The Disclosing Party is the owner of the Indiana project, located at ______, Chile, as is shown in Annex A (hereinafter the “Property”).
The Disclosing Party may disclose certain information to the Receiving Party regarding the Property, so the latter may evaluate the acquisition of an interest in the same (the “Purpose”).
Such information shall be delivered to the Receiving Party under terms and conditions set forth in the present instrument (the “Agreement”).
For the purpose of this Agreement, the following definitions will apply:
“Affiliate” means any person, society, joint venture, corporation or any other form of company that, directly or indirectly, controls, is controlled by or jointly controls with a party to this document. For these purposes, “control” means having, directly or indirectly, the capacity of directing or cause the direction of the administration and policies, through the possession of titles with voting rights, agreements, trusts or other.
“Confidential Information” means any information, data, registries, reports, drilling information, calculations, opinions, maps, drawings, schemes, charts, plans, documents, summaries, memorandums, studies, analysis and any other written, oral or electronic information regarding the Property or the Disclosing Party, including, without limitation, trade secrets, know-how, financial, corporate, marketing, product, research, technical, proprietary, legal, and/or personnel information or other information in any form or media, relating to the Disclosing Party, its affiliates, associates, or other related entities, given to the Receiving Party or to its Authorized Representatives or that is acknowledged by them by any other means, and all the summaries, excerpts or copies of the same as well as notes, memorandums, observations studies and others based on the same.
“Person” shall be interpreted in a broad manner in order to include individuals, corporations, associations, groups, companies, trusts and governmental authorities.
“Representatives” means a director, employee, agent, Affiliate, consultant or advisor of a party to this Agreement.
THIRD: Parties’ Undertakings.
By means of the present instrument the Receiving Party agrees and undertakes the following:
a) The Receiving Party undertakes to take reasonable efforts to receive, protect and keep the Confidential Information in the strictest reserve and that the same will not be used by the Receiving Party for any purpose different from the Purpose. The Receiving Party undertakes not to disclose the Confidential Information to any Person, except for the limited number of Representatives of the Receiving Party that so require in order to fulfill the Purpose. The Receiving Party agrees to, before disclosing any Confidential Information to its Representatives, inform them of the confidential nature of the same and will instruct all such Representatives to use the Confidential Information under the terms of the present Agreement and the Receiving Party shall take all such reasonable measures that are necessary to instruct each of the Representatives to keep the Confidential Information confidential, as if they were part to this Agreement.
b) The Receiving Party, by this means, undertakes not to disclose, and to instruct its Representatives not to disclose, to any person, the circumstances of the parties exchanging information, analysis or negotiations, as well as the fact of being this Agreement executed with the Disclosing Party, or any information relating to independent reviews and analysis, including the state of the same. Specially, the Receiving Party recognizes and confirms that it will not intend to establish any sort of communication with third parties, including governmental or public agencies, regarding the Confidential Information or the Property, unless so required by the relevant governmental authorities or any other legal or regulatory organism, with jurisdiction over the Receiving Party, and in such case in strict observance of the terms set forth in this Agreement.
c) The Receiving Party and its Representatives shall protect the Confidential Information in the same manner they would protect their own information and recognize that the edition, publication and disclosure of the Confidential Information or of the analysis being carried out regarding the Property may be impairing for the Disclosing Party.
d) The Receiving Party agrees that, if requested in writting by the Disclosing Party, it shall return to the Disclosing Party, within thirty (30) days from such requirement, all Confidential Information, together with all copies or excerpts of the Confidential Information, in any of its forms, that is possessed by the Receiving Party and such party shall instruct all its Representatives to do the same and undertakes not to use the Confidential Information or to keep copies of the same, including such as a summary, excerpt or synopsis. The return of the Confidential Information will not affect the Receiving Party’s obligation of keeping and preserving such information as confidential, in the terms set forth in this Agreement.
e) Should the Receiving Party be legally obliged to fulfill a governmental, legal or judicial order or requirement to disclose any Confidential Information, the Receiving Party shall rapidly inform the Disclosing Party of this situation, so that the latter may seek for a protection order or another suitable resource and/or waive the fulfillment of this Agreement at the Disclosing Party’s sole cost. In case such protection order or resource is not obtained, or should the Disclosing Party waive the application of this Agreement, the Receiving Party shall disclose only such part of the Confidential Information that is legally required and shall mark the same as “confidential” and the Receiving party shall make its reasonable efforts, at Disclosing Party’s sole cost, to obtain a protection order or another reliable guaranty that the Confidential Information shall be treated in accordance with its confidential nature.
This Agreement shall not apply to such Confidential Information that:
i) at the time of disclosure or thereafter, is or becomes publicly known without breach of any confidentiality obligation by the Receiving Party or any third party;
ii) is provided to the Receiving Party by a third party without restriction on use or disclosure, and without violation of such a restriction by the third party;
iii) which is approved for release by written authorization of the Disclosing Party;
iv) which has been prepared or produced by the Disclosing Party without the use of Confidential Information.
(all of the foregoing the “non confidential information”)
FIFTH: Representations and Warranties relating to the Confidential Information.
The Disclosing Party does not give or should not be considered to have given, whether directly or indirectly, any representation or warranty, whether explicit or implicit, to the Receiving Party or to any other Person, regarding the accuracy or integrity of any of the Confidential Information disclosed or given to the Receiving Party.
The Disclosing Party shall have no responsibility, of any kind, before the Receiving Party or any other person, whether directly or indirectly, deriving from the supply to the Receiving Party, or to other Person, whether directly or indirectly, or from the use given by the Receiving Party to such Confidential Information. The Receiving Party agrees that it shall be solely responsible for its assessment and calculations regarding the price of the Property and for its geologic and engineering interpretations of the same.
SIXTH: Indemnity and Resources.
The Receiving party shall trust the Confidential Information at its exclusive risk and shall indemnify, protect and keep the Disclosing Party, its Representatives and Affiliates and their respective directors, employees and agents, free from any damages, loss, responsibility, obligation, trial, lawsuit, cost or expense (including reasonable fees of lawyers), including, among others, those related to the death, personal injuries or property damages; that may occur or that may derive from the disclosing of any Confidential Information.
SEVENTH: Visits to the Property.
Should the Receiving Party wish to visit the Property, the Receiving party and the Disclosing Party shall arrange such visit. The Receiving Party’s Representatives may enter the Property provided it is made at their own risk and cost and that they fulfill all reasonable instructions given by the Disclosing Party. The Receiving Party may not visit the Property without Disclosing Party’s previous consent and shall observe all applicable laws and regulation during such visit.
Any consent required to be given by the Disclosing Party according to this Agreement, shall only be valid and binding if given in written.
This Agreement, as well as the rights and obligations of the parties under the same, shall remain in force for the lesser of: (i) a two (2) year period as of the date of this Agreement or (ii) until the date the Disclosing Party abandons the Property, whichever happens first.
TENTH: Area of Interest.
The area of interest is such comprised by the superficial face of the Property plus a 2 km radio counted from the external perimeter of the same (the “Area of Interest”). The Receiving Party shall not be authorized to acquire any mining property, concession, license, mining asset, whether directly or indirectly, related or located inside the Area of Interest, during the validity of this Agreement.
ELEVENTH: Non Exclusivity.
The Receiving Party understands and agrees that the Disclosing Party does not grant any exclusive right to review the Confidential Information and that the Disclosing Party, at its exclusive criteria, may provide third parties with Confidential Information or execute agreements with the same, as it considers it convenient or appropriate.
This Agreement does not constitute a contract or compromise to sell or assign any part of the Property. The Disclosing Party reserves all rights regarding the Property or any assignment of participation in the same and does not offer the Receiving Party any right over the same or any right to participate in any analysis or negotiation regarding the Property, or any exclusive option right.
Each party undertakes that any application, communication or other notice required or permitted under the Agreement, shall be given in written and shall be effective if delivered or transmitted electronically to the address indicated below. Any notice sent electronically or delivered shall be effective as at the date of transmission or delivery, as applicable.
If to the Disclosing Party:
If to the Receiving Party:
Name : Jorge Igor Collado Cerda
Address : San Ramón 8400, Sitio 10E, Condominio Lomas de Bellavista, La Serena, Chile
E-mail : [email protected]
Telephone : +569-99791340
This Agreement may not be assigned by the Receiving Party, neither totally or partially, without the prior written consent of the Disclosing Party. Subject to the foregoing, this Agreement shall be binding to the respective authorizes successors of the parties.
FOURTEENTH: Applicable law.
The parties agree that the Agreement shall be governed by the Chilean law.
Any difficulty or controversy arising among the parties to the Agreement with respect to the application, interpretation, duration, validity or execution of the Agreement, or for any other reason, shall be submitted to arbitration pursuant to the Rules of Arbitration Procedure of the Santiago Arbitration and Mediation Center in effect at the time of its initiation.
The parties confer an irrevocable special power of attorney upon the Santiago Chamber of Commerce so that it may, at the written request of any of the parties, appoint an arbitrator from among the members of the arbitration corps of the Santiago Arbitration and Mediation Center, who will be empowered to act as arbitrator-at-law with regard to the substance of the dispute and as ex aequo et bono with regard to the procedure.
There shall be no remedy against the arbitrator’s resolutions. The arbitrator is especially empowered to resolve any matter relating to his/her competence and/or jurisdiction.
SIXTEENTH: No waiver.
No failure or delay by either party to exercise any right arising from default by the other party shall impair that right or constitute a waiver of it. No waiver by either party of any covenant to be performed by the other shall constitute a waiver of any later breach or covenant.
SEVENTEENTH: Total Agreement.
This Agreement constitutes the complete agreement between the parties in this regard and supersedes any previous negotiation in connection with the same.
This Agreement may only be modified, amended or complemented through a written agreement executed by both parties.