Non-Disclosure Agreement

 

STAVERTON PARK HOTEL & GOLF CLUB (THE “HOTEL” OR THE “PROPERTY”)

 

This agreement is made on the date you accepted the terms of this agreement (the “Agreement”).

 

Between

 

(1)          Stefan Holdings Sarl, a private limited liability company (Société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg with registered office 12E, rue Guillaume Kroll, L-1882 Luxembourg, Grand-Duchy of Luxembourg and registered with the Registre du Commerce et des Sociétés (under number B25597) (the “Disclosing Party” where applicable).

 

(2)          You and your company (indicated on your registration) (the"Recipient"); and

 

Each a “Party” and together referred to as “Parties”.

 

Recitals

 

1. The Disclosing Party wishes to disclose Confidential Information to the Recipient in relation to the Purpose.

2. The Disclosing Party wishes to ensure that the Recipient maintains the confidentiality of its Confidential Information.

3. In consideration of the benefits to Recipient of the disclosure of the Confidential Information, the Recipient has agreed to comply with the following terms in connection with the use and disclosure of Confidential Information.

 

It is agreed as follows:

 

1. Interpretation

 

1.1         In this Agreement the following words and phrases shall, unless contrary intention appears, have the following meanings:

 

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

 

1.1.2         Confidential Information –all information relating to the Purpose (however recorded, preserved or disclosed) disclosed by the Disclosing Party or its Representatives to the Recipient and its Representatives before, on or 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 existence and terms of this Agreement;

 

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

 

(i)      the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party or of the Disclosing Party's Group; and

 

(ii)     the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party or of the Disclosing Party's Group;

 

(d)    any information or analysis derived from Confidential Information;

 

but not including any information that:

 

(e)    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 Disclosing Party (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information); or

 

(f)      can be demonstrated was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or

 

(g)    the parties agree in writing is not confidential or may be disclosed.

 

1.1.3         Group –in relation to the Recipient, 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. In relation to Stefan Holdings Sarl, this means only any entity that Stefan Holdings Sarl directly or indirectly controls.

 

1.1.4         Purpose – the consideration and evaluation of the Hotel.

 

1.1.5         Representative –in relation to each Party:

 

(a)    its directors, officers, employees, consultants and those of its Group that otherwise disclose, or in the case of the Recipient only, need to know the Confidential Information for the Purpose;

 

(b)    its professional advisers, attorneys or consultants who are engaged to advise that Party in connection with the Purpose; and

 

(c)    any other person to whom the Disclosing Party agrees in writing that Confidential Information may be disclosed in connection with the Purpose.

 

1.2         In this Agreement unless the context otherwise requires:

 

1.2.1         Words denoting any one gender include all other genders and words denoting the singular shall include the plural and vice versa;

 

1.2.2         A reference to:

 

(a)    A “subsidiary” or “holding company” shall be construed in accordance with section 1159 of the United Kingdom Companies Act 2006, as in force at the date of this Agreement;

 

(b)    A document in the “agreed form” is a reference to a document in the form approved and, for the purpose of identification, initialled by the parties;

 

(c)    A “clause” is a reference to a clause of this Agreement;

 

(d)    A person includes a reference to a body corporate, an unincorporated association or a partnership and that person’s legal and personal representatives and successors;

 

(e)    Any statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time (whether before or after the date of this Agreement).

 

1.3         Headings are for ease of reference only and shall not affect the interpretation of this Agreement.

 

2. Obligations of confidentiality

 

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

 

2.1.1         not use or exploit the Confidential Information in any way except for the Purpose;

 

2.1.2         not utilise the Confidential Information to obtain any commercial advantage over the Disclosing Party or to compete with it, directly or indirectly;

 

2.1.3         not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;

 

2.1.4         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); and

 

2.1.5         apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use.

 

2.2         The Recipient may disclose the Disclosing Party's Confidential Information to those of its Representatives who need to know this Confidential Information for the Purpose, provided that:

 

2.2.1         it informs its Representatives of the confidential nature of the Confidential Information before disclosure;

 

2.2.2         it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with this Agreement as if they were the Recipient and, if the Disclosing Party so reasonably requests, procure that any relevant Representative enters into a confidentiality agreement with the Disclosing Party on terms equivalent to those contained in this Agreement,

 

and it shall at all times be liable for the failure of any Representative to comply with the terms of this Agreement.

 

2.3         The Recipient may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, any recognised stock exchange 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 prior notice of this disclosure and it takes into account the reasonable requests of the Disclosing Party in relation to the content of this disclosure.

 

2.4         The Recipient shall not make, nor permit any person to make, any public announcement concerning this Agreement, the Purpose or its prospective interest in the Purpose without the prior written consent of the Disclosing Party (such consent not to be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction. [The Recipient shall not make use of the Disclosing Party's name or any information acquired through its dealings with the other Party for publicity or marketing purposes without the prior written consent of the other Party.]

 

3. Return of information

 

3.1         At the written request of the Disclosing Party, the Recipient shall:

 

3.1.1         destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information;

 

3.1.2         erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and

 

3.1.3         confirm in writing to the Disclosing Party that it has complied with the requirements of this clause, provided that the Recipient may retain documents and materials containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority and to the extent reasonable to permit the Recipient to keep evidence that it has performed its obligations under this Agreement. The provisions of this Agreement shall continue to apply to any documents and materials retained by the Recipient.

 

3.2         If the Recipient develops or uses a product or a process which, in the reasonable opinion of the Disclosing Party, might have involved the use of any of the Disclosing Party's Confidential Information, the Recipient shall, at the request of the Disclosing Party, supply to the Disclosing Party information reasonably necessary to establish that the Disclosing Party's Confidential Information has not been used or disclosed.

 

4. Reservation of rights and acknowledgement

 

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

 

4.2         Except as expressly stated in this Agreement, the Disclosing Party makes no express or implied warranty or representation concerning its Confidential Information, or the accuracy or completeness of the Confidential Information, and accordingly, no liability will attach to the Disclosing Party or its Representatives as a result of reliance on the Confidential Information by the Recipient.

 

4.3         The disclosure of 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 in relation to the Purpose or the development or supply of any product or service to which the Confidential Information may relate.

 

4.4         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 shall be entitled to seek the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this Agreement.

 

4.5         Should any unauthorised disclosure of Confidential Information take place by the Recipient or its Representatives, the Disclosing Party shall in addition to any other remedy, be entitled by written notice to the Recipient to terminate all obligations to provide Confidential Information to the Recipient (if any) in relation to the Purpose with immediate effect.

 

4.6         Each Party warrants that it is able to, and the signatory to this Agreement has the authority to, execute this Agreement.

 

5. Term and termination

 

5.1         This Agreement shall continue for a period of three (3) years from the last date that Confidential Information is disclosed to the Recipient or its Representatives under this Agreement.

 

5.2         Termination of this Agreement shall not affect any accrued rights or remedies to which either Party is entitled.

 

6. General

 

6.1         This Agreement and the documents referred to in it contain the whole agreement between the parties relating to the transactions contemplated by this Agreement and supersede all previous agreements between the parties relating to these transactions.

 

6.2         The Recipient acknowledges that in entering into this Agreement it has not relied on any representation, warranty, agreement, statement or other assurance (except those set out in this Agreement) made by or on behalf of the Disclosing Party and that (in the absence of fraud) it will not have and it hereby explicitly waives any right or remedy arising out of any representation, warranty, agreement, statement or other assurance not set out in this Agreement.

 

6.3         No variation or agreed termination of this Agreement shall be of any force or effect unless in writing and signed by each Party.

 

6.4         Any failure to exercise or any delay in exercising any right or remedy under this Agreement shall not constitute a waiver of that right or remedy or a waiver of any other right or remedy and no single or partial exercise of any right or remedy under this Agreement will prevent any further exercise of that right or remedy or the exercise of any other right or remedy.

 

6.5         This Agreement is personal to the parties and no Party shall, without the prior written consent of each other Party, assign, declare itself as trustee or otherwise dispose of or sub-contract, delegate, mortgage or charge any interest under this Agreement. No Party shall sub-contract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.

 

6.6         A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

 

7. Non-Solicitation

 

7.1         Neither the Recipient nor their Representatives shall, without the prior written consent of the Disclosing Party, at any time from the date of this Agreement to the date of termination of this Agreement as contemplated in clause 6:

 

7.1.1         directly or indirectly solicit or entice away from the Disclosing Party or employ or attempt to employ any person who is, at any time during the negotiations relating to the Purpose, an employee of or consultant to the Disclosing Party or their Group; and/or

 

7.1.2         contact or seek the custom of any person who is, or was, a client or customer of the Disclosing Party or their Group.

 

8. NON-CIRCUMVENT

 

8.1         The Recipient warrants that, except with the prior written consent of the Disclosing Party, they will not, nor cause any other party, directly or indirectly, to circumvent the Disclosing Party in any transaction or opportunity mentioned in or derived from the Confidential Information.

 

8.2         The Recipient agrees that, without the prior written consent of the Disclosing Party, it will not enter into, directly or indirectly, any agreements with any third party (other than Recipient’s Representatives) with respect to the Transaction that would restrict such third party from independently pursuing a Transaction with Disclosing Party.

 

9. Notices

 

9.1         Any notice or other communication under or in connection with this Agreement shall be in writing (email being sufficient) and shall be delivered personally or by commercial courier to the parties due to receive the notice or communication at its address set out above, or at such other address as the relevant Party may specify by notice in writing to the other parties.

 

9.2         Any notice or other communication shall be deemed to have been duly given if delivered personally when left at the address referred to in the immediately preceding clause, or delivered by commercial courier on the date of signature of the courier’s receipt.

 

10. Governing Law

 

10.1     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 the law of England and Wales.

 

10.2     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).

 

11. Counterparts

 

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but the counterparts together shall constitute one and the same instrument.

 

12. 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”.