INTRODUCTION
(A) The Seller wishes to enter into discussions with the Interested Party relating to Project Island (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:
AGREED TERMS:
1 DEFINITIONS AND INTERPRETATION
1.1 The following definitions and rules of interpretation in this clause apply in this Agreement.
(a) Affiliates: any entity that owns and/or controls the party, that is owned and/or controlled by the party or that is owned and/or controlled by an entity that also owns and/or controls the party where "control" means direct or indirect or joint ownership and/or control, including any subsidiary, holding company or operating division of the party from time to time.
(b) Confidential Information: (i) the Disclosing Party’s non-public information and material of whatever nature relating to the Disclosing Party’s activities, undertakings, technology, know-how, intellectual property, assets, strategy and products (including without limitation information relating to management, financial, marketing, commercial, technical and other arrangements of the Disclosing Party and the affairs of its clients, current, former or prospective customers and suppliers); (ii) any reports, analyses, data, plans, compilations, studies and other documents prepared by the Recipient, its officers, employees or agents, which contains or otherwise reflects or are generated from any such information as is specified in paragraph (i) above and the contents thereof; unless the information is or was:
(i) acquired from a third party having the right to disclose it to the relevant person; or
(ii) in the public domain other than through a breach of the terms of this Agreement; or
(iii) required to be released to comply with any applicable law or legally binding order of any court or judicial body; or
(iv) it was or is developed by the Recipient otherwise than directly as a result of the Confidential Information.
(c) Professional Advisors: means a party's lawyers, surveyors, accountants and other professional advisors.
(d) Proposed Transaction: means the purchase of the portfolio/site, as a going concern, by the Recipient.
(e) Representatives: means the applicable party's Affiliates or group companies, directors, officers, partners, members, managers, employees or agents, and funds and investment clients in respect of which the Recipient or any of the Recipient's group companies are acting in the capacity of investment manager or advisor from time to time.
1.2 A reference to statute or statutory provision is a reference to it as it is in full force for the time being, taking into account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.3 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 Disclosure
2.1 In consideration of the Disclosing Party agreeing to disclose Confidential Information to the Recipient, the Recipient and its Professional Advisors and Representatives shall:
(a) subject to clause 3.2 and clause 3.3, hold the Confidential Information in strict confidence and accept that the Confidential Information is commercially sensitive and that its release otherwise than in accordance with the terms of this Agreement may be detrimental to the Disclosing Party;
(b) not disclose or permit to be disclosed any of the Confidential Information to any person or make any announcement other than as permitted by this Agreement and not to use the Confidential Information in any way, except for or in connection with the Proposed Transaction; and
(c) keep confidential the existence and contents of this Agreement and any discussions or negotiations between the Recipient and Disclosing Party in respect of the Proposed Transaction save where disclosure is permitted by this Agreement.
3 Obligations of the Recipient
3.1 The Recipient shall keep the Disclosing Party's Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall, and shall procure that its Representatives and Professional Advisors shall:
(a) not use or exploit the Confidential Information in any way except for the Proposed Transaction;
(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; and
(c) apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information.
3.2 The Recipient may only disclose the Disclosing Party's Confidential Information to those of its Representatives and Professional Advisors who need to know this Confidential Information for the Proposed Transaction, provided that:
(a) it informs its Representatives and Professional Advisors of the confidential nature of the Confidential Information before disclosure and where appropriate obtains enforceable undertakings to keep the Confidential Information confidential in terms at least as extensive as the terms of this Agreement; and
(b) at all times, it is responsible for its Representatives and Professional Advisors compliance with the obligations set out in this Agreement.
3.3 The Recipient may disclose Confidential Information to the extent required by law, by any Government 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, it gives the Disclosing Party as much notice of this disclosure as possible and takes into account the reasonable requests of the Disclosing Party in relation to the content of this disclosure.
3.4 The Recipient shall not make, or permit any person to make, any public announcement concerning this Agreement or the Proposed Transaction without the prior written consent of the Disclosing Party except as required by law or any governmental or regulatory authority or by any Court or other authority of competent jurisdiction.
4 Term and Termination
The Party's obligations under this Agreement shall terminate on the earlier of:
(a) one year after the date of this Agreement; and
(b) exchange of an agreement containing confidentiality provisions relating to the Proposed Transaction and incorporating any Confidential Information provided in connection with this Agreement;
such termination shall be without prejudice to any antecedent breach of either Party of its obligations in this Agreement.
5 Return of the Confidential Information
At the request of the Disclosing Party, the Recipient shall 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 and erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form (to the extent reasonably possible).
6 Reservation of Rights and Acknowledgement
6.1 All Confidential Information shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. No rights, including, but not limited to, intellectual property rights, in respect of the Confidential Information, are granted to the Recipient.
6.2 The 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 of the 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.
7 No representation or warranty
7.1 The Disclosing Party and Recipient acknowledge that the Confidential Information may not be accurate or complete and neither the Disclosing Party nor its Professional Advisors or Representatives except responsibility or liability for (or make any warranty or representation, express or implied, with respect to) the accuracy or completeness of the Confidential Information.
7.2 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 in relation to the Proposed Transaction.
8 Entire Agreement and Variation
8.1 This Agreement constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter. Each Party acknowledges that, in entering into this Agreement, it is not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause shall omit or exclude any liability for fraud or fraudulent misrepresentation.
8.2 No variation of this Agreement shall be effective unless it is in writing and signed by each of the Parties (or their authorised Representatives).
9 Governing Law
This Agreement (and any non-contractual claims arising out of it or in connection with it) shall be governed by and construed in accordance with the laws of England. The English Courts shall have exclusive jurisdiction over any claim or matter which may arise out of or in connection with this Agreement.
10 General
10.1 This Agreement is personal to the Parties and neither Party shall assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it nor purport to do any of the same, without the prior written consent of the other Party.
10.2 This Agreement does not create any agency, joint venture or partnership relationship nor authorise any party to make or enter into any commitments or on behalf of any other party.
10.3 The Parties may execute this Agreement in counterparts, which taken together will constitute one instrument. Execution of a pdf copy will have the same force and effect as executed of an original, and an electronic signature will be deemed an original and valid signature. Failure to enforce any of the provisions of this Agreement will not constitute a waiver.
10.4 The Parties each represents and warrants that it has the authority to bind the entity named in this Agreement.
10.5 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
10.6 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
