This Confidentiality Agreement (the “Agreement“) is made and entered into as of the date that CFAHK has confirmed the acceptance of the volunteer application for being a volunteer of the CFAHK Function(s) (“the “Effective Date”), by and between The Hong Kong Society of Financial Analysts Limited (“CFAHK”), a company limited by guarantee and incorporated in Hong Kong, with its registered address at 14/F, BOC Group Life Assurance Tower, 136 Des Voeux Road Central, Hong Kong (the “Disclosing Party“) and the person who signed the Volunteer Application / Renewal Form, a volunteer member duly registered with CFAHK in accordance with the relevant procedures and requirements set out in the Articles of Association adopted by CFAHK (the “Receiving Party”), with respect to the following:
A. Both the Disclosing Party and the Receiving Party wish to enter into the Agreement governing and restricting the use of the confidential information obtained by the Receiving Party in the course of carrying out, inter alia, (i) the objects as set out in constitutional document(s) of CFAHK (as may be amended from time to time), (ii) the business, activities and events solely or jointly organised by CFAHK, and (iii) such other duties and obligations delegated or assigned to the volunteer members (collectively described hereafter as “CFAHK’s Business”).
B. In connection with the objectives intended to be accomplished by the parties as set out in Clause A, the Disclosing Party may disclose to the Receiving Party certain confidential information of the Disclosing Party which it wishes to keep confidential and would be disclosed to the Receiving Party only on the condition that such information is kept in strict confidence and will not be disclosed to any other party or used by the Receiving Party other than in connection with the CFAHK’s Business.
C. The Disclosing Party should not (to the extent possible) disclose such information without the execution of this Agreement by the Receiving Party.
NOW, THEREFORE, based on the foregoing premises and the mutual covenants contained in this Agreement, the Disclosing Party and the Receiving Party hereby agree as follows:
- Definitions. In this Agreement the terms set forth below shall have the meanings set forth below:
“Confidential Information” means any information, materials, records and/or documents which the Disclosing Party provides to the Receiving Party in relation to the CFAHK’s Business, regardless of form in which such information was communicated or maintained (whether in written, oral, electronic or machine readable form), and whether such information is identified or designated as proprietary or confidential information of the Disclosing Party or should be recognised by the Receiving Party as confidential due to its nature, including but not limited to specifications, personal data, know-how, formulae, compositions, processes, designs, intellectual property, photographs, graphs, diagrams, artwork, videos, inventions and ideas, agreements, documents, analyses, reports, business plans, studies, notes, projections, compilations, marketing information, research and development, member lists, trade secrets, financial information or information which is capable of protection at law or equity as confidential information, any information derived or produced partly or wholly from or reflect the above information (including any notes, reports, analyses, compilations, studies, files or other documents or materials)
“party” means either the Disclosing Party or the Receiving Party as the case may be and together they are referred to as the “parties”.
- Term. This Agreement will commence and take effect on the Effective Date.
- Exceptions to Confidential Information. Notwithstanding anything else contained in this Agreement, Confidential Information will not include any information that (i) the Receiving Party can demonstrate is or was at the time it was disclosed, or becomes after disclosure, without fault of or breach by the Receiving Party, generally available to the public; (ii) the Receiving Party can demonstrate is or was already known to the Receiving Party at the time of its disclosure by the Disclosing Party, as evidenced by the Receiving Party’s contemporaneous written records; (iii) the Receiving Party can demonstrate is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement or other obligation of confidentiality relating to such Confidential Information; (iv) the Receiving Party can demonstrate is independently developed by the Receiving Party without the use in whole or in part of the Confidential Information; or (v) is approved for release by written authorization of the Disclosing Party in its sole discretion, only to the extent of and subject to such conditions as may be imposed in such written authorization, and provided that Receiving Party must use its reasonable endeavors to ensure that the recipient(s) of the Confidential Information do not disclose the Confidential Information.
- Nondisclosure. The Receiving Party shall use the Confidential Information only for purpose of engaging in the CFAHK’s Business and shall keep it strictly confidential and not disclose it in whole or in part in any manner whatsoever, except as provided for in this Agreement. The Receiving Party shall not use less than the same standard of care in maintaining the confidentiality of the Confidential Information as a reasonable person would use for its own confidential information of a similar nature. The Receiving Party shall comply with the terms of this Agreement and shall be responsible for any breach of this Agreement.
- Disclosure Required by Law or Legal Process. If the Receiving Party is required by law or legal process, or in order to comply with the ru1es of any securities exchange or market, to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice of each such request, so that the Disclosing Party may (i) seek an appropriate protective order or confidential treatment, or (ii) require the Receiving Party to use its reasonable efforts to seek an appropriate protective order or confidential treatment (if any such order or confidential treatment is available). The Receiving Party may furnish that portion (and only that portion) of the Disclosing Party’s Confidential Information that it is legally compelled or is otherwise required to disclose after consultation with the Disclosing Party, to the extent practicable.
- Return or destruction of Confidential Information. Upon the request of the Disclosing Party, the Receiving Party shall as soon as practicable return to the Disclosing Party (or if directed by the Disclosing Party destroy, with such destruction to be certified to the Disclosing Party by the Receiving Party) all documents or other materials containing, referring to or is derived or produced from use of any Confidential Information and all copies thereof in the Receiving Party’s possession, power or control pursuant to this agreement. For the avoidance of doubt, the return and/or destruction of such documents or materials shall in no way relieve the Receiving Party of any obligations of confidentiality contained herein regarding such Confidential Information.
- Ownership of Confidential Information. All Confidential Information and any information derived or produced partly or wholly from the Confidential Information (whether created by the Disclosing Party or the Receiving Party) shall not nor be deemed to confer on the Receiving Party any rights whatsoever. Such information remains the sole property of Disclosing Party and no license, assignment or other rights to such information is granted or implied hereby.
- Governing Law and Venue. Any action connected with, arising from, or relating to this Agreement shall be filed only in a court in Hong Kong and the parties irrevocably consent and submit to the jurisdiction of such courts. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without regard for its conflict of law principles.
- Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any such breach or threatened breach, each party, in addition to any other remedies at law or in equity that it may have, will be entitled, without the requirement of posting a bond or other security, to obtain equitable relief, including injunctive relief and specific performance.
- Notices. Any notice or other communication hereunder shall be given in writing and either (i) delivered in person, (ii) transmitted by facsimile or by electronic mail, or (iii) delivered by an overnight commercial delivery service to the party to which such notice or communication is to be given, at the address set forth in the first paragraph above or to such other address as either party will have last designated to the other party. Each such notice or other communication will be effective (a) if given by an overnight commercial delivery service, three (3) business day after such notice or communication is deposited with such service and addressed as aforesaid and (b) if given by personal delivery or facsimile or by electronic mail, when actually received, as may be evidenced by appropriate receipts, facsimile “answer-back” print-outs, or other similar documentation.
- General Provisions. This Agreement is binding upon each party, its successors, and permitted assigns. This Agreement will not be assignable or transferable by any party without the prior written consent of the other party. Each term of this Agreement may be modified, supplemented, amended or waived only by writing signed by both parties that expressly modifies, supplements, amends or waives such term. No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege under this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect. This Agreement may be executed in counterparts, both of which taken together constitute one and the same document. This Agreement, when duly signed and delivered by facsimile or by electronic mail, shall be as effective as delivery of the original signed copy.
- In addition to the duties and obligations imposed on the Receiving Party under this Agreement, the volunteer member also agrees to observe and be bound by the code of ethics and standards of conduct from time to time adopted by the CFA Institute and the Articles of Association and/or any other constitutional documents from time to time adopted by the CFAHK.