Non Disclosure Agreement
PERJANJIAN KERAHASIAAN
Non Disclosure Agreement
This
CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of ___________ ,
2011, is made by and between ___________________ Ltd , a company incorporated
under the laws of _________________________________________and having its office located at
________________________ ( “Company” and “Recipient”) and PT. Prima Inti Karsa
Abadi (PIKA), a company incorporated under the laws of
Indonesia, and having its registered office at Jalan Balai
Pustaka Timur No. 39, Rawamangun, Jakarta 13220 - Indonesia. (“Company” and “Recipient”),
(each of Company and Recipient may be referred to herein as a “Party”
and collectively as the “Parties”).
RECITALS
WHEREAS,
Recipient wishes to receive and review certain Confidential Information (as
defined herein) about the Company, its subsidiaries and their respective
businesses for the purpose of evaluating a possible Fund Distribution agreement
(the "Proposed Transaction"); and
WHEREAS,
in consideration of Recipient being supplied with Confidential Information,
Recipient is willing to give the undertakings contained in this Agreement and,
in consideration of such undertakings, the Company is willing to provide
Recipient with such Confidential Information upon the terms and conditions of
this Agreement;
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual agreements and covenants herein
contained, the Parties, intending to be legally bound, hereby agree as follows:
1. Confidential Information. For purposes of this
Agreement, the term “Confidential Information” shall mean all
information relating to the Company or any Associated Entity and their
businesses, whether in oral, written, visual, electronic or digital form,
prepared by the Company or any member of its Group or any of their respective
Representatives or Advisers and that is disclosed to Recipient by the Company
or any member of its Group or any of their respective Representatives or
Advisers whether before or after this Agreement is entered into, for the
purpose of considering, advising in relation to or furthering the Proposed
Transaction (and any information or analysis derived from such information). The
term "Confidential Information" does not include information which
(i) is already in Recipient’s possession; or (ii) was or becomes generally
available to the public other than as a result of a disclosure by Recipient or
Recipient’s Representatives in violation of this Agreement; or (iii) was or
becomes available to Recipient on a non-confidential basis from any source;
provided that such source is not known by Recipient after reasonable inquiry to
be bound by a confidentiality agreement with or other obligation of secrecy to
the Company or any member of its Group; or (iv) is generated independently by
Recipient or any of Recipient’s Representatives without reference to
Confidential Information.
For
the purposes of this Agreement an "Associated Entity" of the
Company means any company in which the Company has or acquires a direct or
indirect shareholding and any person (including an individual, body corporate,
unincorporated association, trust or partnership) which is a direct or indirect
shareholder in the Company; "Advisers", in relation to any
person, means professional advisers advising it in relation to the Proposed
Transaction, including partners in and directors and employees of such
advisers; "Group" , in relation to any person, means any
corporations which are holding companies or subsidiaries of it or of any such
holding company; and "Representative" in relation to any
person, means the directors, officers, employees agents and consultants of, and
individuals seconded to work for, it or other companies within its Group.
2. Confidentiality. Recipient shall, and shall
procure that the members of its Group and its Representatives and Advisers
shall, keep all Confidential Information confidential and shall not disclose
any Confidential Information to any person or entity including the affiliates
and subsidiaries of the Recipient for any reason whatsoever other than to a
limited number of its Representatives of the Recipient who actually need to
have knowledge of the Confidential Information, without the express prior
written consent of the Company; provided, however, that any of such information
may be disclosed as required by law or regulation so long as Recipient complies
with the provisions of the following paragraph.
Recipient
agrees that it shall receive, protect and maintain the Confidential Information
in the strictest confidence. Recipient agrees to treat the Confidential
Information as confidential and prior to the disclosure of Confidential
Information to a Representative, member of its Group and/or Advisers, the
Recipient shall procure that its Representative shall agree to be bound by this
Agreement; Recipient will, in any event, be responsible for any breach by the
Recipient Representatives, members of the Group and/ or Advisers of the obligations
contained in this Agreement.
The
Recipient agrees not to disclose and will direct its Representatives, members
of the Group and/ or Advisers not to disclose to any other person, either the
fact that discussions or negotiations are taking place or any information
concerning the Proposed Transaction including the status thereof. In
particular, the Recipient acknowledges and confirms that it will not approach
or engage in any communication with any bankers, advisors, suppliers, customers
of the other party or any employees of the other party regarding the
Confidential Information without first obtaining the prior written consent of
the other party;
3. Limited Use of Confidential
Information.
Recipient shall, and shall procure that the members of its Group and its
Representatives and Advisers shall, only use Confidential Information for the
specific purpose of evaluating the Proposed Transaction with the Company and
shall not use Confidential Information for any other purpose. If Recipient or
any of Recipient’s Representatives or Advisers is requested or required (by
oral question or request for information or documents in legal proceedings,
interrogators, subpoena, civil investigative demand or similar process) to
disclose any information supplied to Recipient in the course of its dealings
with the Company, it is agreed that Recipient shall and shall procure that the
members of its Group and its Representatives and Advisers shall, to the extent
reasonably practicable, provide the Company with reasonable notice of any such
request or requirement so that either Recipient or the Company or both may seek
an appropriate protective order or, by mutual agreement, waive Recipient’s
compliance with the provisions of this Agreement. It is further agreed that, if
in the absence of a protective order or the receipt of a waiver hereunder
Recipient or any of Recipient’s Representatives or Advisers believes, after
consultation with counsel, that it is required to disclose Confidential
Information or any part of thereof to any tribunal, regulatory agency,
self-regulatory organization or stock exchange, Recipient or any of Recipient’s
Representatives may disclose such information to such tribunal regulatory
agency, self-regulatory organization or stock exchange; provided, (i) that
Recipient gives the Company written notice of the information to be disclosed
as far in advance of its disclosure as is reasonably practicable and, upon the
Company's request and at the Company's expense, use Recipient’s commercially
reasonable efforts to cooperate in obtaining assurances that confidential
treatment will be accorded to such information; and (ii) only that portion of
Confidential Information which is legally required to be disclosed will be
disclosed. In any event, Recipient shall not, and shall procure that the
members of its Group and its Representatives and Advisers shall not, oppose
action by, and will cooperate with the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will
be accorded to such information.
4. Ownership of Confidential
Information; Return or Destruction of Confidential Information. All Confidential
Information shall be and remain the property of the Company. Upon the request
of the Company, all Confidential Information (including any copies thereof),
shall be, at Recipient’s option, (a) promptly returned by Recipient to the
Company, to the extent such Confidential Information is capable of being
returned or (b) destroyed by Recipient, to the extent such Confidential Information
is capable of being destroyed, and Recipient shall certify to the Company in
writing that such Confidential Information (including all copies thereof) has
been destroyed; provided, that where Recipient is required by any law,
regulation or governmental or regulatory body to retain any documents and
materials (or copies thereof) containing the Confidential Information, it must
notify the Company in writing of such retention giving details of the
information which it has been required to retain.
5. No License. Nothing contained in this
Agreement shall be construed as granting or conferring upon Recipient, the
members of its Group, its Representatives or Advisers any rights by license or
otherwise, expressly, impliedly, or otherwise for any invention, discovery or
improvement made, conceived, or acquired by the Company prior to, on or after
the date of this Agreement.
6. Disclosure of Agreement. The Company and Recipient
shall not, and Recipient shall procure that the members of its Group and its
Representatives and Advisers shall not, publicly announce or disclose the
existence of this Agreement or its terms and conditions, advertise or release
any publicity regarding this Agreement, or disclose that the Parties are
considering the Proposed Transaction without the prior written consent of the
non-disclosing Party.
7. Non Circumvention. The company or any
associated entity or individual shall not enter into a Transaction directly or
indirectly with any third party or parties introduced by either party, either
electronically or by mail to the company, without the prior written consent of
either party whether a transaction started by the parties completes or not.
The
Parties hereby irrevocably agree that neither shall directly or indirectly
interfere with, circumvent or attempt to circumvent each other’s interest or
the interest or relationship between the Parties and third parties to change,
increase or avoid directly or indirectly payment of established fees or
commission as long as assets introduced by either party remain in existence.
In
the event of circumvention either directly or indirectly, the circumvented
party shall be entitled to compensation, such compensation being equal to any
commission or fees the party would have been entitled to had the circumvention
not occurred.
8. Successor and Assigns. This Agreement shall
inure to the benefit of and be binding on the Parties and their respective
successors, permitted assigns and legal representatives.
9. Agency: Recipient represents and
warrants that it is acting in its capacity as principal on its own account and
not as agent or broker for any other person.
10. No Warranty: Recipient accepts that,
other than expressly provided in writing in any agreement subsequently entered
into by the Company with Recipient in connection with the Proposed Transaction,
the Company gives no representation or warranty as to the truth, accuracy or
completeness of any Confidential Information and that the Company will not be
liable to Recipient in respect of any Confidential Information or its use.
11. Remedies. Recipient agrees and
acknowledges that because of the valuable and often sensitive nature of the
Confidential Information, damages would not be an adequate remedy for a breach
of any term of this agreement and Recipient, therefore, Recipient agrees that
the Company is entitled in addition to its other rights and remedies under this
Agreement and Applicable Law, to the remedies of injunction, specific
performance and other equitable relief for a threatened or actual breach of any
term of this Agreement by Recipient or any of its Representatives without proof
of actual or special damage.
Recipient
agrees to indemnify the Company on demand and hold the Company harmless against
all costs, losses or expenses which the Company incurs resulting from any
breach or non- performance by Recipient or its Representatives, members of its
Group and/ or Advisers of any of the terms of this Agreement.
12. No Formal Business
Relationship.
This Agreement will not and does not create a joint venture, partnership or
other formal business relationship or entity of any kind, or an obligation to
form any such relationship or entity, between the Parties. Recipient and the
Company agree that, unless and until a definitive agreement between the Company
and Recipient with respect to any Proposed Transaction has been executed and
delivered, neither the Company nor Recipient will be under any legal obligation
of any kind whatsoever with respect to any such Proposed Transaction by virtue
of this or any written or oral expression with respect to any such Proposed
Transaction except, in the case of this Agreement, for the matters specifically
agreed to herein. Recipient and the Company further agree that this Agreement
does not impose any obligation on the Parties to agree to the Proposed
Transaction or any other relationship now or in the future. The agreements set
forth in this paragraph may be modified or waived only by a separate writing
executed by both the Company and Recipient expressly modifying or waiving such
agreement. The undertakings given by Recipient under this Agreement are given
to the Company and (without implying any fiduciary obligations on the Company’s
part) are also given for the benefit of the Company and each other member of the
Group.
13. No Waiver. A waiver by the Company
or the failure of the Company to claim a breach of any provision of this
Agreement shall not be deemed to constitute a waiver or estoppel with respect
to any subsequent breach of any provision hereof.
14. Severability. If any portion of this
Agreement shall be judicially declared to be invalid, unenforceable or void,
such decision shall not have the effect of invalidating or voiding the
remainder of this Agreement, and the part or parts of this Agreement so held to
be invalid, unenforceable or void will be deemed to have been stricken herefrom
and the remainder will have the same force and effectiveness as if such part or
parts had never been included herein.
15. Term. Recipient’s obligations
under this Agreement shall terminate _______________, 1 year from the date
hereof.
16. Amendments. Any amendment or
modification to this Agreement shall be effective only if made in a written
instrument and signed by both Parties.
17. Notices: Notices under this
Agreement shall be in writing and in the English language, or if not in the
English language, accompanied by a properly prepared translation into the
English language and signed by or on behalf of the person giving it and shall
be served by delivering it to the party due to receive it at the address above
or email set out in this clause and shall be deemed to have been delivered in
accordance with this clause.
____________________________________
____________________________________
or
such other address or email as the relevant Party notifies to the other Party,
which change of address shall only take effect if delivered and received in
accordance with this clause. A notice so addressed shall be deemed to have been
received; (i) if personally delivered, at the time of delivery; (ii) if sent by
pre-paid first class post, recorded delivery or registered post, three business
days after the date of posting to the relevant address; (iii) if sent by
registered air-mail, five business days after the date of posting to the
relevant address; (iv) if sent by fax, on successful completion of its
transmission as per a transmission report from the machine from which the fax
was sent; (v) by email on receipt or reply. For the purposes of this Agreement
a "business day" means a day on which banks are generally open
for business in the Cayman Islands.
18. Choice of Law. This
Agreement shall be governed by and construed in accordance with the law of
Singapore.
19. Jurisdiction. The parties to this
Agreement irrevocably agree that the courts of the Cayman Islands shall have
exclusive jurisdiction to decide and to settle any dispute or claim arising out
of or in connection with this Agreement ("Proceedings").
20. No Assignment. Neither this Agreement
nor any of the rights, benefits or obligations hereunder may be assigned or
delegated by Recipient (whether by operation of law or otherwise) without the
prior written consent of the Company.
21. Captions. The captions and headings
in this Agreement have been inserted for convenience only and shall be given no
substantive meaning or significance whatsoever in construing the terms and
provisions of this Agreement.
22. Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
23. Entire Agreement. This Agreement constitutes
the entire agreement between the Parties with respect to the subject matter
addressed herein.
The
Parties have executed this Agreement as of the date first written above.
By:
Name: ____________________________________
Title: Chairman / CEO
By: ___________________________________
Name:____________________________________
Title: CEO
Sumber : http://notarisbogor.blogspot.com
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