The Parties are in the process of evaluating a possible transaction involving server hosting on cloud and for any new services / transactions that parties may agree to undertake or explore in addition to the scope of work covered herein (collectively referred to as the “Proposed Transaction”)
In connection with the Proposed Transaction, the Disclosing Parties may deliver to the Receiving Party certain information about its assets, business and other related documents. The Parties are therefore entering in to this Agreement to set down the obligation of the Receiving Party to maintain the confidentiality of the documents and information received by it from the Disclosing Party.
NOW THEREFORE, in consideration of the premises and mutual agreements and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Non-Disclosure. In the course of the performance of Proposed Transaction, the Receiving Party may receive or have access to the Confidential Information of the Disclosing Party. Receiving Party’s engagement by Disclosing Party may bring it into close contact with Confidential Information of Disclosing Party or third parties with whom Disclosing Party conducts business and Receiving Party shall also disclose its Confidential Information to Disclosing Party during the course of providing the Proposed Transaction. In recognition of the foregoing, the Receiving Party covenants and agrees that:
(A) it shall keep and maintain all Confidential Information of the Disclosing Party in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure;
(B) it shall use and disclose Confidential Information of the Disclosing Party solely for the purposes for which such information, or access to it, is provided pursuant to the terms of this Agreement, and shall not use or disclose Confidential Information for its own purposes or for the benefit of anyone other than the Disclosing Party
it shall not, directly or indirectly, disclose Confidential Information to any third party other than the Receiving Party’s employees, sub-contractors, agents, independent contractors, outsourcing companies, professional advisors, outside counsel and auditors who have a need to know such Confidential Information, except as permitted under the terms of this Agreement and that such Confidential Information shall not be disclosed except if the party to whom such Confidential Information is being disclosed to, undertakes similar confidentiality obligations as contained in this Agreement; and
) it shall, upon the earlier of (i) completion of Proposed Transaction or termination of this Agreement or execution of definitive agreements; (ii) determination that it has no need for Confidential Information; or (iii) at any time the Disclosing Party requests, dispose of all records, electronic or otherwise (including all backup records and/or other copies thereof) regarding or including any Confidential Information that the Receiving Party may then possess or control. Disposal may be achieved, at the Disclosing Party’s option, through prompt delivery of the Confidential Information records to the Disclosing Party or destruction pursuant to Receiving Party’s written policy governing such destruction and in a manner that renders the records unreadable and undecipherable by any means. Upon any occurrence of (i), (ii), or (iii) above, the Receiving Party shall promptly certify in writing to the Disclosing Party, in a form acceptable to the Disclosing Party and executed by an authorized officer of the Receiving Party, that all such Confidential Information has been destroyed or returned.
Receiving Party may disclose Confidential Information only to such subcontractors as may be pre approved by Disclosing Party (‘Permitted Subcontractor’) and the Personnel engaged in the performance of the Proposed Transaction or any part thereof and having a need to know such information in connection with the performance of the Proposed Transaction, provided that any disclosure of Confidential Information to a Permitted Subcontractor will be subject to Disclosing Party’s prior written consent. Receiving Party will instruct all Personnel as to their obligations under this Agreement, and will obtain from each Personnel his or her written acknowledgment and agreement to be bound by the terms and conditions of this Agreement prior to such Personnel being given access to the Confidential Information. Disclosing Party may provide Receiving Party with a confidentiality agreement to be executed by each Personnel providing Proposed Transaction hereunder or Receiving Party will otherwise obtain Disclosing Party’s written consent to Receiving Party’s form, which shall not be unreasonably withheld or delayed. Receiving Party will be responsible for all Personnel’s compliance with the terms of this Agreement.
Notwithstanding anything to the contrary in the Agreement, Confidential Information does not include information that (i) is lawfully made available to the general public, (ii) is or becomes generally known to the public not as a result of a disclosure by the Receiving Party, (iii) is rightfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party, (iv) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party, or (v) is received by the Receiving Party in good faith and without restriction from a third party not under a confidentiality obligation to the Disclosing Party and having the right to make such disclosure. The foregoing exceptions do not apply to the disclosure of Personal Information, which will not be disclosed without Disclosing Party’s prior written consent unless required by law. If
the Receiving Party is required by law to disclose Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing in advance of such disclosure and provide the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect the Confidential Information.
The Receiving Party acknowledges that the unauthorized disclosure of Confidential Information may cause irreparable injury to the Disclosing Party and damages, which may be difficult to ascertain. Therefore, the Disclosing Party will, upon a disclosure or threatened disclosure of any Confidential Information, be entitled to inter alia an ex party injunctive relief, including a temporary injunction and an order of search and seizure by the Disclosing Party to protect and recover the Confidential Information it has disclosed, and the Receiving Party will not object to the grant of an injunction or other relief including an equitable relief against the Receiving Party on the basis of an adequate remedy at law, lack of irreparable harm or any other
Receiving Party will notify Disclosing Party, promptly and without unreasonable delay, but in no event more than one (1) business day of learning that unauthorized access to, disclosure of, or breach in the security of Disclosing Party Confidential Information may have occurred or been attempted (a “Security Incident”). Thereafter, Receiving Party shall :
promptly furnish to Disclosing Party full details of the Security Incident;
assist and cooperate fully with Disclosing Party in Disclosing Party’s investigation of Receiving Party, Permitted Subcontractors, Personnel or third parties related to the Security Incident, including providing Disclosing Party with physical access to the facilities and operations affected, facilitating interviews with Personnel and others involved in the matter, and making available all relevant records, logs, files, and data to the extent required for making such investigation and Disclosing Party shall not have access to the Receiving Party’s Personal Information and if any such access required by Disclosing Party shall be at the sole discretion of the Receiving Party and subject to the Receiving Party’s security policies and guidelines;
cooperate with Disclosing Party in any litigation or other formal action against third parties deemed necessary by Disclosing Party to protect its rights; and
Promptly use its efforts to prevent a recurrence of any such Security Incident.
In addition to the foregoing, Receiving Party agrees that in the event of a Security Incident, Disclosing Party will have the sole right to determine (i) whether notice is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law, or in Disclosing Party’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation. Upon the completion of an investigation, as referred to in subsection (b) above, if it is concluded that the relevant Security Incident resulted from a breach, noncompliance, default, or misconduct by Receiving Party, any such notice or remediation will be at Receiving Party’s sole cost
Receiving Party certifies should it receive any Personal Information it shall ensure that treatment of such information is in compliance with laws applicable to privacy and data security and that it has implemented and currently maintains, and shall during the Term maintain, an effective information security program that includes administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of Personal Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such Personal Information; and (iii) protect against unauthorized access to, destruction, modification, disclosure or use of Personal Information which could result in substantial harm or inconvenience to Disclosing Party, or to any person who may be identified by such Personal Information. Receiving Party will immediately notify Disclosing Party if Receiving Party is in material breach of this Section. At Disclosing Party’s written request, Receiving Party shall certify in writing to Disclosing Party its compliance with the terms of this Section and shall permit Disclosing Party to audit Receiving Party’s facilities and records to the extent reasonably required to ensure compliance with the privacy and security provisions of this Agreement. All such audits shall be conducted after a prior written notice of five (5) business days to the Receiving Party before the commencement of the audit. Disclosing Party shall have access to the Receiving Party’s Confidential Information during such audits and such access required by Disclosing Party shall be with prior approval of the Receiving Party (which shall not be unreasonably delayed) and subject to the Receiving Party’s security policies and guidelines.
Data. (A) All Disclosing Party Data is, will be and will remain the property of Disclosing Party or its designees and will be deemed Confidential Information of such parties. Disclosing Party or such designees will have all right, title and interest in and to, including worldwide ownership of trade secret rights, copyrights, patents and other proprietary rights in the Disclosing Party Data and all copies thereof.
(B) At Receiving Party’s expense, Receiving Party shall promptly notify Disclosing Party and correct any errors or inaccuracies in the Disclosing Party Data and the reports delivered to Disclosing Party under this Agreement, to the extent caused by Receiving Party
(C) Upon prior written request by Disclosing Party at any time during this Agreement and upon expiration or termination of this Agreement Receiving Party shall (i) promptly return to Disclosing Party, in the format and on the media requested by Disclosing Party, all or any part of the Disclosing Party Data then-existing with the Receiving Party in tangible form, and (ii) promptly eradicate or destroy all or any part of the Disclosing Party Data in Receiving Party’s possession, in each case to the extent so requested by Disclosing Party. Any archival tapes containing the Disclosing Party Data shall be used by Receiving Party solely for back-up purposes or until termination of the Engagement Schedule or this Agreement, whichever is earlier.
2. Confidential Information. “Confidential Information” in this Agreement means all information and any idea in whatever form, tangible or intangible, whether disclosed to or learned by the Receiving Party, pertaining in any manner to the business of the Disclosing Party or to the Disclosing Party’s affiliates, subsidiaries, customers, consultants or business associates, whether in written, oral, encoded, graphic, magnetic, electronic or in any other tangible or intangible form, and whether or not labeled as confidential by the Disclosing Party or otherwise provided by the Disclosing Party. “Confidential Information” includes, without limitation, the following: (a) schematics, techniques, employee suggestions, development tools and processes, computer printouts, computer programs, design
drawings and manuals, and improvements; (b) information about costs, profits, markets and sales; (c) plans for future development and new product concepts; and (d) all documents, books, papers, drawings, models, sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be given to the Receiving Party by the Disclosing Party, as well as written or verbal instructions or comments.
No Obligation of Confidentiality. If either Party determines that it does not wish to proceed with the Proposed Transaction, it will promptly advise the other Party of that decision. In that case, or in the event that the Proposed Transaction is not consummated by the Parties for any other reason or if so requested by the any Party at any point of time, the Receiving Party agrees that it will promptly deliver to the Disclosing Party or immediately destroy (as may be directed by the Disclosing Party) all Confidential Information in whatever form produced or maintained in its possession or in the possession of any of its representatives and the Receiving Party shall confirm in writing to the Disclosing Party as to the return or destruction of such Confidential Information, as the case may be. For the avoidance of doubt, it is clarified that the obligations of the Receiving Party to maintain confidentiality of Confidential Information shall continue notwithstanding the return or destruction (as the case may be) of the Confidential Information to the Disclosing Party. Any oral Confidential Information provided to the Receiving Party shall continue to be subject to the confidentiality and non-disclosure obligations contained in this Agreement. The Receiving Party will be responsible for the breach of this Agreement by any of its representatives. In the event that the Receiving Party or its representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or the potential terms and conditions of the Proposed Transaction, the Receiving Party agrees that it will provide the Disclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy. In the event that such protective order or other remedy is not obtained, the Receiving Party or its representatives, as the case may be, shall disclose only the portion of the Confidential Information or information relating to the Proposed Transaction, which, upon the advice of its counsel, is legally required to be disclosed. In any such event, the Receiving Party will use its commercially reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will be accorded confidential treatment.
Use of Information by Recipient. The Receiving Party agrees to restrict disclosure of the Confidential Information solely to its employees and permitted agents who have a need to know such Confidential Information and to advise such persons of their obligations of confidentiality and non-disclosure hereunder. Further, the Receiving Party shall not disclose the Confidential Information to third parties, including independent contractors or consultants, without the prior express written consent of the Disclosing Party, and shall advise such third parties of their obligations of confidentiality and non-disclosure hereunder. The Receiving Party agrees to use reasonable means, not less than those used to protect its own proprietary information, to safeguard the Confidential Information.
5. Non-circumvention. Till the agreement executed between the parties is in force, the Receiving Party and its officers and directors, separately and individually, will not make any effort to circumvent the terms of this Agreement in an attempt to gain the benefits or considerations granted to it under the Agreement by taking any actions to indirectly gain the benefits of the Confidential Information, including
but not limited to contracting directly with any client of the other party which Disclosing Party has identified as having access to the Confidential Information, or (b) hiring or contracting with any present or future employee or independent contractor of Disclosing Party.
Survival. Each party’s duty of confidentiality under this Agreement regarding the Confidential Information shall survive the termination of this Agreement.
General. This Agreement shall be binding upon and for the benefit of the parties and their respective successors and assigns. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. This Agreement supersedes and replaces any existing agreement entered into by the parties relating generally to the same subject matter, and may be modified only in writing signed by the parties. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and shall be governed by the laws of the INDIA without giving effects to the conflicts of law principles hereof.
Governing Law And Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of India. any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement, or the breach, termination or validity thereof shall be settled by arbitration under the Indian Arbitration and Conciliation Act and rules. The venue of arbitration shall be Delhi and the proceedings shall be conducted in English.
The arbitration shall be conducted before an arbitral tribunal composed of three arbitrators. 2 to be nominated by the Parties respective and the third arbitrator to be appointed jointly by the two arbitrators If any Party does not nominate an arbitrator or if the two arbitrators cannot agree on the choice of the third arbitrator, then such un-appointed arbitrator shall be appointed in accordance with the Indian Arbitration and Conciliation Act and rules.
Term:. For the avoidance of doubt it is clarified that the obligations of the Receiving Party to maintain the confidentiality of any Confidential Information (whether written or oral) are of unlimited duration and shall continue in full force and effect for a period of 5 (five) years from the date of the termination of the Agreement/discussions between the Parties relating to the Proposed Transaction or the termination of this Agreement.
Nature Of The Arrangement:. This Agreement shall not create any obligation on the Parties to proceed with the Proposed Transaction or to enter into any definitive documents with the Receiving Party in relation to the Proposed Transaction. Nothing contained in this Agreement shall restrict the Parties from participating in discussions with or entering in to any contract or understanding with any person other than the Receiving Party in relation to the Proposed Transaction or the execution of an agreement similar in nature to this Agreement with such person.