1. “Confidential Information” shall mean any and all confidential and/or proprietary information and the existence of and the purpose for which they are to be used, including but not limited to documents, bill of materials, technical drawings, schematics, samples, working / testing instructions, products, services, sales, performances, plans, strategies, customers, financial or human resources, processes, management, contracts, project documentation, software, hardware, technical data, know-how, ideas and inventions (whether patentable or not), which is disclosed to the Recipient by or on behalf of the Discloser or its affiliates in any manner, whether orally, visually or in tangible form (including, without limitation, hardcopy documents, devices and computer readable media) and all copies thereof.
2. The Recipient shall maintain in strict confidence and shall not disclose Confidential Information to any party, except in accordance with the terms of this Agreement, for as long as such Confidential Information remains confidential and/or proprietary.
3. The Recipient shall use Confidential Information solely for Franchise Opportunity (the “Purpose”). The Recipient shall take all reasonable steps consistent with the protection of its own proprietary information to prevent the unauthorized use or disclosure of the Discloser’s Confidential Information.
4. The Recipient shall disclose Confidential Information only to those directors, officers, employees, representatives, agents, advisors (including legal, financial or other advisors) and subcontractors of the Recipient or its affiliates (“Representatives”) who have a need to know such information for the Purpose and are bound to the Recipient by obligations to keep the Confidential Information in confidence on terms no less onerous than the terms herein. The Recipient shall be responsible to the Discloser for and shall indemnify the Discloser or its affiliates against any breach by itself or its Representatives of the terms herein or of the written agreement between the Recipient and its Representatives referred to above, as the case may be. This Agreement does not give the Recipient, or any person the Recipient discloses Confidential Information to, any right, title or interest in the Confidential Information.
5. Except to the extent prohibited by law, the Recipient must promptly inform the Discloser if the Recipient becomes aware of, or suspects that there has been, unauthorized use, copying or disclosure of the Confidential Information, and must take all reasonable steps to prevent or stop such unauthorized use, copying or disclosure.
6. Confidential Information shall not include any information that the Recipient can demonstrate (a) was in the possession of the Recipient and not subject to any confidentiality obligations before receipt from the Discloser and/or its affiliates; (b) is in the public domain other than as a result of a disclosure or other default by the Recipient or by its Representatives in breach of this Agreement; (c) is rightfully received by the Recipient from a third party without confidentiality obligations; (d) is independently developed by the Recipient; (e) is approved for release by written authorization of the Discloser without restriction on the right to use such information; or (f) is disclosed pursuant to any rule, regulation, law or requirement of any regulatory authority, government agency or stock exchange, provided that the Recipient furnishes prior notice of the above to the Discloser and cooperates with the Discloser in contesting disclosure or obtaining confidential treatment of such disclosure.
7. Either party may in writing terminate this Agreement at any time, without cause. In the event of such termination, Clause 8 shall apply.
8. Upon termination of this Agreement or upon demand by the Discloser at any time, the Recipient shall immediately cease using the Confidential Information and all copies of the Confidential Information shall be returned to the Discloser promptly or destroyed by the Recipient immediately upon the request of the Discloser and no copy of any analysis, compilation, forecast, study or other document derived from such Confidential Information (whether prepared by the Recipient or otherwise) will be retained by the Recipient, except for any Confidential Information which the Recipient is required by any applicable law to retain (“Retained Information”). The Recipient further confirms that the Retained Information and the Confidential Information disclosed will continue to be subject to the terms of this Agreement without any limit in point of time and shall survive the termination of this Agreement. Termination of this Agreement shall not affect any accrued rights or remedies to which either party is entitled.
9. The Recipient shall not remove any confidential/proprietary rights legend from materials disclosing or embodying Confidential Information. The Discloser retains all rights in its Confidential Information. No license or conveyance of intellectual property right or any other right is granted to the Recipient or implied by the disclosure of the Confidential Information to the Recipient.
10. Neither the Discloser nor the Discloser’s affiliates nor any of their directors, officers, employees, representatives, agents, advisors (including legal, financial or other advisors) and subcontractors accepts responsibility for or makes any representation, express or implied, or gives any warranty with respect to the accuracy or completeness of the Confidential Information or any oral communication in connection with the Confidential Information and the Recipient undertakes to the Discloser to waive any liability which such parties may incur by reason of the Recipient’s use of, or reliance upon, any of the Confidential Information.
11. The Recipient acknowledges that the Confidential Information is given in confidence and that some or all of the Confidential Information may be inside information for the purposes of the Securities and Futures Act, Chapter 289 of Singapore (“SFA”), and that it, and it will procure that each member of the Recipient group and its Representatives, will not deal or cause or procure any person to deal in any securities of the Discloser in breach of the SFA or any other applicable laws.
12. No failure or delay by the Discloser in exercising any of its rights under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of such rights.
13. The Recipient acknowledges the competitive value and the secret and confidential nature of the Confidential Information and that damage could result to the Discloser and/or its affiliates if any Confidential Information is disclosed to a third party or parties by the Recipient in breach of its obligations contained in this Agreement. Without prejudice to any other rights or remedies which the Discloser may have, the Recipient acknowledges and agrees that damages may not be an adequate remedy for any breach by the Recipient of the provisions of this Agreement and the Discloser shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the Recipient or any other relevant person and no proof of special damages shall be necessary for the enforcement of such injunction, specific performance and other equitable relief by the Discloser of the rights under this Agreement.
14. This Agreement shall be governed by the laws of Singapore.
15. Subject to Clauses 16 and 17, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.
16. For the avoidance of doubt, nothing contained in Clause 15 of this Agreement shall prevent or preclude the Discloser from seeking urgent interlocutory or other pre-arbitral relief before a court of law of competent jurisdiction, by way of an application for an injunction or other like remedy, and each party hereby irrevocably submits to the exclusive jurisdiction of the courts of Singapore or such other jurisdiction as determined by the Discloser in its sole discretion for this purpose.
17. The Recipient agrees that the Discloser shall have the exclusive right in its sole discretion to elect for any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination: (a) to be referred to and finally resolved by arbitration as set out in Clause 15; or (b) to be determined by the courts of Singapore or such other jurisdiction as determined by the Discloser in its sole discretion, in which event the parties agree to submit to the jurisdiction of such court as designated by the Discloser.
18. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments and understandings pertaining to the subject matter hereof. Any modifications of or changes to this Agreement shall be in writing and signed by both parties. If any provision of this Agreement is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. If the Discloser does not exercise its right(s) at any time in connection with a breach under this Agreement, this does not mean that it has waived its right(s) or cannot exercise such right(s) later.
20. Save that the Discloser may assign or transfer its rights or obligations under this Agreement to its related/affiliated entities in its sole and absolute discretion without the prior written consent of the Recipient, neither party’s rights or obligations under this Agreement may be assigned or transferred without the prior written consent of the other party.
21. This Agreement may be executed in any number of counterparts and delivered by means of facsimile transmission or otherwise, and each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereof duly execute this Agreement as of the date first above written.