The Circle Club and You, each a ‘Party’ and together the ‘Parties’.
(A) The Parties each possess certain confidential proprietary information.
(B) The Parties intend to enter discussions and envisage that they may wish to disclose their confidential proprietary information to the other.
(C) The Parties are willing to disclose the said information on the basis that it is protected as provided in this Agreement.
In consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:
1 Interpretation and Defined Terms
In this Agreement, the terms set out below will have the following meanings:-
- ‘Confidential Information’ means:
- any commercial, technical and other information and data of whatever nature and in whatever form proprietary to the Disclosing Party which is directly or indirectly disclosed or made available by or on behalf of the Disclosing Party to the Receiving Party, whether in writing, in drawings, by site visits, by access to computer software or data or in any other way, including, without limitation, the following:
- in the case of THoLM, information, documentation, samples and/or products relating to anything discussed in a members meeting ,expert clinic, coaching session or 1-1 that is personal information about one’s business that is not in the public’s domaine;
- ‘Disclosing Party’ means the Party disclosing or making available the Confidential Information.
- ‘Purpose’ means discussions between the Parties to evaluate their interest in making appropriate arrangements with each other for possible future collaborations.
- ‘Receiving Party’ means the Party to whom the Disclosing Party is willing to disclose or make available the Confidential Information.
- In this Agreement, clause headings are for convenience only and shall not affect the interpretation of this Agreement.
- References to ‘including’ in this Agreement in the context of a list or description of items shall be construed as meaning ‘including without limiting the generality of the foregoing’.
2 Obligations of Confidentiality
- The Receiving Party will in respect of Confidential Information received from the Disclosing Party:
- hold all Confidential Information in strictest confidence;
- not use any Confidential Information for any purpose other than the Purpose;
- not use any Confidential Information for the benefit of its own business or undertaking, or any third party;
- not disclose Confidential Information to any third party other than to the Receiving Party’s officers, employees and/or professional advisors to the extent necessary for the Purpose and the Receiving Party shall procure that such officers, employees and/or professional advisors involved in the discussions observe the confidentiality and non-use obligations in respect of such Confidential Information to the extent required under this Agreement;
- not to make any copies of any written or other record of any Confidential Information except only to the extent strictly required for the Purpose and provided that all such copies are marked as “CONFIDENTIAL”;
- to the extent permitted by law, notify the Disclosing Party forthwith on becoming aware of any actual, threatened or suspected disclosure or use of any Confidential Information received from the Disclosing Party otherwise than in accordance with this Agreement.
3 Limitations on obligations of confidentiality
- The obligations in Clause 2 do not apply to Confidential Information which:
- at the time of disclosure is in the public domain or becomes part of the public domain through no fault of the Receiving Party or its employees;
- is received by the Receiving Party from a third party without restriction and who does not owe any duty of confidence to the Disclosing Party;
- which is released without restriction by the Disclosing Party to anyone;
- was already in the Receiving Party’s possession prior to its acquisition from the Disclosing Party as evidenced by written records;
- was independently generated by the Receiving Party as evidenced by written records;
- is required to be disclosed by law or a court or other competent authority; or
- is disclosed with prior written consent of the Disclosing Party.
4 No warranty
- The Disclosing Party makes no representation or warranty in relation to any Confidential Information disclosed, its adequacy, accuracy, or suitability for any particular purpose, and (unless expressly agreed in writing), to the extent permitted by law will not be liable for any loss or damage arising from the use of any information howsoever caused.
- The Receiving Party acknowledges and agrees that any breach of this Agreement may cause irreparable harm to the Disclosing Party for which damages may not be an adequate remedy and that the Disclosing Party shall therefore be entitled to the appropriate equitable relief in addition to all other remedies available at law.
- This Agreement shall take effect from 17th September 2020 and shall continue in force for a period of three (3) years thereafter, unless renewed by mutual consent given in writing.
- Either Party may terminate this Agreement at any time by giving the other Party thirty (30) days’ notice in writing of its intention to do so.
- The obligations and restrictions provided in this Agreement shall survive termination or expiry of the Agreement for a period of five (5) years.
6 Ownership and cessation of use
- Nothing contained in this Agreement or any disclosure of or access to the Disclosing Party’s Confidential Information shall constitute the grant of any licence to the Receiving Party nor shall it constitute a transfer of the ownership or copyright in respect of the Confidential Information received from the Disclosing Party other than in relation to use of the same for the Purpose.
- On written request, the Receiving Party will cease use of all Confidential Information in tangible form and at the option of the Disclosing Party return or destroy any Confidential Material in its possession or control or power, together with a statutory declaration/certificate given by a director/officer of the Receiving Party declaring that such documents and things returned or destroyed comprise all the Confidential Information in the Receiving Party’s possession or control.
- This Agreement may not be amended unless in writing signed by the duly authorised officer of each Party.
- The failure or delay of either Party to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time thereafter.
- Neither Party may assign or transfer all or any of its rights or obligations under this Agreement without the prior written consent of the other Party.
- This Agreement constitutes the entire agreement and understanding of the Parties and supersedes all negotiations, prior arrangements, agreements, promises, statements, representations, assurances, warranties and understandings between them relating to the subject matter.
- Nothing in this Agreement will limit or exclude either Party’s liability for:
- fraudulent misrepresentation; and/or
- death or personal injury resulting from negligence.
- If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability or the remaining provisions of this Agreement which will remain in full force and effect.
- The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement, and nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement.
- This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and Wales and the Parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.