Confidentiality
Confidentiality Terms and Conditions
Understanding the Confidentiality of PT XLSMART Telecom Sejahtera Tbk.
This Confidentiality Terms and Conditions (“Agreement”) is made as stated in Confidentiality Undertaking Form (“Form”).
Partner and XLSMART (collectively referred to as the “Parties”) agree, as set forth below, to treat confidentially such information and any other data provided to either Party or its Affiliates or its Representative.
NOW, THEREFORE, the Parties agree as follows:
1. Definitions
"Affiliate" means with respect to any entity, any person or other entity directly or indirectly controlling, controlled by or under common control with such entity (it being understood that “control” (and derivations thereof) means either (a) the possession, directly or indirectly, of the power to direct the management and policies of an entity (whether through the ownership of shares, by contract or otherwise) or (b) the holding or ownership of a majority of the issued shares or equity interest in an entity).
"Confidential Data" means
any data disclosed by or on behalf of a Party (“Disclosing Party”) to the other Party (“Receiving Party”) including, without limitation: (i) any materials, trade secrets, know-how, formulas, processes, algorithms, ideas, strategies, inventions, data, network configurations, architecture, designs, flow charts, drawings, proprietary information, business and marketing plans, financial and operational information, data of a Disclosing Party’s subscribers/users and all other non-public information, material or data relating to the current and/or future business and operations of the Disclosing Party, and (ii) any information, material or data provided by third party vendors of the Disclosing Party;
any analyses, compilations, studies, summaries, extracts, notes or other documentation prepared by the Receiving Party based on the data disclosed by the Disclosing Party; and
XLSMART Data: All data and information relating to XLSMART, and its operations, facilities, XLSMART customer data, clients, personnel, assets and programs in whatever form that information may exist and whether transmitted, entered into, stored in, generated by or processed as part of the performance of this Agreement.
For the purpose of this Agreement, Confidential Data shall not include any data which (i) becomes generally available to the public other than as a result of disclosure by the Receiving Party or its Representative in breach of this Agreement, (ii) was available to the Receiving Party or its Representative on a non-confidential basis prior to its disclosure by the Disclosing Party, (iii) independently developed by the Receiving Party or its Representative without the use of Confidential Data provided by the other party or (iv) becomes available to the Receiving Party or its Representative as non-confidential from another source of the other party, provided that such source is not known to the Receiving Party or its Representative, as applicable, as those who are bound by a confidentiality agreement with other Party.
"Partner" means partner and/or vendors and/or providers and/or business-to-business customers who cooperate with XLSMART in connection with the Proposed Plan as stated in the Form.
"Proposed Plan" means a proposed project agreed by Partner and XLSMART as stated in the Form.
"Representative" means directors or officers or employees, agents, advisors, consultants (including its attorney or accountant) or Affiliate of the respective Partner and XLSMART.
"XLSMART" means PT XLSMART Telecom Sejahtera Tbk as stated in the Form.
2. Use of Confidential Data
Unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party and its Representative agree:
not to disclose and/or abuse the use of the Confidential Data;
to use, collect, process, analyze, store, show, announce, send, disseminate, and destroy Confidential Data in compliance with applicable laws and regulations related to privacy and data protection;
to process Confidential Data, including all intellectual property rights that belong to the Disclosing Party, solely for the performance of the Proposed Plan;
not purport to sell, let for hire, assign rights in, or otherwise dispose of any Confidential Data;
to protect and secure Confidential Data in accordance with industry best practice standards or at least as well as the Receiving Party protects and secures its own data;
not to make Confidential Data available to any other third party; and
not to exploit Confidential Data commercially (including but not limited to prohibitions governed by capital market related regulations), and the Receiving Party must ensure that none of its employees or Representative commercially exploit and disclose Confidential Data to third parties.
Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Data:
to its Representative who have a need to know such Confidential Data to carry out the discussions regarding to and to evaluate the Proposed Project, and only for that purpose, provided that such Representative shall be notified of the nature of the Confidential Data and agree to maintain the confidentiality of such information in accordance with the terms of this Agreement; or
in the event that the Receiving Party or any of its Representative are requested pursuant to, or required by, applicable law or regulation or by any court order or by relevant government authority to disclose any Confidential Data, the Receiving Party shall promptly notify the Disclosing Party in writing of such request or requirement.
The Receiving Party further agrees to notify the Disclosing Party in writing immediately of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Confidential Data known to the Receiving Party.
Any act or omission of either Party and/or its Representative which results in a breach of the obligations of this Agreement and/or the applicable laws and regulations shall be the responsibility of the Party committing such breach or omission.
In the event where the Parties process personal data (as defined in the applicable laws and regulations), the Parties shall be obliged to comply with applicable laws and regulations on personal data protection (including, where required, signing a separate document relating to the processing of personal data).
3. Agreement Period
This Agreement shall be effective for 2 (two) years as of the Effective Date stated in the Form and shall expire if:
This Agreement is expressly superseded by a subsequent agreement between both Parties hereto, or
terminated by either Party in accordance with Article 3.2 of this Agreement, whichever occurs earlier.
Either Party may terminate this Agreement by written notice with immediate effect if the other Party commits a breach of this Agreement.
In the event of early termination of this Agreement, the Parties agree to waive the provisions of Article 1266 of the Indonesian Civil Code regarding the requirement to obtain prior judicial approval to terminate this Agreement.
Notwithstanding any other provision of this Agreement, the obligations of confidentiality hereunder with respect to all Confidential Data shall survive and bind the Receiving Party and/or its Representative for 3 (three) years after the termination or expiration of this Agreement.
4. Return of Confidential Data
Upon termination of this Agreement, the Receiving Party shall, return to the Disclosing Party all Confidential Data, including all copies thereof, disclosed hereunder in any tangible media and shall cause its Representative to do likewise.
5. Disposal of Confidential Data
Upon termination of this Agreement, the Receiving Party shall delete all Confidential Data from any media (including but not limited to the Receiving Party’s computer systems and tangible media) as described in Article 4 above that will not be returned to the Disclosing Party for any reason, where applicable, within 10 (ten) calendar days after the Receiving Party receives a written notice or instructions from the Disclosing Party requesting the removal or destruction of such Confidential Data.
6. Injunctive Relief
The Parties acknowledge that the Disclosing Party and/or its third-party vendors (as the case may be) hold all rights, title and interest in the Confidential Data. The Parties further acknowledge and agree that the Confidential Data is of a special, unique and extraordinary character, in which any unauthorized disclosure and/or misuse of the Confidential Data will cause irreparable damage to the Disclosing Party. Given the unique nature of the Confidential Data, in addition to all other remedies/compensation available, the Disclosing Party shall be entitled to seek injunctive and/or extraordinary relief in a court of competent jurisdiction in order to enforce the Receiving Party’s obligations hereunder. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The Disclosing Party shall be entitled to recover its official costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief
7. No Warranty
All data is provided “as is”. The Parties make no warranties, express, implied or otherwise, regarding its accuracy, completeness or performance, except that the party providing the data warrants that it has the authority to make the disclosures contemplated under this Agreement.
8. Other Provisions
The Parties further agree that:
This Agreement shall be governed by the laws of the Republic of Indonesia;
Unless it is stipulated otherwise in other section of this Agreement, none of the terms of this Agreement may be amended or modified except by a written instrument signed by the Parties;
No waiver of this Agreement shall be valid unless made in writing by the waiving Party. Any failure by any Party to enforce another Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement;
Notwithstanding XLSMART’s right to update this Agreement from time to time with notification to Partner, this Agreement shall be valid only for the benefit of the Parties hereto, and the rights and obligations of each Party under this Agreement shall not be transferred or assigned without the consent of the other Party;
This Agreement constitutes the entire understanding between the Parties on the subject matter thereof, and there are no promises, terms, covenants, provisions or obligations or written agreement, expressed, or implied other than those set forth in this Agreement;
No provision of this Agreement shall affect, limit or restrict either party’s right to engage in any business anywhere, whatsoever, provided that the Receiving Party does not disclose and abuse the implementation of the Confidential Data that causes a breach of this Agreement;
This Agreement does not constitute any commitment between the Parties to enter into a business and/or any type of agreement and/or cooperation between the Parties;
the invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement;
Any notice to be made under or in connection with this Agreement shall be made in writing and may be delivered by hand or by courier, or mailed to the address specified on the Form (or alternative details notified in accordance with this Agreement). Notice will be deemed given (a) on the date delivered if delivered by hand; or (b) on the date recorded as delivered by a courier; or (c) on the date it is delivered by email;
any Confidential Data disclosed by either Party prior to the execution of this Agreement shall be subject to the terms of this Agreement;
All disputes, controversies or claims arising out of or relating to this Agreement which cannot be settled amicably by the Parties within thirty (30) calendar days following the receipt of notice from one Party to the other Party, shall be finally settled by arbitration in accordance with the rules of the Indonesian National Board of Arbitration (BANI) (located in Wahana Graha Lt. 1&2, Jl. Mampang Prapatan No. 2, Jakarta 12760) in effect on the date of this Agreement. The place of arbitration shall be in Jakarta and shall be conducted in Indonesian language. The Parties agree that the BANI Award shall be final and binding; and
This Agreement made in bilingual form (English language and Indonesian language). In the event of inconsistency between the two versions, the English version shall prevail.