CUSTOMER of the SECOND PART;

(“SATPL” and “CUSTOMER” are hereinafter collectively referred to as “the Parties” and individually as a “Party”)

WHEREAS the Parties desire to exchange information relating to certain matters and may enter into a further agreement on those matters;

AND WHEREAS in the process each Party (hereinafter the ‘Disclosing Party) shall provide to the other Party (hereinafter the ‘Receiving Party’) access to certain confidential information. The Parties wish to ensure the protection and secrecy of their respective Confidential Information and also record their other mutual covenants and undertakings in respect of information which may be shared and accordingly, the Parties are entering into this Confidentiality and Non- Disclosure Agreement.

NOW THIS AGREEMENT WITNESSES AND IT IS HEREBY AGREED AS FOLLOWS:

1. As used in this Agreement, the term “Proprietary Information” or “Confidential Information” shall mean, with respect to information disclosed by one party and its representatives (the “Disclosing Party”) to the other party (the “Receiving Party”): (a) all proprietary, technical, market, product, financial and business affairs information disclosed by the Disclosing Party to the Receiving Party, which relates to the Disclosing Party, its actual or prospective customers or other third party business relationships, and any of their products or services, and (b) all other information disclosed by the Disclosing Party to the Receiving Party that is marked “Proprietary” or “proprietary” or that is otherwise disclosed under circumstances which would lead a reasonable person to understand that such information is Proprietary. It is specially clarified that any information related to the infrastructure (such as servers, server configurations, topology, architecture, operating system, software configurations, logs) of SATPL and details of any tests conducted on this infrastructure for any reason (including for  demonstration purposes), results of such tests will be proprietary information of SATPL and must be handled in accordance with the provisions in this agreement.

2. The Receiving Party will not use the Disclosing Party’s Proprietary Information except as necessary to pursue and implement the business relationships with the Disclosing Party contemplated herein and will not disclose or reveal any such Proprietary Information to any third party except as authorized in writing by the Disclosing Party. However, the Receiving Party may disclose Proprietary Information to its directors, officers and responsible employees and to its financial, legal and tax advisors (collectively, “Representatives”), but only to the extent necessary to pursue and implement such business relationships with the Disclosing Party, provided that each such Representative has been informed of the Receiving Party’s obligations hereunder and who, by reason of a written agreement, conditions of employment or operation of law, are obligated to maintain and hold in confidence all Proprietary Information in the same manner and to the same extent required of the Receiving Party hereunder. The Receiving Party shall be responsible, and shall indemnify the Disclosing Party, for any breach of such obligations by any of its Representatives.

3. The obligations set forth in this section shall not apply, or cease to apply, as the case may be, as follows:

a. they shall not apply to specific Proprietary Information of the Disclosing Party that is publicly known when first disclosed to the Receiving Party, and shall cease to apply to specific Proprietary Information of the Disclosing Party that thereafter becomes publicly known through no act or fault of the Receiving Party or its Representatives;
b. they shall not apply to specific Proprietary Information of the Disclosing Party that appropriate documentary evidence clearly demonstrates was already known to the Receiving Party at the time the same is first disclosed to the Receiving Party by the Disclosing Party or its representatives;
c. they shall cease applying to specific Proprietary Information of the Disclosing Party that is rightfully received by the Receiving Party, without restriction on disclosure, from a third party which is not under an obligation of nondisclosure to the Disclosing Party; or
d. they shall cease applying to specific Proprietary Information of the Disclosing Party that is independently developed by employees of the Receiving Party who the Receiving Party can demonstrate do not have, and have not had, access to such Proprietary Information.

4. Each Party agrees to use the greatest degree of care to avoid unauthorized dissemination, access, disclosure or publication of the Confidential Information and to maintain confidentiality of the Confidential Information of the other Party. The Receiving Party undertakes to use at least the same degree of care as it would use to protect its own Confidential Information of a like nature.

5. Recipient Party shall ensure that its employees who have access to the Confidential Information shall deem to have become confirming parties to this Agreement and consequently shall be bound by the obligations under this Agreement to the same extent and force as Recipient Party.

6. Both Parties acknowledge and understand that neither Party shall rely on any information provided by the other as a commitment or an inducement to act or not to act in any given manner (save and except as agreed to on finalization of any business relationship between the Parties). Further, save and except as may be agreed to on finalization of any business relationship between the Parties, neither Party shall be liable to the other in any manner whatsoever for any decisions, obligations, costs or expenses incurred, changes in business practices, plans, organization, products, services, or otherwise of the other Party, exchange of Confidential Information pursuant to the execution of this Agreement.

7. Nothing contained in this Agreement will be construed as an assignment of, granting or conferring any patent, copyright, trademark, or any other proprietary rights by license or otherwise, expressly, implied, or otherwise, for any invention, discovery or improvement made, conceived or acquired prior to or after the date of this Agreement.

8. Either Party shall not attempt to reverse engineer, decompile, disassemble or reverse translate any Confidential Information provided by the other Party or discover the source code or trade secrets in any such Confidential Information.

9. Nothing in this Agreement shall limit the ability of a party to disclose such Confidential Information of the other party if such disclosure is

(a) required to be made pursuant to any law or regulation, government authority, duly authorized subpoena or court order, whereupon that party shall provide prompt notice to the Disclosing Party of the Confidential Information in question, who will thereof have the opportunity to respond prior to such disclosure;
(b) required to be made by a court or other tribunal in connection with the enforcement of such Disclosing Party’s rights under this Agreement, or
(c) is approved by the prior written consent of the Disclosing Party of the Confidential Information.

10. Both Parties further agree that each Party shall return all Confidential Information in its possession at the Disclosing Party’s written request or certify to the destruction.

11. Dispute Resolution: The Parties agree that, in the event of a breach or threatened breach of the terms of this Agreement, any Party shall be entitled to an injunction / arbitration as described below in addition to and not in lieu of any other legal or equitable relief including money damages. The Parties acknowledge that the Confidential Information is valuable and unique and that disclosure will result in irreparable injury to the proprietor of the Confidential Information.

a. If any matter arising has not been resolved by the Parties within thirty (30) days after the date the Party raising the matter gave written notice of it to the other Party; then
b. The matter shall be submitted by either Party to arbitration of a sole arbitrator to be jointly appointed. Arbitration shall be held in Bangalore, India. The arbitration shall be conducted as per the provisions of (Indian) Arbitration and Conciliation Act, 1996 and any statutory modification or re-enactment thereof.
c. The arbitration proceedings shall be conducted in the English language. The arbitration award shall be final and binding upon the Parties. d. For matters referable to the courts of law under the provisions of the (Indian) Arbitration and Conciliation Act, 1996 or any other applicable law, the courts of law at Mumbai shall have exclusive jurisdiction.
e. Each Party shall bear the cost of preparing and presenting its case, and the cost of arbitration, including fees and expenses of the arbitrators, shall be shared equally by the Parties, unless the award otherwise provides. f. Both Parties further agree to indemnify and keep indemnified each other against all actual loss and damage which the Disclosing Party may suffer as a result of any breach of this Agreement by the Receiving Party.

12. Notwithstanding anything contained herein to the contrary, the obligations of the Parties herein shall continue for a period of three (3) years from the date of the last exchange of the Confidential Information by the Disclosing Party or if a further agreement is entered into, the termination of such further agreement, whichever is the later. Recipient Party shall promptly return or destroy all Confidential Information and intellectual property in accordance with this Agreement and discontinue all further use of the Confidential Information in entirety and intellectual property including but not limited to all copies, abstractions, compilations, etc., in its entirety. The termination of this Agreement shall not affect the obligations of Recipient Party under this Agreement and the said obligations of Recipient Party under this Agreement shall by their nature survive for perpetuity.

13. Unless otherwise agreed in relation to the business relationship, this Agreement shall not be assignable or transferable by either Party without the prior written consent of the other Party, unless such assignment is arising from (i) merger, (ii) demerger or (iii) transfer of business to a wholly owned subsidiary.

14. This Agreement shall be subject to the Laws of India.

15. This Agreement supersedes all prior discussions and writings with respect to the Confidential Information and constitutes the entire Agreement between the Parties with respect to the subject matter hereof and no modifications of this Agreement or waiver of the terms and conditions hereof shall be binding upon either of the Parties hereto, unless approved in writing by an authorised representative of each Party. In the event that any of the provisions of this Agreement shall be held by a Court or other Tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.

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