THIS RECIPROCAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into on this the , ………………………………………………(“Effective Date”), by and between:
…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….. a company incorporated and existing under the laws of …………………………… …………………………………… (“First Party”).
AND
RIVUS MAĞAZACILIK VE TEKSTİL A.Ş a company incorporated and existing under the laws of Turkey with and having its registered address at Reşitpaşa mah. Hacı sok. NO:30A Sarıyer-İSTANBUL
Sarıyer Vergi Dairesi 7351818652
(“Second Party”).
Both the First Party and the Second Party are hereinafter individually referred to as a “Party” and collectively as the “Parties”.
WHEREAS:
The Parties are considering to enter into a business relationship (the “Transaction”).
The Parties will be providing each other with certain Confidential Information (as defined herein below) related to the Parties or the Transaction prior to entering into the proposed business relationship.
The Parties wish to set forth the terms and conditions to be applied so as to protect the confidentiality of the Confidential Information.
The Receiving Party (as defined herein below) agrees to receive the Confidential Information and hold the Confidential Information in confidence upon the terms and conditions set out herein below.
NOW THEREFORE, the Parties agree as follows:
1. DEFINITIONS
The following words and expressions shall have the following meaning assigned to them:“Confidential Information” means any and all proprietary and/or confidential and/or sensitive information disclosed in respect of the clients/ customers/ projects of either Party (whether advertently or inadvertently), whatever (i) the subject (including, without limitation, technical, financial, commercial); (ii) the nature (including, without limitation, strategies, plans, know-how, methods or processes); (iii) the form (including, without limitation, written or printed documents, CD Rom, computer diskettes, samples, models, drawings); and (iv) the mode of transmission (written, oral, computer, including networks and/or electronic mail), and which is in tangible, visible or recorded form (including but not limited to equipment, materials, computer software, data, processes, specifications, drawings and other technical, industrial, financial, commercial documents and items and any information, on any medium whatsoever) or is communicated orally. Without prejudice to the generality of the foregoing, (i) the Disclosing Party is deemed to have provided the Confidential Information to the Receiving Party where the Receiving Party has been granted access to the Confidential Information; and (ii) any information which is not expressly classified as “proprietary”, “confidential” and/or “sensitive information” shall be treated as Confidential Information until such time the Disclosing Party expressly states in writing that such information does not fall within this definition of Confidential Information.
“Disclosing Party” means the Party disclosing the Confidential Information to the Receiving Party.
“Receiving Party” means the Party receiving the Confidential Information from the Disclosing Party.
“Unauthorised Disclosure” means the disclosure of the Confidential Information in contravention of this Agreement or the provisions of the governing law.
2. PURPOSE
The purpose of this Agreement is to define the terms and conditions of the procurement, use, retention and destruction of the Confidential Information that shall be disclosed by either Party in respect of the proposed business relationship between the Parties and details of the clients/customers/projects of either Party. No provision of this Agreement shall be construed to be an obligation on either Party to disclose any information.
3. OBLIGATION TO MAINTAIN CONFIDENTIALITY
3.1. Confidentiality
3.1.1. The Receiving Party hereby undertakes that, without limitation on time, the Confidential Information shall:
3.1.1.1. be kept confidential and shall not be disclosed (either directly or indirectly) to any third party, without the prior written consent of the Disclosing Party;
3.1.1.2. only be accessible by employees of the Receiving Party, which have a demonstrable need to know such Confidential Information; and
3.1.1.3. only be used, in whole or in part, for the clients/customers/projects of either Party.
3.1.2. The Receiving Party declares that it has taken or agrees to take any necessary measures with its employees so that they may comply with the undertakings of this Agreement.
3.1.3. The Receiving Party hereby agrees that any information disclosed or exchanged in relation to the clients/customers/projects of the Disclosing Party, prior to the date of execution of this Agreement shall be treated as Confidential Information and shall be subject to protection under this Agreement.
3.2. Exceptions
Notwithstanding any other provisions in this Agreement, both the Receiving Party and the Disclosing Party agree that the obligations in Clause 3.1 shall not apply to Confidential Information which is:
3.2.1. known to the public at the time of disclosure or becomes known to the public without violation of this Agreement;
3.2.2. used or disclosed with the prior written consent of the Disclosing Party;
3.2.3. required to be disclosed by law or by an order of a court of competent jurisdiction; or
3.2.4. disclosed by the Parties to their respective affiliates, subsidiaries or parent company.
4. RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
4.1. Unless informed in writing otherwise, any and all Confidential Information as well as any copies, reproductions or duplications thereof and all rights related thereto shall remain, in all cases, the property of the Disclosing Party.
4.2. Tangible forms of Confidential Information shall not be copied, in whole or in part, without the prior written consent of the Disclosing Party, except for a reasonable number of copies necessary to carry out the transactions contemplated by or pursuant to this Agreement.
4.3. Any and all Confidential Information obtained for the clients/customers/projects of either Party, and any copies and reproductions thereof, shall be destroyed or returned to the Disclosing Party immediately upon either: (a) a request made by the Disclosing Party in writing; or (c) the termination of this Agreement, whichever occurs earlier.
4.4. For the avoidance of any doubt, no Confidential Information may be retained by the Receiving Party, in any form, where the circumstances outlined in Clause 4.33 have occurred. Notwithstanding the foregoing, the Parties may retain emails and other correspondence (including attachments and enclosures thereto) for record purposes for a period of no less than five (5) years from the date on which the relevant correspondence is received.
4.5. Upon termination or expiration of the Term or upon request by the Disclosing Party and at the directions of the Disclosing Party, the Receiving Party shall forthwith:
4.5.1 return all documents and other materials containing such Confidential Information together with all copies and reproductions thereof; or
4.5.2 destroy all documents and other materials containing such Confidential Information together with all copies and reproductions thereof and the Receiving Party shall confirm such destruction to the Disclosing Party in writing.
5. UNAUTHORISED DISCLOSURE
5.1. In the event there is Unauthorised Disclosure by the Receiving Party, the Receiving Party shall, at its own cost:
5.1.1. promptly inform the Disclosing Party of the Unauthorised Disclosure, outlining in detail the Confidential Information that has been disclosed, the person or employee who has disclosed the Confidential Information, the person(s) or parties that have received the Confidential Information and any other details that may allow the Disclosing Party to mitigate the effects of the Unauthorised Disclosure; and
5.1.2. take any other actions or steps in conjunction with the Disclosing Party, which would be reasonable in order to mitigate the effects of the Unauthorised Disclosure.
5.2. For the avoidance of any doubt, compliance with this Clause 5 may not be used as a bar to the initiation of action by the Disclosing Party against the Receiving Party or any other party or persons involved in causing the Unauthorised Disclosure of the Confidential Information.
6. TERM
This Agreement shall be valid and binding upon its execution by the duly authorised representatives of each Party and shall remain in force indefinitely as to disclosure of the Confidential Information.
7. MISCELLANEOUS
7.1. Representations and Warranties
Each Party represents and warrants to the other that (i) it has the full capacity and authority and all necessary consents to enter into and to perform this Agreement; (ii) this Agreement constitutes legal, valid and binding obligations, enforceable against it; and (iii) the execution, delivery and performance of this Agreement by it, does not and will not conflict with, or constitute a breach or default under any laws applicable on it.
7.2. Relationship of the Parties
Both Parties are independent entities. Nothing herein shall be deemed or construed for any purpose, statutory or otherwise, to create an agency, partnership, joint venture or employment relationship between or amongst the Parties. No Party has an obligation to supply information under this Agreement and no Party has an obligation to enter into any kind of contracts or agreements with the other Party.
7.3. Headings
The headings as well as the cover page in this Agreement are included for convenience only and shall not affect its interpretation. Unless the context otherwise requires, the singular includes the plural and vice versa. Words importing any gender shall include any other gender.
7.4. Language
The governing language of the Agreement shall be the English language. All notices, correspondence, information, literature and other documents required under this Agreement shall be in the English language
7.5. Amendments
No amendment of or modification to this Agreement such as additions, deletions, substitutions or other alteration or revisions, shall be effective unless executed in writing by the Parties.
7.6. Waiver
No exercise, or failure to exercise, or delay in exercising any right, power or remedy vested in a Party under or pursuant hereto shall constitute a waiver by such Party of that or any other right, power or remedy.
7.7. Entire Understanding
This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces any prior oral or written agreements, proposals, commitments, understandings, or communications with respect thereto by the Parties.
7.8. Notices
All notices exchanged between the Parties relating to this Agreement are considered as delivered, if they are delivered by hand against a signature on the receipt voucher of the receiving Party, or if they are sent by registered mail, at the address indicated in the recitals of this Agreement.
8. GOVERNING LAW AND DISPUTE RESOLUTION
8.1. This Agreement is governed by and interpreted in accordance with the laws of the State of Switzerland, as amended from time to time.
8.2. The courts of Switzerland shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement).
9. COUNTERPARTS
This Agreement has been executed in two (2) counterparts and each counterpart shall be deemed as original.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorised representatives on the Effective Date.
FIST PARTY SECOND PARTY
RIVUS MAĞAZACILIK VE TEKSTİL