CONFIDENTIALITY AGREEMENT
1. Definition of Confidential Information and Trade Secrets.
For the purposes of this agreement, ‘Confidential Information’ shall include, regardless of form, business information, marketing and product plans, financial information and reports, pricing conditions, customer lists and market information, lists of NORELEM stores, addresses and telephone numbers, and any other identifying information, documents and materials disclosed by the Disclosing Party to the Receiving Party orally or in writing during the term of this agreement (including not only the exchange of information and business agreements that are taking place or will take place) but which are not constituted as trade secrets. ‘Trade Secret’ means, regardless of form, including without limitation technical and non-technical data, formulas, patents, compilations, programmes, devices, methods, techniques, images, drawings, calculations, processes, financial data, financial plans, product plans or lists of potential customers or suppliers which are not in the public domain or available to the public, and which result in information of current or potential economic value that is not in the public domain and is not readily ascertainable by other persons, using reasonable means to maintain its secrecy.
Confidential information and trade secrets shall also include any information that is processed by the Receiving Party and obtained based on confidential information provided to it by the Disclosing Party, including analyses, reports or summaries of confidential information or trade secrets.
The party disclosing confidential information or trade secrets for the purposes of this agreement shall be referred to as the ‘Disclosing Party’ and the party receiving such information shall be referred to as the ‘Receiving Party’.
2. Term.
This agreement shall enter into force on the effective date and its obligations shall remain in force during the term of the agreement and even after its termination: (a) in the case of trade secrets, as long as such information remains confidential in accordance with applicable law; (b) in the case of confidential information, for a term of ten (10) years. The obligations of the parties with respect to the protection of confidential information and trade secrets shall survive even after the termination or expiry of this agreement.
3. Limitation of use.
Unless there is an express agreement authorising the receiving party to make use of the information other than as specified herein, the receiving party may only use the confidential information or trade secrets for the purposes set forth in the background section of this agreement.
4. Protection of confidential information and trade secrets.
Both parties agree to protect confidential information and trade secrets with the same care with which they protect their own information and materials of the same type, but in no case shall the receiving party apply a standard lower than or different from the standard it uses for the reasonable care with which it protects its own Confidential Information and Trade Secrets. Each Receiving Party agrees to take the necessary measures to prevent the disclosure of information in the Receiving Party's possession (including to employees and agents).
5. Access to Confidential Information and Trade Secrets.
Access to confidential information and trade secrets shall be limited to employees who are involved in the analysis and agreements related to the exploration of possible business agreements that may be entered into as provided in the background statement of this contract. In addition, the Receiving Party shall require any person who is not its employee but has access to confidential information and trade secrets to be bound by the terms of a non-disclosure agreement obligating them under the same terms as the Receiving Party is obligated to the Disclosing Party.
6. Licence.
The confidential information and trade secrets disclosed by the Disclosing Party to the Receiving Party shall at all times remain the property of the Disclosing Party. This document does not grant any other type of licence for the use of trademarks, patents, copyrights or other rights relating to the use of confidential information or Trade Secrets under this agreement.
7. Return of Confidential Information and Trade Secrets.
All confidential information or trade secrets disclosed under this agreement, including copies thereof, shall be returned by the Receiving Party upon request by the Disclosing Party. Any material processed by the Receiving Party including Confidential Information or Trade Secrets, including summaries or extracts thereof, shall be destroyed, and where applicable, the Disclosing Party shall certify such destruction.
8. Exclusions.
There shall be no prohibition or limitation on the use and/or disclosure of information provided that such information: (a) Is or has become public knowledge;
(b) Is or has become known to the Receiving Party on a non-confidential basis, or not directly from the Disclosing Party, including its directors, officers, employees, agents and representatives, provided that such bases are not linked to this confidentiality agreement or other obligation restricting such disclosure; (c) Has been developed by the Receiving Party and does not include confidential information or trade secrets by its personnel, including but not limited to employees, agents, and independent contractors who have not had access to confidential information and trade secrets and that can be documented by reasonable evidence; or (d) Is approved for disclosure or disclosure with prior authorisation from an authorised representative of the Disclosing Party.
9. Disclosures by Court Order.
In the event that the Receiving Party is required by court order or administrative resolution or legal proceeding to disclose confidential information or Trade Secrets, the Receiving Party undertakes to immediately notify the Disclosing Party and support it in defending such a requirement. The Receiving Party shall comply with such requirement in accordance with the terms stipulated and permitted by law.
10. Successors and Assignees.
This agreement is and shall be binding upon the parties and each of their respective affiliates, successors, representatives, and assignees.
11. No waiver of rights.
In the event that either party fails to exercise any right contemplated in this agreement in a timely manner, this shall not constitute
a waiver of the right to exercise it, nor shall it affect the validity of this agreement or the subsequent exercise of such right.
12. Advertising.
Neither party may use the other party's name for advertising purposes without the prior written consent of the other party.
13. Applicable Law.
The application, validity, interpretation and enforcement of this confidentiality agreement are subject to the laws of the State of San Luis Potosí, S.L.P., Mexico.
14. Entire Agreement.
This agreement constitutes the entire agreement between the parties with respect to confidentiality and non-disclosure obligations and may not be modified unless there is a document signed by both parties. The parties acknowledge that they have read this document and agree to comply with its terms and conditions. No other agreement shall be valid except as expressly set forth in this document. No provision herein shall be construed in favour of or against either party as its author.
15. Headings.
The headings and titles of clauses contained in this contract are for ease of reading only and do not affect the interpretation of any provision thereof.
16. Severability.
If any clause of this contract is found to be invalid or unenforceable, it shall be deemed null and void but shall not affect the validity and enforceability of the other provisions and agreements contained herein and permitted in their enforcement by applicable civil law.
17. Governing Language.
The Parties agree that the Spanish language shall prevail for the interpretation and enforcement of this confidentiality agreement.