A The parties have entered into a Services Agreement pursuant to which the Counterparty will render certain services to New Image Communications LTD in connection with IT mobile services provider for New Image Communications LTD.
B In connection with the Services Agreement, certain Confidential Information (as defined below) concerning New Image Communications LTD (as defined below) may be revealed to the Counterparty and certain Confidential Information concerning the Counterparty and other companies within the Counterparty’s group of companies may be revealed to New Image Communications LTD.
In this Agreement the following words and expressions shall have the following meanings:
“New Image Communications” means New Image Communications LTD
“Applicable Laws” means all applicable laws and regulations in all applicable jurisdictions relating to market abuse, insider dealing, market manipulation and similar offences (including in the United Kingdom the provisions under the Financial Services and Markets Act 2000 (as amended), the Criminal Justice Act 1993 (as amended) and the rules in the FCA Handbook).
“Confidential Information” means any information of a confidential nature disclosed by one Party to the other whether pursuant to the Services Agreement or not, including, but not limited to, trade secrets, discoveries, ideas, concepts, know-how, intellectual property rights, techniques, designs, specifications, data, computer programs, software, pricing and customer information, financial statements, business reports, plans, studies, details of personnel and technical information, all files, deal sheets, internal computer security systems, product and business information and any information designated as confidential by either Party.
“FCA” means the Financial Conduct Authority and its successors and assigns.
“FCA Handbook” means the FCA’s handbook of rules and guidance as amended or replaced from time to time.
“Services Agreement” means the agreement for services entered into between New Image Communications LTD and the Counterparty, either verbally or in writing.
1 In consideration of and as an inducement to each Party entering into the Services Agreement each Party agrees to treat as confidential all Confidential Information concerning the other Party, which it receives from or on behalf of the other Party, in accordance with the provisions of this Agreement. The Confidential Information may be provided in written, pictorial or oral form, or on a computer disk or by e-mail or in other machine-readable forms, or from or pursuant to discussions with any of the officers, employees, agents, officials or advisers of the Parties. Confidential Information also includes analyses, compilations, studies or other documents prepared from the Confidential Information by either Party or officers, employees, agents or advisers of either Party.
2 Each Party agrees that Confidential Information of the other Party will not be used, or disclosed to any person, firm or company other than for the purpose of fulfilling its obligations under the Services Agreement and that any such information provided by officers, directors, employees, advisers or agents of the other Party will be kept strictly confidential. In no event will either Party use, or permit or assist a third party to use, the Confidential Information to the detriment of the other Party. For the purposes of this Agreement, “software” means any computer software and related data including applicable updates and new releases, object codes, source codes, any html code, interfaces, designs and styles, documentation and related know-how which either Party has produced or developed, except any software provided under a separate license agreement.
3 Each Party agrees to provide Confidential Information received from the other Party only to those officers, employees, advisers or agents having a need to know the Confidential Information (together the “Authorised Recipients”), for the exclusive purpose of fulfilling its obligations under the Services Agreement, all of whom shall be informed of the obligations under this Agreement and each Party shall procure that each of them maintains the secrecy and confidentiality of the Confidential Information in accordance with this Agreement, as if they were each a party to it.
4 Each Party will ensure that proper and secure storage is provided for the Confidential Information of the other Party and that any copies or reproductions of documents are made only for the purposes of fulfilling its obligations under the Services Agreement.
5 Neither Party shall be deemed to make or have made any representation or warranty as to the accuracy or completeness of its Confidential Information.
6 Upon the written request of either Party (the “Requesting Party”) the other Party will at its own cost and as soon as reasonably practicable return or destroy all Confidential Information of the Requesting Party to the Requesting Party and all copies thereof and expunge and delete any such Confidential Information maintained on any word processing or computer system or in any other electronic form, and confirm in writing to the Requesting Party that this has been done.
7 The Counterparty recognises and accepts, and will advise its Authorised Recipients, that:
- the Confidential Information is given in confidence, and that some or all of the Confidential Information may be inside information for the purposes of Applicable Law;
- neither it nor any of its Authorised Recipients should engage in any behaviour which would amount to market abuse, market manipulation, insider dealing or any other similar offence under any Applicable Law, on the basis of any Confidential Information;
- the receipt of Confidential Information could result in the Counterparty and its Authorised Recipients being made an insider for the purposes of Applicable Law;
- it is the responsibility of the Counterparty and its Authorised Recipients to perform the obligations under this Agreement in accordance with all applicable laws and regulations in all relevant jurisdictions (including but not limited to Applicable Law);
- it is the responsibility of the Counterparty to maintain a list of all persons to whom it has disclosed the Confidential Information to and agrees to provide this list to Apax Partners on request; and
- a breach of this clause may constitute a criminal and/or civil offence, in addition to a breach of this Agreement.
8 The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose.
9 Each Party agrees that any breach of this Agreement will cause the Suffering Party substantial and irreparable damage for which monetary damages may not be adequate compensation and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Suffering Party shall have the right to seek specific performance and other injunctive and equitable relief in any court of competent jurisdiction.
10 The foregoing restrictions shall not apply to any Confidential Information which a Party demonstrates:
(i) at the time of its disclosure was in the public domain;
(ii) has become generally available to the public other than as a result of a disclosure by that Party or its representatives;
(iii) was available to that Party or to its representatives on a non-confidential basis prior to disclosure, as evidenced by written records in existence at the time of disclosure;
(iv) becomes available to that Party on a non-confidential basis from another source, which source was itself not bound by a confidentiality agreement or any other obligation of confidentiality;
(iv) was approved for release to third parties by written authorisation of the other Party; or
(v) is required to be disclosed by law or pursuant to the order of a court of competent jurisdiction or by any regulatory body or government authority.
11 Nothing in this Agreement shall be construed as granting any rights in any information disclosed pursuant to this Agreement, except for the limited right to review such information in order for each of the Parties to fulfil its obligations under the Services Agreement.
12 Nothing in this Agreement confers any right on any person (other than the parties thereto) pursuant to the Contracts (Right of Third Parties) Act 1999.
13 This Agreement supersedes all prior agreements, written or oral, between the Parties concerning the subject matter of this Agreement.
14 The duties and obligations to protect information shall survive termination of this Agreement and/or the Services Agreement, and may only be modified or terminated by a written agreement signed by the Parties which make specific reference to this Agreement.
15 The provisions of this Agreement shall be severable, in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.
16 Each Party agrees that the provisions of this Agreement are in addition to and not in substitution for any rights possessed at law by the other Party in relation to the Confidential Information disclosed to that Party.
17 This Agreement shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts in connection with any dispute which may arise relating to this Agreement.
for and on behalf of
New Image Communications LTD
for and on behalf of