CLICK-THROUGH NON-DISCLOSURE AGREEMENT
This website data room (“Website”) is made available to individuals with the prior approval of Leprino Foods EU Limitedand its advisors in connection with the possible sale of all or part of the property owned by Lrprino Foods Limited (the “Project”). In consideration of the use of the Website, you the individual accessing Confidential Information and the legal entity on behalf of which you are acting (together the “Recipient”) hereby agree to be bound by the terms of this non-disclosure agreement. This agreement applies to each and every occasion on which the Website is accessed by the Recipient or a Representative.
Leprino Foods EU Limited (the “Disclosing Party”) have or will disclose to Recipient certain Confidential Information (defined below) relating to the Project through this Website or otherwise.
Access to the Website is only granted with Leprino Foods EU Limited prior consent, and such consent may be withdrawn at any time without prior notice. No information made available on the Website shall constitute an offer to sell, or an invitation to purchase or tender for, any assets or securities or form the basis of any contract.
The Parties agree as follows:
1. Definitions
1.1. “Confidential Information” means all information related to the assets, business or operations of XXXX and its Affiliates disclosed, by any means and whether identified as confidential or not, to Recipient in connection with the Project, including, but not limited to, business and marketing information and plans, inventions, products, processes, developments, methods, systems, improvements, trade secrets, technology, software and/or data, ideas, strategies, financial information, production information, formulations, manufacturing processes, product standards and specifications. For the avoidance of doubt, any ideas, documents, products or processes derived, in whole or in part, from, or which include any material portions of the information described above is also considered to be Confidential Information.
1.2. “Representatives” means directors, officers, employees, agents and professional advisors of the Parties and of its Affiliates (if applicable).
1.3. “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control of the Recipient’s parent company or Leprino Foods EU Limited respectively where “control” means:
a. direct or indirect ownership, in an entity of fifty (50) percent or more of the voting rights conferred by all the issued shares or equity interests in the capital of that entity; or
b. the power to determine directly or indirectly the composition of the majority of the board of directors, similar management body or direct the management of such entity.
2. Maintaining confidentiality. Recipient will not (i) disclose any Confidential Information, except as established in this agreement, or (ii) use Confidential Information for any purpose other than the Project.
Without limitation to the foregoing, whilst using the Website, the Recipient shall: (i) take all reasonable steps to ensure that none of the Confidential Information is visible to, or capable of being overlooked by, other persons; (ii) not leave their computer or other communications device through which they access the service unattended whilst connected to the Website; (iii) ensure that they close the browser and log out when they have finished using the Website; (iv) not deface, mark, alter, modify, vary (including varying the sequence of), damage or destroy in any way any Confidential Information contained on the Website; and (v) not share their Website password with anyone else.
3. Permitted disclosure. Recipient may only disclose Confidential Information to its Representatives on a need-to-know basis, on condition that (i) Recipient has informed its Representatives of the confidential nature of the Confidential Information and (ii) the Representatives are obliged (whether by their contracts of employment, service or otherwise) to maintain the confidentiality of the Confidential Information in terms at least as stringent as the terms of this agreement. Recipient will remain responsible for any breach of this agreement by any of its Representatives. Additionally, the Recipient may disclose Confidential Information if required by applicable law.
4. Exceptions. The confidentiality obligations of this agreement will not apply to any Confidential Information which Recipient can prove: (i) it has come within the public domain through no fault of or action by Recipient or its Representatives; (ii) it already is in the possession of Recipient or one of its Representatives at the time of disclosure by XXXX as result of a previous disclosure by a third party which is lawfully in possession of such Confidential Information and not in violation of any contractual or legal obligation to XXXX; (iii) it is independently discovered by Recipient without the aid, application or use of the Confidential Information; or (iv) after it is disclosed under this agreement, is obtained by Recipient from any third party which is lawfully in possession of such Confidential Information and not in violation of any contractual or legal obligation to XXXX with respect to such Confidential Information.
5. Term. Recipient’s obligations under this agreement will commence immediately and last during the Project and for 5 years thereafter, even in case of early termination of this agreement, unless, however, the applicable law establishes a different period of protection for a Confidential Information.
6. Return or destruction of Confidential Information. After the end of the Project or access to the Website being removed as described above, or at any time upon written request of Leprino Foods EU Limited Recipient will immediately return or destroy (to the maximum extent possible), at Leprino Foods EU Limitednoption: (i) any and all Confidential Information; and (ii) any and all information downloaded, derived or generated from the Website, including in each case that portion of the information which consists of analysis, compilations, studies or any other documents internally prepared by Recipient or its Representatives to the extent containing or reflecting Confidential Information and/or information downloaded from the Website. If Leprino Foods EU Limited requests that the Confidential Information be destroyed, Recipient must provide Leprino Foods EU with a certificate of destruction.
7. Nondisclosure of agreement. Recipient and its Representatives will not make any announcement or disclose to any third party the fact that Leprino Foods EU Limited and/or its Affiliates and Recipient have a business relationship with each other, if any,that the Parties hereto have entered into this agreement or been given access to the Website or the status, terms or content of any discussions or agreements between Leprino Foods EU and/or its Affiliates and Recipient, without the prior written consent of Leprino Foods EU Limited.
8. Remedies for breach. Recipient understands that Leprino Fods EU Limited may suffer irreparable harm in the event of any breach or threatened breach of the confidentiality of the Confidential Information by Recipient or its Representatives and that monetary damages may be inadequate to compensate Leprino Foods EU Limited for any such breach or threatened breach. Accordingly, XXXX will, in addition to any other remedies available at law or in equity, be entitled to seek injunctive relief to enforce the confidentiality of its Confidential Information.
9. Indemnification. Recipient will defend, indemnify and hold Leprino Foods EU Limited its affiliates and their respective Representatives harmless from and against any and all losses, damages, claims, lawsuits, regulatory proceedings, costs and expenses, including, but not limited to, reasonable attorneys’ fees and court costs, incurred in connection therewith, arising from a breach or threatened breach of this agreement by Recipient or its Representatives.
10. No further commitments. Nothing in this agreement will constitute an offer or obligation on the Parties to enter into any further transaction.
11. Property of the Confidential Information. All Confidential Information will remain the exclusive property of Leprino Foods EU Limited or its Affiliates. No license or any other rights (other than the right of Recipient to use the Confidential Information according to the terms of this agreement) are granted by XXXX or by any disclosure made under this agreement.
12. Representation. No representation or warranty, express or implied, is made or given as to the adequacy, accuracy, reliability or completeness of the Confidential Information or as to the reasonableness of any assumptions on which any of it is based. The Recipient agrees, on its own behalf and on behalf of any person to whom they make known any part of the Confidential Information (subject to the provisions of this agreement), that except as may be otherwise provided in any such final sale and purchase agreement, none of XXXX or its Representatives have any responsibility or liability to the Recipient or its Representatives resulting from the use of the Confidential Information. In making the Confidential Information available, XXXX is under no obligation to provide any additional information or to update or correct any inaccuracies which may become apparent in any of the Confidential Information.
13. Governing law and jurisdiction. This agreement will be governed by and construed exclusively in accordance with the laws of Ireland , excluding its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this agreement. The jurisdiction for any dispute arising out of or in connection with this agreement will be the competent courts in the city of Dublin, Ireland, the competence of the Irish Court being reserved. Nothing in this clause prevents any of the Parties from seeking orders from a court for any urgent interlocutory or other equivalent injunctive relief. The prevailing party in any dispute will be entitled to reasonable attorneys’ fees and court and mediation costs.
14. Communication. Any notice or other communication required or permitted to be given pursuant to this agreement between the Parties will be deemed to have been sufficiently given if in writing and addressed to the domiciles indicated on the first page of this agreement.
15. No assignment.Recipient will not delegate any duties, or assign or transfer any rights or claims under this agreement without the prior written consent of Leprino Foods EU Limited, and any such delegation, assignment or transfer without such prior written consent will be null and void. Any consent from Leprino Foods EU Limited to such transfer will in no way relieve Recipient of its responsibilities. Leprino Foods EU Limited may assign, transfer or delegate its rights and obligations under this agreement, including its proprietary rights, in whole or part, as well as its position as a party, to any of its affiliates, now or hereinafter existing, with previous notice to Recipient.
16. Severability. Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions of this agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
17. No waiver. Any failure by either Party to enforce a provision of this agreement does not waive that Party’s rights to enforce that provision on another occasion, unless the waiving party waives its rights for another occasion in a writing signed by the waiving party.
18. Entire agreement. This agreement constitutes the final, complete, and entire agreement between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous negotiations, understandings and agreements between the Parties relating to the subject matter hereof. Any changes to this agreement will only be binding on Leprino Foods EU Limited if approved in writing by an authorized representative of Leprino Foods EU Limited and which specifically states that such writing constitutes an amendment to this agreement.
