Clickwrap Confidentiality Agreement

BY ACCEPTING THIS CONFIDENTIALITY AGREEMENT (THE “AGREEMENT”) EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY OTHER VALID MEANS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.

This Agreement was last updated on 23 April 2021. This Agreement is between the entity or individual entering into this Agreement (“you” or “your”) and Special New Fruit Licensing Limited (the “Company” or “SNFL”). This Agreement is effective between you and the Company as of the date of your acceptance of this Agreement.

1.Scope.

You are interested in receiving Confidential Information and Shared Personal Data of licensed growers of SNFLfor the purpose of buying the fruit they produce of for other legitimate marketing purposes (the “Purpose”). The Company is willing to grant you such access under the conditions set out in this Agreement.

2.Discloser and Recipient.

Discloserfor the purpose of this Agreement is the Company and you are the Recipient:

3.Confidential Information.

Confidential Informationmeans any information of the Discloser or any other third party involved in the Purpose (including but not limited to affiliates of the Discloser and licensed growers), which is not publicly available including, but not limited to, any information related to the Purpose; any information specifically designated by aDiscloser as confidential; any information supplied to the Recipient by a Discloser or any third party in relation to which a duty of confidentiality is owed or arises; any grower’s information,growers’lists, varietal information, data, personal data, know-how, product and fruit information, processes, plans, designs, photographs, drawings, specifications, business practices, business policies, market analyses, projections, forecast and samples; provided in whatever form (including written, oral , visual or electronic); and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value together with any information which can be obtained by examination, testing or analysis of any material or information or any part thereof in relation to the business of theDiscloser (however recorded or preserved) and whenever disclosed or made available, directly or indirectly, by aDiscloser or its employees, officers, representatives or advisers to the Recipient and its Representatives (as defined below).

4.Restrictions on Use and Non-Disclosure of Confidential Information.

Except as otherwise expressly permitted in writing by an authorized representative of the Discloser, Recipient undertakes to the Discloser that it shall:

  • keep the Confidential Information confidential; and
  • not use or exploit the Confidential Information in any way, except for or in connection with, the Purpose; and
  • only make disclosure of the Confidential Information in accordance with the provision of this Agreement.

The Recipient may disclose the Confidential Information to any of its officers,employees and advisers (the “Representatives”) that need to know the relevant Confidential Information for the Purpose only, provided that the Recipient ensures that the Representatives are informed of the confidentiality obligations under this Agreement and bound by confidentiality terms equivalent to the terms of this Agreement.

The Recipient shall be liable for the actions or omissions of the Representatives in relation to the Confidential Information.

The Recipient may disclose the Confidential Information to the minimum extent required byany order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction.

5.Standard of Care.

Recipient shall use at least the same degree (but not less than a reasonable degree) of care and protection to prevent the unauthorized use or disclosure of any Confidential Information as Recipient uses to protect its own confidential, proprietary or trade secret information.

6.Data Protection.

For the purpose of this clause “UK Data Protection Legislation” is all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and “Data Protection Legislation” is the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Shared Personal Data.

The Discloser confirms that it has all the necessary consents to treat and transfer the Shared Personal Data and the Recipient agrees that it shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation in relation to the personal data shared by the Discloser with the Recipient under this Agreement(the “Shared Personal Data”), including the following:

(i) to process the Shared Personal Data only for the Purpose.
(ii) not to disclose or allow access to the Shared Personal Data to anyone other than the Representatives.
(iii) to ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of the Shared Personal Data and against accidental loss or destruction of, or damage to, the Shared Personal Data.
(iv) to delete or return to the Discloser upon request, the Shared Personal Data, including copies, unless legally prohibited.
(v) not to transfer any Shared Personal Data outside the United Kingdom or the EEA unless the transferor:
a. complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
b. ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer.

The Recipient shall assist the Discloser in complying with all applicable requirements of the Data Protection Legislation in relation to the Shared Personal Data. In particular, the Recipientshall:

(i) assist the Discloser, at the cost of the Recipient, in ensuring compliance with its obligations under the Data Protection Legislation.
(ii) notify the Discloserwithout undue delay on becoming aware of any breach of the Data Protection Legislation.
(iii) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers; and
(iv) maintain complete and accurate records and information to demonstrate its compliance with this clause 6 .

7. Reservation of rights and acknowledgement.

The Discloser reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Discloser to the Recipient does not give the Recipient or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in this Agreement.

The disclosure of Confidential Information by the Discloser shall not form any offer by, or representation or warranty on the part of, the Discloser to enter into any further agreement with the Recipient.

8. No Liability.

The Discloser makes no representation or warranties, express or implied, as to the quality, accuracy, and completeness of the Confidential Information, and neither the Discloser nor its representative have any liability whatsoever with respect to Recipient’s use of or reliance upon the Confidential Information.

9. Remedies.

Without prejudice to any other rights or remedies that the Discloser may have the parties acknowledge and agree that a breach of this Agreement by the Recipient may cause irreparable injury to the Discloser’s business as a result of any such violation, for which the remedies at law may be inadequate, and that Discloser is therefore entitled to seek, in addition to any other remedies available to the Discloser, a temporary restraining order, injunctive relief against Recipientspecific performance or other equitable relief for any threatened or actual breach of this agreement by the Recipient, provided the Discloser can meet the legal requirements therefor.

10. Assignment and other dealings.

Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

11. Entire agreement.

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this Agreement.

12. Variation.

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13. Waiver.

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14. Severance.

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed delete, but that shall not affect the validity and enforceability of the rest of this Agreement.

If any provision or part-provision of this Agreement is deemed deleted under clause 16, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

15. Compliance with Law.

Recipient agrees to comply with all applicable international and national laws that apply to Confidential Information and Personal Data Regulation.

16. Governing law.

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

17. Jurisdiction.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.