THIS AGREEMENT (the "Agreement") is dated and effective as of [insert date] by and betweenONE MILLION MENTORS COMMUNITY INTEREST COMPANY (company registered in England No. 09814018) whose registered office is at 2nd Floor, Tayside House, 31 Pepper Street, London, E14 9RP ("1MM") and [insert name] (company registered in [insert] No. [insert number]) whose registered office is at [insert address] (the “Company”).
BACKGROUND
(A)1MM and the Company wish to enter into discussions concerning each other’s current opportunities ("Opportunity").
(B)As a result 1MM and the Company will need to disclose to one another their own Confidential Information (defined below).
1.DEFINITIONS
In this Agreement the following words and expressions have the following meanings unless the context otherwise requires:
"Affiliate"
in relation to a person or company, the officers, employees, agents, advisers, consultants and/or funders of that person or company;
"Confidential Information"
in relation to a party to this Agreement, any and all information relating to that party’s business methods, customers, suppliers, finances, ideas, strategies, concepts, methodologies, inventions, processes, formulae, models, samples, products, software, programs, source code, analyses, compilations, studies and other matters for the time being in that party’s possession or owned by that party, however communicated in whatever media whether disclosed before or after the date of this Agreement;
"Discloser"
has the meaning set out in clause 2.1; and
"Recipient"
has the meaning set out in clause 2.1.
2.DISCLOSURE OF CONFIDENTIAL INFORMATION
1.1.In consideration of each of 1MM and the Company (as the context requires, each a "Discloser") making their Confidential Information available to the other party (as the context requires, each a "Recipient") in connection with the Opportunity, each Recipient undertakes to the other Recipient, that it will:
2.1.1.use the Discloser’s Confidential Information disclosed, acquired and/or learnt by it only for the purpose of assessing and/or evaluating the Opportunity;
2.1.2.maintain as confidential, secret and secure from unauthorised disclosure all of the Discloser’s Confidential Information and all information generated from it, which may come into its possession in any manner;
2.1.3.not directly and/or indirectly use and/or disclose any of the Discloser’s Confidential Information in whole or in part, for its own purposes or to obtain a commercial, trading or other advantage or otherwise than in accordance with the terms of this Agreement;
2.1.4.only disclose and/or allow access to the Discloser’s Confidential Information to those of its Affiliates who need to see such information for the purposes of the evaluation of the Opportunity;
2.1.5.ensure that its Affiliates to who Confidential Information is disclosed are aware of the obligations of confidentially set out in this Agreement;
2.1.6.not use, reproduce, transform, process or store any of the Discloser’s Confidential Information in any computer and/or electronic information retrieval system without the Discloser’s prior written consent;
2.1.7.at the Discloser’s request made at any time deliver up to the Discloser all documents, material and/or other media which may be in its possession, power or control which comprises or contains any part of the Discloser’s Confidential Information;
2.1.8.not remove, obscure, amend and/or deface any confidentiality notice or notice of ownership or origin contained in or on the Discloser’s Confidential Information; and
2.1.9.keep the Discloser’s Confidential Information, copies of it and/or information generated from it, separate from its own documents, paperwork or records and in a secure storage in locked premises.
1.2.Each party confirms that the confidentiality obligations imposed by this Agreement extend to any Confidential Information which has been, or may have been, supplied to it before the date of this Agreement despite the absence of a written agreement and this Agreement merely records in writing the oral confidentiality obligations under which each party received the Discloser’s Confidential Information.
1.3.Any copy of the Discloser’s Confidential Information or other information generated from it and made by a Recipient, will belong to the Discloser and such copies will immediately become the property of the Discloser upon creation.
3.EXCEPTIONS
1.1.This Agreement shall not prohibit the disclosure of Confidential Information which:
3.1.1.the Recipient can prove by documentary evidence produced within 28 days of a request to do so, was information already in its possession and at its free disposal; or
3.1.2.the Recipient can prove by documentary evidence produced within 28 days of a request was independently developed by it without reference to the Discloser’s Confidential Information; or
3.1.3.is after the date of this Agreement disclosed to the Recipient without any obligations of confidentiality by a third party who is not in breach of any duty of confidentiality in doing so; or
3.1.4.is or becomes generally available to the public in printed publications in general circulation or otherwise enters the public domain through no act or default on the part of the Recipient.
1.2.This Agreement shall not prohibit the disclosure of Confidential Information to the extent such disclosure is required:
1.1.1.by law;
1.1.2.by the rule of a stock exchange on which the shares of the Recipient are listed or traded; or
1.1.3.by a governmental, regulatory or other authority with relevant powers,
provided such disclosure is made after taking into account the reasonable requirements of the Discloser as to its timing, content and manner of making or despatch
4.LIABILITY
1.1.Each Recipient will be liable under this Agreement for the acts and/or omissions of its own Affiliates (whether or not they remain as its Affiliates) as if they were its own acts or omissions under this Agreement.
1.2.Neither party is responsible for or shall have any liability to the other party for any expenses, costs, losses and/or liabilities of any nature suffered by the other party as a result of its receipt of or use of the other party’s Confidential Information in accordance with this Agreement.
1.3.Each Recipient acknowledges that damages may not be an adequate remedy for any breach by the Recipient of this Agreement and that as such each Recipient acknowledges that in addition to all other remedies that the Discloser may be entitled to as a matter of law, the Discloser shall be entitled to seek equitable relief, including but not limited to, injunctive relief and/or specific performance, if the Recipient is in breach or potential breach of this Agreement.
1.4.Each party shall indemnify and keep fully indemnified the other 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 such party) arising from any breach of this Agreement and from the actions or omissions of any Affiliates.
1.5.Neither party gives the other party any warranty, guarantee, assurance, promise or other undertaking as to the accuracy or otherwise of its Confidential Information.
1.6.Neither party warrants or represents, by entering into this Agreement, that they will enter into any further contract with the other party.
5.NO LICENCE AND PROPRIETARY RIGHTS
Each Recipient acknowledges and agrees that it shall not acquire expressly or by implication or otherwise any right, title or interest in or licence of the Discloser’s Confidential Information (including any intellectual property rights in that Confidential Information) and the Discloser shall retain all rights, title and interest in its Confidential Information (including any intellectual property rights in that Confidential Information).
6.TERM
The obligations of confidentiality and non use set out in this Agreement shall expire in relation to any particular item of the Discloser’s Confidential Information five (5) years after a Recipient’s receipt of that particular item of the Discloser’s Confidential Information.
7.GENERAL
1.1.Confidential Information made available to the Recipient prior to, in the course of, or for the purpose of negotiations in respect of the Opportunity will not constitute an offer by the Discloser.
1.2.The failure or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of that (or any other) right or remedy. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents the further exercise of that (or any other) right or remedy.
1.3.A variation of this Agreement is valid only if it is in writing and signed by or on behalf of each party.
1.4.Each provision of this Agreement is severable and distinct from the others. If any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of this Agreement but (except to that extent or in those circumstances in the case of that provision) the validity, legality and enforceability of that and all other provisions of this Agreement shall not be affected or impaired and shall remain valid and enforceable.
1.5.If any provision of this Agreement is found to be illegal, invalid or unenforceable in accordance with clause 7.4 but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it legal, valid or enforceable.
1.6.This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original but all the counterparts together shall constitute the same document.
8.THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a provision of this Agreement.
9.NOTICES
Any notice or other communication given under this Agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it by hand or sending it by pre-paid recorded delivery to the party due to receive it at its registered office address from time to time. In the absence of evidence of earlier receipt, any such notice shall be deemed to have been received, if delivered by hand, at the time of actual delivery to the address referred to in this clause 9 or, in the case of pre-paid recorded delivery, two business days after the date of posting.
10.GOVERNING LAW
1.1.This Agreement is governed by, and shall be construed in accordance with, English law.
1.2.The courts of England have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement (including non-contractual disputes and claims) and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England.
1.3.Each party irrevocably waives any objection which it might at any time have to the courts of England being nominated as the forum to decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement (including non-contractual disputes and claims) and agrees not to claim that the courts of England are not a convenient or appropriate forum.
IN WITNESSOF THE ABOVE this Agreement has been signed by or on behalf of the parties on the date written at the head of this Agreement.
SIGNED by
duly authorised to sign for and on behalf of
ONE MILLION MENTORS
SIGNED by
duly authorised to sign for and on behalf of
[INSERT COMPANY NAME]