1.1. "Affiliates" shall mean with respect to a party, a person who controls or is controlled by, or is under common control with such party. As used in this definition, the expression control means with respect to a person, the power to direct or cause the direction of the management or policies of such person, whether through the ownership, directly or indirectly, of majority voting rights exercisable at general meetings of the members of that person or the right to appoint or remove directors having a majority of the voting rights exercisable at meetings of the board of directors of that person (on all, or substantially all, matters) or through contract or otherwise.
1.2. "Confidential Information " means all the information of the owner which is disclosed to the Recipient pursuant to the business arrangement whether oral or written and shall include but is not limited to trade secrets, know-how, inventions, techniques, processes, plans, algorithms, software programs, source code, semiconductor designs, schematic designs, business methods, customer lists, contacts, financial information, sales and marketing plans and business information of the owner, 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 owner of such information ("Owner") to the recipient of such information ("Recipient"). under these Terms. "Confidential Information" does not include information that:
(a) was already known to the Recipient at the time of disclosure;
(b) is or becomes publicly available or is in the public domain without a breach of these Terms;
(c) is approved for release by a prior written authorization of the Disclosing Part;
(d) any information required to be disclosed under any applicable Law; and
(e) is independently developed by the Recipient without the utilisation of Confidential Information provided by the Owner.
1.3. 'Contemplated Agreement' means any future legally binding Agreement between the Parties in respect of the Project envisaged under these Terms.
1.4. "Governmental Authority" means any governmental, statutory, departmental, or public body or authority, including courts of competent jurisdiction.
1.5. "Law" means any statute, notification, bye law, rule and regulation, directive, guideline, ordinance, order or instruction having the force of law enacted or issued by any Governmental Authority, whether in effect as of the date of these Terms or thereafter and shall include Laws in any territorial jurisdiction as may be applicable.
1.6. "Materials" means including without limitation, documents, drawings, models, apparatus, sketches, designs, and lists furnished to the Recipient by the owner and any tangible embodiments of the owner's Confidential Information created by the Recipient.
1.7. "Person" shall mean any individual, company, firm, association, trust or any other organization or entity, including any governmental or political subdivision, ministry, department, or agency thereof.
1.8. "Representative(s)" includes the directors, employees, agents, or legal, financial and other advisers of the Recipient having a "need to know" the Confidential Information for the purpose of the Proposed Transaction.
2. CONFIDENTIALITY OBLIGATIONS
2.1. Recipient acknowledges that the Confidential Information disclosed by the Owner and/or its representatives to the Recipient and/or its Affiliates and/or its respective Representatives is valuable, secret, and confidential and shall, at all times remain the sole property of the Owner.
2.2. Unless otherwise agreed to in writing by the Owner, the Recipient undertakes to utilize the Confidential Information only for the purposes related to the Proposed Transaction. The Recipient agrees that it shall not or cause its respective Representatives and Affiliates to use the Confidential Information to obtain a commercial advantage for itself/themselves.
2.3. The Recipient shall keep and shall cause its respective Representatives and Affiliates to keep the Confidential Information in utmost confidence and shall not for a period of three (3) years from the date of disclosure disclose, publish, make commercial or other use of, part with, or give or sell to any Person the Confidential Information including its intended use.
2.4. In the event that the Recipient is requested or required by any Governmental Authority) to disclose any Confidential Information, the Recipient shall not disclose such Confidential Information unless prior notice to the Owner has been given.
3. COVENANT NOT TO DISCLOSE
The Recipient will use the owner’s Confidential Information solely to fulfil its obligations as part of the business relationship with the owner. The Recipient shall not disclose any Confidential Information to any person except to its employees, directors, advisors or consultants on a need-to-know basis, who have prior to the disclosure of or access to any such Confidential Information agreed in writing to receive it under terms at least as restrictive as those specified in these Terms. In this regard, the agreement entered into between the Recipient and any such person shall be forwarded to the owner promptly thereafter. The Recipient shall use at least the same degree of care in safeguarding the Confidential Information as it uses or would use in safeguarding its own Confidential Information and shall take all steps necessary to protect the Confidential Information from any unauthorised or inadvertent use. In particular, the Recipient will immediately give notice in writing to the owner of any unauthorised use or disclosure of the Confidential Information and agrees to assist the owner in remedying such unauthorised use or disclosure of the Confidential Information. This confidentiality obligation shall not apply only to the extent that the Recipient can demonstrate:
a. the Confidential Information of the owner is at the time of disclosure, part of the public domain, except by breach of the provisions of these Terms; or
b. the Confidential Information of the owner is required to be disclosed by a government agency to further the objectives of these Terms or by a proper court of competent jurisdiction; provided however that the Recipient will use its best efforts to minimize the disclosure of such information and will consult with and assist the owner in obtaining a protective order prior to such disclosure.
4. RETURN OF THE MATERIALS
All Materials shall remain the property of the owner and the Recipient shall return to the owner or destroy the Materials and all copies thereof, as instructed by the owner upon the completion of its obligations as part of the business relationship or termination of these Terms or upon the written request of the owner at any time whether during the course of contemplated communications or after the completion or abandonment within seven (7) working days from the date of raising such request to the recipient via email.
5. OWNERSHIP OF CONFIDENTIAL INFORMATION
The owner shall be deemed the owner of all Confidential Information disclosed by it or its agents to the Recipient hereunder, including without limitation all patents, copyright, trademark, service mark, trade secret and other proprietary rights and interests therein, and Recipient acknowledges and agrees that nothing contained in these Terms shall be construed as granting any rights to the Recipient, by license or otherwise in or to any Confidential Information.
6. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
6.1. In consideration of the disclosure of Confidential Information by the Owner to the Recipient solely for the Purpose, the Recipient undertakes whether by itself, its successors and heirs, not to disclose Confidential Information to any third party.
6.2. In addition to any undertaking in any clause in the Agreement, the Recipient shall be liable for:
(a) any loss, theft or other inadvertent disclosure of Confidential Information, and
(b) any unauthorized disclosure of Confidential Information by persons (including, but not limited to, present and former employees) or entities to whom the Recipient under these Terms has the right to disclose Confidential Information, except where, the Recipient 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 1or unauthorized disclosure the Recipient has promptly notified the Owner thereof and taken all reasonable measures to mitigate the effects of such disclosure and to prevent further disclosure.
6.3. The Recipient understands and agrees that:
(a) 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;
(b) 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.
6.4. The Recipient acknowledges the technical, commercial and strategic value of the Confidential Information to the Owner and understands that unauthorized disclosure of such Confidential Information will be injurious to the Owner.
The Owner assumes no responsibility for any loss or damages which may be suffered by the Recipient, its customers or any third parties on account of or arising from the use of the Confidential Information by the Recipient. The Owner makes no warranties of any kind, whether express or implied, as to the accuracy or completeness of the Confidential Information. None of the Confidential Information disclosed by the Parties constitutes any representation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement of trademarks, patents, copyrights; any rights of privacy; or any rights of third persons.
8. REMEDIES FOR BREACH OF CONFIDENITALITY
8.1. The Recipient agrees and acknowledges that any disclosure of any Confidential Information prohibited herein, or any breach of the provisions herein may result in an irreparable injury and damage to the owner which will not be adequately compensable in terms of monetary damages. The owner will have no adequate remedy at law thereof, and that the owner may, in addition to all other remedies available to it at law or in equity, obtain such preliminary, temporary or permanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect the owner against, or on account of, any breach by the Recipient of the provisions contained herein, and the Recipient agrees to reimburse the reasonable legal fees and other costs incurred by owner in enforcing the provisions of these Terms.
8.2. The Recipient agrees and acknowledges that any disclosure, misappropriation, conversion or dishonest use of the said Confidential Information shall, in addition to the remedies mentioned above, make the Recipient criminally liable for Breach of Trust under section 405 of the Indian Penal Code and a penalty for breach of confidentiality and privacy shall be imposed as per Section 72 in The Information Technology Act, 2000.
9. RELATIONSHIP OF THE PARTIES
The relationship of the Parties hereto shall be that of independent contractors. Nothing contained in these Terms shall be construed to imply a partnership, joint venture, principal and agent, or employer and employee relationship between the Parties and neither Party has any right, power or authority to represent the other Party or to create any obligation, express or implied, on behalf of the other. Neither these Terms, nor the furnishing of Confidential Information, constitutes an agreement, obligation or commitment by either Party to proceed with any transaction, or result in any liability, financial or otherwise, to the other Party or its clients.
10. INSIDE INFORMATION
The Parties acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation relating to insider dealing, and the Parties undertake not to use any Confidential Information for any unlawful purpose.
11. COPYING AND RETURN OF FURNISHED INSTRUMENTS
11.1. The Recipient shall not be entitled to copy samples, models, computer programs, drawings, documents or other instruments furnished by the Owner hereunder and containing Confidential Information, unless and to the extent it is necessary for the Purpose.
11.2. All samples, models, computer programs, drawings, documents, and other instruments furnished hereunder and containing Confidential Information shall remain the Owner’s property.
11.3. At any time upon request from the Owner or upon the conclusion of the Purpose or expiry of these Terms, the Recipient, 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 Owner, and satisfy the Owner that it no longer holds any further Confidential Information
12. INTELLECTUAL PROPERTY RIGHTS
The Confidential Information shall remain the exclusive property of the Party which has disclosed it (or the applicable Affiliate or third party) and its disclosure shall not confer on the Recipient or its Representatives any rights (including without limitation any intellectual property rights) over the Confidential Information whatsoever beyond those contained in these Terms.
Except as expressly provided herein, the Parties do not grant, convey or transfer to the Recipient or any other person or entity any interest, license or other right, in or to its Confidential Information or any patent, copyright, trade secret, trademark or other intellectual property right.
No term or provision hereof will be considered waived, and no breach excused by the owner, unless such waiver or consent is in writing signed by or on behalf of the owner. No consent or waiver of a breach by the owner will constitute consent to the waiver of or excuse of any different or subsequent breach by the Recipient.
Any notice provided for or permitted under these Terms will be treated as having been given when (a) delivered personally, (b) sent by confirmed telecopy, (c) sent by commercial overnight courier with written verification of receipt, or (d) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth below or at such other place of which the other party has been notified in accordance with the provisions of this clause. Such notice will be treated as having been received upon actual receipt or five days after posting.