Preamble

 

This Confidentiality Agreement (the “Agreement”) is entered into by and between Apziva
(Disclosing Party) and You (Receiving Party), hereinafter referred to as “Party” individually
and collectively as “Parties”.
WHEREAS the Disclosing Party and Receiving Party wish to exchange confidential
information (as defined herein below in clause 2 of this agreement) pertaining to the
projects, products and tasks assigned or offered by Apziva and/or affiliates, and partners of
Apziva. This exchange includes all communication of confidential information between the
parties in any form whatsoever, including oral, written and electronic form, pertaining to the
above which is indicated as confidential.
WHEREAS the Disclosing Party and Receiving Party wish to exchange said confidential
information for the sole purpose of delivering the tasks, projects and assessing skills and
work experience and each party regards certain parts of the said information it possesses to
be secret and desires to protect those parts from unauthorized use, modification or
disclosure.
WHEREAS the Disclosing Party is willing to disclose confidential information and the
Receiving Party is willing to receive the said confidential information, on the terms and
conditions set forth hereunder.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE
PARTIES AS UNDER:

 

 

§ 1 Confidential Information

 

1.1. Confidential Information for the purposes of this Agreement shall mean all
information which is made available to the Receiving Party or its Representatives by
the Disclosing Party (Apziva) verbally, in writing or in any other form, when such
information:

 

1.1.1. is clearly marked as Confidential Information, is described as such or is otherwise

recognisable as such;

 

1.1.2. is to be regarded as confidential because of its contents; or

 

1.1.3. is derived from Confidential Information which has been provided by the Apziva.

 

1.2. So “Confidential Information” means:

 

1.2.1. Any information (including any and all combinations of individual items of
information) disclosed (directly or indirectly) by Disclosing Party to Receiving Party
pursuant to this Agreement that is in written, graphic, machine readable or other
tangible form (including and without limitation, research, product plans, products,
services, equipment, customers, markets, software, inventions, discoveries, ideas,
processes, designs, drawings, formulations, specifications, product configuration
information, marketing and finance documents, prototypes, samples, data sets, and
equipment) and is marked “Confidential,” “Proprietary” or in some other manner to
indicate its confidential nature;

 

1.2.2. Directly or indirectly oral information disclosed by Apziva to the Receiving Party
pursuant to this Agreement; provided that such information is designated as confidential
at the time of its initial disclosure and reduced to a written summary by Apziva that is
marked in a manner to indicate its confidential nature and delivered to Receiving Party
within thirty (30) days after its initial disclosure;

 

1.2.3. Information otherwise reasonably expected to be treated in a confidential manner
under the circumstances of disclosure under this Agreement or by the nature of the
information itself. Confidential Information may include information of a third party that
is in the possession of the Disclosing Party and is disclosed to the Receiving Party under
this Agreement.

 

 

§ 2 Exemptions from the undertaking of confidentiality

 

The Receiving Party with respect to any portion of the confidential information received
from the Disclosing Party under this agreement shall not be liable or subject to any
obligation under this Agreement if such information:

 

2.1. available to the general public at the time of disclosure or Contract Information
which became available to the general public thereafter, or publicly available other than

by unauthorized disclosure

 

2.2. lawfully obtained by the receiving party from a third party under no obligation of
confidentiality;

 

2.3. already in the possession of or known to you at the time of disclosure,

 

2.4. developed independently of the Confidential Information by you, or

 

2.5. if and to the extent you or one of your employees is obliged under an act or by
decision of a court or administrative authority to disclose Confidential Information and/or
to inform about it.

 

 

§ 3 Confidentiality and prohibition to use

 

3.1. You undertake to keep the Confidential Information secret and not to disclose
Confidential Information to third parties.

 

3.2. You shall be entitled to disclose Confidential Information to your employees only
to the extent necessary to any projects, products and/or tasks. You shall exercise all
necessary efforts to ensure that the duty of confidentiality laid down in this agreement
is observed by such employees.

 

3.3. Transfer of Confidential Information to third parties is only permitted upon prior
written consent of You. In the event of transfer of Confidential Information, You shall
impose, in form of a written contract, the confidentiality obligation undertaken by it
upon such receivers of Confidential Information. With regard to the confidentiality
obligation such contract shall be concluded in the form of an agreement for the benefit
of Apziva with recourse. You shall be jointly and severally liable for compliance by the
third party with this Confidentiality Agreement.

 

3.4. The foregoing confidentiality obligation shall be legally binding for You indefinitely.
In particular the obligation is neither terminated by successful completion of projects,
products and/or tasks nor by their final failure.

 

3.5. Moreover, You undertake to use Confidential Information exclusively for the
purpose of the Apziva’s will, You undertake not to

 

3.5.1. make commercial use of Confidential Information or parts thereof directly or
indirectly without the prior written consent of Apziva;

 

3.5.2. apply for intellectual property rights, which subject-matter completely or partly

is based on or is derived from Confidential Information.

 

 

§ 4 Return/destruction of Confidential Information

 

4.1. Immediately after the project, product and/or tasks have finally failed or finished,
however not later than one year after the Effective Date (the day on which this
Agreement is agreed upon by the last Party), You shall upon Apziva’s request return all
Confidential Information to Apziva. 

 

4.2. The obligation under paragraph 4.1. also applies to records which You made
regarding Confidential Information in a written form or on other data carriers as well as
to copies of Confidential Information, irrespective if they were made on paper or on
other data carriers. In the event of data carriers incapable of being surrendered, such
as hard disks etc., You shall delete or otherwise destroy the relevant data relating to
Confidential Information at the request of Apziva. At the request of Apziva, You shall
confirm in writing without undue delay that all documents and records have been
returned or, as the case may be, deleted or destroyed in accordance with the
obligation stipulated above.

 

4.3. This is all to say;

You shall be obliged at the request of Apziva:

 

4.3.1. to return, or at Apziva’s option to evidence the destruction of all
Confidential Information whether written or in any other form, without undue
delay and together with all reproductions and copies thereof;

 

4.3.2. at the same time to return, or at the Apziva’s option to evidence the
destruction of all other materials, including materials produced by the Receiving
Party itself, which contain Confidential Information or which allow conclusions to
be drawn about such; and

 

4.3.3. to confirm to Apziva in writing that it has returned or destroyed the
Confidential Information in the described manner.

 

4.4. Confidential Information shall be destroyed in the safest way possible using current
state-of-the-art technology as far as this is possible and reasonable for the Receiving
Party.

 

4.5. The party obliged to return or destroy Confidential Information shall be entitled to

assert a right of retention only in respect of counterclaims which are undisputed or
recognised by declaratory judgement.

 

 

§ 5 Duties of the Receiving Party

 

The receiving party hereby represents warrants and undertakes as follows:

 

5.1. Not to disclose, use, transfer, modify or do any other act or omission relation thereto
with regard to the confidential information received from the Disclosing Party and use at all
times the greatest degree of care, caution and due diligence to maintain the confidentiality
of such information.

 

5.2. Shall use the confidential information only for the specified purpose (as defined above);

 

5.3. Shall not export, transfer or in any other manner share directly or indirectly, confidential
information or any part thereof acquired from the Disclosing Party any Third Party, without
first obtaining prior written approval of the Disclosing Party.

 

5.4. Shall restrict disclosure of the confidential information shared by the Disclosing Party
solely with the authorised employees of the receiving party.

 

5.5. Apprise each such authorised employee, before he or she receives access to the
confidential information, of the obligations of the receiving party under this agreement, and
require each such employee to agree to maintain those obligations.

 

5.6. Shall not, directly or indirectly, in any way, reveal, publish, disclose, transfer or
otherwise use the confidential information or any part thereof except as specifically
authorized by the disclosing party and solely for business purpose unless a prior consent to
do otherwise has been obtained in writing from the disclosing party.

 

5.7. Shall not use confidential information or any part thereof to gain any unlawful or unfair
advantage over disclosing party with regard to any business activity.

 

5.8. Shall take all the reasonable steps and resort to all security measures for fulfilling its
obligation under this agreement and to secure and protect the confidential information.

 

 

§ 6 Duties of the Representatives

 

The Receiving Party agrees:

 

6.1. to inform its Representatives about the confidential nature of the Confidential
Information before disclosing it to them;

 

6.2. to ensure that all Representatives are bound by and comply with the main provisions
of this Agreement, in as far as permitted under law.

 

 

§ 7 Protective Measures

 

In order to ensure that the Confidential Information is kept confidential the Receiving
Party agrees:

 

7.1. that all documents and materials which contain Confidential Information

 

7.1.1. shall be kept separately from all other documents, materials and notes and in such a
way that they are recognisable as trade and business secrets of the Apziva; and

 

7.1.2. shall be kept in a safe place in order to protect them from theft or unauthorised
access;

 

7.2. to only make copies of Confidential Information with the consent of Apziva to the
extent necessary in order to carry on the work needed effectively or to evaluate the
Transaction and to ensure when copying the Confidential Information that any marks on
the original documents which indicate the confidential nature of the information are as
legible on the copies as on the original documents;

 

7.3. neither to use, reproduce, process or store Confidential Information on any computer
or electronic information system which can be accessed remotely nor to transmit
Confidential Information outside its business premises;

 

7.4. to notify Apziva without delay after becoming aware of an actual or imminent
unauthorised use or an actual or imminent unauthorised disclosure of Confidential
Information and to take all reasonable measures in order to prevent or terminate any such
use or any such disclosure, if necessary with the assistance of Apziva;

 

7.5. to make available at the request of Apziva a list with

 

7.5.1. the names and addresses of the persons to whom the Confidential Information has
been disclosed and their relationship to the Receiving Party;

 

7.5.2. the locations in which the Confidential Information is kept; and

 

7.5.3. the other protective measures taken by the Receiving Party;

 

7.5.4. as well as to grant Apziva a reasonable opportunity during usual business hours to
check that the measures and locations set out in the list are complied with; and

 

7.6. in the event that the Confidential Information contains personal data to oblige its

Representatives separately in writing to comply with the data protection provisions
pursuant to Privacy, Cookie and Data Protection Policy.

 

 

§ 8 Request for Information

 

8.1. Unless otherwise agreed in writing, Receiving Party and its representatives shall
ensure that the request for and exchange of information, whether or not it concerns
Confidential Information, takes place primarily in writing and only through the following
persons or further persons named in writing by Apziva: Semih Yağcıoğlu

 

8.2. Apziva is entitled to replace the person which it has named under 8.1 above at any
time. Until the other party has received written notification stating who is now responsible
for receipt or disclosure of Confidential Information, that party shall be entitled to
transmit confidential data to the previously named contact person.

 

8.3. Apziva reserves the right, at any time and without having to give reasons, not to hand
over Confidential Information to the Receiving Party.

 

 

§ 9 No Right to Confidential Information

 

9.1. Apziva shall remain the owner of the rights in the Confidential Information.

 

9.2. No provision in this Agreement shall be interpreted expressly or by implication as the
transfer of any rights or the grant of any licences in relation to the Confidential
Information.

 

9.3. The receiving party hereby acknowledges and agrees that neither the execution of this
agreement nor the furnishing of any confidential information hereunder shall be
construed as granting either expressly or by implication, any license under or title to any
invention, patent, copyright, trademark or trade name now or hereafter owned by or
controlled by the party furnishing the said information.

 

 

§ 10 Remedies

 

Receiving Party agrees that any violation and threatened violation of this Agreement might
cause irreparable injury to Apziva, entitling Apziva to seek injunctive relief in addition to all
legal remedies. In such case, when the Receiving Party causes any violation and threatens

violation of this Agreement then the Receiving Party agrees to pay a compensation which
amount will be defined according to Turkish Law to Apziva as well.

 

 

§ 11 Disclosure Requirements

 

In the event that the Receiving Party or any of its Representatives is subject to a statutory
obligation or a legitimate court or official order to disclose Apziva’s Confidential
Information, the Receiving Party shall:

 

11.1. immediately notify Apziva in writing by fax or by officially e-mail of this obligation
and assist Apziva upon its request as far as possible in protecting the Confidential
Information or having it protected through the courts;

 

11.2. to the extent that no other protective measures are taken, disclose only such
Confidential Information which must be disclosed by reason of the statutory obligation or
order and use its best endeavours to ensure that the Confidential Information disclosed is
treated as far as possible in accordance with this Agreement.

 

 

§ 12 Sole Property

 

The confidential information shared and exchanged under this agreement shall remain the
sole property of the Disclosing Party “Apziva”.

 

 

§ 13 No Warranty

 

13.1. The Disclosing Party does not make any represent or warrant as to the correctness,
completeness and accuracy of information provided under this Agreement, but hereby
agrees shall furnish such in good faith. Without restricting the generality of the foregoing,
the Disclosing Party shall not at any time be liable for any special, incidental or consequential
damages of any nature whatsoever resulting from receipt or use of such confidential
information by the Receiving Party.

 

13.2. Apziva does not give any warranty that the Confidential Information it has made
available is complete or accurate, or that it can be used by the Receiving Party.

 

13.3. Apziva shall not be liable to the Receiving Party for losses which the latter suffers
through the use, irrespective of whether or not such use is permitted by this Agreement of
Confidential Information or through its reliance upon the completeness and accuracy of
such.

 

 

§ 14 Assignment

 

The rights and obligations of the Parties under this agreement shall not be sold, assigned or
otherwise transferred.

 

 

§ 15 Contractual penalty

 

15.1. In the event that the Receiving Party or any of its Representatives negligently or
wilfully breaches the confidential nature of Confidential Information towards Apziva, the
Receiving Party shall be obliged to pay to Apziva a contractual penalty of 100.000 - USD (in
words: hundred thousand US dollars) per breach which shall be credited against the
actual damage. If the breach of this Agreement is a continuing breach the Receiving Party
shall be obliged to make a further payment to Apziva in the amount of 50.000 USD (in
words: fifty thousand US dollars) for every month of this breach. In particular, the
disclosure of Confidential Information to an indeterminate number of addressees, e.g.
through publication on the Internet, shall constitute a continuing breach.

 

15.2. Apziva’s right to claim for additional losses shall remain unaffected.

 

15.3. Receiving Party agrees that any violation and threatened violation of this Agreement
might cause Apziva’s right to compensation as well.

 

 

§ 16 Duration and Termination of this Agreement

 

The obligation of this agreement shall be continuing for a period of 10 (ten) years after the
disclosure has been made. However, Receiving Party’s obligations of confidentiality and
restrictions on use of the confidential information disclosed and/or exchanged by the
Disclosing Party shall survive termination of this agreement. On termination or early
determination of this agreement, all the confidential information in possession of the
Receiving Party shall be delivered to the Disclosing Party or any person as instructed by
the Disclosing Party.

 

 

§ 17 Governing Law and Jurisdiction

 

This Agreement will be construed and governed in accordance with the laws of Turkey. Any
dispute arising between Parties under this Agreement shall be resolved by Turkish law with
the exception of the rules of the private international law.

 

 

§ 18 Costs

 

Receiving party shall fulfil its obligations under this Agreement free of charge and without
any claim to reimbursement of costs.

 

 

§ 19 Apziva’ s Right of Compensation

 

Receiving Party agrees that when it causes any violation and threatens violation of this
Agreement, Receiving Party will pay a compensation to Apziva. The amount of this
compensation will be defined according to Turkish Law.

 

 

§ 20 Miscellaneous

 

20.1. Changes to this Agreement must be made in writing in order to be valid.

 

20.2. This Agreement contains all agreements made between the Parties in respect of the
subject matter hereof and shall supersede all previous provisions agreed between the
Parties in respect of the subject matter hereof. No ancillary agreements to this Agreement
have been made.

 

20.3. Should any provision of this Agreement be or become invalid, ineffective or
unenforceable, the remaining provisions shall remain valid.

IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the
Effective Date.

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Effective date : September 9, 2020

Last Updated : September 9, 2020

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