CONFIDENTIALITY AGREEMENT
Strictly Private & Confidential
You have expressed an interest in acquiring the following hotel – Wotton House, Guildford Road, Wotton, Dorking, RH5 6HS, (the “Transaction”). As agents representing the “Seller”, we are prepared to make available to you (and your Authorised Recipients (as defined below) certain Confidential Information about the Transaction and the Hotels, subject to you agreeing to enter into this undertaking.
This letter relates to all information and material of whatever nature at any time and from time to time supplied by us or by any of our Connected Persons (as defined below) orally, in writing or in any other form to you or your Authorised Recipients or which is otherwise obtained by you or your Authorised Recipients in respect of the Transaction and/or the Hotel/s (the “Confidential Information”).
In this letter:
“Connected Persons” means (a) the Seller and its and our respective directors, officers, employees, professional advisers, bankers, agents and representatives; (b) the Seller’s and our respective Group Undertakings and their respective directors, officers, employees, professional advisers, bankers, agents and representatives; and (c) directors, officers, employees and partners of any such adviser, agent or representative or of their respective Group Undertakings;
“Control” and its derivatives means the power of a person in relation to another person to secure (i) by means of the holding of shares or the possession of voting power in that person or any other person, or (ii) by virtue of any powers conferred by the articles of association or other document regulating or relating to that person, that the affairs of that person are conducted in accordance with the wishes of the person with such power;
“Group Undertaking(s)” means, in relation to a person, that person and any person that Controls or is Controlled by or is under common Control, with, that person from time to time and includes, without limitation, subsidiary undertakings and parent undertakings as defined in the Companies Act 2006; and
In consideration of the Confidential Information being disclosed to you or to your Authorised Recipients, you agree with and undertake to us as follows. The undertakings in this letter are given in our favour and in favour of the Seller and each other Connected Person.
1. You will hold the Confidential Information in strict confidence and will not (directly or indirectly) disclose, copy, reproduce, distribute or permit the same, in respect of any of it to any person other than as permitted in writing by the Seller except to those of your officers, employees, Group Undertakings, agents and professional advisers and the officers, employees and professional advisers of any of those Group Undertakings who strictly need access to it for the purposes of evaluating, negotiating or participating in the Transaction or in the proper discharge of their duties (your “Authorised Recipients”), and only to the extent that they need that access, on the terms of this letter and on the basis that you will procure that they themselves will not disclose, copy, reproduce or distribute or permit the same in respect of such Confidential Information to any person who is not an Authorised Recipient.
2. You undertake not to (and to procure that your Authorised Recipients will not), without the Seller’s prior written consent:
(a) reveal, disclose or announce to any person other than an Authorised Recipient, the contents of this undertaking, the Confidential Information, that negotiations are taking place in relation to the Transaction or any information concerning the status or progress of such negotiations; or
(b) use the Confidential Information for any purpose other than to evaluate, negotiate or participate in the Transaction and in particular you will not use (and will procure your Authorised Recipients not to use) the Confidential Information for any other purpose or in any way that is or may be detrimental to the Seller and/or the Hotel or in the future conduct of your or your Authorised Recipients’ trading operations except where our discussions result in your buying the Hotel/s.
3. You further undertake:
(a) to effect and maintain (and to procure your Authorised Recipients effect and maintain) the same security, privacy and confidentiality measures to safeguard the Confidential Information from unauthorised access, use and misappropriation as you and your Authorised Recipients would maintain to safeguard your own similar information which you do not wish to publicly disclose;
(b) to keep and make available to the Seller on demand a list of all Authorised Recipients to whom any Confidential Information is given; and
(c) to notify (and to procure your Authorised Recipients notify) us as soon as practicable of, any unauthorised use, copying or disclosure of the Confidential Information of which you become aware and to provide all reasonable assistance to us and our Connected Persons with a view to terminating such unauthorised use, copying or disclosure.
4. You acknowledge that the Confidential Information may include personal data which is subject to the Data Protection Act 2018 and undertake that, insofar as it does, you will not (and you will procure that your Authorised Recipients will not) do anything in relation to that data that would cause any person to be in breach of that Act.
5. Christie & Co is registered under the Data Protection Act 2018 and General Data Protection Regulation 2016 (“GDPR”) under registration number Z8293541. All Personal Data about you will be treated as private and confidential. The Christie Group will use the Personal Data supplied by you only for purposes associated with legitimate business interests such as the administration of the (potential) business relationship. We follow the rules of GDPR and the terms of our registration when dealing with your Personal Data and we have a formal complaints procedure, a copy of which is available on request or on our website at https://www.christie.com/complaints/.
6. You will (and you will procure that your Authorised Recipients will) only make sufficient Copies (as defined below) of the Confidential Information as may be reasonably required for the purpose of evaluating, negotiating or participating in the Transaction or (where applicable) in the proper discharge of an Authorised Recipient’s duty as your or another Authorised Recipient’s officer, and mark as confidential any analyses, plans, reports, compilations, studies and other documents that contain or otherwise reflect or are generated from any Confidential Information.
7. The obligation to maintain the confidentiality of the Confidential Information does not apply to any part of the Confidential Information which:
(a) at the time of supply is or has become publicly known, except through breach of the undertakings set out in this letter by you or your Authorised Recipients; or
(b) subsequently comes lawfully into your possession or that of an Authorised Recipient from a third party who is not obliged to keep the Confidential Information confidential; or
(c) is required to be disclosed by law, regulation or any governmental or competent regulatory authority, as long as you or the Authorised Recipient making such disclosure first consults the Seller on, and takes into account the Seller’s reasonable requirements in respect of, the proposed form, timing, nature and purpose of the disclosure.
8. You will, before any disclosure, notify all of your Authorised Recipients to whom any Confidential Information is to be disclosed of the confidential nature of the Confidential Information and procure that each of your Authorised Recipients who receives any Confidential Information is aware of the obligations under this letter and adheres to the terms of this letter as if that person had given the undertakings contained in this letter in your place.
9. The undertakings in this letter are given by you on your own behalf and as agent for each of your Authorised Recipients. You shall direct your Authorised Recipients to abide by the obligations applicable to you hereunder. You will indemnify and hold the Seller and each of its Connected Persons harmless, from and against all claims, demands, liabilities, losses, damages, costs and expenses suffered or incurred by them or any of its Connected Persons arising directly or indirectly from any unauthorised disclosure or use of the Confidential Information or any part of it in breach of this letter by you or any of your Authorised Recipients.
10. You confirm that you will be responsible for any costs incurred by yourselves or your employees, agents or advisers in connection with the Transaction.
11. You will destroy or return (and will procure that your Authorised Recipients destroy or return) to us on demand (and in any case no later than 5 business days following our demand), or in any event if you cease to be interested in acquiring the Hotel, any document (including any note, analysis or memorandum prepared by you or your Authorised Recipients) containing Confidential Information and any Copies which may have been made, and take reasonable steps to expunge all Confidential Information from any computer, word processor or other device containing Confidential Information (and following such deletion not attempt to recover such material). Any destruction of Confidential Information will be certified in writing to us by an authorised officer supervising it. The undertakings in this paragraph shall not apply to any Confidential Information which you or an Authorised Recipient must retain under any applicable law, rule or regulation, including the rules of a professional body.
For the purposes of this clause 11 and clause 5, “Copies” means any copies of Confidential Information, including any document, electronic file, note, extract, analysis, report and any other way of representing or recording or recalling information which contains, reflects or is derived from the Confidential Information.
12. You will, upon the Seller’s written request, confirm in writing to the Seller that you have complied with clause 11.
13. You understand that the Confidential Information does not purport to be all inclusive and that neither we nor any of the Connected Persons make any representation or warranty (express or implied) as to the accuracy, reliability or completeness of any of the Confidential Information. You acknowledge and agree that neither we nor any of the Connected Persons are under any obligation to correct any inaccuracies or omissions in the Confidential Information which may exist or become apparent. Accordingly you agree with us and with each of the Connected Persons that neither we nor any of the Connected Persons shall have any liability to you or any other person resulting from the inaccuracy, unreliability or incompleteness of any of the Confidential Information and/or the use of any of the Confidential Information by you and/or them and, without prejudice to the generality of the foregoing, that you and your Authorised Recipients will be bound by the terms of any disclaimer of liability on our part and/or on the part of any of the Connected Persons.
This paragraph will not exclude any liability for, or remedy in respect of, fraud or fraudulent misrepresentation.
14. Save as expressly set out in this letter, neither we nor any of the Connected Persons shall owe any duty of care to you nor any other person.
15. Nothing in this letter will be construed as granting to or conferring on you or your Authorised Recipients any proprietary rights in or to the Confidential Information.
16. The Seller reserves the right in its sole and absolute discretion to change the procedure, or terminate discussions and negotiations with you in relation to the Transaction, at any time without notice or explanation, and to conduct negotiations and conclude any relevant agreement with one or more other persons notwithstanding that it may be incompatible with the Transaction.
17. Without affecting any other rights or remedies that they may have, you acknowledge that a person with rights under this letter may be irreparably harmed by any breach of its terms and that damages alone may not necessarily be an adequate remedy. Accordingly, a person bringing a claim under this letter will be entitled to the remedies of injunction, specific performance and other equitable relief, or any combination of these remedies, for any threatened or actual breach of its terms, and no proof of special damages will be necessary to enforce this letter.
18. You acknowledge and agree that the undertakings set out in this letter will survive completion of negotiations, whether or not the Transaction is implemented. Except in the case of paragraph 13, such undertakings shall survive for a fixed period of two years from the date of this letter, except that if earlier, they shall terminate on completion of the Transaction by you. The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between you and us.
19. If any provision of this letter is held to be invalid or unenforceable, that provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this letter, but without invalidating any of the remaining provisions.
20. You acknowledge and agree that documents or information, whether containing Confidential Information or otherwise, made available to you or any of your Authorised Recipients prior to or in the course of discussions in respect of the Transaction, shall not constitute an offer by any person and are not intended as, and should not be construed in any way as, a recommendation, invitation or inducement (direct or indirect) to you or any of your Authorised Recipients to engage in investment activity.
21. Each of the Connected Persons shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of this letter (as amended from time to time), subject to and in accordance with:
(a) paragraph 23 (Governing Law and Jurisdiction); and
(b) the parties to this letter may by agreement terminate or rescind or vary it in any way without the consent of any of the other Connected Persons.
22. Save as provided in paragraph 21, a person who is not a party to this letter shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
23. This letter and the relationship between the parties, the conduct of the procedure for the sale by us of the Hotel and any non-contractual rights arising out of this letter, shall be governed by, and construed in accordance with, English law, and each party irrevocably submits to the exclusive jurisdiction of the English courts.
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