Non-Compete and Non-Solicitation Agreement

Non-Compete and Non-Solicitation Agreement

[NFQ Vietnam Company Limited, 92 Nguyen Huu Canh, Ward 22, Binh Thanh District, Ho Chi Minh City, Vietnam Enterprise Code 0314588343]

WHEREAS

1. NFQ provides a range of services, including software development and product development. Additionally, NFQ offers process digitalization, business analytics, and strategic counsel, with the objective to increase scalability of entrepreneurs' businesses. NFQ also offers consulting services and participates in speaking engagements. All services are individually or collectively referred to as "Services".
2. The Client desires, and NFQ agrees to provide some of the Services for the Client under relevant statement of works (“SOW”), under which the Services shall be involved by the employee of and directly related to Confidential Information of NFQ.
3. The Client agrees and undertakes to comply with non-compete and non-solicitation obligations under this Agreement for the purpose of protecting Confidential Information of NFQ from being disclosed illegally and other similar acts which negatively impact NFQ’s workforce and operation.

Now, therefore, the Parties hereby undertake and agree to irrevocably perform this Agreement with the following terms and conditions:

1. Definitions and Interpretations
In this Agreement, the following terms shall have the meaning as below:

1.1. “Affiliates” means the entities related to NFQ through ownership, control, or common management, including instances where NFQ holds a minority stake.
1.2. “Confidential Information” includes all commercial, financial, legal and technical and non-technical information belonging to a Party, or products, or any other person (whether corporate or not) they’re commercially linked with, including Affiliates which are provided by a Party (Disclosing Party) to the receiving Party (“Recipient”) either directly or indirectly, before or after the signing of this Agreement. Confidential Information may be supplied, disclosed, or communicated in written, visual, electronic or oral form. Confidential Information excludes information that the Parties can prove:
a) is or becomes public through no breach of confidentiality by each of the Party or its representatives;
b) is lawfully known to the Recipient at the time of disclosure without an obligation of confidentiality; or
c) is rightfully obtained from a third party without restriction and without a breach of a confidentiality obligation by such third party;
d) is independently developed by the Recipient without using any Confidential Information;
e) each Party is legally required to disclose by an applicable court of law, governmental or regulatory authority, provided that the respective Party must promptly notify, to the extent legally possible, the Disclosing Party so that the Disclosing Party may seek appropriate protection or remedy and/or waive the other Party’s compliance with certain provisions of this Agreement; or
f) is authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.

1.3. “General Terms and Conditions” means the general terms and conditions of NFQ.
1.4. “Laws” means any or all applicable laws, decrees, decisions, circulars, regulations and other documents having the effect of law issued by a relevant State Authority of Vietnam.
1.5. “Project” means the method of providing NFQ Services that has a clear beginning and end and is directed towards a unique result. The Project is specified in the SOW.
1.6. “Service Provisioning Capacities” means the allocation of resources, in particular personnel, and skills, but further includes equipment, or performance metrics that NFQ shall meet, such as response times, or resolution times.
1.7. “Services” has the meaning given to it in item 1 of the above Whereas section of this Agreement.
1.8. “SOW” has the meaning given to it in item 2 of the above Whereas section of this Agreement.
1.9. “Term” means the duration during which NFQ offers some or all of the Services to the Client as outlined in the relevant SOW.
1.10. “Unfair Competition” means actions aimed at gaining a competitive edge, securing benefits, or causing harm to the other Party through the utilization, provision, or disclosure of the other Party’s Confidential Information without consent, as well as the receipt of such information from unauthorized sources.
1.11. “VND” means Vietnamese Dong, the currency having legal tender in Vietnam.

2. Non-solicitation of employees
2.1. Non-solicitation. The Parties hereby undertake and covenant that neither Party, nor any of their respective affiliates, related corporations and/or representatives shall, directly or indirectly, during the term of the Project until 2 years of its completion or termination (as the case may be) without the prior written consent of the other Party:
(i) solicit with a view to the employment or engagement of, or employ or engage, any employee, officer or representatives of the other Party, its Affiliates and related corporations (each, a “Relevant Personnel”), whether as employee or consultant; or
(ii) otherwise induce or persuade, or seek to induce or persuade, any Relevant Personnel to leave or terminate their employment, service or engagement with the other Party, its Affiliates and related corporations (as the case may be).
2.2. Penalty. If either Party breaches this Section, the breaching Party shall pay the non-breaching Party, within 14 calendar days of receiving written notice to the same effect, a penalty equivalent to the following:
(i) in respect of Relevant Personnel who were assigned to the breaching Party as part of the Service Provision Capacities, the breaching Party must pay to the non-breaching Party a penalty equivalent to 24 months of service fees per team member, in each case as set out in the SOW or otherwise notified in writing; and
(ii) in all other cases, the breaching Party must pay a contractual penalty of VND 1 billion for each Relevant Personnel.
The Parties acknowledge and confirm that the damages arising from the breach of this Section 2 (Non-Solicitation) is not readily or easily ascertainable and that the amounts set out above are genuine and reasonable pre-estimates of damages suffered due to such a breach.
2.3. Damages Compensation. In addition to and without prejudice to Section 2.2, if either Party breaches this Section 2, the breaching Party shall compensate for damage incurred by the other Party as result of a breach by the breaching Party.

3. Non-compete
3.1. Obligation. During the term of the Project until 2 years of its completion or termination (as the case may be), regardless of the reason, the Client agrees not to:
(i) directly or indirectly, independently or through proxies, offer services similar to NFQ and/or its Affiliates to the other clients and/or customers of NFQ and/or its Affiliates;
(ii) induce or persuade, or seek to induce or persuade, the other clients and/or customers of NFQ and/or its Affiliates to terminate their contracts with NFQ and/or its Affiliates,
(iii) use Confidential Information for any purposes in breach of Section 13 of the General Terms and Conditions, or
(iv) entertain proposals from employees, officers or representatives of NFQ and/or its Affiliates to provide similar services to the other clients and/or customers of NFQ and/or its Affiliates in a way that constitutes Unfair Competition with NFQ.
3.2. Penalty. If the Client breaches this Section 3 (Non-Compete), the Client shall pay NFQ, within 14 calendar days of NFQ’s written notice to the same effect, a penalty equivalent to the following:
(i) with regard to sub-sections 3.1 (i) and (ii) (Non-Compete), a penalty of VND 1.4 billion for each breach;
(ii) with regard to sub-section 15.1 (iii) of the General Terms and Conditions (Confidentiality), a penalty of VND 300 million for each breach, and
(iii) with regard to sub-section 15.1 (iv) of the General Terms and Conditions (Unfair competition) and any other violation of this Agreement, a penalty of VND 700 million for each breach.
3.3. Damages Compensation. In addition to and without prejudice to Section 3.2, if either Party breaches this Section 3, the breaching Party shall compensate for damage incurred by the other Party as result of a breach by the breaching Party.

4. Governing Law and Dispute Resolution
4.1. This Agreement shall be governed by the Laws of the Socialist Republic of Vietnam.
4.2. In case of disputes, the Parties may resolve any disputes amicably within 30 days of one Party notifying the other Party about the dispute in question. Any dispute that cannot be resolved amicably shall be submitted to arbitration at the Singapore International Arbitration Center (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Center (“SIAC Rules”), unless the Parties mutually agree on different applicable rules and/ or jurisdiction at the time of initiating the arbitration. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Singapore. The language of the arbitration shall be English, unless the Parties agree otherwise when initiating the arbitration. Notwithstanding the foregoing, either Party may apply for interim measures or injunctive relief before or during the pendency of any efforts to resolve a dispute amicably.

5. General Undertakings
5.1. The Client acknowledges that all terms and conditions of this Agreement are reasonable, and the Client shall not object to such terms and conditions of this Agreement.
5.2. Both Parties undertake to fully, properly, and strictly perform the terms and conditions of this Agreement.

6. General Terms
6.1. This Agreement is made in English.
6.2. In case any terms of this Agreement are no longer in compliance with applicable Laws, such terms shall be invalid, and the other terms of this Agreement shall remain in full force and effect. In this case, the Parties shall negotiate to amend and supplement this Agreement to ensure the legal rights and interest of the Parties.
6.3. No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each Party.
6.4. This Agreement is made in two originals. Each Party shall keep one original.