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lan Henderson
ight Support Services Ltd
16 October 2012
Private & Confidential
Dear Sirs
We refer to your request for documentation in connection with certain Post Office® branches
and Subpostmasters (the “Documents).
You have requested the Documents in connection with the review to be conducted by Second
Sight Support Services Ltd (‘Second Sight’) into allegations made that the Horizon point of sale
computer system used by Subpostmatsers in Post Office® branches is the source of unresolved
accounting shortages (the “Review’).
The Documents are being provided by Post Office Ltd to Second Sight for the limited purpose of
the Review only. The Documents should not be used for any other purpose without the prior
written consent of Post Office Ltd.
All Documents provided by Post Office Ltd to Second Sight for the Review are being provided in
confidence. Confidentiality in the Documents is to be maintained at all material times by Second
Sight in strict accordance with the terms of the Non-Disclosure Agreement between Second
Sight and Post Office Ltd (a copy of which is enclosed).
Please be aware that the Documents provided to you contain legally privileged material. By
providing the Documents to you, Post Office Ltd is not waiving any privilege in the Documents
(either expressly, by implication or otherwise) and Post Office Ltd continues to claim privilege in
any and all Documents to which privilege applies. This includes, but is not limited to, any
correspondence, memoranda, notes, records, emails or documentation which contains legal
advice, or has been prepared for the purposes of obtaining legal advice and/or in reasonable
contemplation of litigation. It also includes all copies of any such documents and any manuscript
amendments or notes made to these categories of document.
In consideration for Post Office Ltd providing the Documents to you, Post Office Ltd requires you
to provide a contractual undertaking on the following terms:~
www.postoffice.co.uk
Post Office Ltd is registered in England and Wales, Registered No. 2154540. Registered Office 148 Old Street, London, ECAV 9HQ.
Post Office and the Post Office logo are registered trade marks of Post Office Ltd.
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Undertakini
Second Sight unconditionally and irrecoverably undertakes and agrees that:-
(a) The Documents provided by Post Office Ltd for the Review (as defined above) contain
documents which are privileged and that the benefit of that privilege shall at all times
belong to Post Office Ltd.
(b) The provision of the Documents by Post Office Ltd does not amount to a waiver of the
privilege which subsists in any documents to which privilege shall apply.
(c) The Documents provided by Post Office Ltd for the Review, any notes, copies or scans of
any such Documents and any information contained therein will be held by Second Sight
in complete confidence and will not be disclosed to any other party or used for any other
purpose whatsoever without the prior written consent of Post Office Ltd.
(d) Post Office Ltd will immediately be informed of any request or order for disclosure of the
Documents or any of the information contained therein (save where by informing Post
Office Ltd, Second Sight would contravene any law or regulation).
(e) Notes, copies or scans of any of the Documents provided by Post Office Ltd for the
Review will be taken for the Review only and will be destroyed or returned to Post Office
Ltd within 7 days of the Review having been concluded.
Please confirm your agreement to the undertaking set out above by providing that undertaking
to us on Second Sight headed notepaper.
We look forward to hearing from you.
5
HR & Legal Services Director
Post Office Limited
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number 2154540) whose “registered office is at 148 Old Street,
London, EC1V 9HQ (“Post Office”); and
(2) Second Sight Support Services Limited registered in England and
Wales (registered number 06844000) whose registered office is at
7 Canon Grove, Yarm TS15 9XE (the “Receiving Party”) .
IT IS HEREBY AGREED:
1 Definitions: For the purposes of this Agreement:
Confidential any and all information (including
Information without limitation information provided
in oral or documentary form or by
inspection or observation of tangible
objects, material, media or
demonstrations of any kind) and whether
supplied or received before or after the
signing of this Agreement, relating to
Post Office's business (or that of any
member of its Group, or any of its or
their current, former or potential
clients, customers, partners or
suppliers) including without limitation
trade secrets, know-how, contracts,
drawings, patterns, plans, compilations,
program devices, formulas, designs,
prototypes, methods, techniques,
processes, procedures, programs, or
codes, whether tangible or intangible,
and whether and howsoever stored,
compiled, or memorialised whether
physically, electronically, graphically,
photographically, or in writing,
together with any copies of and notes
made in respect of such information;
Effective Date means the date on which this Agreement
is made set out at the head of this
document ;
Group means, in xrélation to a party, each
company which is a holding company of
that party or which is a subsidiary of
that party or such holding company (the
terms “holding company” and “subsidiary”
having the meanings given to them in
3.736 Companies Act 1985 as amended from
time to time); and
Purpose means the provision of an independent
assessment of, and advice on, certain
legal matters, Post Office internal I
processes and information technology
systems. I
I
I
My
2 Effective Date
21 This agreement shall take effect from the Effective Date.
3.2
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or on behaLr or Post Urrice and vost UIrice Group, tne KECCLVLAY
Party will:
3.1.4 treat and safeguard thé Confidential Information as private
and confidential;
3.1.2 not use or disclose any of the Confidential Information for
any purposes other than the Purpose;
3.1.3. ensure proper and secure storage of the Confidential
Information;
3.1.4 handle, preserve and protect such Confidential Information
using a high degree of care and at least the same degree
of care as the Receiving Party affords its own
confidential Information of like sensitivity and
importance;
3.1.5 permit access to the Confidential Information only to
such of its directors, officers, employees, professional
advisors and, with the prior written consent of Post
Office, consultants, as reasonably and necessarily require
access to the same in respect of the Purpose and then only
on condition that each such recipient is made aware of the
confidential nature of the Confidential Information, is
subject to a written confidentiality agreement with the
Receiving Party and agrees to comply with the obligations
imposed on the Receiving Party to this Agreement. The
Receiving Party shall retain up to date records of those
of its directors, officers, employees, professional
advisors and consultants to whom it has shared the
Confidential Information and the Receiving Party agrees to
provide such records to Post Office at any time on demand;
and
3.1.6 immediately notify Post Office in writing where any
unauthorised use or disclosure of any Confidential
Information has taken place or the Receiving Party is made
aware that such unauthorised use or disclosure may take
place, and take such steps as Post Office may reasonably
require in relation to the same.
The obligations of confidentiality contained in this Agreement
do not apply to any information which the Receiving Party can
prove:
3.2.4 was known to the Receiving Party before the Confidential
Information was provided or made available by or on behalf
of Post Office and was not held under an obligation of
confidence to Post Office whether directly or indirectly;
3.2.2 is subsequently received from any third party legally in
possession of the Confidential Information and who was not
restricted from disclosing it;
3.2.3. is in or subsequently comes into the public domain (other
than by breach by the Receiving Party of its obligations
under this Agreement) ;
3.2.4 is subsequently authorised to be used or disclosed with
the prior written approval of Post Office;
3.3
3.4
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mandatory rules or xequirements or any recognisea
investment exchange or any regulatory authority,
government department or agency to which the Receiving
Party is subject or by an order of a court of competent
jurisdiction, subject always to the Receiving Party
complying with Clause 3.4.
Without prejudice to the generality of Clause 3.2.3,
Confidential Information will not be deemed to be in the public
domain by reason only that it is known to only a few of those
people to whom it might be of commercial interest, and a
combination of two or more portions of the Confidential
Information will not be deemed to be in the public domain by
reason only of each separate portion being so available,
If the Receiving Party is required pursuant to Clause 3.2.6 to
disclose any Confidential Information, the Receiving Party will,
to the extent permitted by law, provide Post Office with prompt
written notice of such requirement so that Post Office may
assert such interest as it has in the Confidential Information
and, if thought fit, seek an appropriate order from a court of
competent jurisdiction preventing or restricting the disclosure.
If, in the absence of such order, the Receiving Party is
nonetheless, in the opinion of the Receiving Party’s legal
counsel, legally required to disclose such Confidential
Information, the Receiving Party may disclose such information
without liability, provided, however, that ‘the Receiving Party
shall disclose only that portion of such Confidential
Information which it is legally required to disclose and
communicates the confidential nature of such information.
Intellectual Property
This Agreement shall not be deemed to imply the grant of or
agreement. to grant a licence by Post Office to the Receiving
Party of any Post Office Group’s intellectual property rights.
Post Office retains all intellectual property rights in and
title to the Confidential Information at all times and for all
purposes.
Return and Destruction
At any time on demand from Post Office the Receiving Party shall
promptly deliver to Post Office or (at Post Office's option)
destroy all Confidential Information in whatever form (including
without limitation all documents, papers, electronic copies,
discs and copies thereof) in: the possession or control of the
Receiving Party and within 30 calendar days of such demand the
Receiving Party shall certify in writing (signed by a director
of the Receiving Party) that it has complied with the
requirements of this clause 5.1.
No Warranty
All Confidential Information is provided “as is”. The
Confidential Information may not be accurate or complete and
Post Office makes no representation or warranty as to the
accuracy, completeness or reasonableness of the Confidential
Information and no such representation or warranty is implied.
Post Office is not liable to the Receiving Party or to any other
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cae BA Cay Ry eg ee wee ee
disclosure of the Confidential Information could cause
irreparable harm to Post Office and that, in the event of a
breach or threatened breach of any of the Receiving Party's
obligations under Clause 3, the award of damages alone might not
be an adequate remedy and, accordingly, that Post Office shall
be entitled to seek enforcement of each such obligation by
appropriate interim or final injunctive relief obtained in any
court of competent jurisdiction. .
7.2 The Receiving Party will indemnify and keep Post Office
indemnified against all losses, liabilities, damages, claims,
amounts agreed upon in settlement, costs and expenses (including
all legal and other professional fees and expenses) incurred or
suffered by Post Office howsoever arising as a result of or in
connection with any breach of the Receiving Party’s obligations
under Clause 3.
Public announcements
8.1 The Receiving Party will-not make any announcement or publicity
statement relating to Post Office, this Agreement or its subject
matter without the prior written approval of Post Office.
9 No assignment
9.4 The Receiving Party will not be entitled to assign, transfer,
sub-license or charge any or all of its rights or obligations
under this Agreement without the prior written consent of Post
Office.
10 Notices
10.1 Any notices and communications required to be given under this
Agreement. by one party to the other will be properly given if
sent by pre-paid post to the other at its registered office or
place of business as set out at the beginning of this Agreement,
or such alternative address as may be notified in writing by one
party to the other for the purpose of receiving such notices and
communications. &
ai Survival
11.14 The obligations of the parties under this Agreement shall
survive the completion or earlier termination of the discussions
ox negotiations between the parties regarding the Purpose.
a2 Third Party Rights
12.1 This Agreement is entered into by Post Office on its own behalf
and on behalf of other members of its Group and any loss
suffered or cost incurred by any other member of Post Office's
Group as a result of the breach of, or non-compliance with, this
Agreement by the Receiving Party shall be deemed to be a loss
suffered and a cost incurred by Post Office which shall be
recoverable by it under this Agreement. Without prejudice to the
foregoing sentence, a person who is not a party to this
Agreement has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Agreement.
13 Governing Law
13.1. This Aareement is qoverned by, and will be construed in
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