NTTNETWORKS is providing ICT solutions and IT Outsourcing Services (Project). In connection with the Project, a Party (Disclosing Party) or its Representatives may disclose to the other Party (Receiving Party) or its Representatives certain information which is non-public, confidential or proprietary in nature to the Disclosing Party (Confidential Information) for the purpose of engaging in discussions and to exchange ideas regarding the Project (Approved Purpose).
In consideration for the mutual disclosure of such Confidential Information the Parties agree as follows:
- Confidential Information includes (without limitation):
- any and all information concerning or relating to the Project, the Disclosing Party or its Affiliates, their customers and their operations, including, without limitation, financial statements, budgets, customer information, business plans, marketing plans and studies, agreements, documents, permits, licenses, approvals, knowledge, concepts, ideas, processes, know-how, technique, algorithms, architecture, inventions, designs, plans, drawings, schematic, manuals, reports, photographs, samples, programs, source codes, prototypes, price lists, product descriptions and all other information whether disclosed, orally, in graphic form, electronic form or in writing by the Disclosing Party (or its Representatives) to the Receiving Party (or its Representatives) or which becomes known by the Receiving Party (or its Representatives) as a consequence of or through its relationship with Disclosing Party or its Affiliates; and
- all copies, analyses, compilations, forecasts, studies or other documents prepared by the Receiving Party (or its Representatives), to the extent such materials contain or otherwise reflect any of the Confidential Information described in sub-clause 1(b).
- Confidential Information does not include information that:
- is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party (or its Representatives);
- is in the Receiving Party’s possession or becomes available on a non-confidential basis from a source other than the Disclosing Party (or its Representatives) which is not prohibited from disclosing such information to the Receiving Party by a legal, contractual or fiduciary obligation to the Disclosing Party; or
- is developed by or on behalf of the Receiving Party independent of any Confidential Information furnished under this Agreement.
Use of Confidential Information
- The Receiving Party must only use Confidential Information for the Approved Purpose and not for any other purpose.
Disclosure of Confidential Information
- The Receiving Party must keep Confidential Information in confidence and may only disclose Confidential Information to the following persons if (and to the extent that) such disclosure is required for the Approved Purpose:
- the Receiving Party’s employees, directors, officers and advisors;
- the Receiving Party’s Affiliates and its employees, directors, officers and advisors;
- any third party (including its sub-contractors) if the Disclosing Party has provided its prior written consent to such disclosure.
(together, its Representatives).
- The Receiving Party must ensure that its Representatives comply with this Agreement, and must procure that its Representatives comply with the same obligations placed on it in this Agreement.
- Notwithstanding anything else in this Agreement, each Party remains responsible for the actions and inactions of its Representatives as if they were its own actions or inactions.
- If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party must:
If the Receiver is required to lawfully disclose any Confidential Information, the Receiver must:
- provide the Disclosing Party with prompt notice prior to disclosing any Confidential Information so that the Disclosing Party may take appropriate steps, including intervening to protect the confidentiality of the Confidential Information;
- if ultimately required, only disclose that portion of the Confidential Information which, as advised by the written opinion of a reputable external legal counsel, it is legally required to disclose; and
- exercise its best efforts to obtain reliable assurance that the party receiving the Confidential Information will treat it as confidential.
- Without the prior written consent of the other Party, each Party must not, and shall procure that its Representatives do not, disclose:
- the fact that the Confidential Information has been disclosed or made available to the Receiving Party;
- that discussions are taking place between the Parties concerning the Project; and
- the existence, or status of, the Parties’ involvement in, or anything whatsoever related to, the Project.
Notification of breach
- Each Party must immediately inform the other Party if it becomes aware of any breach or potential breach of this Agreement, including any breach or potential breach by its Representatives.
Destruction or return of Confidential Information
- The Receiving Party must, at its expense, return or destroy all Confidential Information on the written direction of the Disclosing Party. All Confidential Information in electronic form shall, to the extent reasonably possible, be expunged from any computer, word processor or any other device in the Receiving Party’s (or its Representative’s) possession.
- In the event of such direction, the Receiving Party must provide written confirmation that is has complied with the direction. Notwithstanding Clause 10, the Receiving Party (and its Representatives) shall not be required to return or destroy any electronic copy of any Confidential Information that is created pursuant to its standard electronic backup and archival procedures, and the Receiving Party (and its Representatives) may retain such copies of Confidential Information as required to comply with applicable laws or regulations. Any Confidential Information retained under this Clause 11 by the Receiving Party shall remain subject to the obligations of confidentiality beyond the period specified in Clause 12.
- (Term) Save as provided for in Clause 11, this Agreement continues for a period of 3 years from the date of execution of this Agreement by both Parties. Subject to the term of this Agreement, the obligations under this Agreement continue regardless of the status of the Project unless replaced by written agreement between the Parties.
- (Affiliate) The term ‘Affiliate’ when used in this Agreement means with respect to any Party, any Person that is directly or indirectly controlling, controlled by or under common control with such Person, where “control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting rights, by contract or otherwise. “Person” shall mean any natural person, business, corporation, company, association, limited liability company, partnership, limited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.
- (Representatives) The term ‘Representatives’ when used in this Agreement means:
- with respect to the Receiving Party, as defined in clause 4; and
- with respect to the Disclosing Party, its Affiliates and its and its Affiliates’ employees, advisors, directors and officers.
- (No warranty) Neither the Disclosing Party (or its Representatives) has made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither the Disclosing Party (nor any of its Representatives) shall have any liability relating to or resulting from the use of the Confidential Information or any errors or omissions in the Confidential Information.
- (Indemnity) Each Party shall indemnify and keep fully indemnified, the other Party and its Affiliates from and against all direct losses, damages, reasonably and properly incurred expenses and costs (including reasonable legal costs on a standard basis) and liabilities arising out of or in connection with any breach by the Party of its obligations under this Agreement (including the acts or omissions of any of its Representatives). Nothing contained in this clause shall be construed as prohibiting a Party or its Affiliates for pursuing any other remedies available to it, either at law or in equity, for such a breach, including injunctive relief, specific performance and the recovery of monetary damages.
- (Intellectual Property) The Disclosing Party retains all rights, title and interest in and to the Confidential Information. Nothing contained in this Agreement shall be construed, by implication or otherwise, as the grant of a license to the Receiving Party to use the Confidential Information for any purpose other than for the Approved Purpose.
- (No Project obligations) Unless and until a final definitive agreement regarding the Project has been executed and delivered, neither Party (nor any of its Affiliates) will be under any legal obligation of any kind whatsoever with respect to the Project by virtue of this Agreement except for the rights and obligations contained in this Agreement.
- (Severability) The validity or enforceability of any clause of this Agreement will not affect the validity of the other provisions of this Agreement. The same applies if this Agreement contains any omissions. In lieu of the invalid or unenforceable provision or in order to complete any omission, a fair provision shall apply which, to the extent legally permissible, comes as close as possible to what the Parties had intended or would have intended, according to the spirit and purpose of this Agreement if they had considered the matter at the time this agreement was executed.
- (Variation) Modifications or waivers of this Agreement will only be effective if made in writing and signed by both Parties.
- (Assignment) Neither Party may assign, novate or otherwise transfer its rights and obligations under this Agreement without the consent of the other Party.
- (Third Party Rights) A person who is not a party to this Agreement has no right under the Agreement (Rights of Third Parties) to enforce any term of this Agreement but that does not affect any right or remedy, of a third party.
- (Counterparts) This Agreement may be executed in counterparts including English and Vietnamese, each of which together shall constitute one and the same Agreement. In the event of any difference or inconsistency between English and Vietnamese, the English will prevail.
- (Governing law) This Agreement is subject to the laws of Vietnam. The competent courts of Ho Chi Minh City shall have exclusive jurisdiction for disputes arising from or related to this Agreement.