Document:
NDA – Third party receiving
information from [ICPSO Name] and
giving confidentiality undertakings to
[ICPSO Name]
Governed by:
English Law
Dated:
15 June 2001
Status:
Final
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(1)
[ICPSO Name] LIMITED
(2)
NCS SERVICES (UK) LIMITED
_______________________________________________________________________
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
_______________________________________________________________________
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CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made the
day of
2001
BY AND BETWEEN
(1)
[ICPSO NAME] LIMITED, (Registered in England and Wales under number
[Reg Number]) whose registered office is at [Registered Office] (“[ICPSO
Name]”); and
(2)
NCS Services (UK) Limited (registered in England and Wales under number
3406513] whose registered office is at Hellaby Business Park, Hellaby, Rotherham
S66 8HN (“NCS Pearson”).
WHEREAS
(A)
NCS Pearson is an external company appointed by BT to undertake an auditing function
to monitor the performance of BT and other operators against the agreed activities and
processes for ICPS. (“Audit”).
(B)
The parties will be entering into discussions concerning the Audit and [ICPSO
Name] will be providing NCS Pearson with confidential information regarding
customer contact details and ICPS Diallers to enable NCS Pearson to carry out the
Audit (“Discussions”).
(C)
The parties wish to define the terms upon which [ICPSO Name] is prepared to
disclose confidential information to NCS Pearson and to ensure that the
confidentiality of the Discussions are maintained.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1.
DEFINITIONS
1.1
In this Agreement, the following words and phrases shall have the meanings
ascribed to them below:
“Agreement” means this agreement;
“Associated Company” in relation to a party means any subsidiary and holding
company of such party and any subsidiary of any such holding company, the terms
“subsidiary” and “holding company” having the meanings ascribed thereto in
sections 736 and 736A of the Companies Act 1985;
“BT” means British Telecommunications plc
“Confidential Information” means all information (whether in written, oral or
electronic format and whether disclosed directly or indirectly) designated as such by
[ICPSO Name] together with such other information which relates to the business,
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affairs, customers, products, developments, operations, processes, pricing,
networks, trade secrets, design rights, know-how and personnel of [ICPSO Name]
(and of any Associated Company thereof) which might reasonably be regarded as
the confidential information of [ICPSO Name] (or of such Associated Company);
“ICPS” means the interim form of carrier pre-selection under which a customer’s
request for service is implemented by an interim carrier pre-selection dialler
supplied by an operator which converts calls from the ICPS customer’s BT
exchange line into indirect access calls to the operator’s system ; and
“Intellectual Property Rights” means all title, rights or interests of [ICPSO
Name] in all patents, trade marks, service marks, registered designs, applications
for any of those rights, trade and business names (including internet domain names
and email address names), unregistered trade marks and service marks, copyrights,
know-how, database rights, rights in designs and inventions and all rights of the
same or similar effect or nature in any jurisdiction and including moral rights.
1.2
Headings are included in this Agreement for ease of reference only and shall not
affect the interpretation or construction of this Agreement.
1.3
References to Clauses are, unless otherwise provided, references to Clauses of this
Agreement.
2.
CONFIDENTIALITY
2.1
Subject to Clauses 2.2 to 2.4, NCS Pearson shall:
2.1.1
use Confidential Information only for the purpose of the Discussions and the
Audit;
2.1.2
disclose Confidential Information to its employees and their employees only
on a strictly need to know basis, and only for the purpose of the Discussions
and the Audit and NCS Pearson shall ensure that all such persons are made
aware, prior to disclosure of such Confidential Information, of the
confidential nature thereof and that they owe a duty of confidence to
[ICPSO Name];
2.1.3
disclose Confidential Information to a third party only with the prior written
consent of [ICPSO Name];
2.1.4
ensure that any third party to which Confidential Information is disclosed in
accordance with Clause 2.1.3 executes an undertaking with [ICPSO Name]
concerning the use and disclosure of Confidential Information on the terms
of Clauses 2 and 4;
2.1.5
make all reasonable efforts to prevent the use or disclosure of the
Confidential Information other than in accordance with the terms of this
Agreement; and
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2.1.6
2.2
effect and maintain adequate security measures to safeguard such
Confidential Information from unauthorised access, use and
misappropriation.
The provisions of Clause 2.1 shall not apply to any portion of the Confidential
Information which NCS Pearson can demonstrate to [ICPSO Name] satisfaction:
2.2.1
is in or comes into the public domain other than by the default of:(a)
NCS Pearson;
(b)
its employees; or
(c)
third parties to whom it has disclosed the Confidential Information;
2.2.2
has been independently generated by NCS Pearson;
2.2.3
was in the possession of or known by NCS Pearson prior to its receipt from
[ICPSO Name]; or
2.2.4
was provided to NCS Pearson by any third party who was free of any
restriction as to its use or disclosure at the time of such provision.
2.3
NCS Pearson may make such disclosure of Confidential Information as shall be
required to comply with the order of a Court of competent jurisdiction or with a
mandatory requirement of a governing regulatory body PROVIDED THAT NCS
Pearson shall, forthwith upon becoming aware of any requirement for such
disclosure, notify [ICPSO Name] in writing, and shall co-operate with [ICPSO
Name] and shall have due regard to the views and opinions of [ICPSO Name] and
take such steps as [ICPSO Name] may reasonably require in order to enable
[ICPSO Name] to mitigate the effects of or avoid the requirements for any such
disclosure.(7)
2.4
NCS Pearson shall within thirty (30) days of a request from [ICPSO Name], return
to [ICPSO Name] all media remaining in its possession provided to it by [ICPSO
Name] and containing Confidential Information and shall destroy or delete any
media prepared by it containing Confidential Information and shall within that
period provide to [ICPSO Name] written confirmation that such media has, as
appropriate, been returned, destroyed or deleted provided that any such request
under this clause would does not hinder or impair NCS Pearson's ability to perform
its role in respect of the Audit.
3.
INTELLECTUAL PROPERTY
All Intellectual Property Rights in all Confidential Information disclosed by
[ICPSO Name] to NCS Pearson and in all media comprising such Confidential
Information shall remain the property of [ICPSO Name] and nothing in this
Agreement shall be taken to represent an assignment, licence or grant of other rights
in or under such Intellectual Property Rights.
4.
PUBLICITY
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4.1
NCS Pearson shall not, without the prior approval in writing of [ICPSO Name],
directly or indirectly:
4.1.1
make any communication, public announcement, release or statement in any
way connected with the Discussions or the Audit; or
4.1.2
disclose to any person other than those referred to in Clause 2 the fact of the
conduct of the Discussions or the Audit.
4.2
Clause 4.1 shall not apply to a communication, public announcement, release or
statement required to comply with the order of a court of competent jurisdiction or
with a mandatory requirement of a governing regulatory body.
5.
REMEDIES
NCS Pearson agrees that monetary damages would not be a sufficient remedy for
breach of the terms of this Agreement and that [ICPSO Name] shall be entitled,
without prejudice to any other rights or remedies that may be available, to seek
injunctive relief or specific performance as a remedy for any such breach.
6.
REPRESENTATIONS AND WARRANTIES
Unless otherwise expressed in writing the disclosure of the Confidential
Information pursuant hereto and any prior or future discussions or communications
between the parties about the Discussions or the Audit shall not impose or create
any obligation on either party to enter into any legally binding obligations with the
other.
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7.
NOTICES
All notices required or authorised to be delivered by one party to the other under
this Agreement shall be in writing sent by prepaid registered post/airmail or by
facsimile transmission (immediately confirmed by post) and shall be deemed to
have been received forty eight (48) hours after such posting or transmission. Any
such notice shall be sent to the relevant party at the address stated for that party
above and shall be marked for the attention of:
To [ICPSO Name]:
To NCS Pearson:
[ICPSO Address]
The ICPS Project Manager
NCS Pearson Ltd
Hellaby Business Park
Hellaby, Rotherham,
S66 8HN
Fax: [ICPSO Fax]
Fax: 01709 700
8.
LAW AND JURISDICTION
8.1
This Agreement shall be governed by English Law.
8.2
The parties hereby submit to the non-exclusive jurisdiction of the English courts.
9.
ENTIRE AGREEMENT
Save as expressly stated herein, this Agreement represents the entire understanding
between the parties relating to the subject matter hereof and supersedes all previous
agreements, understandings or commitments between the parties whether oral or
written with respect to the subject matter hereof.
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AS WITNESS the hands of the duly authorised representatives of the parties at the date
first above written.
EXECUTED by the parties
----------------------------------For and on behalf of
[ICPSO Name] LIMITED
----------------------------------For and on behalf of
NCS PEARSON LIMITED
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