43.  CONFIDENTIALITY

43.1  Except to the extent set out in this Clause or where disclosure is expressly permitted elsewhere in this Agreement, each party shall:

43.1.1  treat the other party's Confidential Information as confidential and safeguard it accordingly; and

43.1.2  not disclose the other party's Confidential Information to any other person without the owner's prior written consent.

43.2  Clause 43.1 shall not apply to the extent that:

43.2.1  such disclosure is a requirement of Law placed upon the party making the disclosure, including any requirements for disclosure under the FOIA or the Environmental Information Regulations pursuant to Clause 42 (Freedom of Information);

43.2.2  such information was in the possession of the party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner;

43.2.3  such information was obtained from a third party without obligation of confidentiality;

43.2.4  such information was already in the public domain at the time of disclosure otherwise than by a breach of this Agreement; or

43.2.5  it is independently developed without access to the other party's Confidential Information.

43.3  The parties acknowledge that, except for any information which is exempt from disclosure in accordance with the provisions of the FOIA, the content of this Agreement is not Confidential Information.  Notwithstanding any other term of this Agreement, the Contractor hereby gives its consent for the Authority to publish the Agreement in its entirety (but with any information which is exempt from disclosure in accordance with the provisions of the FOIA redacted), as the Agreement may have been varied at the relevant time, to the general public.

43.4  The Contractor shall assist and cooperate with the Authority to enable the Authority to publish this Agreement. The Authority may consult with the Contractor to inform its decision regarding any exemptions but the Authority shall have the final decision in its absolute discretion.

43.5  The Contractor may only disclose the Authority Confidential Information to the Contractor Personnel who are directly involved in the provision of the Services and who need to know the information, and shall ensure that such Contractor Personnel are aware of and shall comply with these obligations as to confidentiality.

43.6  The Contractor shall not, and shall procure that the Contractor Personnel do not, use any of the Authority Confidential Information received otherwise than for the purposes of this Agreement.

43.7  The Contractor may only disclose the Authority Confidential Information to the Contractor Personnel who need to know the information, and shall ensure that such Contractor Personnel are aware of, acknowledge the importance of, and comply with these obligations as to confidentiality. In the event that any default, act or omission of any Contractor Personnel causes or contributes (or could cause or contribute) to the Contractor breaching its obligations as to confidentiality under or in connection with this Agreement, the Contractor shall take such action as may be appropriate in the circumstances, including the use of disciplinary procedures in serious cases. To the fullest extent permitted by its own obligations of confidentiality to any Contractor Personnel, the Contractor shall provide such evidence to the Authority as the Authority may reasonably require (though not so as to risk compromising or prejudicing the case) to demonstrate that the Contractor is taking appropriate steps to comply with this Clause, including copies of any written communications to and/or from Contractor Personnel, and any minutes of meetings and any other records which provide an audit trail of any discussions or exchanges with Contractor Personnel in connection with obligations as to confidentiality.

43.8  Nothing in this Agreement shall prevent the Authority from disclosing the Contractor's Confidential Information:

43.8.1  to any Crown Body or any other Contracting Authority.  All Crown Bodies or Contracting Authorities receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other Crown Bodies or other Contracting Authorities on the basis that the information is confidential and is not to be disclosed to a third party which is not part of any Crown Body or any Contracting Authority;

43.8.2  to any consultant, contractor or other person engaged by the Authority or any person conducting an Official Assurance Review;

43.8.3  for the purpose of the examination and certification of the Authority's accounts; or

43.8.4  for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Authority has used its resources.

43.9  The Authority shall use all reasonable endeavours to ensure that any government department, Contracting Authority, employee, third party or Sub-contractor to whom the Contractor's Confidential Information is disclosed pursuant to Clause 43.8 is made aware of the Authority's obligations of confidentiality.

43.10  Nothing in this Clause 43 shall prevent either party from using any techniques, ideas or know-how gained during the performance of the Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other party's Confidential Information or an infringement of IPR.