1.1 In this Agreement:
(a) “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
(b) “Agreement” means this agreement, and any amendments to this agreement from time to time;
(c) “Business Day” means any week day, other than a bank or public holiday in England;
(d) “Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
(e) “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
(f) “Completion” means the date of execution of this Agreement;
(g) “First Party Restricted Associates” means:
(i) the employees, directors, agents and subcontractors of the First Party;
(ii) the customers, clients, licensors, licensees, suppliers, service providers, principals, joint venture partners and business partners of the First Party;
(iii) the Affiliates of the First Party;
(iv) any other persons or entities that are incorporated, established, and with whom the First Party has had a material business relationship during the Term
(h) “First Party Restriction Period” means the Term and the period of 24 months following the end of the Term;
(i) “Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2.
2.1 This Agreement shall come into force upon the Completion.
2.2 This Agreement shall continue in force, subject to termination in accordance with Clause 7.
3.1 Upon signing this agreement Second Party acknowledges they have entered into this Agreement and agrees to the provisions of this Agreement.
4. Non-solicitation: restrictions on Second Party
4.1 Second Party must not during the First Party Restriction Period, either directly or indirectly, whether on its own account or on behalf of another person or entity:
(a) solicit, or enter into, any business contract, business arrangement or business dealings with any First Party Restricted Associate;
(b) seek to become, or become, the employee or employer of any First Party Restricted Associate;
(c) set up or form a company, partnership, joint venture or other business concern in association with any First Party Restricted Associate;
(d) solicit, entice or procure any First Party Restricted Associate to leave the employment of the First Party or terminate its commercial relationship with the First Party;
(e) solicit, entice or procure any First Party Restricted Associate to do anything which if done by Second Party would be a breach of this Agreement;
(f) solicit, entice or procure any First Party Restricted Associate to reveal trade secrets or confidential information of the First Party to any person;
(g) interfere with any of the First Party’s business relationships in a way which may be reasonably expected to have a material negative effect on the business of the First Party;
4.2 Second Party shall use all reasonable endeavours to ensure that no employee of the Second Party, no Affiliate of the Second Party, and no employee of any Affiliate of Second Party will do anything which if done by Second Party would be a breach of Clause 4.1.
4.3 Second Party agrees that the restrictions on Second Party in this Clause 4 are reasonable in scope and are reasonably necessary to protect the First Party’s legitimate business interests.
4.4 This Clause 4 shall not restrict any dealings between Second Party and a First Party Restricted Associate where there has been no employment, corporate, commercial or other business relationship between the First Party and that First Party Restricted Associate for a continuous period of at least 24 months immediately preceding the commencement of dealings between Second Party and that First Party Restricted Associate.
4.5 The provisions of this Clause 4 shall continue in force for a period of 24 months following the termination of this Agreement, at the end of which period they will cease to have effect.
5.1 The First Party warrants to Second Party that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
5.2 Second Party warrants to the First Party that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
5.3 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
6.1 Second Party shall indemnify and shall keep indemnified the First Party against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the First Party and arising directly or indirectly as a result of any breach by Second Party of this Agreement.
7.1 The First Party may terminate this Agreement by giving Second Party 30 days’ written notice of termination.
7.2 Second Party may terminate this Agreement by giving the First Party at least 90 days’ written notice of termination.
7.3 This First Party may terminate this Agreement immediately by giving written notice of termination to Second Party if Second Party commits a material breach of this Agreement.
7.4 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
8. Effects of termination
8.1 Upon the termination of this Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4, 6, 8, 9 and 10.
8.2 The termination of this Agreement shall not affect the accrued rights of either party.
9.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
9.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
9.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
9.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
9.5 This Agreement is made for the benefit of the First & Second Parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
9.6 Nothing in this Agreement shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
9.7 Subject to Clause 9.6, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
9.8 This Agreement shall be governed by and construed in accordance with English law.
9.9 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
10.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
10.2 The Clause headings do not affect the interpretation of this Agreement.
10.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.