Non Disclosure Agreement s6

NON – DISCLOSURE AGREEMENT

THIS AGREEMENT, is made on the ( )of ( ), ( ).

Between:

KBZ Bank Ltd., of the 615/1, Pyay Road, Kamayut Township, Yangon, Myanmar, a company incorporated pursuant to the law of the Republic of the Union of Myanmar. (KBZ Bank)

And

[Intending Party], with its business address at [ADDRESS]

(Each of KBZ Bank and [Intending Party] are referred to as a “party” and collectively as the “parties”.)

WHEREAS, KBZ Bank and [Intending Party] desire to exchange Confidential Information, as defined below, to each other;

WHEREAS, KBZ Bank and [Intending Party] (each party along with its affiliates is referred to when providing Confidential Information as the “Discloser”) wish to provide Confidential Information to each other and any authorized representatives (each party along with its affiliates and authorized representatives is referred to when receiving Confidential Information as the “Recipient”);

WHEREAS, the Discloser and Recipient are providing the Confidential Information on the basis that the other party will be legally bound, and agrees to be legally bound, by the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the foregoing recitations, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Discloser and Recipient do hereby agree as follows:

1.  Definitions.

“Authorized Person” means each of the directors, officers, employees, advisers (including legal, financial or other professional advisers) or agents of the Recipient who obtains access to the Confidential Information;

“Confidential Information” shall mean (i) any and all technical, trade secret or business information of the Discloser, or any of its subsidiaries, predecessor entities or affiliates, including but not limited to financial information, competitive information, business, acquisition or marketing plans or strategies, experience and know-how, product development and customer and supplier information of the Discloser, whether in written, electronic or oral form, and (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 1(i) above.

2. Disclosure to Authorised Persons.

The Recipient may disclose some or all of the Confidential Information to any Authorized Person strictly on a need-to-know basis for the permitted purpose and who has, prior to receiving any such Confidential Information, agreed to be bound by the terms of this Agreement. The Recipient shall procure that all Authorised Persons perform, observe and comply with all the terms of this Agreement as if they were parties hereto and shall be fully responsible for any breach by any Authorised Person of any of the terms of this Agreement.

3. Limitations on Use and Disclosure.

(a) The Recipient acknowledges and understands that the Confidential Information is confidential and proprietary to the Discloser, that it may constitute trade secrets of the Discloser and that it is of great value and importance to the success of the Discloser’s business. The Recipient agrees to protect the Confidential Information with the same degree of care that it uses to protect its own confidential information, but in no case with less than reasonable care. The Recipient shall not disclose the Confidential Information to anyone except its employees, attorneys, accountants and other advisors who need to know such information, and shall inform each of the confidential nature of the Confidential Information and make sure that they are bound by the obligations of confidentiality to the Recipient on similar terms as contained in this Agreement. The Recipient shall be fully liable under this Agreement for any disclosure to such persons or business entities or other use in violation of this Agreement by its employees, attorneys, accountants or other advisors. The Recipient shall promptly notify the Discloser in writing of any misuse or misappropriation of such Confidential Information of the Discloser which may come to its attention.

(b) The Recipient shall have no obligations under this Agreement with respect to any Confidential Information that is (i) already in the possession of the Recipient prior to its receipt from the Discloser, (ii) publicly known at the time of disclosure or becomes publicly known through no wrongful act or failure of the Recipient, (iii) subsequently disclosed to the Recipient by a third party not having a confidential relationship with the Discloser which rightfully acquired such information, or (iv) shown to be independently developed by the Recipient without access to or the benefit of the Confidential Information.

4.  Confidentiality Measures.

The Recipient shall, and shall procure that all Authorised Persons shall, take all reasonable security precautions to keep confidential and protect from disclosure the Relevant Information, including without limitation protection of the Relevant Information from theft or unauthorised access.

5.  Compelled Disclosure.

If the Recipient or any Authorized Person is compelled to disclose any Confidential Information by virtue of any applicable laws, rules or regulations, or an order of a competent court, or any requirements of any stock exchange, the Recipient will immediately notify KBZ Bank of such an event and the Confidential Information required to be disclosed. In the event that the Disclosure is of the opinion that disclosure of such information may be contested in lawful proceedings, then the Recipient or an Authorised Person shall not make such disclosure without affording the Disclosure an opportunity to institute and pursue the said proceedings, and shall accordingly await the outcome of the said proceedings and shall comply with any order (if any) that may be secured for the stay or suspension of any disclosure.

6.  Copy, Return or Destroy.

The Recipient shall not copy, reproduce or duplicate any Confidential Information except as may be absolutely necessary for the permitted purpose. The Recipient further acknowledges and agrees that all Confidential Information disclosed or otherwise made available to it or an Authorised Person or to which it or an Authorised Person otherwise has access, and all copies thereof, are and will at all times remain the property of the Discloser. Upon the request of the Discloser, the Recipient shall within [ten (10)] days of such request:

(a)  return to the Discloser or destroy (as the Discloser may direct) all original documents and materials containing any Confidential Information which are in a form capable of delivery or destruction and all copies thereof that are in the possession or under the control of the Recipient or any of the Authorised Persons;

(b)  delete and erase permanently all Confidential Information from any computer, document retrieval or other system, database, media or other device containing such Confidential Information; and

(c)  confirm to the Discloser in writing its compliance with this Clause 6(a) and (b) above.

Notwithstanding the foregoing, the Recipient shall not be regarded as being in breach of this Clause 6 for: (i) retaining any electronic copy or copies of the Confidential Information residing in its computer back-up system which is not reasonably practicable to delete or erase, or (ii) retaining such copy or copies of any Confidential Information which it is required to retain by any applicable law, rule or regulation, provided that all such retained Confidential Information shall be subject to the other provisions of this Agreement.

7.  No Representation or Warranty.

The Recipient acknowledges and agrees that nothing in this Agreement shall be construed as obliging the Discloser to disclose or otherwise make available to the Recipient or any Authorised Person any Confidential Information. The Recipient further acknowledges and agrees that the Discloser, its directors, officers and employees make no warranty or representation, express or implied, as to the accuracy, completeness or relevance of the Confidential Information and shall not accept any responsibility or liability (including any third party liability) for any loss or damage, whether or not arising from any error or omission as a result of the Recipient’s reliance or use of the Confidential Information.

8.  Indemnity.

The Recipient shall indemnify and keep indemnified and hold harmless in full at all times the Discloser against all claims, demands, actions, proceedings, losses, damages, liabilities and all related costs and expenses suffered or incurred as a result of or in connection with any breach of any provision of this Agreement by the Recipient and/or any of the Authorised Persons.

9.  No Rights Granted.

Nothing in this Agreement is intended to grant any rights under any patent, trade secret or copyright of the Discloser to Recipient, nor shall this Agreement grant Recipient any rights in or to the Discloser’s Confidential Information, except the limited right to review such Confidential Information.

10. Injunctive Relief.

The Recipient acknowledges that compliance with this Agreement is necessary to protect the goodwill, reputation and other proprietary interests of the Discloser and that a breach of this Agreement will give rise to irreparable and continuing injury to the Discloser which is not adequately compensable in monetary damages or at law. Accordingly, the Parties agree that the Discloser may obtain injunctive and other equitable relief against the breach or threatened breach of the provisions of this Agreement, in addition to any other legal remedies that may be available under this Agreement.

11. Governing Law.

This Agreement, including any non-contractual obligations arising out of or in connection with this Agreement, shall be governed by and construed in all respects in accordance with the laws of Myanmar.

12. Disputes.

Any disputes arising out of, or in connection with, this Agreement shall be referred to and finally resolved by arbitration in Myanmar under the Myanmar Arbitration Law (2016) (the “Myanmar Arbitration Law”), the reference to which shall include the same as from time to time modified or re-enacted or substituted after the date of this Agreement. A single arbitrator will be appointed in accordance with the Myanmar Arbitration Law. The language of the arbitration shall be English.

13. Waiver.

The failure to exercise or delay in exercising a right or remedy provided by this Agreement or conferred by applicable laws does not impair or constitute a waiver of the right or remedy nor will it constitute an impairment of or a waiver of any other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by applicable laws prevents further exercise of the right or remedy or the exercise of another right or remedy.

14. Variation.

No variation to or amendment of this Agreement shall be effective unless made in writing and executed by the Authorised Persons of the Parties.

15.  Severability.

If a provision of this Agreement is held to be illegal or unenforceable, in whole or in part, under an enactment or rule of law, it shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected. The Parties agree to negotiate in good faith to agree the terms of a mutually satisfactory provision to be substituted for the provision found to be illegal or unenforceable.

16.  Term and Survival Period

This Agreement shall become effective as of the Effective Date and remain in effect for a period of one (1) year for the Effective Date unless terminated earlier. The obligations contained in this Agreement shall survive for a period of three (3) years after expiration or termination of this Agreement.

IN WITNESS WHEREOF, this Agreement has been duly executed on the date first written above.

For and on behalf of:

KBZ Bank Limited: Witness

______

Name: [•] Name: [•]

Designation: [•] Designation: [•]

For and on behalf of:

[Intending Party] Witness

______

Name: [•] Name: [•]

Designation: [•] Designation: [•]

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