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 Party by Disclosing Party 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 Project (and any information or analysis derived from such information). The term “Confidential Information” does not include information which (i) is already in Recipient Party’s possession, or (ii) was or becomes generally available to the public other than as a result of a disclosure by Recipient Party or Recipient’s Representatives in violation of this Agreement; or (iii) was or becomes available to Recipient Party on a non-confidential basis from any source; provided that such source is not known by Recipient Party after reasonable inquiry to be bound by a confidentiality agreement with or other obligation of secrecy to Disclosing Party or any member of its Group; or (iv) is generated independently by Recipient Party or any of Recipient’s Representatives without reference to Confidential Information.
Recipient Party 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 Recipient Party for any reason whatsoever other than to a limited number of its Representatives of Recipient Party who actually need to have knowledge of the Confidential Information, without the express prior written consent of Disclosing Party; provided, however, that any of such information may be disclosed as required by law or regulation so long as Recipient Party complies with the provisions of the following paragraph.
Recipient Party 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 Project with Disclosing Party and shall not use Confidential Information for any other purpose. If Recipient Party 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 Party in the course of its dealings with the Disclosing Party, it is agreed that Recipient Party shall and shall procure that the members of its Group and its Representatives and Advisers shall, to the extent reasonably practicable, provide the Disclosing Party with reasonable notice of any such request or requirement so that either Recipient Party or the Disclosing Party 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 Party 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 Party gives the Disclosing Party written notice of the information to be disclosed as far in advance of its disclosure as is reasonably practicable and, upon the Disclosing Party request and at the Disclosing Party expense, use Recipient Party 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 Party 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 Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such information.
Nothing contained in this Agreement shall be construed as granting or conferring upon Recipient Party, 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 Disclosing Party prior to, on or after the date of this Agreement.
The Disclosing Party and Recipient Party shall not, and Recipient Party 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 Project without the prior written consent of the non-disclosing Party.
The Disclosing Party 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 Disclosing Party, without the prior written consent of either party whether a transaction started by the parties completes or not.
This Agreement shall inure to the benefit of and be binding on the Parties and their respective successors permitted assigns and legal representatives.
Recipient Party 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 entity or person.
Recipient Party accepts that, other than expressly provided in writing in any agreement subsequently entered into by the Disclosing Party with Recipient Party in connection with the Proposed Project, the Disclosing Party gives no representation or warranty as to the truth, accuracy or completeness of any Confidential Information and that the Disclosing Party will not be liable to Recipient Party in respect of any Confidential Information or its use.
Recipient Party 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 Party, therefore, Recipient Party agrees that the Disclosing Party 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 Party or any of its Representatives without proof of actual or special damage.
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 Party and the Disclosing Party agree that, unless and until a definitive agreement between the Disclosing Party and Recipient Party with respect to any Proposed Project has been executed and delivered, neither the Disclosing Party nor Recipient Party will be under any legal obligation of any kind whatsoever with respect to any such Proposed Project by virtue of this or any written or oral expression with respect to any such Proposed Project except, in the case of this Agreement, for the matters specifically agreed to herein. Recipient Party and the Disclosing Party further agree that this Agreement does not impose any obligation on the Parties to agree to the Proposed Project or any other relationship now or in the future. The term set forth in this paragraph may be modified or waived only by separate writing executed by both the Company and Recipient expressly modifying or waiving such term. The undertakings given by Recipient Party under this Agreement are given to the Disclosing Party and (without implying any fiduciary obligations on the Disclosing Party part) are also given for the benefit of the Disclosing Party and each other member of the Group.
A waiver by the Disclosing Party or the failure of the Disclosing Party 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.
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 here from and the remainder will have the same force and effectiveness as if such part or parts had never been included herein.
This Agreement shall be effective as of the signing date of this Agreement by the Both Parties and shall expire if: (a) this Agreement is expressly superseded by a subsequent agreement between both Parties hereto, or (b) in the event there is no a subsequent agreement between the Both Parties, this Agreement is valid for 2 (two) years from the signing date of this Agreement.
Any amendment or modification to this Agreement shall be effective only if made in a written instrument and signed by both Parties.
Notices under this Agreement shall be in writing and in the Bahasa Indonesia or English language, shall be served by delivering it to the party 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.
This Agreement shall be governed by and construed in accordance with the law of the Republic of Indonesia.
The parties to this Agreement irrevocably agree that the Badan Arbitrase Nasional Indonesia (BANI Arbitration Centre) shall have exclusive jurisdiction to decide and to settle any dispute or claim arising out of or in connection with this Agreement (“Proceedings”).
Neither this Agreement nor any of the rights, benefits or obligations hereunder may be assigned or delegated by Recipient Party (whether by law or otherwise) without the prior written consent of the Disclosing Party.
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.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.
This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement.
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