NON–DISCLOSURE AGREEMENT
THIS AGREEMENT is made on the 7th day of November 2019
BETWEEN
NAEC(MALAYSIA)[Link], a company incorporated and
existing under the laws of Malaysia with its registered address at Plo 300，Jalan Keluli, Kawasan
Perindustrian 81700 Pasir Gudang,Johor,Malaysia (the “Recipient”) of the one part;
AND
PMG CORPORATION LTD, a company incorporated and existing under the laws of Malaysia with its bus
iness address at 33, Marine City 2‐RoHaundae‐Gu Busan Korea (B tower
831) (the “Disclosing Party”) of the other part.
(The Disclosing Party and the Recipient shall in this Agreement be collectively called the “Parties” and i
ndividually as the “Party”, as the case may be).
RECITALS:‐
A.
In connection with the Disclosing Party’s tender submission for Refinery Development Master Plan
(RDMP) Project RU Valikpapan
(the “Project”), the Disclosing Party will disclose to the Recipient certain information of proprietary nat
ure, such information below more accurately defined as Confidential Information.
B.
The Parties wish to enter into this Agreement to ensure the confidentiality of such Confidential Inform
ation is in accordance with the terms of this Agreement.
In consideration of such disclosure of Confidential Information by the Disclosing Party, the Parties here
by agree as follows:‐
1. “Confidential Information” as used in this Agreement means, regardless of the form of disclosure o
r the medium used to store it, any information or material (whether or not reduced to writing or still in
development), which is:‐
(i) proprietary to the Disclosing Party or designated or treated as Confidential Information by the Disc
losing Party; or
(ii) pertaining to business, affairs or operations of the Disclosing Party, whether or not owned or de
veloped by the Disclosing Party and of which the Recipient may obtain knowledge through or as a resu
lt of:‐
(iii) the discussions with the Disclosing Party;
(iv) access to the Disclosing Party’s premises; or
(v) communications with the Disclosing Party’s Personnel.
Without limiting the generality of the foregoing, Confidential Information includes:‐
(a) designs, concepts, drawings, ideas, inventions, specifications, techniques, discoveries, mod
els, data, source code, object code, documentation, diagrams, flow charts, research, development, pro
cesses, procedures, knowhow, new product or new timetables, strategies and development pla
ns (including prospective trade names or trademarks), customer names, supplier names, Intellectual
Property Rights and other information related to customers, suppliers, distributors, wholesale
rs, pricing policies and financial information;
(b) the nature and details of the Project; and
(c) any data, specifications, reports and other materials and information relating to the business, affai
rs or operations of the Disclosing Party or belonging to the Disclosing Party and/or those of its intende
d partner(s).
but excludes information:‐
(aa)
that is independently developed by the Recipient, as evidenced by the files in existence and written re
cords of the Recipient; or
(bb)
that is already in the public domain through no act or omission of the Recipient or its Personnel; or
(cc)
that is required to be disclosed by applicable law or government order, decree, regulation, legal proces
s or regulatory authority provided that the Recipient shall give written notice to the Disclosing Party pri
or to such disclosure; or
(dd)
that is received in good faith by the Recipient from a third party who represents that it is in
rightful possession of such information and is not prohibited from disclosing such information pur
suant to any fiduciary, contractual, or other duty owed to any person prior to any disclosure thereof
from the Disclosing Party.
“Intellectual Property Rights” as used in this Agreement includes, both in Malaysia and throughout the
world, any copyright, trade mark, service mark, design, patent, patent applications, or other proprietar
y right, or any right to registration of such rights.
“Personnel” as used in this Agreement means directors, employees, agents and representatives of the
Parties.
2. In consideration of the Disclosing Party disclosing Confidential Information to the Recipient, the R
ecipient agrees:‐
(i) to use the Confidential Information solely as permitted by Clause 3;
(ii) not to copy, alter, modify, disassemble, reverse engineer or decompile any of the Confidential
Information and to cause its Personnel to comply with this Clause 2(ii);
(iii) subject to Clause 4, to keep strictly confidential and cause its Personnel to keep strictly confid
ential the Confidential Information; and
(iv) to comply with the terms of this Agreement.
3. The Recipient shall use the Confidential Information solely for the purposes of evaluati
ng the Project with the Disclosing Party.
4. The Recipient may disclose the Confidential Information as follows:‐
(i) to the Personnel of the Recipient who:‐
(a) have a need to know (and only to the extent that each has a need to know); and
(b) before disclosure, such Personnel notifies the Recipient in writing of its intention to do so, and the
Recipient refrains from any such disclosure until such Personnel concerned has entered in to
a separate confidentiality agreement with the Recipient to keep strictly confidential all Confid
ential Information (in this Agreement called a “Direction”); or
(ii) if disclosure is required by law (and then only to the extent, and to the persons, required by law a
nd in accordance with Clause 5).
The Recipient shall be responsible for the adherence of its Personnel, to whom disclosure may have be
en made, to the terms of this Agreement.
5. If the Recipient is required by law to disclose any Confidential Information to a third party the Reci
pient must:‐
(i) before doing so:‐
(a) notify the Disclosing Party; and
(b) give the Disclosing Party a reasonable opportunity to take any steps the Disclosing Party consider
s necessary to protect the confidentiality of that information; and
(ii) notify the third party that the information is confidential information of the Disclosing Party.
6. The Recipient must:‐
(i) safeguard the Confidential Information from unauthorized use or disclosure;
(ii) keep the Confidential Information under its control;
(iii) take reasonable steps to ensure, at all times, that each Personnel complies with a Direction; a
nd (iv) notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual
breach of a Direction.
7. No licence or assignment of an Intellectual Property Right as may be contained in or be associated
with the Confidential Information is granted to the Recipient by virtue of this Agreement.
8. The Recipient must immediately, on request at any time from the Disclosing Party:‐
(i) return to the Disclosing Party; or
(ii) destroy and certify in writing to the Disclosing Party the destruction of;
all Confidential Information, stored in any medium, in the possession or control of the Recipient (includ
ing the original medium, copies and any notes and other documents or records prepared by the Recipi
ent based on or incorporating any Confidential Information), and the Recipient and its Personnel shall
not keep any copies thereof save where required for audit purposes and/or for compliance with any re
quirements.
9. The Recipient and Disclosing Party shall not assign or transfer any of its rights and/or obligations u
nder this Agreement without the prior written consent of the Disclosing Party and Recipient respectivel
y.
10. Nothing in this Agreement shall be construed as:‐
(a) creating any obligation on the part of the Disclosing Party to disclose any Confidential Information
to the Recipient;
(b) creating any obligation or an expectation on the part of any Party to enter into a business relation
ship with any of other parties, or an obligation to refrain from entering into a business relationship wit
h any third party; or
(c) creating a joint venture, partnership or agency relationship between the Parties, it being understo
od that the Parties are independent contractors visà‐vis one another.
11. No Party shall have the right, power or implied authority to create any obligation or duty, express
or implied, on behalf of another Party.
12. The Recipient understands and acknowledges that the Confidential Information has been develop
ed or obtained by the Disclosing Party by the investment of significant time, effort and expense, a
nd that such Confidential Information provides the Disclosing Party with a significant competitiv
e advantage in its business. The Recipient hereby acknowledges and agrees that due to the unique na
ture of the Disclosing Party Confidential Information, monetary damages may be inadequate to compe
nsate the Disclosing Party for any breach by the Recipient of any of the terms and conditions set fort
h in this Agreement. Accordingly, it is agreed that, in addition to any other remedy to which the Disclo
sing Party shall be entitled at law or in equity, the Disclosing Party shall be entitled to injunctive relief t
o prevent such breaches.
13. Neither Party shall be liable to the other under this Agreement for any loss of profit, business, con
tracts, revenues, or anticipated savings whatsoever, direct or otherwise. Notwithstanding the foregoing
, in no event shall either Party be liable to the other for breach of this Agreement or Tort (including ne
gligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof,
for any indirect or consequential losses of any nature.
14. All Confidential Information is disclosed “as is” and the Disclosing Party make no representation
or warranty, implied or otherwise, as to its quality, accuracy or completeness.
15. This Agreement sets forth the entire understanding and agreement of the Parties with respect to
the subject matter hereof and supersedes all previous oral or written representations, agreements and
understandings with respect to the subject matter hereof.
16. For the avoidance of doubt, it is specifically agreed that the confidentiality obligation set forth her
ein shall survive the completion of the Project and shall remain binding for as long as the Confidential
Information has not become part of the public domain.
17. This Agreement is governed by and is to be construed in accordance with the laws of Malaysia.
18. Each Party shall bear its own legal and other costs and expenses relating directly or indirectly to
the preparation of, and performance of its obligations under, this Agreement.
19. This Agreement may be signed in any number of counterparts. All counterparts taken together wi
ll be taken to constitute one document.
20. In this Agreement, unless the context otherwise requires:‐
(i) words importing the singular number shall include the plural number and vice versa and reference
s to natural persons shall include bodies corporate and the use of any gender shall include all other ge
nders;
(ii) references to Clauses are references to clauses of this Agreement;
(iii) any reference to this “Agreement” shall be construed as a reference to this Agreement as the sa
me may be or have been or may from time to time be amended, varied or supplemented;
(iv) “including” and similar expressions are not and must not be treated as words of limitation;
(v) words denoting an obligation on a Recipient to do any act matter or thing includes an obligation t
o procure that it be done and words placing a Recipient under a restriction include an obligation not to
permit infringement of the restriction; and
(vi) “person” includes any individual, company, corporation, firm, partnership, joint venture, associati
on, organisation, trust, state or agency of a state (in each case whether or not having separate legal p
ersonality).
********************************************
Signed in agreement and acceptance of its terms for and on behalf of NACE(Malaysia)
[Link]:‐
………………………………….
Signatory
Name:
Designation:
Company Stamp:
Signed in agreement and acceptance of its terms for and on behalf of PMG CORPORATION LTD:‐
………………………………….
Signatory
Name:
Designation:
Company Stamp:
