Nondisclosure Agreement A & B
Nondisclosure Agreement A & B
Nondisclosure Agreement A & B
THIS AGREEMENT (the "Agreement”) is entered into on the 15th day of February by and between A,
located at 402-409, 4th Floor, Square One Mall, Saket District Centre, New Delhi-110017 ( the”
Disclosing Party”), and B with an address at The Grand Plaza, Plot No.2, Nelson Mandela Road, Vasant
Kunj - Phase -II, New Delhi - 110070 (the “Receiving Party”).
#886871 2
Notwithstanding anything in the foregoing to the contrary, the Receiving Party may
disclose Confidential Information pursuant to any governmental, judicial, or administrative order,
subpoena, discovery request, regulatory request or similar method, provided that the Receiving Party
promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure
so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective
order or other appropriate remedy to preserve the confidentiality of the Confidential Information;
provided that the Receiving Party will disclose only that portion of the requested Confidential
Information that, in the written opinion of its legal counsel, it is required to disclose. The Receiving Party
agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the Disclosing
Party with respect to any such request for a protective order or other relief. Notwithstanding the
foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Receiving
Party is legally requested or required to disclose such Confidential Information, disclosure of such
Confidential Information may be made without liability.
5. Term.
This Agreement shall remain in effect for a two-year term (subject to a one year extension if the parties
are still discussing and considering the Transaction at the end of the second year). Notwithstanding the
foregoing, the Receiving Party’s duty to hold in confidence Confidential Information that was disclosed
during term shall remain in effect indefinitely.
6. Remedies.
Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and
valuable character, and that the unauthorized dissemination of the Confidential Information would destroy
or diminish the value of such information. The damages to Disclosing Party that would result from the
unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore,
both parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the
dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall
be in addition to any other remedies available hereunder, whether at law or in equity. Disclosing Party
shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining
any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorney’s fees and expenses.
7. Return of Confidential Information.
Receiving Party shall immediately return and redeliver to Disclosing Party all tangible material
embodying any Confidential Information provided hereunder and all notes, summaries, memoranda,
drawings, manuals, records, excerpts or derivative information deriving therefrom, and all other
documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have
been converted to computerized media in the form of image, data, word processing, or other types of files
either manually or by image capture) based on or including any Confidential Information, in whatever
form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between
the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as the
Disclosing Party may so request; provided however that the Receiving Party may retain such of its
documents as is necessary to enable it to comply with its reasonable document retention policies.
Alternatively, the Receiving Party, with the written consent of the Disclosing Party may (or in the case of
Notes, at the Receiving Party’s option) immediately destroy any of the foregoing embodying Confidential
Information (or the reasonably nonrecoverable data erasure of computerized data) and, upon request,
#886871 3
certify in writing such destruction by an authorized officer of the Receiving Party supervising the
destruction).
8. Notice of Breach.
Receiving Party shall notify the Disclosing Party immediately upon discovery of, or suspicion of, (1) any
unauthorized use or disclosure of Confidential Information by Receiving Party or its Representatives; or
(2) any actions by Receiving Party or its Representatives inconsistent with their respective obligations
under this Agreement, Receiving Party shall cooperate with any and all efforts of the Disclosing Party to
help the Disclosing Party regain possession of Confidential Information and prevent its further
unauthorized use.
9. No Binding Agreement for Transaction.
The parties agree that neither party will be under any legal obligation of any kind whatsoever with respect
to a Transaction by virtue of this Agreement, except for the matters specifically agreed to herein. The
parties further acknowledge and agree that they each reserve the right, in their sole and absolute
discretion, to reject any and all proposals and to terminate discussions and negotiations with respect to a
Transaction at any time. This Agreement does not create a joint venture or partnership between the
parties. If a Transaction goes forward, the non-disclosure provisions of any applicable transaction
documents entered into between the parties (or their respective affiliates) for the Transaction shall
supersede this Agreement. In the event such provision is not provided for in said transaction documents,
this Agreement shall control.
10. Warranty.
NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS
AGREEMENT WHATSOEVER. The parties acknowledge that although they shall each endeavor to
include in the Confidential Information all information that they each believe relevant for the purpose of
the evaluation of a Transaction, the parties understand that no representation or warranty as to the
accuracy or completeness of the Confidential Information is being made by the Disclosing Party. Further,
neither party is under any obligation under this Agreement to disclose any Confidential Information it
chooses not to disclose. The Disclosing Party shall have no liability to the Receiving Party (or any other person
or entity) resulting from the use of the Disclosing Party's Confidential Information or any reliance on the accuracy or
completeness thereof.
11. Miscellaneous.
(a) This Agreement constitutes the entire understanding between the parties and
supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written,
between the parties, with respect to the subject matter hereof. This Agreement can only be modified by a
written amendment signed by the party against whom enforcement of such modification is sought.
(b) The validity, construction and performance of this Agreement shall be governed
and construed in accordance with the laws of NCT Delhi (state) applicable to contracts made and to
be wholly performed within such state, without giving effect to any conflict of laws provisions thereof.
The Federal and state courts located in NCT Delhi (state) shall have sole and exclusive jurisdiction over
any disputes arising under, or in any way connected with or related to, the
#886871 4
terms of this Agreement and Receiving Party: (i) consents to personal jurisdiction therein; and (ii) waives
the right to raise forum non conveniens or any similar objection.
(c) Any failure by either party to enforce the other party’s strict performance of any
provision of this Agreement will not constitute a waiver of its right to subsequently enforce such
provision or any other provision of this Agreement.
(d) Although the restrictions contained in this Agreement are considered by the
parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction
is found by a court of competent jurisdiction to be unenforceable, such provision will be modified,
rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it
cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect,
and the remainder of the Agreement will be enforced as if such provision was not included.
(e) Any notices or communications required or permitted to be given hereunder may
be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed
by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party
first indicated above (or such other addressee as may be furnished by a party in accordance with this
paragraph). All such notices or communications shall be deemed to have been given and received (a) in
the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by
a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case
of mailing, on the seventh business day following such mailing.
(f) This Agreement is personal in nature, and neither party may directly or indirectly
assign or transfer it by operation of law or otherwise without the prior written consent of the other party,
which consent will not be unreasonably withheld. All obligations contained in this Agreement shall
extend to and be binding upon the parties to this Agreement and their respective successors, assigns and
designees.
(g) The receipt of Confidential Information pursuant to this Agreement will not
prevent or in any way limit either party from: (i) developing, making or marketing products or services
that are or may be competitive with the products or services of the other; or (ii) providing products or
services to others who compete with the other.
(h) Paragraph headings used in this Agreement are for reference only and shall not
be used or relied upon in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
By A By B
Name: Mr. Raj Khanna Name: Ms. Riya Virmani
Title: Vice President Title: President
#886871 5