1. TERMS AND DEFINITIONS
1.1. Disclosing Party – the party disclosing Confidential Information. Relevant member of Omnicomm Group, which receives the KYC form, or with which a relevant agreement is signed, is the Disclosing Party for the purposes of sharing the information specified in the art. 1.4, 1.6 below. Depending on the case, the disclosing Party shall be:
1.2. Receiving Party – the party receiving Confidential Information.
1.3. Representative – a person authorized by a Party to access Confidential Information. Each Party guarantees that its Representatives are informed about their access to Confidential Information. The Receiving Party has the right to provide its employees with access to Confidential Information, subject to compliance with confidentiality obligations.
1.4. Confidential Information – any information of the Disclosing Party, the list of which is defined in clause 1.6 hereof, as well as any other information having actual or potential commercial value due to its unknown nature to third parties, provided by the Disclosing Party to the Receiving Party during discussions, negotiations, as well as in writing, by transmitting documents, including electronically, including, without limitation, information about markets, financial documents, financial statements and accounting (except as required by the laws of the Parties’ countries), contractual relationships, pricing and marketing, technical information, know-how, research, production plans, concepts, any information about the results of intellectual activity/ intellectual deliverables as specified in the art.1.6 hereof, personal data.
Confidential Information does not include publicly available information or information that has become known to third parties through no fault of the Receiving Party, or information that the Receiving Party can prove was in the possession of a third party prior to its receipt from the Disclosing Party.
1.5. Confidential Information shall normally be marked with the stamp “Commercial Secret”, “Confidential”, “Confidential Information” as specified in this art. 1.5, or shall be indicated as confidential in accordance with the art. 1.5.1 hereof. However, the information specified in the art. 1.4, 1.6 hereof shall be treated as Confidential Information regardless of whether the stamp is enclosed/affixed or not, and regardless of whether or other indication subject to art. 1.5.1 is provided or not. The stamp “Commercial Secret” shall be affixed in the following manner (sample, applied mutatis mutandis for other members of the Omnicomm Group):
COMMERCIAL SECRET
ARTIFLEET GLOBAL ELECTRONIC APPLIANCES TRADING L.L.C.
Office 306-110, Business Village – 306, Port Saeed, Dubai, UAE
1.5.1. Alternatively, it can be directly indicated in the text of the email. Example: “Dear [Recipient’s Name], please note that this message and its content are confidential (marked as – COMMERCIAL SECRET (or, CONFIDENTIAL, CONFIDENTIAL INFORMATION)). It is intended only for [Recipient’s Name]. Please do not disclose or forward its content and, in case of incorrect receipt, notify the sender and delete the message. Sincerely, [Your Name]”
1.6. Confidential Information includes:
1.6.1. Management Information:
1.6.2. Planning, pricing, marketing, product information:
1.6.3. Information on business contacts, counterparties, and negotiations with them:
1.6.4. Data on the nature of civil and other relations with entities:
1.6.5. Information on security and protection:
1.6.6. Information on economic activities:
1.6.7. Information on the existence of disputes (including their essence and details) with entities of civil and other relations, except for information published by courts on these cases.
1.6.8. Personnel structure and organization of activities: information contained in local regulatory acts (regulations, orders, rules, memorandums, and others).
1.6.9. All and any technical documentation, information and intellectual deliverables and related information, including, but not limited to algorithms, program texts, exchange protocols, technical specifications, user manuals, training materials, know-how, inventions, utility models, industrial designs, computer programs, databases, trademarks, software code.
1.6.10. Personal data of any kind, which shall be identified as any information allowing to directly or indirectly identify a certain individual, including, but not limited to:
2. OBLIGATIONS TO PRESERVE CONFIDENTIAL INFORMATION
2.1. Whenever it is specified in the KYC Form, or in the relevant agreement, contract or in another document, the Receiving Party agrees to ensure the preservation and non-disclosure of Confidential Information to third parties under the conditions specified herein, and both Receiving and Disclosing Parties are bound by the conditions of these Non-Disclosure Obligation Terms.
The Receiving Party may provide its Representatives with access to Confidential Information if such access is necessary for achieving the purpose for which Confidential Information is provided, while the Receiving Party shall bear all responsibility for actions of such Representatives.
2.2. Failure by the Party to comply with the conditions of clause 2.1 hereof is a valid ground for termination of access to Confidential Information.
2.3. In case of conflict of confidentiality conditions in contracts entered into by the Parties, under which the Receiving Party must receive or has received access to Confidential Information (if any) and the conditions of these Non-Disclosure Obligation Terms, these Non-Disclosure Obligation Terms shall prevail.
2.4. The Receiving Party shall always keep confidential, shall not disclose, and shall not otherwise divulge Confidential Information, taking measures to secure the preservation of Confidential Information with a level of care no less than the level applied by Receiving Party for preservation of its own Confidential Information.
2.5. The Receiving Party and its Representatives having access to Confidential Information must use Confidential Information solely for the purposes for which Confidential Information was provided to the Receiving Party, and shall not use Confidential Information for any other purposes.
2.6. The Receiving Party is entitled to make copies, extracts, memoranda, or other documents (including those made using mechanical or electronic means) related to Confidential Information, which must also be marked with “Commercial Secret” or “Confidential”, only to the extent reasonably necessary for achieving the purpose for which such Confidential Information was provided to the Receiving Party and must account for all copies of documents containing Confidential Information and the places where Confidential Information is contained (stored).
2.8. The Receiving Party must ensure reliable storage of information preventing access to it by any persons except Representatives.
2.9. The absence of grounds for classifying information as Confidential Information does not mean that this information may be transferred, provided, and disclosed by the Receiving Party at its discretion.
2.10. Upon discovering facts of disclosure of Confidential Information to third parties, the Receiving Party must immediately inform the Disclosing Party of these facts and measures taken to mitigate the damage.
2.11. Documents (drafts, sketches) or other material carriers containing Confidential Information shall be marked with “Commercial Secret” or “Confidential”. The stamp “Commercial Secret” or “Confidential” is affixed in the upper right corner of all pages of the document, including the cover of the document.
2.11.1. If the information constituting Confidential Information is created as a result of hardware-software complexes and/or stored in electronic form, the stamp “Commercial Secret” or “Confidential” must be affixed in the electronic version of the document and/or in the text of the electronic message.
2.12. The presence of the stamp “Commercial Secret” or “Confidential” on a document (including an electronic document and/or in the text of an electronic message) or another material carrier means that the information contained in such document (on such material carrier) is classified as Confidential Information, even if the information contained in such document (on such carrier) is not directly classified hereunder as Confidential Information, except for publicly available information and/or information, the mandatory disclosure or non-restriction of access to which is established by the current legislation of the country of one of the Parties.
2.13. The stamp “Commercial Secret” or “Confidential” is affixed by a special stamp or printed on any printing device or handwritten.
2.14. Material carriers containing information constituting Confidential Information may be packed in envelopes (cases) marked with the stamp “Commercial Secret” or “Confidential”.
3. DISCLOSURE OF INFORMATION. INFORMATION PROTECTION
3.1. All information transmitted by the Disclosing Party to the Receiving Party in any form, including by email, belongs to the Disclosing Party. Documents and any copies, extracts, memoranda, or other documents must be immediately returned to the Disclosing Party or destroyed upon the written request of the Disclosing Party. The Disclosing Party has the right to demand confirmation of the proper destruction of Confidential Information by the Receiving Party, and the Receiving Party must provide such confirmation within 3 (Three) business days from the receipt of the corresponding request from the Disclosing Party.
3.2. If the Receiving Party is required by the law of the country of either Party or upon the request of government authorities to disclose Confidential Information, the Receiving Party must immediately notify the Disclosing Party in writing in advance. The Receiving Party agrees to disclose the information strictly within the limits established by the law of each Party.
3.3. The Disclosing Party reserves the right to analyze the measures taken by the Receiving Party to protect Confidential Information. If the Receiving Party refuses to provide information on measures to protect Confidential Information or identifies insufficient measures taken to protect Confidential Information, the Disclosing Party has the right to refuse to provide Confidential Information.
4. LIABILITY OF THE PARTIES. JURISDICTION. TERM OF CONFIDENTIALITY OBLIGATION
4.1. The Party that has not fulfilled its obligations as specified herein must compensate the other Party for damages caused by the disclosure or unauthorized use of Confidential Information. Damages are compensated in accordance with the governing law. In addition to damages, the guilty Party shall pay a fine in the amount of EUR 1,000 for each violation (each unauthorized disclosure) to the party which was effected by such violation or equivalent, if payment in euros is not available for any reason.
4.2. The parties agree that the validity, operation, and performance of this Agreement shall be governed by and interpreted in accordance with the laws of Cyprus applicable therein (notwithstanding conflict of law rules).
4.3. Any dispute concerning the subject matter of these Non-Disclosure Obligation Terms, or the breach, termination, or validity thereof (“a Dispute”) will be settled exclusively in accordance with the procedures set forth herein. The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. If the Dispute has not been resolved through good faith efforts and negotiations of senior officers or representatives of the parties within fifteen (15) days of receipt by the relevant party of the notice of Dispute, such notice will be deemed to be a notice of arbitration and the parties agree to submit the Dispute to the Vietnam International Arbitration Centre (VIAC) in accordance with its Rules of Arbitration to be resolved by a Sole Arbitrator. The place of arbitration shall be VIAC offices in Ho Chi Minh City, Vietnam. The language of arbitration shall be English. The parties waive all rights of appeal therefore to any court or tribunal, and agree that the only recourse by any party to any court will be for the purpose of enforcing an arbitration award.
4.4. These Non-Disclosure Obligation Terms are in force and binding for the relevant Parties within three (3) years following the date of:
a) signing a KYC Form specifying the obligation to follow these terms;
b) signing an agreement of any kind specifying the obligation to follow these terms.
