BILATERAL CONFIDENTIALITY AGREEMENT

between
XXXXX LIMITED
anAgreement governing confidentiality issues between
Xxxxx Limited and [ ]

CONFIDENTIALITY AGREEMENT

BetweenXXXXX LIMITED, (Company Number SCxxxxx) having its registered office at [ ] (“XXXXX”)And[ ], (Company Number [ ] having its registered office at [ ] (“ZZZZ”)

WHEREAS:

The parties have agreed [are in negotiations] to work together to provide [ ] services, and in the furtherance of such aim require to disclose to each other certain Confidential Information on the terms set out below and that each has agreed to accept such Confidential Information on such terms.

THEREFORE THE PARTIES HEREBY AGREE AS FOLLOWS:

1. Definitions and Interpretation

For the purposes of this Agreement the following words shall have the following meanings:

“Confidential Information” means all the information disclosed and to be disclosed by one Party (“the Disclosing Party”) to the other Party (“the Recipient”) (whether written, oral or in any other form or whether marked or identified as being confidentially proprietary or under the control of the Disclosing Party) and relating to the Disclosing Party’s business, whether of a technical, financial or business nature, and including all forms of Intellectual Property relating to the Disclosing Party and including this Agreement and the fact that the Parties are in discussion or working together;

“Intellectual Property” means any patent, patent application, trade mark, service mark, trade mark or service mark application, trade or business name, registered or unregistered design right, copyright, Know How or other similar industrial, commercial or intellectual property right;

“Know-How” means technical knowledge, technical experience and capabilities and skills, proprietary processes and other pertinent information relating to or necessary for the use in connection with either Party’s business, and includes the whole body of such knowledge, experience, skills and information and also any one or more parts of the same.

“the Purpose” means [statement of the broad purpose for which the information is to be exchanged]

1.2 In this Agreement (unless the context otherwise requires) the singular shall include the plural and vice versa.

1.3 In this Agreement the headings are inserted for convenience only and shall not affect the construction of this document.

2. Recipient’s Undertakings

2.1 The Recipient undertakes:

2.1.1 that it will comply with the obligations incumbent upon them under the terms of this Agreement regarding the protection of the secrecy of the Confidential Information and agrees to indemnify the Disclosing Party against all costs and expenses, damages or loss (including but not limited to legal expenses) which may arise through any breach of this Agreement. Accordingly the Recipient will not without the consent of the Disclosing Party communicate or otherwise make available the Confidential Information to any third party other than:

2.1.1.1 a director, employee or representative of the Recipient who requires the Confidential Information in connection with the Purpose and then only if the director, employee or representative is bound by conditions of secrecy no less strict than those set out in this Agreement, which conditions the Recipient hereby agrees at its own expense to enforce at the request of the Disclosing Party; and

2.1.1.2 upon the request of the Disclosing Party, the Recipient must provide to the Disclosing Party a list of those persons to whom the Recipient has disclosed the Confidential Information;

2.1.2 not to use the Confidential Information for other than for the Purpose;

2.1.3 to immediately inform the Disclosing Party if it becomes aware of the possession, use or knowledge of any of the Confidential Information by any person not authorised to possess, use or have knowledge of the Confidential Information and to provide at the request of the Disclosing Party all such assistance in relation to this as the Disclosing Party shall require, at the expense of the Disclosing Party unless such unauthorised possession, use or knowledge is the fault of the Recipient, in which case such assistance shall be at its own expense.

3. Confidential Information

3.1 The above obligations shall cease to apply to so much of the Confidential Information as the Recipient can demonstrate to the reasonable satisfaction of the Disclosing Party:

3.1.1 has become public knowledge or has ceased to be secret except where such Confidential Information has come into the public domain or ceased to be secret as a result of breach of an obligation of confidentiality by any person or entity;

3.1.2 was already in the Recipient’s possession prior to disclosure by the Disclosing Party; or

3.1.3 has been received from a third party who did not acquire it through any act or omission of the Recipient or by reason of any breach of an obligation of confidentiality by any person or entity.

3.2 The above obligations shall also apply to any sample, prototype, article or documentation incorporating, based on, or derived from the Confidential Information, or any part of it, whether or not provided by the Disclosing Party and whether or not made by the Recipient for the Purpose or otherwise (and hence in breach of this Agreement) (“Material”).

3.3 The Recipient shall promptly, on termination of this Agreement or on demand by the Disclosing Party at any time, return to the Disclosing Party any and all Confidential Information and Material whether stored electronically or otherwise whether in its possession, custody or control and shall if required by the Disclosing Party, provide a written certificate confirming it has no Confidential information or Material in its possession, custody or control; on the receipt of any demand from the Disclosing Party for return of the Confidential Information and Material to the Disclosing Party the Recipient’s rights to use the Confidential Information and Material for the Purpose shall cease forthwith.

3.4 The Recipient shall accord the Confidential Information and the Material no less protection than it accords its own confidential information and without prejudice to the generality of this obligation shall:

3.4.1 keep all Confidential Information in tangible or documented form and all Material separate from other information, samples or documents of the Recipient;

3.4.2 keep all Confidential Information in tangible or documented form and all Material securely at the address for the Recipient stated on page one of this Agreement or as the Disclosing Party may otherwise agree in writing;

3.4.3 mark all Material “Confidential”;

3.4.4 restrict access to all Confidential Information and Material to those personnel identified in clause 2 above;

3.4.5 not make any further copies of documents incorporating the Confidential Information or the Materials without the prior written consent of the Disclosing Party.

3.5 If any legal proceedings are commenced or actions taken which would result in the Recipient becoming compelled to disclose Confidential Information by a Court of competent jurisdiction, the Recipient will immediately notify the Disclosing Party of such proceedings or actions in writing, and will take all available steps to resist or avoid such proceedings or actions, including all steps that the Disclosing Party may reasonably request, and will keep the Disclosing Party fully and promptly informed of all matters and developments relating thereto.

3.6 If the Recipient is compelled to disclose Confidential Information to any third party (related or non-related) by a court of competent jurisdiction, the Recipient will disclose only to that third party and will disclose only the minimum amount of information (consistent with satisfying its obligations in terms of this Agreement) in order to comply with such court order.

4. Rights

4.1 The Confidential Information disclosed by the Disclosing Party remains throughout the property of that Disclosing Party.

4.2 Except as expressly provided, this Agreement shall not be construed as granting or confirming to the Recipient either expressly or impliedly any rights, licenses or relationships by the disclosure of Confidential Information under this Agreement.

4.3 No party shall be entitled to assign their rights or obligations under this Agreement without the prior written consent of the other party.

5. No Representation or Warranty

5.1 No disclosure by the Disclosing Party should be taken as a representation or warranty, express or implied as to the accuracy, completeness or otherwise of the Confidential Information; nor will the Disclosing Party accept any liability for any loss suffered by the Recipient or any third party through the use of the Confidential Information by the Recipient or any third party or representative on its behalf unless otherwise agreed in writing.

6. General

The construction, validity and performance of this Agreement shall be governed in all respect by Scots Law and insofar as not already subject thereto each of the parties to this Agreement hereby prorogates and submits to the non-exclusive jurisdiction of the Scots Courts.

IN WITNESS WHEREOF these presents consisting of this and the five preceding pages are executed by the parties together in [Aberdeen] as follows:

Subscribed for and on behalf of XXXXX LIMITED

Date: [ ] 2006
 

…………………………………Witness

……………………………………Name ……………………………………..
Director
…………………………………Address

Subscribed for and on behalf of [ ]

…………………………………Witness

……………………………………Name ……………………………………..
Director
…………………………………Address