ATTACHMENT 5
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
BETWEEN
KENYA AIRWAYS LIMITED
AND
[
]
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NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (the “Agreement”), is executed as at
the “Effective Date”), by and between:
2014
Company Name:
City and Country of Location:
With main offices at
and
KENYA AIRWAYS LIMITED with main offices at Kenya Airways Headquarters Airport North Road,
Embakasi, P.O. Box 19002 – 00501, Nairobi, Kenya;
(hereinafter collectively referred to as "the Parties").
WHEREAS, the Parties desire to enter into discussions and exchange information concerning a potential
partnership and potential business scenarios (the “Purpose”) and to ensure that the confidential information
revealed during such discussions will be protected from disclosure.
NOW THEREFORE, in consideration of the mutual agreements, conditions, covenants and promises
contained herein, including the foregoing recital, and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged by the Parties, the Parties agree as follows:
1.
For the purpose of this Agreement, the terms below shall have the following meanings:
“Confidential Information” shall mean all information, relating to the business, affairs, strategies,
financial condition, assets, operations, technology, services and other data concerning the Parties
and/or their affiliates and subsidiaries, that is either non-public, confidential or proprietary in
nature, in a form that may be transmitted in writing, orally, visually or by any other form or
medium to one Party by the other and/or its subsidiaries and affiliates in connection with the
Purpose, which (a) is identified as being confidential or (b) would reasonably be expected by a
recipient to be confidential or proprietary based on the nature of the information contained therein
and the circumstances in which the materials are provided. Any work product or portion thereof
relating to or derived from any Confidential Information, in whatever form contained, generated by
the Parties, which discloses Confidential Information shall also be deemed to be Confidential
Information.
Confidential information shall not include that which would otherwise be deemed Confidential
Information, but which:
(i) is or becomes generally available to the public through no fault or action by the Recipient
Party; or
(ii) is otherwise available to the general public or generally known or available to the public, or
(iii) is in the Recipient Party’s possession or becomes available to the Recipient Party on a nonconfidential basis from a source, other than the Disclosing Party, or
(iv) which a Recipient Party has independently developed without reference to Confidential
Information provided pursuant hereto by the Disclosing Party.
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“Recipient Party” shall mean any Party receiving any information from the other Party.
“Disclosing Party” shall mean any Party disclosing any information to the other Party.
2.
The Recipient Party agrees to restrict circulation of Confidential Information to those of its and its
affiliates’ officers, directors and employees (collectively, its “Representatives”)who (i) need to
know the Confidential Information for the Purpose; and (ii) are informed by the Recipient Party of
the confidential nature of the Confidential Information.
3.
Except as permitted herein or otherwise agreed between the Parties, the Recipient Party shall:
(a) use the Confidential Information only for the Purpose;
(b) hold and maintain the Confidential Information in strict confidence using the same degree of
care that they use with respect to comparable, highly confidential information relating to its
own business;
(c) not release, use, sell, transcribe, transfer, publish, disclose, copy (whether by machine or by
hand), display, reproduce, reverse engineer, decompile or disassemble, or otherwise deal with
the Confidential Information in any manner whatsoever; and
(d) not make the Confidential Information or any portion thereof, in any form or manner
whatsoever, available to any other third party.
4.
The Recipient Party shall be responsible for any disclosure or use by any of its Representatives of
any Confidential Information of the Disclosing Party that would, if such disclosure or use were
made by the Recipient Party, be a breach of the provisions hereof..
5.
The Parties acknowledge that the Confidential Information is and shall remain the sole and
exclusive property of the Disclosing Party, including all applicable rights to patents, copyrights,
trademarks and trade secrets inherent herein and pertinent thereto. The Recipient Party agrees to
promptly destroy all Confidential Information (including, without limitation, any derivatives,
portions, notes, copies or summaries thereof) upon written request by the Disclosing Party,
provided that (a) nothing in this Agreement shall require the destruction of Recipient Party’s
business records derived from the use of the Confidential Information to the extent such records are
produced and maintained for administrative or archival purposes and are treated as Confidential
Information according to the terms of this Agreementand (b) to the extent that any Confidential
Information required to be destroyed hereunder is in electronic form, the destruction of such
Confidential Information shall be deemed to have occurred upon its deletion from the Recipient
Party’s local hard drives and the Recipient Party shall not have any duty to delete such Confidential
Information from its back-up tapes and/or servers. At the request of the Disclosing Party, the
Recipient Party shall have a senior officer certify that all of the documents constituting the
Confidential Information have been destroyed in accordance with the foregoing.
6.
The Parties acknowledge that the disclosure of any aspect of the Confidential Information may give
rise to irreparable injury to the Disclosing Party which would be inadequately compensable in
damages. Accordingly, the Disclosing Party may seek to obtain injunctive relief to prevent the
unauthorized use or disclosure of the Confidential Information in addition to any other legal
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remedies which may be available to it, and the Parties hereby consent to the obtaining of such
injunctive relief in the event of unauthorized use or disclosure of the Confidential Information.
7.
Notwithstanding any provision to the contrary contained herein, the Recipient Party shall be
allowed to release Confidential Information received from the Disclosing Party if such Party is
compelled to disclose such Confidential Information pursuant to any law, legal process, regulation
or regulatory process, provided, however, as follows:
(a) that the Recipient Party shall take all reasonable steps to preserve the confidentiality of the
Confidential Information, including without limitation, requesting that the Confidential
Information not be released to third Parties or the public.
(b) that the Recipient Party gives the Disclosing Party prompt notice of the legal process, to the
extent that such notice is permissible, so that the Disclosing Party may seek an appropriate
protective order or pursue such other legal action necessary to preserve the confidentiality of
the Confidential Information; and
(c) that the Recipient Party provides reasonable assistance to and cooperates with the Disclosing
Party in its efforts to preserve the confidential nature of the Confidential Information.
8.
Any notice, demand or document which any Party is required or desires to give or deliver to or
make upon the other Party, shall be in writing and shall be:
(a)
personally delivered or
(b)
delivered by depositing in the Mail, registered or certified, return receipt requested, with
postage prepaid, addressed as follows:
If to [
]:
If to KENYA AIRWAYSLIMITED:
Airport North Road, Embakasi
P.O. Box 19002
Nairobi 00501
Kenya
Attention: Head of Supply Chain
Legal Department
Any notice, demand or documents shall be deemed to be effective upon receipt of the same by the
Party to whom said notice, demand or document is addressed.
9.
Except as otherwise noted herein, this Agreement shall expire five (5) years from the Effective
Date, unless earlier terminated by a Party by the giving of at least 30 days notice in writing.
Notwithstanding this, the Receiving Party’s obligations under this Agreement with respect to any
item of Confidential Information shall continue for three (3) years from the date of its disclosure.
The obligations of the Parties under this Agreement that by their nature continue beyond the
expiration or termination of this Agreement shall survive any termination or cancellation of this
Agreement.
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10.
This Agreement may be amended in whole or in part by written consent of the Parties. Such
amendment shall be effective as of the date then determined by the Parties and shall supersede any
provisions contained herein which are in conflict. No failure or delay by either Party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,
power or privilege under this Agreement. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other provisions of this Agreement,
which shall remain in full force and effect.
11.
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective successors and permitted assigns; provided, however, that neither Party shall assign this
Agreement or any other duty, obligation, interest or right hereunder without the prior written
consent of the other Party.
12.
This agreement shall be governed and controlled by and construed in accordance with the laws of
England and any actions brought hereunder or to enforce this Agreement shall be brought in the
High Court of Justice in England which shall have exclusive jurisdiction over any such dispute and
both parties hereby consent to personal jurisdiction therein. Each party hereto shall be entitled to
take such steps as it shall consider necessary or desirable in order to enforce any judgment or order
against any other party in any jurisdiction where the other party trades or has assets.
13.
This Agreement constitutes the entire agreement and understanding between the Parties and
supersedes any and all prior agreements and understandings, oral or written, relating to the
Confidential Information and the subject matter hereof.
[Signature Page to follow]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth above.
[
]
KENYA AIRWAYS LIMITED
_____________________________
___________________________
By:
By:
Title:
Title:
Date:
Date:
___________________________
By:
Title:
Date:
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