NON-DISCLOSURE AGREEMENT (ONE-WAY)

 

This Agreement is made on            

 

Between:

 

(1)             SGN Property Services Limited (“SGN”), a company registered in England and Wales with company number 11245947 whose registered office is at St Lawrence House, Station Approach, Horley, Surrey, RH6 9HJ

 

(2)             [ ] (the “Company”), a company registered in England and Wales with company number [ ] whose registered office is at [ ]

 

each a “Party” and together the “Parties”.

 

WHEREAS:

 

SGN has agreed to make available to the Company certain information in relation to the Purpose (as defined below) which SGN regards as confidential. The Company recognises the need to ensure that it maintains the confidentiality of the Confidential Information, and the Parties have agreed and set out in this Agreement the terms on which such Confidential Information may be disclosed, received and used.

 

IT IS AGREED:

 

In consideration of the payment of one-pound sterling (£1) from the Company to SGN, receipt of which SGN hereby acknowledges, and the mutual undertakings contained in this Agreement, the Parties agree:

 

1                 Definitions

1.1             In this Agreement:

“Affiliate” means a Subsidiary or a Holding Company or any other Subsidiary of that Holding Company, and in the case of SGN shall include any joint venture company from time to time in which SGN or any SGN Subsidiary or SGN Holding Company or SGN’s shareholder companies own no less than twenty-five per cent of the share capital eligible to vote or has the right to appoint or remove no less than half of the board of directors.

“Business Day” means a day (other than a Saturday or a Sunday) on which the clearing banks in London are open for general business.

“Confidential Information” means information in any form which is disclosed by or on behalf of SGN to the Company (including its employees, directors, officers) and which relates to SGN’s (or any of its Affiliate’s) operations, projects, processes, plans, intentions, product information, know-how, design rights, trade secrets, software, market opportunities, customers or other business affairs, including the fact that discussions have taken place between the Parties, the existence of this Agreement and any other information that would be regarded as confidential by a reasonable business person dealing with either Party or any findings, data or analysis derived from such information.

“Data Protection Legislation” means any laws and regulations in any relevant jurisdiction relating to privacy or the use or processing of data relating to natural persons, including: (a) EU Directives 95/46/EC and 2002/58/EC (as amended by 2009/139/EC) and any legislation implementing or made pursuant to such directives, including (in the UK) the Data Protection Act 2018 (the "DPA") and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) EU Regulation 2016/679 ("GDPR"); and (c) Data Protection (Charges and Information) Regulations 2018; and (d) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR; and (e) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.

"Holding Company" has the meaning given to the term in section 1159 of the Companies Act 2006.

“Purpose” means The provision of information and the undertaking of discussions, negotiations and evaluations between the Parties in connection with a potential transaction or arrangement relating to the property known as land and buildings on the
south and west side of Otford Road, Sevenoaks and 107 Cramptons Road, Sevenoaks, TN14 5DU (the Property), including (without limitation) any possible acquisition, disposal, investment in, or other dealing with the Property or any related assets, interests or rights.

“Representative(s)” means in relation to the Company:

1.1.1    its officers and employees that need to know the Confidential Information for the Purpose;

1.1.2    its professional advisers or consultants who are engaged to advise that Party (including those engaged to advise SGN’s Affiliates) in connection with the Purpose; and

1.1.3    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 to the term in section 1159 of the Companies Act 2006.

 

1.2             A reference to writing or written includes email (unless otherwise expressly provided in this Agreement).

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             Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.5             A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.6             Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

2                 Obligations in respect of Confidential Information

The Company agrees:

 

2.1             to keep the Confidential Information confidential and not to disclose it to any third party, save as permitted by this Agreement;

2.2              to keep the Confidential Information safe and in a secure place and properly protected against theft, damage, loss and unauthorised access and to apply the same degree of care to the Confidential Information as that which the Company applies to its own confidential or proprietary information;

2.3             to use the Confidential Information only for the Purpose and not for the furtherance of its own business interests;

2.4             not to contact third parties referred to in the Confidential Information with the intention of entering into transactions which are either the same or similar to those either entered into, negotiated or discussed with the Company and that third party;

2.5             to make only such copies of the Confidential Information or only reproduce it in any form as may be necessary for the Purpose; and

2.6             to disclose Confidential Information only to such of the Company’s employees, directors, officers and Affiliates as need to know the same for the Purpose. Prior to making any such disclosure, the Company shall ensure that any persons to whom Confidential Information is disclosed are subject to confidentiality obligations no less onerous than those contained in this Agreement. 

3                 EXCLUSIONS

Information shall not be regarded as Confidential Information for the purposes of this Agreement if the Company can demonstrate that that information was:

 

3.1             lawfully in the Company’s possession or was lawfully already known to it at the date of disclosure (as evidenced by the Company’s records or other reasonable evidence); or

3.2             public knowledge at the time of disclosure or became public knowledge after the time of disclosure (other than as a result of a breach by the Company of this Agreement); or

3.3             disclosed to the Company by any third party (unless the Company knows or reasonably believes that the third party is in breach of any obligation of confidentiality in respect of the Confidential Information); or

3.4             disclosed with the prior written consent of SGN.

4                 Permitted Disclosures

The obligations of the Company herein shall not apply if the Confidential Information:

 

4.1             is required to be disclosed by any applicable law or by the order or ruling of a court or administrative body of competent jurisdiction;

4.2             is required to be disclosed to any relevant governmental or regulatory authority (including any tax authority) to which the Company are subject;

4.3             is required to be disclosed by the regulations of any stock exchange on which the securities of the Company are listed or by any clearing house in connection with any issue of securities;

4.4             is disclosed to any credit rating agency if the disclosure is made to such rating agency in the course of the Company seeking or maintaining a credit rating;

4.5             is disclosed to those of its Representatives (Permitted Recipients), who need to know this Confidential Information for the Purpose;

4.6             is disclosed to any professional advisor, bank or other financial institution or their professional advisers to the extent required in relation to the Purposes or the financing of the Company’s (or of the Company’s Affiliate’s) business activities and in connection with any form of restructuring by the Company or any of its Affiliates, provided that such recipient is required by the Company to treat the Confidential Information as confidential on terms substantially the same as this Agreement;

4.7             is disclosed to any bona fide prospective purchaser or transferee (directly or indirectly) of all or substantially all of the assets of the Company and the professional advisers of such person, provided that such recipient is required by the Company to treat the Confidential Information as confidential on terms substantially the same as this Agreement;

4.8             provided, however, that the Company shall in the case of 4.1 to 4.4:

4.8.1               if possible, provide SGN with prompt prior written notice of such disclosure or with notice immediately after such disclosure, setting out the Company’s reasons for disclosing the Confidential Information;

4.8.2               disclose only that portion of the Confidential Information which is legally required to be disclosed, and

4.8.3               take all measures as may be reasonable and practicable under the circumstances to minimise the scope of the Confidential Information to be disclosed; and

4.9             provided that the Company shall in the case of 4.5:

4.9.1               inform its Permitted Recipient of the confidential nature of the Confidential Information before disclosure;

4.9.2               procure that the Permitted Recipient shall, in relation to any Confidential Information disclosed to them, comply with this Agreement as if they were the Receiving Party and, if the SGN so requests, procure that any relevant Permitted Recipient enters into a confidentiality agreement on terms equivalent to those contained in this Agreement; and

4.9.3               at all times, be responsible for the Permitted Recipient's compliance with the terms of this Agreement.

5                 Unlawful Disclosure

5.1             If the Company discloses Confidential Information other than in accordance with this Agreement then, without prejudice to SGN’s rights and remedies under this Agreement or at law, the Company shall:

5.1.1               immediately inform SGN of the fact of, and circumstances surrounding, the disclosure; and

5.1.2               take all reasonable steps to mitigate the effects of the disclosure.

6                 Term

6.1             The Company’s obligations under this Agreement shall continue to apply for a period of three (3) years from the date of this Agreement unless extended by mutual written agreement of the Parties.

6.2             Following the termination of this Agreement or at any time on notice in writing from SGN, the Company shall, as directed by the SGN, destroy, delete or return all Confidential Information (and any copies thereof) promptly, and shall direct its Permitted Recipients to do the same. If requested, the Company shall certify in writing to SGN that it has complied with this undertaking. The Company shall be entitled to retain Confidential Information solely to the extent that it is required by applicable law or regulations to retain.

7                 Ownership of Confidential Information

7.1             All Confidential Information and copies thereof shall remain the sole property of SGN. Subject to the provisions of any contrary agreement(s) relating to the Purpose between the Parties, all rights in the Confidential Information are reserved to SGN. No licence, right to use or other intellectual property rights in the Confidential Information are or shall be deemed to be granted by SGN under this Agreement to the Company or to any third party.

8                 Warranty

8.1             No warranty or representation is given by SGN as to the accuracy, completeness or fitness for a particular purpose of the Confidential Information.

9                 No Commitment OR ParTNERSHIP

9.1             Nothing in this Agreement or in its operation shall constitute any obligation on either Party to enter into a transaction or agreement or to maintain a business relationship (whether in relation to the Purpose or otherwise).

9.2             Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.

10              Delay and Waivers

10.1         Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

10.2         No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

11               Publicity

11.1         Neither Party may without the prior written consent of the other Party:

11.1.1            make any statement or announcement to any third party about the discussions between the Parties in relation to the Purpose; or

11.1.2            use the names, logos or trademarks of the other Party.

12              Rights of Third Parties

12.1         Except as expressly provided in this clause 12, no term of this Agreement may be enforced by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.

12.2         This Agreement is made for the benefit of SGN’s Affiliates and obligations in this Agreement shall be enforceable by each of them to the fullest extent permitted by law as if they were a party to this Agreement.

12.3         The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

13              Notices

13.1         A notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery in each case to that Party's address as set out in this Agreement (or to such other address as that Party may notify to the other parties in accordance with this Agreement).

13.2         Delivery of a notice is deemed to have taken place (provided that all other requirements in this clause 13 have been satisfied) if delivered by hand, at the time the notice is left at the address or, if sent by post, on the Business Day after posting, unless such deemed receipt would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur when business next starts in the place of receipt (and all references to time are to local time in the place of receipt).

13.3         This clause 13 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.

14              Amendment

14.1         No waiver or amendment of any term or condition of this Agreement shall be effective unless made in writing and signed by both Parties. 

15              Transfer

15.1         Neither Party may assign or novate its rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.

16              Governing Law and Jurisdiction

16.1         This Agreement (and any non-contractual obligations arising under it) shall be governed by and construed in accordance with the laws of England and Wales and each Party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.

17              Remedies

17.1         The Parties acknowledge that the Confidential Information is valuable and that damages alone may not be an adequate remedy for any breach of this Agreement.  The Parties agree that SGN shall be entitled without proof of special damage to the remedies of an injunction and other equitable relief for any actual or threatened breach by the Company of this Agreement.  These remedies are without prejudice to any other rights and remedies that SGN may have hereunder or at law.

18              Conduct

18.1         The Parties agree to comply at all times with the Bribery Act 2010 and the Criminal Finances Act 2017 and any amendments hereafter.

19              DATA PROTECTION

19.1         The terms "Data Processor", "Personal Data" and "processing" shall have the meanings set out in GDPR.

19.2         Each Party shall ensure that it complies with the requirements of the Data Protection Legislation relating to the use of personal data.

19.3         To the extent that either Party processes any Personal Data as a Data Processor on behalf of the other Party in connection with this Agreement or the Services, the Data Processor will comply with the provisions and obligations imposed on a Data Processor by the GDPR, including the stipulations set out in Article 28(3)(a)-(h) of GDPR which form a part of, and are incorporated into, this Agreement as if they were set out in full, and the reference to "documented instructions" in Article 28(3)(a) shall include the provisions of this Agreement.

20              Severability

20.1         If any provision of this Agreement is held invalid, illegal or unenforceable, it shall be deemed not to form part of the Agreement and shall not affect the enforceability of the remaining provisions of this Agreement.

21              Counterparts

21.1         This Agreement may be executed in two or more counterparts (including by electronic or facsimile transmission), all of which when taken together shall constitute a single instrument.

22              Entire Agreement

22.1         This Agreement constitutes the entire agreement between the Parties in respect of the subject matter referred to herein and supersedes all previous contracts, agreements, arrangements and understandings between the Parties in respect thereof.