CONFIDENTIALITY AGREEMENT
This Agreement is made on [Enter date] (“Effective Date”) by and between:
PARTIES:
1. Digital Nasional Berhad (Registration No: 201701005338 (1219503-P)), a company incorporated in Malaysia and
has its registered address at Level 12, Exchange 106, Lingkaran TRX, Tun Razak Exchange, 55188 Kuala Lumpur,
Wilayah Persekutuan Kuala Lumpur, Malaysia. (“DNB”)
2. [Enter details]
(“Access Seeker”)
DNB and the Access Seeker shall for the purpose of this Agreement be referred to individually as a “Party” and collectively the “Parties”
as the context may require.
“Recipients” means, in relation to a Party, its directors,
1. PREAMBLE AND DEFINITIONS officers, employees and professional advisers who need
to receive and consider the Confidential Information for
1.1 DNB and the Access Seeker intend to engage in the purposes of the Proposed Engagement.
discussions for the exchange of business and/or technical
information relating to the Proposed Engagement (as 1.3 Capitalised words used but not defined in this Agreement
hereinafter defined). Accordingly, it may be necessary for have the meaning given to them in the Reference Access
either Party and/or its representatives to disclose to the Offer published by DNB on its website.
other Party, certain confidential and proprietary
1.4 References to a person include any company, limited
information.
liability partnership, partnership, business trust or
1.2 In this Agreement, the following words will, unless the unincorporated association (whether or not having a
context otherwise requires, have the following meanings: separate legal personality) and references to a company
shall include any company, corporation or any body
“Agreement” means this agreement as amended from corporate, wherever incorporated.
time to time.
1.5 Whenever the words “include”, “includes”, “including”,
1.3 “Confidential Information” means all information of a “in particular” or “such as” are used, they are deemed to
confidential or proprietary nature in connection with the be followed by the words “without limitation”.
Proposed Engagement in whatever form that is or has
been disclosed by or on behalf of one Party to the other 1.6 References to one gender includes all genders and
Party whether or not marked as confidential which references to the singular include the plural and vice
includes but is not limited to the discussions between versa.
DNB and the Access Seeker, correspondence, minutes,
contracts, tenders, technical drawings, schematics,
samples, working/ testing instructions, products, 2. CONFIDENTIALITY OBLIGATIONS
services, sales, performances, plans, strategies,
customers, financial or human resources, processes, 2.1 Subject to clause 3, each Party undertakes to the other
management, contracts, project documentation, software, Party that in respect of Confidential Information of the
hardware, technical data, trade secrets, know-how, ideas other Party, it will:
and inventions (whether patentable or not), which is i. treat the Confidential Information as confidential;
disclosed by or on behalf of one Party to the other in any
manner, whether orally, visually or in tangible form ii. not disclose, copy, reproduce, distribute or supply the
(including, without limitation, hardcopy documents, Confidential Information to any person or third party
devices and computer readable media). For the avoidance (including, for the avoidance of doubt, subcontractors of
of doubt, Confidential Information also includes (a) all the respective Party) other than its Recipients on a need-
information that relates to a current, former or to-know basis to the extent necessary in performing their
prospective customer; and (b) Personal data as defined obligations in connection with the Proposed Engagement;
under the Malaysian Personal Data Protection Act 2010 and
(or other applicable Privacy Law) that is in the possession iii. not directly or indirectly use or permit or cause to be used
of the disclosing or receiving Party. the Confidential Information for any purpose other than
“Parties” means the contracting parties to this Agreement in relation to the Proposed Engagement.
and a “Party” means either of the Parties. 2.2 Subject to clause 3, neither Party will disclose to any
“Proposed Engagement” means assessing an Access person: (i) the existence or content of this Agreement; (ii)
Request and negotiating the terms of the Access the fact that negotiations are taking place between the
Agreement as contemplated by the Reference Access Parties relating to the Proposed Engagement; or (iii) any
Offer. content of the negotiations; except with the prior written
consent of the other Party.
Digital Nasional Berhad (formerly known as Digital Nasional Sdn. Bhd.) www.digital-nasional.com.my
201701005338 (1219503-P)
Level 12, Exchange 106, Lingkaran TRX, Tun Razak Exchange, 55188 Kuala Lumpur, Malaysia.
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2.3 Each party will not without the prior written consent of 3.4 Notwithstanding anything in this Agreement, DNB may
the other party: (i) disclose the details of their relationship disclose the contents of this Agreement and related
with the other party; (ii) engage in any advertising, Confidential Information:
marketing or promotion that discloses the existence of
this Agreement or the relationship between the Parties; or i. to its shareholder, the Minister of Finance, Incorporated;
(iii) use names, brands, logos, service or trademarks of ii. to its third party service providers provided that such
the other party. service providers are subject to confidentiality
2.4 Each party will not discuss the Proposed Engagement obligations in favour of DNB equivalent to those in this
with, or provide access to any Confidential Information Agreement.
to, any persons or third parties (including to the other
party’s employees, directors, officers, professional
advisors or subcontractors) who have not been identified 4. RETURNING CONFIDENTIAL INFORMATION
by the other party in writing as participating in the 4.1 Subject to clause 4.2 and immediately following the
Proposed Engagement. earlier of: (i) the end of either Party’s involvement with
the Proposed Engagement; or (ii) receipt of a written
request from the disclosing Party, the receiving Party
3. EXCEPTIONS will:
3.1 Neither Party shall be liable for disclosure or use of any i. at the election of the disclosing Party, return to the
Confidential Information that it can demonstrate: disclosing Party or destroy all documents and materials
i. was disclosed with the prior written consent of the other (including computer media) or such parts thereof that
Party; contain or reflect any Confidential Information together
with any copies which are in the receiving Party’s
ii. is in the public domain other than as a result of being possession or control or are in the possession or control
disclosed in breach of this Agreement; of any of its Recipients, provided that such information is
in a form which is capable of delivery or destruction; and
iii. was lawfully known to it or in its possession before the
date of this Agreement and that Party was not under any ii. permanently erase all Confidential Information from any
obligation of confidence in respect of the Confidential computer, word processor, mobile telecommunications
Information at that time; device or similar device into which it was programmed or
copied by or on behalf of that Party or by or on behalf of
iv. is developed independently by it without use or reliance its Recipients.
on any Confidential Information disclosed by or on
behalf of the disclosing Party; and 4.2 Each Party may retain: (i) one copy of the Confidential
Information for the purposes of and for so long as
v. was received from a source not connected with the other required by any law, court or regulatory agency or
Party at a time when that source, so far as the receiving authority or its internal compliance procedures; and (ii)
Party was reasonably aware, was not under any obligation electronic files containing Confidential Information
of confidence in respect of the Confidential Information. created pursuant to automatic archiving and back-up
3.2 A Party may disclose Confidential Information if and to procedures.
the extent that it is required to do so by law or by any 4.3 Each Party acknowledges that neither the destruction,
court or regulatory agency or authority, provided that, to return nor deletion of any Confidential Information will
the extent that it is permitted to do so, the disclosing release it from the obligations contained in this
Party: Agreement.
i. notifies the other Party as soon as possible upon 4.4 This Agreement shall not obligate either Party to enter
becoming aware of any such requirements; and into any other definitive agreement with each other in
ii. co-operates with the other Party (at the other Party’s relation to the Proposed Engagement.
reasonable expense) to avoid or limit the content and
extent of disclosure and to gain assurances as to
confidentiality from the body to whom the information is 5. REPRESENTATIONS
to be disclosed.
5.1 Each Party will be responsible for making its own
3.3 A Party and any of its Recipients receiving from the other decisions in relation to the Confidential Information and
Party any other information of a confidential nature acknowledges that neither the other Party nor any of its
which is not in relation to the Proposed Engagement Recipients make any representation, warranty or
(“Non-Related Confidential Information” for the undertaking, express or implied, as to the accuracy,
purposes of this clause) shall notify the other Party and reliability, completeness or reasonableness of the
shall not be liable for inadvertent disclosure of such Non- Confidential Information.
Related Confidential Information provided that:
5.2 Each Party understands that the furnishing of the
i. it uses the same degree of care in safeguarding such Non- Confidential Information will not constitute an offer of
Related Confidential Information as it reasonably uses for any nature whatsoever by any Party or Recipient, nor
its own confidential information; form the basis of any representation in relation to any
contract. It is acknowledged by the Parties that this
ii. it will return or destroy such Non-Related Confidential Agreement does not obligate either Party to enter into any
Information as requested by the other Party; and further agreement or to proceed with or participate in any
upon discovery of such inadvertent disclosure or use, it will transaction or refrain from entering into any agreement or
endeavour to prevent any further inadvertent disclosure negotiations with any Party or constitute a commitment
or use. or any other obligation by either Party with respect to the
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Proposed Engagement or any related transaction. acknowledges that a right to damages at law may be
inadequate to protect the other Party against any breach
by them or by their Recipients of this Agreement.
6. INTELLECTUAL PROPERTY Without prejudice to any other rights and remedies
otherwise available, each Party agrees that the other Party
6.1 A Party and its Recipient shall not remove any may seek injunctive relief against any breach of this
confidential/proprietary rights legend from materials Agreement and the Party against whom such injunctive
disclosing or embodying Confidential Information. A relief is sought agrees not to oppose the granting of
disclosing Party retains all rights in its Confidential injunctive relief in favour of the other Party on the
Information. No license or conveyance of intellectual grounds of failure to prove actual damage.
property right or any other right is granted to a Party or
its Recipients or implied by the disclosure of the 7.8 No implied relationship. Nothing contained or implied in
Confidential Information to a Party or its Recipients. The this Agreement creates a joint venture or partnership
Parties acknowledge that the Confidential Information between the Parties or makes one Party the agent of legal
(including any intellectual property rights) disclosed shall representative of the other Party for any purpose.
remain the property of the owner or to the disclosing 7.9 Bribery, Corruption, Fraudulent Acts and Inducement.
Party and no warranty as to its accuracy is given by the Each Party agrees and undertakes that it and its
disclosing Party to the other Party or its Recipients. Recipients:
i. shall comply with all ABAC Laws. For the purpose of
7. GENERAL this Agreement, “ABAC Laws” means laws and
regulations relating to bribery and corruption including
7.1 Entire Agreement. This Agreement together with any local laws such as the Malaysian Anti-Corruption
documents referred to in it constitutes the entire Commission Act 2009, and foreign laws such as the UK
agreement (and supersedes any previous written or oral Bribery Act 2010 and the US Foreign Corrupt Practices
agreement) between the Parties relating to the subject Act 1977;
matter of this Agreement.
ii. shall not, directly or indirectly give, make, offer or
7.2 Notices. Any notices or communications required or receive or agree to make or receive any payments,
permitted to be given under this Agreement may be contributions, gifts, entertainment or other advantages for
delivered by hand, deposited with a nationally recognized the purposes of obtaining or retaining business, of which
overnight carrier, electronic-mail, or mailed by certified a reasonable person would consider to be unethical,
mail, return receipt requested, postage prepaid, in each illegal or improper;
case, to the address of the other Party first indicated above
(or such other addressee as may be furnished by the Party iii. shall not, offer, promise or pay a public official, either
in accordance with this paragraph). All such notices or directly or through a third party, for the corrupt purpose
communications shall be deemed to have been given and of influencing any act or decision of any public official,
received (i) in the case of personal delivery or electronic- inducing any public official to act in violation of a lawful
mail, on the date of such delivery, (ii) in the case of duty, or inducing any public official to influence any act
delivery by a nationally recognized overnight carrier, on or decision of any governmental authority, to retain or
the third business day following dispatch and (iii) in the direct business to, or obtain an advantage for any person,
case of mailing, on the seventh business day following whether or not for the purpose of this Proposed
such mailing. Engagement; and
7.3 Variation. This Agreement may not be varied or amended iv. shall comply with each Party’s anti-corruption and anti-
unless such variation or amendment has been expressly bribery policy and procedures as may be amended from
agreed to in writing by the parties. time to time in the course of performing and/or carrying
out its obligations under and/or in connection with this
7.4 Severability. If any provision of this Agreement shall be Agreement. 7.10 Costs and Expenses.
held illegal, invalid or unenforceable, the validity,
legality and enforceability of the remaining provisions Each Party is to bear its own costs and expenses (if any)
contained herein shall not be affected or impaired in any incurred in performing its obligations under this
way. Agreement. The stamping costs of this Agreement (where
applicable) shall be shared equally between the Parties.
7.5 Indemnity. The receiving Party hereby indemnifies
disclosing Party against all losses, damages, costs and 7.11 Governing Law. This Agreement is governed by the laws
expenses, which disclosing Party and/or its related of Malaysia. Any dispute arising out of or in connection
entities may incur or sustain by reason of any breach by with this Agreement, including any question regarding its
receiving Party of the terms and conditions of this existence, validity or termination shall be referred to and
Agreement. finally resolved by arbitration administered by the Asian
International Arbitration Centre (“AIAC”) in accordance
7.6 Waiver. A failure to exercise or delay in exercising a right with the AIAC Fast Track Arbitration Rules. In this
or remedy provided by this Agreement or by law does not regard, the seat of arbitration shall be Kuala Lumpur,
constitute a waiver of the right or remedy or a waiver of Malaysia; the tribunal shall consist of one (1) arbitrator;
other rights or remedies. No single or partial exercise of and the language of the arbitration shall be English. Any
a right or remedy provided by this Agreement or by law decision by the arbitral tribunal shall be final and binding
prevents further exercise of the right or remedy or the on the Parties.
exercise of another right or remedy.
7.7 Relief. The rights and remedies provided by this
Agreement are cumulative and are not exclusive of any The Parties have caused this Agreement to be
rights or remedies provided by law. Each Party EXECUTED by their duly authorized representatives.
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Signed for and on behalf of DNB: Signed for and on behalf of the Access Seeker:
Signature: ____________________________ Signature: ____________________________
(Authorised Signatory 1) (Authorised Signatory)
Name: ____________________________ Name: ____________________________
and date (Print Name) (Date of Signature) and date (Print Name) (Date of Signature)
Signature: ____________________________
(Authorised Signatory 2)
Name: ____________________________
and date (Print Name) (Date of Signature)
