THIS AGREEMENT
is dated
PARTIES
(1) Ski API Technologies Ltd incorporated and registered in England and
Wales with company number 09786154 whose registered office is at 1 Golden Court, Richmond, Surrey KT9 1EU United Kingdom (SAT).
(2) incorporated and registered in
with company number whose registered office is at
(Company)
BACKGROUND
SAT wishes to disclose to the Company Confidential Information in
relation to the Purpose (as defined below). SAT wishes to ensure that
the Company maintains the confidentiality of its Confidential
Information (as defined below). In consideration of the benefits to the
parties of the disclosure of the Confidential Information, the parties
have agreed to comply with the following terms in connection with the
use and disclosure of Confidential Information.
AGREED TERMS
1.
DEFINITIONS AND INTERPRETATION
1.1
The following definitions and rules of interpretation in this clause
apply in this agreement:
Business Day
: a day (other than a Saturday, Sunday or public holiday) when banks in
London are open for business.
Confidential Information
: all confidential information (however recorded, preserved or
disclosed) disclosed by a party or its Representatives to the other
party and that party’s Representatives including but not limited to:
a) the fact that discussions are taking place concerning the Purpose
and the status of those discussions;
b) the existence and terms of this agreement;
c) any information that would be regarded as confidential by a
reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, plans,
intentions or market opportunities of the Disclosing Party; and
(ii) the operations, processes, product information, know-how, designs,
trade secrets or software of the Disclosing Party; and
d) any information or analysis derived from Confidential Information;
but not including any information that:
e) is or becomes generally available to the public other than as a
result of its disclosure by the Recipient or its Representatives in
breach of this agreement or of any other undertaking of confidentiality
addressed to the party to whom the information relates (except that any
compilation of otherwise public information in a form not publically
know shall nevertheless be treated as Confidential Information); or
f) was, is or becomes available to the Recipient on a non-confidential
basis from a person who, to the Recipient’s knowledge, is not bound by
a confidentiality agreement with the Disclosing Party or otherwise
prohibited from disclosing the information to the Recipient; or
g) was lawfully in the possession of the Recipient before the
information was disclosed to it by the Disclosing Party; or
h) the parties agree in writing is not confidential or may be
disclosed; or
i) is developed by or for the Recipient independently of the
information disclosed by the Disclosing Party.
Disclosing Party:
a party to this agreement which discloses or makes available directly
or indirectly Confidential Information.
Purpose:
considering and discussing the potential supply of services by SAT to
the Company.
Recipient:
a party to this agreement which receives or obtains directly or
indirectly Confidential Information.
Representative:
employees, agents, officers, advisers and other representatives of the
Disclosing Party or Receiving Party (as the case may be).
1.2
Clause, schedule and paragraph headings shall not affect the
interpretation of this agreement
1.3
A person includes a natural person, corporate or
unincorporated body (whether or not having separate legal personality).
1.4
Unless the context otherwise requires, words in the singular shall
include the plural and in the plural include the singular.
1.5
A reference to a statute or statutory provision is a reference to it as
it is in force for the time being, taking account of any amendment,
extension, or re-enactment, and includes any subordinate legislation
for the time being in force made under it.
1.6
Any obligation in this agreement on a person not to do something
includes an obligation not to agree or allow that thing to be done.
2.
OBLIGATION OF CONFIDENTIALITY
2.1
The Recipient shall keep the Disclosing Party’s Confidential
Information confidential and, except with the prior written consent of
the Disclosing Party, shall:
(a) not use or exploit the Confidential Information in any way except
for the Purpose;
(b) not disclose or make available the Confidential Information in
whole or in part to any third party, except as expressly permitted by
this agreement;
(c) not copy, reduce to writing or otherwise record the Confidential
Information except as strictly necessary for the Purpose (and any such
copies, reductions to writing and records shall be the property of the
Disclosing Party);
(d) keep separate the Confidential Information from all documents and
other records of the Recipient; and
(e) apply the same security measures and degree of care to the
Confidential Information as the Recipient applies to its own
confidential information, which the Recipient warrants as providing
adequate protection from unauthorised disclosure, copying or use.
2.2
The Recipient may disclose the Disclosing Party’s Confidential
Information to those of its Representatives who need to know this
Confidential Information for the Purpose provided that:
(a) it informs its Representatives of the confidential nature of the
Confidential Information before disclosure;
(b) it procures that its Representatives shall, in relation to any
Confidential Information disclosed to them, comply with this agreement
as if they were the Recipient,
and it shall at all times be liable for the failure of any
Representative to comply with the terms of this agreement and may be
required by the Disclosing Party to verify its compliance with this
clause.
2.3
A party may disclose Confidential Information to the extent such
Confidential Information is required to be disclosed by law, by any
governmental or other regulatory authority, or by a court or other
authority of competent jurisdiction provided that, to the extent it is
legally permitted to do so and it gives the other party as much notice
of this disclosure as possible.
2.4
The Recipient shall establish and maintain adequate security measures
(including any reasonable security measures proposed by the Disclosing
party from time to time) to safeguard the Confidential Information from
unauthorised access or use.
2.5
No party shall make, or permit any person to make any public
announcement concerning this agreement, the Purpose or its prospective
interest in the Purpose without the prior written consent of the other
party (such consent not to be unreasonably withheld or delayed) except
as required by law or any governmental or regulatory authority
(including, without limitation, any relevant securities exchange) or by
any court or other authority of competent jurisdiction.
3.
RETURN OF INFORMATION
3.1
At the request of the Disclosing Party, the Recipient shall:
(a) destroy or return to the Disclosing Party all documents and
materials (and any copies) containing, reflecting, incorporating, or
based on the Disclosing Party’s Confidential Information;
(b) erase all the Disclosing Party’s Confidential Information from its
computer systems or which is stored in electronic form (to the extent
possible); and
(c) certify in writing to the Disclosing Party that it has complied
with the requirements of this clause.
4.
RESERVATION OF RIGHTS AND ACKNOWLEDGEMENT
4.1
All Confidential Information shall remain the property of the
Disclosing Party. Each party reserves all rights in its Confidential
Information. No rights, including, but not limited to, intellectual
property rights, in respect of a party’s Confidential Information are
granted to the other party and no obligations are imposed on the
Disclosing Party other than those expressly stated in this agreement.
4.2
Except as expressly stated in this agreement, no party makes any
express or implied warranty or representation concerning its
Confidential Information, or the accuracy or completeness of the
Confidential Information.
4.3
The disclosure of Confidential Information by the Disclosing Party
shall not form any offer by, or representation or warranty on the part
of, the Disclosing Party to enter into any further agreement.
4.4
Each Recipient acknowledges that damages alone would not be an adequate
remedy for the breach of any of the provisions of this agreement.
Accordingly, without prejudice to any other rights and remedies it may
have, the Disclosing Party shall be entitled to the granting of
equitable relief (including without limitation injunctive relief)
concerning any threatened or actual breach of any of the provisions of
this agreement.
5.
INDEMNITY
Each Recipient shall indemnify and keep fully indemnified the
Disclosing Party at all times against all liabilities, costs (including
legal costs on an indemnity basis), expenses, damages and losses
(including any direct, indirect or consequential losses, loss of
profit, loss of reputation and all interest, penalties, and other
[reasonable] costs and expenses suffered or incurred by the Disclosing
Party) arising from any breach of this agreement by the Recipient and
from the actions or omissions of any Representative of the Recipient.
6.
TERM AND TERMINATION
6.1
If either party decides not to become, or continue to be involved in
the Purpose with the other party it shall notify the other party in
writing immediately. The obligations of each party shall,
notwithstanding any earlier termination of negotiations or discussions
between the parties in relation to the Purpose, continue in perpetuity.
6.2
Termination of this agreement shall not affect any accrued rights or
remedies to which either party is entitled.
7.
ENTIRE AGREEMENT AND VARIATION
7.1
This agreement constitutes the entire agreement between the parties and
supersedes and extinguishes all previous drafts, agreements,
arrangements and understandings between them, whether written or oral,
relating to its subject matter.
7.2
No variation of this agreement shall be effective unless it is in
writing and signed by each of the parties (or their authorised
representatives).
8.
NO WAIVER
8.1
Failure to exercise, or any delay in exercising, any right or remedy
provided under this agreement or by law shall not constitute a waiver
or that or any other right or remedy, nor shall it preclude or restrict
the further exercise of that or any other right or remedy.
8.2
No single or partial exercise of any right or remedy provided under
this agreement or by law shall preclude or restrict the further
exercise of that or any other right or remedy.
9. ASSIGNMENT
Except as otherwise provided in this agreement, no party may assign,
sub-contract or deal in any way, any of its rights or obligations under
this agreement or any document referred to in it.
10.
NOTICES
10.1
All notices, approvals or other communications required or permitted
under this agreement shall be in writing and shall be sent by first
class mail or delivered by hand or by facsimile (and subsequently
confirmed by post) to the party at the party’s address as set out above
or such other address as may be notified by that party from time to
time.
10.2
Any notice shall be deemed to have been received 48 hours after posting
when sent by first class mail, on delivery when sent by hand, and at
the time the transmission report is issued by the sending machine when
sent by facsimile.
10.3
A notice required to be given under this agreement shall not be validly
given if sent by e-mail.
11.
NO PARTNERSHIP
Nothing in this agreement is intended to, or shall be deemed to,
establish any partnership or joint venture between any of the parties,
constitute any party the agent of another party, not authorise any
party to make or enter into any commitments for or on behalf of any
other party.
12.
NON-SOLICITATION
Each party agrees that, for a period of 2 years after the date of this
agreement, it shall not solicit the employment or entice away any
employee of the other party who was directly or indirectly involved in
the Purpose, without the prior written permission of the other party.
13.
THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights
under or in connection with it.
14.
GOVERNING LAW AND JURISDICTION
14.1
This agreement and any dispute or claim arising out of or in connection
with it or its subject matter or formation (including non-contractual
disputes or claims) shall be governed by and construed in accordance
with English law.
14.2
The parties irrevocably agree that the courts of England and Wales
shall have exclusive jurisdiction to settle any dispute or claim that
arises out of or in connection with this agreement or its subject
matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the
beginning of it.
