MUTUAL NON-DISCLOSURE AGREEMENT
“XXXX UK”:
XXXX UK, a registered charity in England and Wales, registration number xxxxx, whose registered office is at xxxxx “Company” or “Individual” hereinafter referred to as “Contracting Party”:
[insert name and address details]
BACKGROUND
(A) The parties intend to enter into discussions relating to the Purpose which will involve the exchange of Confidential Information between them.
(B) The parties have agreed to comply with this agreement and the terms set out in the Non-Disclosure Details listed below and the Standard Terms attached in connection with the disclosure and use of Confidential Information.
Non-Disclosure Details
Definitions
Effective Date:
[insert date on which Agreement will take effect]
Purpose:
[state purpose in relation to which the Confidential Information may be used, for example, the evaluation or establishment of collaboration in respect of a particular project].
IN WITNESS whereof the parties or their duly authorised representatives have entered into this Agreement on the Effective Date.
Signed by the duly authorised representative of
XXXX
Name:
Signature:
Position:
Date:
Signed by [insert name of Contracting Party]
Name:
Signature:
Position:
Date:
Standard Terms
These Standard Terms apply to the mutual exchange and disclosure of Confidential Information between XXXX UK, and the Contracting Party as detailed in the Non-Disclosure Details to the exclusion of any other terms that the Contracting Party seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1 Definitions and Interpretation
1.1 In this Agreement, the definitions set out in this clause 1 and in the Non-Disclosure Details on the front sheet shall have the meaning specified:
“Applicable Laws” means (separately) all applicable laws, statutes or regulations in force from time to time relating to the avoidance of bribery and corruption, money laundering, tax evasion, slavery and human trafficking, including without limitation the Bribery Act 2010, the Modern Slavery Act 2015, the Proceeds of Crime Act 2002, The Money Laundering Regulations 2017 and the Criminal Finances Act 2017;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information” means all confidential information relating to the Purpose which the Disclosing Party or its Representatives or any of its Group Companies, or their Representatives directly or indirectly discloses, or makes available, to the Receiving Party or its Representatives or any of its Group Companies, or their Representatives, before, on or after the date of this Agreement and whether in writing or otherwise. This includes without limitation:
(a) the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;
(b) the existence and terms of this Agreement;
(c) all confidential or proprietary information relating to:
(i) the business, affairs or similar, customers, clients, suppliers, or plans, intentions, or market opportunities of the Disclosing Party or of any of the Disclosing Party’s Group Companies; and
(ii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Disclosing Party, or of any of the Disclosing Party’s Group Companies;
(d) any reports, documents, artwork, information, findings, print media, electronic media, data or information relating to systems, operations, or analysis derived from Confidential Information; and
(e) any other information that is identified as being of a confidential or proprietary nature.
“Data Protection Law” means all applicable legislation protecting the fundamental rights and freedoms of individuals in relation to their personal data and right to privacy (including, but not limited to, the Data Protection Act 2018 and the GDPR) as amended and updated from time to time.
“Disclosing Party” a party to this agreement when it discloses its Confidential Information, directly or indirectly, to the other party.
“GDPR” means the General Data Protection Regulation (2016/679) and ‘Articles’ refers to the articles of the GDPR. The terms “personal data”, “data subject”, “processor”, “controller”, “processing”, “personal data breach”, “pseudonymisation”, “special categories of data” and “supervisory authority” have the meanings set out in Article 4 of the GDPR.
“Group” in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
“Group Company” in relation to a company, any member of its Group.
“Receiving Party” a party to this agreement when it receives Confidential Information, directly or indirectly, from the other party.
“Representative(s)”: in relation to each party and any member of its Group, its officers and employees that need to know the Confidential Information for the Purpose; its professional advisers or consultants who are engaged to advise that party and/or any member of its Group in connection with the Purpose; its contractors and sub-contractors engaged by that party and/or any member of its Group in connection with the Purpose; and 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 any particular statute, regulation or law is a reference to such statute, regulation or law as it is in force for the time being taking account of any amendment, extension, application or re-enactment and 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 email.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of another person (or its nominee) by way of security or in connection with the taking of security; or its nominee.
1.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.8 In the event of any inconsistency between any of the provisions of this Agreement, the provisions of the Non-Disclosure Details shall take precedence over the Standard Terms.
2 Confidential Information
2.1 The Receiving Party shall treat and undertake to keep all Confidential Information as secret and confidential and shall not, without the Disclosing Party’s written consent, directly or indirectly communicate or disclose any Confidential Information to any other person other than in accordance with the terms of this Agreement.
2.2 The Receiving Party shall only use the Confidential Information for the Purpose or for the subsequent performance of any contract between the parties in relation to the Purpose and not use or exploit the Confidential Information in any way except for the Purpose;.
2.3 The Receiving Party shall 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 Disclosing Party; and or
2.4 Notwithstanding clause 2.1, the Receiving Party may disclose Confidential Information:
2.4.1 to those of its Representatives who strictly need to know the Confidential Information for the Purpose provided that the Receiving Party shall ensure that such Representatives are made aware prior to the disclosure of any part of the Confidential Information, that the same is confidential and that they owe a duty of confidence to the Disclosing Party no less strict than those set out in this Agreement, and in particular clauses 2.1 and 2.2 of this Agreement, and that the Receiving Party shall at all times remain liable for any actions or omissions of such Representatives in relation to the Confidential Information that would constitute a breach of this Agreement as if they were the actions or omissions of the Receiving Party; or
2.4.2 to the minimum extent required by law, or an order of any court of competent jurisdiction or the rules of any applicable regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction, subject to clause 2.5 below or
2.4.3 pursuant to the laws or regulations of any country to which its affairs are submitted.
2.5 In the event that the Receiving Party is required to disclose any Confidential Information in accordance with clause 2.4.2 or 2.4.3 above, it shall promptly notify the Disclosing Party and co-operate with the Disclosing Party regarding the form, nature, content and purpose of such disclosure or any action which the Disclosing Party may reasonably take to challenge the validity of such requirement.
2.6 If a party is unable to inform the other party before Confidential Information is disclosed pursuant to clause 2.4.2 or clause 2.4.3 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.
2.7 The Receiving Party may, provided that it has reasonable grounds to believe that the Disclosing Party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose the Disclosing Party’s Confidential Information to the Serious Fraud Office without first notifying the Disclosing Party of such disclosure.
2.8 In the event that any Confidential Information shall be copied, disclosed or used otherwise than as permitted under this Agreement then, upon becoming aware of the same, without prejudice to any rights or remedies of the Disclosing Party, the Receiving Party shall as soon as practicable notify the Disclosing Party of such event and, if requested, take such steps (including the institution of legal proceedings) as shall be necessary to remedy (if capable of remedy) the default and/or to prevent further unauthorised copying, disclosure or use.
2.9 All Confidential Information shall remain the property of the Disclosing Party and its disclosure shall not confer on the Receiving Party or any of its Representatives any rights or licence in respect of any patents, designs, copyright or intellectual property rights, over the Confidential Information whatsoever beyond those contained in this Agreement.
2.10 The obligations of confidentiality shall not apply to any Confidential Information which the Receiving Party can prove by written records:
2.10.1 is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Receiving Party or its Representatives or by any of the Receiving Party’s Group Companies or their 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);
2.10.2 it was available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party;
2.10.3 it was, is, or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not under any confidentiality obligation in respect of that information;
2.10.4 it was lawfully in the possession of the Receiving Party (as can be demonstrated by its written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to its being so disclosed by the Disclosing Party;
2.10.5 it is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party; or
2.10.6 the parties agree in writing that the information is not confidential.
3 Records and Return of Information
3.1 The Receiving Party shall establish and maintain adequate security measures (including any reasonable security measures proposed by the Disclosing Party from time to time) to safeguard the Confidential Information from unauthorised access or use and the Receiving Party warrants that such adequate security measures provides adequate protection from unauthorised disclosure, copying or use.
3.2 The Receiving Party shall, within 5 days of receipt of written notice from the Disclosing Party return to the Disclosing Party or destroy all documents and materials, and any copies containing, reflecting, incorporating or based on the Disclosing Party’s Confidential Information including erasing all the Disclosing Party’s Confidential Information from any computer, word processor, communication systems, or stored in electronic form on systems or data storage services provided by third parties or other device whatsoever into which it was copied, read or programmed by the Receiving Party or on its behalf by its Representatives as permitted under clause 2.4.1 above and shall provide a written confirmation to the Disclosing Party that such action has been taken within 21 days of the written notice.
3.3 Nothing in clause 3.2 shall require the Receiving Party to return or destroy any documents and materials containing or based on the Disclosing Party’s Confidential Information that the Receiving Party is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction, 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 3.3.
4 No Obligation To Continue Disclosure
4.1 Nothing in this Agreement shall impose an obligation on either party to continue disclosure in connection with the Purpose, or an obligation on each party or any of its Group Companies to disclose any information (whether Confidential Information or otherwise) to the other party.
5 Ending Discussions And Duration Of Confidentiality Obligations
5.1 Either party may at any time by notice to the other, in writing but not by email, terminate any further disclosure of information for the Purpose, without having to give any reasons for doing so or incurring any liability to any other party.
5.2 Notwithstanding the end of discussions between the parties in relation to the Purpose pursuant to clause 5.1, each party’s obligations under this Agreement shall continue in full force and effect for a period of five years from the date of this Agreement.
5.3 The end of discussions relating to the Purpose shall not affect any accrued rights or remedies to which either party is entitled under this Agreement.
6 Disclaimer
6.1 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.
6.2 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.
6.3 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.
7 Inadequacy of Damages
7.1 Without prejudice to any other rights or remedies of the Disclosing Party, the Receiving Party acknowledges and agrees that damages may not be an adequate remedy for any breach by it of the provisions of this Agreement and that the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the Receiving Party and no proof of special or liquidated damages shall be necessary for the enforcement of the rights under this Agreement.
7.2 Nothing contained in this Agreement shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available by it, either at law or in equity, for any such threatened or actual breach of this Agreement including specific performance, recovery of damages or otherwise.
8 Data Protection
8.1 In the event there is to be any collection, transfer or processing of any personal data in connection with the Purpose under this Agreement, the parties shall enter into a separate Data Processing Agreement which shall govern the processing of such personal data in compliance with Data Protection Law.
8.2 In the event of a breach of Data Protection Law which results in damage to data subjects, unless the Receiving Party is not responsible for the event which led to the damage, they will be liable for such damage and must ensure the data subject is effectively compensated.
9 Costs
9.1 Each party shall pay its own costs incurred in connection with this Agreement, whether or not it proceeds, including without limitation, the preparation and negotiation of this Agreement and any documents contemplated by it.
10 Entire Agreement
10.1 This Agreement and any documents referred to in it constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersede, cancel and replace all prior promises, assurances, warranties, representations, understandings, agreements, licences, negotiations and discussions between the parties relating to it. Each party confirms and acknowledges that it has not been induced to enter into this Agreement by, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) not expressly incorporated into it. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.
11 Assignment and other dealings prohibited
11.1 This Agreement is personal to the parties and no party shall, without the prior written consent of the other party (such consent not to be unreasonably conditioned, withheld or delayed), assign, transfer, sub-contract, mortgage, charge or deal in any other manner with this Agreement or any of its rights and obligations under or arising out of this Agreement (or any document referred to in it), or purport to do any of the same.
11.2 Each party that has rights under this Agreement is acting on its own behalf and not for the benefit of another person.
12 Waiver
12.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Failure or delay by either party to exercise or enforce any right or remedy under this Agreement shall not constitute a waiver of such right or remedy nor operate so as to prevent the exercise or enforcement of such right or remedy on any other occasion. 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.
13 Severance
13.1 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
14 Variation
14.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15 No Legal Partnership or Agency
15.1 Except as expressly provided, nothing in this Agreement is intended to, or shall operate to, create a legal partnership between the parties, or to authorise either party to act as Representative for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
16 Counterparts
16.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement.
17 Third Party Rights
17.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
18 Force Majeure
18.1 Subject to clauses 18.2 and 18.3, neither party shall be in breach of this Agreement if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control (a “Force Majeure Event”) including, insofar as beyond such control but without prejudice to the generality of the foregoing expression, strikes of third party provider staff, lock-outs or other industrial disputes concerning third party provider staff, failure of or significant disruption to a utility service or transport network (including shipping), act of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, volcanic ash, earthquake, explosion, terrorist act, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or global warming.
18.2 A party that is subject to a Force Majeure Event shall not be in breach of this Agreement provided that:
18.2.1 it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
18.2.2 it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
18.2.3 it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
18.3 Nothing in this clause 18 shall excuse a party for non-performance (or other breach) of this Agreement if such non-performance (or other breach) results from the acts or omissions of any of that party’s consultants and/or sub-contractors (except where such acts or omissions are caused by any of the circumstances specifically listed in clause 18.1).
18.4 If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than 30 days, the party not affected by the Force Majeure Event may terminate this agreement by giving five days’ written notice to the affected party.
19 Compliance with Legislation and Reporting Requirements
19.1 In performing the obligations under this Agreement, each party shall fully comply with, and (so far as is reasonably possible) shall ensure that any of its suppliers and sub-contractors shall comply with, all Applicable Laws as they relate to this Agreement and each party shall notify the other party as soon as they become aware of any actual or suspected breaches of the Applicable Laws in connection with this Agreement.
19.2 The Contracting Party acknowledges that AFFCAD UK is required to comply with the Charity Commission’s Serious Incident Reporting requirements and shall notify AFFCAD UK as soon as possible if they become aware of any event (actual or alleged) which results in or creates a significant risk for harm to AFFCAD UK’s beneficiaries, staff, volunteers and others who come into contact with AFFCAD UK through its work, loss of AFFCAD UK’s money or assets, damage to AFFCAD UK’s property and/or harm to AFFCAD UK’s work or reputation and whether or not any notification has been made, agrees to assist AFFCAD UK, including in relation to any dealings AFFCAD UK has with the Charity Commission, with any serious incident report made by AFFCAD UK in relation to this Agreement.
19.3 Any breach of this clause 19 shall give rise to the right to terminate this Agreement for material breach.
20 Safeguarding and Child Labour
20.1 The Contracting Party recognises that everyone has the right to protection from harm, abuse, harassment and exploitation and warrants that it will take all reasonable action to safeguard and protect from harm, abuse, exploitation and harassment anyone who is in involved with, or comes into contact with, its operations. The Contracting Party shall implement due diligence procedures for its own suppliers, sub-contractors and other participants in its supply chain, to minimise as far as is reasonably possible the risk of harm, abuse, exploitation and harassment occurring in its supply chain.
20.2 The Contracting Party recognises that all children below the minimum working age (normally the end of compulsory schooling) have a right to complete a basic education and to physical, social, mental, psychological and spiritual development, and undertakes that it will take all reasonable action to ensure that children are not deprived of an education and/or separated from their families through labour in support of its operations, and shall implement due diligence procedures for its own suppliers, sub-contractors and other participants in its supply chain, to minimise as far as is reasonably possible the risk of harm arising through child labour in its supply chain.
21 Notice
21.1 A Notice or communication given under this Agreement shall be in writing, sent for the attention of the person signing this Agreement on behalf of the Receiving Party and to the address given on the front page of this Agreement (or such other address or person as the relevant party may notify to the other party) and shall be delivered:
21.1.1 personally, in which case the notice will be deemed to have been received at the time of delivery;
21.1.2 by commercial courier, in which case the notice will be deemed to have been received on the date and at the time of signature of the courier’s delivery receipt; or
21.1.3 by email followed by recorded delivery or registered first-class post, in which case the notice will be deemed to have been received at 09:00 in the country of receipt on the second (2nd) normal Business day in the country specified in the recipient’s address for notices after the date of posting.
21.2 To prove service of notice, it is sufficient to prove that the envelope containing the notice was properly addressed and posted or handed to the courier.
21.3 The provisions of this clause 21 shall not apply to the service of any proceedings or other documents in any legal action.
22 Governing Law and Dispute Resolution Procedure
22.1 This Agreement and any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of England and Wales.
22.2 Subject to the remainder of this clause 22, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual dispute or claim) that arises out of or in connection with this Agreement or its subject matter.
22.3 In the event that any claim or dispute arises out of or in connection with this Agreement, the parties shall, following service of written notice by one party on the other, attempt to resolve amicably by way of good faith negotiations and discussions any such dispute or claim as soon as reasonably practicable (and in any event within 14 calendar days after such notice or by such later date as the parties may otherwise agree in writing). If the parties are unable to resolve the dispute or claim in accordance with this clause 22.3, either party may commence proceedings in accordance with clause 22.2.
22.4 Nothing in this clause 22 shall prevent either party from applying at any time to the court for injunctive relief on the grounds of infringement, or threatened infringement, of the other party’s obligations of confidentiality contained in this Agreement or infringement, or threatened infringement, of the applicant’s intellectual property rights.
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AI Response: