NON-DISCLOSURE AGREEMENT — between Elmer Francisco Motor Corporation ("Disclosing Party") and you ("Receiving Party"), effective on the date you sign below.
1. Definition of Confidential Information
For purposes of this Agreement, "Confidential Information" means any data or information so defined under the Data Privacy Act of 2012 and its IRR that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible and intangible form, whenever and however disclosed, including, but not limited to:
1.1 Business-related information, such as: any strategies, business plans, financial information, or 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 affiliated and/or contracting agencies/organizations/LGUs/companies; information regarding the operations, partnerships, and future plans of the Company and its affiliated entities, and any future ventures; plans for products or services, and membership/healthcare provider/supplier/contractor/accredited agents lists; any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and any other information that should reasonably be recognized as proprietary or confidential information of the Disclosing Party and/or of its affiliated/accredited/contracting entities. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through great efforts by the Disclosing Party and that Disclosing Party regards all of its Confidential Information as trade secrets.
1.2 Personal-related information, such as: Schedules, personal communications, travel plans, and other matters pertaining to the private affairs of the Company's executives and employees.
1.3 Information disclosed orally, in writing, electronically, or through observation, whether marked as "confidential" or understood by a reasonable person to be confidential.
1.4 Any derivatives, evaluations, analyses, or summaries based on the Confidential Information.
Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which: the Receiving Party can demonstrate through written or other tangible evidence that it was known by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party; becomes rightfully known to the Receiving Party from a third-party source, provided such source is not known by the Receiving Party to be under an obligation to the Disclosing Party to maintain confidentiality, and the Receiving Party can provide documentary evidence of such rightful knowledge; is or becomes publicly available through no fault, failure to act, or breach of this Agreement by the Receiving Party, provided that such information is widely accessible and not disclosed inadvertently or through wrongful acts of the Receiving Party; is required to be disclosed in a judicial, administrative, or regulatory proceeding, or otherwise requested or required by law or regulation, provided the Receiving Party (a) promptly notifies the Disclosing Party in writing of such requirement, (b) cooperates with the Disclosing Party in seeking a protective order or other appropriate remedies, and (c) discloses only that portion of the Confidential Information which is legally required to be disclosed;
2. Obligations of Confidentiality
From time to time, the Disclosing Party had disclosed Confidential Information to the Receiving Party. The Receiving Party shall: (a) not disclose of any Confidential Information in connection with the Agreement or contemplated transaction/relationship between the Parties to which this Agreement relates; (b) shall keep all Confidential Information strictly confidential by using a reasonable degree of care; (c) not disclose any Confidential Information received by it to any third parties without the Disclosing Party's consent or as otherwise provided for herein.
The Receiving Party shall be responsible for any breach of this Agreement.
3. Use of Confidential Information
The Receiving Party agrees to use the Confidential Information solely for purposes directly connected to the Agreement or the specific transaction or relationship between the Parties, and not for any purpose other than as expressly authorized by this Agreement. No other right or license, whether expressed or implied, is granted to the Receiving Party with respect to the Confidential Information, including any rights for derivative use, commercialization, or independent development.
Title to the Confidential Information, including all copies, modifications, enhancements, and derivative works, will remain solely with the Disclosing Party. Any modifications, enhancements, or derivative works created by the Receiving Party based on or utilizing the Confidential Information shall automatically become the sole property of the Disclosing Party. The Receiving Party agrees to document and provide, upon request, a detailed record of any such modifications or improvements made during the term of the Agreement.
4. Compelled Disclosure of Confidential Information
Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any judicial or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Receiving Party promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information.
The Receiving Party agrees that it shall not oppose and shall cooperate with efforts, to the extent practicable, by the Disclosing Party with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Receiving Party is legally requested or required to disclose such Confidential Information, such disclosure may be made without liability.
5. Effectivity
This Agreement shall take effect on the date of signing, and shall remain in perpetuity. Notwithstanding the termination of this Agreement, provisions that by their nature are intended to survive termination (including, but not limited to, obligations relating to confidentiality, intellectual property rights, and dispute resolution) shall continue to remain in full force and effect.
6. Remedies for Breach
The Receiving Party acknowledges that the Confidential Information to be disclosed hereunder is of a unique and valuable nature. The Receiving Party agrees that any unauthorized dissemination of Confidential Information would result in irreparable harm to the Disclosing Party, for which monetary damages may be inadequate.
Therefore, the Receiving Party hereby agrees that the Disclosing Party shall be entitled to injunctive relief preventing the unauthorized dissemination of any Confidential Information in violation of this Agreement. Such injunctive relief shall be in addition to any other remedies available hereunder whether at law or in equity including damages. Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys' fees incurred in obtaining any such relief.
In the event of litigation or arbitration arising out of or relating to this Agreement, the Disclosing Party shall be entitled to recover its reasonable attorneys' fees and costs as expressly provided for under Article 2208 of the Civil Code of the Philippines, as well as other applicable laws.
7. Return of Confidential Information
The Receiving Party shall, within fifteen (15) business days of termination of this Agreement or upon written request by the Disclosing Party, return to the Disclosing Party all tangible materials embodying the Confidential Information provided hereunder, including all notes, summaries, memoranda, drawings, manuals, records, excerpts, or derivative information deriving therefrom, as well as all other documents or materials ("Notes") based on or including any Confidential Information, regardless of the form of storage or retrieval. This obligation extends to all copies of such materials, including those converted to computerized media in the form of images, data, or word processing files, whether created manually or by image capture.
The Receiving Party shall, within fifteen (15) days after its receipt of request from the Disclosing Party, return to the Disclosing Party all materials constituting or incorporating any Confidential Information, subject to the remaining provisions of this Section 7.
(i) If any such materials are partially or fully destroyed, disassembled or damaged, or (ii) both Parties agree that the costs and expenses to return any such materials are excessively high and burdensome, the Receiving Party may destroy the relevant materials after receiving the prior written consent of the Disclosing Party; provided, however, that the Receiving Party shall immediately provide to the Disclosing Party a destruction report, photos, and/or certification duly signed by the Receiving Party or such other evidence of such destruction having been carried out in accordance with the relevant laws and regulations, in any case to the reasonable satisfaction of the Disclosing Party.
Without limiting the generality of the immediately preceding sentence but subject thereto, the Parties shall discuss in good faith and reasonably agree on the methods, procedure, costs, and schedule of destroying or returning of materials constituting or incorporating any Confidential Information. If the Receiving Party fails to destroy any such materials in accordance with this Section 7 and an unauthorized distribution or violation of the relevant laws and regulations results from such failure, the Receiving Party shall (a) immediately take all actions and proceedings as requested by the Disclosing Party to remedy such failure and/or to mitigate any adverse consequences arising from such failure; and (b) shall indemnify and hold harmless the Disclosing Party, and its affiliated companies' officers, directors, employees, agents and representatives from and against all damages, liabilities, losses, claims (including, without limitation, legal and administrative proceedings, audits and investigations) and costs and expenses (including attorney's fees and court costs) incurred by any of them.
8. Safekeeping of Confidential Information
The Receiving Party acknowledges the sensitive and confidential nature of the information they may access or receive for any authorized purpose directly related with the Disclosing Party. To ensure the proper safekeeping and protection of such Confidential Information, the Receiving Party agrees to the following obligations:
1. Access Limitation: Confidential Information shall only be accessed, used, or disclosed as necessary to fulfill the Receiving Party's professional responsibilities under the terms of their engagement with the Disclosing Party. The Receiving Party shall not disclose or allow access to Confidential Information to any third party without the prior written consent of the Disclosing Party.
2. Secure Handling and Storage: Physical Documents: All physical documents containing Confidential Information must be stored in a secure location, such as a locked drawer or cabinet, when not in use. Physical copies should not be left unattended in public or unsecured spaces. Digital Information: Digital files containing Confidential Information shall be stored on password-protected or encrypted devices, and all reasonable cybersecurity measures shall be employed to prevent unauthorized access (e.g., two-factor authentication).
3. Prohibition on Personal Use: The Receiving Party agrees not to use any Confidential Information for personal benefit, gain, or purposes unrelated to their professional duties.
4. No Reproduction or Retention: The Receiving Party shall not reproduce, copy, or retain any Confidential Information in any form unless expressly authorized by the Disclosing Party. Any unauthorized copies made must be immediately destroyed upon discovery.
5. Notification of Breach or Risk: In the event of unauthorized access, suspected data breach, or loss of Confidential Information, the Receiving Party shall immediately notify the Disclosing Party and take all reasonable measures to mitigate potential harm.
6. Return and Destruction: Upon the termination of the Receiving Party's engagement or at the request of the Disclosing Party, the Receiving Party shall promptly return or permanently delete/destroy all copies of Confidential Information in their possession or control, including from personal devices, if applicable. Written confirmation of compliance with this requirement shall be provided upon request.
7. Special Duties Related to Personal Matters: In cases where Confidential Information relates to the personal affairs of the Disclosing Party (e.g., financial records, health matters, or family-related issues), the Receiving Party agrees to exercise the highest degree of care in handling such information, recognizing its uniquely sensitive nature.
The Receiving Party acknowledges that failure to comply with these obligations may result in irreparable harm to the Disclosing Party. Accordingly, the Receiving Party agrees that the Disclosing Party shall be entitled to injunctive relief and other remedies provided by law or equity in the event of any breach of this provision.
9. Notice of Breach
Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information by the Receiving Party, or any other breach of this Agreement by the Receiving Party, and will cooperate with efforts by the Disclosing Party to help the Disclosing Party regain possession of Confidential Information and prevent its further unauthorized use.
10. No Publicity
The Receiving Party agrees not to disclose, publicize, or advertise in any form or manner the existence of this Agreement, the discussions or negotiations that gave rise to it, or any matters covered by this Agreement, without the prior written consent of the Disclosing Party. This includes, but is not limited to, making statements to the media, issuing press releases, or posting on social media platforms.
11. Scope of Agreement
This Agreement is intended solely to govern the exchange, handling, and protection of Confidential Information between the Parties in connection with the Receiving Party's interaction, association, or dealings with the Disclosing Party. This Agreement does not create or imply any obligation for either Party to enter into any additional business relationship, partnership, or agreement beyond the Receiving Party's professional responsibilities.
Except as expressly provided herein, this Agreement does not impose any legal or financial obligations on the Parties beyond the safeguarding and proper use of Confidential Information. The Disclosing Party retains the right to enforce all remedies provided herein or under applicable law in the event of any unauthorized disclosure, misuse, or breach of this Agreement by the Receiving Party.
12. Miscellaneous Provisions
This Agreement constitutes the entire understanding between the Parties regarding its subject matter and supersedes all prior agreements, whether written or oral. Any amendments or modifications must be in writing and signed by both Parties to be valid. A failure by the Disclosing Party to enforce any provision of this Agreement shall not be construed as a waiver of the right to enforce such provision or any other provision at a later time. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be modified or severed to the extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.
13. Notices
Any notice or communication required or permitted to be given by this Agreement or in connection with it shall be in writing and shall be delivered to the appropriate Party by personal delivery, registered mail (postage prepaid), recognized reputable private courier, or electronic mail (email). Notices shall be sent to the address or email address as may be furnished by a Party in accordance with this agreement. Each party may designate its notice address in writing from time to time.
All such notices or communications shall be deemed to have been given and received as follows: (a) In the case of personal delivery or private courier: On the date of receipt by the Receiving Party. (b) In the case of registered mail: On the fifth (5th) business day after mailing. (c) In the case of email: On the date the email was sent.
14. Venue
In case of lawsuit arising from breach of this Agreement, the complaint or petition shall be filed with the proper court of the City of Taguig only.
15. Governing Law
The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of the Republic of the Philippines applicable to contracts made and to be wholly performed within the said jurisdiction, without giving effect to any conflict of laws provisions thereof.
