.

Now it is agreed as follows:

1.0      Definitions:

In this Agreement the following terms shall, unless the context otherwise requires, have the following meanings:

1.1     ‘Disclosing Party’ means the Party disclosing Confidential Information to the other Party under this Agreement.

1.2    ‘Receiving Party’ means the Party receiving Confidential Information from the other Party under this Agreement.

1.3     ‘Confidential Information’ means any information, which shall include but is not   limited   to,   design,   fabrication   &   assembly   drawings,   know-how, processes, product specifications, raw materials, trade secrets, market opportunities,  or  business  or  financial  affairs  of  the  Parties  or  their customers, product samples, 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 to the Receiving Party under this Agreement.

1.3.1  Such  Confidential  Information  shall  also  include  but  shall  not  be limited to:

1.3.1.1         information disclosed by the Disclosing Party in writing marked  as confidential at the time of disclosure;

1.3.1.2          information  disclosed  by  the  Disclosing  Party  orally which  is  slated  to  be  confidential  at  the  time  of disclosure;

1.3.1.3          information disclosed in any other manner is designated in writing as Confidential Information at the time of disclosure; or

1.3.1.4          notwithstanding sub-clauses 1.3.1.1, 1.3.1.2 and 1.3.1.3 of this definition, any information whose nature makes it obvious that it is  confidential.

1.3.2   Such Confidential Information shall not include any information which:

1.3.2.1         is, at the time of disclosure, publicly known; or

1.3.2.2          becomes  at  a  later  date,  publicly  available  otherwise than a wrongful act or negligence or breach of this Agreement of or by the Receiving Party; or

1.3.2.3          the  Receiving  Party  can  demonstrate  by  its  written records was in its possession, or known to the Receiving Party, before receipt under this Agreement, and which was not previously acquired under an obligation of confidentiality; or

1.3.2.4          is  legitimately  obtained  at any time  by the Receiving

Party from a third party without restrictions in respect of disclosure or use; or

1.3.2.5          the  Receiving Party can demonstrate to the satisfaction of    the    Disclosing    Party,    has    been developed independently of  its obligations  under this Agreement

and without access to the Confidential Information.

1.4     ‘Purpose’ means the evaluations, discussions, negotiations and execution regarding a contractual relationship between the Parties in respect of the Project defined in paragraph (i) of the Background section.

1.5     ‘Affiliate’ means any legal entity which, at the time of disclosure to it on any Confidential Information, is directly or indirectly controlling, controlled by or under common control with any of the Parties.

1.6    ‘Contemplated Agreement’ means any future legally binding Agreement between  the  Parties  in  respect  of  the  Project  envisaged  under  this Agreement.

2.0      Non-Disclosure of Confidential Information:

2.1     In  consideration  of  the  disclosure  of  Confidential  Information  by  the Disclosing Party to the Receiving Party solely for the Purpose, the Receiving Party  undertakes  whether  by  itself,  its  successors  and  heirs,  not  to disclose Confidential Information to any third party, unless in accordance with Clause 4.

2.2     In addition to the undertaking in Clause 2.1, the Receiving Party shall be liable for:

2.2.1  any   loss,   theft   or   other   inadvertent   disclosure   of   Confidential

Information, and

2.2.2  any unauthorized disclosure of Confidential Information by persons (including,  but  not  limited  to,  present  and  former  employees)  or entities to whom the Receiving Party under this Agreement has the right to disclose Confidential Information, except where, the Receiving Party has used the same degree of care in safeguarding such Confidential Information as it uses for its own Confidential Information of like importance and in no event less than a reasonable degree of   care;   and   upon   becoming   aware   of   such   inadvertent   or unauthorized disclosure the Receiving Party has promptly notified the Disclosing  Party  thereof  and  taken  all  reasonable  measures  to mitigate  the  effects  of  such  disclosure  and  to  prevent  further disclosure.

2.3     The Receiving Party understands and agrees that:

2.3.1   any information known  only to  a few people  to  whom it might  be of commercial interest and not generally known to the public is not public knowledge;

2.3.2   a combination of two or more parts of the Confidential Information is not public knowledge merely because each part is separately available to the public.

2.4    The Receiving Party acknowledges the technical, commercial and strategic value of the Confidential Information to the Disclosing Party and understands that unauthorized disclosure of such Confidential Information will be injurious to the Disclosing Party.

3.0      Use of Confidential Information:

The Receiving Party is entitled to use the Confidential Information but only for the Purpose.

4.0      Permitted Disclosure of Confidential Information:

4.1     The Receiving Party may disclose in confidence Confidential Information to any of its Affiliates and employees, in which event the Affiliate and employee shall be entitled to use the Confidential Information but only to the same extent  the  Receiving  Party is  permitted  to  do  so  under  this  Agreement. The Receiving Party agrees that such Affiliates or employees are subject to confidentiality obligations no less restrictive than those of this Agreement.

4.2     The Receiving Party shall limit the dissemination of Confidential Information of its Affiliates and employees having a need to receive such information to carry out the Purpose.

4.3     The Receiving Party may disclose Confidential Information to its consultants, contractors, sub-contractors, agents or similar persons and entities having a need to receive such information to carry out the Purpose on the prior written consent of the Disclosing Party. In the event that the Disclosing Party gives such consents, the Receiving Party agrees that such individuals are subject to confidentiality obligations no less restrictive than those of this Agreement.

4.4     Notwithstanding Clause 2.1, the Receiving Party shall not be prevented from disclosing Confidential Information, where (i) such disclosure is in response to a valid order of a court or any other governmental body having jurisdiction over this Agreement or (ii) such disclosure is otherwise required by law, provided that the Receiving Party, to the extent possible, has first given prior written notice to the Disclosing Party and made reasonable efforts to protect the Confidential Information in connection with such disclosure.

5.0      Copying and Return of Furnished Instruments:

5.1     The Receiving Party shall not be entitled to copy samples, models, computer programs, drawings, documents or other instruments furnished by the Disclosing Party hereunder and containing Confidential Information, unless and to the extent it is necessary for the  Purpose.

5.2     All samples, models, computer programs, drawings, documents and other instruments  furnished  hereunder  and  containing  Confidential  Information shall remain the Disclosing Party’s property.

5.3     At any time upon request from the Disclosing Party or upon the conclusion of the Purpose or expiry of this Agreement, the Receiving Party, at its own cost, will return or procure the return, promptly and in any event within 14 days of receipt of such request, of each and every copy of Confidential Information given by the Disclosing Party, and satisfy the Disclosing Party that it no longer holds any further Confidential Information.

6.0      Non-Disclosure of Negotiations:

Except as provided in Clause 4, each Party agrees that it will not, without the other Party’s prior written approval, disclose to any third party the fact that the Parties are  discussing  the  Project.  The  Parties  acknowledge  that  the  provisions  of this  Agreement  shall apply in  respect  of  the  content  of  any such  discussions. The undertaking set forth in this Clause 7 shall survive the termination of this Agreement.

7.0      Term and Termination:

7.1     This Agreement shall become effective on the Effective Date. The provisions of this Agreement shall however apply retroactively to any Confidential Information, which may have been disclosed in connection with discussions and negotiations regarding the Project prior to the Effective Date.

7.2     This Agreement shall remain in force for five (5) years from the Effective Date, except to the extent this Agreement is superseded by stipulations of the Contemplated Agreement.

7.3     The  rights and obligations of  each  Party with  respect  to  all Confidential Information of the other Party that is received under this Agreement shall remain in effect for a period of five (5) years from the date of disclosure of Confidential Information.

8.0      Intellectual Property Rights:

All Confidential Information disclosed herein shall remain the sole property of the Disclosing Party and the Receiving Party shall obtain no right thereto of any kind by reason of this Agreement.

9.0      Future Agreements:

Nothing  in  this  Agreement  shall  obligate  either  Party  to  enter  into  any  further

Agreements.

10.0    Amendments:

Any amendment to this Agreement shall be agreed in writing by both Parties and shall refer to this Agreement.

11.0    Severance:

If  any  term  or  provision  in  this  Agreement  is  held  to  be  either  illegal  or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement, but the validity and enforceability of the remainder of this Agreement shall not be affected.

12.0    Governing Law:

This Agreement shall be governed by and construed in accordance with the laws of India and in any dispute arising out of or relating to this agreement, the Parties submit to the exclusive jurisdiction of the Courts situated at Delhi, India.

13.0    General:

13.1   Upon 45 days written notice, the Disclosing Party may audit the use of the programs, materials, marketing materials, services, and such additional disclosed resources. The Receiving Party agrees to co-operate with the Disclosing Party’s audit and to provide reasonable assistance and access to information.

13.2   The Disclosing Party shall not have any liability to the Receiving Party for any claims made by third parties arising out of their use of the Disclosing Party’s trademarks (including “Logo”) or marketing materials. The Receiving Party agrees to indemnify the Disclosing Party for any loss, liability, damages, cost or expense (including attorney’s fees) arising out of any claims, which may be made against the Disclosing Party arising out of their use of the Logo or marketing materials where such claim relates to their activities, products or services.   Notwithstanding   above,   the   Receiving   Party  shall   have   no obligation to indemnify the Disclosing Party with respect to a claim of trademark or copyright infringement based upon their use of the Logo or marketing materials, as expressly permitted under this Agreement.

13.3  The Receiving Party shall disclose of any similar agreements explicit or otherwise, for similar purpose/application with in its own organization, or any other third party.

13.4   In the event of a breach or threatened breach by the Receiving Party of any provisions of this Agreement, the Disclosing Party, in addition to and not in limitation  of  any  other  rights,  remedies  or  damages  available  to  the Disclosing  Party  at  law  or  in  equity,  shall  be  entitled  to  a  temporary restraining order / preliminary injunction in order to prevent or to restrain any such breach by the Receiving Party, or by any or all persons directly or indirectly acting for, on behalf of, or with the Receiving Party.

IN WITNESS WHEREOF, this Agreement was duly executed on  behalf  of  the

Parties on the day and year first above written.

For and on behalf  of                                  For  and  on  behalf  of

                                                                  **************

Sign      :                                         

Sign       :