Non-Disclosure Agreement (NDA) - Template, Sample Form Pro · IN-law

NON-DISCLOSURE AGREEMENT

This Non-Disclosure and Confidentiality Agreement (the "Agreement") is made and executed on this ________ (the "Effective Date") at ________, ________.

BY AND BETWEEN:

________, ________, having its address/registered office at ________, bearing identification/registration number ________ (hereinafter referred to as the "Disclosing Party", which expression shall, unless excluded by or repugnant to the subject or context, be deemed to include its successors, legal heirs, executors, administrators and permitted assigns) of the ONE PART;

AND

________, ________, having its address/registered office at ________, bearing identification/registration number ________ (hereinafter referred to as the "Receiving Party", which expression shall, unless excluded by or repugnant to the subject or context, be deemed to include its successors, legal heirs, executors, administrators and permitted assigns) of the OTHER PART.

(The Disclosing Party and the Receiving Party are hereinafter individually referred to as a "Party" and collectively as the "Parties".)

WHEREAS:

A. The Parties are proposing to enter into and/or evaluate the following transaction:

________

(the "Proposed Transaction");

B. In connection with the Proposed Transaction, the Disclosing Party is willing to disclose certain Confidential Information (as defined hereunder) to the Receiving Party for the following purpose:

________ (the "Purpose");

C. The Receiving Party is required to execute a non-disclosure agreement to protect the Confidential Information of the Disclosing Party, and accordingly the Parties wish to record the terms upon which the Receiving Party shall treat as confidential all such Confidential Information, on the terms and conditions set out hereunder.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

1.1. "Confidential Information" shall mean all information and documents disclosed or submitted, whether orally, in writing, electronically or by any other media (whether or not designated as confidential), by the Disclosing Party, either directly or indirectly (including through its group companies, affiliates, advisers or agents), to the Receiving Party or any of its Representatives, and includes, without limitation:

1.1.1. the terms of any agreement or arrangement between the Parties;

1.1.2. the existence and contents of discussions or negotiations between the Parties;

1.1.3. all technical and business information, whether written, oral or graphic, including without limitation:

1.1.3.1. financial plans and records, ideas, business plans and strategies, relationships with third parties, information relating to suppliers, founders, employees and affiliates, business channel data, materials and products;

1.1.3.2. technical data, know-how, research, formulae, processes, methods, technology, IT systems, computer software programs and descriptions of functions and features of software, source code, computer hardware designs and techniques;

1.1.3.3. present and proposed products, trade secrets, designs, drawings, trademarks, patents, prototypes, samples, product plans, specifications, manuals, equipment, engineering data, unpublished patent applications, research-in-progress and work-in-progress;

1.1.3.4. advertising programmes, planning and merchandising strategies, marketing, pricing, sales, facilities, services, customers, customer lists and information or other unpublished information relating to customers, market development, inventions, financial information, negotiations, ideas and manufacturing techniques; and

1.1.3.5. any information generated by the Receiving Party in connection with the Purpose or otherwise containing, reflecting or derived from the foregoing.

1.2. "Personal Data" shall mean any data about an individual who is identifiable by or in relation to such data, within the meaning of the Digital Personal Data Protection Act, 2023, and the rules made thereunder.

1.3. "Representatives" shall mean, in respect of a Party, its employees, officers, directors, agents, associates, personnel, consultants, contractors, sub-contractors, professional advisers and any other person to whom Confidential Information is disclosed for the Purpose.

1.4. Without limiting the above, Confidential Information shall also include information that the Receiving Party knows, or reasonably ought to know under the circumstances surrounding its disclosure, is confidential to the Disclosing Party.

1.5. In this Agreement, the singular includes the plural and vice versa, references to a statute include any amendment, modification or re-enactment thereof, and headings are for convenience only and shall not affect interpretation.

2. DUTY OF CONFIDENTIALITY

2.1. The Receiving Party acknowledges and agrees that the Confidential Information has been developed or obtained by the Disclosing Party through the investment of significant time, effort and/or expense, constitutes a valuable, special and unique asset of the Disclosing Party, and requires protection from improper disclosure.

2.2. The Receiving Party shall use the Confidential Information solely for the Purpose, namely:

________

and shall keep it secure and confidential and shall not, except as permitted under § 4 (Exceptions), disclose any of the Disclosing Party's Confidential Information in any manner whatsoever.

2.3. In consideration of the disclosure of Confidential Information and the opportunity to evaluate and/or enter into the Proposed Transaction, the Receiving Party agrees:

2.3.1. to hold the Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials of a similar nature, and in no event less than a reasonable standard of care);

2.3.2. not to divulge any Confidential Information or information derived therefrom to any third person without the prior written consent of the Disclosing Party;

2.3.3. not to use the Confidential Information, directly or indirectly, to procure a commercial advantage over, or to act in any manner detrimental to, the business or activities of the Disclosing Party, its affiliates or their directors and employees;

2.3.4. not to copy, decompile or reverse engineer any Confidential Information;

2.3.5. not to use, directly or indirectly, or turn to its advantage in any way, or profit from the use of, the Confidential Information or any part thereof at any time; and

2.3.6. to use the Confidential Information only for the Purpose and in accordance with the terms of this Agreement.

2.4. To the extent any Confidential Information comprises Personal Data, the Receiving Party shall process such Personal Data only for the Purpose and shall at all times comply with the Digital Personal Data Protection Act, 2023, and the rules made thereunder, including the implementation of reasonable security safeguards to prevent any personal data breach.

3. COMMENCEMENT AND REPRESENTATIVES

3.1. The obligations of the Receiving Party in respect of confidentiality shall commence on the Effective Date, and the Receiving Party shall be solely responsible for compliance by its Representatives with the obligations of confidentiality set out herein.

3.2. The Receiving Party shall bind all Representatives who receive the Confidential Information for the Purpose through a legally enforceable obligation (whether express or general) to maintain the confidentiality of such Confidential Information and to be bound by the terms of this Agreement to the extent applicable, and any act or omission of any Representative in breach of such obligations shall be deemed a breach by the Receiving Party.

4. EXCEPTIONS

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4.2. The Receiving Party may make disclosures required by law, regulation, court order or any competent regulatory or governmental authority, provided that the Receiving Party: (a) uses diligent and reasonable efforts to limit the disclosure and to obtain confidential treatment or a protective order; and (b) gives immediate written notice to the Disclosing Party (to the extent legally permissible) so as to enable the Disclosing Party to participate in the relevant proceedings or seek appropriate relief.

5. RETURN OR DESTRUCTION OF INFORMATION

5.1. Upon: (a) receipt of a written request from the Disclosing Party; or (b) the termination or expiry of this Agreement or of the discussions or arrangements between the Parties (for any reason whatsoever), the Receiving Party shall forthwith deliver to the Disclosing Party, or at the Disclosing Party's option destroy and certify in writing the destruction of (without retaining any copies thereof), all Confidential Information in whatever form or media, including documents, proposals, photographs, films, videos, maps, tapes, discs, computer hardware and software, in the Receiving Party's possession or control, together with all notes, analyses and other material derived therefrom.

5.2. The Receiving Party understands that nothing herein:

5.2.1. requires the disclosure of any Confidential Information by the Disclosing Party; or

5.2.2. requires the Disclosing Party to proceed with any transaction or relationship.

5.3. Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information to the extent required by applicable law or its internal record-retention policies, provided such retained information remains subject to the confidentiality obligations of this Agreement.

6. DURATION

The confidentiality obligations under this Agreement shall subsist throughout the term of this Agreement and shall thereafter continue for a period of ________ from the expiry or earlier termination of this Agreement; provided that in respect of any Confidential Information which constitutes a trade secret, the obligations shall continue for so long as such information remains a trade secret.

7. NO OBLIGATION TO DISCLOSE

Nothing in this Agreement shall obligate the Disclosing Party to disclose any particular Confidential Information to the Receiving Party, nor shall it require the Disclosing Party to proceed with the Proposed Transaction or any other relationship or transaction with the Receiving Party. The disclosure of any Confidential Information shall be at the sole discretion of the Disclosing Party, which reserves the right to determine, in its absolute discretion, the extent and nature of the Confidential Information to be disclosed.

8. REMEDIES

The Receiving Party acknowledges and agrees that any breach or threatened breach of this Agreement may cause irreparable harm and injury to the Disclosing Party for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive relief, specific performance or other equitable relief to prevent or restrain any such breach or threatened breach, without the necessity of proving actual damages or furnishing any bond or security. The rights and remedies provided under this Agreement are cumulative and in addition to, and not in lieu of, any other rights and remedies available at law or in equity.

9. NO WARRANTIES

The Receiving Party acknowledges that the Confidential Information is made available on an "AS IS" basis. The Disclosing Party does not make any representations or warranties regarding the Confidential Information, including without limitation any financial information, which is subject to independent assessment by the Receiving Party. THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any action taken by the Receiving Party shall be solely at its own risk.

10. INDEMNITY

Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold the other Party harmless from and against all damages, costs, reasonable attorneys' fees and other losses arising out of or relating to any breach of this Agreement by the Indemnifying Party or its Representatives.

11. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Any such provision shall be replaced with a valid and enforceable provision that most nearly gives effect to the original intent of the Parties.

12. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, correspondence, agreements, understandings, duties and obligations between the Parties with respect to such subject matter.

13. NO OTHER RIGHTS GRANTED

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14. AMENDMENTS

Any change, alteration, amendment or modification to this Agreement must be in writing and signed by the duly authorised representatives of both Parties.

15. DISPUTE RESOLUTION

15.1. The following provisions shall apply to any dispute, difference or claim arising out of, in relation to or in connection with this Agreement (the "Dispute").

15.2. A Dispute shall be deemed to arise when one Party serves on the other a written notice stating the nature of the Dispute (a "Notice of Dispute").

15.3. Upon service of a Notice of Dispute, the Parties shall use all reasonable efforts to resolve the Dispute amicably through negotiations within 30 (thirty) days.

15.4. Any Dispute not resolved by negotiation shall be referred to and finally resolved by arbitration by a sole arbitrator to be appointed jointly by the Parties, and failing such joint appointment, in accordance with the Arbitration and Conciliation Act, 1996.

15.5. The seat and venue of arbitration shall be at ________, the language of the arbitration shall be English, and the arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996, including any statutory re-enactment or modification thereof for the time being in force.

15.6. The arbitral award shall be final and binding on the Parties and may be enforced as a decree of a competent court.

15.7. Subject to the above, the competent courts at ________ shall have exclusive jurisdiction over all matters arising hereunder.

16. INDEPENDENT PARTIES

Nothing contained or implied in this Agreement creates a joint venture, partnership or agency between the Parties, or makes one Party the agent or legal representative of the other for any purpose.

17. EXCLUSIVITY

For a period of ________ from the date of termination of this Agreement, the Parties shall not enter into discussions with third parties for transactions which are substantially similar to the Proposed Transaction, to the extent such restriction is reasonable and enforceable under applicable law.

18. ASSIGNMENT

This Agreement shall not be assignable by any Party without the prior written consent of the other Party.

19. ANNOUNCEMENTS

A Party shall not make any news release or public announcement, give any interview, or issue, publish or publicise any advertisement in any manner whatsoever in connection with this Agreement, its contents, the Confidential Information or any other matter relating hereto, without the prior written approval of the other Party, except as may be required by applicable law.

20. NOTICES

Except as otherwise specified herein, all notices, requests, consents, approvals and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when delivered personally, sent by registered post or reputable courier, or transmitted by email (with confirmation of delivery), to the addresses specified below:

For the Disclosing Party

Address: ________

Email: ________

For the Receiving Party

Address: ________

Email: ________

Either Party may change its address for notice by giving the other Party 10 (ten) days' prior written notice of the new address and the date upon which it shall become effective.

21. TERMINATION

This Agreement may be terminated by mutual written agreement of the Parties, or by either Party giving the other not less than ________ prior written notice. Termination shall not prejudice any rights of the Parties accrued prior to termination, nor terminate any confidentiality obligations with respect to Confidential Information existing prior to termination. The obligations of the Receiving Party under this Agreement shall remain in effect for a period of ________ from the expiry or termination of this Agreement.

22. STAMP DUTY

The stamp duty payable on this Agreement under the applicable Stamp Act shall be borne by ________, and this Agreement shall be duly stamped in accordance with applicable law.

23. COUNTERPARTS

This Agreement may be executed in counterparts, including by electronic signature in accordance with the Information Technology Act, 2000, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

24. GOVERNING LAW

This Agreement and all matters arising out of or in connection with it shall be governed by and construed in accordance with the laws of India, including the Indian Contract Act, 1872.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day, month and year first hereinabove written.

___________________________

For and on behalf of the Disclosing Party

Name: ________

Designation/Authority: ________

___________________________

For and on behalf of the Receiving Party

Name: ________

Designation/Authority: ________

WITNESSES:

1. Name: ________, Address: ________, Signature: ___________________________

2. Name: ________, Address: ________, Signature: ___________________________