Confidentiality Agreement

 

PARTIES

(1) BHL GLOBAL LIMITED, incorporated and registered in England and Wales with company number 06766834 whose registered office is at 16-18 St James’s Place, London, SW1A 1NJ (the "Seller"); and

 

(2) You and your company (indicated on your registration) (the "Buyer").

BACKGROUND

(A) The Buyer wishes to receive Confidential Information from the Seller in connection with the Proposed Transaction.

(B) The Seller wishes to ensure that the Buyer maintains the confidentiality of the Confidential Information. In consideration of the mutual benefits of disclosing and receiving the Confidential Information, the parties have agreed to comply with the terms of this Agreement.

AGREED TERMS

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Company Northcote Hotel Limited, incorporated and registered in England and Wales with company number 02002462.
Confidential Information all confidential information that is disclosed or made available (in any form or by any method) by the Seller (or any of its Representatives) to the Buyer (or any of its Representatives) whether before, on or after the date of this Agreement, in connection with the Proposed Transaction, including:

(a) the fact that discussions or negotiations are taking place concerning the Proposed Transaction and the content and status of such discussions or negotiations;

(b) the existence of this Agreement and its terms;

(c) any terms of any Proposed Transaction documentation and the manner of and reasons for the Buyer’s withdrawal from the Proposed Transaction (if it occurs);

(d) all confidential or proprietary information relating to the: (i) business or affairs, financial or trading position, assets, intellectual property rights, customers, clients, suppliers, employees, plans, operations, processes, products, intentions or market opportunities of the Company or Seller; and (ii) the know-how, designs, trade secrets, technical information or software of the Company or Seller;

(e) any information, findings, data or analysis derived from the information referred to in this definition; and

(f) any other information that is identified as being of a confidential or proprietary nature.

Confidential Information shall include any Copies.

Copies copies or reproductions of Confidential Information in any form or medium including any document, electronic file, note, extract, analysis, study, plan, compilation or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from, Confidential Information (or any part of it).

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.

Permitted Purpose considering, evaluating, negotiating or advancing the Proposed Transaction.

Permitted Recipient each and any of the following persons:

(g) those of the Buyer's Representatives that need to know or require access to the Confidential Information for the Permitted Purpose, or to provide advice in connection with the Proposed Transaction;

(h) a person whom the Seller agrees in writing may receive any Confidential Information.

Proposed Transaction the acquisition of the entire issued share capital of the Company by the Buyer.

Representatives in relation to a company, the employees, officers, consultants and appointed professional agents and advisers of that company.

1.2 References to clauses are to the clauses of this Agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective successors and permitted assigns, and references to any party shall include that party's successors and permitted assigns.

1.5 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 CA 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 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:

1.5.1 another person (or its nominee), by way of security or in connection with the taking of security; or

1.5.2 its nominee.

1.6 Unless expressly provided otherwise in this Agreement, a reference to writing or written excludes fax but not email.

1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.8 Any obligation not to do something includes an obligation not to allow that thing to be done.

2. Confidentiality undertakings

2.1 In consideration for the Seller making Confidential Information available to the Buyer, the Buyer undertakes that it shall (and shall procure that each member of its Group shall):

2.1.1 ensure that all requests for information including Confidential Information are directed through the Seller’s solicitors, accountants or other professional advisers;

2.1.2 keep the Confidential Information secret and confidential and shall take all necessary steps to preserve its confidentiality;

2.1.3 not disclose or make available any Confidential Information to any person, except as permitted by this Agreement;

2.1.4 not use or exploit the Confidential Information in any way, except for the Permitted Purpose; and

2.1.5 not publish, or reveal to any representative of the media or by way of publication on any form of social media, any incident, conversation, or other information concerning the Company, the Seller, any Confidential Information or any director, employee, agent, or consultant of the Seller or Company.

2.2 The Buyer shall only make such Copies as are strictly necessary for the Permitted Purpose and shall:

2.2.1 clearly mark all Copies as confidential;

2.2.2 ensure that all Copies can be separately identified from its own information; and

2.2.3 ensure that all Copies within its control are protected against theft or unauthorised access.

2.3 At the written request of the Seller, the Buyer shall promptly:

2.3.1 destroy or return to the Seller all documents and materials containing, reflecting, incorporating, or based on any Confidential Information;

2.3.2 erase all Confidential Information from its computer and communications systems and devices used by it (or any members of its Group), including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

2.3.3 certify in writing to the Seller that it has complied with its obligations under this clause, provided that the Buyer may retain documents and materials containing, reflecting, incorporating or based on the Confidential Information to the minimum extent required by law or any governmental or regulatory authority of competent jurisdiction. The provisions of this Agreement shall continue to apply to any such documents and materials retained by the Buyer.

2.4 The undertakings and obligations in this Agreement do not apply to any Confidential Information:

2.4.1 that is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed in breach of this Agreement;

2.4.2 that was available to the Buyer on a non-confidential basis before it was disclosed by the Seller or its Representatives;

2.4.3 that becomes available to the Buyer on a non-confidential basis from a person who was not bound by a confidentiality agreement with the Seller, or otherwise prohibited from disclosing the information to the Buyer; or

2.4.4 where the Seller agrees in writing that such information is not Confidential Information, or that it may be disclosed (subject to any limitations or other terms specified by the Seller regarding the method or recipient or such disclosure).

3. Permitted and mandatory disclosure

3.1 The Buyer may disclose Confidential Information to a Permitted Recipient, provided that it:

3.1.1 informs the Permitted Recipient of the confidential nature of the Confidential Information before it is disclosed; and

3.1.2 procures that the Permitted Recipient shall, in relation to any Confidential Information disclosed to it, comply with this Agreement as if it were the Buyer and, if the Seller so requests, procures that the Permitted Recipient enters into a confidentiality agreement with the Seller on terms equivalent to those contained in this Agreement.

3.2 The Buyer shall be liable for the actions and omissions of the Permitted Recipients in relation to any Confidential Information as if they were the actions or omissions of the Buyer.

3.3 The Buyer may disclose Confidential Information to the minimum extent it is required to do so by law, or by any regulatory or governmental authority of competent jurisdiction, or by a court of competent jurisdiction. Where it is legally permitted to do so, the Buyer shall give the Seller as much notice of the disclosure as possible, and take into account the Seller's reasonable requests in relation to the content of the disclosure.

4. Reservation of rights and Buyer's acknowledgement

4.1 The Buyer acknowledges and agrees that:

4.1.1 neither the entry into this Agreement nor the supply of Confidential Information shall constitute an offer or other commitment by the Seller to enter into the Proposed Transaction, or any further agreement with the Buyer;

4.1.2 neither the Seller, the Company nor any other member of the Seller's Group (nor any of their respective agents or advisers) makes any warranty or representation (whether express or implied) concerning the Confidential Information, including (but not limited to) its accuracy or completeness;

4.1.3 all rights in the Confidential Information are reserved and none of the Confidential Information shall be the property of the Buyer; and

4.1.4 damages alone would not be an adequate remedy for its breach of this Agreement. Accordingly, without prejudice to any other rights or remedies it may have, the Seller shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of this Agreement.

5. Duration

5.1 This Agreement shall terminate upon the earlier of:

5.1.1 completion of the Proposed Transaction; and

5.1.2 five years from the date of this Agreement.

5.2 The Buyer's obligations under this Agreement shall not be affected by any termination of the parties' negotiations or discussions relating to the Proposed Transaction.

5.3 Termination of this Agreement shall not affect the parties' entitlement to any accrued rights or remedies.

6. Assignment and other dealings

Neither party shall assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.

7. Entire agreement

7.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, and understandings between them, whether written or oral, relating to its subject matter.

7.2 Each party acknowledges that in entering into this Agreement it does not rely on, and 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.

8. Variation and waiver

8.1 No variation of this Agreement shall be effective unless it is in writing and signed by all the parties (or their authorised representatives).

8.2 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

8.3 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

9. Costs

Each party shall pay its own costs and expenses incurred in connection with the Proposed Transaction, including the negotiation, preparation and execution of this Agreement and the evaluation and review of the Confidential Information.

10. Third party rights

10.1 Except as provided in clause 10.2 or otherwise in this Agreement, 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 .

10.2 The obligations and undertakings of the Buyer in this Agreement are also intended to benefit the Company (and each member of its Group), and shall be enforceable by each of them to the fullest extent permitted by law as if they were the Seller and a party to this Agreement.

10.3 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.

11. Governing law and jurisdiction

11.1 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.

11.2 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.

12. Other

12.1 Should you have executed a separate confidentiality agreement in relation to the Hotel, in the event of any inconsistency between the terms of this agreement and the terms of such separately executed agreement, the latter shall prevail.

 

Please confirm your agreement to the above terms by clicking “Accept”.