THIS AGREEMENT is made effective as of the day of 2016 (the “Effective Date”) between
OVERSEAS TRADING SERVICES LTD (“Company”)
COMPANY NUMBER: 06206859
with principal offices at:
GORDON HOUSE 1-6 STATION ROAD,
LONDON NW7 2JU
[Print address of Company]
[Print name of Company]
with principal offices at:
[Print address of Company]
(referred together as the “Parties” and individually as a “Party”).
Whereas the Parties have agreed to exchange written and verbal technical, financial, business, market, Supplier and related information, and may exchange prototypes and samples of products or potential products (collectively, “Products”) which may be either proprietary or confidential in nature, or both, in order to facilitate discussions relating to a potential business relationship between the Parties relating to Products or otherwise.
Now, therefore, for value received, the Parties agree as follows:
1. Definition. “Confidential Information” means any information concerning the business, properties, affairs or finances of a Party, including, without limitation, trade secrets, customer lists, business studies and analyses and any and all proposals, notes, memoranda, reports, lists and records, whether written, printed or in digital format, oral, electronic or disclosed in visual form or otherwise, relating to any matter within the scope of the business of the disclosing Party or concerning any of its dealings or affairs which are clearly marked or labelled as “CONFIDENTIAL”, “PROPRIETARY”, “DO NOT DISCLOSE”, or with a similar legend, and includes any and all intellectual property owned by the disclosing Party, including, without limitation, all technical information, technical data, inventions, Products, data, algorithms, designs, methods, know-how, processes, copyrights, patents, trade secrets, software, models, patterns, drawings, specifications, prototypes, discoveries, techniques, systems, works of authorship, ideas and concepts, and any and all other types of information which are identified by the disclosing Party as confidential at the time of disclosure to the other Party, and which if in tangible form are clearly marked or labelled as “CONFIDENTIAL”, “PROPRIETARY”, “DO NOT DISCLOSE”, or with a similar legend. The Parties shall use commercially reasonable efforts to summarize in writing the content of any proprietary or confidential disclosure that is made orally within thirty (30) days of the disclosure, however failure to provide such summary shall not affect the nature of the Confidential Information disclosed if such Confidential Information was identified as confidential or proprietary when disclosed orally or in any other non-tangible form.
Legally Binding Obligation of Confidentiality.
All Confidential Information acquired by a receiving Party, directly or indirectly (whether or not protected by patent, copyright, trade secret or any other form of commercial protection) is, and shall be treated by the receiving Party, as valuable, proprietary and confidential information of the disclosing Party, and the receiving Party shall use the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of the Confidential Information as the receiving Party uses to protect its own Confidential Information of a similar nature. Each Party agrees that it shall keep all Confidential Information received from the other, strictly confidential and that it shall not disclose, directly or indirectly any Confidential Information to any third parties, or to any of its employees except employees who have a need to know such Confidential Information for purposes for which it was disclosed, and who have been advised of the confidentiality obligation contained in this Agreement and who are subject to a non-disclosure agreement with the receiving Party. The receiving Party shall not make use of any of the Confidential Information (other than for the purpose for which the Confidential Information was provided) without the disclosing Party’s prior written consent. The receiving Party shall not reverse engineer, decompile or disassemble any software or Products which is Confidential Information. The receiving Party, on behalf of itself and its officers, agents, attorneys-at-law, owners, members, shareholders, employees, representatives, successors, affiliates, parent entities, subsidiaries, related organizations and assigns hereby irrevocably agrees, undertakes and warrants that it shall not, by any means or under any circumstances whatsoever, at any place throughout the world, for a period of 3 years from the date hereof, without the prior knowledge and written consent of the disclosing Party: i) interfere with, circumvent or attempt to circumvent, avoid, by-pass, or obviate the disclosing Party’s business relationship or business opportunity with any person or entity that was introduced to or disclosed to the receiving Party by the disclosing Party (collectively “Such Person”), or ii) discuss, negotiate or consummate any agreement or transaction with any Such Person, or iii) allow or enable any third person or entity to circumvent the disclosing Party in regard to Such Person (whether for the receiving Party’s own benefit or the benefit of such third party or entity).
2. Samples. Any Products received by one Party from the other, either directly or indirectly, shall be used solely in testing and evaluating the performance of the Product in connection with the purpose for which it is disclosed and such Products will not be provided, either directly or indirectly to any third party. Products and other Confidential Information provided hereunder for the aforementioned purpose are provided “as is” without warranty of any kind and any warranties or conditions are expressly disclaimed. The disclosing Party makes no representation or warranty as to merchantability or fitness for a particular purpose of any Confidential Information disclosed hereunder. The receiving Party acknowledges that none of the other Party, its affiliates or suppliers shall be liable for any damage whatsoever whether direct, indirect or consequential relating to the use of such Products by the Party receiving such Confidential Information.
3. Misappropriation or misuse of Confidential Information. Each Party will advise the other in writing of any misappropriation or misuse by any person of such Confidential Information of which it may become aware.
4. Identification of Confidential Information to Third Party. If the Party providing Confidential Information authorizes the receiving Party in writing to disclose the Confidential Information to a third party, all such information disclosed in a tangible form shall be clearly marked and noted as being the proprietary and confidential information of the providing Party and if in a non-tangible form, shall be identified to the other Party at the time of disclosure as Confidential Information.
5. Ownership of Confidential Information. All right, title and interest in and to the Confidential Information is and shall remain with the disclosing Party. Neither Party shall acquire any intellectual property rights, including patents, designs, trademarks, copyright or trade secrets or any license under any trade secret, patent, patent application, industrial design, trademark, copyright, mask work, confidential process, formula, plan, computer program, data in or to any Confidential Information of the other pursuant to this Agreement, except the limited rights to use the Confidential Information to carry out the purposes set forth herein.
6. Exceptions to Confidentiality Provisions. Each Party agrees that it shall have no obligations under this Agreement with respect to any Confidential Information of the disclosing Party which: (i) was lawfully in the possession of the receiving Party prior to receipt from the disclosing Party as evidenced by tangible written records; (ii) is or becomes publicly available through no wrongful act of the other Party; (iii) is received by the other Party from a third party without restriction; (iv) is developed by employees of the receiving Party who have not had access to the Confidential Information; or (v) is required to be disclosed by a court of competent jurisdiction or other governmental authority, provided, however, that the Party so ordered will give prompt written notice to the other of any such order, or of any legal or governmental proceeding that might result in such an order, and will not disclose any Confidential Information until the Party has been provided with a reasonable opportunity to limit or prevent such disclosure and in the event the disclosure cannot be prevented, shall
disclose only to the extent required and only that portion thereof required to be disclosed; or (vi) is disclosed by the receiving Party with the disclosing Party’s prior written approval.
7. Return or Destruction of Confidential Information. Each of the Parties agrees that, upon request, all Products and all documents, disks, and any other materials, (including all copies) containing Confidential Information which may have been provided to it under this Agreement, will be (i) returned to the disclosing Party or (ii) destroyed by the receiving Party who shall, at the request of the disclosing Party, provide written confirmation of such destruction. Notwithstanding the foregoing, each Party may retain one copy of the disclosing Party’s Confidential Information solely for legal archival purposes.
8. Relationship. The Parties do not intend that any agency or partnership relationship be created between them as a result of entering into this Agreement. The Parties acknowledge and agree that this Agreement does not in any way oblige a Party to pay any amount to the other Party in respect of services rendered or as in payment for Products and no such liability shall or may arise unless and until the Parties enter separate and other agreements for such services or Products.
9. Remedies for Breach. Any unauthorized disclosure and use of Confidential Information by a receiving Party may cause irreparable harm to the disclosing Party for which damages may not be an adequate remedy. In the event of a breach of this Agreement, a disclosing Party shall, in addition to any other rights or remedies it may have in law or equity under this Agreement or otherwise, be entitled to seek an injunction preventing the breaching Party from further use of the Confidential Information.
10. Term. This Agreement pertains to Confidential Information that is disclosed between the Effective Date and two (2) years thereafter unless sooner terminated in writing by either Party. The confidentiality obligations contained herein shall continue to bind the Parties, their successors and permitted assigns and representatives, from the date of first receipt of such Confidential Information and shall survive the term of this Agreement, or any earlier termination thereof, for a period of five (5) years from the date of disclosure.
11. Assignment / Successors. Either Party shall have the right to assign this Agreement to any affiliate or subsidiary company, or to any third party in connection with the transfer of all or substantially all of the assets of the business relating to this Agreement, or by the sale or transfer of the voting stock or shares of the assigning Party resulting in a change in its effective control, provided however that the Confidential Information of the disclosing Party may not be assigned to any third party without the prior written consent of the disclosing Party which consent will not be unreasonably withheld. Subject to the limitations set forth in this Agreement, this Agreement shall become binding upon and inure to the benefit of each of the Parties hereto and their respective successors and permitted assigns.
12. Facsimile Transmission. This Agreement may be executed and delivered by facsimile or other electronic means of transmission, and upon receipt such transmission shall be deemed delivery of an original, provided however that each Party undertakes to provide each other with a copy of this Agreement bearing original signatures as soon as possible after acceptance.
13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the United Kingdom.
14. No Commitment. The Parties understand and agree that discussions hereunder are exploratory only and that no commitment or representation has been made or is made by either Party that will result in the development, manufacture, marketing, sale or supply of any product or service by either Party for or to the other Party whatsoever.
15. Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all proposals, negotiations, representations, warranties, conditions and agreements, collateral or otherwise, oral or written, relating thereto made prior to the execution hereof. All additions or modifications to this Agreement must be made in writing and must be signed by both parties.
16. Independent Construction. Each provision or part thereof, of this Agreement shall be construed separately and independently from each other. Accordingly, if any provision of this Agreement is found to be unenforceable or invalid, such provision shall be ineffective to the extent of such unenforceability or invalidity, without affecting the remaining provisions of this Agreement.
17. Export Laws. The Parties shall comply with all applicable laws relating to the import, export and re-export of Confidential Information disclosed hereunder.
IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed on the dates set forth below:
NAME OF COMPANY: OVERSEAS TRADING SERVICES LIMITED
Title: Title: AUTHORISED SIGNATORY
At: LONDON, UNITED KINGDOM
I have authority to bind the Corporation I have authority to bind the Corporation
NAME OF COMPANY:
Title: Title: AUTHORISED SIGNATORY