M.O.U
THIS M.O.U is executed as of the 29 day of September, 2014 by and between, with an address of Lot 308 Avenue STEIMEZ, Cotonou, the (“Advisor”) and, with an address Dhaka Bangladesh of …………………, (the “Consultant”). The “Advisor” and the “Consultant” are collectively referred to herein as the “Parties” and each is referred to herein as a “Party.”
RECITALS
WHEREAS, in connection with the discussions between the Parties concerning the Investment Project Development (the “Opportunity”) between and Mr Mouhamad Khalifa (Investor), and XXX each Party may provide certain Confidential Information (as defined below) to the Other Party, and the Other Party may provide certain Confidential Information to the Company, and the Parties desire that such information be kept confidential by the Other Party and the Company.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. CONFIDENTIAL INFORMATION. For purposes of this M.O.U, the term “Confidential Information” shall include all types of proprietary, technical or business information, whether oral, written, electronic, magnetic or by other media, relating to either Party, including without limitation and especially regarding the inventions, technology, processes and other resources of the Other Party, which the Company has introduced to the Receiving Party subject to the terms and conditions of this M.O.U .
a. The term “Confidential Information” may include, without limitation, installation or equipment standards and documentation, data, know-how, formulas, processes, designs, sketches, schematics, photographs, plans, drawings, specifications, samples, reports, customer or distributor names or information, pricing information, market or marketing information, demographic information, software, prototypes, trade secrets, strategies, classified information, financial or tax information, business plans, research, transactions, analyses, costs, projections, requirements, inventions, intellectual property, or other types of nonpublic information relating to the Proposed Transaction and each Party. The term “Confidential Information” shall also be deemed to include the fact that oral and written discussions and exchanges of information concerning the Proposed Transaction have occurred and may continue.
b. Neither Party will, and will direct each of its respective representatives not to, disclose to any third party (i) the fact that discussions or negotiations are taking place concerning the Proposed Transaction; (ii) any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof or the termination of discussions or negotiations between the Parties; and (iii) that this M.O.U exists or that Confidential Information has been made available to either Party.
c. The receiving Party shall: (i) hold such Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to only those employees with a need to know (and advise those employees of the obligations assumed herein); (iii) not disclose such Confidential Information to any third party without prior written approval of the disclosing Party; (iv) not use any Confidential Information in the development of, or sale of, goods or services, without prior written approval of the disclosing Party; and (v) protect the Confidential Information from unauthorized use, disclosure or publication.
d. Each Party agrees to protect all Confidential Information disclosed to it by the other Party with at least the same degree of care as it normally exercises to protect its own proprietary information of a similar nature, and to use such Confidential Information only for the purpose of evaluating the Proposed Transaction.
e. These restrictions on the use or disclosure of Confidential Information shall not apply to any information:
i. which is independently developed by the receiving Party, its subsidiaries, divisions or affiliates or lawfully received free of restriction from another source having a right to furnish such Confidential Information; or
ii. after it has become generally available to the public without breach of this M.O.U by the receiving Party, its subsidiaries, divisions or affiliates; or
iii. which at the time of disclosure to the receiving Party was known to such Party, its subsidiaries, divisions or affiliates to be free of restriction as evidenced by documentation in such Party’s possession; or
iv. which the disclosing Party agrees in writing is free of such restrictions.
f. No license to a Party under any trademark, patent, copyright, mask work protection right or any other intellectual property right is either granted or implied by the conveying of Confidential Information to such Party. None of the Confidential Information which may be disclosed or exchanged by the Parties, shall constitute any representation, warranty, assurance, guarantee or inducement by either Party to the other of any kind, and, in particular with respect to the non-infringement of trademarks, patents, copyrights, mask work protection rights, or other rights of third person or of either Party. This M.O.U does not enlarge, diminish or affect the rights and obligations that either Party may have (or come to have) under any written agreement, or with respect to any patent or copyright.
g. Neither this M.O.U nor the disclosure or receipt of Confidential Information shall constitute or imply any promise or intention by either Party to enter into any agreement regarding the Proposed Transaction.
h. Neither this M.O.U nor the disclosure or receipt of Confidential Information shall constitute or imply any agency or partnership relationship between the Parties.
i. All Confidential Information furnished by the disclosing Party shall, at all times, remain the property of that Party. Upon written request of the disclosing Party, all physical records or other documentation containing such Confidential Information shall be promptly returned to the disclosing Party, together with all copies thereof. All electronic, magnetic or computer records of such Confidential Information shall be deleted by the receiving Party from any medium on which Confidential Information may have been recorded or stored by the receiving Party, including tapes and computer disks, if such medium is not returned to the disclosing Party upon request.
j. In the event that either Party hereto receives a request to disclose under the terms of a subpoena, order, civil investigative demand or similar process issued by a court of competent jurisdiction, or by a regulatory or governmental body, all or any part of the information contained in the Confidential Information, or the fact that the Confidential Information has been made available to either Party, that discussions or negotiations are taking place or have been terminated, or the status of such discussions or negotiations or any of the terms, conditions or other facts with respect to the possibility of the Proposed Transaction, each of the Parties hereto agrees to (i) immediately notify the other party of the existence, terms and circumstance surrounding such a request; (ii) consult with the other Party on the advisability of taking legal available steps to resist or narrow such request; and (iii) if disclosure of such information is required, furnish only that portion of the Confidential Information, or other requested information, which, in the written opinion of its counsel, the applicable Party is legally compelled to disclose and exercise reasonable efforts to limit the extent of any such required disclosure. Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit either Party or any one to whom either Party supplies the Confidential Information from disclosing any portion of the Confidential Information if required by law or upon request or demand of any governmental or regulating authority having jurisdiction over them.
2. NON-CIRCUMVENTION. The Parties agree that Confidential Information obtained from either of them (“Owner”) shall not be used for the enrichment, directly or indirectly, of the other Party or its affiliates (“Recipient”), without the express written consent of Owner. The Parties further agree that following the receipt of any Confidential Information from its Owner, the Recipient shall not contract or attempt to sell to, transact with or purchase from Owner-provided sources without the written permission from Owner unless (i) a business relationship between recipient and Owner-provided source predated this Agreement and (ii) Recipient can substantiate exchanges specific to the Owner-disclosed information between Recipient and the Owner-provided source prior to the date of the signing of this Agreement.
It is the expressed intent of the Parties that the Company freely and openly disclose and introduce potential and existing clients of Company to the Receiving Party knowing that this M.O.U prohibits the Receiving Party from using such introduction or disclosure of the Company’s Confidential Information to provide products or services to the disclosed or introduced clients of Company in such a manner as would intentionally circumvent the Company. It is further agreed that irreparable harm will result from such unauthorized circumvention by the Receiving Party and that injunctive relief may be sought by Company for a breach of this Section 2.
3. TERM. This M.O.U is effective as of the date first above written and shall remain in effect until the later of: (i) five (5) years after the date first written above; or (ii) one year after the expiration, termination or conclusion of any agreement or arrangement entered into between the Parties in respect of the Proposed Transaction, unless both Parties mutually agree in writing to an extension of its term. Either Party shall have the right to terminate this M.O.U upon thirty (30) calendar day’s written notice of one Party to the other. The rights and obligations of the Parties hereto with respect to Confidential Information received prior to any termination or expiration of this M.O.U, shall survive such expiration or termination.
This M.O.U constitutes the entire understanding between the Parties hereto as to the Confidential Information and merges all prior discussions between them relating to the subject matter hereof.
4. WAIVER/AMENDMENT. No waiver, amendment or modification of this M.O.U shall be valid or binding on the Parties unless made in writing and signed on behalf of each of the Parties by their respective duly authorized officers or representatives. However, the failure of a Party to insist on full compliance with any provision of this M.O.U in a particular instance shall not result in a waiver or relinquishment of any right or obligation herein, and shall not preclude it from requiring full compliance with any provision of this M.O.U thereafter.
5. HEADINGS; SEVERABILITY. If any provision of this M.O.U is held invalid or unenforceable, such provision shall thereupon be deemed modified only to the extent necessary to render the same valid or eliminated from this M.O.U, as the situation may require, and this M.O.U shall be enforced and construed as if such provision had been included herein as so modified in scope or applicability or not been included herein, as the case may be.
6. COUNTERPARTS. This M.O.U may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The Parties have agreed that faxed signature copies shall be legally binding upon them.
IN WITNESS WHEREOF, the Parties have executed this M.O.U as of the date first written above.
By:_____________________________ Signature By: ____________________________
Signature
Name: Mouhamad Khalifa
Name: XXX
Title: INVESTORS Title: FINANCIAL MANAGER
