CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This Confidentiality & Non-Disclosure Agreement (“Agreement”) is made this …….th day of ……….

BY AND BETWEEN

­­­­­­­­­­­­­­­­­­­______________________________, a company incorporated under the Companies Act, 1956 and having its registered office at ­­­­­­­­­­­­­­­­­­­­­­______________________________________________, hereinafter referred to as “____” or “Disclosing Party”, (which expression shall unless it be repugnant to the context or meaning there of shall mean and include its successors and permitted assigns) of the One Part

AND

M/s Jainam Agro Industries, a company incorporated under the Companies Act, 1956 and having its registered office at 121, Balaji Nagar, Mata ka Than Road, Jodhpur, Rajasthan, India, hereinafter referred to as “JAI” or “Receiving Party”, (which expression shall unless it be repugnant to the context or meaning there of shall mean and include its successors and permitted assigns) of the Other Part;

(Hereinafter ____ and  “JAI”  shall be individually referred to as “the Party” and collectively as “the Parties”);

WHEREAS ____ is, inter-alia, engaged in the business of design, manufacture, assembly and sale of components meant for _________________________________ use;

AND WHEREAS  “JAI”, India is engaged in the business of Manufacturing  __________________________ ;

AND WHEREAS ____ requires certain parts, components and equipment for manufacturing, assembling and supplying Operational systems and related equipment for military applications and for this purpose has undertaken and/or will undertake various projects from time to time (hereinafter referred to the “Projects”);

AND WHEREAS _____ has approached “JAI” and has desired to supply parts/components / equipment in accordance with the requirements of ____ under the Projects;

AND WHEREAS ____ wishes to engage _____ as its vendor for supply of such parts / components / components to ____ under the Projects pursuant to definitive agreement(s);

AND WHEREAS Disclosing Party and Receiving Party shall collaborate together for enabling Receiving Party to perform on the Projects by utilizing the Confidential Information provided by Disclosing Party;

AND WHEREAS the Parties recognize that careful protection and non-disclosure by the Receiving Party of Confidential Information received from “Disclosing Party” is of importance to the prosperity of the Parties;

AND THEREFORE, in consideration of the promises made herein, the Parties hereby agree as follows:

1. CONFIDENTIAL INFORMATION

1.1          Definition. “Confidential Information” shall mean all information and data which has been provided/disclosed or which will be provided/disclosed by the Disclosing Party to the Receiving Party in relation to this Agreement, either written or oral or in any form of media or which has been acquired or will be acquired by the Receiving Party, such as designs, drawings, specifications, technical information, documents and know-how, designs, manufacturing processes, ideas, data, financial information and other technologies, whether  patentable, copyrightable or susceptible to any other form  of  protection. The terms and existence of this Agreement, the fact that Confidential Information has been made available hereunder, that discussions or negotiations are taking place concerning a potential business relationship involving the Parties and all of the terms, conditions and other facts with respect thereto (including the status thereof) shall also be considered Confidential Information that is subject to the provisions of this Agreement.  

1.2          Purpose.  The purpose of the disclosure of Confidential Information is to enable the Parties to advance their efforts in evaluating a potential business relationship involving the Parties and to provide/ receive related products and services in pursuance of definitive business agreement(s) in connection with the Projects. Receiving Party shall use the Confidential Information for this purpose only.

1.3          Intellectual Property. Transmission of any Confidential Information by Disclosing Party to the Receiving Party under this Agreement shall not be construed as expressly or impliedly granting the Receiving Party any intellectual property right or license in relation to such Confidential Information and is only restricted for the purpose of sharing such Confidential Information to ensure performance of the Projects as defined hereinabove.

1.4          No Warranties.  The Disclosing Party assumes no responsibility for any loss or damages which may be suffered by the Receiving Party, its customers or any third parties on account of or arising from the Confidential Information.  The Disclosing Party makes no warranties of any kind, whether express or implied, as to the accuracy or completeness of the Confidential Information.

2. NON-DISCLOSURE

2.1          Use of Confidential Information. The Receiving Party shall only use the Confidential Information for the purposes stated in Clause 1.2 herein above. The Receiving Party recognizes that this Agreement imposes an affirmative duty on the Receiving Party to hold such information in confidence and to protect it from dissemination to and use by, unauthorized parties. The Receiving Party shall neither reproduce nor disclose the Confidential Information to any third party.

2.2          Further Responsibility. The Receiving Party agrees to use the same degree of care to protect the confidentiality of the Confidential Information as it would exercise to protect its own trade secrets and information but in no case less than a reasonable degree of care. Receiving Party will grant access to the Confidential Information only to its directors, officers, employees, advisors and consultants (“related parties”), who have a clear need to know, for purposes of this Agreement and shall advise such related parties of the existence and terms of this Agreement and of the obligations of confidentiality herein. Receiving Party shall be responsible for the breach of the terms of this Agreement by its related parties.

2.3          Return of Confidential Information. Promptly following the request of the Disclosing Party, the Receiving Party will return to the Disclosing Party, or certify in writing to the Disclosing Party as to the destruction of (without retaining any copy), all Confidential Information (and copies and extracts thereof) furnished to, or created by or on behalf of, the Receiving Party.

2.4          Exceptions.  The foregoing notwithstanding, no information shall be considered Confidential Information if such information: (a) was in the public domain prior to or after disclosure through no fault of the Receiving Party; (b) was, to the knowledge of the Receiving Party, lawfully received from third parties without fault of the Receiving Party and without restriction or breach of this Agreement; or (c) was required to be disclosed under any requirements by law, by a court of competent jurisdiction or by another appropriate regulatory body provided that the Receiving Party gives the Disclosing Party prompt prior written notice to that effect. The Receiving Party will cooperate with the Disclosing Party if they seek to obtain a protective order concerning such Confidential Information.

2.5          Remedies. Receiving Party recognizes and acknowledges that Confidential Information is of a special, unique and extraordinary character to the Disclosing Party and that disclosure, misappropriation or unauthorized use of such Confidential Information by the Receiving Party may cause serious injury to the Disclosing Party.  The Receiving Party expressly agrees, therefore, that the Disclosing Party, shall be entitled to seek injunctive and other equitable relief to prevent the breach, or the further breach, of any of the terms and provisions hereof. 

2.6          Indemnity. Receiving Party shall defend, indemnify, release and hold harmless Disclosing Party, its directors, officers, employees, representatives, successors and assigns, against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, fines, penalties, damages, costs, expenses, or liabilities arising from any infringement or breach of the confidentiality obligation committed to the Disclosing Party under this Agreement. Receiving Party further agrees to indemnify Disclosing Party for any attorneys’ fees or other costs that Disclosing Party incurs in the event that Disclosing Party has to file a lawsuit to enforce this indemnity or any other provision of this Agreement.

2.7          Public Statements. In addition to the limitations on the use and disclosures of Confidential Information set forth herein, it is agreed that Receiving Party shall not issue or release or confirm any statement, to the general public, to the news media, or to any third party, except with the prior concurrence of Disclosing Party, both as to the content and timing of any such issue or release or confirmation.

3. GENERAL

3.1          Term and Termination.  This Agreement shall be valid and binding upon its execution by the duly authorized representatives of each Party and shall remain in effect for a period of 10 years. This Agreement may be terminated by Disclosing Party with immediate effect in event of any breach of the terms and conditions of this Agreement by the Receiving Party by giving a prior written notice of 30 days to the Receiving Party. The confidentiality obligation contained in this Agreement shall survive even if the Agreement is terminated or expires by efflux of time.

3.2          No Further Obligations. No provision of this Agreement shall be construed to be an obligation on Disclosing Party to disclose information to, or to enter into further agreements with, Receiving Party.

3.3          No Conflicts.  Each Party represents and warrants that its actions with respect to this Agreement do not conflict with any prior obligations to any third party.

3.4          Non-compete. Receiving Party agrees that, in consideration of their association pursuant to this Agreement, and other good and valuable consideration, during the term of this Agreement and for a period of 10 years after termination / expiry hereof, the Receiving Party will not either on his own behalf or on behalf of any third party,  directly or indirectly, as a partner, shareholder, joint venture partner, investor, lender, or in any other capacity whatsoever engage in any business that directly competes with that of the Disclosing Party or its affiliates’ at the time of termination, or is based on know-how or processes of the kind or type acquired, developed or being developed, produced, marketed, distributed, planned, furnished or sold by the Disclosing Party or its affiliates.

4. General Terms. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.  The Receiving Party shall not assign any of its rights or delegate any of its obligations under this Agreement except with the prior written consent of the Disclosing Party. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.  If any provision of this Agreement is deemed or held by a court of competent jurisdiction, to be contrary to law or otherwise unenforceable, it shall be enforced to the extent legally permissible and as necessary to reflect the intent of the Parties and shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect. This Agreement shall only be amended by a writing executed by duly authorized representatives of both the Parties.

5. Arbitration. In case any disputes are not settled amicably then all such disputes shall be finally settled by a sole arbitrator appointed by the Parties, in accordance with the (Indian) Arbitration and Conciliation Act, 1996. The award of the sole arbitrator shall be a reasoned award and shall be final and binding on the Parties.  The venue of arbitration proceedings shall be Jodhpur, India. The arbitration proceedings shall be conducted and the award shall be stated in English language. Parties hereby submit to the exclusive jurisdiction of the courts at Jodhpur.

6. Applicable Law.  The laws of India shall apply.

7. Entire Agreement. This Agreement represents the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior agreements and understandings and writings of any kind, written or oral, express or implied, with respect to the subject matter hereof.

IN WITNESS WHEREOF, the Parties have through their duly authorized representatives executed this Agreement the day and the year first herein above written.