Mutual non-disclosure agreement

Mutual non-disclosure agreement

The Parties agree as follows:

1. 1Definitions

   1. 1.1

      In this agreement:

      1. (a)“Confidential Information” means all information, in any form or medium, disclosed by or on behalf of a Party (the “Discloser”) to the other Party (the “Recipient”) in connection with the Purpose, whether before or after the date of this agreement, including technical designs, site locations and layouts, grid-connection and power details, capacity and availability, pricing and commercial terms, financial information, customer, supplier and landowner details, and any analyses or notes the Recipient prepares that contain or reflect such information;
      2. (b)“Representatives” means a Party’s affiliates, and its and their directors, officers, employees, professional advisers, financiers and potential financiers, insurers and contractors who need to know the Confidential Information for the Purpose;
      3. (c)“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where control means the ownership of more than half of the voting rights or the power to direct management.
   2. 1.2

      The existence and content of the discussions between the Parties, and the fact that information has been made available, are also Confidential Information of each Party.

2. 2Confidentiality undertakings

   1. 2.1

      The Recipient shall:

      1. (a)use the Confidential Information solely for the Purpose;
      2. (b)keep the Confidential Information confidential and protect it with at least the degree of care it uses for its own information of a similar nature, and in any event no less than reasonable care;
      3. (c)not disclose the Confidential Information to any person except as permitted by clause 3 or clause 5; and
      4. (d)not copy or reproduce the Confidential Information except as reasonably necessary for the Purpose.
   2. 2.2

      The Recipient shall promptly notify the Discloser in writing on becoming aware of any unauthorised use or disclosure of Confidential Information and shall take reasonable steps to limit its effects.

3. 3Disclosure to Representatives

   1. 3.1

      The Recipient may disclose Confidential Information to its Representatives who need to know it for the Purpose, provided that before disclosure it informs them of its confidential nature and ensures they are bound by obligations of confidentiality no less protective than those in this agreement.

   2. 3.2

      The Recipient is responsible for any act or omission of its Representatives that would be a breach of this agreement if done by the Recipient.

4. 4Exclusions

   1. 4.1

      Clauses 2 and 3 do not apply to information that the Recipient can show by written evidence:

      1. (a)is or becomes generally available to the public other than through a breach of this agreement;
      2. (b)was lawfully in its possession free of any obligation of confidence before the Discloser disclosed it;
      3. (c)is lawfully received from a third party who is not under an obligation of confidence in respect of it; or
      4. (d)was independently developed by or for the Recipient without use of the Confidential Information.

5. 5Disclosure required by law

   1. 5.1

      The Recipient may disclose Confidential Information to the extent required by law, by a court or governmental or regulatory authority, or by the rules of any stock exchange on which its or its Affiliate’s securities are listed.

   2. 5.2

      Where legally permitted, the Recipient shall give the Discloser prompt written notice of the requirement, consult with the Discloser on its timing and content, disclose only the part of the Confidential Information that is legally required, and use reasonable endeavours to obtain confidential treatment for it.

6. 6Return and destruction

   1. 6.1

      Within [10] business days of a written request by the Discloser, or of either Party deciding not to proceed with the Purpose, the Recipient shall return or destroy all documents and materials containing the Discloser’s Confidential Information and delete it from its systems, and on request confirm in writing that it has done so.

   2. 6.2

      The Recipient may retain Confidential Information to the extent required by law or regulation, or held in automatic electronic back-ups that are not readily accessible, provided that the retained information remains subject to this agreement for as long as it is held.

7. 7Non-solicitation and non-circumvention

   1. 7.1

      For [12] months from the date of this agreement, neither Party shall directly or indirectly solicit for employment any employee of the other Party with whom it has had contact in connection with the Purpose. General recruitment advertising not targeted at the other Party’s employees is not a breach of this clause.

   2. 7.2

      For [24] months from the date of this agreement, neither Party shall use the other Party’s Confidential Information to contact, or to enter into any arrangement with, any landowner, grid operator, investor, supplier or customer identified by the other Party in its Confidential Information, with the aim of securing for itself the opportunity that is the subject of the Purpose, without the other Party’s prior written consent.

8. 8No licence, no warranty, no obligation

   1. 8.1

      All Confidential Information remains the property of the Discloser. No licence or other right in any intellectual property or other information is granted by this agreement, except the right to use the Confidential Information for the Purpose.

   2. 8.2

      Confidential Information is provided “as is”. The Discloser gives no representation or warranty as to its accuracy or completeness, and has no liability for the Recipient’s use of it, except as agreed in a definitive agreement.

   3. 8.3

      Nothing in this agreement obliges either Party to enter into any further agreement or transaction. Either Party may end discussions at any time, for any reason, by written notice.

9. 9Introduction through the platform

   1. 9.1

      The Parties acknowledge that they were introduced through AICapacity and that the terms of use of AICapacity that each of them has accepted continue to apply to any agreement between them arising from that introduction. AICapacity is not a party to this agreement and has no rights or obligations under it.

10. 10Personal data

    1. 10.1

       Each Party shall share personal data under this agreement only where necessary for the Purpose and shall comply with applicable data protection law, including the General Data Protection Regulation (EU) 2016/679, in respect of any personal data it receives. Each Party acts as an independent controller of the personal data it receives.

11. 11Duration

    1. 11.1

       This agreement starts on the date at the top of it and continues for [two] years. The obligations in clauses 2 to 7 continue in respect of Confidential Information disclosed during that period for [three] years after this agreement ends, and for any Confidential Information that is a trade secret for as long as it remains one.

12. 12Remedies

    1. 12.1

       Each Party acknowledges that damages alone may not be an adequate remedy for a breach of this agreement, and that the Discloser is entitled to seek injunctive relief, specific performance or other equitable relief for any threatened or actual breach, in addition to any other remedy.

13. 13General

    1. 13.1

       This agreement is the entire agreement between the Parties about its subject matter and supersedes any earlier arrangement concerning confidentiality of the information disclosed for the Purpose.

    2. 13.2

       No variation of this agreement is effective unless it is in writing and signed by both Parties. No failure or delay in exercising a right is a waiver of it.

    3. 13.3

       Neither Party may assign or transfer its rights or obligations under this agreement without the other Party’s prior written consent, except to an Affiliate that agrees in writing to be bound by it.

    4. 13.4

       If any provision of this agreement is found invalid or unenforceable, the remaining provisions continue in full force, and the Parties shall replace the invalid provision with a valid one that comes as close as possible to its intended effect.

    5. 13.5

       Notices under this agreement shall be in writing and sent by email to the addresses each Party gives below, with a copy by post or courier where the notice concerns a breach.

    6. 13.6

       This agreement may be signed in counterparts and by electronic signature, each of which is an original and together form one agreement.

14. 14Governing law and disputes

    1. 14.1

       This agreement and any dispute or claim arising out of or in connection with it are governed by the laws of [governing law].

    2. 14.2

       Any dispute arising out of or in connection with this agreement shall be finally resolved by [arbitration under the rules of [arbitral institution], with the seat of arbitration in [city] and the proceedings conducted in English / the courts of [country and city]].