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NDA(Eng)保密协议书英文版

NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (this “Agreement”) is entered into this [day] day of [month], [year] by and between [company name of Party A], a company organized under the laws of [registered country of Party A] with its principal place of business at [registered address of Party A] (“[Party A]”), and [company name of Party B], a company organized under the laws of [registered country of Party B] with its principal place of business at [registered address of Party B] (“[Party B]”). [Party A] is a disclosing party (“Discloser”) and [Party B] is a receiving party (“Recipient”) under this Agreement, and collectively the “Parties”. WITNESSETH WHEREAS [Party A] and [Party B] desire to enter into discussions for the purpose of [purpose] (the “Purpose”); and WHEREAS in order to implement the Purpose [Party A] needs to provide [Party B] with access to [Party A]’s “Confidential Information” (as defined below). NOW THEREFORE, in consideration of the mutual benefits, undertakings and promises herein, the Parties hereby agree as follows: 1. Definitions

1.1 For the purpose of this Agreement, the term “Confidential Information” means any and all information and know-how of a private, secret or confidential nature, in whatever form, that relates to the business, financial condition, technology and/or products of the Discloser, its Affiliates, employees, customers, suppliers, or potential customers or suppliers, provided or disclosed to the Recipient or which becomes known to the Recipient, whether or not marked or otherwise designated as “confidential”, “proprietary” or with any other legend indicating its proprietary nature. By way of illustration and not limitation, Confidential Information includes all forms and types of financial, business, scientific, technical, or engineering information and know-how, including but not limited to specifications, prototypes, designs, techniques, processes, procedures, methods, compilations, inventions and developments, products, equipment, samples, algorithms, computer programs (whether as source code or object code), data, marketing and customer information, vendor information, personal information, projections, plans and reports, and any other data, documentation, or information related thereto, as well as improvements thereof, whether in tangible or intangible form, and whether or not stored, compiled or memorialized in any media or in writing, including information disclosed as a result of any visitation, consultation or information disclosed by Parties to this agreement or other parties on their behalf such as consultants, clients, suppliers and customers, etc. 1.2 Confidential Information shall not include information or any matter that the Recipient can demonstrate by reasonable and tangible evidence that: (a) was already known to the Recipient prior to its disclosure pursuant to this Agreement; or (b) has become a part of the public knowledge without a breach of this Agreement by the Recipient; or (c) the Discloser has explicitly approved the Recipient to disclose to third party; or (d) was independently developed by the Recipient thereafter without reference to or use of the Confidential Information; or (e) shall have been lawfully received by the Recipient from another person or entity having no confidentiality obligation to the Discloser or its Affiliates. 1.3 For the purpose of this Agreement, “Affiliate” shall mean an entity controlled by, controlling or under common control with a party. For the purpose of this definition, the term “control” means the possession, directly or indirectly, of more than 50% of the voting stock of the controlled entity, or the power to direct, or cause the direction of the management and policy of the controlled entity.

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2.

Obligations of the Recipient

Recipient shall treat all Confidential Information of the Discloser as strictly confidential and secure, and: (a) Shall not, without the express prior written consent of the Discloser, exploit or make use, directly or indirectly, and/or copy, duplicate or reproduce such Confidential Information, for any other purpose other than for the Purpose; (b) Shall refrain, either by itself or through any third party, from analyzing or attempting to analyze the Confidential Information or any part of it, including by way of disassembly, decompiling or reverse engineering any samples, prototypes, software or other tangible objects, in order to determine the composition, design or specifications thereof; (c) Shall protect and safeguard the Confidential Information against any unauthorized use, disclosure, transfer or publication with at least the same degree of care as it uses for its own confidential or proprietary information, but in no event with less than reasonable care; (d) Shall not use any Confidential Information to compete or obtain any competitive or other advantage with respect to the Discloser; (e) Shall restrict disclosure of the Confidential Information to those directors, officers, employees or representatives of itself or of its Affiliates who clearly have a need-to-know such Confidential Information, and then only to the extent of such need-to-know for implementing the Purpose; (f) Shall assume full responsibility for enforcing this Agreement and shall take appropriate measures with all persons acting on its behalf to insure that such persons are bound by a like covenant of confidentiality, and informing such persons that such Confidential Information shall not be disclosed except as provided herein; (g) Shall both during this Agreement and after its termination keep secret and/or confidential and not (except as authorized or required for the purposes of this Agreement) use or disclose or attempt to use or disclose to any person or third party the Confidential Information; (h) Shall notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (i) Shall indemnify Discloser and its Affiliates, employees, customers, suppliers and potential customers against all losses suffered as a result of Recipient ’s breach of its obligations under this Agreement. 3. No Rights or Licenses Granted

The disclosure of the Confidential Information pursuant to this Agreement shall not grant the Recipient any express or implied license or right in such Confidential Information, including without limitation any right or license to any patent, trademark, copyright, trade secret, moral right or any other right recognized by any law or regulation of any jurisdiction worldwide (collectively, “Intellectual Property Rights”). The Discloser and/or its licensors are and shall remain the owners of all Intellectual Property Rights in any Confidential Information, to be used by the Recipient only for the Purpose. The Recipient agrees that it shall not remove or otherwise alter any of the Discloser's trademarks, logos, copyright notices or other proprietary notices or indicia, if any, fixed or attached to the Confidential Information or any part thereof. 4. Return of Confidential Information

Unless otherwise required by applicable law or regulation, the Recipient shall destroy or return to the Discloser immediately upon its request all copies of the Confidential Information, without retaining copies thereof, and in either case shall certify in writing within thirty (30) days of receiving such a request, its compliance with the terms of this provision.
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5.

No Obligation

Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any obligation or intention by either party to make any purchase or sale or otherwise enter into any other business relationship with the other party. 6. Warranty

The disclosure of any Confidential Information by the Discloser shall not constitute any other representation or warranty, including regarding the accuracy of the same. In the event of Recipient disclosing the Confidential Information to a third party, the Recipient shall be solely liable for claims of such third party who relies on accuracy of the Confidential Information and suffers loss or damage, and shall indemnify and defend the Discloser from third party claims. 7. Survival

Unless otherwise agreed in writing by both parties, the obligations of confidentiality hereunder with respect to all Confidential Information shall survive the termination or expiration of this Agreement, shall be binding upon the Parties and their respective Affiliates or successors and shall continue until such Confidential Information is no longer considered as Confidential Information or has become public knowledge or is in public domain. 8. Associated Companies or Subsidiaries

8.1 The references to [Party A], [Party B], Discloser and/or Recipient herein shall where the context permits include all or any of its Affiliate, Associated Companies or Subsidiaries. 8.2 The references to [Party A], [Party B], Discloser and/or Recipient herein shall, except where the context renders it absurd or impossible, include its successors in title and personal representatives, by and against whom this Agreement shall be enforceable as if they had been originally named as parties. 9. Entire Agreement

This Agreement shall constitute the full and entire agreement between the Parties with respect to the confidentiality and non-disclosure of the Confidential Information and shall supersede any and all prior or contemporaneous agreements and understandings relating thereto. No change, modification, or addition to any provision of this Agreement shall be binding unless made in writing and executed by the duly authorized representatives of both Parties. This Agreement may not be assigned by either party without the prior consent in writing of the other party. 10. Severability

If a competent court holds that (i) any of the provisions contained in this Agreement is for any reason excessively broad with regard to time, geographic scope or activity, that provision shall be construed in a manner to enable it to be enforced to the maximum extent compatible with applicable law; (ii) any provision in this Agreement is void or unenforceable, such determination shall not affect the validity or enforceability of any other term or provision. 11. No Publication

Neither party shall disclose, publicize or advertise in any manner the discussions or negotiations contemplated by the Agreement without the prior written consent of the other party, except as may be required by law.

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12.

Compelled Disclosure

In the event that the Recipient becomes legally compelled to disclose any of the Confidential Information, it will provide the Discloser with prompt notice thereof so that the Discloser may seek a protective order or other appropriate remedy against the disclosure, and in any event will limit the disclosure to the greatest extent reasonably possible under the circumstances. 13. Notices

All notices made under this Agreement shall be in writing and shall be deemed to have delivered (a) on the date personally delivered, or (b) when notices sent by electronic mail reach the electronic mail system of the other party, or (c) when sent via facsimile and acknowledged receipt by the other party, or (d) when sent by registered post and acknowledged receipt by the other party, or, when sent by ordinary post, the business day following the date of postal stamp. The abovementioned delivery should be made according to the addresses or facsimile number specified in this Agreement or to such other addresses, electronic mail addresses or facsimile numbers of which such party shall have given notice in accordance with this clause. 14. Remedy

Each party acknowledges that a breach of this Agreement would cause the Discloser irreparable harm which monetary damages will be insufficient to remedy. Accordingly, the Discloser, as the case may be, in addition to any other remedies available at law, shall be entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach. 15. Termination

This Agreement shall continue in force from the date hereof until terminated by mutual consent or by either party by giving to the other not less than 3 months’ prior notice. 16. Governing Law and Jurisdiction

The interpretation construction and effect of this Agreement shall be governed and construed in all respects in accordance with the laws of the People’s Republic of China and the parties hereby submit to the jurisdiction of the court(s) where the Discloser is located. 17. Effect

This Agreement shall be effective the date first written above. This Agreement may be executed in counterpart, both of which together will constitute one and the same instrument. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above. For and on behalf of [Company name of Party A] [signature] By:____________________ Title: ________________ For and on behalf of [Company name of Party B] [signature] By:____________________ Title: ________________

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