Non-Disclosure Agreement

(1) The Disclosing Party wishes to disclose to the Receiving Party (Psittacus Systems) information which is confidential to the Disclosing Party. Such disclosure to be only for the Stated Purposes of reviewing materials and content for the potential development within the Psittacus Blended Learning Environment for and on behalf of the Disclosing Party.

(2) The Disclosing Party wishes to ensure that that information is kept confidential and to prevent the Receiving Party from misusing or further disclosing that information to third parties without authorisation.

(3) In consideration of the Disclosing Party disclosing the Confidential Information to the Receiving Party, the Receiving Party hereby agrees that it will accept the Confidential Information subject to, and in accordance with the terms and conditions of this Agreement which will accordingly take effect and be binding as a contract.

IT IS AGREED as follows:

1. Definitions and Interpretation

• 1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

• 1.2 Unless the context otherwise requires, each reference in this Agreement to:
  • 1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
  • 1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
  • 1.2.3 “this Agreement” is a reference to this Agreement as amended or supplemented at the relevant time;
  • 1.2.4 a Schedule is a schedule to this Agreement;
  • 1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement
  • 1.2.6 a “Party” or the “Parties” refer to the parties to this Agreement.
• 1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
• 1.4 Words imparting the singular number shall include the plural and vice versa.

2. Disclosure

• 2.1 The Disclosing Party has a commercial or other interest in all such Confidential Information as it may disclose to the Receiving Party after the Parties enter into this Agreement.
• 2.2 The Receiving Party shall, subject to the provisions of Clause 7, at all times maintain as confidential and shall not use or exploit or reproduce any part or the whole of the Confidential Information directly or indirectly for any purposes other than the Stated Purposes without the express written consent of the Disclosing Party. Such unauthorised purposes may include, but are not limited to:
  • 2.2.1 Reproducing (or attempting to reproduce) any part of the Confidential Information, or to investigate or uncover otherwise undisclosed aspects of the Confidential Information (including, but not limited to, related confidential information);
  • 2.2.2 Using the Confidential Information, whether directly or indirectly, to procure (or attempt to procure) any commercial advantage for the Receiving Party, or a commercial disadvantage to the Disclosing Party;
  • 2.2.3 Carrying out any processes, making any inventions, further developments or applications for any registered Intellectual Property Rights from or based upon the Confidential Information;
• 2.3 The Receiving Party shall take all reasonable organisational, physical and technical measures to preserve the confidentiality of the Confidential Information.
• 2.4 In the event that the Confidential Information incorporates any personal data (as defined by The EU General Data Protection Regulation (EU GDPR)) (“the Act”), the Receiving Party shall ensure that it fully complies with the Act and in particular:
  • 2.4.1 The Receiving Party shall ensure that it has in place suitable organisational, physical and technical measures to facilitate its compliance with the Act; and
  • 2.4.2 Where any relevant Confidential Information is transferred to a third party, as under Clause 5, the Receiving Party shall take all reasonable organisational, physical and technical measures to ensure that such third parties are bound to comply with the Act to the same extent as the Receiving Party under this Agreement.
• 2.5 Following the fulfilment of the Stated Purposes or, if sooner, on demand by the Disclosing Party, the Receiving Party shall return all Confidential Information forthwith to the Disclosing Party and shall further provide a certificate to the Disclosing Party certifying that no copies of the Confidential Information have been made or retained.

3. Storage of Confidential Information

• 3.1 The Receiving Party shall only store the Confidential Information, whether electronically or in hardcopy form, in a designated dual access, secure cloud based storage facility folder.
• 3.2 Where the Receiving Party holds the Confidential Information in hardcopy form, it must be stored in a locked cabinet when not in use.
• 3.3 Where the Receiving Party holds the Confidential Information electronically, the Confidential Information shall be stored only on a cloud based computer, at www.dropbox.com. The Confidential Information stored on the Dropbox servers may be made accessible over the internet, only accessible by the Discloser and The Receiving Party.
• 3.4 If the Disclosing Party is not satisfied with any aspect of the Receiving Party’s storage arrangements, it shall have the right to request any such reasonable changes to those arrangements as it may deem necessary to satisfy the requirements described in this Agreement.

4. Employee Undertakings

• 4.1 The Receiving Party shall obtain from any and all of its employees to whom the Confidential Information or any part of it is to be disclosed or to whom the Confidential Information may be accessible, undertakings to the Disclosing Party which are enforceable by it and are binding upon those employees to the same extent as this Agreement is binding upon the Receiving Party.
• 4.2 The Disclosing Party shall not disclose any Confidential Information until any and all undertakings as described in sub-Clause 4.1 have been obtained and provided to it by the Receiving Party.

5. Third Party Disclosure and Undertakings

• 5.1 In the event that the Receiving Party requires or otherwise engages the services of a professional adviser or other third party who is not an employee and that third party reasonably requires access to the Confidential Information for the Stated Purposes, the Receiving Party must not disclose, or allow access to, the Confidential Information or any part of it to the third party:
  • 5.1.1 without the express written consent of the Disclosing Party; and
  • 5.1.2 without first obtaining an undertaking from the third party which is enforceable by the Disclosing Party and is binding upon the third party to the same extent as this Agreement is binding upon the Receiving Party.
• 5.2 The Disclosing Party shall not grant the consent referred to in sub-Clause 5.1.1 unless it is first in receipt of the third party undertaking set out in sub-Clause 5.1.2.

6. Proprietary Rights

The Confidential Information and all Intellectual Property Rights subsisting therein shall remain the property of the Disclosing Party (or its licensors, as appropriate) and the disclosure of the Confidential Information to the Receiving Party shall not confer upon the Receiving Party any rights whatsoever in any part of the Confidential Information.

7. Exceptions to Non-Disclosure and Confidentiality

The obligations set out in this Agreement relating to Confidential Information shall not apply to any information that:

• 7.1 is already known to, or in the possession of, the Receiving Party at the time of its disclosure by the Disclosing Party, and the Receiving Party is free of any other obligations of confidentiality with respect to it;
• 7.2 is in, or comes into, other than through any breach of this Agreement or other wrongful act or default of the Receiving Party, general circulation in the public domain;
• 7.3 is received by the Receiving Party from a third party free of any obligations of confidentiality similar to those set out in this Agreement, provided such receipt is not of itself a breach of this Agreement;
• 7.4 is, prior to disclosure by the Disclosing Party, already in the possession of the Receiving Party having been independently developed by the Receiving Party;
• 7.5 is disclosed to a third party by the Disclosing Party free of any obligations of confidentiality similar to those set out in this Agreement;
• 7.6 is approved for disclosure in writing by the Disclosing Party;
• 7.7 is declared by the Disclosing Party in writing to no longer be confidential;
• 7.8 is required to be disclosed by the Receiving Party under the Freedom of Information Act 2000; or
• 7.9 is required by law, by any court of competent jurisdiction, or by any government agency lawfully requesting the same to be disclosed provided that the Receiving Party notifies the Disclosing Party in advance of such disclosure.

8. Term

• 8.1 The obligations of confidentiality set out in this Agreement shall continue indefinitely, subject only to the exclusions set out in Clause 7.
• 8.2 As fully detailed in sub-Clause 2.5, following the expiry or termination of this Agreement, the Receiving Party shall return the Confidential Information to the Disclosing Party and shall ensure that no copies thereof are retained.

9. Enforcement and Indemnity

• 9.1 Both Parties hereby acknowledge that damages alone are unlikely to be an adequate remedy for any breach by the Receiving Party of this Agreement.
• 9.2 The Disclosing Party shall, without prejudice to any and all other rights and remedies which may be available, be entitled to the remedies of injunction, specific performance and other equitable relief for any breach of this Agreement by the Receiving Party, actual or threatened.
• 9.3 In addition to any rights or remedies whether at law or in equity to which the Disclosing Party may be entitled, the Receiving Party hereby agrees to indemnify the Disclosing Party against any and all liabilities and financial or other loss, damage, costs or expenses (including legal costs on a full indemnity basis), direct which may arise out of its breach of this Agreement (including, where applicable, any breaches by the Receiving Party of The EU General Data Protection Regulation (EU GDPR) which render the Disclosing Party liable).

10. Exclusion and Limitation of Liability

• 10.1 The Disclosing Party shall not have any obligation either to enter into any further transaction or agreement with the Receiving Party or to provide any, or any particular, information to the Receiving Party.
• 10.2 Neither the Disclosing Party, nor any of its employees, officers, agents, sub-contractors, subsidiaries or any other third parties associated therewith shall owe any duty of care in the provision of any information to the Receiving Party or accept any responsibility or liability for, or make any representation or warranty, express or implied, that the Confidential Information is accurate or complete.
• 10.3 Nothing in this Agreement shall limit or exclude the liability of either Party for fraud or fraudulent misrepresentation.

11. Non-Assignment of Agreement

The Receiving Party may not assign, transfer, sub-contract, or in any other manner make available to any third party the benefit and/or burden of this Agreement without the prior written consent of the Disclosing Party, such consent not to be unreasonably withheld.

12. Communication

• 12.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by the Party giving the notice or by a duly authorised officer thereof, as appropriate.
• 12.2 Notices shall be deemed to have been duly given:
  • 12.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
  • 12.2.2 when sent, if transmitted by facsimile or email and a successful transmission report or return receipt is generated; or
  • 12.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
  • 12.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
• 12.3 All notices under this Agreement shall be addressed to the most recent address, facsimile number, or email address notified to the other Party.

13. No Waiver

No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

14. Severance

The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

15. Entire Agreement

This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

16. Third Party Rights

No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

17. Variation

No variation of or addition to this Agreement shall be effective unless in writing signed by each of the Parties or by a duly authorised person on its behalf.

18. Law and Jurisdiction

• 18.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
• 18.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

19. Hard Copy NDA

A Signed hard copy of this agreement can be requested by the Discloser at a cost of £34.99 + VAT (to cover preparation and admin costs). To request a copy please contact [email protected] with the Subject Heading: Hard Copy NDA