CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
The Undersigned of the order form - The Company hereby agrees to which expression shall unless repugnant to its context or meaning thereof shall deemed to include its Authorized Signatory, Authorized Representative, Directors, Legal Heirs, Administrators, Successors and Permitted Assigns thereof) of the First PART;
Watch Your Health.com India Private Limited, A Company incorporated under the Companies Act, 1956 bearing its CIN No. U85100MH2015PTC266803.) and having Address at Office No. 103, Lodha Supremus, Road No. 22, Wagle Estate, Thane – 400604 (hereinafter called and referred to as “the Supplier” which expression shall unless repugnant to its context or meaning thereof shall deemed to include its Authorized Signatory, Authorized Representative, Directors, Legal Heirs, Administrators, Successors and Permitted Assigns thereof) of the SECOND PART;
The Company and the Supplier hereinafter collectively referred to as “Parties” and individually as “Party”.
(A) In connection with the current, proposed and future business relationship(s) between the Parties (the “Proposed Business”), Company and Supplier may receive or otherwise have access to certain proprietary, secret or confidential information of the other Party. As a condition to receiving or accessing such proprietary, secret or confidential information, each Party agrees that the following terms shall apply when a party receives or accesses such proprietary, secret or confidential information of the other.
(B) The Party disclosing information shall hereinafter be referred to as the "Disclosing Party" and the Party receiving such information shall hereinafter be referred to as the "Receiving Party".
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the Parties agree as follows:-
1. CONFIDENTIAL INFORMATION
This Agreement shall apply to all communications between the Parties relating to the Proposed & Existing Business, information, knowledge, data, drawings, know-how, analyses, computations, compilations, interface specifications, studies, ideas, software programs, customers names, trade secrets and other materials relating to the Disclosing Party and/or its affiliate(s) and/or its business partner(s) disclosed or communicated or to be disclosed or to be communicated by the Disclosing Party to the Receiving Party or prepared by the Receiving Party from or in connection with any of the above information, or which contain or are based in whole or in part upon such information. Such information collectively shall be referred to in this Agreement as the "Confidential Information". Notwithstanding any provision herein, Confidential Information can be in tangible or intangible form, including without limitation, in writing, oral, electronic or other machine-readable form.
2. DISCLOSURE OF INFORMATION
2.1 The Confidential Information shall be used by the Receiving Party solely for the purpose of considering, evaluating, advising on or furthering the Proposed or Existing Business. The Receiving Party shall not utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any other purposes.
2.2 The Parties acknowledge that the Confidential Information is a valuable, special and unique asset belonging to the Disclosing Party and/or its affiliate(s) and/or its business partner(s) and agree that they shall not disclose the Confidential Information of the other Party in whole or in part to any person, firm, corporation, association or any other entity for any reason or purpose whatsoever without the prior written consent of the other Party.
2.3 Notwithstanding the above, the Parties agree that the Confidential Information may be disclosed by the Receiving Party to its shareholders, directors, officers, employees, and professional advisors, agents and consultants (the “Third Parties”) who are directly concerned with the appraisal and evaluation of the Proposed or Existing Business and who have agreed to keep the Confidential Information confidential. The Receiving Party shall instruct the companies or firms comprised in the Third Parties that access to the Confidential Information should be made available exclusively to those of their directors, partners, officers and employees who have a need to know and shall inform each such director, partner, officer or employee of the confidential nature of the Confidential Information. The Receiving Party shall ensure that its professional advisors, agents and consultants that access to the Confidential Information sign an undertaking relating to confidentiality on the same terms as contained herein in favor of the Disclosing Party.
2.4 The provisions of Clauses 2.1, 2.2 and 2.3 shall not restrict any disclosure of the Confidential Information by the Receiving Party to satisfy a legally enforceable demand by a competent court of law, a governmental or regulatory body, or a stock exchange (the "Government Authorities"). However, in such circumstances, the Receiving Party shall advise the Disclosing Party prior to disclosure so that the Disclosing Party has an opportunity to defend, limit or protect against such production or disclosure and the Receiving Party shall disclose only that portion of the Confidential Information which is legally required to be disclosed. The Receiving Party shall use its reasonable endeavours to obtain a protective order or other reliable assurance from the Government Authorities that confidential treatment will be accorded to any Confidential Information which is required to be disclosed.
The Receiving Party acknowledges that all Confidential Information of the Disclosing Party is the property of the Disclosing Party and/or its affiliate(s) and/or its business partner(s) and the disclosure of the Confidential Information shall not be deemed to confer any right or licence to that Confidential Information on the Receiving Party.
4. STANDARD OF CARE
Each Party agrees that it 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 in any event not less than reasonable care and that the Confidential Information shall be stored and handled in such a way as to prevent unauthorised disclosure, use, modification, interference whatsoever. The Receiving Party shall, upon demand by the Disclosing Party, inform the Disclosing Party the location of the Confidential Information and the measures that the Receiving Party has taken to preserve its confidentiality.
5. RETURN OF CONFIDENTIAL INFORMATION
The Disclosing Party may demand in writing at any time that any Confidential Information disclosed to the Receiving Party or any of the Third Parties pursuant to the terms of this Agreement and any copies, studies, notes, memoranda, analyses and other records (whether in hard copy or otherwise) made which are based in whole or in part on the Confidential Information be returned, destroyed or deleted and that a certificate signed by a director of the Receiving Party be provided to the Disclosing Party certifying that such destruction or deletion has taken place and neither the Receiving Party nor any of the Third Parties will use, publish or distribute in whole or in part any such material. The Receiving Party shall comply within 7 days of receipt of such demand.
6. EXCLUDED INFORMATION
This Agreement shall not apply to any information which:
(a) is already in the possession of the Receiving Party prior to its disclosure to the Receiving Party;
(b) is or becomes publicly known or available otherwise than as a consequence of a breach of this Agreement;
(c) is developed independently by the Receiving Party otherwise than as a consequence of a breach of this Agreement;
(d) is disclosed to a third party pursuant to a written authorisation from the Disclosing Party; or
(e) is received from a third party without similar restrictions and without breach of this Agreement.
7. PUBLIC ANNOUNCEMENTS
The Parties agree to maintain in strict confidence and not to disclose publicly or to any third party the existence of the Existing or Proposed Business, the substance of any discussions or negotiations between the Parties in connection with said Business, the terms of any arrangements or agreements, or any other information relating thereto. The Parties also agree that they shall not, and shall not permit any of their respective affiliates, subsidiaries, persons, or other entities to make any disclosure or public announcements concerning or otherwise publicise the possibility of the Business taking place or the discussions connected in any way with the Business and/or any other business and operating plans, whether in the form of press release or otherwise, without first consulting with the other Party and obtaining the other Party's prior written consent.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each Party represents and warrants to the other that (i) it is a corporation duly organised and validly existing in the jurisdiction of its incorporation; and (ii) 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 further warrants that the Confidential Information has not been and will not be provided in breach of any other agreement with third parties.
8.2 Neither party is making any representation or warranty as to the accuracy or the completeness of the Confidential Information and the Disclosing Party shall not have any liability in contract, tort or otherwise resulting from the Receiving Party’s use of the Confidential Information or participating in the discussions and negotiations described herein.
9.1 The Parties agree that the Disclosing Party would be irreparably injured by a breach of this Agreement and that the Disclosing Party shall be entitled to equitable relief including injunction and specific performance in the event of any breach of the provisions of this Agreement by any person. 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 or in equity and no proof of special damages shall be necessary for the enforcement of the provisions of this Agreement.
10.1 This Agreement shall become effective on the date of its execution and remains in effect until there is a written agreement by the Parties terminating this Agreement. The obligation of confidentiality set out in this Agreement shall continue in force without limit in point in time.
11.1 Each Party to this Agreement shall execute and deliver such other documents and do such other acts and things as may be necessary or desirable to carry out the terms and purposes of this Agreement.
11.2 No amendment, interpretation or waiver of any of the provisions of this Agreement shall be effective unless made in writing and signed by the Parties hereto.
11.3 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. No waiver of any provision of this Agreement or any rights or obligations under this Agreement shall have any effect, except pursuant to a written instrument signed by the Party waiving compliance.
11.4 The headings in this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
11.5 This Agreement contains the entire agreement between 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.
11.6 All notices, demands or other communications under this Agreement shall be given or made in writing, and shall be delivered personally, or sent by registered mail or facsimile at the address and/or facsimile number designated by such Party from time to time for the purpose of this Agreement. Any notice, demand or other communication shall be deemed to have been received by the recipient, if delivered personally, at the time of delivery; if sent by mail, 2 business days after posting; and if sent by facsimile, upon successful transmission during normal business hours.
11.7 In the event any one or more of the provisions contained in this Agreement shall for any reason be 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.
11.8 Neither Party may assign, sub-license or otherwise transfer all or any part of its rights and obligations under this Agreement without the prior written consent of the other Party.
11.9 Unless and until a definitive agreement relating to the Existing or Proposed Business has been executed and delivered, none of the Parties shall be under any legal or other obligation of any kind whatsoever with respect to such Proposed Business by virtue of this or any written or oral expression with respect to the Proposed Business by any of their respective directors, officers, employees, agents, advisors or representatives.
11.10 This Agreement and the relationships of the Parties in connection with the subject matter of this Agreement shall be governed by and construed in accordance with the Indian laws and the Parties shall submit to the jurisdiction of the courts of Mumbai.
12. COUNTERING BRIBERY
12.1 In carrying out its responsibilities under this Agreement, the Parties hereby warrant that they shall comply with all laws, rules and regulations applicable to the performance of its obligations under this Agreement and applicable laws. Parties further warrant that neither they nor any of their direct or indirect subsidiaries, parent companies or other affiliates, including but not limited to the employees or consultants of any of the foregoing, shall pay, offer or promise to pay, or authorize the payment directly or indirectly of any monies or anything of value to any government official or employee, or any political party or candidate for political office for the purpose of influencing any act or decision of such official or of the government. By way of clarification, a government official or employee includes employees of regulatory bodies, employees or officials of public international organizations, employees of government-owned institutions such as hospitals and clinics, universities, public utilities, government-owned corporations, schools, convention centers and stadiums. In carrying out its responsibilities under this Agreement Parties hereby represent and warrant that no payments or transfers of anything of value shall be made which have the purpose or effect of unlawful public or commercial or acceptance of or acquiesce in extortion, kickbacks, or other unlawful or improper means of obtaining business.
12.2 Notwithstanding any provisions to the contrary, Parties may terminate this Agreement immediately with no liability if (1) Any party reasonably believes that the other Party has breached any of the representations and warranties contained in this Section. In no event shall Parties be obligated under this Agreement to take any action or omit to take any action that Company believes, in good faith, would cause it to be in violation of any applicable laws, including the U.S. Foreign Corrupt Practices Act and/or the Prevention of the Bribery Ordinance and Indian Laws.
13. COMPLIANCE WITH THE APPLICABLE LAWS IN RELATION TO THE PERSONAL DATA PROTECTION
The Parties herein agree to strictly comply with the requirements of Indian Laws in relation to data privacy protection in collecting, using, processing, handling and/or transferring of any of the Confidential Information which may contain any personal data. Each Party agrees to fully indemnify the other if there is any breach of any applicable laws in relation to data privacy protection in India by such Party.