Confidentiality Agreement ams AG

Confidentiality Agreement

between

and its Affiliates

and

ams AG

Tobelbader Strasse 30

Schloss Premstaetten

8141 Premstaetten

Austria

and its Affiliates

(together or individually hereinafter referred to as "the party" or "the parties" as appropriate and each party is a disclosing and a receiving party)

Whereas the parties shall, for their mutual benefit and in connection with their cooperation, exchange and thereby disclose to each other Confidential Information. "Confidential Information" shall mean any and all non-public information and data, items and any other materials, whether or not owned by a party, including but not limited to any kind of business, commercial or technical information and data either directly or indirectly disclosed between the parties.The parties seek to secure the confidentiality of such information by the terms of and in accordance with this agreement (“Agreement”). In consideration of such exchange and cooperation, it is hereby agreed as follows:

1  Confidentiality

The parties agree to keep all disclosed Confidential Information strictly confidential.

Without prejudice to the generality of the aforesaid, the obligation hereunder shall apply in particular to all tangible Confidential Information (including but not limited to diagrams, drawings, plans, photos, products, samples, prototypes, models, formulae, know-how, devices, materials, production methods, strategies, development plans, research results and provisional results, packaging notes, technical specifications, price lists, customer information, sales figures, marketing strategies, finance, employment, legal and environmental aspects) which is marked as being confidential and/or that Confidential Information disclosed visually or orally, of which notice in writing is given within 10 days of its disclosure by the disclosing party, that it shall be treated as confidential. Such information will ordinarily be disclosed to the other party in written form, by way of software, draft documentation, drawings or technical specifications on data storage modules such as magnetic tapes or diskettes via data communication or by post. Data relating to individuals shall (in accordance with applicable Data Protection laws) also be treated as confidential as will all information relating to business secrets such as research and development matters and other business affairs of the other party, its associated companies or parties contracting with such party.

“Affiliate" means any existing or future entity: (i) directly or indirectly controlling a party; (ii) under the same direct, indirect or joint ownership or control as a party; or (iii) directly, indirectly or jointly owned or controlled by a party. As used herein, the term “control” (including any variations thereof) means the power or authority, directly or indirectly, to direct or cause the direction of the management and policies of such party or entity, whether through ownership of voting securities or other interests, by contract or otherwise.

2  Exceptions

The confidentiality obligation shall not apply to Confidential Information which

·  the parties already hold without owing any duty of confidentiality at the time of disclosure

·  is in the public domain through no breach by the receiving party of this Agreement

·  the parties legitimately receive from third parties without being subject to any confidentiality obligations

·  the parties develop or have developed independently of any such confidential information

·  the disclosing party has disclaimed in writing any rights to confidentiality

·  is required to be disclosed to comply with mandatory legal regulations such as a judicial, official order or decree, provided that written advance notice of such judicial action was timely given to the disclosing party. The receiving party shall only disclose the portion of Confidential Information specifically required by such judicial action and shall fully cooperate with the disclosing party if the disclosing party elects to object to the judicial action.

3  Securing Confidentiality

The parties shall use all reasonable endeavours to maintain confidentiality and in particular confidential information shall only be given or communicated to such employees who necessarily and properly require such information to perform their duties under their employment.

The parties recognize that each of them may be part of an organization of multiple legal entities in several jurisdictions and that it may be necessary or appropriate for each party to further disclose Confidential Information to its Affiliates or to directly disclose or receive Confidential Information to or from the other party. For this purpose, each party agrees both as a disclosing party and as a receiving party hereunder that:

(a) receiving party may disclose Confidential Information to its Affiliates,but only to the extent that such Affiliates have a need to know; and

(b) disclosure by or to Affiliates of a party hereto shall be deemed to be a disclosure by or to that party, as applicable; and

(c) each party shall be responsible for the observance and proper performance of the terms and conditions of this Agreement by all of its Affiliates.

The parties shall keep all documentation and records which contain confidential information in a secure (locked) and safe place.

The receiving party agrees not to (i) analyze, disassemble or reverse engineer any sample supplied under this Agreement, (ii) permit any third party to analyze, disassemble or reverse engineer any sample supplied under this Agreement, or (iii) alter or modify the Information.

4  Acquisition of Information from the Business Operations of the Parties

The parties undertake to keep all internal business information of which they, their employees or representatives become aware during the performance of their duties at the other parties' place of business, strictly confidential and not to divulge the same to any third party and not to apply for patent protection or protection of registered designs or to publish or disclose it otherwise. This shall apply in particular to all internal information relating to technical, design, manufacture, operational or organisational matters. The receiving party shall treat confidential information from the disclosing party with the same care as their own confidential information in order to save and protect the Confidential Information.

5  Extension of the Obligation of Confidentiality to Third Parties

If a party intends to sub-contract to a third party and disclosure of Confidential Information to such third party is necessitated thereby, the party shall first obtain the written consent of the other party thereto. The disclosing party and the subcontractor shall enter into a confidentiality agreement in the form substantially similar but not less restrictive to the provisions of this Agreement prior to such disclosure.

Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to its own consultants, advisors, legal counsels, accountants and agents (each a “Representative” and collectively the “Representatives”) who have a need to know of such Confidential Information and who execute a non-use and non-disclosure agreement or any other confidentiality agreement in content substantially similar to the provisions hereof, prior to the disclosure of such Confidential Information to such Representatives and prior to any access to such Confidential Information by such Representatives; each party shall be liable for any unauthorized disclosure of the Confidential Information by its Representatives.

6  Return of the Confidential Documentation

Upon the written request of the disclosing party or upon the determination of the receiving party that it no longer has a need for such Confidential Information, the receiving party shall (a) either destroy or return to the disclosing party all Confidential Information received from the disclosing party which is in the possession of the receiving party, together with all copies and (b) destroy (and not be obligated to return) copies of any of its analyses, compilations, studies or other documents which reflect or contain the Confidential Information received from the disclosing party.

Notwithstanding the preceding sentence, the receiving party is not obligated to return or destroy Confidential Information as may be required by law or stored as part of its archival records (including backup systems and for legal purposes) in the ordinary course of business that is subject to destruction in due course; provided, that the receiving party will not access such Confidential Information after expiration or termination but prior to its destruction. Upon the written request of the disclosing party, the receiving party shall provide a written certification to the disclosing party that all such Confidential Information has been returned and/or destroyed as requested.

7  Patentable/Registrable Inventions / License

The duty of confidentiality also applies to information and documentation relating to an as yet unregistered or unpatented invention. Such documentation also constitutes confidential documentation and the party disclosing the same reserves all rights therein. In particular it is confirmed that no rights whatsoever are transferred or relinquished to the other party by the disclosure of such information. Neither party shall be obliged to disclose Confidential Information to the other party. The receiving party has the right to refuse the receipt of Confidential Information from the disclosing party. No right or license under any patent or copyright is being granted to either party under this Agreement.

8  Severability

In the event of any conflict between this Agreement and any other contractual terms between the parties, the terms of this Agreement shall prevail.

Should any provision of this Agreement contravene compulsory regulations and become null and void as a result, the validity of the remaining provisions of the Agreement shall remain unaffected. The parties shall in this case replace the ineffective provisions with such provisions which, while being enforceable, most closely reflect the original intent of the Agreement.

Should any provisions of this Agreement become ineffective, the remaining provisions of this Agreement shall remain unaffected.

9  Modification of Agreement

It is agreed between the parties that no amendment, deletion from or addition to this Agreement shall be valid unless made in writing and expressed to be supplemental to the agreement.

10  Language of Agreement

It is agreed between the parties that only the English language is valid for this Agreement or its appendices irrespective whether translations into other languages wholly or in part have been made or used for convenience during the establishment and execution of this Agreement.

11  Warranty and Liability

ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY EXPRESSLY IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF SUCH INFORMATION OR PERFORMANCE OF THIS AGREEMENT. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, STATUTORY, PUNITIVE, CONSEQUENTIAL, EXMPLARY OR ANY OTHER INDIRECT DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

12  Injunctive Relief

Each party understands that any breach or threatened breach of this Agreement would subject the other party to irreparable harm and injury, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, in the event of a breach or threatened breach of this Agreement by one party, in addition to any remedies otherwise available, the other party shall be entitled to immediate injunctive relief or equitable relief, as well as monetary damages, without the necessity of posting any bond or other security and without any requirement to prove actual damages. The receiving party shall notify the disclosing party in writing immediately upon becoming aware of any such breach or threatened breach of this Agreement.

13  Jurisdiction and applicable Law

This Agreement is made under, and will be construed according to the laws of Austria. Any disputes arising out of or in connection with this Agreement shall be settled in compliance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed according to said rules. The arbitration proceedings shall be held in Vienna, Austria. The language of the Arbitration shall be English.

14  Commencement and Duration of this Agreement

This Agreement shall commence on the later of the two dates of signature of the parties below being the date when both parties have duly executed this Agreement. Subject to the following this Agreement shall continue in force for a period of five (5) years and shall automatically expire thereafter. Either party may terminate this Agreement by giving 90 days prior notice thereof in writing to the other. However, the obligations hereunder shall not be affected by such termination or expiration and shall continue in full force and effect with respect to information disclosed prior to such termination or expiration for a period of three (3) years from the date of such expiration or termination.

(intentionally left blank)

ams AG
Name: / Name:
Position: / being duly authorised on behalf of the party to execute this Agreement / Position: / being duly authorised on behalf of the party to execute this Agreement
Signature: / Signature:
Date: / Date:
Agreement No:

Edition February 2016 Page 5 of 5