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CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT ("Agreement") is made the day of
October 2017
BETWEEN
(1)
(2)
EUJITSU_ SERVICES LIMITED (Company number 96056) of 22 Baker Street,
London, W1U 3BW ("Fujitsu"); and
IT GROUP LTD (Company number [<INSERT NUMBER>]) of [<INSERT FULL
ADDRESS>] ("IT Group Ltd’).
WHEREAS
A.
In connection with the request by Freeths, solicitors, which is undertaking a group
litigation claim (Claim Number HQ1601238) in the High Court, London, against Post
Office Limited, Freeths has requested the inspection by Mr John Coyne [anil
employee off[independent contractor to] [delete appropriately] IT Group Ltd (herein [
“Employee” ][‘Independent Contractor’] [delete appropriately] of aspects of the
Fujitsu proprietary technology utilised in the supply of the services supplied by FJ to
Post Office under the Contract known as the “Known Error Log” (“KEL”) and of any
Peak entries referenced in the Known Error log (collectively “KEL”) for the purpose
of understanding the contents of the KEL by accessing visually the KEL (and which
may involve taking physical notes of the information contained in the KEL) and to
communicate solely and exclusively to Freeths his understanding of the KEL by
utilising such notes to assist Freeths in its conduct of the Post Office Group
Litigation and for no other purpose whatsoever (the foregoing activity being referred
to as the “Purpose”). Fujitsu agrees to disclose to [the Employeel[independent
Contractér” [delete appropriately] of IT Group Ltd and/or allow the [the
Employeel[independent Contractor] [delete appropriately] of IT Group Ltd (whether
directly or indirectly), access to Confidential Information (as defined below); and
Fujitsu wishes to regulate how such Confidential Information is to be treated while in
the possession or control of IT Group Ltd by virtue of the disclosure of the
Confidential Information to the [Employeéj[indépendent Contractor] [delete as
@ppropriate] so as to protect the proper interests of Fujitsu.
NOW IT IS HEREBY AGREED AS FOLLOWS:
Defi
ions
The following words and phrases shall have the following meanings unless the
context otherwise requires:
"Confidential Information" shall mean:-
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2.2
(a)
(c)
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the KEL and the Fujitsu proprietary information that is contained in the KEL;
and
any copy, note or record of any of the foregoing.
"Purpose" shall mean the purpose set out in recital A above.
Obligations of Confidentiality
In consideration of the provision of Confidential Information by Fujitsu to the
[Employeel[independent Contractor] [delete as appropriate] and acquisition thereof
by IT Group Ltd, IT Group Ltd hereby covenants, undertake and agrees that:-
2.4.4
2.1.4
it shall take all measures to ensure the strict confidentiality of all Confidential
Information, including keeping it separate from information belonging to IT
Group Ltd; and
it will ensure its [Employee][Independent Contractor] [delete as appropriate]
uses such Confidential Information only for the Purpose and does not
disclose the Confidential Information to any other employee or independent
contractor; and
that the [EmployeeI[indépendént Contractor] [delete as appropriate] is bound
to confidentiality by his employment agreement or otherwise, and inform
such [Employee][Independent Contractor] [delete as appropriate] of the
confidential nature of the Confidential Information and of the obligations on
IT Group Ltd in respect thereof and procure that the
[Employee][independent Contractor] [delete as appropriate] shall in relation
to any Confidential Information disclosed to him comply with this Agreement
as if he was IT Group Ltd; and
make copies, reduce to writing or otherwise record the Confidential
Information only to the extent that the same is strictly required for the
Purpose; and
only transmit, reproduce, transform, or store the Confidential Information for
the Purpose; and
not remove, obscure, amend and/or deface any confidentiality notice or
notice of ownership or origin contained in or on the Confidential Information;
and
treat all Confidential Information with the degree of care to avoid disclosure
to any third party as is used with respect to IT Group’s own information of
like importance which is to be kept confidential; and
promptly return all Confidential Information to Fujitsu upon its written request
or (at Fujitsu's option) destroy all such Confidential Information and provide
to Fujitsu a certificate of such destruction signed by a duly authorised officer
of IT Group Ltd.
Where any Confidential Information is the subject of any national or governmental
security regulations IT Group Ltd shall, and hereby undertakes to, take such
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3.2
3.3
3.4
3.5
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4.2
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measures as may be required by such regulations to protect the Confidential
Information.
Ownership of Confidential Information
Any Confidential Information imparted disclosed or acquired hereunder shall remain
the property of Fujitsu or the originator of such Confidential Information.
No licence under any trademark, copyright, patent, design rights or any other
intellectual property right is granted, whether expressly or by implication, to IT Group
Ltd, to Freeths or to any other third party by the disclosure or acquisition of such
Confidential Information.
The disclosure of such Confidential Information shall not constitute any
representation or warranty, express or implied, with respect to the non-infringement
of trademarks, patents, copyright, design rights or any other intellectual property
rights belonging to third parties.
The parties acknowledge that any Confidential Information provided or received
under this Agreement may be subject to government export control laws and
regulations and each of the parties agrees that it will strictly comply with all
applicable requirements under such laws and regulations. As such, IT Group Ltd
warrants and undertakes that it will not export or transfer by any means, electronic
or otherwise, any Confidential Information without complying in all respects with the
applicable export control legislation, codes of conduct, the relevant export
license(s), guidelines, notices and/or instructions in relation to any such export or
transfer of Confidential Information.
Fujitsu makes no express or implied warranty or representation concerning its
Confidential Information, or the accuracy or completeness of the Confidential
Information. Fujitsu shall have no liability to IT Group Ltd, Freeths, and /or to any
other third party for any claim by IT Group Ltd, Freeths, and /or any other third party
arising out of IT Group Ltd, Freeths, and /or any other third party’s use of such
Confidential Information and shall have no liability to indemnify IT Group Ltd,
Freeths, and /or any other third party in respect of any claim made against IT Group
Ltd, Freeths and/or other third party by any third party arising out of use of the
Confidential Information.
Term and Termination
The obligations of IT Group Ltd set out in this Agreement,, notwithstanding any
earlier termination of negotiations or discussions between the parties in relation to
the Purpose, shall continue for a period of ten (10) years from the date of this
Agreement or until the conclusion of the Post Office Group Litigation howsoever
occurring whichever shall be the later.
Termination of this Agreement shall not affect any accrued rights or remedies to
which Fujitsu is entitled.
Waiver
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5.1 The failure or neglect by Fujitsu to enforce at any time any of the provisions hereof
shall not be construed and shall not be deemed to be a waiver of Fujitsu's rights
hereunder nor shall it in any way affect the validity of the whole or any part of this
Agreement nor prejudice Fujitsu's rights to take subsequent action. No waiver by a
party of any condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement shall be effective unless in writing, and no
waiver in any one or more instances shall be deemed to be a further or continuing
waiver of any such condition or breach in other instances or a waiver of any other
term, covenant, representation or warranty. If any provision of this Agreement shall
be held invalid, illegal or unenforceable, the validity, legality or enforceability of the
other provisions hereof shall not be affected thereby and the parties shall use
reasonable endeavours to negotiate, in good faith, with a view to substituting for the
provision in question a valid, legal and enforceable provision as similar as possible
to the provision in question.
5.2. The provisions of this Agreement shall not be modified, amended or waived except
by a written instrument duly executed by the parties. The requirement of written form
can only be waived in writing.
6. Notices
Any notice required to be given hereunder by either party to the other shall be in
writing and shall be deemed to have been sufficiently given if delivered by hand or
sent by pre-paid first class post or recorded delivery to the address of the party as
stated herein. Any notice so given shall be deemed to have been duly given if
delivered by hand, at 10 a.m. local time in the place of receipt on the first working
day after being left at the address of the party as stated herein; and, if sent by pre-
paid first class post or recorded delivery, at 10.00 am on the second working day
after posting it.
Fujitsu address is:-
Fujitsu Services Limited
22 Baker Street
London W1U 3BW
FAO: Head of Legal UK &lreland
IT Group Ltd address is:-
FAO:
7. No poaching
For twelve months from the date hereof IT Group Ltd shall not, and shall procure
that its subsidiaries shall not, solicit to hire or hire any employee of Fujitsu with
whom IT Group Ltd first had contact or learned of during the activities connected
with the Purpose, without the prior written consent of Fujitsu provided, however, that
nothing in this Agreement shall restrict or preclude the rights of IT Group Ltd or its
subsidiaries to make general solicitations for employees by way of advertisements
in the media (including, without limitation, trade media) or by engaging search firms
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10.
11.
12.
12.1
12.2
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to engage in solicitations that are not targeted or focused on the employees of
Fujitsu and to hire any employees responding to such solicitations.
Damages not a sufficient remedy
In the event that the terms and conditions of this Agreement are breached by IT
Group Ltd, Fujitsu may, at its option, elect to institute proceedings in court to obtain
damages, to enforce specific performance thereof, or to otherwise enjoin the
disclosure or unauthorised use of its Confidential Information.
No assignment
Neither party shall assign this Agreement or any part thereof without the prior written
consent of the other.
No Partnership
Nothing in this Agreement is intended to, or shall be deemed to, establish any
partnership or joint venture between any of the parties, constitute any party the
agent of another party, nor authorise any party to make or enter into any
commitments for or on behalf of any other party.
Entire Agreement
This Agreement constitutes the entire agreement between the parties and
supersedes and extinguishes all previous drafts, agreements, arrangements and
understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any representation or
warranty (whether made innocently or negligently) that is not set out in this
Agreement and that it does not rely on any such representations or warranties.
Each party agrees that its only liability in respect of those representations and
warranties that are set out in this Agreement (whether made innocently or
negligently) shall be for breach of contract.
Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its
subject matter or formation (including non-contractual disputes or claims) shall be
governed by and construed in accordance with English law.
The parties irrevocably agree that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim that arises out of or in connection
with this Agreement or its subject matter or formation (including non-contractual
disputes or claims) save that Fujitsu reserves the right to institute legal proceedings
or take any other actions in any jurisdiction as Fujitsu believes is necessary to
protect its Confidential Information and other intellectual property rights and trade
secrets.
IN WITNESS WHEREOF THIS AGREEMENT WAS DULY EXECUTED THE DAY AND
YEAR WRITTEN BELOW
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF [IT
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FUJITSU SERVICES LIMITED GROUP LTD]
NAME:
TITLE
DATE:
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