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Date: ..............................................
MERLIN ATTRACTIONS OPERATIONS LIMITED
And
[ Madame Tussauds Dubai ]
-----------------------------------------------------
CONFIDENTIALITY AGREEMENT
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This agreement is made between:
1) Merlin Attractions Operations Limited of Link House, 25 West Street,
Poole, Dorset, BH15 1LD, with company number (06272935) ("Merlin");
and
2) [ ] of [ ]
(the "Recipient")
WHEREAS:
A) Merlin or members of the Merlin Group are prepared to disclose certain
information to the Recipient (or any person connected with or acting
for the Recipient) in connection with [ ] (the "Project").
B) The Recipient has agreed to maintain such information confidential in
accordance with the terms of this Agreement.
NOW THEREFORE IT IS AGREED THAT in consideration of Merlin or members of
the Merlin Group agreeing to disclose certain Confidential Information (as
defined below), the Recipient undertakes as follows:
1. Confidentiality Obligations
1. In this agreement "Merlin Group" means Merlin Entertainments Limited,
its subsidiaries and subsidiary undertakings from time to time, its
holding companies and parent undertakings from time to time and any
undertaking which, in relation to such holding company or parent
undertaking, is a subsidiary or subsidiary undertaking and references
to a "Merlin Group company" or "member of the Merlin Group" shall be
construed accordingly.
2. In this agreement, the terms "subsidiary", "holding company",
"subsidiary undertaking" and "parent undertaking" have the meanings
given to them in the Companies Act 2006; but, for the purposes of
section 1159(1) of the Companies Act 2006, a company shall be treated
as a member of another company if any shares in that other company are
registered in the name of either (a) a person by way of security
(where the company has provided the security) or (b) a person as
nominee for the company.
3. In this agreement "Confidential Information" means any information of
whatever kind (whether commercial, technical, financial, operational
or otherwise, whether communicated verbally, in writing or in any
other form, and whether or not expressly stated to be confidential)
which is or has been or will be supplied or made available to the
Recipient or any person acting on the Recipient's behalf by or on
behalf of Merlin or any member of the Merlin Group or any of their
respective officers, employees, agents, advisers or other persons
acting on their behalf at any time (whether before, on or after the
date of this agreement), including (but not limited to):
1. information relating to the business, products, strategy,
prospects, investors, staff, contracting parties, customers or
suppliers of any member of the Merlin Group; and
2. information provided for the purposes of or in connection with
the Project including without limitation any and all drawings,
business plans, design work, strategic plans and ideas,
innovations, creative plans, concepts, ideas and written
material relating thereto;
and shall also include:
3. the existence, status or contents of this agreement and any
discussions in connection therewith;
4. the existence and/or status of any discussions or negotiations
between the Recipient and any member of the Merlin Group (or any
of their respective officers, employees, agents, advisers or
other persons acting on their behalf) at any time in relation to
the Project; and
5. any modification (whether authorised or otherwise) made to any
of the information mentioned in this paragraph 1.2 by the
Recipient or any person to whom the Recipient have disclosed any
of that information.
4. The Recipient undertakes to use the Confidential Information solely in
connection with the Project and for no other purpose whatsoever, and
the Recipient undertakes to safeguard the Confidential Information and
treat it with the strictest confidence and not to disclose, reveal,
report, publish or transfer to any third party any part of the
Confidential Information except:
1. to those of the Recipient's officers, employees, professional
advisors or sub-contractors that have a legitimate need to see
and/or use that Confidential Information in connection with the
Project ("Permitted Recipients"), provided that the Recipient
ensures (which the Recipient hereby undertakes to do) that such
Permitted Recipients are aware of the confidential nature of the
information and agree to be bound by and comply with
confidentiality obligations (enforceable by Merlin) equivalent
to those imposed by this agreement; or
2. to the extent ordered by any court of competent jurisdiction
(and only to that extent).
5. The Recipient agrees that all copyright, database rights, trade marks,
patents, design rights and all other intellectual property rights (of
whatever nature, whether registered or capable of registration or not,
in any part of the world, and including all applications and the right
to apply for any such rights) in, on or forming part of any
Confidential Information shall belong (as between the Recipient and
Merlin) to Merlin exclusively and, to the extent necessary to give
effect to this provision, the Recipient hereby assigns and transfers
the same to Merlin and appoints Merlin (or its nominee) to execute any
all documents on the Recipient's behalf necessary to give effect to
this provision.
6. Whenever requested by Merlin:
1. the Recipient shall return, and ensure that any persons to whom
the Recipient has (directly or indirectly) disclosed any part of
the Confidential Information also return, to Merlin immediately
all such Confidential Information, or any part of it, together
with any copies;
2. the Recipient shall destroy (or if kept electronically, delete)
and ensure that any persons to whom the Recipient has (directly
or indirectly) disclosed any part of the Confidential
Information also destroy (or delete, as the case may be), any
documents, data, notes, memoranda or other records or working
materials (in whatever medium) which in whole or part contain,
are in any respect derived from or reflect any Confidential
Information.
7. The Recipient shall promptly notify Merlin if the Recipient becomes
aware that any of the Confidential Information falls within the
provisions of Clause 1.7 or that there has been any breach of this
agreement or that the confidentiality of the information has been
compromised in any way.
8. Paragraph 1.3 above shall not apply to any information which:
1. is, or at the relevant time becomes, publicly available other
than as a result of disclosure by the Recipient or a breach of
this agreement by the Recipient or any person acting for the
Recipient; or
2. is already in, or at any relevant time comes into, the
Recipient's possession free from any obligation of
confidentiality as demonstrated by written evidence to the
reasonable satisfaction of Merlin; or
3. has been independently developed by the Recipient, without
reference to the Confidential Information, as demonstrated by
written evidence to the reasonable satisfaction of Merlin.
9. The Confidential Information is supplied "as is" and without any
warranty, representation or undertaking by Merlin or any member of the
Merlin Group as to the accuracy, completeness or suitability of the
Confidential Information. Neither Merlin nor any member of the Merlin
Group (or any of their respective officers, employees, agents,
advisers or other persons acting on their behalf) shall incur any
liability to the Recipient in relation to or as a consequence of any
use of the Confidential Information, whether by the Recipient or any
other person (and the Recipient hereby waives any such liability).
The waiver provided for in this clause shall not apply to liability
for death or personal injury or in the event of fraud by the person in
whose favour the waiver is given.
10. The Recipient shall immediately upon written request deliver to Merlin
a list of all persons to whom the Confidential Information has been
disclosed.
11. This agreement shall not be construed as granting to the Recipient any
licence or rights other than as expressly set out in this agreement in
respect of the Confidential Information.
12. The Recipient undertakes to procure that each of the Recipient's
subsidiary or associated undertakings, affiliates, associated
companies, officers, employees, agents and advisers and any other
person acting on the Recipient's behalf shall comply with the
provisions of this agreement as if bound by them.
1. Third Party Rights
1. The Recipient agrees that all rights granted or provided to Merlin
under this agreement are also granted or provided to all other members
of the Merlin Group and the owners of any attractions which are
operated and/or managed by Merlin but not owned by Merlin, and that
the Recipient owes the same duties and obligations to the other
members of the Merlin Group and the owners of any attractions which
are operated and/or managed by Merlin as it owes to Merlin.
2. In the event of any negligence or breach of this agreement by the
Recipient which results in any loss, damage, costs or expense being
suffered by a member of the Merlin Group or the owner of any
attraction which is operated and/or managed by Merlin but not owned by
Merlin ("Loss"),
a) that Loss will be treated as if it had been suffered by Merlin;
b) Merlin will be able to recover any Loss from the Recipient
subject to any limits on the Recipient's liability contained in
this agreement; and
c) any Loss suffered by members of the Merlin Group (other than
Merlin) and/or the owner of any attraction which is operated
and/or managed by Merlin but not owned by Merlin will not be
treated as being indirect in terms of clause simply because it
has been suffered by members of the Merlin Group or the owner of
any attractions which is operated and/or managed by Merlin and
not by Merlin directly.
3. In addition to Merlin, the terms of this agreement may be enforced in
accordance with the Contracts (Rights of Third Parties) Act 1999
("Act") by all of the following:
d) any member of Merlin Group;
e) the owner of any attraction which is operated and/or managed by
Merlin but not owned by Merlin; and
f) any successor in title to all or any part of the business
presently carried on by Merlin.
4. Subject to clause 2.3, no other person or body who is not a party to
this agreement shall have the right to enforce any of its terms by
virtue of that Act.
2. Non-solicitation
1. Whilst discussions and/or negotiations relating to the Project are
taking place and for a period of one year following the cessation of
such discussions and/or negotiations, the Recipient will not without
the prior written consent of Merlin, directly or indirectly:
1. solicit or actively seek to entice away or employ (including
through an employment agency) any management and or other senior
employee who during such period is employed by any member of the
Merlin Group, except that nothing herein shall preclude the
Recipient from employing any person who responds to a general
and non-directed, public advertisement; or
2. approach, contact, accept advice or information from, or have
dealings with any person or legal entity that was during the
twelve-months immediately preceding the date of this agreement a
client, customer or supplier of any member of the Merlin Group
other than the Recipient's existing clients, customers and
suppliers (for the types of products and services already
provided to or by such clients, customers or suppliers).
3. General
1. This agreement shall be governed by and construed in all respects in
accordance with the laws of England and Wales and the parties hereby
agree to submit to the exclusive jurisdiction of the courts of England
and Wales.
IN WITNESS WHEREOF this agreement has been executed and delivered on the
date first above written as follows:
EXECUTED AND DELIVERED
By Merlin as follows:
.....................................................
Duly authorised signatory
EXECUTED AND DELIVERED
By the Recipient as follows:
.....................................................
Director
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/merlin_date/
/merlin_signhere/
/third_party_signhere/