CONFIDENTIALITY AGREEMENT

 

Parties

(1)              CO-OPERATIVE GROUP LIMITED a society registered in England and Wales under the Co-operative and Community Benefit Societies Act 2014 with number 525R whose registered office is at 1 Angel Square, Manchester M60 0AG (the Discloser); and

 

(2)             The individual or legal entity registered as a user of the Project Palio data room and authorised to access the Confidential Information disclosed in connection with Project Palio (the Recipient),

 

each of the Discloser and the Recipient being a party and together the Discloser and the Recipient are the parties.

 

Background

 

A                 The Discloser wishes to disclose Confidential Information to the Recipient for it to use strictly for the Purpose.

 

B                 The Discloser wishes to regulate the use and preserve the confidentiality of the Confidential Information.

 

1                 Definitions and interpretation

 

1.1             Definitions

In this Agreement:

Affiliate	means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity;
Authorised Persons	means any of the officers, directors, members, partners, employees, consultants, agents, Representatives or professional advisers of the Recipient;
Business Day	means a day other than a Saturday, Sunday or bank or public holiday in England or Wales;
Confidential Information	means all information of a confidential nature (in whatever form) which relates to the Purpose and is disclosed directly or indirectly by the Discloser, its Representatives or its Affiliates to the Recipient or the Recipient’s Authorised Persons including: (a)              any know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind; (b)              all information produced, developed or derived from information disclosed pursuant to this Agreement; (c)              all information agreed to be, or marked as, confidential; (d)              any information the Recipient or itsAuthorised Persons knows, or could reasonably be expected to know, is confidential; and (e)              the terms and existence of this Agreement. but excluding any information which: (a)              is, or was already known or available to the Recipient, otherwise than pursuant to or through breach of any confidentiality obligation owed to the Discloser; (b)              is, or becomes, in the public domain other than through any breach of this Agreement (save that any publicly available information shall be classified as Confidential Information where it is compiled in a form that is not in the public domain); (c)              is disclosed to the Recipient without any obligation of confidence to the Discloser by a third party who is not itself under or in breach of any obligation of confidentiality; (d)              is developed by or on behalf of the Recipient in circumstances where the developing party has not had direct or indirect access to the information disclosed, provided that the Recipient provides satisfactory evidence of the same to the Discloser; (e)              the Discloser agrees in writing does not constitute Confidential Information.
Control	means the beneficial ownership of more than 50% of the issued share capital of a company and Controls, Controlled and under common Control shall be interpreted accordingly;
Losses	means all damages, liabilities, demands, costs, expenses, claims, actions and proceedings (including all consequential, direct, indirect, special or incidental loss or punitive damages or loss, legal and other professional fees, cost and expenses, fines, penalties, interest and loss of profit or any other form of economic loss (including loss of reputation));
Purpose	means discussions around the potential purchase of certain properties as part of Project Palio;
Representatives	means the Discloser’s and its Affiliates’ employees, officers, advisers, agents or other Representatives;

 

1.2             Interpretation

 

In this Agreement:

 

1.2.1        the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;

 

1.2.2        a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns

 

1.2.3        a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

 

1.2.4        a reference to a gender includes each other gender;

 

1.2.5        words in the singular include the plural and vice versa;

 

1.2.6        any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and

 

1.2.7        a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form including email.

 

2                 Provision and use of confidential information

 

2.1             The Discloser may disclose Confidential Information to be used strictly for the Purpose.

 

2.2             In consideration of any disclosures of Confidential Information pursuant to clause 2.1 and subject to clause 3, the Recipient undertakes that it shall, and shall procure that its Authorised Persons and Affiliates shall:

 

2.2.1        keep the Confidential Information confidential at all times;

 

2.2.2        not (without the Discloser’s prior written consent) disclose (whether directly or indirectly) any Confidential Information (including, without limitation, disclosure of the Confidential Information by way of its use as input training data and/or as prompts in any generative artificial intelligence tooling or technologies);

 

2.2.3        not disclose (whether directly or indirectly) the Confidential Information or allow it to be disclosed in whole or in part to any third party without the Discloser’s prior written consent;

 

2.2.4        take and maintain proper and reasonable measures to ensure the confidentiality of the Confidential Information, including any security measures requested in writing by the Discloser from time to time;

 

2.2.5        not use, seek to derive benefit or commercial advantage from the Confidential Information in whole or in part other than strictly for the Purpose;

 

2.2.6        not copy or reproduce in any form the Confidential Information except to the extent strictly necessary for the Purpose (and the Recipient acknowledges that any such copies or reproductions are the property of the Discloser);

 

2.3             The Discloser and its Affiliates make no representation and give no warranty concerning the accuracy, efficacy, or completeness of the Confidential Information.

 

2.4             The Discloser is not obliged to update or correct any inaccuracies in any Confidential Information.

 

2.5             The Recipient’s obligations under this Agreement shall continue in full force and effect during the term of the Agreement and until such time as the Confidential Information shall cease to be confidential in nature.

 

2.6             The Recipient agrees that nothing contained in this Agreement and no Confidential Information supplied by the Discloser to the Recipient shall oblige either party to enter into any further agreement or negotiation with the other or to refrain from entering into an agreement with any third party.

 

3                 Authorised disclosures

 

3.1             The Recipient may disclose the Confidential Information to those of its Authorised Persons who need to know it for the Purpose, provided that the Recipient:

 

3.1.1        informs them beforehand of both the confidential nature of the Confidential Information and the duties of confidence under this Agreement;

 

3.1.2        ensures that the Authorised Persons undertake to comply with clause 2 of this Agreement as if they were a party;

 

3.1.3        agrees that it will be liable for any breach, actions or omissions of its Authorised Persons;

 

3.1.4        if required by the Discloser, procures that any Authorised Person enters into a confidentiality agreement directly with the Discloser in similar terms to those set out in this Agreement;

 

3.1.5        keeps a written account of each disclosure;

 

3.1.6        advises the Discloser immediately upon becoming aware of any potential or actual breach by an Authorised Person; and

 

3.1.7        upon any request by the Discloser, provides satisfactory evidence of compliance with this clause 3.1.

 

3.2             The Recipient may disclose any Confidential Information which:

 

3.2.1        it is required to disclose by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction; or

 

3.2.2        the Discloser expressly agrees in writing may be disclosed, provided that such permission is provided in advance of any disclosure by the Recipient.

 

3.3             In the event that the Recipient becomes legally compelled to disclose any of the Confidential Information pursuant to clause 3.2.1, then to the extent permitted by law the Recipient shall give the Discloser prompt written notice of the fact so that the Discloser may take such steps to prevent such disclosure as it deems appropriate and the Recipient shall co-operate with the Discloser in such manner as the Discloser may reasonably require for this Purpose.

 

4                 Indemnity

 

The Recipient shall indemnify and keep indemnifiedon demandand hold harmless the Discloserand its Affiliates from and against all Losses suffered or incurred by the Discloser and its Affiliates arising out of or in connection with any act or omission by the Recipient or any of its Authorised Persons in connection with this Agreement.

 

5                 Equitable relief

 

The Recipient recognises that any breach or threatened breach of this Agreement may cause the Discloser(or its Affiliates)irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the Recipient agrees that the Discloser and its Affiliates are entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

 

6                 Termination

 

6.1             This Agreement shall expire or terminate on the earliest of:

 

6.1.1        the date on which the parties agree that the Purpose has been fulfilled;

 

6.1.2        the date specified in a written notice of termination served by one party on the other, being a date not less than one month following the date of service of such a notice;

 

6.1.3        immediately upon service of a written notice served by the Discloser on the Recipient following a material breach of this Agreement by the Recipient; and

 

6.1.4        immediately upon service of a written notice of termination served by the Discloser on the Recipient if the Recipient contests the secret or confidential nature of the Confidential Information.

 

7                 Return and destruction of information

 

7.1             Upon the expiry or termination of this Agreement (howsoever caused) or upon receipt by the Recipient of a written demand from the Discloser, and without prejudice to clause 2.5 of this Agreement:

 

7.1.1        the Recipient must return or procure the return to the Discloser or, as the Discloser may require, destroy or procure the destruction of any and all materials containing the Confidential Information including any copies;

 

7.1.2        if the Discloser requires, the Recipient must provide the Discloser with a certificate, or such other evidence as the Discloser may reasonably require, duly signed or executed by an officer of the Recipient confirming that the Recipient has complied with all of its obligations under this Agreement, including those related to return, destruction and deletion of Confidential Information and media;

 

7.1.3        the Recipient must delete or procure the deletion of all electronic copies of Confidential Information; and

 

7.1.4        the Recipient must make, and procure that the Authorised Persons shall make, no further use of the Confidential Information.

 

8                 Entire agreement

 

8.1             The parties agree that this Agreement and constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

 

8.2             The Recipient acknowledges that it has not entered into this Agreementor in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. The Recipient shall not have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

 

8.3             Nothing in this Agreement purports to limit or exclude any liability for fraud.

 

9                 Further assurance

 

Each party shall, at the request of the other, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.

 

10              Variation

 

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

 

11              Assignment and transfer of rights

 

The Discloser may, but the Recipient shall not (without the Discloser’s prior written consent), assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part.

 

12              Cumulative rights

 

The rights and remedies provided for in this Agreement are cumulative with, and not exclusive of, any rights or remedies otherwise provided by law or in equity. No exercise by a party of any one right or remedy shall operate so as to hinder or prevent the exercise by it of any other right or remedy.

 

13              Set off

 

Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

 

14              No partnership or agency

 

The parties are independent persons and are not partners, principal and agent or employer and employee, and this Agreement does not establish any joint venture between them, other than the contractual relationship expressly provided for in it. The Recipient shall not have, nor shall represent that it has, any authority to make any commitment on the Discloser’s behalf.

 

15              Severance

 

15.1          If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

 

15.2          If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

 

16              Waiver

 

16.1          No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

 

16.2          No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.

 

16.3          A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the Purpose for which it is given.

 

17              Compliance with law

 

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its Representatives and Authorised Persons will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 17 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or their Representatives or Authorised Persons).

 

18              Counterparts

 

18.1          This Agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement.

 

18.2          Each party may evidence their signature of this Agreement by transmitting by email a signed signature page of this Agreement in PDF format together with the final version of this Agreement in PDF or Word format, which shall constitute an original signed counterpart of this Agreement. Each party adopting this method of signing shall, following circulation by email, provide the original, hard copy, signed signature page to the other parties as soon as reasonably practicable.

 

19              Announcements

 

Neither party will make, permit, procure or solicit or assist any other person to make or procure any announcement or disclosure concerning its prospective interest in the Purpose or any project related to the Purpose.

 

20              Costs and expenses

 

Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement.

 

21              Third party rights

 

Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement. The parties shall not, however, be required to notify or obtain the consent of any third party in order to rescind or vary this Agreement.

 

22              Governing law

 

This Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

 

23              Jurisdiction

 

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or its formation (including non-contractual disputes or claims).