NON-DISCLOSURE AGREEMENT 2

NON-DISCLOSURE AGREEMENT

THIS AGREEMENT  is made on this the <<’Day’>> day of <<’Month’>> 20--- at

<<’Location’>>, India.

BETWEEN

Andhra Pradesh Technology Services (APTS) having its office at ---------------------------------------

--------------------------- India hereinafter referred to as APTS/‘State Designated Agency’or ‘------

------------’,  which expression shall, unless the context otherwise requires, include its

permitted successors and assigns);

AND

<<’Implementing Agency Full Name’>>,  a Company incorporated under the  Companies Act,

1956, having its registered office at <<’Implementing Agency Regd Office’>> (hereinafter

referred to as ‘the ‘System integrator’/SI’ which expression shall, unless the context otherwise

requires, include its permitted successors and assigns).

Each of the parties mentioned above are collectively referred to as the ‘Parties’ and

individually as a ‘Party’.

WHEREAS:

1. APTS/State Designated Agencyisdesirous to implement the project of eDistrict

Application which is a Mission Mode Project (MMP) as per NeGP.

2. The APTS/SDA and ‘System integrator’have entered into a Master Services Agreement

dated <<’Date’>> (the “MSA”) as well as a Service Level Agreement dated <<’Date’>>

(the “SLA”) in furtherance of the Project.

3. Whereas in pursuing the Project (the “Business Purpose”), a Party (“Disclosing Party)

recognizes that they will disclose certain Confidential Information (as defined

hereinafter) to the other Party (“Receiving Party”).

4. Whereas such Confidential Information (as defined hereinafter) belongs to Receiving

Party as the case may be and is being transferred to the Disclosing Party to be used

only for the Business Purpose and hence there is a need to protect such information

from unauthorized use and disclosure.

NOW THEREFORE, in consideration of the mutual covenants, promises, assurances, Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   68 | P a g e

representations and provisions set forth herein, the Parties hereto agree as follows:

Definitions and Interpretation

1.3 Definitions

Terms and expressions used in this Agreement (including the Introduction) shall have the

same meanings set out in Schedule I of MSA.

1.4 Interpretation

In this Agreement, unless otherwise specified:

(a) references to Clauses, Sub-Clauses, Paragraphs and  Schedules are to clauses,

sub-clauses, paragraphs of and schedules to this Agreement; 

use of any gender includes the other genders;

references to a ‘company’ shall be construed so as to include any company,  corporation or

other body corporate, wherever and however incorporated or established;

references to a ‘person’ shall be construed so as to include any individual, firm, company,

government, state or agency of a state, local or municipal authority or government body or

any joint venture, association or partnership (whether or not having separate legal

personality);

a reference to any statute or statutory provision shall be construed as a reference to the same

as it may have been, or may from time to time be, amended, modified or re-enacted;

any reference to a ‘day’ (including within the phrase ‘business day’) shall mean a period of 24

hours running from midnight to midnight;

references to a ‘business day’ shall be construed as a reference to a day (other than a Sunday)

on which banks in the state of Andhra Pradesh are generally open for business;

references to times are to Indian standard time;

a reference to any other document referred to in this Agreement is a reference to that other

document as amended, varied, novated or supplemented at any time; and

all headings and titles are inserted for convenience only.  They are to be ignored in the

interpretation of this Agreement.

1.5 Measurements and Arithmetic Conventions

All measurements and calculations shall be in the metric system and calculations done to 2

(two) decimal places, with the third digit of 5 (five) or above being rounded up and below 5

(five) being rounded down except in money calculations where such amounts shall be

rounded off to the nearest INR. Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   69 | P a g e

1.6 Ambiguities within Agreement

In case of ambiguities or discrepancies within this Agreement, the following principles shall

apply:

(a) as between two Clauses of this Agreement, the provisions of a specific Clause

relevant to the issue under consideration shall prevail over those in a general

Clause; 

as between the provisions of this Agreement and the Schedules, the Agreement shall prevail,

save and except as expressly provided otherwise in the Agreement or the Schedules; and

as between any value written in numerals and that in words, the value in words shall prevail.

1.5 Priority of agreements

The Parties hereby expressly agree that for the purpose of giving full and proper effect to this

Agreement, the MSA and this Agreement shall be read together and construed harmoniously.

In the event of any conflict between the MSA and this Agreement, the provisions contained in

the MSA shall prevail over this Agreement.

Term

This Agreement will remain in effect for five years from the date of the last disclosure of

Confidential Information (“Term”), at which time it will terminate, unless extended by the

disclosing party in writing.

Scope of the Agreement

(a) This Agreement shall apply to all confidential  and proprietary information

disclosed by Disclosing Party to the Receiving Party and other information

which the disclosing party identifies in writing or otherwise as confidential

before or within (30) thirty days after disclosure  to the Receiving Party

(“Confidential Information”). Such Confidential Information consists of certain

specifications, documents, software, prototypes and/or technical information,

and all copies and derivatives containing such Information that may be

disclosed to the Disclosing Party for and during the Business Purpose, which a

party considers proprietary or confidential.

(b) Such Confidential Information may be in any form or medium, tangible or

intangible, and may be communicated/disclosed in writing, orally, or through

visual observation or by any other means to the Receiving Party. Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   70 | P a g e

Obligations of the Receiving Party

The Receiving Party shall:

(a) use the Confidential Information only for the Business Purpose and shall hold

the Confidential Information in confidence using the same degree of care as it

normally exercises to protect its own proprietary information, taking into

account the nature of the Confidential Information, and 

grant access to Confidential Information only to its employees on a ‘need to know basis’ and

restrict such access as and when not necessary to carry out the Business Purpose. 

cause its employees to comply with the provisions of this Agreement;

reproduce Confidential Information only to the extent essential to fulfilling the Business

Purpose, and 

prevent disclosure of Confidential Information to third parties;

disclose the Confidential Information to its consultants/contractors on a need to know basis;

provided that by doing so, the Receiving Party agrees to bind such consultants/ contractors to

terms at least as restrictive as those stated herein. The Receiving Party upon making a

disclosure under this Clause shall: 

I. advise the consultants/contractors of the confidentiality obligations imposed

on them by this Clause.

II. upon the Disclosing Party's request, the Receiving Party shall either return to

the disclosing party all Confidential Information or shall certify to the

disclosing party that all media containing Confidential Information have been

destroyed with evidence.

III. Provided, however, that an archival copy of the Confidential Information may

be retained in the files of the Receiving Party's counsel, solely for the purpose

of proving the contents of the Confidential Information.

IV. not to remove any of the other Party’s Confidential Information from the

premises of the Disclosing Party without prior written approval.

V. exercise extreme care in protecting the confidentiality of any Confidential

Information which is removed, only with the Disclosing Party’s prior written

approval, from the Disclosing Party’s premises. Each Party agrees to comply

with any and all terms and conditions the disclosing party may impose upon

any such approved removal, such as conditions that the removed Confidential

Information and all copies must be returned by a certain date, and that no

copies are to be made off of the premises.

VI. Upon the Disclosing Party’s request, the Receving Party shall promptly return

to the Disclosing Party all tangible items containing or consisting of the Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   71 | P a g e

disclosing party’s Confidential Information all copies thereof.

Exceptions to Confidential Information

The foregoing restrictions on each party's use or disclosure of Confidential Information shall

not apply to the Confidential Information that the Receiving Party can demonstrate that such

Confidential Information:

was independently developed by or for the Receiving Party without reference to the

Information, or was received without restrictions; or

has become generally available to the public without breach of confidentiality obligations of

the Receiving Party; or

I. was in the Receiving Party's possession without restriction or was known by the

Receiving Party without restriction at the time of disclosure; or

II. is the subject of a subpoena or other legal or administrative demand for disclosure;

provided, however, that the Receiving Party has given the disclosing party prompt

notice of such demand for disclosure and the Receiving Party reasonably

cooperates with the disclosing party's efforts to secure an appropriate protective

order; or

III. is disclosed with the prior consent of the disclosing party; or

IV. was in its possession or known to it by being in its use or being recorded in its files

or computers or other recording media prior to receipt from the disclosing party

and was not previously acquired by the Receiving Party from the disclosing party

under an obligation of confidence; or

V. the Receiving Party obtains or has available from a source other than the disclosing

party without breach by the Receiving Party or such source of any obligation of

confidentiality or non-use towards the disclosing party.

Ownership of the Confidential Information

I. Each Party recognizes and agrees that all of the disclosing Party’s Confidential

Information is owned solely by the Disclosing Party (or its licensors) and that

the unauthorized disclosure or use of such Confidential Information would

cause irreparable harm and significant injury, the  degree of which may be

difficult to ascertain. 

II. By disclosing the Confidential Information or executing this Agreement,

Disclosing Party does not grant any license, explicitly or implicitly, under any

trademark, patent, copyright, mask work protection right, trade secret or any

other intellectual property right. The Disclosing Party disclaims all warranties

regarding the information, including all warranties with respect to Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   72 | P a g e

infringement of intellectual property rights and all warranties as to the

accuracy or utility of such information.

III. Access to Confidential Information hereunder shall not preclude an individual

who has seen such Confidential Information for the  purposes of this

Agreement from working on future projects for the Disclosing Party which

relate to similar subject matters, provided that such individual does not make

reference to the Confidential Information and does not copy the substance of

the Confidential Information during the Term. Furthermore, nothing contained

herein shall be construed as imposing any restriction on the Receving Party's

disclosure or use of any general learning, skills or know-how developed by the

Receving Party's personnel under this Agreement.

IV. Execution of this Agreement and the disclosure of Confidential Information

pursuant to this Agreement do not constitute or imply any commitment,

promise, or inducement by either Party to make any  purchase or sale, or to

enter into any additional agreement of any kind.

Dispute Resolution

I. If a dispute arises in relation to the conduct of this Contract (Dispute), a party

must comply with this clause 7 before starting arbitration or court proceedings

(except proceedings for urgent interlocutory relief).  After a party has sought or

obtained any urgent interlocutory relief that party must follow this clause 7.

II. A party claiming a Dispute has arisen must give the other parties to the

Dispute notice setting out details of the Dispute.

III. During the 14 days after a notice is given under clause 7(b) (or longer period if

the parties to the Dispute agree in writing), each party to the Dispute must use

its reasonable efforts through a meeting of Senior Executive (or their nominees)

to resolve the Dispute.  If the parties cannot resolve the Dispute within that

period then any such dispute or difference whatsoever arising between the

parties to this Contract out of or relating to the construction, meaning, scope,

operation or effect of this Contract or the validity of the breach thereof shall be

referred to a sole arbitrator to be appointed by mutual consent of both the

parties herein. If the parties cannot agree on the appointment of the arbitrator

within a period of one month from the notification by one party to the other of

existence of such dispute, then the Arbitrator shall be appointed by the High

Court of the jurisdiction specified in this agreement. The provisions of the

Arbitration and Conciliation Act, 1996 will be applicable and the award made Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   73 | P a g e

there under shall be final and binding upon the parties hereto, subject to legal

remedies available under the law. Such differences  shall be deemed to be a

submission to arbitration under the Indian Arbitration and Conciliation Act,

1996, or of any modifications, Rules or re-enactments thereof. The Arbitration

proceedings will be held at the jurisdiction specified in Item 27. Any legal

dispute will come under the sole jurisdiction specified in Item 27.

IV. The Receving Party agrees that the Disclosing Party shall have the right to

obtain an immediate injunction enjoining any breach of this Agreement, as well

as the right to pursue any and all other rights and remedies available at law or

in equity for such a breach.

Variation

This Agreement may only be varied in writing and signed by both Parties. 

Waiver

Waiver including partial or conditional waiver, by  either Party of any default by the other

Party in the observance and performance of any provision of or obligations under this

Agreement:-

I. shall be in writing

II. shall not operate or be construed as a waiver of any other or subsequent default hereof

or of other provisions of or obligations under this Agreement;

III. shall be executed by a duly authorized representative of the Party; and

IV. shall not affect the validity or enforceability of this Agreement in any manner. 

Exclusion of Implied Warranties

This Agreement expressly excludes any warranty, condition or other undertaking implied at

law or by custom or otherwise arising out of any other agreement between the Parties or any

representation by either Party not contained in a binding legal agreement executed by both

Parties.

Entire Agreement

This Agreement and the Annexure together constitute a complete and exclusive statement of

the terms of the agreement between the Parties on the subject hereof, and no amendment or

modification hereto shall be valid and effective unless such modification or amendment is

agreed to in writing by the Parties and duly executed by persons especially empowered in this Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   74 | P a g e

behalf by the respective Parties. All prior written or oral understandings, offers or other

communications of every kind pertaining to this Agreement are abrogated and withdrawn.

Severability

If for any reason whatever, any provision of this Agreement is or becomes invalid, illegal or

unenforceable or is declared by any court of competent jurisdiction or any other

instrumentality to be invalid, illegal or unenforceable, the validity, legality or enforceability of

the remaining provisions shall not be affected in any manner, and the Parties shall negotiate

in good faith with a view to agreeing to one or more provisions which may be substituted for

such invalid, unenforceable or illegal provisions,  as nearly as is practicable to such invalid,

illegal or unenforceable provision. Failure to agree upon any such provisions shall not be

subject to the dispute resolution procedure set forth under this Agreement or otherwise.

No Partnership

This Agreement shall not be interpreted or construed to create an association, joint venture or

partnership between the Parties, or to impose any partnership obligation or liability upon

either Party, and neither Party shall have any right, power or authority to enter into any

agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative

of, or to otherwise bind, the other Party except as expressly provided under the terms of this

Agreement. 

Third Parties

This Agreement is intended solely for the benefit of the Parties and their respective successors

and permitted assigns, and nothing in this Agreement shall be construed to create any duty

to, standard of care with reference to, or any liability to, any person not a Party to this

Agreement.

Successors and Assigns

The Agreement shall be binding on and shall inure to the benefit of the Parties and their

respective successors and permitted assigns.

Notices

Any notice or other communication to be given by any Party to the other Party under or in

connection with the matters contemplated by this Agreement shall be in writing and shall be

given by hand delivery with acknowledge Form, recognized courier, registered post, email or

facsimile transmission and delivered or transmitted to the Parties at their respective addresses

set forth below Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   75 | P a g e

If to APTS/‘State Designated Agency’:

Attn: <***>

 

Tel:

Fax:

Email:

Contact:

With a copy to:

If to the <<‘System integrator’>>:

Attn. <***>

Phone: <<’SI Telephone’>>

Fax No. <<’SI Fax’>>

Language

All notices required to be given by one Party to the other Party and all other communications,

documentation and proceedings which are in any way relevant to this Agreement shall be in

writing and in the English language.

Counterparts

This Agreement may be executed in counterparts, each of which, when executed and

delivered, shall constitute an original of this Agreement.

Mitigation

Without prejudice to any express provisions of this Agreement on any mitigation obligations

of the Parties, each of the APTS/‘State Designated Agency’ and the ‘System integrator’ shall at

all times take all reasonable steps to minimize and mitigate any loss for which the relevant

Party is entitled to bring a claim against the other Party pursuant to this Agreement.

Removal of Difficulties

The Parties acknowledge that it is conceivable that the Parties may encounter difficulties or

problems in the course of implementation of the Project and the transactions envisaged under

this Agreement. The Parties agree and covenant that they shall mutually discuss such Draft Contract for System Integrators for e-District

State-wide rollout of the eDistrict MMP   76 | P a g e

difficulties and problems in good faith and take all reasonable steps necessary for removal or

resolution of such difficulties or problems.

IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED THIS

AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN.

SIGNED, SEALED AND DELIVERED 

For and on behalf of the  <<‘System

integrator’>>by:

SIGNED, SEALED AND DELIVERED

       For and on behalf of the  <<‘State

Designated Agency’>> by:

(Signature)

(Name)

(Designation)

(Address)

(Fax No.)

      (Signature)

      (Name)

     (Designation)

     (Address)

      (Fax No.)

In the presence of:

1. 

2. Draft Contract for System Integrators for e-District

Statewide rollout of the eDistrict MMP   77 | P a g e