In this Agreement, “Givex”, refers to Givex UK Corporation Limited and “Company” means the above-referenced Company, all of its locations, its affiliates, directors, officers, employees and agents, if any.
Recitals
WHEREAS Givex and Company are considering entering into a commercial relationship and/or pursuing one or more commercial opportunities on a collaborative basis (the “Opportunity”); and
WHEREAS Givex possesses certain business and technical information acquired through Givex’s expenditure of time, effort and money, including trade secrets, intellectual property, know-how and other Confidential Information of Givex; and
WHEREAS Company possesses certain business and technical information acquired through Company’s expenditure of time, effort and money, including trade secrets, intellectual property, know-how and other Confidential Information of Company; and
WHEREAS the parties wish to set out their respective rights and obligations with respect to the Confidential Information;
NOW THEREFORE, in consideration of the promises, covenants and agreements herein contained and the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which is affirmed by the parties, the parties hereby agree as follows:
1. In this Agreement,
“Confidential Information” means all proprietary, confidential and non-publicly available information provided by or on behalf of each party in its capacity as a Disclosing Party to the other party in its capacity as a Receiving Party (whether before or after the Effective Date hereof) and extends to all confidential, proprietary and non publicly available information, whether in oral, written, graphic, schematic or electronic form, which may include but not be limited to technical, technological and operational information, financial data, business plans, Personal Data, drawings, samples, devices, demonstrations, trade secrets, computer systems and software, commercial, legal, management and marketing information, personal information, drawings, results of research and other data (including information relating to customer details and sales figures). Notwithstanding the foregoing, the obligations of the Receiving Party under this Agreement shall not apply to information:
(a) which at the time of disclosure is already published or available to the trade or the public through no fault or breach of this Agreement on the part of the Receiving Party;
(b) which the Receiving Party can establish, by suitable documentation or other sufficient evidence, was in its possession prior to the date of disclosure of such Confidential Information by Disclosing Party;
(c) which is independently developed by the Receiving Party without the use of any Confidential Information;
(d) which is lawfully and in good faith obtained by Receiving Party from an independent third party without breach of this Agreement, as shown by documentation sufficient to establish the third party as a source of the Confidential Information, and not obtained by the third party from the Disclosing Party; or
(e) which the Receiving Party is by law required to disclose.
“Disclosing Party” means the party disclosing the Confidential Information to the Receiving Party;
“Personal Data” means the type of information regulated by Privacy Laws and collected, used or disclosed by Givex or Company, including all information about an identifiable individual;
“Privacy Laws” means all applicable laws governing the collection, use, disclosure or storage of personal information, including the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 (“GDPR”).
“Purpose” means the evaluation of the Confidential Information by the Receiving Party so that the Receiving Party can determine whether or not it wishes to pursue the Opportunity.
“Receiving Party” means the party receiving Confidential Information from the Disclosing Party.
“Work Product” means all data, notes, analyses, compilations, forecasts, studies, interpretations or other documents prepared by the Receiving Party or its directors, officers, employees or advisors based on Confidential Information provided to it by the Disclosing Party.
2. The Disclosing Party shall, at its discretion, provide such portions of the Confidential Information to Receiving Party as is required for the Purpose. Nothing in this Agreement obligates Disclosing Party to make any particular disclosure of Confidential Information.
3. Each party shall collect, disclose, use and store Personal Data in accordance with Privacy Laws. The parties anticipate that each will be disclosing to the other party various business contact information tied to or related to individual(s) and that such information is regulated by Privacy Laws. In the event that a party will be disclosing to the other any Personal Data (besides business contact information tied to individual(s)) under this Agreement the parties will enter into a Data Security Addendum which shall be incorporated into and form a part of this Agreement.
4. All right, title and interest in and to the Confidential Information, including patents, trademarks, copyrights and trade secrets, shall remain the exclusive property of the Disclosing Party and the Confidential Information shall be held in trust and confidence by the Receiving Party for the Disclosing Party. No interest, license or any right respecting the Confidential Information, other than expressly set out herein, is granted to the Receiving Party under this Agreement by implication or otherwise.
5. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, or guarantee to the Receiving Party by the Disclosing Party with respect to the Confidential Information infringing any rights of third parties, or the accuracy or performance of the Confidential Information. The Disclosing Party will not be held liable for any damages arising out of the use of the Confidential Information.
6. The Receiving Party shall not use the Confidential Information in any manner except as reasonably required for the Purpose. Notwithstanding the foregoing, the Receiving Party shall not use the Confidential Information for purposes of unfair competition. The Receiving Party agrees that it will promptly disclose to the Disclosing Party any real or potential conflict of interest of the Receiving Party based on its participation in any commercial relationship or activity which would compete or is otherwise in conflict with the Opportunity.
7. The Receiving Party shall use all reasonable efforts to protect Disclosing Party's interest in the Confidential Information and the Confidential Information itself, using a standard of care no less than the degree of care that Receiving Party would be reasonably expected to employ for its own similar Confidential Information. In particular, the Receiving Party shall not, directly or indirectly, disclose, allow access to, transmit or transfer the Confidential Information to a third party without the Disclosing Party's prior written consent. The Receiving Party shall disclose the Confidential Information only to those of its employees or professional advisors who have a need to know the Confidential Information in connection with the Purpose. The Receiving Party shall, prior to disclosing the Confidential Information to such employees or advisors, issue appropriate instructions to them to satisfy its obligations herein and obtain their agreement to receive and use the Confidential Information in accordance with the same conditions as contained in this Agreement.
8. The Confidential Information shall not be published, copied, reproduced in any form or stored in a retrieval system or database by the Receiving Party without the prior written consent of the Disclosing Party, except for such copies the Receiving Party may require for use internally for the Purpose. Receiving Party agrees to destroy such copies within seven (7) days of receiving written request to that effect by the Disclosing Party.
9. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation, inference or agreement that the Receiving Party will not develop or have developed products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.
10. Upon written request of the Disclosing Party, the Receiving Party shall return promptly to the Disclosing Party all written materials and documents, as well as any computer software or other media, made available or supplied by the Disclosing Party to the Receiving Party that contains Confidential Information, together with any copies thereof. If requested by the Disclosing Party, the Receiving Party shall provide the disclosing party with a certificate certifying as to the complete return, destruction or deletion of all Confidential Information and all copies and manifestations thereof in accordance with the term of this paragraph, except that, subject to Section 16, copies may be retained if required by Privacy Laws.
11. The Receiving Party agrees that the disclosure of Confidential Information without the express written consent of the Disclosing Party will cause irreparable harm to the Disclosing Party, and that any breach of this Agreement by the Receiving Party will entitle the Disclosing Party to injunctive relief, in addition to any other legal remedies available to it, in any court of competent jurisdiction.
12. Disclosing Party represents and warrants to Receiving Party that the collection, use and storage of Personal Data by Disclosing Party complies with Privacy Laws. Receiving Party agrees to comply with Privacy Laws relating to the use, disclosure and protection of any Personal Data furnished by Disclosing Party to Receiving Party.
13. The Receiving Party shall indemnify and save harmless the Disclosing Party from all damages, losses, expenses and costs whatsoever resulting from the breach of this Agreement by the Receiving Party.
14. All notices required to be given under this Agreement shall be made in writing and sent to:
(a) in the case of Givex, to Givex UK Corporation Limited, Aviation House, 125 Kingsway, Holborn, London, United Kingdom WC2B 6NH. Attention: Managing Director. Fax +44 (0)207 691-7484; and
(b) in the case of the Company to the address at the head of this Agreement.
15. Neither this Agreement nor any Confidential Information disclosed pursuant to this Agreement shall confer any rights or benefits on any third parties. No third party may enforce any term of this Agreement or of any provision contained in any document disclosed under this Agreement. The Contracts (Rights of Third Parties) Act 1999 is hereby expressly excluded from this Agreement, including any Confidential Information or documents disclosed pursuant hereto.
16. The Receiving Party’s confidentiality obligations under this Agreement shall survive until such time as all of the Confidential Information of the Disclosing Party disclosed hereunder becomes publicly known or generally available through no action or inaction of the Receiving Party. Each party may retain Personal Data of the other party only for so long as necessary for the Purpose and as permitted by Privacy Laws.
17. No modification, addition to or waiver of any right, obligation or default shall be effective unless in writing and signed by the party against whom the same is sought to be enforced.
18. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.
19. If any provision contained herein shall be declared invalid, illegal or unenforceable by a court of competent jurisdiction, such invalid, illegal, or unenforceable provision shall be severed from this Agreement and be ineffective only to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof.
20. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations other than as specified herein.
21. The parties to this Agreement are independent contractors. The parties confirm that they are not carrying on business in partnership or as a joint venture and that no aspect of this Agreement is to be construed so as to constitute a partnership or joint venture. Neither party shall represent to a third party that they are carrying on business in partnership or as a joint venture with each other.
22. This Agreement shall be governed by and construed in accordance with the laws of England. Any and all disputes relating to or arising out of this Agreement shall be settled by the courts in the City of London, England, with the exclusion of any other, even if more privileged.
23. This Agreement and any Schedules referred to herein constitute the entire agreement between the parties relating to the subject matter herein and supersedes all prior written or oral agreements, representations and other communications between the parties.
24. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of the Agreement may be executed and delivered by facsimile or other electronic means, and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received.