IMPORTANT AGREEMENT – TO BE READ AND ACCEPTED BEFORE ACCESS TO CONFIDENTIAL REPORT IS PERMITTED
Provision of Deliverable without responsibility
Following a request by NATS (En Route) Plc, KPMG LLP of 15 Canada Square, London E14 5GL (“KPMG”) has exceptionally consented to viewing, at an electronic facility controlled by or under the direction of NATS Limited, of a confidential document prepared by KPMG, on the basis of the agreement set out below, which will be legally binding on you and any corporate body represented by you, if you accept it by clicking-through to the document:
1. KPMG has prepared a confidential document dated 29 July 2016 (the “Deliverable”). The Deliverable was not prepared for you. The Deliverable can be viewed at this facility.
2. You should note that significant events may well have occurred since the date on which KPMG’s work was performed or the date of matters to which the Deliverable relates. It is not KPMG’s function or responsibility to provide you with any information, whether or not in the Deliverable or in relation to the Deliverable.
3. KPMG does not accept or assume responsibility to you, for its work, for the Deliverable or for any judgments, findings, conclusions, recommendations or opinions that KPMG has formed or made when preparing the Deliverable, whether or not covered in the Deliverable. The work was undertaken and the Deliverable was prepared, on agreed terms of engagement, in order that KPMG might cover those matters which it agreed to cover in the Deliverable and for no other purpose. The work was not undertaken and the Deliverable was not prepared and KPMG did not cover any such matters in the Deliverable for you. The position as stated in this paragraph will continue to apply following your viewing of the Deliverable.
4. KPMG’s work and the Deliverable were not planned or prepared in contemplation, or for the purpose, of your interests or needs.
5. Therefore, items of possible interest to you may not have been addressed by KPMG. The use of professional judgement, and the assessment of issues or their relevance (as appropriate) by KPMG would or might have been used and assessed differently by you for your purposes. KPMG does not warrant or represent that any facts or matters in the Deliverable are suitable or appropriate for your purposes.
6. For the foregoing reasons, the Deliverable cannot in any way serve as a substitute for other enquiries and procedures that you would (or should) otherwise undertake and judgements you must make for the purpose of satisfying yourself regarding any matters of interest to you.
7. KPMG is prepared to allow you to view the Deliverable, on condition that you acknowledge and accept the foregoing paragraphs and agree to the following conditions:
(1) You accept, agree and acknowledge that:
(a) the expression “the Information” shall mean the Deliverable.
(b) in respect of the Information (and any part of it) the onus shall be upon you to obtain verification from other sources rather than seek to rely on KPMG.
(c) to the fullest extent permitted by law, KPMG owes no duty to you, whether in contract or in tort or under statute or otherwise (including in negligence) with respect to or in connection with the Information or its provision.
(d) if, notwithstanding the terms of this agreement, you do rely upon any of the Information for any purpose, you will do so entirely at your own risk.
(e) you will not bring any actions, proceedings or claims against KPMG where the action, proceeding or claim in any way relates to or concerns or is connected with the Information.
(f) to the fullest extent permitted by law, KPMG has no liability to you for any loss or damage suffered or costs incurred by you, arising out of or in connection with the Information or its use, however such loss or damage is caused.
(g) you will not refer to the Information nor allow access to it or any report derived therefrom to any person or entity without KPMG’s prior written consent, save where (i) you wish to verify the Information (or any part of it) with the party which engaged KPMG to prepare the Deliverable or, if relevant, the target of a proposed acquisition to which the Information relates; (ii) you wish to disclose to your legal advisers for the purposes of your seeking advice in relation to matters included in the Information but then only on the basis that they are required to treat the Information as confidential and agree that KPMG will have no duty or liability to them; or (iii) disclosure is required by a Court or by statute or by a competent regulator. Where KPMG is willing to give written consent, KPMG will require as a condition of such consent that the other person or entity agrees in writing to be bound by and to observe the terms set out in this agreement, as if references to you were a reference to the other person or entity.
(2) Without limiting the obligation in paragraph 7(1)(g) above, you agree to ensure that you do not make any statement or convey any impression that KPMG accepts or assumes any responsibility to you or to anyone else for KPMG’s work or the Deliverable or that the Deliverable was prepared for any purpose of interest to you or anyone else unless KPMG has already confirmed any such responsibility and purpose separately and in writing.
8. The work resulting in the Deliverable was undertaken by, and the Deliverable was prepared by and is the sole responsibility of, KPMG LLP of 15 Canada Square, London E14 5GL. In paragraph 7 of this agreement all references to “KPMG” (except for the first and the last two references in the paragraph 7(1)(g)) shall have an extended meaning so that they include, in addition to KPMG LLP in the UK, partners, employees and agents of KPMG and any person or organisation associated with KPMG through membership of the Swiss co-operative of professional service firms to which KPMG belongs and their partners, members, directors, employees and agents. This agreement is for the benefit of all of those third parties referred to in the previous sentence and each of them may enforce in their own right all of the terms of this agreement.
9. This agreement sets out the entire agreement as between you and KPMG in relation to the conditions upon which the Deliverable is made available to you by KPMG or permitted to be made available to you. It replaces all prior agreements or understandings (if any – unless based on statements made fraudulently) between or amongst you and KPMG in that regard.
10. The terms of this agreement which is formed when you click through to the Deliverable shall in all respects be governed solely by English law, and the Courts of England and Wales shall have exclusive jurisdiction in respect of any dispute arising out of it or in connection with it on any basis. You and KPMG irrevocably waive any right to bring proceedings in any other jurisdiction, to object to proceedings being brought in those Courts, to claim that the proceedings have been brought in an inappropriate forum, or to claim that those Courts do not have jurisdiction.