SILTERRA MALAYSIA SDN. BHD.

NON DISCLOSURE AGREEMENT

 

  1. Purpose. Silterra and Vendor wish to explore a possible business opportunity of mutual interest in regard to Silterra’s business herein (hereinafter referred to as the “Relationship”) and explore the business Purpose, and the parties may disclose to one another certain confidential information in the course of such discussion and business. Parties wish to ensure that such Confidential Information (as further defined below) is protected from unauthorized use or disclosure. This Agreement is intended to allow the parties to discuss and evaluate the Relationship and Purpose while protecting each party’s Confidential Information (including Confidential Information previously disclosed to the other party) against unauthorized use or disclosure.

  2. Definition of Confidential Information. “Confidential Information” means any oral, written, graphic or machine‑readable information including, but not limited to, that which relates to business plans, technology, product plans, products, developments, inventions, processes, designs, drawings, formulae, markets, software (including source and object code), hardware configuration, agreements with third parties, services, customers, marketing or finances of the disclosing party, which Confidential Information is designated in writing to be confidential or proprietary or is reasonably understood to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure.

  3. Nondisclosure of Confidential Information

(a)        Silterra and Vendor each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out discussions concerning and the undertaking of the Relationship.  Neither party shall disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to carry out the discussions regarding the Relationship.  Each party has had or will have its directors, officers, employees, consultants and agents who have access to Confidential Information of the other party sign a nondisclosure agreement in content substantially similar to this Agreement. 

Each party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party or the public in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information.  Such measures shall include, but not be limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care.  Each party agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention.

(b)        Exceptions.  Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove:

(i)     was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party;

(ii)    was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;

(iii)   is disclosed with the prior written approval of the disclosing party;

(iv)   was independently developed by the receiving party without any use of the Confidential Information of the disclosing party and by employees of the receiving party who have not had access to the Confidential Information, as demonstrated by files created at the time of such independent development;

(v)    becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights;

(vi)   is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

  1. Return of Materials. Any materials or documents that have been furnished by one party to the other in connection with the Relationship shall be promptly returned by the receiving party, accompanied by all copies of such documentation, within ten (10) days after (a) the Relationship has been rejected or concluded or (b) the written request of the disclosing party.

  2. No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright, trade secret, design rights, mask work or other intellectual property right of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Relationship.

  3. Completeness of the Confidential Information. Each party to this Agreement makes no representation or warranty as to accuracy or completeness of the Confidential Information, or with respect to the use thereof by the other party. There is no representation or warranty expressed or implied by this Agreement regardless of any kind of representation or warranty may arise out of any applicable law.

  4. Term. The foregoing commitments of each party shall survive any termination of the Relationship between the parties, and shall continue for a period terminating on the later to occur of the date (a) five (5) years following the date of this Agreement or (b) three (3) years from the date on which Confidential Information is last disclosed under this Agreement.

  5. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, provided that Confidential Information of the disclosing party may not be assigned without the prior written consent of the disclosing party unless the assignee shall be the successor entity to the assignor upon the dissolution of the assignor in its present form.  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

  6. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.

  7. Independent Contractors. Silterra and Vendor are independent contractors, and nothing contained in this Agreement shall be construed to constitute Silterra and Vendor as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.

  8. Governing Law and Venue. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of Malaysia, and to submit to the exclusive jurisdiction and venue of the courts therein.

     
  9. Remedies. Silterra and Vendor each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the disclosing party and its business.  Silterra and Vendor each expressly agree that due to the unique nature of the disclosing party’s Confidential Information, monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of its covenants and agreements set forth in this Agreement.  Accordingly, Silterra and Vendor each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages.

  10. Amendment and Waiver. Any term of this Agreement may be amended by written agreement of Silterra and Vendor.  Any amendment or waiver affected in accordance with this Section shall be binding upon the parties and their respective successors and assigns.  Failure to enforce any provision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.

  11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

  12. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein.  Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.

  13. No Publicity. Neither Silterra nor Vendor shall, without the prior consent of the other party, disclose to any other person the fact that Confidential Information of the other party has been and/or may be disclosed under this Agreement, that discussions or negotiations are taking place between Silterra and Vendor, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the other party.

  14. Dispute Resolutions. All disputes, controversies or differences (the “Disputes”), which may arise between the Parties out of or in connection with this Agreement, shall be settled upon their mutual cooperation and consultation. However, the Disputes shall, if unable to be solved by mutual consultation, be finally settled by arbitration in accordance with the arbitration rules of the Kuala Lumpur International Arbitration Centre. The award thereof shall be final and binding upon the Parties and enforceable in the court of law.

  15. Compliance. Neither Silterra nor Vendor shall, directly or indirectly, participate in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from Malaysia that is subject to the Strategic Trade Act 2010 [STA 2010] of Malaysia or in any other activity subject to the STA 2010.

Parties agree that it is for the Vendor to take all necessary measures to ensure that it is not listed under STA 2010 RESTRICTED END-USER & PROHIBITED END-USERS or any activities towards Weapons Mass Destruction (“WMD”) and all its activities are meant for legitimate business only.

Each party to this Agreement further warrants that each of them have the right to make disclosures of the Confidential Information under this Agreement, and that they complied with any applicable export control laws, rules and regulations, restrictions and directives of their own respective country.

 

 

This is a computer generated Non Disclosure Agreement. No signature is required