Bilateral Confidentiality, Non-Circumvention and Non-Disclosure Agreement
THIS BILATERAL CONFIDENTIALITY, NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made on 26th September 2023 by and between:
52 Degrees North (Cheltenham) Ltd trading as Worldwide Off Market a company duly incorporated and existing under the laws of England whose principal office is at 4 Old Park Lane, Mayfair, London, England, W1K 1QW United Kingdom, duly represented by its Managing Director, Mr David Grundy.
Hereinafter referred to as “Worldwide Off Market”on the one part
a company duly incorporated and existing under the laws of whose principal office is at
duly represented by
Hereinafter referred to as on the other part
Hereinafter collectively referred to as the “Parties” and each one individually as a “Party” accordingly.
The Parties intend to exchange information in the course of certain negotiations in relation to their prospective collaboration on business projects that are developing, and wish to ensure that certain Confidential Information as defined below disclosed, caused to be disclosed or otherwise made available by either party in such capacity, hereinafter referred to as either the “Disclosing Party” or the “Recipient Party”, is kept in complete and strict confidence,
IT IS AGREED AS FOLLOWS.
In this Agreement the following words shall have the following meanings:
“Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, is part of the same family, Controls, is Controlled by, or is under common Control with such Person;
"Confidential Information" shall mean any and all legal, business, financial, operational, personal and any other information (irrespective of whether in written, oral, visual, magnetic, digital, electronic or any other form or type of communicative media) made available by the Disclosing Party and/or its Affiliates to the Recipient Party and/or its Representatives by or on behalf of the Disclosing Party whether before or after the date of this Agreement (including, but not limited to, all information acquired by observation by the Recipient Party or its Representatives at the office or other premises of the Disclosing Party) whether identified as confidential at the time of disclosure or not and irrespective of the circumstances under which such information is imparted (in confidence or otherwise); any notes, reports, analyses, documents, summaries and other materials prepared by the Recipient Party based on, incorporating or reflecting any such information; identity of the Disclosing Party or of its shareholders and family members; existence and content of this Agreement; existence and content of negotiations between the Parties and between the Parties and their respective clients; the fact of furnishing any confidential information as described above to the Recipient Party, its Affiliates and/or its Representatives (as applicable);
“Control” means, as to any Person, the possession of power to direct or influence the affairs, general direction and strategy or any other affairs of such Person whether: (i) by means of the holding of shares or the possession of voting power (or their respective equivalents), in or in relation to that or any other Person; or (ii) by virtue of any powers conferred by the constitutional or corporate documents, contractual arrangements or any other documents, regulating that or any other Person; and the words “Controlled by” and “under common Control with” and any other similar expression have corresponding meaning;
Permitted Purpose" shall mean the purpose of considering and evaluating the prospects of the contemplated interaction between the Parties and/or their Affiliates;
“Person” shall mean any individual, partnership, association, corporation, limited liability company, foundation, trustee, trust or other entity, either incorporated or unincorporated;
“Representatives” shall mean the officers, directors, employees, agents, sub-contractors, professional advisors and representatives of each Party and/or any of its Affiliates.
The Recipient Party hereby irrevocably undertakes to the Disclosing Party to comply, and procure the compliance of its Affiliates and Representatives, with the following confidentiality requirements:
to receive and to keep all Confidential Information strictly secret and confidential and not to disclose or to permit any Confidential Information to be made available to any third party without prior written consent of the Disclosing Party or save as provided expressly hereunder;
to take all necessary measures and precautions to ensure that the confidentiality undertakings under this Agreement are observed, enforceable and enforced;
to disclose any Confidential Information to a Person (e.g. its Affiliate, Representative, third party service provider, etc.) exclusively for the Permitted Purpose and only provided that such Person entered into an agreement undertaking to receive and keep the Confidential Information on the terms at least equivalent to the terms hereof; and
to procure that each Person to which Confidential Information is disclosed in accordance with the provisions of the present agreement by the Recipient Party is fully aware (in advance of such disclosure) of the Recipient Party’s obligations under this Agreement and to take all necessary measures and precautions to ensure the secrecy and confidentiality of the Confidential Information provided hereunder; the Recipient Party shall provide the Disclosing Party promptly upon its request with identification of all Persons to which the Confidential Information (or any part thereof) was disclosed together with copies of the agreements by which Confidential Information was disclosed to such Persons.
The Recipient Party further irrevocably undertakes to the Disclosing Party:
in the absence of the Disclosing Party’s prior written consent, not to make any use of or make any gain whether commercial or not from the Confidential Information by way of:
to inform the Disclosing Party immediately upon becoming aware of the Confidential Information being disclosed or made available to a third Person in breach of this Agreement.
The obligations, requirements and restrictions provided in Clauses 2.1 and 2.2 above (the “Confidentiality Obligations”) shall continue in full force and effect for a period of five years; for the avoidance of doubt, the Confidentiality Obligations shall survive the termination of this Agreement (for any reason whatsoever) and shall not be prejudiced by any return or destruction of the Confidential Information or any copies thereof.
Limitations to the Confidentiality Obligations
The Confidentiality Obligations shall not apply in respect of the Confidential Information disclosed to the Recipient Party:
which at the time of such disclosure is in the public domain or which after such disclosure comes into public domain other than by reason of any breach of the Confidentiality Obligations;
which is explicitly disclosed by the Disclosing Party or its Affiliate(s) or Representative(s) on a non-confidential basis; or
which was lawfully in the possession of the Recipient Party, its Affiliates and/or its Representatives (as applicable) prior to such disclosure or which following such disclosure becomes available to the Recipient Party, its Affiliates and/or its Representatives (as applicable) on a non-confidential basis from a third party who, to the best knowledge of the Recipient Party, is not prohibited from making such a disclosure.
If the Recipient Party, its Affiliate and/or its Representative (as applicable), becomes legally compelled to disclose any Confidential Information to the public, any public authority or official, to the extent permitted prompt notice in writing of such a fact shall be given to the Disclosing Party, so that the Disclosing Party is enabled to: (i) seek an appropriate legal remedy, protective order or authorization from any competent authority or official preventing or waiving the requirement of such disclosure; (ii) limit disclosure and to gain assurances as to confidentiality from the body to whom the information is to be disclosed; or (iii) waive the right to enforce compliance with the provisions of this Agreement and consent to the disclosure of the relevant information.
If, following the Disclosing Party’s refusal or failure to obtain the necessary remedy, protective order or authorization referred to in Clause 4.1 above or to waive compliance with the relevant provisions and consent to the disclosure of the Confidential Information, the Recipient Party, its Affiliate and/or its Representative (as applicable), still is, in the opinion of independent legal counsel, compelled to disclose such information under pain of liability and penalty, the relevant Person is hereby authorised to the disclosure of such portion of the Confidential Information as is legally required without any liability hereunder.
Return of the Confidential Information
Subject to Clause 5.2, the Recipient Party will, promptly, on being requested by the Disclosing Party to do so: (i) return the originals and all copies of the Confidential Information furnished or caused to be furnished by the Disclosing Party; (ii) destroy all notes, reports, analyses, reviews and documents and other things recording or disclosing the Confidential Information in possession of the Recipient Party; (iii) irrevocably expunge all Confidential Information from any computer, word processor, tape, film or other similar device or media into which or onto which it was put; and further (iv) certify in writing to the Disclosing Party that it has complied with all requirements of this Section 5 and all its Affiliates and Representatives, if any, who had access to the Confidential Information (or part of it) have done likewise.
Each Party may retain:
one copy of the Confidential Information for the purposes of, and for so long as it is required by, any applicable law, court or regulatory agency or authority or its internal compliance procedures;
electronic files containing Confidential Information created pursuant to automatic archiving and back-up procedures; and
the Recipient Party’s advisers, when duly notified to the Disclosing Party, may keep one copy of any documents in their possession containing the Confidential Information for record purposes without prejudice to Confidentiality Obligations in relation thereto.
Each Party acknowledges that neither the destruction, return nor the deletion of any Confidential Information will release it from the Confidentiality Obligations existing in respect of such, or any other, Confidential Information.
Limitation of transferred rights
The Recipient Party acknowledges and agrees that the property and copyright in Confidential Information disclosed or caused to be disclosed by the Disclosing Party, including any documents, files and any other items containing any Confidential Information belongs to the Disclosing Party, its respective Affiliate(s), Representative(s) and/or other Person(s), as the case may be.
This Agreement shall neither prejudice nor limit the rights of any of the persons referred to in Clause 6.1 in respect of any intellectual property rights in the Confidential Information.
Except as provided for herein the Recipient Party may not assign or transfer any rights or obligations hereunder without the prior written consent of the Disclosing Party.
This Agreement shall not be construed to grant the Recipient Party any license or rights other than as expressly set out herein in respect of the Confidential Information; nor require the Disclosing Party to disclose, or cause the disclosure of, any Confidential Information.
Non solicitation and non circumvention
Each Party agrees that, for a period of twenty four (24) months from the date hereof, it will not, without prior written consent of the other Party directly or indirectly, solicit, induce or seek to induce any employee, contractor, client, potential client, potential investee, investor, business associate or business partner that has been introduced or made known to the other Party during the course of the discussions and/or negotiations arising out of or in connection with the matters covered by this Agreement, UNLESS the soliciting Party is able to demonstrate to the other Party that there was a pre-existing relationship with that employee, contractor, client, potential client, potential investee, investor, business associate or business partner, prior to the signing of this Agreement.
Neither Party may circumvent or compete with, or cause, support, or entice others to circumvent or compete with the other Party by entering into any arrangement with Persons introduced or made known to a Party by the other Party, without first obtaining the written consent of the other Party. This obligation shall continue for a period of twelve (12) months from the date a Person was so introduced or made known as a substantial prospect.
Without prejudice to any other rights and remedies the Disclosing Party may have, each Party agrees that the Confidential Information is valuable, the Disclosing Party may be irreparably harmed by any breach of this Agreement and that damages may not be an adequate remedy for such breach by either Party; accordingly, the Disclosing Party shall be entitled, without a proof of special damage being required for the enforcement of the same, to the remedies of injunction, specific performance and other equitable relief for any actual or threatened breach of this Agreement by the Recipient Party.
In case of breach of the present Agreement, and without prejudice to any other rights and remedies it may have, the Disclosing Party may in any way terminate any agreement existing between the Parties by simple notification in written, even in case of Dispute between the Parties.
Limitation of liability
The Disclosing Party as well as any of its Affiliates and Representatives gives no warranty or representation in relation to the Confidential Information disclosed hereunder. In particular (but without limiting the generality of the foregoing) no warranty or representation, express or implied, is given as to the accuracy, reliability, efficacy or completeness of information provided under or in relation to this Agreement. The Recipient Party accepts that the Disclosing Party is not obliged to update any Confidential Information or to correct any inaccuracies in any Confidential Information. Neither the Disclosing Party nor any of its Affiliates and Representatives shall have any liability or owe any duty of care to the Recipient Party or any other Person resulting from the disclosure or the use of the Confidential Information. For the avoidance of doubt, this Clause shall not exclude any liability for, or remedy of, fraudulent misrepresentation.
The Parties recognize and agree that unless provided expressly otherwise, the furnishing of the Confidential Information by any Party or its Affiliate or Representative shall not constitute an offer or acceptance of any nature whatsoever by or on behalf of such Party, nor form the basis of any representation in relation to any contract.
Nothing contained or implied in this Agreement creates a joint venture or partnership between the Parties or makes one Party the agent or legal representative of the other Party for any purpose.
A notice or other communication between the Parties under or in connection with this Agreement shall be made in writing in the English language and delivered by hand/courier, sent by e-mail or delivered via first class pre-paid registered post to the other Party’s address (or other contact details) set out at the head of this Agreement or to another address (or contact details) previously notified by the receiving Party to the other Party in accordance with this Clause 11.
In the absence of evidence of earlier receipt, any notice or other communication is deemed received:
if delivered personally or by courier, upon its delivery or refusal by the receiving Party of its takeover;
if sent by e-mail, on the business day of successful completion of its transmission, save for the delivery sent after 5.30pm local time of the receiving Party in which case the notice shall be deemed delivered to the receiving Party on the business day (i.e. day on which clearing banks are open for business in the country of the receiving Party) immediately following the date of such transmission; and
if sent by post, on the sixth day following the day of dispatch.
If, at any time, any provision of this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law or otherwise, such provision (or part thereof) shall to that extent be deemed not to form part of this Agreement and neither the legality, validity or enforceability of the remaining provisions of this Agreement under the governing law nor the legality, validity or enforceability of such remaining provision under the law of any other jurisdiction shall be in any way affected or impaired.
Governing law and jurisdiction
English and Welsh law shall govern the validity, construction and performance of this Agreement. Any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts to which the Parties to this Agreement hereby irrevocably submit.
This Agreement is made in the English language in two original counterparts, one counterpart for each Party. This Agreement is being executed by way of its prior undersigning by one of the Directors of the Disclosing Party and undersigning by the Recipient Party using this on-line digital e-signature facility. The signed Agreement is made available to be printed or saved as a PDF-file by the Recipient Party whilst being emailed back to the Disclosing Party as a PDF-file containing all pages of the document signed by both Parties. The Agreement so entered into shall have full legal effect.
None of the Parties shall be entitled to assign or transfer all or any of its rights, benefits or obligations under this Agreement.
This document constitutes the entire agreement between the Parties in relations to their mutual obligations regarding the Confidential Information and supersedes any previous agreement, whether express or implied, on the same subject matter.
No failure or delay in exercising any rights or remedy under this Agreement will operate as a waiver thereof nor will any single or partial exercise of any such right or remedy preclude any further exercise thereof or the exercise of any other right or remedy under this Agreement.
The terms of this Agreement and the obligations, requirements and restrictions imposed hereunder may only be amended or modified by a written agreement between the Parties.
The headings in this Agreement do not affect its construction or interpretation.
Each Party confirms that it will be responsible for its costs incurred by itself or on its behalf in connection with the consideration and evaluation of the Confidential Information.
Signed for and on behalf of:
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Signed by David Grundy
Signed On: 1st September 2023
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Document Name: Bilateral Confidentiality, Non-Circumvention and Non-Disclosure Agreement
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