Confidentiality agreement

NOW, THEREFORE, the parties agree as follows:

1. Definitions.  For purposes of this Agreement, the terms set forth below shall have the following meanings:

(a) An “affiliate” of a party hereto shall mean any Person that controls or is controlled by or is under common control with such party. 

(b) The term “Confidential Information” shall mean all information belonging or in the possession of the Company or any of its affiliates that the Company or any such affiliate treats as confidential or proprietary to it and shall include, without limitation, employee information including performance evaluations and appraisals, financial statements, financial projections and forecasts, operational data, business, strategic, growth and expansion plans, vendor and client or customer and prospect lists, information regarding the Company’s or any such affiliate’s existing and prospective business and contractual relationships with third parties, any information regarding employees of the Company or any of its affiliates, software programs and systems used by the Company or any of its affiliates and databases compiled by the Company or any of its affiliates, trade secrets, know-how and other intellectual property belonging to the Company, any financial, proprietary or similar information, including trade secrets and intellectual property entrusted to the Company or any of its affiliates by any third parties under or subject to obligations of confidentiality.  Confidential information also shall include, without limitation, the identities of customers and others with which the Company or any affiliate does or is planning to do business and any Person with whom it or any such affiliate may engage in any business transactions, and any other information in the possession or control of the Company or any of its affiliates which does not constitute Publicly Available Information (as hereinafter defined).  The restrictions on the disclosure and use of, and the other covenants of the Consultant with respect to, the Confidential Information that are contained in this Agreement shall apply to all Confidential Information however communicated by the Company or any of its affiliates or any of its or their Representatives to Consultant (whether orally or in written or other tangible or reproducible form) and all Confidential Information of the Company or any of its affiliates to which Consultant may have access.

(c) The term “Publicly Available Information” shall mean information which Consultant is able to demonstrate (i) is or has become generally available to the public other than as a result of a breach of this Agreement by Consultant, (ii) was lawfully within physical possession of Consultant prior to the time that such information was first furnished to or otherwise made available to Consultant by or on behalf of the Company (whether before or after the date of this Agreement), or (iii) becomes available to Consultant on a non-confidential basis from a source other than the Company or any of its Representatives, provided that the source of such information was not (after due inquiry by Consultant) known to Consultant to be bound by a confidentiality agreement with, or other contractual obligation of confidentiality or any other legal or fiduciary obligation to the Company with respect to such information.

(d) The term “Representatives” when used with reference to the Company or any of its affiliates shall include their respective officers, directors, employees, agents and independent contractors (other than Consultant).

(e) The term “Person” or “person” shall mean any natural person and any corporation, limited or unlimited liability company, general or limited partnership and any other firm or entity.

2. Prohibition on Disclosure and Restrictions on Use of the Confidential Information.  Consultant covenants and agrees that it (i) will hold in strict confidence all of the Confidential Information; (ii) without the prior express written consent of the Company (which it may withhold in its sole and absolute discretion) will not disclose any of the Confidential Information to any Person in order to facilitate Consultant’s provision of services to the Company and its affiliates; (iii) will not use any of the Confidential Information for the benefit of Consultant or any other Person, except the Company or any of its affiliates or for any purpose, including commercial or competitive purposes, other than learning about the Company in connection with Consultant’s provision of services; (iv) will not analyse, disassemble for reverse engineering or otherwise attempt to identify the intrinsic nature of the Confidential Information; and (v) will ensure that each person to whom disclosure of the Confidential Information is made by Consultant is fully aware in advance of Consultant’s obligations under this Agreement. 

3. Legal Process.  In the event Consultant is requested or required by law, regulation, interrogatories, requests for information or documents in any legal proceeding, or pursuant to a subpoena, civil investigative demand or other similar process (collectively, “Legal Process”) to disclose any of the Confidential Information, Consultant shall (to the extent permitted by law and regulation), provide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.  In the event that such protective order or other remedy is not obtained, then the Company shall waive compliance with the prohibitions on the disclosure of the Confidential Information that is the subject of such Legal Process, provided that Consultant (i) shall furnish only that portion of the Confidential Information for which the Company has waived compliance or for which Consultant is advised by legal counsel is legally required to be furnished pursuant to such Legal Process, and (ii) at the request and at the expense of the Company, shall exercise its reasonable efforts to obtain assurance that the furnished Confidential Information will be accorded such confidential treatment.

4. Return of Confidential Information.  The Company reserves all rights in the Confidential Information.  The Consultant acknowledges that any Confidential Information disclosed shall remain the sole property of the Company and the disclosure of such information to the Consultant and the Consultant’s access to any of the Confidential Information shall not be deemed to confer upon the Consultant any rights or license whatsoever in respect of any part of the Confidential Information. Upon the request of the Company made at any time, either during or after the term of this Agreement, and for any reason, Consultant will (i) promptly deliver to the Company all Confidential Information (and all copies thereof) in the possession or control of Consultant, and (ii) certify in writing to the Company that (A) the foregoing actions have been taken and (B) the Consultant does not have in his possession or control any of the Confidential Information or any copies thereof (on any media).  The redelivery of the Confidential Information by Consultant shall not relieve Consultant of any of his obligations or covenants contained in this Agreement during the remaining term of this Agreement.

5. Representations.  Consultant represents that his execution and delivery of this Agreement will not result in a breach or violation of any agreement to which Consultant is a party or is subject.  Consultant agrees that he will not enter into any oral or written agreement in conflict with this Agreement.  Consultant acknowledges that Company makes no representation or warranty, express or implied, as to the accuracy, completeness or reasonableness of the Confidential Information, and Consultant agrees that neither the Company nor any of its Representatives shall have liability to it resulting from the furnishing or use of the Confidential Information.  In furnishing or making available the Confidential Information, the Company undertakes no obligation to provide Consultant with access to any additional Confidential Information or to update the Confidential Information or correct inaccuracies therein which may become apparent. For the avoidance of doubt, nothing in this clause 5 shall limit the obligations or rights of either party under any separate agreement that may be entered into between the parties. 

6. Term of this Agreement.  The term of this Agreement shall commence on the earlier of the date hereof or on the date the first disclosure of Confidential Information was made and shall continue in full force and effect for three years after disclosure or until all Confidential Information acquired by the Consultant becomes part of the public domain, whichever is the earlier. 

7. General Provisions.

 (a) Governing Law.  .  This Agreement shall be governed by and interpreted in accordance with the laws of Ireland and shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may not be assigned by a Party without the written consent of the other Parties, and any such purported assignment shall be void; provided, however, that a Party may assign this Agreement to an affiliate without prior approval of the other Party (however, upon notification of such assignment). 

(b) Entire Agreement.  This Agreement sets forth the entire agreement of Consultant given to the Company relating to the subject matter hereof and merges all prior discussions between Consultant and the Company with respect thereto.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged.

(c) Enforceability.  Consultant acknowledges and agrees that money damages would not provide an adequate remedy for a breach or violation by Consultant of any of the terms or provisions of this Agreement and that the Company and each of its affiliates shall be entitled to specific enforcement of such obligations and injunctive relief against any actual or threatened violation or breach thereof by Consultant, without any obligation on the part of the Company or any such affiliate to post any bond or cash deposit as a condition to or as a requirement of such relief; provided, however, that such remedies shall not be exclusive but shall be in addition to any other rights and remedies available at law or in equity.

(d) Severability.  If one or more of the provisions in this Agreement are held by a court of competent jurisdiction to be void or unenforceable, then the remaining provisions of this Agreement will continue in full force and effect.

(e) Survival/No Assignability.  This Agreement shall not be assignable, either in whole or in part, by Consultant.  Subject to the foregoing, this Agreement shall be binding on Consultant and Consultant’s successors and permitted assigns and will inure to the benefit of the Company and its successors and assigns.