Mutual Non-Disclosure and Confidentiality Agreement
This Non-Disclosure and Confidentiality Agreement (“Agreement”) is between 1E Limited. (together with its affiliates, “1E”) and Attendees of the 19th November 2020 MVP day (together with its affiliates, “Counterparty”).
WHEREAS, 1E and Counterparty are engaged in discussions (the “Discussions”) relating to a potential business transaction (the “Transaction”); and
WHEREAS, 1E or Counterparty (as applicable, the “Recipient”) may, from time to time, be provided or otherwise have access to non-public, proprietary information about or from the other (as applicable, the “Discloser”), and as a condition to furnishing such information, it is required that Recipient agrees to treat such information confidentially.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:
- Definition of Confidential Material. As used herein, the term “Confidential Material” means any information (whether in written, electronic, oral or other form) that is transmitted by or on behalf of Discloser, before or after the date hereof, whether denominated as confidential or not, which could be reasonably understood by Recipient to be proprietary and confidential, including, without limitation, information concerning Discloser’s and its customers’, vendors’ or other third parties’ business affairs or plans, work product, analyses, sales data, financial data, product/services specifications and designs, customer data, personnel information, computer programs, software, codes, reports, processes, screen layouts, printouts, memoranda, notes, correspondence, marketing plans, studies, derivative works, documents, training materials, records, information regarding business transactions, and all Nonpublic Personal Information. The term Confidential Material does not include any information that (i) is already known to the public at the time of disclosure or thereafter becomes generally available to the public (other than as a result of its disclosure in breach of this Agreement); (ii) was or becomes available to Recipient from a person not otherwise known to Recipient after reasonable inquiry to be prohibited from transmitting the information to Recipient; or (iii) is produced as a result of Recipient’s independent development without use of any Confidential Material. As used in this Agreement, “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or individual.
- Use and Non-Disclosure. Recipient shall use the Confidential Material for the sole purpose of evaluating the Transaction or providing services approved by Discloser. Recipient agrees not to, and to cause its relevant parent, subsidiaries, partners, officers, directors, employees and other affiliates and representatives (the “Authorised Group”) not to, disclose the Confidential Material to any person, directly or indirectly, other than those members of Recipient’s Authorised Group who have a need to know such information in order to evaluate the Transaction or provide services approved by Discloser. Prior to receiving any Confidential Material, the Authorised Group must agree in writing to be bound by the terms of this Agreement or a similar confidentiality agreement with terms materially equivalent to those contained herein. Recipient shall be responsible for the compliance of its Authorised Group with the confidentiality obligations hereunder. In the event Recipient is required under any applicable law, regulation, or legal process to disclose any Confidential Material, Recipient will, unless legally prohibited, notify Discloser of such fact as promptly as practicable, afford Discloser the opportunity to contest such disclosure, cooperate with Discloser with respect to any such contest at Discloser’s expense, and disclose only that portion of the Confidential Material that, in the opinion of Recipient’s counsel, it must disclose to comply.
- Standard of Care. Recipient agrees that the information contained in the Confidential Material shall be kept confidential and maintained by Recipient in the strictest confidence with at least the same degree of care with which it protects its own confidential material of like import, but in no event less than a commercially reasonable standard of care. To the extent that Recipient is permitted to retransmit any Confidential Material it receives from Discloser, the mode of retransmission must be at least as secure as the mode by which Discloser transmitted the Confidential Material to Recipient.To the extent that Recipient receives any Personally Identifiable Information, Recipient agrees that it will maintain commercially appropriate physical, technical and administrative safeguards designed to (i) ensure the security and confidentiality of such Personally Identifiable Information in accordance with all applicable laws and regulations, including but not limited to the General Data Protection Regulations 2018 (GDPR), (ii) protect against any anticipated threats or hazards to the security or integrity of such Personally Identifiable Information, and (iii) protect against unauthorised access to or use of such Personally identifiable Information that could result in substantial harm or inconvenience to any individual whose Personally Identifiable Information is made available to Discloser. Recipient will notify Discloser of any unauthorised use of or access to Personally Identifiable Information provided by or on behalf of Discloser within a commercially reasonable amount of time after its discovery of such unauthorised use or access.
- Rights to Confidential Material. Neither the execution of this Agreement nor the disclosure of Confidential Material hereunder shall be construed: (i) as an obligation on Discloser to provide Recipient with access to any additional Confidential Material; (ii) as granting to Recipient any right, interest or license in or to the Confidential Material; or, (iii) as creating an agency, partnership or joint venture relationship between the parties.
- Continuation of Obligations. Recipient shall be bound by the obligations contained in this Agreement during the course of the Discussions, during the term of any ensuing business relationship, and upon termination of the Discussions or any ensuing business relationship in accordance with Section 12. Upon termination of this Agreement, or at any time upon the written request of Discloser, Recipient shall promptly destroy or deliver to Discloser all Confidential Material (whether prepared by Recipient or any other person); provided, however, that, subject to the continuation of the confidentiality obligations contained herein, (i) Recipient may retain an archival copy of Discloser’s Confidential Material in accordance with its record retention policies or as may be required by law for audit, legal or regulatory compliance purposes, and (ii) Recipient shall not be required to remove copies of the Confidential Material from its backup media and servers, where doing so would be commercially impracticable.
- Remedy for Breach. The information contained in the Confidential Material constitutes a valuable asset of Discloser and the unauthorised disclosure or improper use of this information may cause irreparable damage and harm for which a remedy at law may be inadequate. Recipient agrees to indemnify and hold Discloser harmless for any losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by reason of a breach or threatened breach of this Agreement by it or any of its Authorised Group. Accordingly, Discloser may seek equitable relief, including an injunction, restraining Recipient from such breach without the necessity of posting any bond therefor. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement, but shall be in addition to all other remedies available at law. Any failure or delay in exercising any rights hereunder, or any single or partial exercise of such rights, shall not operate as a waiver of such rights. Any waiver concerning the breach of an obligation contained herein shall not be construed as a waiver of any other or subsequent breach.
- Governing Law. This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by, and construed, interpreted and enforced in accordance with the laws of England in any and all actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated hereby (and agree not to commence any action, suit or proceeding relating thereto except in such courts).
- Modifications and Assignments. Any modification or amendment to this Agreement must be in writing and signed by both parties to this Agreement. Neither party shall transfer or assign this Agreement or any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other party; provided that either party shall have the right to assign this Agreement and the obligations hereunder, without the other party’s prior written consent, to an affiliate or to any successor by way of merger or consolidation or the acquisition of all or substantially all of the business and assets of such party relating to the Agreement, unless such successor could reasonably be construed to be competitive with the business of the other party or any of its affiliates. This Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs and permitted assigns. No third party beneficiary is intended or shall be construed as created by virtue of this Agreement.
- Further Obligations. Unless otherwise required by law, neither party will disclose to any person, other than the Authorised Group, either the fact that Discussions are taking place concerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction or an actual business relationship, including the status thereof and the fact that the Confidential Material has been made available. Nothing in this Agreement shall obligate any party in any manner whatsoever with respect to the consummation of the Transaction.
- Invalidity or Unenforceability of Certain Provisions. The invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other provision of this Agreement. This Agreement may be executed in multiple counterparts, including in electronic form, each of which shall be deemed to be an original and such counterparts together will constitute one and the same agreement.
- Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof, supersedes any prior or contemporaneous oral or written agreements with respect to such. This Agreement shall remain in full force and effect unless and until a subsequent, written agreement, if any, expressly providing for confidentiality is executed by the parties hereto.
- Term. The term of this Agreement shall be for a period of three years after the termination of the Transaction or termination of Discussions, whichever is later; provided, however, that any obligations of confidentiality relating to the Nonpublic Personal Information shall survive indefinitely.