Prospective Franchisee Confidentiality Agreement
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of this day (the “Effective Date”), by and between Business Partnership Management Ltd., a UK company with its principal office at Owl Barn, Quay Lane, Earls Croome, Worcester. WR8 9DB, (“BPML”) and the completing party (“Prospective Franchisee”).
BPML may disclose to Prospective Franchisee Confidential Information as defined below during the course of investigating a possible business relationship between BPML and Prospective Franchisee. Confidential Information may be disclosed in oral/visual or written form. Discussions concerning the Confidential Information are not an offer by BPML for Prospective Franchisee to enter into a business relationship. This Agreement will serve as a contract covering the terms and conditions regarding the disclosure and/or transfer of the Confidential Information between Parties.
- Definition of Confidential Information. In this Agreement, the term “Confidential Information,” with respect to BPML, any of its subsidiaries or any third party, shall mean any and all information of BPML, of any subsidiary of BPML or of any third party, furnished before or after the date of this Agreement, including any and all of the following, which are not intended to be mutually exclusive whether:
(a) intellectual property, trade secrets, know how, technology, computer programs (whether owned by BPML or any third party or used under license), any software and all enhancements thereof, designs, data, research, lab books, methods, systems, formulae, formulations, recipes, compositions, devices, processes, records, operating manuals, concepts, methods, techniques and accounts;
(b) marketing information and methods, including marketing data, market research, sales techniques, and the names, addresses, telephone and telecopier numbers, and the operation, buying habits and practices of customers, distributors and representatives;
(c) information regarding purchasing methods and sources including the names and identities and other identifying information regarding BPML, BPML Franchisees and suppliers, costs of materials and prices at which materials, products or services are or have been obtained or sold; and
(d) information regarding employees, including terms and conditions of employment and performance evaluations; financial statements, forecasts, reports and all financial information not disseminated to the public.
Duty of Confidentiality. For a period of five (5) years from the Effective Date, Prospective Franchisee hereby agrees to hold all Confidential Information in strictest confidence. Prospective Franchisee shall not disclose or transfer any Confidential Information to any third party for any reason; provided, however, that (i) any of such information may be disclosed to Prospective Franchisee’s representatives who need to use such information for the purpose of assisting in evaluating any possible business relationship between BPML and Prospective Franchisee (it being understood that such representatives shall have been advised of this Agreement and shall have agreed to be bound by the provisions thereof) and (ii) any disclosure of such information may be made to which BPML consents in writing.
Prospective Franchisee shall be responsible for any breach of this Agreement by any of its representatives and agrees, at its sole expense, to take all reasonable measures (including but not limited to court proceedings) to restrain its representatives from prohibited or unauthorized disclosure or use of the Confidential Information. Prospective Franchisee agrees to promptly notify BPML in writing of any circumstances that become known to Prospective Franchisee surrounding any unauthorized possession, use, or knowledge of BPML Confidential Information.
- Purpose. Prospective Franchisee may use the Confidential Information solely for evaluation purposes in consideration of a BPML franchise. Prospective Franchisee agrees not to otherwise use Confidential Information for its own or any third party’s benefit without the prior written consent of BPML.
- Ownership. All computer disks, papers, files, documents, works and other materials containing any (i) Confidential Information of BPML, (ii) Confidential Information of an affiliate, subsidiary or third party which is in BPML possession, or (iii) information which Prospective Franchisee prepares, uses, possesses or controls that affects or relates to the business of BPML, shall be and remain the sole property of BPML. It is agreed that no license under any trade secret or other proprietary right is granted, either directly or indirectly, by this Agreement or by any disclosure of Confidential Information hereunder.
- Third Party Confidentiality. Prospective Franchisee may have access to and become acquainted with Confidential Information of third parties (such as suppliers, customers, affiliates or subsidiaries of BPML), which is in BPML possession. Prospective Franchisee agrees to also hold such third parties’ Confidential Information in strictest confidence as if it were Confidential Information of BPML.
- Termination of Confidentiality. No obligation of confidentiality applies to any specific Confidential Information that Prospective Franchisee can prove: (i) is, or becomes, publicly available through no fault or breach on the part of Prospective Franchisee, but only from such date as the information becomes so available; (ii) was rightfully in Prospective Franchisee’s possession without obligation of confidentiality prior to receipt thereof from BPML, provided that Prospective Franchisee can establish such prior possession by documentary evidence and provided that the source of such information was not bound by a confidentiality agreement with BPML or otherwise prohibited from transmitting the information to Prospective Franchisee by a contractual, legal or fiduciary obligation; (iii) is legitimately disclosed to Prospective Franchisee by a third party who has the right to disclose it provided that the source of such information was not bound by a confidentiality agreement with BPML or otherwise prohibited from transmitting the information to Prospective Franchisee by a contractual, legal or fiduciary obligation.
Requests or Requirements to Disclose. If Prospective Franchisee is requested or required by law (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose any Confidential Information, Prospective Franchisee will promptly notify BPML of any such request or requirement (written if practical) so that BPML may seek an appropriate protective order or waive compliance with the provisions of this Agreement.
If, failing the entry of a protective order or the receipt of a waiver hereunder, Prospective Franchisee is, in the opinion of its outside legal counsel, legally required to disclose the Confidential Information, Prospective Franchisee may disclose that portion of the Confidential Information which Prospective Franchisee’s counsel advises that it is legally required to disclose and Prospective Franchisee will use its best efforts to obtain assurance that confidential treatment will be accorded to that portion of the Confidential Information which is being disclosed. Prospective Franchisee agrees that it will not oppose action by BPML to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
- Return of Confidential Information. If BPML so requests, Prospective Franchisee will promptly return to BPML all copies of the Confidential Information in Prospective Franchisee’s or its representatives’ possession and destroy all copies of all analyses, compilations, studies, notes, memoranda or other documents or records prepared by Prospective Franchisee or for its use containing or reflecting any Confidential Information. Upon destruction of the aforementioned Confidential Information, Prospective Franchisee agrees to give BPML a signed written certification of one of Prospective Franchisee’s responsible officers or partners to the effect that such destruction has been accomplished and is complete. Any Confidential Information not so destroyed (or returned) will remain subject to this Agreement.
- Acknowledgement. The parties understand, acknowledge and agree that, as between them, all items of Confidential Information are important, material and confidential trade secrets of BPML and affect the successful conduct of the business of BPML and its good will. Prospective Franchisee acknowledges that Prospective Franchisee’s covenants and agreements in this Agreement are reasonable and necessary to protect the legitimate interests and Confidential Information of BPML. Prospective Franchisee’s obligations under this Agreement shall survive the termination by either party of any relationship, direct or indirect between the Parties.
- Disclaimer. BPML will not be liable for any expenses or losses incurred or any actions undertaken by Prospective Franchisee as a result of receipt or use of the Confidential Information. The entire risk arising out of the use of the Confidential Information remains with Prospective Franchisee.
- Limitation of Liability. IN NO EVENT SHALL BUSINESS PARTNERSHIP MANAGEMENT LTD BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS) ARISING OUT OF PROSPECTIVE FRANCHISEE’S USE OF OR INABILITY TO USE THE CONFIDENTIAL INFORMATION.
- Entire Agreement; Amendment. The parties understand and expressly agree that (i) this Agreement shall constitute the entire agreement between the parties relative to the subject matter hereof and thus this Agreement supersedes and revokes any and all prior agreements, whether written or oral relative to the subject matter hereof, and (ii) there are no representations, warranties or agreements, either express or implied or oral or written, except as set forth herein. This Agreement may be modified only in a writing executed by the parties that specifically indicates it is amending this Agreement.
- Governing Law. The laws of England and Wales shall govern this Agreement. Any litigation arising out of this Agreement shall be conducted in applicable courts in Chester, Cheshire and the parties expressly agree upon and consent to such jurisdiction and venue.
- Enforcement. For any breach of this Agreement, Prospective Franchisee agrees that BPML shall be entitled to injunctive or other equitable or legal relief which may include, but shall not be limited to (i) restraining Prospective Franchisee from rendering any service or performing any activity in breach of this Agreement, (ii) an order for specific relief, (iii) other equitable relief, and (iv) damages including, costs and reasonable attorneys fees. However, no remedy available under this Agreement (including this Section) is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other available remedy or now or hereafter existing at law or in equity, by statute or otherwise. The election of any one or more remedies by BPML shall not constitute any waiver of the right to pursue other available remedies.
- Attorneys Fees. If either Party breaches this Agreement, then the non-breaching Party shall be entitled To collect from the breaching party any and all reasonable costs, including attorneys ‘ fees incurred by the non-breaching Party in enforcing this Agreement. Such relief shall be in addition to any other relief to which the non-breaching Party is entitled.
- Waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing.
- Invalidity of Provision. In case any one or more of the provisions in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalid, illegal or unenforceable provision(s) shall be curtailed, limited, construed or eliminated to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied and the other provisions of this Agreement shall not be affected thereby.
- Relationship. No agency, partnership, joint venture or other joint relation is created by this Agreement.
- Assignability. Prospective Franchisee may not assign its rights or delegate its duties or obligations under this Agreement without prior written consent of BPML. Any attempt to do so is void. The Parties acknowledge that they have read this Agreement, understand it, and agree to be bound by the terms and conditions. Further, they agree that the complete and exclusive statement of the agreement between the Parties relating to this subject shall consist of this Agreement. This Agreement supersedes all proposals or other prior oral or written agreements and all other communications between the Parties relating to this subject.
IN WITNESS WHEREOF, Business Partnership Management Ltd has caused this Agreement to be executed and Prospective Franchisee and Business Partnership Management Ltd have executed this Agreement as of the date first completed.