EXHIBIT 10.2
Agreement for Exchange of Confidential Information
DATED: 19th March 2001
XO COMMUNICATIONS (UK) LIMITED (1)
- and -
Xxxxxxxxx.xx.xx Ltd (2)
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Agreement for the exchange of Confidential Information
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THIS AGREEMENT is made the 19th day of March 2001,
BETWEEN:
(1) XO Communications (UK) Limited a company in England with Number 3059016
whose registered address is at 000-000 Xxxxx Xxxxxxxx xxxx, Xxxxxx XX 000XX
("XX");
(2) Xxxxxxxxx.xx.xx Ltd a company in England with Number 3578325 whose
registered address is at 00 Xxxxxx Xxxxxx Xxxxxx X0X 0XX.
RECITALS
(A) XO and Xxxxxxxxx.xx.xx Ltd are and have been in discussions in which they
have disclosed and will disclose confidential information about themselves,
their business plans and software and companies with whom they are involved
with a view to establishing a design for the XO telecommunications network
and other services relating thereto ("Project").
(B) XO and Xxxxxxxxx.xx.xx Ltd agree that the following terms and conditions
apply where one of the parties discloses or has disclosed confidential
information to the other party.
(C) The objective is to provide appropriate protection for the information
whilst maintaining the parties' ability to conduct their respective
businesses.
IT IS AGREED as follows:
1. Definitions
1.1 In this Agreement the following terms shall have the following
meanings:
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"Confidential Information" Any information disclosed (whether in
writing, orally or by any other means) by or
on behalf of the Disclosing Party to the
Receiving Party including, without
limitation, any information relating to the
Disclosing Party's products, inventions,
operations, methodologies, systems,
processes, plans or intentions, know-how,
design rights, trade secrets, market
opportunities, or corporate, business or
financial affairs;
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"Disclosing Party" The party to this Agreement disclosing the
Confidential Information;
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"Receiving Party" The party to this Agreement to whom the
Confidential Information is disclosed.
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2. Supply and use of Information
2.1 In consideration of each party supplying its Confidential
Information to the other party and of the mutual obligations set out in this
Agreement, the parties each agree;
(a) to keep the other party's Confidential Information confidential;
(b) not to use the other party's Confidential Information except for
the purposes of the Project; and
(c) not to disclose the other party's Confidential Information to
any third party and to use reasonable efforts to prevent any such disclosure
except as expressly permitted by this Agreement.
3. Confidentiality
3.1 Each party shall protect the Confidential Information of the other
party through the exercise of the precautions set out in this Agreement and
no less protection and care than it customarily uses in preserving and
safeguarding its own Confidential Information.
3.2 The Receiving Party will keep the Confidential Information in a
secure environment, and not copy or use the Confidential Information except
as is reasonably necessary in connection with the Project provided always
that, subject to the confidentiality restrictions contained in this Agreement.
3.3 Nothing in this Agreement will prevent or restrict the development
and use of any ideas, concepts, information or know-how relating to methods
or processes of general application including those in the field of
information technology and business processes.
3.4 The Receiving Party agrees to advise the Disclosing Party
immediately if it is aware or suspects that the security of the Confidential
Information has or may be compromised in any way and will cooperate in every
reasonable way to assist the Disclosing Party in recovering the Confidential
Information or preventing its further disclosure or use.
3.5 This Agreement shall not apply to Confidential Information which:
(a) is or becomes generally available to the public other than as a
result of a breach of an obligation under this Agreement or as a result of
the negligent act or omission of the Receiving Party; or
(b) is acquired from a third party who owes no obligations of
confidence in respect of the information; or
(c) is or has been independently developed by the Receiving Party; or
(d) the Receiving Party is required to disclose by law, by any court
of competent jurisdiction or by a governmental or regulatory authority
provided that the Receiving Party gives
not less than 2 business days' notice in writing to the Disclosing Party of
such disclosure. In any event any obligation of confidence will end after a
period of 5 years after the Receiving Party last had access to the
Confidential Information.
4. Disclosure
4.1 The Receiving Party shall not reproduce, copy, disclose, disseminate
and/or transfer to any third party in whose or in part any Confidential
Information of the Disclosing Party except in the following circumstances:
(a) with the prior written consent of the Disclosing Party; or
(b) on a need-to-know basis to its employees or agents or the
employees of any associated company or firm, or in relation to any claim or
possible claim in connection with this Agreement, to its professional
advisers, subject in each case to the provisions of clause 4.2 below.
4.2 The Receiving Party will ensure that any person to which it
discloses Confidential Information of the Disclosing Party pursuant to clause
4.1 (a) above is:
(a) advised of the proprietary and confidential nature of the
Confidential information, together with the restrictions on duplication, use
and disclosure; and
(b) contractually bound by appropriate obligations of confidence,
before access to such Confidential Information is granted.
5. No License
No license (express or implied, by estoppel or otherwise) under any
trade secret right, trade xxxx, patent, copyright or other intellectual
property right or any application for the same which is or may hereafter be
owned by or licensed to the Disclosing Party is granted to the Receiving
Party in relation to the confidential Information except as expressly set out
in this Agreement.
6. Warranty and Liability
6.1 Each party warrants to the other party that it has the right
to disclose its Confidential information to the other party.
6.2 Subject to clause 6.1 above and to the extent permissible by
law, neither party accepts any responsibility for or makes any
representations or warranties (express or implied, statutory or otherwise)
with respect to the accuracy or completeness of any of the Confidential
Information and neither party shall be liable to the other or any third party
for any loss or damages resulting from use of the Confidential Information.
7. Return of Documentation
Each party undertakes within 7 days of receipt of a written request
from the other party to return to the other party all documents and other
materials in its possession, custody or control (including all copies of the
same) that bear or incorporate any part of the other party's Confidential
Information.
8. Unauthorized Disclosure
The parties acknowledge that monetary damages may not be sufficient
remedy in respect of unauthorized disclosure of the Confidential Information
and the Disclosing Party shall in those circumstances, without waiving its
other rights and remedies, be entitled to such injunctive or equitable relief
as may be deemed proper by a competent court.
9. General
9.1 Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other party.
9.2 No delay by either party in enforcing any of the terms or
conditions of this Agreement will affect or restrict the other party's rights
and powers arising under this Agreement.
9.3 No waiver of any term or condition of this Agreement will be
effective unless made in writing. Any amendments to this Agreement will not
be effective unless agreed in writing and signed by both parties.
9.4 The provisions of this Agreement which expressly or by
Implication are intended to survive its termination or expiry will survive
and continue to bind both parties.
9.5 This Agreement forms the entire agreement between the parties
relating to the subject matter. It replaces and supersedes any previous
proposals, correspondence, understandings or other communications whether
written or oral. The parties' obligations under this Agreement shall survive
termination of any agreement or relationship between the parties.
9.6 If any provision of this Agreement is determined to be invalid
or unenforceable, in whose or in part, the remaining provisions will continue
in full force and effect as if this Agreement had been executed without the
invalid provision.
9.7 This Agreement is governed by and will be construed in
accordance with the laws of England and in the event of dispute the parties
will attempt to resolve the dispute in good faith by senior level
negotiations. Where both parties agree that it may be beneficial the parties
will seek to resolve the dispute through mediation using the services of the
Centre for Dispute Resolution to facilitate the mediation process. If the
dispute is not resolved through negotiation or mediation both parties agree
that the English Courts will have exclusive jurisdiction in connection with
the resolution of the dispute.
SIGNED by
For and on behalf of
XO Communications (UK) Limited
/s/ XXXXX XXXXX
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Signature
XXXXX XXXXX
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Name
21 MARCH 2001
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Date
SIGNED by
For and on behalf of
Xxxxxxxxx.xx.xx Ltd
/s/ XXXXXXX XXXXX
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Signature
XXXXXXX XXXXX
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Name
19-03-01
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Date
