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Confidential Disclosure Agreement (sample)
|THIS CONFIDENTIAL DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into as of the ____th day of _____________ 201_ (the “Effective Date”), by and between ____________________________________________________________ legal entity duly established and operating under the legislation of ______________________, having offices at ___________________________________________________________________ (“Discloser”) and LLC “Pharegis” (ООО «Фареджис»), a legal entity duly established and operating under the legislation of the Russian federation, with its registered office at 11A-11 Cherkizovskaya B. str., Moscow, Russia 107392 (“Recipient”), further together to be referred to as “Parties”.
|1. Definition of Confidential Information; Purpose of Disclosure.
|(a) As used herein, the term “Recipient Confidential Information” means any and all information that may be disclosed or may have been disclosed by Recipient or any of its affiliates, in connection with the Purpose, including but not limited to know-how and data, whether oral, written, graphical or in any other form.
|(b) As used herein, the term “Discloser Confidential Information” means any and all information marked as “Confidential” that is disclosed by Discloser to Recipient on or after the Effective Date, in connection with the Purpose, including know-how and data, whether oral, written, graphical or in any other form. Recipient Confidential Information and Discloser Confidential Information are sometimes hereinafter collectively referred to as the “Confidential Information.”
|(c) The Confidential Information is being disclosed between the parties hereto for the purpose of evaluation and discussion relating to a possible and already existing business relationship (the “Purpose”).
|Confidential Information does not include any portion of the Confidential Information of the other party hereto which:
|(a) at the time of disclosure is in the public domain;
|(b) after disclosure hereunder enters the public domain, except through breach of this Agreement by the recipient;
|(c) the recipient can demonstrate by its written records was in the recipient’s possession prior to the time of disclosure by or on behalf of the disclosing party hereunder, and was not acquired directly or indirectly from the disclosing party;
|(d) becomes available to the recipient from a third party which, to the knowledge of the recipient, is not legally prohibited from disclosing such Confidential Information; or
|(e) the recipient can demonstrate by its written records was developed by or for the recipient independently of the disclosure of Confidential Information by the disclosing party or its affiliates.
|In case any portion of Confidential Information becomes or shall be considered as Excluded Information, Discloser shall notify the Recipient in writing not later than 2 (two) business days upon becoming aware of such event.
|3. Maintenance of Confidentiality; Nonuse Obligations.
|(a) The Confidential Information shall be kept strictly confidential by the recipient and, except as otherwise permitted herein, shall not be disclosed to any third party by the recipient in any manner whatsoever, in whole or in part, without first obtaining the disclosing party’s prior written consent to such disclosure. The standard of care required of the recipient in protecting the confidentiality of the disclosing party’s Confidential Information shall be the same standard of care that the recipient uses in protecting its own confidential information of a similar nature, which shall be at least a reasonable standard of care. The recipient may disclose the disclosing party’s Confidential Information only to the recipient’s officers, employees, agents or consultants (collectively, the “Permitted Recipients”) on a need-to-know basis, provided that the Permitted Recipients have agreed to obligations which are not less stringent than the obligations set forth herein.
|(b) The Confidential Information shall not be used by the recipient except as permitted herein, without first obtaining the disclosing party’s prior written consent to such use or without first entering into a separate written agreement permitting such use duly executed by authorized representatives of the parties hereto.
|4. Notification of Mandatory Disclosure.
|(a) Notwithstanding any provision herein to the contrary, in the event that any party receiving Confidential Information hereafter becomes obligated by mandatory applicable law, regulatory rule or judicial or administrative order to disclose the Confidential Information or any portion thereof, to any governmental authority or court, the receiving party shall promptly notify the disclosing party in writing thereof of each such requirement and identify the Confidential Information so required thereby, so that the disclosing party may seek an appropriate protective order or other remedy with respect to narrowing the scope of such requirement and/or waive compliance by the recipient with the provisions of this Agreement.
|(b) If, in the absence of such protective order or other remedy, the receiving party is nonetheless required by mandatory applicable law to disclose any part of the Confidential Information which is disclosed to it hereunder to any governmental authority or court, the receiving party may disclose such Confidential Information without liability hereunder, provided, that, the receiving party shall furnish only such portion of the Confidential Information which is legally required to be disclosed and only to the extent required by law.
|5.Term of Obligations.
|All obligations under this Agreement shall expire seven (7) years after the Effective Date.
|6.Ownership; No Licenses.
|All Recipient Confidential Information is and shall remain the property of Recipient. All Discloser Confidential Information is and shall remain the property of Discloser. Neither this Agreement nor any disclosure hereunder shall be deemed, by implication, estoppel or otherwise, to vest in the recipient any license or other ownership rights to the Confidential Information or under any Confidential Information or inventions, patents, know-how, trade secrets, trademarks or copyrights owned or controlled by the disclosing party if not otherwise stated in the agreement entered by the Parties.
|7.Return of Confidential Information.
|Upon completion of the aforesaid Purpose and in the absence of any further agreement between the parties, Recipient and Discloser each shall cease all use and make no further use of the Confidential Information and shall, upon written request from the disclosing party, promptly return to the other party all of the Confidential Information which is in tangible form. In case Confidential Information is provided in intangible form, one Party upon receipt of written request from the other Party shall at its own expense return, destroy, erase or make the Confidential Information inaccessible by other means.
|Notwithstanding the obligations set forth herein regarding confidentiality and use of Confidential Information, either party hereto may disclose any Confidential Information which is disclosed to it hereunder to any of its affiliates, provided that such affiliate has agreed to be bound by the terms hereof.
|9. No Publicity.
|No oral or written release of any statement, information, advertisement, press release or publicity matter having any reference to either party, express or implied, shall be used by the other party or on the other party’s behalf, unless and until such matter shall have first been submitted to and received the approval in writing of the party whose name is being used.
|10.No Other Obligation.
|Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement relating to any of the Confidential Information or as the grant of a license to Recipient or Discloser to use the other's Confidential Information other than for the Purpose if not otherwise stated in the agreement entered by the Parties.
|11.Remedies for Breach.
|Both parties hereto agree that should this Agreement be breached, the non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance or money damages as a remedy for any breach of this Agreement.
|This Agreement shall not be assigned by either party hereto without the prior written consent of the other party hereto, which consent may be withheld in either party’s sole discretion, and any purported assignment without such consent shall be void.
|If any provision of this Agreement or the application thereof in any particular circumstance is held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provision hereof. This Agreement shall, in such circumstances, be deemed modified to the extent necessary to render enforceable the provisions hereof to the fullest extent permitted by law.
|14.Entire Agreement; Amendments; Waiver.
|This Agreement contains the entire understanding between the parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral communications, negotiations, understandings or agreements of any kind with respect to such subject matter. No waiver, amendment or modification of this Agreement shall be effective unless made or agreed to in a written agreement that explicitly refers to this Agreement that is signed by authorized representatives of both parties hereto. Failure by either party hereto to enforce any rights under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party hereto in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances.
Any notice given under this Agreement shall be in writing and sent or delivered to the following addresses of the recipient party:
LLC “Pharegis” / ООО «Фареджис»
Phone: +7 495 109 88 08
The notice will be deemed received by facsimile transmission when sent and a satisfactory transmission report has been generated; or by hand (including courier), in which case it will be deemed received when delivered; or by pre-paid first class post or recorded delivery post, in which case it will be deemed received seven working days after posting. Also, the Parties may utilize electronic mails in which case the date of the read confirmation letter should be regarded as the date of the electronic mail receipt by the recipient party.
|16.Governing Law; Counterparts.
|This Agreement shall be governed by and construed in accordance with the laws of Russia, without regard to principles of conflicts of laws applicable in such jurisdiction. This Agreement and any amendment hereto may be executed in counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
|IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
SIGNED for and on behalf of the Recipient
SIGNED for and on behalf of Discloser