1) We shall treat the Confidential Information as being strictly private and confidential and shall maintain its status as such;
2) We shall use the Confidential Information solely for the purposes of evaluating the business carried on by The Client with a view to the acquisition of The Business or any of the assets or liabilities of The Business, and not for any other purpose, including but without limitation to gain any commercial advantage over OBS, The Client or the Business;
3)
We shall not at any time disclose or otherwise make available to any person any of the Confidential Information other than to:
3.1)
Such of our directors/partners or other members of senior management whose knowledge of such Confidential Information is essential to achieve a proposed purchase of The Business;
3.2)
Any professional advisers acting on our behalf in connection with the proposed purchase of The Business;
3.3)
Any other financial institution from which we may seek finance for or in connection with the proposed purchase of The Business
3.4)
Any other person approved in writing in advance by OBS or The Clients;
4)
We shall ensure that any of the persons referred to in paragraphs 3.1 to 3.4 to whom all or any of the Confidential Information is disclosed shall hold it strictly confidential and shall not disclose it to any third party except to those persons as permitted by paragraphs 3.1 to 3.4, in which event our obligation is to ensure the confidentiality of such information
5)
We shall maintain a list of individuals or entities to whom any Confidential Information is disclosed and make such list available to OBS upon request;
6)
We shall not except with prior written consent from OBS reproduce the Confidential Information (in any format in whole or in part) and we shall, whenever requested by OBS, return, immediately all matter in tangible form which constitutes the Confidential Information, or any part of it, together with all copies (whether supplied to or made by us) and we will destroy (and ensure that any persons referred to in paragraph 3 above to whom Confidential Information has been imparted confirms to you in writing that they have destroyed) any analysis, compilations, studies, reports and other documents or materials prepared by us or on our behalf which reflect or are prepared from any of the Confidential Information;
7)
We shall not at any time disclose to any third party the fact that negotiations/discussions are taking place or have taken place concerning the proposed purchase of The Business or any of the terms or conditions;
8)
We confirm that we will not from the date hereof until two years from the termination of negotiations (except in the course of completion of the proposed purchase of The Business), whether by use of the Confidential Information or otherwise, make contact or approaches of any kind (unless such contact or approaches have been proven to have been made prior to and independently of this undertaking) to the staff, customers or suppliers of The Client or The Business or any governmental or regulatory body nor with any other person connected with your Clients without your or your Clients' prior knowledge and written consent;
9)
We shall not from the date hereof until two years from the termination of negotiations (except in the case of completion of the proposed purchase of The Business) seek to entice away from The Business or The Client any employee, officer or contractor (other than by way of a bona fide job advertisement) of The Client or The Business or otherwise seek to interfere with The Business or The Client.
10)
We shall notify you promptly upon becoming aware of any unauthorised disclosure, copying, use or loss of all or any part of the Confidential Information and we accept that we shall be responsible for any breach of any of the terms of this Undertaking by us or those persons to whom we provide the Confidential Information.
11)
We are acting in this proposed purchase of The Business as principal and not as agent or broker for any other person or company and that our interest is in acquiring The Business for the purposes of our business.
12)
We will not and have not entered into any agreement in reliance upon any representation, written or oral, made by OBS or The Client or made on their behalf.
13)
The delivery to us of any information (including, without limitation, budgets and financial forecasts and projections which may form part of the Confidential Information) does not, and shall not be deemed to, constitute any representation or expression of opinion or warranty by you or your Client as to its accuracy or completeness.
14)
OBS will not be liable for any loss or damage suffered or incurred by us as a result of the supply by OBS, The Client or The Clients advisers and the use by us of any information, including the Confidential Information, (in particular but without limitation) as a result of any errors or inaccuracies in any of the information.
15)
Our negotiations (if any) with The Client shall not be conducted in such a way or manner so as to interfere with The Client's contractual obligations to OBS in respect of (but not limited to) fees payable to OBS.
16)
Nothing contained in this Undertaking shall compel OBS to provide us with information relating to The Business or The Client which we request and OBS shall be entitled at its discretion to decline to supply us with all or any information.
17)
Nothing contained in this agreement shall in anyway restrict our right to use, disclose or otherwise deal with any of the Confidential Information if and to the extent that:
17.1)
it is in the public domain in substantially the same combination as that in which it was disclosed to us other than as a result of a breach of this agreement or any other obligations of confidentiality;
17.2)
it is or was lawfully received from a third party not under an obligation of confidentiality with respect thereto;
17.3)
it is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required);
17.4)
it is approved for disclosure by OBS or The Client in writing; provided always that we shall provide you with at least ten (10) days' written notice of our intention to rely upon one or more of these exceptions, such notice specifying details of the exception to be relied upon and the information concerned.
18)
Damages may be a wholly inadequate measure of loss in the event of any breach of the terms of this Undertaking and accordingly we agree that in such event OBS and/or The Client shall be entitled to seek specific enforcement of these terms (by injunction or otherwise) on such terms as any Court with jurisdiction may deem just and proper.
19)
Any failure by OBS and/or The Client at anytime to enforce or exercise any of their rights under this Undertaking will not be construed as a waiver of their right to enforce or exercise that right in future or other rights under this Undertaking at any time.
20)
The invalidity or unenforceability of any provision or part of provision of this Undertaking shall not affect in anyway the remaining provisions, which shall be construed as if such invalid or unenforceable part did not exist.
21)
This Undertaking is governed by and shall be construed in accordance with English Law and each party submits to the nonexclusive jurisdiction of the Courts of England and Wales.
By completing this agreement you are creating a legally binding contract irrespective of your chosen method of delivery (including post, fax digital submission or email) of the signed document.
