MUTUAL NON-DISCLOSURE AGREEMENT
DATE insert date
(in each case a “party” and together the “parties”).
The parties wish to discuss certain matters with one another in relation to the Purpose, which may require each of them to disclose Confidential Information to the other. Each party wishes to ensure that the other maintains the confidentiality of its Confidential Information and, in consideration of the benefits to the parties of the disclosure of the Confidential Information, each party agrees to comply with the following terms.
1.1 The following definitions shall apply in this Agreement:
Confidential Information: all information of any nature (however recorded, preserved or disclosed) disclosed by a party (or its Group Companies) or its Representatives to the other party and/or that other party's Representatives and/or the Representatives of the Group Companies of that other party (either before or after the date of this Agreement) including but not limited to:
(a) the terms of this Agreement, the fact that discussions and/or negotiations are taking place concerning the Purpose and the status of those discussions and/or negotiations;
(b) any information that would be reasonably regarded as confidential relating to:
(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party (or of its Group Companies); and
(ii) the operations, processes, products, prototypes, know-how, designs, trade secrets, techniques or software of the Disclosing Party (or of its Group Companies); and
(c) any information or analysis derived from such information,
but not including any information that:
(d) is or becomes generally available to the public other than as a result of its disclosure 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 nevertheless be treated as Confidential Information); or
(e) was, is or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not bound by confidentiality obligations which prohibit such person from disclosing the information to the Recipient; or
(f) was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or
(g) the Disclosing Party has agreed in writing is not confidential or may be disclosed; or
(h) has been or is developed by or for the Recipient independently of the information disclosed by the Disclosing Party.
Disclosing Party: a party to this Agreement which discloses or makes available, directly or indirectly, Confidential Information, and where such party is a company, the term shall include such party’s Group Companies.
Group Company: in relation to a party which is a company, each and any holding company or subsidiary from time to time of that company, and each and any subsidiary from time to time of a holding company of that company (“holding company” and “subsidiary” shall have the meanings given to them in s1159 of the Companies Act 2006) and “Group Companies” shall be construed accordingly.
Purpose: the parties wish to discuss battery storage and electric powertrain systems for Urban Air Mobility platforms. (adjust as fit).
Recipient: a party to this Agreement which receives or obtains, directly or indirectly, Confidential Information, and where the Recipient is a company, the term shall include the Recipient’s Group Companies.
Representative: in relation to a person, the employees, staff, agents, officers, advisers and other representatives of that person (or that party’s Group Companies).
2.0 OBLIGATIONS OF CONFIDENTIALITY
2.1 The Recipient shall keep the Disclosing Party's Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall, and shall procure that its Group Companies and its and their Representatives shall:
(a) not use or exploit the Confidential Information in any way except for the Purpose;
(b) not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;
(c) not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose;
(d) apply at least the same security measures and degree of care to the Confidential Information as the Recipient applies to its own Confidential Information; and
(e) refrain from reverse engineering, decompiling or disassembling any device, material, software code or any other item that includes or constitutes Confidential Information, save to the extent necessary for the Purpose and with the prior written permission of the Disclosing Party.
2.2 In the event that the Disclosing Party gives its consent to the Recipient to disclose the Disclosing Party’s Confidential Information to a third party, the Recipient shall (i) disclose such
Confidential Information only to the extent for which consent has been given and (ii) procure that such third party complies with the terms of this Agreement.
2.3 The Recipient may only disclose the Disclosing Party's Confidential Information to those of its Representatives who need to know it for the Purpose, and provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure and obtains from its Representatives enforceable undertakings to keep the Confidential Information confidential in terms at least as extensive and binding upon the Representatives as the terms of this Agreement are upon the parties; and
(b) it shall procure such Representatives' compliance with the obligations set out in this Agreement.
2.4The Recipient may disclose the Disclosing Party’s Confidential Information to the extent that the same is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction (including without limitation any relevant securities exchange) provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 2.4, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
2.5 The Recipient shall be liable to the Disclosing Party for the actions or omissions of its Representatives under this Agreement as if they were the actions or omissions of the Recipient.
3.0 RETURN OF INFORMATION
3.1 At the Disclosing Party’s request, the Recipient shall, and shall procure that its Group Companies shall: (i) destroy or return to the Disclosing Party all documents and materials (and any copies) to the extent that they contain, reflect, incorporate, or are based on the Disclosing Party's Confidential Information; and (ii) (to the extent possible) erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form subject to the ability to retain one (1) copy solely for audit/legal compliance purposes.
4.0 RESERVATION OF RIGHTS AND ACKNOWLEDGEMENT
4.1 All Confidential Information shall remain the property of the Disclosing Party and each party reserves all rights in its Confidential Information. No rights, including, but not limited to, intellectual property rights, in respect of a party's Confidential Information or the Confidential Information of that party’s Group Companies are granted to the other and no obligations are imposed on the Disclosing Party other than those expressly stated in this Agreement.
4.2 Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information, or the accuracy or completeness of it.
4.3 The Recipient acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this Agreement.
5.0 TERM AND TERMINATION
5.1 This Agreement shall commence on the date of this Agreement and shall continue in full force and effect for twelve (12) months after the date of this agreement . Notwithstanding the foregoing, clause 3.1 and the obligations of confidentiality contained within this Agreement shall remain in force for five (5) years after the date of termination and shall continue notwithstanding the expiry of this or any other agreements between the parties or the conclusion of the Purpose.
5.2 Termination of this Agreement shall not affect any accrued rights or remedies to which either party is entitled.
6.0 Data Protection
Each party shall comply at all times with the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679, and any relevant replacement/subsequent European and/or UK privacy legislation, for the purposes of performing its obligations and exercising its rights under these terms and conditions (“Data Protection Legislation”) and shall not perform its obligations under this Agreement in such a way as to cause the other party to breach any of its obligations under the Data Protection Legislation.
6.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered to the party required to receive it at its address as set out at the head of this Agreement and, in the case of VRCO, shall be marked for the attention of “The Directors”.
7.0 ENTIRE AGREEMENT
7.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to the subject matter of this Agreement. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
8.1 No variation of this Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
9.0 NO WAIVER OR ASSIGNMENT
9.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
9.2 Except as otherwise provided in this Agreement, no party may assign, sub-contract or deal in any way with any of its rights or obligations under this Agreement or any document referred to in it.
10.0 THIRD PARTY RIGHTS
10.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it, other than a Group Company of VRCO. The consent of any third party, including any Group Company, shall not be required for the variation or termination of this Agreement, even if that variation or termination affects the benefit conferred on the relevant third party (including any Group Company).
11.0 GOVERNING LAW AND JURISDICTION
11.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the date stated above.
Signed by an authorised signatory for and on behalf of VRCO LTD
Signed by an authorised signatory for and on behalf of