Project Puma

Acceptance of NDA Confidentiality Obligations and Rules in relation to the Data site.

 

PARTIES

 

(1)             Colliers International Property Consultants Limited incorporated and registered in England and Wales with company number 07996509 whose registered office is at 95 Wigmore St, London, W1U 1FD (Disclosing Party) acting as agent of the Receivers.

 

(2)             You (Recipient).

 

BACKGROUND

 

The Disclosing Party has been instructed by the Receivers to disclose to the Recipient Confidential Information in relation to the Purpose in accordance with the terms of this agreement. The Disclosing Party has been instructed by the Receivers to ensure that the Recipient maintains the confidentiality of the Confidential Information. In consideration of the benefits to the parties of the disclosure of the Confidential Information, the parties have agreed to comply with the following terms in connection with the use and disclosure of Confidential Information.

 

AGREED TERMS

 

1. Definitions and interpretation

 

1.1 The following definitions and rules of interpretation in this clause apply in this agreement:

 

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

 

Confidential Information:  all confidential information (however recorded, preserved or disclosed) disclosed by the Disclosing Party, its Group or its Representatives to the Recipient and its Representatives after the date of this agreement including but not limited to:

 

(a)          the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;

(b)         the terms of this agreement;

(c)          any information that would be regarded as confidential by a reasonable business person relating to:

(d)         the business, affairs, customers, clients, suppliers, plans, properties of the Disclosing Party, its Group and its clients;

(e)          the operations, processes, product information, pricing, know-how, designs, trade secrets or software of the Disclosing Party, its Group and its clients;

(f)          the business, affairs, customers, employees, service users, plans and other information of any Tenant; and

(g)         any information or analysis derived from Confidential Information,

but not including any information that:

(h)         is or becomes generally available to the public other than as a result of its disclosure by the Recipient or its Representatives in breach of this agreement or of any other undertaking of confidentiality addressed to the party to whom the information relates (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information); or

(i)           was available to the Recipient on a non-confidential basis prior to disclosure by the Disclosing Party; or

(j)           was, is or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient; or

(k)         was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or

(l)           the parties agree in writing is not confidential or may be disclosed; or

(m)        is developed by or for the Recipient independently of the information disclosed by the Disclosing Party; or

(n)         is trivial, obvious or useless.

 

Group:  in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.

 

Holding company and subsidiary: mean a "holding company" and "subsidiary" 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 subsections 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 (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

 

Purpose: the potential acquisition of the property and business assets referred to as Project Puma.

 

Receivers: Nicholas Alfred Hammond and Peter Edward Vass both of Colliers International Consultants Limited, 103 Colmore Row, Birmingham B3 3AG in their capacity as Joint Fixed Charge Receivers of the properties referred to as Project Puma

 

Representative: employees, agents, officers, advisers and other representatives of the Recipient.

 

Tenant: means any tenant under any lease of any property included in or contemplated as being included in Project Puma including without limitation any such tenant which is a member of the Group the parent company of which is MMCG Topco Holdings Limited.

 

Tenant Confidential Information: means Confidential Information falling within paragraph (f) of the definition thereof.

 

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

 

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

 

1.4 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.

 

1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.

 

1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.

 

1.7 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

 

1.8 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule.

 

2. Obligations of confidentiality

 

2.1 The Recipient shall keep the Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall:

(a)          not use or exploit the Confidential Information in any way except for the Purpose;

(b)         not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this agreement; or

(c)          not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party).

 

2.2 In particular, and without limitation, the Recipient will not provide any Tenant Confidential Information to any other entity which operates elderly care homes and in relation to which the Recipient (or a member of the Recipient’s Group or other person connected with the Recipient) is the landlord.

 

2.3 The Recipient may disclose the Confidential Information to members of its Group and to those of its Representatives who need to know the Confidential Information for the Purpose, provided that the Recipient shall inform those Representatives and members of its Group that the Confidential Information disclosed to them is confidential and shall ensure that such members of its Group and Representatives shall not: 

 

(a)          use or exploit the Confidential Information in any way except for the Purpose; or

 

(b)         disclose or make available such Confidential Information in whole or in part to any third party, except as expressly permitted by this agreement; or

 

(c)          copy, reduce to writing or otherwise record the Confidential Information, except as necessary for the Purpose.

 

2.4 The Recipient may disclose Confidential Information to the extent that such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of this disclosure as reasonably possible.

 

2.5 Each party shall comply with all the obligations imposed on a controller under all applicable data protection and privacy legislation in force from time to time in respect of any personal data that is shared between the parties.

 

3. Return of information

 

At the reasonable request of the Disclosing Party or the Receivers (or, in relation to Tenant Confidential Information, the relevant Tenant), the Recipient shall destroy or return the Confidential Information to the Disclosing Party and any materials (whether in written or other recorded form) containing or making use of the Confidential Information. 

 

4. Non solicitation

 

The Recipient undertakes that during the course of negotiations between the parties and/or their respective Representatives in relation to Project Puma and, if such negotiations cease, for a period of 12 months thereafter, it will not and it will take all reasonable endeavours to ensure that no Tenant under any lease of which it is the landlord will not solicit or offer to employ or engage any person who at any time during the course of negotiations between the parties and/or their respective Representatives is working for the Tenant (whether as an employee, consultant or independent contractor) either in an executive or managerial capacity or who is involved in negotiations relating to Project Puma, whether or not such person would breach his or her contract with the Tenant as a result.

 

5. Reservation of rights and acknowledgement

 

5.1 All Confidential Information shall remain the property of the Disclosing Party. The Disclosing Party reserves all of its rights in the Confidential Information. No rights, including, but not limited to, intellectual property rights, in respect of the Confidential Information are granted to the Recipient and no obligations are imposed on the Disclosing Party other than those expressly stated in this agreement.

 

5.2 Except as expressly stated in this agreement, neither the Disclosing Party nor the Receivers make any express or implied warranty or representation concerning  the Confidential Information, or the accuracy or completeness of the Confidential Information.

 

5.3 The disclosure of the Confidential Information by the Disclosing Party shall not form any offer by, or representation or warranty on the part of, the Disclosing Party to enter into any further agreement.

 

5.4 The Recipient acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party and the Receivers shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this agreement.

 

6. Term and termination

 

6.1 If a party decides not to become, or continue to be, involved in the Purpose with the other party, it shall notify the other party in writing promptly.

 

6.2 Termination of this agreement shall not affect any accrued rights or remedies to which the parties are entitled.  For the avoidance of doubt, the obligations upon the Recipient under this agreement with regards to the Confidential Information shall continue for a period of two years after the termination of this agreement.

 

7. Entire agreement and variation

 

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

 

7.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.

 

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

 

8. No waiver

 

8.1 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.

 

8.2 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.

 

9. Assignment

 

Except as otherwise provided in this agreement, the Recipient may not assign, sub-contract or deal in any way with, any of its rights or obligations under this agreement or any document referred to in it.

 

10. No partnership

 

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.

 

11. Indemnity

 

The Recipient shall indemnify the Disclosing Party and the Receivers against all liabilities, costs, expenses, damages and losses suffered or incurred by them arising out of or in connection with any breach of this agreement by the Recipient, any member of its Group or any of its Representatives.

 

12. Exclusion of Receivers Liability

 

12.1 The Receivers have appointed the Disclosing Party as their agent for the purposes of disclosing the Confidential Information and enforcing all other provisions contained in this agreement.

 

12.2 The Receivers act as agents of the registered proprietors of the properties to which the transaction is subject and will not incur any personal liability under or by virtue of this agreement, nor in relation to any related documents, matters or claims whatsoever.

 

12.3 Any information provided by the Receivers is done so without representation or warranty and the Recipient must conduct its own investigations and due diligence to satisfy itself of the accuracy of such information.  The Receivers accept no liability whatsoever in relation to this.

 

13. Third party rights

 

Save that each and any Tenant may enforce the provisions of this agreement in relation to any Tenant Confidential Information insofar as such Confidential Information relates to or was provided by it, a person who is not a party to this agreement shall not have any rights under or in connection with it.

 

14. Governing law and jurisdiction

 

14.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

 

14.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).