We operate a strict confidentiality procedure with all of our clients. The below contract is an example mutual confidentiality contract that we look to sign with all of our clients.
MUTUAL CONFIDENTIALITY AGREEMENT
1. RPD INTERNATIONAL (Company number 08132895) whose registered office is at 90 Tottenham Court Road, W1T 4TJ (“RPD International”); and
2. XXX (Company number XXX) whose registered office is at XXX.
(A) The Parties, for their mutual benefit, wish to exchange certain information (including but not limited to trade secrets and proprietary know-how) for the Purpose as defined below.
(B) The Parties wish to define their rights with respect to the said information and protect the confidentiality thereof and proprietary features contained therein.
1 Definitions and interpretation
1.1 In this Agreement, except where the context otherwise requires:
Affiliate means in relation to a Party any company which is the Subsidiary or Holding Company of that Party or which is a Subsidiary of any such Holding Company from time to time;
Agreement means this agreement, which consists of the terms and conditions, the Schedules and any other document attached to or otherwise expressly incorporated into this agreement and as varied or amended from time to time in accordance with its terms;
Appropriate Regulatory Body means, as relevant, the Financial Services Authority, the Information Commissioner, the Office of Fair Trading, Her Majesty's Revenue and Customs, the Panel on Takeovers and Mergers, the European Commission and any other regulatory or governmental body, department or agency charged with enforcing applicable laws or regulations;
Commencement Date means the date of this Agreement;
Confidential Information means:
a. all information and data of whatever nature and in whatever form, including but not limited to, any information or document which may be acquired from or made available by a Party (the “Disclosing Party”) or any of its Affiliates relating to the Disclosing Party’s (or any of its Affiliate's) business, operations, processes, product information, know-how, trade-secrets, market opportunities, customers or suppliers (whether relating to the Purpose or otherwise);
b. anything marked as confidential or which by its nature is confidential, and any other information notified by or on behalf of the Disclosing Party (or any of its Affiliates) to another Party (the “Receiving Party”) (or any of its Affiliates) as being confidential;
c. the existence and terms of this Agreement and of any subsequent agreement entered into in relation to the Purpose; and
d. any copy of any of the information described in (a), (b) or (c) above, which shall be deemed to become Confidential Information when it is made. For the purposes of this definition, a copy shall include, without limitation, any notes or recordings of the information described in (a), (b) or (c) above (howsoever made);
Party means a party to this Agreement;
Permitted Recipients means the directors, officers, employees, auditors, insurers and other professional advisors of the Receiving Party and/or the Affiliates of the Receiving Party; and
Purpose shall mean any discussions and/or negotiations between the Parties concerning or in connection with any design or manufacturing projects or studies.
1.2 In this Agreement, except where the context otherwise requires:
1.2.1 the clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
1.2.2 use of the singular includes the plural and vice versa;
1.2.3 use of any gender includes the other genders;
1.2.4 any reference to persons includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality);
1.2.5 references to a Party shall include permitted assigns.
1.2.6 In this Agreement, the party which makes a disclosure of Confidential Information is called “the Disclosing Party” and the party to which such disclosure is made is called “the Receiving Party”.
2.1 This Agreement shall commence on the Commencement Date and shall remain effective for a period of ten (10) calendar years (the “Term”).
2.2 Notwithstanding clause 2.1, this Agreement shall apply to any Confidential Information, which has been or may have been supplied by or on behalf of the Disclosing Party to the Receiving Party before the Commencement Date.
3 Confidentiality Undertakings
3.1 Subject to clause 7, in consideration of the mutual exchange and disclosure of Confidential Information, the Receiving Party undertakes to the Disclosing Party in relation to the Confidential Information of the Disclosing Party:
3.1.1 to treat and safeguard the Confidential Information as private and confidential and employ, in respect of the Confidential Information, the security measures set out in clause 4;
3.1.2 to use or store the Confidential Information for no purpose other than for the Purpose;
3.1.3 not to copy or part with possession of the whole or any part of the Confidential Information without the Disclosing Party’s prior written consent;
3.1.4 not to use the Confidential Information to procure any commercial advantage over the Disclosing Party, their customers, suppliers or prospective customers or suppliers;
3.1.5 not to disclose, make available or supply the Confidential Information to any person other than to its Permitted Recipients who are engaged in relation to the Purpose and solely to the extent it needs to be used by such person in relation to the Purpose; and
3.1.6 not to disclose to any person, other than to any Permitted Recipients in accordance with clause 3.1.5, the fact that the Confidential Information has been made available or that discussions or negotiations are taking place in relation to the Purpose.
3.2 The Receiving Party further undertakes to the Disclosing Party that it will promptly inform the Disclosing Party in writing on becoming aware of any breach of the terms of this Agreement.
4.1 Without prejudice to the undertakings contained in clause 3, in order to safeguard the confidentiality of the Confidential Information, the Receiving Party agrees to apply at least the same degree of care and security to the Confidential Information that it applies to its own confidential or proprietary information in accordance with its own security policies and best industry standards.
5 Permitted Recipient
5.1 The Receiving Party undertakes to the Disclosing Party that any Permitted Recipient of the Receiving Party who receives the Confidential Information in accordance with clause 3.1.5 shall be made fully aware of the purpose for which the Confidential Information may be used and shall comply with obligations of confidence and security no less onerous than those owed to the Disclosing Party under this Agreement.
5.2 Promptly following receipt of written request from the Disclosing Party, the Receiving Party shall confirm to the Disclosing Party in writing the identity of all Permitted Recipients who have received the Confidential Information.
5.3 The Receiving Party shall remain principally liable where any Permitted Recipient fails to comply with the obligations of confidence and security owed to the Disclosing Party under this Agreement.
6 Return or Destruction of Confidential Information
6.1 The Receiving Party shall (and shall procure that each Permitted Recipient to whom the Disclosing Party's Confidential Information has been disclosed or made available in accordance with Clause 3.1.5 shall) immediately on receipt of a written request from the Disclosing Party:
6.1.1 return to the Disclosing Party all the Disclosing Party’s Confidential Information in its possession; or
6.1.2 destroy by shredding or incineration, all of the Disclosing Party’s Confidential Information (including any copies made) in its possession; and
6.1.3 cease to make use of or in any way exploit the Disclosing Party's Confidential Information; and
6.1.4 delete, so far as it is possible, all of the Disclosing Party’s Confidential Information from any computer, word processor or other similar machine; and
6.1.5 supply the Disclosing Party with a declaration that such documents and things so delivered or destroyed, as the case may be, comprise all the Confidential Information belonging to the Disclosing Party or any of its Affiliates.
6.2 Immediately upon expiry of the Term, the Receiving Party shall, and shall procure that each Permitted Recipient shall, (to the extent the Receiving Party or any Permitted Recipient has not already complied with a written request referred to in clause 6.1) carry out the actions set-out in clauses 6.1.1, 6.1.3, 6.1.4 and 6.1.5.
6.3 The provisions of clause 6.1 shall not require the Receiving Party or any Permitted Recipient to destroy or return to the Disclosing Party (or procure the destruction or return to the Disclosing Party of) any Confidential Information contained in any of its records (or the records of any Permitted Recipient) which it (or the Permitted Recipient) is required by a mandatory provision of applicable law or by an Appropriate Regulatory Body to retain.
7.1 The confidentiality undertakings in this Agreement shall not apply to any information or data:
7.1.1 to the extent that it is or becomes generally available to the public other than by breach of this Agreement by the Receiving Party or any Permitted Recipient;
7.1.2 which the Receiving Party can show by writing or other records, including electronic records, was in its possession prior to receipt from the Disclosing Party; or
7.1.3 which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure.
7.2 Where the Receiving Party is required by a mandatory provision of applicable law, by any court of competent jurisdiction, rules of a relevant stock exchange or by an Appropriate Regulatory Body to disclose the Confidential Information, the Receiving Party shall, to the extent permitted by law:
7.2.1 immediately notify the Disclosing Party of such requirement;
7.2.2 consult with the Disclosing Party on the advisability of taking steps to legally resist or minimise such disclosure; and
7.2.3 if disclosure is required, exercise reasonable endeavours to either: (i) obtain an undertaking from the person receiving the Confidential Information that the Confidential Information that is disclosed will be treated as confidential by such person, or (ii) offer disclosure of alternative information or take alternative action in lieu of such disclosure.
8 Remedies for Breach
8.1 The Receiving Party undertakes to indemnify, keep indemnified and hold harmless the Disclosing Party from all claims and all direct, indirect and consequential liabilities, costs, proceedings, damages, losses and expenses (including legal and other professional expenses) awarded against or incurred by the Disclosing Party (and/or any of its subcontractors and/or Affiliates) as a result of or in connection with a breach or non-performance by the Receiving Party, any of its Affiliates and/or a Permitted Recipient of any of the terms of this Agreement.
8.2 The Receiving Party acknowledges that given the nature of this Agreement damages may not be an adequate remedy for a breach of this Agreement and agrees that the Disclosing Party shall be entitled to the remedy of an injunction, specific performance and other equitable relief for any threatened or actual breach of this Agreement and no proof of special damages shall be necessary for enforcement of this Agreement. The rights and remedies set out in this Agreement are cumulative and are not exclusive of any other rights and remedies provided by law.
9.1 Each Party shall, in addition to complying with its obligations under this Agreement, comply with all applicable laws and regulations.
9.2 The Receiving Party acknowledges and agrees that the Disclosing Party’s (or the Disclosing Party’s Affiliate’s) Confidential Information:
9.2.1 is the property of the Disclosing Party and that the Disclosing Party reserves all intellectual property rights (and rights in know-how) in relation to the Confidential Information;
9.2.2 to the maximum extent permitted by applicable law is provided upon the basis that it is disclosed without any term, condition or warranty, express or implied, including, without limitation, as to its completeness, fitness for purpose or accuracy; and
9.2.3 is provided on the basis that the Disclosing Party is not liable for any action taken or reliance placed by the Receiving Party (or any of its Permitted Recipients) on the Confidential Information.
9.3 No variation of this Agreement shall be valid unless it is in writing and signed by each of the Parties.
9.4 A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, save that each of RPD International’s Affiliates shall have the benefit of all rights, benefits and limitations provided for in this Agreement and accordingly shall be entitled to enforce this Agreement subject to and in accordance with its terms.
9.5 This Agreement constitutes the entire agreement between the Parties relating to the subject matter set out herein. However, the obligations of the Parties under any pre-existing confidentiality agreement shall remain in full force and effect in so far as there is no conflict between the same.
9.6 The failure or delay by either Party in exercising any right, power or remedy of that Party under this Agreement shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it.
9.7 Any notice to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class recorded delivery post to the Party to be served at that Party's registered office from time to time marked for the attention of the Company Secretary of that Party. Any such notice shall be deemed to have been served if delivered by hand, at the time of delivery; or if posted at the expiration of 48 hours after the envelope containing the same shall have been put in the post.
9.8 The provision of Confidential Information by either Party to the other is not intended to constitute or evidence any form of contract save as set out in this Agreement.
9.9 To the maximum extent permitted by applicable law, nothing in this Agreement may be interpreted as a warranty or representation in relation to the Confidential Information.
9.10 Nothing in this Agreement shall limit or exclude any liability for fraudulent misrepresentations.
9.11 If any provision of this Agreement shall be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, such provision may be severed and such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability or legality or the remaining provisions of this Agreement.
9.12 This Agreement shall be governed and construed in accordance with English law and the Parties hereby submit to the jurisdiction of the English courts to settle any disputes, which may arise in connection with this Agreement. However, the Parties retain the right to pursue injunctive relief in an alternative jurisdiction in relation to any threatened or actual breach of this Agreement if the relevant Party has suffered or is likely to suffer loss as a result of that breach.
Copyright © 2017 Rapid Product Development Ltd
RPD International is a company registered in England and Wales with company number 08132895
16 Bowling Green Lane, London, EC1R 0BD, UK with subsidiaries in Amsterdam, China and Singapore