1.1. Affiliate(s) – with respect to either Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party.
1.2. Confidential Information – all nonpublic information (whether verbal, electronic or written) concerning the Relationship disclosed by the Disclosing Party to the Receiving Party: (i) that is designated as confidential or (ii) that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation:
(a) Nonpublic information relating to the Disclosing Party’s business (including, without limitations, trade secrets; intellectual property; know-how; source code; data (including personal data); information about Disclosing Party’s clients, Personnel, partners, business plans and methods, promotional and marketing activities, products, services, technology, software; information contained in the databases; financial information; other information relating to the Disclosing Party’s business);
(b) Information generated by either Party based on the Disclosing Party’s Confidential Information;
(c) Third-party information that the Disclosing Party is obliged to keep confidential, and
(d) The nature, content and existence of a Relationship, discussion or negotiations between the Parties.
Confidential information shall be regarded confidential irrespective of whether it was disclosed before or after conclusion of this Agreement.
Exclusion: Confidential Information shall not include any information that:
(a) Is or becomes publicly available without breach of this Agreement;
(b) Was known by the Receiving Party prior to its receipt from the Disclosing Party;
(c) Is disclosed to the Receiving Party from any third party, except where the Receiving Party knows, or reasonably should know, that such disclosure constitutes a wrongful tortious act, or
(d) Is independently developed by the Receiving Party without use of any Confidential Information.
1.3. Disclosing Party – the Party (including its Personnel) disclosing Confidential Information to the other Receiving Party.
1.4. Personnel – Party’s owners, representatives, officers, employees, contractors, legal and accounting advisers, and Affiliates.
1.5. Receiving Party – the Party (including its Personnel) receiving Confidential Information from Disclosing Party.
USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
2.1. The Receiving Party may use Confidential Information only in connection with the Relationship.
2.2. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information.
2.3. The Receiving Party shall restrict use, knowledge and possession of Confidential Information to its Personnel, who:
(a) have a need to know Confidential Information in connection with the Relationship;
(b) are informed of the confidential nature of the Confidential Information, and
(c) have undertaken in writing obligations with respect to Confidential Information that are consistent with this Agreement.
2.4. The Receiving Party may disclose Confidential Information received from the Disclosing Party:
2.4.1. if the Disclosing Party gave its prior written consent to such disclosure;
2.4.2. if the disclosure of Confidential Information is required by the applicable laws. In this case, the Receiving Party must immediately (but not later than at least 5 (five) business days before the actual disclosure) notify the Disclosing Party in writing of that requirement. The Receiving Party must then:
(a) assist and permit the Disclosing Party to oppose or restrict such disclosure; and
(b) to the extent practicable, make disclosure on terms which will preserve the strictest confidentiality of the Confidential Information.
2.5. Each Party shall ensure that its Personnel complies with this Agreement.
SECURITY AND CONTROL
3.1. Receiving Party must establish and maintain appropriate and effective technical and organizational measures to ensure security, confidentiality and integrity of the Confidential Information to safeguard the Disclosing Party’s Confidential Information from unauthorized access, use, disclosure or alteration.
3.2. Receiving Party must provide such assistance as may reasonably be requested by the Disclosing Party in relation to any proceedings which the Disclosing Party may take against any person for unauthorized disclosure or use of the Disclosing Party’s confidential Information.
ACKNOWLEDGEMENT OF OWNERSHIP
4.1. Each Party acknowledges and agrees that all right, title and interest in and to the Confidential Information shall remain the exclusive property of the Disclosing Party and the Receiving Party shall not acquire any interest, license or other right in the Confidential Information.
4.2. The Disclosing Party’s disclosure of Confidential Information will not constitute an express or implied grant to the Receiving Party of any right to or under the Disclosing Party’s patents, copyrights, trade secret, trademarks or other intellectual property right.
4.3. Neither Party will use any trade name, trademark, logo or any other proprietary rights of the other Party (or any of its Affiliates) in any manner without prior written authorization of such use by the other Party.
RETURN OF CONFIDENTIAL INFORMATION
5.1. Subject to compliance with applicable laws, the Receiving Party must immediately upon written request from the Disclosing Party:
(a) return the Confidential Information to the Disclosing Party; and/or
(b) destroy the Confidential Information of the Disclosing Party.
5.2. Obligation to destroy and/or return the Confidential information includes returning and/or destroying (as appropriate) of all tangible materials or portions thereof constituting Confidential Information (including, without limitations, all summaries, copies and excerpts of Confidential Information).
5.3. The Receiving Party shall provide a written certification to the Disclosing Party that the Receiving Party has fully complied with its obligations under this Section 5.
5.4. The return or destruction of the Confidential Information does not release the Receiving Party from the obligations under this Agreement.
BREACH OF THE AGREEMENT
6.1. The Receiving Party must take all reasonable steps, at its own expense, to prevent or stop the suspected or actual breach of this Agreement (including, but not limited to, unauthorized use or disclosure of Confidential Information).
6.2. The Receiving Party must notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party. In this case the Receiving Party will cooperate with the Disclosing Party to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use and disclosure.
LIABILITY OF THE PARTIES
7.1. Failure to comply with one or several obligations under this Agreement shall be regarded as a non-fulfilment of the Agreement in its entirety. For the non-fulfilment of the Agreement the Party bears responsibility according to the provisions of the applicable laws and this Agreement.
7.2. The Party responsible for the non-fulfilment of the Agreement obligations shall compensate for the direct and indirect damages of the other Party.
7.3. Each Party is fully liable for the breaches of the Agreement caused by its Personnel.
TERM OF THE AGREEMENT; AMENDMENTS
8.1. The Agreement becomes effective on the day of its signing by both Parties.
8.2. Unless the Parties agree otherwise in writing, the obligations of the Parties to keep confidential the Confidential Information shall remain in force for an unlimited period or until the Confidential Information becomes generally available in the public domain (other than through a breach of this Agreement).
8.3. This Agreement may be terminated by a mutual written agreement of the Parties.
8.4. This Agreement may be amended or supplemented in writing. Amendments or supplements shall be signed by both Parties. Amendments and supplements, after being signed, shall become an integral part of the Agreement.
APPLICABLE LAWS AND DISPUTE RESOLUTION
9.1. The Parties agree that the law applicable to this Agreement is the law of the Philippines
9.2. The Parties shall seek to settle any dispute arising out of or in connection with this Agreement through negotiations. In case of a dispute, one Party shall submit to the other Party a written complaint. The other Party shall provide a written response to such complaint within 10 (ten) days as of receipt thereof. If the Parties fail to come to an understanding within 30 (thirty) days from the date on which the respective Party received the said written complaint from the other Party, such dispute shall be settled by the court of Philippines according to the provisions of the statutory enactments of the Philippines.
FINAL PROVISIONS
10.1. Entire Agreement: This Agreement sets forth the entire agreement and understanding between the Parties relating to the subject matter thereof and superseded all prior negotiations and terminated all prior agreements between the Parties.
10.2. Assignment: Unless otherwise provided in the Agreement, neither Party may assign or delegate any of its rights and obligation under this Agreement to a third person without the prior written consent of the other Party.
10.3. Language: This Agreement is drafted and executed in English language. All notices or communication to be made according to or in connection with this Agreement shall be in English language.
10.4. Notices: All notices under this Agreement shall be given in writing and delivered in one of the following ways: (a) in person against signature; (b) via e-mail indicated herein with confirmation of receipt; (c) sent by a registered mail to the legal address of the Party or (d) delivered by a professional courier to the legal address of the Party.
10.5. Changes: Each Party shall notify the other Party about changes in communication or company details indicated herein not later than within 3 (three) business days as of the date on which such change occurred. Before the said notification, all notices and communication submitted using the information indicated herein shall be deemed duly served.
10.6. Severability: Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement shall be unenforceable or invalid under applicable law, such provision shall be invalid only to the extent of such unenforceability or invalidity, and the remaining provisions of this Agreement shall continue to be in effect. In the event of such unenforceability or invalidity, the Parties hereto shall negotiate in good faith to agree on the changes or amendments of this Agreement that are required to carry out the intent of this Agreement.
10.7. Conflict of Terms: In the event of any inconsistency between the provisions of this Agreement and any provision of any other contract, agreement and/or other document between the Parties, provisions of this Agreement, in respect of its subject matter, shall govern and control.