双向保密协议范本.doc

.NON DISCLOSURE AGREEMENTThis Non Disclosure Agreement (“Agreement”) is entered into on this day of February 2014BY AND BETWEENCHINA SHENHUA OVERSEAS DEVELOPMENT & INVESTMENT CO., LIMITED, a company incorporated under the laws of Hong Kong and having its registered office at Room B, 10/F., Bank of China Tower, 1 Garden Road, Hong Kong (hereinafter referred to as “Shenhua” which expression shall unless repugnant to the context or meaning hereof shall mean and include its successors and permitted assigns).AND, a company incorporated under the laws of and having its registered office at (hereinafter referred to as“ ” which expression shall unless repugnant to the context or meaning hereof shall mean and include its successors, permitted assigns and )Shenhua and hereinafter may be individually referred to as “Party” and collectively as “Parties”.WHEREAS:A. is planning to raise its shareholding in (Project) and the Parties are considering various ways of cooperating for the development of the Project.B. In pursuance to such intention, the Parties will be sharing certain information (hereinafter referred to as the “Confidential Information” and further elaborated below) which is proprietary and confidential to them and their Affiliates (“Affiliates” include companies that control, are controlled by, or are under common control with the Parties.)C. During the course of cooperation, the Parties may disclose to each other certain confidential information. Within this agreement the Parties may refer to Disclosing Party and Receiving Party. The Receiving Party wishes to receive the Confidential Information from the Disclosing Party for the purpose of cooperation and evaluation of participation in the Project (“Purpose”).In consideration for the grant of access to such Confidential Information, the Parties agree that both of them shall be protected under the following clauses:1.“Confidential Information means, any and all information or communication identified as confidential and disclosed by the Disclosing Party to the Receiving Party regarding the Project in written, representational, electronic, verbal or other form including, without limitation, drawings, photographs, sketches, models, design or performance specifications, analyses, commercial agreements, compilations, studies, notes and all other information and data disclosed orally or visually or by access to computer systems or data, which has been developed by / is exclusive to the Disclosing Party and/or its Affiliates. Confidential Information shall also include any and all information or communication relating directly or indirectly to potential business, operation or financial condition of or relating to the Disclosing Party and its Affiliates including but not limited to, information identified by the Disclosing Party as being confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and supplier lists, financial or technical or service matters or data, employee/agent/ consultant/officer/director related personal or sensitive data and any information ejusdem generis which might reasonably be presumed to be confidential in nature.Especially, Confidential Information shall include the facts of the existence of this Agreement, the willingness of cooperation on the Project of the Parties and the Purpose.Provided, however, that Confidential Information shall not include information which:a. is or becomes publicly available otherwise than through a breach of this Agreement;b. is already in the Receiving Partys possession without any obligation of confidentiality;2. With respect to Confidential Information disclosed by the Disclosing Party to the Receiving Party, the Receiving Party agrees that it shall:(a) use the Confidential Information only for said Purpose; (b) keep the Information strictly confidential and shall not disclose it to any third party other than employees, agents, consultants, vendors, subcontractors, bankers or financial advisors (“Authorized Third Parties”);(c) disclose Confidential Information only to such Authorized Third Parties on a need to know basis, in order to enable them to study such Confidential Information in connection with the Project and provided that the Authorized Third Parties have been made aware of this Agreement and are bound by confidentiality obligations as stipulated under this Agreement;(d) ensure that its Authorized Third Parties do not do or fail to do anything that, if done or not done by the Receiving party, would amount to a breach of this Agreement;(e) use such degree of care to prevent the disclosure of such Confidential Information to others and protect the information that the Receiving party uses to prevent unauthorized disclosure of its own confidential information to third parties and in no event such degree of care and protection shall be of less than a reasonable degree of care; and(f) indemnify and keep indemnified the Disclosing party and its Affiliates against all losses and damages, which the Disclosing party and its Affiliates may suffer as a result of any breach of this Agreement.3. Each Party, as a Receiving Party, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives make any representation or warranty, express or implied, as to the accuracy of the Confidential Information, and that no Party, as a Disclosing Party, nor any of its Representatives shall have any liability to such Party or its Representatives relating to or resulting from the use of the Confidential Information of a Disclosing Party or any errors therein or omissions therefrom.4. Notwithstanding the provisions of Clause 2 above, the Receiving party may disclose Confidential Information pursuant to the order of any government or semi-government authority or to comply with any mandatory requirement of law or legally binding order of any court or judicial authority, provided that, such disclosure shall be made only to the limited extent as required by such law or regulatory obligation and after providing written notice to enable the Disclosing party to resist such compelled disclosure.5. After the termination or expiry of this Agreement, when requested by the Disclosing party, the Receiving party may at its discretion either return to the Disclosing party or destroy all copies of materials within its possession, which contain any Confidential Information.6. The Confidential Information disclosed to the Receiving party shall be used solely for the said Purpose. Further, no rights or obligations other than those expressly recited herein are to be implied. No license from either Party hereto is hereby granted or implied, by estoppels or otherwise, under any copyrights, patents (existing or future) or for any use of Confidential Information except such use which is expressly contemplated by this Agreement.7. The Parties recognize and agree that nothing contained in this Agreement shall be recognized as granting any property rights or intellectual rights (including but without limitation patent, trademark, copyright, trade secret, moral right or any other right) or any other rights in whatsoever form to any Confidential Information disclosed pursuant to this Agreement.8. In the event of any wrongful disclosure / use of any Confidential Information by the Receiving party, the Disclosing party shall be deemed to be irreparably injured and shall be entitled to claim exceptional damages for such wrongful disclosure / use provided that the wrongful disclosure / use is directly attributable / attributed to the Disclosing party.9. This Agreement shall commence on the date of execution by the Parties and shall remain in effect for two years. During the effective period the Receiving party shall use such degree of care to prevent the disclosure of such Confidential Information to others and protect the information that the Receiving party uses to prevent unauthorized disclosure of its own confidential information to third parties. 10. This Agreement is the complete and exclusive statement of the Agreement between the Parties superseding all proposals or prior agreement, oral or written, and all other communications between the Parties relating to the subject matter hereof. No change, modifications, alterations, or addition to any provision herein shall be binding on either Party unless in writing and signed by an authorized representative of both Parties.11. This Agreement is not necessarily intended to constitute or create a joint venture, partnership or formal business entity of any kind between the Parties. Any exchange of information under this Agreement shall not be deemed as constituting any offer, acceptance or promise of any contract. Each Party agrees that unless and until a final, binding, written definitive agreement regarding a transaction involved in the Discussion Process or an agreement in respect of the Project between the Parties and/or their respective affiliates has been mutually executed and delivered, no Party will be under any legal obligation of any kind whatsoever by virtue of this Agreement or any other written or oral expression with respect to any transaction or the Discussion Process by either Party or any of its Representatives except for the matters specifically agreed to in this Agreement.Each Party reserves the right, in its sole discretion, to reject any and all proposals made by any other Party or any of its Representatives, and to terminate discussions and negotiations with each other Party or its Representatives at any time and for any reason or no reason. It is further acknowledged that each Party may be engaged now or in the future in a business or other activity similar to or competitive with that of any other Party and the Parties hereby agree that they shall in no way be restricted by the terms of this Agreement from engaging in such business or other activities, except that each Party, in its capacity as a Receiving Party, shall be bound by its agreement of confidentiality herein as it relates to the Confidential Information of the Disclosing Party.12. It is understood and agreed that money, damages would not be a sufficient remedy for any breach of this Agreement and that a Party may be entitled to specific performance and injunctive or other equitable relief for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law or in equity.13. This Agreement shall be governed by, enforced under, and construed and interpreted in accordance with, the laws of Hong Kong. All disputes, controversies and conflicts arising out of or in connection with this Agreement shall, so far as is possible, be settled amicably and if any such dispute, controversy and/or