Confidentiality Agreement

  1. During the discussions concerning the Transaction, both or either Party will provide Confidential Information as defined in article 2.
  2. For this Agreement “Confidential Information” means all information which is obtained, whether in writing, pictorially, in machine-readable form or verbally by either Party (the “Information Provider”) in connection with the Transaction, including but not limited to financial information, know-how, trade secrets, technology, customer lists (potential or actual) and other customer-related information, supplier information, sales statistics, market intelligence, marketing, business plans and work methods, personnel information, intellectual property rights including patents, source codes, scripts, specifications, models, tools, computer programs, technical information and passwords or access information and other strategic business information and other commercial and business information of a confidential nature, but does not include any information:
    • that at time of disclosure to the other Party (the “Information Receiver”) is already in the public domain or which after such disclosure comes into the public domain through no fault of the Information Receiver and/or Information Provider;
    • that was available to the Information Receiver and/or Information Provider on a non-confidential basis by a third party; or
    • whereby the disclosure of which is required by applicable law, rules, and regulations.
  3. The Information Receiver and Information Provider undertake that:
    • a) they will use the Confidential Information only for the Transaction;
    • b) they will treat all the Confidential Information as private and confidential and safeguard it according to the applicable legislation and norms;
    • c) they will not disclose, copy, or distribute the Confidential Information to any person, whether a third party or a member of staff, other than those who are required in the course of their duties to receive and process the Confidential Information and who shall be informed of the confidential nature of the information. The employee of the Information Receiver shall personally enter into a confidentiality agreement with the Information Receiver that includes the terms and conditions of the Agreement and guarantees that such confidentiality agreement is entered into under the same terms and conditions as this Agreement.
  4. The Parties hereby agree that any breach of the Agreement could cause serious damage to either or both Parties and that monetary damages may not be an adequate remedy. In the event of a breach or threatened breach by either Party, the other Party shall be entitled to injunctive relief in any court of competent jurisdiction (the court of competent jurisdiction by sub 5) without requiring any letter before action.
  1. Parties agree that if one Party is in breach of any term set out in this Agreement, the other Party is under a duty to pay an immediately due and payable fine of Euro five hundred (Euro 500), for every day that the breach continues, in addition to the right of the other Party to claim specific performance or damages of any kind.
  2. Any failure or delay by any Party in exercising or enforcing any right, remedy or power hereunder shall neither operate as a waiver thereof, nor shall any single or partial exercise enforcement of any right, remedy or power preclude any further exercise or enforcement thereof or the exercise enforcement of any other right, remedy or power.
  3. This Agreement shall be governed by and construed by the laws of the Netherlands. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Dutch courts in Rotterdam.
  4. If the discussions concerning the Transaction do not result in a contract between the Parties or if the Agreement is terminated or expires, the Information Provider may request the Information Receiver in writing to destroy all the Confidential Information (the “Request”). The Request shall have immediate effect. Within 5 working days thereafter the Information Receiver shall confirm in writing that it has destroyed all the Confidential Information. Failure to provide such confirmation shall constitute a breach of the Agreement in accordance with sub 3 above. After the Request is made, the undertaking in this Agreement shall continue for a period of two (2) years following the date of this Agreement.
  5. This Agreement shall be valid for a period of two years commencing from the date of this Agreement in the event that Parties do not enter into an agreement for the delivery of Services, or for a term of two years upon termination of a subsequent agreement entered into between the Parties for the provision of the Services. Within 5 working days thereafter the Information Receiver shall confirm in writing that it has destroyed all the Confidential Information upon the request of the Information Provider. Failure to provide such confirmation shall constitute a breach of the Agreement in accordance with sub 3 above.