Draft Perjanjian Kontrak Bagi Hasil (Confidentiality Agreement)

“CONFIDENTIALITY AGREEMENT” 
Confidentiality Agreement of Production Sharing Contract



This AGREEMENT is made this the ____ day of _____ 2003 by and between ______________ Indonesia Ltd., a corporation organized and existing under the laws of Bermuda (hereinafter referred to as the “Disclosing Party”), and ______________ Co., Ltd., a corporation organized and existing under the laws of __________ (hereinafter referred to as the “Receiving Party”).
  1. In connection with the evaluation and the possible acquisition by the Receiving Party of certain petroleum exploration and production rights held by the Disclosing Party under the Pasiriaman Block Production Sharing Contract in the area identified on the attached map as the Pasiriaman Block (hereinafter referred to as the “Area”), the Disclosing Party is willing, in accordance with the terms and conditions of this Agreement, to disclose to the Receiving Party certain confidential information, which is proprietary, relating to the Area which includes, but is not necessarily limited to, geological and geophysical data, maps, models and interpretations and may also include commercial, contractual and financial information (hereinafter referred to as the “Confidential Information”)
  1. In consideration of the disclosure referred to in Paragraph 1 hereof, the Receiving Party agrees that the Confidential Information (and every part thereof) shall be kept strictly confidential and shall not be sold, traded, published or otherwise disclosed to anyone in any manner whatsoever, including by means of photocopy or reproduction, without the Disclosing Party’s and ___________’s prior written consent, except as provided in Paragraphs 3, 4 and 5 below.
  1. The Receiving Party may disclose the Confidential Information without the Disclosing Party’s Prior written consent only to the extent that such Information:
    • is already known to Receiving Party or any of its Affiliated Companies (as hereinafter defined) as of the date of disclosure hereunder;
    • is already in the possession of the public or becomes available to the public other than through the act or omission of the Receiving Party or any of its Affiliated Companies (as hereinafter defined);
    • is required to be disclosed under the applicable law or by a government order, decree, regulation or rule (provided that the Receiving Party shall give written notice to the Disclosing Parties prior to such disclosure);
    • is acquired independently from a third party that has the right to disseminate such information at the time it is acquired by the Receiving Party or any of its Affiliated Companies (as hereinafter defined).
  1. The Receiving Party may disclose the Confidential Information without the Disclosing Party’s prior written consent to an Affiliated Company (as hereinafter defined), provided that the Receiving Party guarantees the adherence of such Affiliated Company to the terms of this Agreement. “Affiliated Company” shall mean any company or legal entity which (a) controls either directly or indirectly the Receiving Party, or (b) which is controlled directly or indirectly by the Receiving Party, or  (c) is directly or indirectly controls the Receiving Party. “Control” means the right to exercise 50% or more of such company.
  1. The Receiving Party shall be entitled to disclose the Confidential Information without the Disclosing Party’s prior written consent to such of the following persons who have a clear need to know in order to evaluate the Area.
    • employees, officers and directors of the Receiving Party;
    • employees, officers and directors of an Affiliated Company;
    • any professional consultant or agent retained by the Receiving Party or its affiliated Companies for the purpose of evaluating the Confidential Information;
    • any banking financing Receiving Party’s or any of its Affiliated Company’s participation in the Area, including any professional consultant retained by such bank for the purpose of evaluating the Confidential Information.
  1. The Receiving Party and its Affiliated Companies, if any, shall not use or permit the use of the Confidential Information disclosed under Paragraphs 4 or 5 above except to the extent necessary evaluate the Area and determine whether to enter into negotiations concerning the acquisition of all or part of the Disclosing Party’s rights in the Area.
  1. The Receiving Party shall be responsible for ensuring that all persons to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person. Neither Party shall be liable in an action initiated by one against the other for special, indirect or consequential damages resulting from or arising out of this Agreement, including, without limitation, loss or profit or business interruptions, however same may be caused.
  • The Confidential Information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the return thereof at any time upon giving written notice the receiving Party.
  • Within 30 days of
    • receipt of the notice in Paragraph 8 (a); or
    • upon Receiving Party deciding not to participate in the Area

(Whichever is the sooner) the Receiving Party shall return all of the original Confidential Information and shall destroy all copies and reproductions (including notes made by or on its behalf) both written and electronic in its possession. Receiving Party shall, further, retrieve all Confidential Information given to any person pursuant to paragraphs 4 or 5 and Receiving Party shall ensure that any persons to whom disclosure is made pursuant to Paragraphs 4 or 5 shall not take or retain any copies or the Confidential Information without the prior written consent of the Disclosing Party.
  1. If the Receiving Party acquires any of the Disclosing Party’s rights in the Area, then this Agreement shall terminate automatically on the date the Receiving Party enters into a further agreement, which contains provisions covering the confidentiality of data in the Area. Unless earlier terminated under the preceding sentence, the confidentiality obligations set forth in this Agreement shall terminate upon expiry of the Pasiriaman Block Production Sharing Contract.
  1. The Disclosing Party makes no representatives or warranties, express or implied, as to the quality, accuracy and completeness of the Confidential Information disclosed hereunder, and the Receiving Party expressly acknowledges the inherent risk of error in the acquisition, processing and interpretation of geological and geophysical data. The Disclosing Party, its Affiliated Companies, their officers, directors and employees shall have no liability whatsoever with respect to the use of or reliance upon the Confidential Information by the Receiving Party.
 This Agreement shall be governed by and interpreted in accordance with the laws of Indonesia.
Any dispute arising out of or relating to this Agreement, including any question regarding its existence, validity or termination, which cannot be amicably resolved by the Parties, shall be settled in the courts of Indonesia. A dispute shall be deemed to have arisen when either Party notifies the other Party in writing to that effect.
  1. Unless otherwise expressly stated in writing, any prior or future proposals or offers made in the course of the Parties’ discussion are implicitly subject to all necessary management and government approvals and may be withdrawn by either at any time. Nothing contained herein is intended to confer upon the Receiving Party any right whatsoever to the Disclosing Party’s interests in the Area.
  1. No Amendments, changes or modifications to this Agreement shall be valid except if the same are in writing and signed by a duly authorized representative of each of the Parties hereto.
 This Agreement comprises the full and complete agreement of the Parties hereto with respect to the disclosure of the Confidential Information and supersedes and cancels all prior communications, understanding and agreements between the Parties hereto, whether written or oral, expressed or implied.
This Agreement, the resulting disclosure of the Confidential Information, and any subsequent discussions and other communications between the Parties shall not impose or create any obligations, including but not limited to, overriding royalty or commission, on the Parties except for the obligations expressly stated herein.

IN WITNESS WHEREOF, the duly authorized representatives of the Parties have caused this Agreement to be executed on the date first written above.



DISCLOSING PARTY
RECEIVING PARTY
………… INDONESIA LTD:           
……………. CO LTD:
By       : Mr. ……………….
By       : Mr. …………………
Title    : Managing Director
Title    :
Date    :
Date    :

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