This non-disclosure letter agreement (the "Agreement") is made on the last date of the signature on the last page hereof (the “Effective Date”).
To: Saudi Green Company We acknowledge that we, and our Representatives, may be provided with certain Confidential Information, by Saudi Green (“Saudi Green” or “you”) or by any of your Representatives (as defined below), in connection with discussions relating to the Project (the “Purpose”) and you wish to ensure that this Confidential Information remains confidential and is not used by us or any of our Representatives for any purpose other than the Purpose. In consideration of you agreeing to disclose Confidential Information to us with respect to the Purpose, we agree with and undertake to you, as follows.
1.1 In this Agreement, unless the context otherwise requires:
(a) “Affiliate” means with respect to either party any person that (i) controls either directly or indirectly such party, (ii) is controlled directly or indirectly by such party, or (iii) is directly or indirectly under common control with such party, for which purpose “control” means the right to exercise, directly or indirectly, fifty percent (50%) or more of the voting rights in the appointment of the directors or similar representation of the person in question;
(b) “Business Day” means a day (other than a Friday or Saturday) on which banks in the city of Riyadh in the Kingdom of Saudi Arabia, are open for ordinary banking business;
(c) “Confidential Information” means the following, irrespective of whether it is marked confidential or designated as confidential:
(i) all business, technical, financial, operational, administrative, legal, economic, proprietary, know-how and other information in whatever form (including in written, oral, visual, or electronic form) disclosed, whether before, on or after the Effective Date, to us or any of our Representatives, by you or any of your Representatives or which otherwise comes to our attention in connection with the Purpose, directly or indirectly;
(ii) all information in whatever form (including in written, oral, visual, or electronic form), whether before, on or after the Effective Date, relating to the existence, status, or progress of the Project or the Purpose including the existence and contents of this Agreement or the fact that discussions and negotiations may be taking place in relation to the Project or the Purpose (including any information which was disclosed to us or our Representatives by you or your Representatives or which otherwise comes to our attention in connection with the Project or the Purpose); and
(iii) all documents and any other material that contain or reflect or are generated from any of the foregoing and all copies of any of the foregoing,
(d) “Project” means the Saudi Green project;
(e) “Relevant Party” means Saudi Green, its Affiliates, and the current employees, officers, directors, investors and beneficial owners of Saudi Green and/or its Affiliates;
(f) “Representatives” means, in relation to a party, its Affiliates and their respective directors, officers, employees, agents, consultants, counsel and advisers;
(g) unless otherwise defined, terms used in the IT industry or other relevant business context shall be interpreted in accordance with their generally understood meaning in that industry or business context;
(h) references to a “Clause” are to a clause of this Agreement;
(i) references to a “person” includes an individual, corporation, association, partnership, state or agency of a state, and any other entity, in each case whether or not having separate legal personality;
(j) Words introduced by the word “other” shall not be given a restrictive meaning because they are preceded by words referring to a particular class of acts, matters or things; and
(k) General words shall not be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words and the words “includes”, “including”, and in particular”, or any similar expression, shall be construed without limitation.
2.1 We will hold all Confidential Information disclosed to us in strict confidence and will not disclose, reproduce, or distribute any such Confidential Information in whole or in part, directly or indirectly (or permit any of the foregoing), to any person, other than to our Representatives in the course of their duties in connection with the Purpose or as provided under Clause 3 of this Agreement and in each case strictly on a need-to-know basis.
2.2 We undertake to ensure that all Representatives who receive Confidential Information shall, prior to the receipt thereof, be bound by confidentiality obligations not less strict than our obligations under this Agreement.
2.3 Neither we nor any of our Representatives will, without your prior written consent use any Confidential Information for any purpose other than the Purpose or make, permit, or assist any other person to make any public announcement or disclosure in relation to the Purpose.
2.4 We will inform you immediately on becoming aware, or suspecting, that Confidential Information has been disclosed to, or otherwise obtained by, an unauthorized third party.
2.5 The undertakings given by us in this Agreement are given on our own behalf and on behalf of each of our Representatives, and made to you and to any Representative of yours which discloses Confidential Information to us. We will be fully responsible for all acts of, omissions of, and breaches of the terms of this Agreement by any of our Representatives as if they were our own acts, omissions or breaches.
2.6 We will not, and will make reasonable endeavors to procure that our directors, officers, employees, consultants, and Representatives will not make, disseminate, publish or advertise any defamatory, false, derogatory, or disparaging statements about: (i) our business interactions with Saudi Green undertaken from the point at which this NDA is signed by us; or (ii) any Relevant Party. Nothing in this Clause 2.6 is intended to constrain our ability to make factual statements in the course of court or arbitral proceedings.
3.1 The undertakings in Clauses 2.1 and 2.2 will not apply to Confidential Information which we can establish to your reasonable satisfaction:
(a) is, at the time of disclosure to us or one of our Representatives, or subsequently becomes, public knowledge (other than as a direct or indirect result of the information being disclosed in breach of this Agreement or any other obligation of confidence);
(b) was known to us or one of our Representatives before the Effective Date and such person was not under any confidentiality obligation in respect of that information; or
(c) we or one of our Representatives found out from a source not connected to you or any of your Representatives and such source is not under any confidentiality obligation in respect of that information, or which you explicitly instruct and/or authorize us in writing to disclose to a third party, including (but not limited to) to any bank, export credit agency or other financial institution who is or may in the future be providing financing to the Project.
3.2 The undertakings in Clauses 2.1 and 2.2 will not apply to any disclosure of Confidential Information that is required by any applicable law or regulation, or competent governmental or regulatory authority or any order of any court of competent jurisdiction, in which case (i) we will notify you thereof prior to, or promptly after, making such disclosure, and (ii) we shall only disclose that portion of the Confidential Information that is required to be disclosed and will use our best efforts, and cooperate with you, to ensure further confidential treatment of the information so disclosed.
4.1 You may at any time request (in writing) us or our Representatives to, and in any event upon the termination of discussions concerning the Purpose (other than by reason of our entry into more definitive binding agreements) we and our Representatives shall, promptly return or destroy the Confidential Information disclosed pursuant to this Agreement (together with any document or material containing Confidential Information) and to the extent possible expunge and destroy all Confidential Information from any computer, word processor or other device containing such Confidential Information. In such event, we will promptly fulfil the requirements, and in any event within five (5) Business Days of such termination of discussions or receiving such request. In the event that the documents are destroyed, we shall certify to you in writing that such destruction has occurred.
4.2 Any Confidential Information we or our Representatives cannot completely destroy or delete from the relevant computer servers, hard drives or other data repositories following our reasonable efforts to do so will be maintained by us or our Representatives in accordance with the confidentiality obligations of this Agreement.
The ownership of all intellectual property rights, including copyright, patents, know-how, trade secrets and trademarks, in the Confidential Information, will remain with you and nothing in this Agreement will operate to assign, or be deemed to assign, any of those rights to us. Nothing in this Agreement will be construed to constitute the grant of a license, copyright or any other right to me with respect to the Confidential Information.
6.1 We represent and warrant that we have the right and authority to enter into this Agreement, including the arbitration agreement in Clause 9.2. We hereby acknowledge that you make no representations or warranties, express or implied, as to the quality, accuracy or completeness of the Confidential Information disclosed to us.
6.2 We agree that disclosure of Confidential Information under this Agreement (i) is agreed to be on a non exclusive, no obligation basis, and (ii) will not commit you to proceed to enter into any agreement with respect to the Purpose, nor commit you to supplying any further Confidential Information to us. Unless and until a written definitive agreement concerning the Purpose has been mutually negotiated and executed by you and us, with relevant corporate approvals, neither you nor any of your Representatives will have any liability or obligation to us or our Representatives with respect to the Purpose. We acknowledge that you have the right, in your sole discretion, to decline to provide any information requested by us, to terminate discussions and negotiations in relation to the Purpose at any time, and to reject any and all proposals made by us or any of our Representatives in relation to the Purpose.
6.3 Neither you nor any of your Representatives shall owe any duty of care to us or any other person, and we acknowledge and agree that no person has or is held out as having an authority to give any statement, warranty, representation or undertaking on your behalf in connection with the Purpose.
6.4 Neither you nor any of your Affiliates nor any of your or their respective Representatives will have any liability whatsoever to us, our Affiliates or any of our, or their respective Representatives with respect to the use of or reliance upon the Confidential Information by any of us, our Affiliates, and our or their respective Representatives. We hereby acknowledge that you shall not be liable to us for special, indirect, punitive, or consequential damages resulting from or arising out of this Agreement, including, without limitation, loss of value, loss of production, loss of financial advantage, loss of profit, or business interruptions, however the same may be caused.
6.5 In the event of an unauthorized disclosure of Confidential Information, then, without limiting your remedies for such disclosure, we will take all remedial action necessary to prevent unauthorized use or further dissemination of the Confidential Information and will cooperate with and assist you in recovering possession and enjoining the use of any such Confidential Information.
7.1 You may terminate this Agreement upon seven (7) Business Days prior written notice to us and the return of any Confidential Information will be pursuant to Clause 4. In the event you become aware of a breach of Clause 2 (Duty of Confidentiality), you shall have the right to terminate this Agreement with immediate effect and to seek to enforce its rights under this Agreement and the law, including (without limitation) by seeking injunctive relief.
7.2 If we and you enter into one or more definitive binding agreements concerning the Purpose, then this Agreement shall cease to be applicable in respect of such Purpose if and to the extent that such definitive binding agreements expressly include similar obligations as under this Agreement for the confidentiality of the Confidential Information. Subject to the foregoing, this Agreement shall continue in force, unless terminated in accordance with Clause 7.1 or until its expiry pursuant to Clause 7.3, in respect of any other discussions or the provision of information from you to us in connection with the Project.
7.3 Unless earlier terminated pursuant to Clause 7.1, this Agreement will terminate on the date that is the fifth anniversary of the Effective Date.
7.4 Upon termination of this Agreement pursuant to this Clause 7, the confidentiality obligations, rights, and remedies set forth herein will survive termination for a period of three (3) years following the termination of this Agreement.
8.1 Confidential Information will remain your property at all times.
8.2 We acknowledge and agree that you may be irreparably harmed by any breach of the terms of this Agreement and that damages alone may not be an adequate remedy. Accordingly, you shall be entitled, without proof of special damages, to seek the remedies of injunction, specific performance, or other equitable relief for any threatened or actual breach of the terms of this Agreement.
8.3 We may not assign this Agreement or any of our rights or obligations hereunder without your prior written consent and any purported assignment thereof by us without such consent will be void and of no effect.
8.4 No variation or amendment of this Agreement shall be valid unless it is agreed in writing and signed by both parties. Waiver of any right, power, authority, discretion, or remedy arising upon default under this Agreement must be in writing and signed by you. A failure or delay in the exercise, or partial exercise, of a right, power, authority, discretion, or remedy created or arising under this Agreement does not result in a waiver of that right, power, authority, discretion, or remedy.
8.5 Any notice or other communication given under this Agreement or in connection with the matters contemplated herein will, except where otherwise specifically provided, be in writing in the English language, addressed to the head office of the addressee.
8.6 This Agreement comprises the full and complete agreement between us and you with respect to its subject matter and will supersede all written and oral agreements of the parties entered into with regard to the treatment of Confidential Information.
8.7 This Agreement does not establish a joint venture, partnership, or other type of business entity between us and you, and in no event will we represent to any other third party that a joint venture, partnership, or other type of business entity has been formed. We may not use your name, logos, or trademarks in connection with any advertising, publicity materials, or other activities without your prior written consent.
8.8 If any provision, or part of a provision, of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions of this Agreement will remain in force.
8.9 We will not, without your prior written approval, disclose the existence of this Agreement, the fact that Confidential Information has been exchanged hereunder or that any evaluations, discussions, meetings or negotiations have been or are taking place between us and you.
9.1 This Agreement is governed by and construed in accordance with the laws of the Kingdom of Saudi Arabia.
9.2 Any dispute arising out of or in connection with this Agreement will be finally settled by arbitration administered by the Saudi Center for Commercial Arbitration (the “SCCA”). Such arbitration:
(a) will be conducted under the SCCA's Arbitration Rules (the “Rules”) as at the Effective Date; which rules are deemed to be incorporated by reference into this Clause;
(b) will have its seat in Riyadh, Kingdom of Saudi Arabia;
(c) will be conducted in English; and
(d) will be settled by a sole arbitrator appointed in accordance with the Rules.
9.3 Nothing in this Clause 9 prevents a party from applying to the courts of competent jurisdiction to seek urgent interim relief.