THIS AGREEMENT is entered into at the time the Applying Party completes the associated form on our website selecting they wish to be covered by a Non-Disclosure Agreement.
PARTIES
- STARTHQ LIMITED incorporated and registered in England and Wales with company number 15557493 whose registered office is at 1-3 Worship Street, 2nd Floor C/O Buckworths, London, England, EC2A 2AB; and
- The party submitting the associated form on our website (the APPLYING PARTY)
(together, the “Parties”).
BACKGROUND
- The Parties intend to enter into discussions relating to the Purpose which will involve the exchange of Confidential Information between them.
- The Parties have agreed to comply with this Agreement in connection with the disclosure and use of Confidential Information.
AGREED TERMS
1. INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the meanings set out opposite them:
| “Agreement” | this agreement entered into between the Parties, as amended from time to time; |
| “Business Day” | a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business; |
| “Confidential Information” | has the meaning given in clause 2; |
|
“Discloser”
|
a Party to this Agreement when it discloses its Confidential Information, directly or indirectly, to the other Party; |
| “Electronic Signatures” | means any electronic sound, symbol, or process attached to or logically executed and adopted by a Party with the intent to sign this Agreement, including DocuSign, HelloSign or e-mail electronic signatures; |
| “Purpose” | means the Parties entering into commercial discussions regarding their respective businesses. |
|
“Recipient”
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a Party to this Agreement when it receives Confidential Information, directly or indirectly, from the other Party; and |
| “Representative(s)” |
in relation to each Party: a) its officers and employees that need to know the Confidential Information for the Purpose; b) its professional advisers or consultants who are engaged to advise that Party in connection with the Purpose; c) its contractors and sub-contractors engaged by that Party in connection with the Purpose; and d) any other person to whom the other Party agrees in writing that Confidential Information may be disclosed in connection with the Purpose. |
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes e-mail.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
2. CONFIDENTIAL INFORMATION
2.1 “Confidential Information” means all confidential information relating to the Purpose which the Discloser or its Representatives directly or indirectly discloses, or makes available, to the Recipient or its Representatives, before, on or after the date of this Agreement. This includes:
2.1a the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;
2.1b the [existence and terms of this Agreement;
2.1c all confidential or proprietary information relating to:
- the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Discloser; and
- the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Discloser;
2.1d any information, findings, data or analysis derived from Confidential Information; and
2.1e any other information that is identified as being of a confidential or proprietary nature,
but excludes any information referred to in clause 2.2.
2.2 Information is not Confidential Information if:
2.2a it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or its Representatives in breach of this Agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information);
2.2b it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
2.2c it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient’s knowledge, is not under any confidentiality obligation in respect of that information;
2.2d it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser;
2.2e it is developed by or for the Recipient independently of the information disclosed by the Discloser; or
2.2f the Parties agree in writing that the information is not confidential.
3. CONFIDENTIALITY OBLIGATIONS
3.1 In return for the Discloser making Confidential Information available to the Recipient, the Recipient undertakes to the Discloser that it shall:
3.1a keep the Confidential Information secret and confidential;
3.1b not use or exploit the Confidential Information in any way except for the Purpose;
3.1c not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this Agreement; and
3.1d not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose. Any such copies, reductions to writing and records shall be the property of the Discloser.
3.2 The Recipient shall establish and maintain adequate security measures [(including any reasonable security measures proposed by the Discloser from time to time)] to safeguard the Confidential Information from unauthorised access or use.
4. PERMITTED DISCLOSURE
4a The Recipient may disclose the Confidential Information to its Representatives on the basis that it:
4ai informs those Representatives of the confidential nature of the Confidential Information before it is disclosed; and
4aii procures that those Representatives comply with the confidentiality obligations in clause 1 as if they were the Recipient.
4b The Recipient shall be liable for the actions or omissions of the Representatives in relation to the Confidential Information as if they were the actions or omissions of the Recipient.
5. MANDATORY DISCLOSURE
5.1 Subject to the provisions of this clause 5, a Party may disclose Confidential Information to the minimum extent required by:
5.1a an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction;
5.1b the rules of any listing authority or stock exchange on which its shares are listed or traded; or
5.1c the laws or regulations of any country to which its affairs are subject.
5.2 Before a Party discloses any Confidential Information pursuant to clause 5.1 it shall, to the extent permitted by law, use all reasonable endeavours to give the other Party as much notice of this disclosure as possible.
5.3 If a Party is unable to inform the other Party before Confidential Information is disclosed pursuant to clause 5.1 it shall, to the extent permitted by law, inform the other Party of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.
6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION
6.1 If so requested by the Discloser at any time by notice in writing to the Recipient, the Recipient shall:
6.1a destroy or return to the Discloser all documents and materials (and any copies) containing, reflecting, incorporating or based on the Discloser’s Confidential Information;
6.1b erase all the Discloser’s Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form;
6.1c to the extent technically and legally practicable, erase all the Discloser’s Confidential Information which is stored in electronic form on systems and data storage services provided by third parties; and
6.1d certify in writing to the Discloser that it has complied with the requirements of this clause 1.
6.2 Nothing in clause 6.1 shall require the Recipient to return or destroy any documents and materials containing or based on the Discloser’s Confidential Information that the Recipient is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject. The provisions of this Agreement shall continue to apply to any documents and materials retained by the Recipient pursuant to this clause 6.2.
7. RESERVATION OF RIGHTS AND ACKNOWLEDGEMENT
7.1 Each Party reserves all rights in its Confidential Information. The disclosure of Confidential Information by one Party does not give the other Party or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in this Agreement.
7.2 Except as expressly stated in this Agreement, neither Party makes any express or implied warranty or representation concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.
7.3 The disclosure of Confidential Information by the Parties shall not form any offer by, or representation or warranty on the part of, that Party to enter into any further agreement with the other Party in relation to the Purpose.
8. INADEQUACY OF DAMAGES
Without prejudice to any other rights or remedies that each Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, each Party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this Agreement.
9. NO OBLIGATION TO CONTINUE DISCUSSIONS
Nothing in this Agreement shall impose an obligation on either Party to continue discussions or negotiations in connection with the Purpose, or an obligation on each Party to disclose any information (whether Confidential Information or otherwise) to the other Party.
10. ENDING DISCUSSIONS AND DURATION OF CONFIDENTIALITY OBLIGATIONS
10.1 If either Party decides not to continue to be involved in the Purpose with the other Party, it shall notify that other Party in writing immediately.
10.2 Notwithstanding the end of discussions between the Parties in relation to the Purpose pursuant to clause 1, each Party’s obligations under this Agreement shall continue in full force and effect for a period of two (2) years from the date of this Agreement.
10.3 The end of discussions relating to the Purpose shall not affect any accrued rights or remedies to which either Party is entitled.
11. NO PARTNERSHIP OR AGENCY
11.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
11.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
12. ASSIGNMENT AND OTHER DEALINGS
Neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
13. ENTIRE AGREEMENT
13.1 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
14. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised Representatives).
15. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. SEVERANCE
16.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
16.2 If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
17. NOTICES
17.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be:
17.1a delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
17.1b sent by e-mail.
17.2 Any notice shall be deemed to have been received:
17.2a if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2b f sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; or
17.2c if sent by e-mail, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. THIRD PARTY RIGHTS
18.1 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.2 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
19.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
20. EXECUTION
Each Party agrees that any Electronic Signatures of the Parties included in this Agreement are intended to authenticate this Agreement in writing and to have the same force and effect as manual signatures.
This Agreement has been entered into by the parties on the date stated at the beginning of it.