(A) The Seller wishes to enter into discussions with the Interested Party relating to Project Endeavour (the “Permitted Purpose”).
(B) Each party recognises that Confidential Information (as defined below) may have to be disclosed or has been disclosed by the Seller in relation to the Permitted Purpose.
(C) The parties agree that such disclosure of Confidential Information shall be subject to the terms of this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1.1 In this Agreement (unless the context otherwise requires) the following terms and expressions have the following meanings:
in relation to either party, each of its group undertakings (as such term is defined in section 1161 of the Companies Act 2006);
has the meaning defined in clause 3.1;
any and all Information relating to the Seller that:
(a) is by its nature confidential;
(b) the Interested Party knows or ought to know is confidential; or
(c) is designated by the Seller as confidential including the following which are hereby designated by the Seller as its confidential information:
(i) technical knowledge, know-how, data, drawings and other material;
(ii) details of its trading position, products, product costs and pricing policies;
(iii) details of the market and market shares of the Seller;
(iv) details of its previous, current and prospective employees, customers and/or members;
(v) details of its plans, strategies, projections and projects; and
(vi) any copies, analyses, compilations, and studies of the foregoing;
The Seller and its Affiliates that disclose Information directly or indirectly to the Receiving Party under or in anticipation of this Agreement;
all information, including information of a technical, commercial, business, financial, operational, administrative, marketing or any other nature whatsoever, whether in oral, tangible or documentary form (including digital, electronic and magnetic media), whether marked or identified as being proprietary or not;
has the meaning set out in the Introduction above; and
the party to this Agreement and its Affiliates that receives Confidential Information directly or indirectly from the Disclosing Party.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 a reference to a particular law is a reference to it as amended and in force for the time being, and to any legislation which re-enacts or consolidates it, and includes all orders, regulations, instruments and other subordinate legislation for the time being in force made under it;
1.2.2 any reference to the singular includes a reference to the plural and vice versa;
1.2.3 any reference to clauses and sub-clauses are to clauses and sub-clauses of this Agreement;
1.2.4 any reference to a person includes a reference to a body corporate, association or partnership;
1.2.5 the headings in this Agreement are for convenience only and do not affect its interpretation; and
1.2.6 any use of the word “including” shall not be limited by the words that follow.
2. COMPANY UNDERTAKINGS
In consideration of the provision of Confidential Information from the Disclosing Party:
2.1 The Receiving Party shall treat and keep the Confidential Information secret, confidential and in safe custody at all times.
2.2 The Receiving Party shall not at any time without the prior written consent of the Disclosing Party:
2.2.1 disclose or permit the disclosure of any Confidential Information to any person except for disclosure to Authorised Persons in accordance with clause 3, or to a court or other competent public body or regulatory authority in accordance with clause 4; or
2.2.2 use, copy or exploit the Confidential Information for any purpose otherwise than for the Permitted Purpose. All such copies shall be regarded as Confidential Information.
2.3 The Receiving Party shall:
2.3.1 not (without the prior consent in writing of the Disclosing Party) disclose to any third party the identity of the Disclosing Party either on a client list of the Receiving Party or otherwise;
2.3.2 notify the Disclosing Party immediately if they suspect or become aware of any unauthorised access, copying, use or disclosure of any Confidential Information, and comply with any reasonable direction issued by the Disclosing Party regarding a suspected or actual breach or unauthorised disclosure.
3. DISCLOSURE TO AUTHORISED PERSONS
3.1 The Receiving Party may disclose the Confidential Information of the Disclosing Party only to those of its officers, employees and professional advisers (together “Authorised Persons”) who:
3.1.1 need to receive the Confidential Information to enable the Receiving Party to achieve the Permitted Purpose, or for the purpose of reporting to or seeking advice from such Authorised Person;
3.1.2 have been informed by the Receiving Party (i) of the confidential nature of the Confidential Information and (ii) that the Disclosing Party provided the Confidential Information to the Receiving Party subject to the provisions of a written confidentiality agreement;
3.1.3 in the case of the Receiving Party’s officers and employees, have written confidentiality obligations to the Receiving Party that (i) are no less onerous than the provisions of this Agreement and (ii) apply to the Confidential Information of the Disclosing Party; and
3.1.4 in the case of the Receiving Party’s professional advisers, such persons are bound by obligations of confidentiality equivalent in nature to those contained herein.
3.2 The Receiving Party shall ensure that its Authorised Persons comply with the Receiving Party’s obligations under this Agreement as if it were a party to this Agreement, and shall, in any event, be responsible for any breach by such Authorised Persons of such obligations.
4. DISCLOSURE TO COURT OR OTHER PUBLIC BODY
To the extent that the Receiving Party is required to disclose any Confidential Information by order of a court or other competent public body or regulatory authority, it may do so, and shall (to the extent permitted by law) inform the Disclosing Party of the proposed disclosure as soon as possible (and if possible before the court or other public body orders the disclosure of the Confidential Information).
5. EXCEPTIONS TO CONFIDENTIALITY OBLIGATIONS
5.1 The Receiving Party’s obligations under clause 2 shall not apply to any Information where the Receiving Party can demonstrate to the Disclosing Party that such Information:
5.1.1 was lawfully in the possession of the Receiving Party at the date of disclosure free from any restriction as to its use or disclosure;
5.1.2 at the time of disclosure by the Disclosing Party, is in the public domain;
5.1.3 after its disclosure by the Disclosing Party, enters the public domain other than as a result of the disclosure by the Receiving Party; or
5.1.4 was developed independently without knowledge or benefit of the Confidential Information supplied by the Disclosing Party.
6. PROPRIETARY RIGHTS
Each party acknowledges and agrees that it shall not acquire by implication or otherwise any right in or title to or licence in respect of any Information it receives directly or indirectly from the Disclosing Party and neither this Agreement nor any disclosure by the Disclosing Party of Information shall be deemed by implication or otherwise to vest in the Receiving Party any present or future rights intellectual property rights in such Information.
Save as otherwise agreed in writing (and except in the case of fraudulent representations), the Disclosing Party accepts no responsibility for and does not make any representation or warranty, express or implied, with respect to the accuracy, reliability or completeness or otherwise of the Confidential Information made available to the Receiving Party or any of its Affiliates, and has no obligation to update or correct any inaccuracies in any such Confidential Information.
This Agreement shall subsist from the date this Agreement is signed for a period of two (2) years from the date of the last disclosure of Confidential Information, whereupon it shall automatically terminate unless renewed by mutual consent in writing.
9. RETURN OF INFORMATION
9.1 On termination of this Agreement or at any time on receipt of a written request from the Disclosing Party, the Receiving Party shall within thirty (30) days of receipt of a written request:
9.1.1 return to the Disclosing Party all Confidential Information that is capable of return;
9.1.2 destroy or permanently delete all copies of Confidential Information made by it; and
9.1.3 provide to the Disclosing Party a certificate signed by an officer of the Receiving Party confirming that the obligations referred to in clauses 9.1.1 and 9.1.2 have been met.
9.2 As an exception to the obligations under clause 9.1, the Receiving Party may retain one back up copy of the Confidential Information, solely for the purpose of ensuring compliance by the Receiving Party with applicable laws or regulations or the requirements of any competent public body or regulatory authority that has jurisdiction over the Receiving Party.
10. DATA PROTECTION
10.1 The terms Personal Data, Processes, Data Controller and Data Processor used in this clause 10 shall have the meanings attributed to those terms in the Data Protection Act 1998.
10.2 To the extent that the Receiving Party Processes any Personal Data for and on behalf of the Disclosing Party, it shall take appropriate technical and organisational measures designed to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data. In particular, the Receiving Party shall Process Personal Data only for the purposes for which it was disclosed, shall not (without the Disclosing Party's consent) transfer the Personal Data (or cause it to be transferred) to outside of the European Economic Area, shall act on the Disclosing Party’s instructions only (given for such purposes) and shall comply at all times with the Data Protection Act 1998 and in particular the seventhprinciple in Part 1 of Schedule 1 to the Data Protection Act 1998 as if applicable to the Receiving Party directly. The Receiving Party shall answer the Disclosing Party’s reasonable enquiries to enable it to monitor the Receiving Party’s compliance with this clause and the Receiving Party shall not sub-contract any Processing of Personal Data.
11. ASSIGNMENT, NOVATION AND TRANSFER
Neither party may assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the other party's prior written consent, provided that the Seller may assign, novate or otherwise transfer its rights and/or obligations under this Agreement at any time to any of its Affiliates.
Each party acknowledges that a breach of the provisions of this Agreement by the other party could result in serious damage being sustained by the Disclosing Party, and both parties hereby agree that since damages alone may be a wholly inadequate remedy for any such breach, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the Receiving Party.
13. THIRD PARTY RIGHTS
13.1 Nothing in this Agreement shall be construed as creating any right enforceable by any person who is not a party to this Agreement or expressly set out in this Agreement as having a right to enforce its terms in accordance with the terms of this Agreement and the Contract (Rights of Third Parties) Act 1999.
13.2 If a person who is not a party to this Agreement is stated to have the right to enforce any of its terms pursuant to the Contract (Rights of Third Parties) Act 1999, the parties may rescind or vary this Agreement without the consent of that person.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter of this Agreement and supersedes all prior and written agreements, proposal, understandings and arrangements relating to the subject matter of this Agreement.
15. RIGHTS CUMULATIVE
The rights and remedies provided by this Agreement are cumulative and, except where expressly stated otherwise in this Agreement, are not exclusive and may be exercised without prejudice to any other rights and remedies provided by this Agreement, by law or equity or otherwise.
16.1 The rights of each party under this Agreement:
16.1.1 may be exercised as often as necessary;
16.1.2 are cumulative and not exclusive of rights or remedies provided by law; and
16.1.3 may be waived only in writing and specifically.
16.2 Any delay in the exercise or non-exercise of any right is not a waiver of that right.
If any provisions or portions of this Agreement are held to be unlawful, invalid or unenforceable, in whole or in part, under any applicable enactment, or rule of law, they are to that extent to be deemed omitted from this Agreement so far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
Neither party shall (without the prior consent in writing of the other party) release any press or other publicity statement regarding the arrangements which may exist between the parties.
19.1 All notices must be in writing and sent to the parties’ authorised representative(s) at the address set out in this Agreement (or as notified by the relevant party in writing from time to time) and a copy in the case of the Seller to the Unit 1, Weston Road, Crewe, Cheshire, CW1 6BP (or such other address as notified by the Seller from time to time).
19.2 Notices delivered by hand shall be deemed to have been served at the time of delivery if during business hours, or at 9 a.m. on the next business day if not. Notices sent by first class post shall be deemed to have been served 48 hours after posting.
This Agreement may be executed in any number of counterparts, each of which, when executed shall be an original, and all the counterparts together shall constitute one and the same instrument.
21. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute arising out of it shall be governed by and will be interpreted in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
By clicking on the "Accept" button below, I, the Interested Party and Receiving Party, acknowledge that I have read, understood and agree, on my own behalf and on behalf of the organisation I represent, to the above Terms and Conditions.