NON DISCLOSURE-NON CIRCUMVENTION AGREEMENT
Hyman Capital Services Ltd wishes to share Confidential Information relating to mutual business opportunities, our respective businesses and associated contacts.
By submitting this form, your company agrees to the following:
- Confidentiality obligations
1.1. In consideration of each party (as the Disclosing Party for the purposes hereof) providing Confidential Information, at its discretion, to the other (as the Receiving Party for the purposes hereof) each party as the Receiving Party irrevocably and unconditionally undertakes to the other as the Disclosing Party that it shall:
1.1.1. keep the Disclosing Party’s Confidential Information secret and confidential;
1.1.2. neither disclose or permit the disclosure of any of the Disclosing Party’s Confidential Information to any person except for disclosure to the Receiving Party’s Authorised Persons in accordance with clause 2 below or otherwise as permitted in accordance with clause 3 below;
1.1.3. not use the Disclosing Party’s Confidential Information or any of it for any purpose, whether commercial or non-commercial, other than in good faith for the purposes for which it is disclosed to it as envisaged above (“Permitted Purpose”);
1.1.4. make only such limited number of copies of any such Confidential Information as are strictly required for the Permitted Purpose and provide those copies only to its Authorised Persons in accordance with clause 2 below;
1.1.5. take all reasonable and proper measures (and in any event measures which are no less than those taken by the Receiving Party in relation to maintaining the confidentiality of its own confidential information and that of its own clients and customers in relation to whom the Receiving Party holds confidential information at any time) to maintain the confidential nature of the Disclosing Party’s Confidential Information; and
1.1.6. be liable to the Disclosing Party for all losses and other liabilities incurred by the Disclosing Party as a result of any breach by the Receiving Party and or by any of its Authorised Persons of any of its or their obligations hereunder or in relation hereto (including any liabilities and obligations which may arise as a result thereof on the part of the Disclosing Party to its clients or prospective clients).
1.2. For the purposes of this Agreement, the following words shall have the following meanings:
1.2.1. “Authorised Persons” means the partners, officers, employees and professional advisers of the Receiving Party;
1.2.2. “Confidential Information” shall mean:
18.104.22.168. all non-publicly available information of any nature whatsoever and in whatever form provided (including orally) directly or indirectly by the Disclosing Party to the Receiving Party before, on or after the date of this Agreement in connection with the Permitted Purpose and which is either marked as confidential or which is, by its nature, confidential and shall include without limitation, all non-publicly available information and intellectual property and rights relating to the Disclosing Party and its business and business opportunities and its clients or prospective clients (“DP Clients”);
22.214.171.124. in respect of information imparted orally, any note or record of or reflecting such disclosure and of any evaluation materials prepared by the Receiving Party that incorporate any such Confidential Information;
126.96.36.199. any copy or other recording or extract or summary or other adaptation of any of any of the foregoing in whole or in part; and
188.8.131.52. the fact that discussions are taking place between the parties in relation to the Permitted Purpose.
1.2.3. Intellectual Property And Rights” shall mean
184.108.40.206. any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, rights in trade dress or get-up, rights in goodwill or to sue for passing off, copyrights and related rights, moral rights, database rights, know-how, rights in designs and inventions, and all similar or equivalent rights or forms of protection in any part of the world;
220.127.116.11. rights under licences, consents, orders, statutes or otherwise in relation to a right in Clause 18.104.22.168.;
22.214.171.124. rights of the same or similar effect or nature as or to those in clauses 126.96.36.199 and 188.8.131.52 which now or in the future may subsist; and
184.108.40.206. the right to sue for past infringements of any of the foregoing rights.
- Permitted Disclosure
2.1. The Receiving Party may disclose the Disclosing Party’s Confidential Information only to those of Authorised Persons who:
2.1.1. reasonably need to receive the Confidential Information to enable the Receiving Party properly to evaluate the Permitted Purpose;
2.1.2. have been informed by the Receiving Party (a) of the confidential nature of such Confidential Information and (b) that the Disclosing Party is providing such Confidential Information to the Receiving Party subject to the provisions of this Agreement and of the Receiving Party’s obligations of confidence hereunder in relation to the same; and
2.1.3. are personally themselves bound by confidentiality obligations to the Receiving Party whosoever arising provided that those obligations (a) are no less onerous than the provisions of this Agreement and (b) apply to the Disclosing Party’s Confidential Information, and who are duly instructed to treat the Disclosing Party’s Confidential Information as confidential accordingly and to use the same in good faith and only for or related to the Permitted Purpose.
2.2. The Receiving Party shall keep a written record of all Authorised Persons to whom the Disclosing Party’s Confidential Information is disclosed and shall at all times ensure that its Authorised Persons comply with the Receiving Party’s obligations under this Agreement and shall be liable for any breach of the same by any such person as if such breach were the Receiving Party’s own breach of the terms hereof.
- Disclosure to court or other public body
3.1. To the extent that the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by law or order of a court or a regulatory body that has jurisdiction over the Receiving Party, it may do so provided that before making any such disclosure (“required disclosure”) the Receiving Party shall, if the circumstances permit:
3.1.1. inform the Disclosing Party of the proposed disclosure as soon as possible (and whenever possible before the required disclosure is made);
3.1.2. make only such disclosure as is required to fulfil its obligations to make the same (in terms of the nature and extent of the required disclosure) and no more;
3.1.3. require (to the extent it is reasonably able to do so) the recipient of any such required disclosure to treat the Disclosing Party’s Confidential Information as confidential and to restrict their own respective use and receipt thereof only for the purpose for which the required disclosure is required to be made and for no other purpose; and
3.1.4. permit the Disclosing Party to make representations to the recipient of the required disclosure (including through the Receiving Party) in respect of the need for and or the nature and extent of the required disclosure and/or of the requirement for continued confidential treatment of the relevant Confidential Information.
- Exceptions to confidentiality obligations
4.1. The Receiving Party’s obligations under clause 1 shall not apply to Confidential Information that:
4.1.1. the Receiving Party possessed before the Disclosing Party disclosed it to the Receiving Party (as reasonably evidenced by the Receiving Party);
4.1.2. is or becomes publicly known, other than as a result of breach of the terms of this Agreement by the Receiving Party or by anyone to whom the Receiving Party discloses any of the Disclosing Party’s Confidential Information; or
4.1.3. the Receiving Party obtains from a third-party, provided that the third-party was not under any obligation of confidentiality to the Disclosing Party or any other person with respect to the relevant Confidential Information at the date of disclosure of the same to the Receiving Party.
- Return of information and surviving obligations
5.1. Subject to clause 5.2, the Receiving Party shall (a) at the Disclosing Party’s request, and also and in any event (b) upon any termination of discussions relating to the Permitted Purpose:
5.1.1. return and provide to the Disclosing Party or destroy all documents and other materials that contain any of the Disclosing Party’s Confidential Information, including all copies made by or on behalf the Receiving Party and or any of its Authorised Persons;
5.1.2. take all reasonably practical steps to permanently delete or procure the permanent deletion of all electronic copies of the Disclosing Party’s Confidential Information and all copies thereof from the Receiving Party’s computer systems and those of its Authorised Persons; and
5.1.3. provide to the Disclosing Party a certificate, signed by an officer of the Receiving Party, confirming that the obligations referred to in clauses 5.1.1 and 5.1.2 have been fully and properly complied with.
5.2. As an exception to its obligations under clause 5.1, the Receiving Party may, where appropriate, retain and or permit its Authorised Persons to retain one copy of the Confidential Information, in paper form, in its or their legal files for the purpose of ensuring compliance with their obligations under this Agreement or as otherwise required of them for legal regulatory reasons as evidenced to the Disclosing Party at the relevant time but for no other purpose. Any such information as is permitted to be retained by any person hereunder shall continue to be held at all times thereafter on the terms of this Agreement.
5.3. Following the date of any termination of discussions relating to the Permitted Purpose between the parties or any return of Confidential Information to the Disclosing Party (“Final Date”), (a) the Receiving Party shall make no further use of the Disclosing Party’s Confidential Information, and (b) the Receiving Party’s obligations under this Agreement shall otherwise continue in force, in respect of Confidential Information disclosed prior to the Final Date, in each case for a period of 2 years from the Final Date.
6.1. The Receiving Party acknowledges and agrees that all property, including any intellectual property, in the Disclosing Party’s Confidential Information shall remain with and be vested solely in the Disclosing Party.
6.2. This Agreement does not include, expressly or by implication, any representations, warranties or other obligations:
6.2.1. to grant the Receiving Party any licence or rights in or to use the Confidential Information other than as is expressly stated in this Agreement;
6.2.2. to require the Disclosing Party to disclose, continue disclosing or update any Confidential Information;
6.2.3. to require the Disclosing Party to negotiate or continue negotiating with the Receiving Party with respect to any further agreement and either party may withdraw from such negotiations or discussions at any time without liability (subject always to clause 5 above); nor
6.2.4. as to the accuracy, efficacy, completeness, capabilities, safety or any other qualities whatsoever of any information or materials provided by the Disclosing Party under this Agreement.
7.1. At any time prior to the expiration of 2 years from the Final Date (“the Restricted Period”), it is expressly agreed that the identities of any individual or entity and any other third parties (including, without limitation, suppliers, customers, financial sources, manufacturers and consultants) discussed and made available by the Disclosing Party in respect of the Purpose and any related business opportunity shall constitute Confidential Information and the Recipient or associated entity or individual shall not, (without prior written consent or the Disclosing Party):
7.1.1. directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertaking with any such third party identified or introduced by the Disclosing Party; or
7.1.2. seek to by-pass, compete, avoid or circumvent the Disclosing Party in respect of any business opportunity that relates to the Purpose by utilising any Confidential Information or by otherwise exploiting or deriving benefit from the Confidential Information.
7.2. The Recipient covenants that any financial gain made by it, or any associated party, from a breach of clause 7.1 shall be held on trust for the benefit of the Disclosing Party and then be transferred to a nominated account of the Disclosing Party, until which time such outstanding amount shall incur interest at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Recipient shall pay the interest together with the overdue amount.
7.3. Clause 7.2 does not affect the Disclosing Party’s ability to also claim damages should the covenants in clause 7.1 be breached in any way.
- Law and jurisdiction
8.1. The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the courts of England and Wales, to which the parties to this Agreement submit.
Please complete the following information to confirm your agreement to the terms of this NDA. To sign the document, click and move your mouse (or finger on a touchscreen) within the shaded signature area.
After we have received your acceptance, we will send you a countersigned PDF version of the agreement for your records.