Background
a. The parties have agreed to enter an agreement for the development of business opportunities.
b. The parties have agreed to disclose confidential information in order to perform such activities.
c. The parties agree to restrict the use of that information in accordance with this Agreement.
d. The Registered User agrees to abstain from any conflict of interests with the best interests of the Company during the term of this Agreement and for a specified time thereafter.
Operative Provisions:
1. Definitions
The definitions in this clause apply in this agreement.
Confidential Information: any information relating to the business of the disclosing party which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing party, whether disclosed orally or in writing and including but not limited to information relating to the business, affairs, customers, products, software, developments, intellectual property, trade secrets, know-how and personnel of the disclosing party.
Objective: Mutual protection whilst the processing of confidential information by both the Company and the Registered User.
2. Undertakings
Subject to Clause 3, each party hereby undertakes to respect and preserve the confidentiality of the Confidential Information for a period of at least 3 years from the date of disclosure.
The Parties shall:
a. not communicate or otherwise make available any Confidential Information to any third party for any reason;
b. not copy, adapt, reproduce or reduce to writing all or part of the Confidential Information, except as may be reasonably required for the Objective;
c. not use any Confidential Information for any commercial, industrial or other purpose whatsoever other than the Objective;
d. limit access to the Confidential Information to those of its employees and professional advisers who reasonably require such access for the Objective, and to impose upon any such persons obligations of confidentiality equivalent to those set out in this Clause 2;
e. not (without the prior consent of the other party) release any press statement or issue any other announcement or publicity regarding the arrangements between the parties relating to the Objective;
f. not approach the clients’ of the other party to procure business from them, whether directly or indirectly, without the written permission of the other party;
g. not solicit, whether directly or indirectly or through representatives or agents, any of the other party’s employees.
3. Exceptions
Notwithstanding the provisions of Clause 2:
a. neither party shall be under any obligation of confidentiality to the other with respect to any Confidential Information which:
I. has become public knowledge other than by breach of Clause 2;
II. was already in its lawful possession (without obligation to keep the same confidential) prior to its disclosure by the other party; or
III. has been received from a third party who neither acquired it in confidence from the disclosing party nor owed that party a duty of confidence in relation to it.
b. either party shall be entitled to make any disclosure of any Information where it is required to do so by law or by any governmental or other regulatory authority and the parties agree to give the other party not less than two working days’ notice of such disclosure.
4. Acknowledgement
Each party acknowledges and agrees that:
a. the Confidential Information and all documentation to which the parties have access during the course of this Agreement remain proprietary to the party disclosing them.
b. any disclosure pursuant to this Agreement shall not confer any intellectual or other rights in relation to the Confidential Information;
c. neither party nor any of its advisers, agents, directors, employees or officers accepts responsibility or liability for or makes any representation or warranty, express or implied, with respect to the accuracy or completeness of the Confidential Information disclosed by it or on its behalf save to the extent that any such representation or warranty is expressly incorporated into any legally binding document executed between the parties;
d. damages alone are an inadequate remedy for the breach of any of the provisions of Clause 2 and accordingly that, without prejudice to any other rights and remedies it may have, the other party shall be entitled without proof of specific damage to the granting of equitable relief (including, without limitation, injunctive relief) in relation to any threatened, actual or suspected breach of any of the provisions of Clause 2; and
e. it shall be liable to the other for the breach of any of the provisions of Clause 2 by any person as is referred to in Clause 2(d) to whom that party makes disclosure.
5. Term and Termination
a. The Mutual Confidentiality Agreement may be terminated at any time by either party upon giving written notice to the other’s
b. The provisions of Clauses 2, 3 and 4 shall remain in full force and effect following termination of this Agreement.
c. On termination of this Agreement or at any time on receipt of a written request from the other party, each party shall forthwith:
I. return to the other all documentation of any nature whatsoever in its possession or control and relating to the Confidential Information received by it from the other together with any copies thereof;
II. delete or destroy all copies of the aforesaid documents whether in electronic or any other form; and
III. provide a written statement confirming compliance with this Clause 5 (c).
6. Exclusivity
a. The Parties acknowledge that the restrictions in this clause 6 are fair and reasonable and necessary to protect the Company’s legitimate business interests.
b. The Registered User undertakes not to, either on the Registered User’s own account (whether directly or indirectly) or as a representative, employee, partner, director, financier, shareholder or agent of any other person, firm, company or organisation:
I. be directly or indirectly employed or engaged by a business which competes with or offers services similar to the Company within such areas as the Company operates;
II. canvass or solicit orders from any customer or supplier of the Company with which the Consultant has had dealings within the previous 12 months;
III. solicit, induce or entice away from the Company any employee or agent, for engagement or employment or cause, procure or encourage the employment or engagement in any capacity by any other person, firm, company or organisation;
c. If after your engagement ends you propose to enter into any contract of employment, appointment or engagement you must before so doing bring all of the terms of this Agreement to the attention of any proposed employer or organisation appointing you.
7. General
a. This Agreement shall be governed by and construed in accordance with English Law. However, either party may enforce the other party’s obligation of confidence in the courts of any jurisdiction having competence to issue an injunction directly enforceable against such party.
b. Notices and other communications to be given under this Agreement shall be made by first class prepaid mail, at the address stated at the beginning of this Agreement or such other address as may be notified in writing from time to time.
8. Severance
a. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this agreement.
b. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
| V2 |