THIS CONFIDENTIALITY, NON-DISCLOSURE AND NON-COMPETE AGREEMENT (this "Agreement") is made and entered into as of ______________ (the "Effective Date") by and between:
Bustan Energy Co., Ltd., a Thailand limited liability company, with its principal place of business at 107/5 Moo 1, Koh Phangan, Surat Thani 84280, Thailand ("Bustan Energy"),
and
______________, Passport/ID No. ______________, with an address at ______________ (the "Counterparty").
Each of Bustan Energy and Counterparty may disclose Confidential Information (as defined below) to the other party, and in such cases, the disclosing party shall be referred to as the "Disclosing Party" and the receiving party shall be referred to as the "Receiving Party".
WHEREAS, the parties desire to engage in discussions regarding a potential business relationship, collaboration, transaction, or other form of cooperation relating to solar energy installations, electrical vehicle charging solutions, and related energy services in Thailand (the "Collaboration"), and in connection with such discussions each party may disclose to the other certain proprietary, sensitive, or non-public information;
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
(a) For purposes of this Agreement, "Confidential Information" means any data or information that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible or intangible form, in whatever medium provided, whenever and however disclosed. Confidential Information includes, but is not limited to:
(i) any marketing strategies, plans, financial information, customer information, supplier information, projections, operations, sales estimates, business plans and performance results relating to the past, present, or future business activities of such party, its affiliates, subsidiaries, and related companies;
(ii) any technical information, inventions, designs, prototypes, processes, procedures, improvements, technologies, methodologies, development architecture, operational architecture, hardware configurations, firmware, testing materials, engineering documentation, or research and development information;
(iii) any concepts, reports, data, know-how, works-in-progress, specifications, schematics, development tools, computer software, source code, object code, algorithms, flow charts, databases, documentation, trade secrets, analyses, compilations, studies, or other materials;
(iv) any customer lists, lead databases, pricing structures, supplier agreements, installation methodologies, site assessment data, project pipelines, and proprietary tools or platforms developed for the business;
(v) any information generated by the Receiving Party or its Representatives that contains, reflects, is based on, or is derived from any of the foregoing.
Confidential Information need not be novel, unique, patentable, copyrightable, or constitute a trade secret in order to be designated as Confidential Information.
(b) Exclusions. Notwithstanding anything herein to the contrary, Confidential Information shall not include information which:
(i) was lawfully possessed, as evidenced by the Receiving Party's records, by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party;
(ii) becomes rightfully known to the Receiving Party from a third-party source not under an obligation to the Disclosing Party to maintain confidentiality;
(iii) becomes publicly known through no fault of or failure to act by the Receiving Party inconsistent with its obligations under this Agreement; or
(iv) is required to be disclosed pursuant to an order of a competent court or other governmental body, provided, however, that in such case the Receiving Party shall provide the Disclosing Party with prompt written notice prior to such disclosure and all reasonable aid in seeking a protective order or other legal remedy, and provided, further, that the Receiving Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.
The Receiving Party shall:
(i) limit disclosure of any Confidential Information to its employees, officers, directors, advisors, consultants, agents, or other representatives (collectively, the "Representatives") who have a strict need to know such Confidential Information in connection with the Collaboration, and solely for that purpose;
(ii) advise its Representatives of the proprietary and confidential nature of the Confidential Information and of the obligations set forth in this Agreement, require such Representatives to be bound by written confidentiality obligations no less protective than those contained herein, and assume full responsibility and liability for any acts or omissions of its Representatives;
(iii) keep all Confidential Information strictly confidential and protect such Confidential Information using a level of care no less than the care it uses to protect its own confidential or proprietary information of similar importance, but in no event less than a reasonable degree of care; and
(iv) not disclose any Confidential Information to any third party except as expressly permitted under this Agreement.
The Receiving Party agrees to use the Confidential Information solely in connection with the Collaboration and not for any purpose other than as expressly authorized under this Agreement without the prior written consent of the Disclosing Party.
The Receiving Party shall not, directly or indirectly, attempt to reverse-engineer, decompile, disassemble, decipher, derive, discover, or identify the composition, underlying ideas, algorithms, structure, processes, methods, or other elements of any Confidential Information.
No right or license, whether express or implied, in or to the Confidential Information is granted to the Receiving Party under this Agreement. All rights, titles, and interests in and to the Confidential Information shall remain solely and exclusively with the Disclosing Party. Any modifications, enhancements, improvements, or derivative works made by the Receiving Party that are based upon or involve the Confidential Information shall be deemed the sole and exclusive property of the Disclosing Party.
(a) During the term of this Agreement and for a period of two (2) years following the expiration or termination of this Agreement or the termination of the Collaboration (whichever is later), the Counterparty shall not, directly or indirectly, whether as an owner, partner, shareholder, director, officer, employee, consultant, agent, or in any other capacity:
(i) engage in, establish, manage, operate, or participate in any business that competes with Bustan Energy's business of solar energy installations, electrical vehicle charging solutions, energy storage systems, or related energy services within the Kingdom of Thailand;
(ii) solicit, divert, or attempt to solicit or divert any customer, client, prospective client, or business opportunity of Bustan Energy for the purpose of providing competing products or services;
(iii) use any Confidential Information, customer lists, leads, supplier relationships, or proprietary tools or platforms of Bustan Energy to establish or further any competing business.
(b) Exceptions. The non-competition obligations in this Section 4 shall not apply to:
(i) passive ownership of less than five percent (5%) of the outstanding shares of a publicly traded company;
(ii) activities expressly approved in writing by Bustan Energy.
(c) Reasonableness. The Counterparty acknowledges that the scope, duration, and geographic limitations set forth in this Section 4 are reasonable and necessary to protect Bustan Energy's legitimate business interests, including its Confidential Information, customer relationships, and goodwill, and that such restrictions do not impose an undue hardship on the Counterparty.
During the term of this Agreement and for a period of two (2) years following its expiration or termination, the Counterparty shall not, directly or indirectly:
(i) solicit, recruit, hire, or attempt to solicit, recruit, or hire any employee, contractor, consultant, or agent of Bustan Energy, or induce any such person to leave Bustan Energy's engagement;
(ii) interfere with, or attempt to interfere with, the relationship between Bustan Energy and any of its employees, contractors, suppliers, partners, or other business relationships.
This Agreement shall remain in effect for a period of seven (7) years from the Effective Date. Notwithstanding the foregoing, the Receiving Party's obligation to hold in confidence any Confidential Information disclosed during the term of this Agreement shall survive expiration or termination of this Agreement and shall remain in full force and effect indefinitely.
The Receiving Party shall immediately return and redeliver to the Disclosing Party all tangible materials embodying any Confidential Information, as well as all notes, summaries, memoranda, drawings, manuals, records, excerpts, analyses, or derivative information derived therefrom, and all other documents or materials (and all copies of any of the foregoing, including digital copies) based on or including any Confidential Information, upon the earliest of: (i) the completion or termination of the Collaboration; (ii) the termination of this Agreement; or (iii) the Disclosing Party's written request.
Alternatively, with the written consent of the Disclosing Party, the Receiving Party may immediately destroy any of the foregoing materials and, upon request, shall certify such destruction in writing.
The Receiving Party shall notify the Disclosing Party immediately upon the discovery of, or suspicion of: (i) any unauthorized use, access, or disclosure of Confidential Information; or (ii) any act or omission inconsistent with obligations under this Agreement. The Receiving Party shall fully cooperate with all efforts of the Disclosing Party to regain possession of the Confidential Information and to prevent any further unauthorized use, access, or disclosure.
Neither party shall be under any legal obligation with respect to the Collaboration by virtue of this Agreement, except for the matters specifically set forth herein. Each party reserves the right, in its sole and absolute discretion, to reject any and all proposals and to terminate discussions regarding the Collaboration at any time. This Agreement does not create any joint venture, partnership, agency relationship, or fiduciary duty between the parties.
If the Collaboration proceeds, the confidentiality provisions contained in any definitive collaboration agreement(s) shall supersede this Agreement. In the event that such definitive documents do not contain confidentiality provisions, this Agreement shall govern and remain in full force and effect.
NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER. The Confidential Information provided under this Agreement shall be deemed to be provided "AS IS". Neither party is under any obligation to disclose any Confidential Information it chooses not to disclose.
The Receiving Party acknowledges that unauthorized disclosure or use of Confidential Information, or breach of the non-competition or non-solicitation obligations herein, could cause irreparable harm and significant injury to the Disclosing Party. Accordingly, the Disclosing Party shall have the right to seek immediate injunctive relief at any court of competent jurisdiction, without the necessity of proving actual damages or posting bond, in addition to any other remedies available at law or in equity.
In the event of a breach of Sections 4 (Non-Competition) or 5 (Non-Solicitation), the breaching party shall pay to Bustan Energy liquidated damages in the amount of THB 500,000 (five hundred thousand Thai Baht) per breach, in addition to any actual damages suffered. The parties agree that this amount represents a reasonable pre-estimate of the likely damages.
This Agreement shall be governed by, and construed in accordance with, the laws of the Kingdom of Thailand, without regard to its conflict of laws principles.
Any dispute, controversy, or claim arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the competent courts of Surat Thani Province, Thailand.
All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed duly given when delivered personally, sent by registered mail, or sent by email with confirmation of receipt, to the following addresses:
To Bustan Energy:
107/5 Moo 1, Koh Phangan, Surat Thani 84280, Thailand
Email: kaniel@bustan-energy.com
To Counterparty:
______________
Email: ______________
(a) Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, except to an entity that succeeds to all or substantially all of the business of such party, provided that such entity agrees in writing to be bound by all terms of this Agreement.
(b) Amendment; Waiver. This Agreement may not be varied, modified, or amended except in a written instrument executed by both parties. No waiver of any breach shall constitute a waiver of any other breach.
(c) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements, understandings, and representations relating to such subject matter.
(d) Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect. If any non-competition or non-solicitation provision is found to be overly broad, a court of competent jurisdiction shall have the authority to reform such provision to the maximum extent enforceable.
(e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. Electronic or scanned signatures shall have the same legal effect as original signatures.
(f) Language. This Agreement is executed in English. In the event of any translation, the English version shall prevail.