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BETWEEN:
WHEREAS:
(A) FWD and DSP are discussing certain matters relating to a potential business
transaction (“Proposed Transaction”), which requires DSP and FWD and/or its
affiliates to disclose to each other certain proprietary, secret or confidential
information;
(B) each of FWD anD DSP is referred to as a “Party” and collectively as the
“Parties”; and
(C) the Party disclosing the confidentiality information shall be referred to as the
"Disclosing Party" and the Party receiving such information shall be referred to
as the "Receiving Party".
In consideration of the premises and the mutual covenants contained in this Agreement,
the Parties agree as follows:
(a) Confidential information shall include all verbal and written correspondences
between the Parties in connection with the Proposed Transaction, the existence and
content of this Agreement and any information in relation to the Proposed
Transaction provided by either Party (and/or any of its affiliates) to the other
Party (and/or any of its affiliates) whether or not marked as confidential,
including commercial, financial, product marketing and technical information,
know-how, trade secrets, information or data of any individual, information about
software, computer systems and software related documentation, of whatever
nature and in any form or medium (whether in written, oral, visual, electronic form
or otherwise) disclosed before or after the date of this Agreement and relating to a
Disclosing Party (or any of its affiliates including any notes, analyses and
documents of whatever nature prepared by either Party or any of its affiliates which
are based on or incorporate any such information), but excluding the information
detailed in Clause 6.
(b) For the purposes of this Agreement:
(II) a company is “Controlled” by a person if the person (A) has the ability
to control the composition of the board of directors of such company or
more than 50% of the voting rights attaching to the shares of such
company or (B) owns more than 50% of the issued ordinary share
capital (or equivalent) of such company;
2. DISCLOSURE OF INFORMATION
(a) The Parties agree to disclose and provide to each other Confidential Information.
The Parties acknowledge that the Confidential Information is a valuable, special
and unique asset belonging to the Disclosing Party. The Parties agree that they
shall (and shall procure their respective affiliates which disclose or receive the
Confidential Information) be bound by the terms of this Agreement and that they
will not during or after the term of this Agreement disclose the Confidential
Information of any other Party to any person, firm, corporation, association or any
other entity for any reason or purpose whatsoever without the prior written
consent of the Disclosing Party. Notwithstanding the above, the Parties agree
that Confidential Information of the Disclosing Party may be disclosed:
(i) by any Receiving Party to its officers and employees with a need to
know, provided that the Receiving Party shall procure that such officers
and/or employees shall comply with the confidentiality obligations
provided herein;
(ii) by any Receiving Party to its professional advisors, agents and consultants,
provided that such professional advisors, agents, and consultants sign an
undertaking relating to confidentiality on the same terms as contained
herein; or
(b) The Parties further agree that (i) they shall not, (ii) shall procure that their
respective officers and/or employees shall not, and (iii) shall use all reasonable
endeavours to procure that their professional advisors, agents and/or consultants
shall not, utilise, employ, exploit or in any other manner whatsoever use the
Confidential Information disclosed by the other Party for any purpose (except in
relation to the Proposed Transaction) without the prior written consent of the
Disclosing Party.
4. STANDARD OF CARE
The Parties agree that they shall protect the Confidential Information of the other
Party using not less than the same standard of care each Party applies to its own
proprietary, secret or confidential information and that the Confidential Information
shall be stored and handled in such a way as to prevent unauthorised disclosure.
The Disclosing Party may request in writing at any time that any written
Confidential Information disclosed pursuant to the terms of this Agreement,
including all copies, be returned or destroyed and the Receiving Party shall
comply with any such request within 10 business days of receipt of such request.
6. EXCLUDED INFORMATION
(a) is disclosed to a third party pursuant to written authorisation from the Disclosing
Party
(b) is received from a third party without similar restrictions and without breach of this
Agreement;
(c) was known to the Receiving Party before the date of this Agreement and the
Receiving Party was not subject to obligations of confidentiality in respect of the
information (whether pursuant to the terms of this Agreement or otherwise);
7. TERM
(a) Subject always to the provisions of Clause 2 and Clause 7(b), this Agreement
shall terminate on the first anniversary of the date of this Agreement.
8. PUBLIC ANNOUNCEMENTS
The Parties agree to maintain in strict confidence and not to disclose publicly or
to any third party, the existence and substance of any discussions or negotiations
between the Parties, the terms of any proposed arrangements or agreements, or
any other information relating thereto. The Parties also agree that (i) they shall
not, and (ii) shall procure that their respective affiliates, directors, officers,
employees and representatives shall not, make any public announcements about
the discussions between the Parties or the Proposed Transaction, whether in the
form of press release or otherwise, without first seeking the prior written consent
of the Party.
9. REPRESENTATIONS AND WARRANTIES
(a) Each Party represents and warrants that it is a corporation duly organised and
validly existing in the jurisdiction of its incorporation. Each Party represents that it
has full corporate power and authority to enter into this Agreement and to do all
things necessary for the performance of this Agreement. The Disclosing Party
warrants that the Confidential Information has not been and will not be provided
in breach of any other agreement with third parties or applicable laws and
regulations (including the Personal Data (Privacy) Ordinance (Cap. 486 of the
Laws of Hong Kong)) and, in addition, the Disclosing Party indemnifies the
Receiving Party against any liability for third party claims or breach of statutory or
regulatory requirements on such a basis.
10. GENERAL
(b) No delay on the part of any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any Party of any such right, power or privilege, nor any single or partial exercise
of any such right, power or privilege preclude any further exercise thereof or the
exercise of any other such right, power or privilege. The Parties agree that in the
event of any actual or threatened breach of this Agreement by the Receiving
Party, the Disclosing Party shall be entitled to seek equitable relief including
injunctive and specific performance. Such remedy shall not be deemed to be the
exclusive remedy for a breach of this Agreement, but shall be in addition to all
other remedies available at law.
(c) The headings of paragraphs are used for convenience only and shall not affect the
meaning or construction of the contents of this Agreement.
(d) This Agreement contains the entire agreement of the Parties with respect to the
subject matter of this Agreement and supersedes all prior agreements between the
Parties, whether written or oral, with respect to the subject matter of this Agreement.
(e) This Agreement shall be construed and enforced in accordance with the laws
of Hong Kong.
(f) The Parties irrevocably agree to submit to the non-exclusive jurisdiction of the
courts of Hong Kong for all purposes in relation to this Agreement.
(g) All notices, demands or other communications under this Agreement shall be
given or made in writing, and shall be delivered personally, or sent by certified or
registered mail, addressed to the Party or Parties to whom they are directed at the
address set out at the head of this Agreement or at such other address as may be
designated by notice from such Party. Any notice, demand or other
communication given or made by mail in the manner prescribed in this paragraph
shall be deemed to have been received 7 days after the date of mailing.
(h) This Agreement may be executed in counterparts which, taken together, shall
constitute the whole document.
11. SEVERABILITY
In the event any one or more of the provisions contained in this Agreement shall
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been set forth herein, and the Agreement
shall be carried out as nearly as possible according to its original terms and
intent.