Mutual Non-Disclosure Agreement Template

MUTUAL NON-DISCLOSURE AGREEMENT
AUCKLAND SPORT
[PARTY NAME]
Barristers & Solicitors
Auckland, Wellington & Christchurch
New Zealand
www.simpsongrierson.com

MUTUAL NON-DISCLOSURE AGREEMENT
AGREEMENT DATED 2021
PARTIES
1. AUCKLAND SPORT, operating as Aktive, being the board of trustees of the
charitable trust of that name incorporated under the Charitable Trusts Act 1957
(registration number 2580062) and having its registered office at Auckland (Aktive),
2. [INSERT PARTY NAME], [a company/charity/incorporated society incorporated in
New Zealand (company number [insert])] [an incorporated society (number [insert])],
having its registered office address at [insert registered office address]
BACKGROUND
A. The parties have agreed to disclose Information to each other in connection with
the Proposal, on the basis that the Recipient of Information preserves the
confidentiality of that Information at all times and only uses that Information for the
purposes of assessing the Proposal.
B. The Information will only be disclosed for evaluating the Proposal and in
consideration of the Recipient's obligations in this agreement.
THE PARTIES AGREE THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this agreement, unless the context indicates otherwise:
Business Day means any day excluding Saturdays, Sundays and statutory public
holidays in Auckland, New Zealand.
Discloser shall, as the context permits, be a reference to either Aktive or [INSERT
PARTY NAME], being a discloser of Information to the other party from time to time.
Information means:
(a)
(b)
(c)
(d)
All Information: all information concerning the Discloser's business or
affairs supplied or made available to the Recipient (or any of its Related
Companies) by or on behalf of the Discloser;
Notes, Reports etc: all notes, reports, analyses, copies, reviews of and
extracts from the above information made by the Recipient (or any of its
Related Companies) or on its behalf;
Knowledge: any knowledge or information acquired by the Recipient (or
any of its Related Companies) or on its behalf as a direct result of acquiring
or holding the above information; and
Proposal: the fact of the Proposal itself, all information regarding the
existence and status of any investigations, negotiations or discussions in
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respect of the Proposal, and the existence of and contents of this
Agreement.
Proposal means [include a brief description of the proposal / purpose of the
information sharing].
Recipient shall, as the context permits, be a reference to either Aktive or [INSERT
PARTY NAME], being a recipient of Information from the other party from time to
time.
Related Entity means in respect of any party includes a reference to an entity
controlling, being controlled by or being under common control with that party,
where control means that an entity (whether directly or indirectly and whether by
the ownership of share capital, the possession of voting power, contract or
otherwise) has the power:
(a)
(b)
(c)
to appoint and/or remove the majority of the members of the governing
body of the other entity;
to appoint a member or members of the governing body of the other
entity, with the power to exercise, or control the exercise of, more than
50% of the maximum number of votes that might be cast at a meeting of
the governing body or by the members of the other entity; or
to control, by any other means, the affairs and policies of the other entity.
Representative means, in relation to the Recipient, the Recipient’s directors,
officers and employees, and bona fide professional advisers engaged for the
Proposal.
1.1 Interpretation: In this agreement, unless the context indicates otherwise:
(a)
(b)
Defined Expressions: expressions defined in the main body of this
agreement have the defined meaning throughout this agreement,
including the background;
Headings: clause and other headings are for ease of reference only and
will not affect this agreement's interpretation;
(c) Parties: references to any party include that party's executors,
administrators, successors and permitted assigns;
(d) Persons: references to a person include an individual, company,
corporation, partnership, firm, joint venture, association, trust,
unincorporated body of persons, governmental or other regulatory body,
authority or entity, in each case whether or not having a separate legal
identity;
(e)
Plural and Singular: references to the singular include the plural and
vice versa;
(f) Statutory Provisions: references to any statutory provision are to
statutory provisions in force in New Zealand and include any statutory
provision which amends or replaces it, and any by-law, regulation, order,
statutory instrument, determination or subordinate legislation made under
it;
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(g)
Negative Obligations: any obligation not to do anything includes an
obligation not to suffer, permit or cause that thing to be done;
(h) Inclusive Expressions: the terms include and including (and any
similar expression) are deemed to be followed by the words without
limitation; and
(i) Documents: references to any document (however described) are
references to that document as modified, novated, supplemented, varied
or replaced from time to time and in any form, whether on paper or in an
electronic form.
2. UNDERTAKINGS REGARDING INFORMATION
2.1 Disclosure and Use: The Recipient will keep all Information confidential and will
not, except as permitted by this agreement:
(a)
Disclose: disclose Information, or permit it to be disclosed, to any person;
or
(b) Use: use or refer to the Information for any purpose other than for
evaluating the Proposal, or in any way which is detrimental to, or in actual
or potential competition with, the Discloser.
2.2 Security of Information: The Recipient will, at all times, use adequate security
measures to preserve the confidential nature of the Information, at least equivalent
to the measures it would prudently use for its own valuable and sensitive
confidential information.
2.3 Copying of Information: The Recipient will not copy, reproduce or electronically
store any Information, nor permit any Information to be so copied, reproduced or
stored, except to the extent absolutely necessary to enable the Recipient and its
Representatives effectively to evaluate the Proposal.
2.4 Exceptions: The following Information is not subject to the restrictions in clauses
2.1 to 2.3 of this agreement:
(a) Information Already Known: Information that the Recipient
demonstrates (to the reasonable satisfaction of the Discloser):
(i)
(ii)
was already known to the Recipient at the time of disclosure; or
came into the Recipient's possession other than as a result of
breach or non-performance of any confidentiality obligation owed
to the Discloser or its Related Companies;
(b)
(c)
Public Information: Information that the Recipient demonstrates (to the
reasonable satisfaction of the Discloser) is, at the time of disclosure, or
subsequently becomes, public knowledge, other than as a result of breach
or non–performance, by the Recipient or any of its Representatives, of any
confidentiality obligation owing to the Discloser or its Related Companies;
and
Discloser's Agreement: Information to the extent that the Discloser has
expressly agreed in writing that the Recipient need not keep that
Information confidential.
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2.5 Recipient to Notify any Breach: The Recipient will notify the Discloser
immediately upon the Recipient becoming aware of a suspected or actual breach
of this agreement by the Recipient or by any Related Company or Representative
of the Recipient and must take all reasonable steps, at its own expense, required
to prevent or stop such suspected or actual breach.
3. PERMITTED DISCLOSURES
3.1 Disclosure to Related Companies and Representatives: Notwithstanding
clause 2.1, the Recipient may disclose the Information to its Related Companies
and its Representatives but only for the purpose that the Information was disclosed
to the Recipient.
3.2 Recipient Responsible: The Recipient will procure that none of its Related
Companies or Representatives will do any act, matter or thing which, if done by the
Recipient, would constitute a breach of the obligations of the Recipient under this
agreement but, if any Representative or Related Company does any such act,
matter or thing, then the Recipient will be or will be deemed to be in breach of this
agreement and will be responsible for such breach.
3.3 Disclosure Required by Law: If the Recipient, or any Representative of the
Recipient to whom Information has been disclosed under this agreement, is
required by law, by any court of competent jurisdiction or by the rules of a
recognised stock exchange to disclose any Information then, before any information
is disclosed to the extent permitted by law and practicable:
Commented [SG1]: Please consider whether this particular
obligation is necessary on a case-by-case basis.
(a)
(b)
Written Notice: the Recipient will give written notice of such requirement
to the Discloser, as promptly as practicable, detailing the requirement for
disclosure and the precise Information required to be disclosed, so that
the Discloser may, at its sole discretion, take such action as it thinks fit to
protect the Information or waive compliance with this agreement’s terms;
Partial Disclosure on a Confidential Basis: the Recipient will only
disclose that Information which it is legally required to disclose in order to
discharge the Recipient’s legal obligations (or other person’s obligations)
and in such case the Recipient will use its best endeavours to ensure that
such Information will otherwise be treated confidentially; and
(c) Reasonable Directions: the Recipient will comply with reasonable
directions by the Discloser to contest or resist any requirement to disclose
Information.
4. RECIPIENT ACKNOWLEDGMENTS
The Recipient acknowledges that:
4.1 Proprietary Rights: as between the parties, proprietary rights (if any) in the
Information will remain with the Discloser and the Recipient will not contest or
dispute the ownership of the Information by the Discloser;
4.2 Recipient Responsible: the Information is provided solely on the basis that the
Recipient will make and solely rely on the Recipient's own independent
investigation, judgment and evaluation of the Information;
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4.3 No Representations or Warranties: the Discloser makes no representation or
warranty (express or implied) about the accuracy, adequacy, completeness and
currency of the Information or as to the materiality of the Information in the context
of the Proposal;
4.4 Related Companies’ and Representatives’ Acts: acts or omissions by a Related
Company or Representative of the Recipient in relation to Information are deemed
to be acts or omissions by the Recipient, and the Recipient will be liable for any act
or omission of any of its Related Companies or Representatives who receive the
Information where that act or omission results in a breach or deemed breach by the
Recipient of this agreement;
4.5 No Liability: the Discloser will not have any liability to the Recipient resulting from
the use of the Information;
4.6 No Direct Contact: it must not make contact (other than in the ordinary course of
business) with any person or persons to seek information for any purpose related
to the Proposal, other than as approved by the Discloser. The Recipient will not
seek any information related to the Proposal from any source other than through
the Discloser’s advisers, officers or employees authorised to disclose the same.
5. NO SOLICITING AND COMPETITION
Commented [SG2]: Please consider whether this clause is
necessary in the context of the relevant Proposal.
The Recipient acknowledges that the Information contains commercially sensitive details
about the business. That Information could be used in a manner that is harmful to or
competitive with the business. Accordingly, for a period of two years from the date of this
agreement, the Recipient will not (either itself or through any affiliate) and the Recipient will
procure that no agent or affiliate will, directly or indirectly:
5.1 Employees or Customers: solicit, or knowingly approach and endeavour to entice
away, any of the employees or customers of the business; or
5.2 Business: carry on or engage in any business which is similar to, or competitive
with, the business,
in each case, without the prior written consent to the Discloser, which consent may be
withheld in the Discloser’s absolute discretion. Nothing in this clause 5 prevents the
Recipient from engaging in good faith advertising or a recruitment campaign targeted at a
wide range of potential employees or engaging with an applicant in response to an unsolicited
approach.
6. RETURN OF INFORMATION
Commented [SG3]: While this non-solicitation clause is
standard, it may not be necessary. Please consider and
remove as appropriate.
6.1 Return or Destroy: On completion or discontinuance of the Proposal, or earlier if
requested in writing by the Discloser, the Recipient will promptly and in any event
within 10 Business Days:
(a)
(b)
Return or Destroy: return to the Discloser or, at the Discloser’s option,
destroy all records and copies of Information held by or on behalf of the
Recipient; and
Delete: use its best endeavours to delete all Information from any
computer containing Information.
6.2 Confirmation of Destruction: On compliance with clause 6.1, the Recipient must
provide the Discloser with confirmation of the compliance in writing.
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6.3 Legal Requirement: Notwithstanding clause 6.1, the Recipient and its
Representatives may retain Information in order to comply with applicable law or
regulation by any competent, judicial, governmental, supervisory or regulatory
body, provided always that any retained Information must continue to be held by
the Recipient and its Representatives subject to the undertakings set out in clause
2.
6.4 Inaccessible Data: Notwithstanding clause 6.1, the Recipient and its
Representatives may retain any Information which is not readily accessible to the
Recipient or its Representatives due to the standard data storage procedures of the
Recipient or that Representative, provided always that any retained Information
must continue to be held by the Recipient and its Representatives subject to the
undertakings set out in clause 2.
7. RECIPROCAL NON-DISCLOSURE
In consideration of the Recipient entering into this agreement, the Discloser undertakes to
the Recipient that it will, and will direct that its Related Companies and its and their directors,
officers, employees, agents, advisers, consultants, insurers and contractors will, keep in strict
confidence and will not, without the prior written consent of the Recipient, disclose:
7.1 Information: any information regarding the fact that Information is or was being
made available to the Recipient or any Representative of the Recipient; or
7.2 Process: the existence and status of any discussions or negotiations between the
Discloser, any of its Related Companies, its or their respective directors, officers,
employees, agents or advisers and the Recipient or any Representatives relating
to the Proposal,
provided that the exceptions to the Recipients obligations regarding the Information set out
in will also, for the purposes of this clause, apply to the Discloser’s obligations in respect of
the above information (with all necessary modifications).
8. REMEDIES
The Recipient acknowledges that, in the event of an alleged breach of this agreement by the
Recipient or any of its Related Companies and Representatives, damages may not be an
adequate remedy and the Discloser will be entitled to seek equitable relief, including
injunction and specific performance, in addition to all other remedies available to the
Discloser. The rights, powers and remedies provided in this agreement are cumulative and
are in addition to any rights, powers or remedies provided by law.
9. DURATION OF OBLIGATIONS
The Recipient's obligations under this agreement will cease 24 months after the date of this
agreement, except and to the extent that the Discloser has, prior to the expiration of the
24 month period, indicated in writing to the Recipient that specific Information remains
confidential and that the Recipient's obligations in relation to such information will continue
indefinitely.
Commented [SG4]: Please consider whether this duration is
practical. Legal advice should be obtained if there are
intentions to extend this beyond a 24-month period.
10. NOTICES
10.1 Method of Delivery: Any notice required under this agreement must be in writing
and signed by a duly authorised senior representative of the party giving that notice
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and (without limiting the means by which notice may be given under this agreement)
will be deemed validly given if:
(a)
(b)
Hand: delivered by hand to the intended recipient's physical address as
set out on the first page (or to such other physical address as the intended
recipient notifies to each other party by written notice from time to time);
or
Email: sent by email to the intended recipient's email address as set out
below and if the recipient acknowledges receipt (whether by way of an
automated message or otherwise)
Aktive:
Email:
[email]
[INSERT PARTY NAME]:
Email:
[email]
10.2 Time of Delivery: Any notice transmitted by email or delivered after 5.00 pm on a
Business Day, or at any time on a non-Business Day, will be deemed received at
9.00 am on the next Business Day (being, in each case, the time of day at the
intended place of receipt of that notice).
11. GENERAL
11.1 Costs: Unless otherwise stated in this agreement, each party will bear its own
costs and expenses in connection with the negotiation, preparation and
implementation of this agreement.
11.2 Partial Invalidity: If any provision of this agreement is or becomes invalid or
unenforceable, that provision will be deemed deleted from this agreement. The
invalidity or unenforceability of that provision will not affect the other provisions of
this agreement, all of which will remain in full force and effect to the extent permitted
by law, subject to any modifications made necessary by the deletion of the invalid
or unenforceable provision.
11.3 Entire Agreement: This agreement records the entire understanding and
agreement of the parties relating to the matters dealt with in this agreement. This
agreement supersedes all previous understandings or agreements (whether
written, oral or both) relating to such matters.
11.4 Further Assurances: Each party will do all things and execute all documents
reasonably required to give effect to the provisions and intent of this agreement.
11.5 Contracts Privity: The Recipient's obligations under this agreement are intended
to be for the benefit of, and enforceable by, the Discloser and any Related Company
of the Discloser for the purposes of Part 2, Subpart 1 of the Contract and
Commercial Law Act 2017. However, this agreement may be varied by agreement
between the Recipient and the Discloser.
11.6 Waiver: Any waiver by a party of any of its rights or remedies under this agreement
will be effective only if it is recorded in writing and signed by a duly authorised senior
representative of that party. If the waiver relates to a breach of any provision of this
agreement, this will not (unless stated otherwise) operate as a waiver of any other
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breach of that provision. No waiver of any breach, or failure to enforce any
provision, of this agreement at any time by either party will in any way affect limit or
waive that party's right to subsequently require strict compliance with this
agreement.
11.7 Counterparts: This agreement may be signed in counterparts. All executed
counterparts will together constitute one document.
11.8 Copies: Any copy of this agreement that is received by facsimile or via email in
PDF or other document reproduction format (including any copy of any document
evidencing a party's signature to this agreement) may be relied on by any party and
presented in evidence in any legal proceedings as though it were an original copy
of this agreement.
11.9 Amendment: No amendment to this agreement will be effective unless it is in
writing and signed by a duly authorised senior representative of each party.
11.10 Assignment to Purchaser: The Discloser may assign or otherwise transfer any of
its rights or obligations under this agreement to a purchaser of substantially all of
its business.
11.11 Assignment: Subject to clause 11.10, neither party will assign or otherwise
transfer any of its rights or obligations under this agreement to any other person
without the other party's prior written consent.
11.12 Governing Law and Jurisdiction: This agreement is governed by the laws of New
Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand
courts in respect of all matters relating to this agreement.
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SIGNED AS AN AGREEMENT
SIGNED on behalf of AKTIVE by:
Signature of authorised signatory
Signature of authorised signatory
Name of authorised signatory
Name of authorised signatory
Role of authorised signatory
Role of authorised signatory
SIGNED on behalf of [INSERT PARTY
NAME] by:
Signature of authorised signatory
Signature of authorised signatory
Name of authorised signatory
Name of authorised signatory
Role of authorised signatory
Role of authorised signatory
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