NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
A. Jumppoint Logistics Technologies Limited, whose registered office is at Unit 1, 5th Floor, Midas Plaza, 1 Tai Yau Street, San Po Kong, Kowloon, Hong Kong (“Jumppoint”, “Disclosing Party”); and
B. You, as the “Receiving Party”, together with Jumppoint, the “Parties”
WHEREAS the Disclosing Party agreed to disclose to Receiving Party certain information relating to her respective businesses, products, services, technological design, contacts, sources of funding, transaction history, work in progress and potential opportunities (“Confidential Information”) in order to facilitate the development of joint business endeavours
IT IS HEREBY AGREED AS FOLLOWS:
“Business Day” means any day on which Hong Kong clearing banks are open for business;
“Confidential Information” means all Information (written, oral, visual, magnetic, digital or electronic) which is made available to the Receiving Party or their advisers by or on behalf of the Disclosing Party (whether before or after the date of this agreement) including all information acquired by observation by the Receiving Party or its agents or advisers at the office or other premises of the Disclosing Party; all notes, reports, analyses, documents and material prepared by the Receiving Party based on, incorporating or reflecting any such Information; the identity of the Disclosing Party; the provisions or existence of this agreement and the negotiations relating to it but excludes information which:
a. is or becomes publicly available (other than contrary to the terms of this agreement or of any obligation of confidence owed by the Receiving Party to the Disclosing Party); or
b. was in the lawful possession of the Receiving Party prior to disclosure by the Disclosing Party under the terms of this agreement free of any restriction as to its use or disclosure (as can be demonstrated by the Receiving Party’s written records or other reasonable evidence); or
c. was subsequently disclosed to the Receiving Party lawfully by a third party who did not obtain the same (whether directly or indirectly) from the Disclosing Party free of any restriction as to its use or disclosure, (as can be demonstrated by the Receiving Party’s written records or other reasonable evidence) or is not in breach of any duty of confidentiality imposed on such third party;
1.1. In this agreement:
1.1.1. references to a “person” include an individual, body corporate (wherever incorporated), unincorporated association, trust or partnership (whether or not having separate legal personality), government, state or agency of a state, or two or more of the foregoing;
1.1.2. references to a paragraph are to a paragraph of this agreement;
1.1.3. the headings in this agreement do not affect its construction or interpretation;
1.1.4. references to a statute or a statutory provision include references to such statute or statutory provision as amended or re-enacted whether before or after the date of this agreement and include all subordinate legislation made under the relevant statute whether before or after the date of this agreement save where that amendment or re-enactment would extend or increase the liability on any party under this agreement;
1.1.5. a reference to a document is a reference to that document as amended or modified from time to time in writing by the mutual consent of the parties;
1.1.6. references to writing shall be deemed to include any modes of reproducing words in a legible or non-transitory form; and
1.1.7. the singular includes the plural and vice versa and any gender includes any other gender.
The terms set out in this agreement shall come into effect on the date of this agreement and shall in respect of each disclosure continue to be binding on the parties until five years after the date the relevant confidential information has been disclosed by the Disclosing Party to the Receiving Party.
3. USE OF CONFIDENTIAL INFORMATION
In consideration of the Disclosing Party disclosing certain information to the Receiving Party, the Receiving Party agrees to:
3.1. keep the Confidential Information secret and confidential and not disclose any of it to any third party or to any other person within the Receiving Party’s organization who does not have a demonstrable need to know such Confidential Information;
3.2. mark the Confidential Information (and any copies of it) as confidential and to keep the Confidential Information and any copies of it secure and in such a way so as to prevent unauthorized access by any third party and not make any copies of it or reproduce it in any form except for the purpose of supplying the same to those to whom disclosure is permitted in accordance with this agreement;
3.3. inform the Disclosing Party immediately if the Receiving Party becomes aware that Confidential Information has been disclosed to an unauthorized third party; and
3.4. use the Confidential Information solely to enable it to consider, evaluate, advise on or further any potential involvement and in particular, but without prejudice to the generality of the foregoing, the Receiving Party agrees not to make any commercial use of the Confidential Information or to use the Confidential Information for the benefit of itself or of any third party.
4. NON SOLICITATION
For a period of (5) five years from the date hereof, neither the Receiving Party nor any of its agents or representatives will, without prior written consent of the Disclosing Party, solicit, endeavour to entice away, employ or offer to employ directly or indirectly any officer, employee, business associate, business partner, client, potential investee, investor, advisor or consultant of the Disclosing Party.
5. NO CIRCUMVENTION AND NO COMPETITION
Receiving Party shall not circumvent or compete with, or cause, support, or entice others to circumvent or compete with the Disclosing Party by entering into any arrangement with persons or entities introduced or made known to Receiving Party, without first obtaining the written consent of the Disclosing Party. This obligation shall continue for a period of five (5) years from the date a person or entity was so introduced or made known as a substantial prospect.
6. NO WARRANTY OR OBLIGATION
6.1. The Receiving Party accepts that neither the Disclosing Party, nor any of their representatives or advisers accepts any responsibility for or gives any representation or warranty as to the truth, accuracy or completeness of any Confidential Information and that such persons will not be liable to the Receiving Party in respect of any Confidential Information or any use thereof.
6.2. The Receiving Party agrees that the Disclosing Party reserves all rights in its Confidential Information and no rights or obligations other than those expressly recited in this agreement are granted by the Disclosing Party or are to be implied from this agreement and the Receiving Party accepts that the Confidential Information remains the property of the Disclosing Party.
6.3. The Receiving Party accepts that the Disclosing Party is not obliged to update any Confidential Information or to correct any inaccuracies in any Confidential Information.
6.4. The Receiving Party accepts that neither the provision of the Confidential Information nor the existence of any discussions or negotiations between the Disclosing Party, their advisers or representatives and the Receiving Party or their advisers or representatives, creates any obligation on the Disclosing Party to enter into any engagement or transaction, nor will they form the basis of any agreement, except as expressly provided for in a definitive written agreement (if and when signed).
7. PERMITTED DISCLOSURE
Notwithstanding the foregoing, the Receiving Party shall be entitled to make any disclosure required by law or by any order of a court of competent jurisdiction, or by any governmental or other regulatory authority which is lawfully entitled to require any such disclosure provided that, save where giving notice to the Disclosing Party is prohibited by law, it gives the Disclosing Party written notice of such disclosure as soon as reasonably practicable and, where notice of disclosure is not prohibited and is given in accordance with this clause, consults with and takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
8. RECEIVING PARTY NOT ACTING AS AGENT
The Receiving Party confirms that it is acting in its capacity as principal and not as agent or broker for any other person.
9. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION
9.1. Notwithstanding the foregoing, at any time upon the request of the Disclosing Party, the Receiving Party must:
9.1.1. return to the Disclosing Party, or at the Disclosing Party’s discretion destroy, all documents and materials (and all copies thereof) containing, reflecting, devised or compiled in whole or in part from any Confidential Information;
9.1.2. erase all Confidential Information from all relevant computer systems or other devices; and
9.1.3. certify in writing to the Disclosing Party that it has complied in full with the requirements of this paragraph 9.1;
provided that the Receiving Party may retain any Confidential Information as may be required by law or lawfully required by any applicable governmental or other regulatory authority.
10. NO ANNOUNCEMENTS
Save as mentioned in paragraph 7 above (as required by law), neither party will make or permit, or solicit or assist any other person to make, any public announcement or disclosure of any Confidential Information without prior written consent of the Disclosing Party.
11.1. The Receiving Party acknowledges that damages would not be an adequate remedy for a breach of the terms of this agreement and the Disclosing Party is entitled to the remedies of injunction, specific performance and other equitable relief for a threatened or actual breach and that nothing contained herein shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to it, either at law or in equity, for such breach or any threatened breach, including specific performance and the recovery of monetary damages.
11.2. The Receiving Party shall indemnify the Disclosing Party against all costs and liabilities arising in connection with any breach by the Receiving Party of its obligations under this agreement.
11.3. Nothing in this paragraph 11 shall restrict or limit the Disclosing Party’s general obligation at law to mitigate a loss which it may incur as a result of a matter giving rise to a claim.
12.1. Any notice given pursuant to the terms of 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 stated in this agreement (or such other address as it shall previously have notified to the other party) or e-mail address as it shall previously have notified the other party, and shall be deemed to have been delivered in accordance with paragraph 12.2 below.
12.2. A notice so addressed shall be deemed to have been received:
12.2.1. if personally delivered, at the time of delivery;
12.2.2. if sent by pre-paid first class post, recorded delivery or registered post, two Business Days after the date of posting to the relevant address;
12.2.3. if sent by registered air-mail, five Business Days after the date of posting to the relevant address;
12.2.4. if sent by e-mail, at the time of dispatch, but only if the sender retains a physical or electronic record of the dispatch as evidence of valid transmission.
13.1. The Receiving Party shall not be entitled to assign or transfer all or any of its rights, benefits or obligations under this agreement without the prior written agreement of the other party.
13.2. This agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties (whether written or oral) relating to the subject matter of this letter. Nothing in this paragraph shall, however, operate to limit or exclude any liability for fraud.
13.3. If a provision of this agreement is, or but for this paragraph would be, held to be illegal, invalid or unenforceable, in whole or in part, in the jurisdiction to which it pertains but would be legal, valid and enforceable if part of the provision was deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable in that jurisdiction, and any such illegality, invalidity or unenforceability in any jurisdiction shall not invalidate or render invalid or unenforceable such provision in any jurisdictions. If a provision of this agreement is held to be illegal, invalid or unenforceable, in whole or in part and the provision cannot be severed pursuant to this paragraph 13.3 to make it legal, valid and enforceable, the Disclosing Party may require the Receiving Party to enter into a new agreement or deed under which the Receiving Party undertakes in the terms of the original provision, but subject to such amendments as the Disclosing Party specifies in order to make the provision legal, valid and enforceable. No party will be obliged to enter into a new agreement or deed that would increase its liability beyond that contained in this agreement, had all its provisions been legal, valid and enforceable.
13.4. A delay in exercising, or failure to exercise, any right or remedy under this agreement does not constitute a waiver of such right or remedy or other rights or remedies nor shall operate so as to bar the exercise or enforcement of it. No single or partial exercise of any right or remedy under this agreement shall prevent further or other exercise of such or other rights or remedies.
13.5. Any variation of this agreement must be in writing and signed by or on behalf of all parties.
13.6. Each party confirms that it will be responsible for its costs incurred by itself or on its behalf in connection with the consideration and evaluation of the Confidential Information.
13.7. Each party may enforce the provisions of paragraph 14 of this agreement. Save as provided in this paragraph 13.7, this agreement does not create any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not a party to it.
13.8. This agreement is governed by, and shall be construed in accordance with Hong Kong law.
13.9. Each party irrevocably agrees that the courts of Hong Kong have exclusive jurisdiction to decide and to settle any dispute or claim arising out of or in connection with this agreement. Each party agrees that the courts of Hong Kong are the most appropriate and convenient courts to settle proceedings and accordingly no party will argue to the contrary.