In consideration of being supplied with Confidential Information by us, you agree and undertake to us on the terms of this letter:
1. INTERPRETATION
The definitions and rules of interpretation in this paragraph apply in this letter.
Confidential Information: has the meaning given in paragraph 2.2.
Copies: copies of Confidential Information including any document, electronic file, note, extract, analysis, study, plan, compilation or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information.
Permitted Purpose: Temporary use of the myMA Software system provided by NEST Management Ltd.
2. YOUR OBLIGATIONS
2.1 You shall:
(a) keep the Confidential Information secret;
(b) use the Confidential Information only for the Permitted Purpose;
(c) not directly or indirectly disclose the Confidential Information (or allow it to be disclosed), in whole or in part, to any person or make Copies unless permitted by this letter;
(d) use your best endeavours to ensure that no person gets access to the Confidential Information from you, your officers, employees or agents unless authorised; and
(e) inform us immediately upon becoming aware, or suspecting, that an unauthorised person has become aware of Confidential Information.
2.2 Confidential Information means:
(a) all information in whatever form (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) that is directly or indirectly disclosed, whether before or after the date of this letter, to you or any of your representatives by us, or which comes to your attention in connection with the Permitted Purpose,
but excludes the information in paragraph 2.3.
2.3 Information is not Confidential Information if:
(a) the information is, or subsequently becomes, public knowledge other than as a direct or indirect result of the information being disclosed in breach of this letter; or
(b) you can establish, to our reasonable satisfaction, that you found out the information from a source not connected with us and that the source is not under any obligation of confidence in respect of the information; or
(c) you can establish, to our reasonable satisfaction, that the information was known to you before the date of this letter and that you were not under any obligation of confidence in respect of the information; or
(d) we and you agree in writing that it is not confidential.
2.4 You may only disclose Confidential Information:
(a) to such of your officers and employees as is strictly necessary for the Permitted Purpose;
(b) to professional advisers or consultants engaged to advise you in connection with the Permitted Purpose;
(c) to people whom we agree in writing may receive the information; and
(d) to the extent permitted by paragraph 4.
2.5 You shall:
(a) inform any person to whom you disclose Confidential Information that the information is confidential; and
(b) procure that any person to whom you disclose the information (other than disclosures under paragraph 4) complies with this letter as if they were you and, if we so request, procure that they enter into a confidentiality agreement with us on terms equivalent to those contained in this letter.
2.6 You may make only such Copies as are strictly necessary for the Permitted Purpose and shall:
(a) clearly mark all Copies as confidential;
(b) ensure that all Copies supplied to you or made by you can be separately identified from your own information; and
(c) use your best endeavours to ensure that all Copies within your control are protected against theft or unauthorised access and that no person discovers Confidential Information from you unless authorised.
2.7 You shall, immediately on our written request, supply us with a list showing, to the extent reasonably practical:
(a) where all Copies supplied to you by us are held;
(b) all Copies that have been made by you or the persons to whom you have disclosed the Confidential Information (except where the Copies contain insignificant extracts from or references to Confidential Information) and where they are held; and
(c) the names and addresses of every person to whom Confidential Information has been disclosed and a copy of the confidentiality agreements signed by them complying with paragraph 2.5(b).
2.8 If we request in writing at any time, one of your senior officers shall immediately:
(a) return to us all the Confidential Information received by you; and
(b) destroy or permanently erase all Copies supplied to you or made by you, or by the persons who have received Confidential Information.
2.9 Nothing in paragraph 2.8 shall require you to return or destroy Confidential Information or Copies that you, or the persons to whom the Confidential Information or Copies have been disclosed, are required to retain by applicable law or to satisfy the rules or regulations of a regulatory body or stock exchange to which such person is subject.
2.10 You shall, immediately on our request, confirm in writing (such confirmation to be signed under oath by one of your directors) that you have complied with your obligations under paragraph 2.8.
3. AUTHORISED CONTACT
3.1 All communications with us about the Permitted Purpose shall be addressed to Louisa Turchet, louisa@nestmanagmenet.co.uk.
3.2 You shall not contact or communicate with any of our officers, employees, consultants, advisers, landlords, bankers, customers or suppliers in connection with the Permitted Purpose, other than the person named in paragraph 3.1, without our written consent.
4. FORCED DISCLOSURE
4.1 Subject to paragraph 4.2, you may disclose Confidential Information to the minimum extent required by any order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body.
4.2 Before you disclose any information under this paragraph 4, you shall (to the extent permitted by law) use your best endeavours to:
(a) inform us of the full circumstances of the disclosure and the information that will be disclosed, and take all such steps as may be reasonable and practicable in the circumstances to agree the contents of such disclosure with us before making the disclosure;
(b) consult us as to possible steps to avoid or limit disclosure and take those steps where they would not result in significant adverse consequences to you;
(c) gain assurances as to confidentiality from the body to whom the information is to be disclosed; and
(d) where the disclosure is by way of public announcement, agree the wording with us in advance.
4.3 You shall co-operate with us if we decide to bring in any legal or other proceedings to challenge the validity of the requirement to disclose Confidential Information (at our cost and expense).
4.4 If you are unable to inform us before Confidential Information is disclosed, you shall (to the extent permitted by law) inform us immediately after the disclosure of the full circumstances of the disclosure and the information that has been disclosed.
5. TIME
5.1 The obligations contained in this letter shall last indefinitely, but without affecting the liability of either party for breach of this letter before then.
6. INDEMNITY
You shall (in addition to, and without affecting, any other rights or remedies we may have whether under statute, common law or otherwise) indemnify and keep indemnified us and our officers, employees, advisers or agents (each an Indemnified Person) from and against all actions, claims, demands, liabilities, damages, losses, costs, charges and expenses (including, without limitation, consequential losses, loss of profit and loss of reputation and all interest, penalties and legal and other professional costs and expenses) that an Indemnified Person may suffer or incur in connection with, or arising (directly or indirectly) from, any breach or non-performance by you, or any person to whom you have disclosed or given access to any part of the Confidential Information or any Copies, of any of the provisions of this letter.
7. WHOLE AGREEMENT
7.1 This letter is the whole agreement between the parties and supersedes any arrangements, understanding or previous agreement between them relating to the subject matter covered by this letter.
7.2 The Confidential Information may not be accurate or complete and we make no representation or warranty as to the accuracy, completeness or reasonableness of the Confidential Information and no such representation or warranty shall be implied. We are not liable to you or to any person to whom you disclose the Confidential Information if it is relied on.
7.3 Nothing in this paragraph 7 operates to limit or exclude any liability for fraud.
8. ASSIGNMENT
8.1 No person may assign any of its rights under this letter or any document referred to in it.
9. THIRD PARTY RIGHTS & INTELLECTUAL PROPERTY
9.1 This letter is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, any other person.
9.2 None of the Confidential Information is your property. The disclosure to you of any Confidential Information shall not give you any licence or other rights whatsoever in respect of any part of such Confidential Information beyond the rights contained in this letter.
10. SEVERANCE
10.1 If any court or administrative body of competent jurisdiction finds any provision of this letter to be invalid, unenforceable or illegal, the other provisions of this letter shall remain in force.
10.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision shall apply with whatever modification is necessary to make it valid, enforceable and legal.
11. VARIATION & WAIVER
11.1 A variation of this letter shall be in writing and signed by or on behalf of all parties.
11.2 A waiver of any right under this letter is only effective if it is in writing and it applies only to the person to whom the waiver is addressed and the circumstances for which it is given.
11.3 A person that waives a right in relation to one person, or who takes or fails to take any action against that person, does not affect its rights against any other person.
11.4 No failure to exercise or delay in exercising any right or remedy provided under this letter or by law constitutes a waiver of such right or remedy or will prevent any future exercise in whole or in part thereof.
11.5 No single or partial exercise of any right or remedy under this letter shall preclude or restrict the further exercise of any such right or remedy.
11.6 Rights arising under this letter are cumulative and do not exclude rights provided by law.
12. GOVERNING LAW & JURISDICTION
12.1 This letter and any disputes or claims arising out of, or in connection with, its subject matter are governed by and construed in accordance with the law of England.
12.2 We each irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this letter.
Please confirm your agreement by signing, dating and returning to us a copy of this letter.
