NDA
Memorandum of Understanding and Non-Disclosure Agreement
WHEREAS, the Parties desire to reach an agreement regarding cooperation;
WHEREAS, the Parties wish to record certain terms and conditions of their anticipated efforts;
WHEREAS, the Parties acknowledge that, in the course of discussions to further develop a business partnership, it is necessary to disclose certain confidential information (as defined below) to each other; and
WHEREAS, each Party wishes to clarify the terms applicable to such confidential information;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:
1. Purpose and Scope
This Agreement serves as the basis and framework for any and all binding terms and content possibly anticipated in relation to the cooperation between the Parties.
This Agreement shall not establish or give rise to any formal contract or obligation. Rather, it represents an agreement between the Parties to work together in a manner and scope that encourages cooperation and alliance, supports an effective and efficient partnership, and establishes and maintains the objectives and commitments associated with such cooperation.
2. Objectives
The Parties agree as follows:
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The Parties shall jointly endeavor to achieve the purposes of this Agreement in a spirit of cooperation and coordination.
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Each Party may use the other Party’s logo and refer to the other as a partner in the cooperation.
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This Agreement is not intended to restrict either Party from participating in or engaging with any other public or private, institutional, or organizational activities.
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This Agreement is not intended to create any restrictive rights, interests, and/or fiduciary duties between or among the Parties.
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The Parties shall use best efforts to promote and participate in the planning and development of all phases of the cooperation.
3. Term
This Agreement shall commence on the Effective Date and shall continue in effect until terminated pursuant to the provisions herein.
4. Termination
Either Party may terminate this Agreement at any time by giving the other Party fourteen (14) days’ prior written notice.
5. Representations and Warranties
Each Party represents that the signatory hereto is fully authorized to execute this Agreement. The performance and obligations of either Party will not violate or infringe upon the rights of any third party or breach any agreement between such Party and any other individual, organization, or business, or any applicable law or governmental regulation.
6. Indemnification
Each Party agrees to indemnify and hold harmless the other Party, its affiliates, officers, agents, employees, and permitted successors and assigns, from any claims, losses, damages, liabilities, fines, punitive damages, costs, or reasonable legal fees resulting from negligence or breach of this Agreement by the indemnifying Party or its successors and assigns. This section shall survive the natural expiration or early termination of the Agreement.
7. Confidentiality
Each Party shall:
i) Use reasonable efforts to maintain the confidentiality of the other Party's information and materials, whether oral, written, or in any other form, including the existence, nature, and circumstances of such disclosure (collectively, "Confidential Information");
ii) Take reasonable steps to protect such Confidential Information, including but not limited to steps that would normally be taken to protect their own proprietary assets of a similar nature;
iii) Return all Confidential Information within their possession or control immediately upon termination of this Agreement, unless otherwise permitted in writing;
iv) Require any recipient of such information to execute an agreement governing the handling of Confidential Information as described in (i)-(iii). This shall not apply to employees or agents who are already bound by agreements substantially similar in scope, or to legal advisors, accountants, or professionals who are bound by fiduciary duties.
Confidentiality obligations shall not apply to information that:
i) Is or becomes publicly known;
ii) Is disclosed by the information owner publicly;
iii) Is rightfully received from a third party with authority to disclose and no obligation of confidentiality;
iv) Is independently developed by the recipient without access to the Confidential Information;
v) Was lawfully known to the recipient at the time of disclosure, other than through prior discussions with the other Party.
All Confidential Information remains the property of the disclosing Party. Any document or copy containing or reflecting Confidential Information shall be returned upon written request, or as the disclosing Party may elect.
Nothing in this Agreement shall be construed as granting, by license or otherwise, any rights in or to any ideas conceived or obtained before or after the Effective Date, or to the use or marketing of any product or service.
The confidentiality obligations under this section shall survive the completion or abandonment of the business relationship and shall remain in effect for a period of two (2) years after the termination of this Agreement.
Any breach of confidentiality may cause irreparable harm for which legal remedies may be inadequate. The non-breaching Party shall be entitled to seek injunctive relief in addition to any other remedies available.
No representation or warranty is made by either Party or its representatives with respect to the accuracy or completeness of any Confidential Information disclosed.
If any provision of this Agreement is deemed unlawful, invalid, or unenforceable by a court of competent jurisdiction, such provision shall be severed without affecting the validity or enforceability of the remaining provisions in that jurisdiction or any other.
All notices required or permitted under this Agreement shall be in writing, effective on the first business day after receipt, and delivered by: (i) personal delivery; (ii) pre-paid overnight courier; or (iii) registered first-class mail with return receipt requested, to the addresses stated at the beginning of this Agreement or any new address designated in writing.
8. Notices
Any notice required or permitted under this Agreement shall:
(a) be in writing;
(b) be deemed effective on the first business day following receipt; and
(c) be delivered by one of the following methods:
(i) personal delivery;
(ii) delivery by prepaid overnight courier or express delivery service; or
(iii) by registered or certified mail, postage prepaid, return receipt requested, via the United States Postal Service.
All such notices shall be sent to the addresses set forth at the beginning of this Agreement, or to such new addresses as either party may designate in writing from time to time in accordance with this Section.
9. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Taiwan.
If the Parties operate in different countries, this Agreement shall still be governed by the laws of Taiwan.
10. Binding Agreement
This Agreement shall be legally binding in Taiwan, the United States, and throughout Europe. Each Party affirms that it has the authority to enter into this Agreement.
11. Entire Agreement
This Agreement constitutes the entire agreement and understanding between the Parties concerning the subject matter herein. It supersedes all prior or contemporaneous agreements, representations, and understandings, whether written or oral.
No printed terms appearing on purchase orders, forms, quotations, acknowledgments, invoices, or other documents shall be binding on the other Party.
This Agreement may only be amended or modified in writing signed by both Parties.
12. Limitation of Liability
In no event shall either Party be liable to the other or to any third party for any damages, including but not limited to lost revenue, anticipated profits, loss of business, delay in delivery, or failure of delivery, unless directly caused by the other Party’s negligence or breach.
13. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be severed, and the remaining provisions shall continue in full force and effect.
14. Waiver
Failure by either Party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
15. Legal Fees
In the event of any dispute leading to legal action, the prevailing Party shall be entitled to recover its legal fees, including but not limited to attorneys’ fees.