Confidentiality Terms

Parties:

OAKFIELD FOODS LIMITED of 3 Elstree Gate, Elstree Way Borehamwood, Hertfordshire, WD6

(Party 1)

THE SUPPLIER (AS THE CASE MAY BE) (Party 2)

And together called the “Parties”

BACKGROUND

The Parties trade inter se for the Purpose and it involves disclosure of Confidential Information which is the property of Party 1
The Parties have agreed to comply with this agreement in connection with the disclosure and use of such Confidential Information.

Agreed terms

Interpretation
1. Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: has the meaning given in clause 2.

Customer: any person firm or company who is or was during the 6 months preceding this Agreement a customer of Party 1

Discloser: Party 1, being the party that discloses its Confidential Information, directly or indirectly, to the Recipient.
Group: in relation to a company, that company, any subsidiary or 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.
Holding company: has the meaning give in clause 1.2(e).
Key Person: any person who has in the past 12 months carried out work for or on behalf of Party 1
(a) at the level of senior management or as a key sales or key technical person; and/or
(b) who could materially damage the commercial interests of Party 1;
Purpose: the supply of food products and/or their constituents by Party 1 for eventual sale by Party 2 to the retail market
Recipient: Party 2, being the Party that receives Confidential Information, directly or indirectly, from the Discloser.
Representative(s): in relation to each Party [and any member of its Group]:
1. its officers and employees who need to know the Confidential Information for the Purpose;
2. its professional advisers or consultants who are engaged to advise that Party and/or any member of its Group in connection with the Purpose;
3. its contractors and sub-contractors engaged by that Party [and/or any member of its Group] in connection with the Purpose; and
4. any other person to whom the other Party agrees in writing that Confidential Information may be disclosed in connection with the Purpose.
Subsidiary: has the meaning given in clause 1.2(e).
1. Interpretation
  1. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision includes all subordinate legislation made from time to time under that legislation or legislative provision.
  2. 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.
  3. A reference to writing or written includes email.
  4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  5. 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:
    1. another person (or its nominee) by way of security or in connection with the taking of security; or
    2. its nominee].
  6. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
Confidential Information
1. Confidential Information means all confidential information relating to the Purpose which the Discloser or its Representatives [or any of its Group Companies, or their Representatives] directly or indirectly discloses, or makes available, to the Recipient or its Representatives or any of its Group Companies, or their Representatives, before, on or after the date of this agreement. This includes:
  1. the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;
  2. the terms of this agreement;
  3. all confidential or proprietary information relating to:
    1. the business, assets, affairs, customers, clients, suppliers or plans, intentions, or market opportunities of the Discloser; and
    2. the operations, processes, product information, recipes, know-how, technical information, designs, trade secrets or software of the Discloser,
  4. any information, findings, data or analysis derived from Confidential Information; and
  5. any other information that is identified as being of a confidential or proprietary nature;

but excludes any information referred to in clause 2.2.

Information is not Confidential Information if:
1. it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or its Representatives or by any of the Recipient'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. it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
3. it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;
4. it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; and
5. it is developed by or for the Recipient independently of the information disclosed by the Discloser [and the Recipient provides documentary evidence of such independence to the reasonable satisfaction of the Discloser]; and
6. the parties agree in writing that the information is not confidential.

Confidentiality obligations
1. In return for the Discloser making Confidential Information available to the Recipient, the Recipient undertakes to the Discloser that it shall:
  1. keep the Confidential Information secret and confidential;
  2. not use or exploit the Confidential Information in any way except for the Purpose;
  3. not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this agreement;
  4. 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 Discloser;
  5. not use, reproduce, transform or store the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means outside its usual place of business;
  6. apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use;
  7. keep a written record of:
    1. any document or Confidential Information received from the Discloser in tangible form; and
    2. any copies made of the Confidential Information;
  8. ensure that any document or other records containing Confidential Information shall be kept at its place of business and shall not remove or allow those documents and records to be moved from those premises;
2. The Recipient shall establish and maintain adequate security measures (including any reasonable security measures proposed by the Discloser from time to time) to safeguard the Confidential Information from unauthorised access or use.
Permitted disclosure
1. The Recipient may disclose the Confidential Information to its Representatives, any of its Group Companies, or their Representatives] on the basis that it:
  1. informs those Representatives, Group Companies, or their Representatives of the confidential nature of the Confidential Information before it is disclosed; and
  2. procures that those Representatives, Group Companies, or their Representatives comply with the confidentiality obligations in clause 3.1 as if they were the Recipient [and if the Discloser so requests, procure that any of them enters into a confidentiality agreement with the Discloser on terms equivalent to those contained in this agreement]; and
  3. keeps a written record of those persons.
2. The Recipient shall be liable for the actions or omissions of the Representatives, [any of its Group Companies, or their Representatives] in relation to the Confidential Information as if they were the actions or omissions of the Recipient.
Mandatory disclosure
1. Subject to the provisions of this clause 5, the Recipient may disclose Confidential Information to the minimum extent required by:
  1. an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction;
  2. the rules of any listing authority or stock exchange on which its shares are listed or traded; or
  3. the laws or regulations of any country to which its affairs are subject.
2. Before the Recipient discloses any Confidential Information pursuant to clause 5.1 it shall, to the extent permitted by law, give the Discloser as much notice of this disclosure as possible. Where notice of such disclosure is not prohibited and is given in accordance with clause 5.2, the Recipient shall take into account the Discloser's requests in relation to the content of this disclosure.
3. If the Recipient is unable to inform the Discloser before Confidential Information is disclosed pursuant to clause 5.1 it shall, to the extent permitted by law, inform the Discloser 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.
Return or destruction of Confidential Information
1. If so requested by the Discloser at any time by notice in writing to the Recipient, the Recipient shall promptly:
  1. destroy or return to the Discloser all documents and materials (and any copies) containing, reflecting, incorporating or based on the Discloser's Confidential Information;
  2. erase all the Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form; [and]
  3. [to the extent technically and legally practicable] erase all the Confidential Information which is stored in electronic form on systems and data storage services provided by third parties; and]
  4. certify in writing to the Discloser that it has complied with the requirements of this clause 6.1.
2. Nothing in clause 6.1 shall require the Recipient to return or destroy any documents and materials containing or based on the Confidential Information that the Recipient is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, 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 6.2.
Reservation of rights and acknowledgement
1. The Discloser reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Discloser to the Recipient does not give the Recipient or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in this agreement.
2. Except as expressly stated in this agreement, the Discloser makes no express or implied warranty or representation concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.
3. The disclosure of Confidential Information by the Discloser shall not form any offer by, or representation or warranty on the part of, the Discloser to enter into any further agreement with the Recipient in relation to the Purpose or the development or supply of any products or services to which the Confidential Information relates to.
Indemnity
1. The Recipient shall indemnify the Discloser and all of those being Party 3 (each an Indemnified Person) against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by each Indemnified Person) arising out of or in connection with any breach of this agreement by the Recipient, including as a result of the actions or omissions of any of its Representatives in accordance with clause 4.2.
2. If a payment due from the Recipient under clause 8.1 is subject to tax (whether by way of direct assessment or withholding at its source), the Indemnified Person shall be entitled to receive from the Recipient such amount as shall ensure that the net receipt, after tax, of the Indemnified Person in respect of the payment is the same as it would have been were the payment not subject to tax.
Inadequacy of damages

Without prejudice to any other rights or remedies that the Discloser may have, the Recipient acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement. Accordingly, the Discloser shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this agreement by the Recipient.

No obligation to continue discussions or trade

Nothing in this agreement shall impose an obligation on the Discloser to continue discussions or negotiations or further trade in connection with the Purpose, or an obligation on the Discloser to disclose any information (whether Confidential Information or otherwise) to the Recipient.

Ending discussions/trade and duration of confidentiality obligations
1. If the Discloser intends to withdraw from the Purpose with the Recipient, it shall notify the Recipient in writing as soon as is practically possible. Notice is not required if;

11.1.1 the recipient withdraws from discussions or trade with the Discloser and/or

11.1.2 the Recipient is in material breach of this or any subsequent contractual obligations to the Discloser.

Notwithstanding the end of the relationship between the Parties in the Purpose pursuant to clause 11.1, each Party's obligations under this agreement shall continue in full force and effect for a period of two years from the date of this agreement.
The end of discussions and/or trade relating to the Purpose shall not affect any accrued rights or remedies to which either Party is entitled.

No partnership or agency
1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any.
2. Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
3. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
General
1. Assignment and other dealings. Neither Party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
2. Entire agreement.
  1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
3. Variation. No variation of this agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
4. Waiver. No failure or delay by a Party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. 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.
5. Severance
  1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
  2. If any provision or part-provision of this agreement is deemed deleted under clause 13.5(a), the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
6. Notices
  1. Any notice [or other communication] given to a Party under or in connection with this agreement shall be in writing and shall be:
    1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    2. sent by email to the email address habitually used by the Parties during the course of dealings envisaged by this Agreement
  2. Any notice [or communication] shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. if sent by pre-paid first-class post on the next working day delivery service, at noon on the third Business Day after posting; or
    3. if sent by email, at noon on the first Business day after transmission.
  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Third Party rights.
1. Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
2. The rights of the Parties to rescind or vary this agreement are not subject to the consent of any other person.
3. The Discloser’s Group Companies are intended to be a third Party beneficiary of this Agreement
Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
Solicitation

Party 2 undertakes with Party 1 that neither it nor its Associates will, for a period of one year after the termination of negotiations or trade between them

13.10.1. employ or engage any Key Person; or

13.10.2. seek to employ or engage any Key Person, or induce or attempt to persuade any Key Person to leave the employment of, or their engagement with, Party 1

13.10.3 attract, attempt to attract, or do anything which might reasonably be viewed as being likely to or attempting to attract, business or custom from any Customer;

13.10.4. accept, deal or do business with any Customer;

13.10.6. approach any Supplier with a view to dealing or doing business with them;

13.10.7. accept, deal or do business with any Supplier;

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