Pre Contractual Confidentiality {date}
Parties
Strong Pilates Franchising Pty Ltd ACN 58 637 543 385 of 91 Brighton Road, Elwood, VIC 3184 (Strong Pilates)
&
{fullName6}
Introduction
A
Strong Pilates will be making certain information available to You to allow You to consider the Business Opportunity.
B
Strong Pilates is willing to provide You with the information subject to You preserving the confidentiality of that information in accordance with this Deed.
It is agreed
1. High commercial sensitivity
1.1 Strong Pilates may provide Confidential Information to You of Strong Rowformer’s choosing for the purpose of allowing You to evaluate the Business Opportunity.
1.2 You acknowledge that the Confidential Information is commercially sensitive and that its continued confidentiality is vital to the success of Strong Pilates and Strong Pilates Franchisees.
2. Maintenance of confidentiality
2.1 You must:
(1) use the Confidential Information solely for the Approved Purposes;
(2) not make Notes or allow Notes to be made except as necessary in connection with the Approved Purposes;
(3) keep a record of what notes have been made and by whom and supply this information to Strong Pilates on request;
(4) maintain and take all steps necessary to maintain all Confidential Information in strictest confidence;
(5) not utilise any Confidential Information to improve, construct or change a business (other than a Strong Pilates Franchise) so as to compete with any Strong Pilates Franchise;
(6) ensure that proper and secure storage is provided for the Confidential Information and take all precautions necessary to prevent accidental disclosure of any of the Confidential Information;
(7) not disclose any of the Confidential Information to any person other than any solicitors. financiers or financial advisers who are required to receive and consider the Confidential Information in the course of (and solely for the purpose of) the Approved Purposes;
(8) subject to clause 2.1(7), keep confidential the fact that Confidential Information has been provided by Strong Pilates to You;
(9) not provide a copy of any Confidential Information to any person other than as specifically permitted under this Deed; and
(10) not expressly or impliedly disclose the existence of Confidential Information.
2.2 Clause 2.1 does not impose obligations on You concerning Confidential Information which:
(1) at the time of the first disclosure by Strong Pilates to You, is already publicly available;
(2) after disclosure by Strong Pilates to You becomes publicly available otherwise than by disclosure in breach of the terms of this Deed; or
(3) You obtained from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information.
2.3 It is not a breach of clause 2.1 for You to disclose to a person Confidential Information or Notes if You are obliged to do so by law or court order to the person to whom it is disclosed.
3. Return of Confidential Information
3.1 You must return all Confidential Information and all documents and other media which contain Confidential Information to Strong Pilates, and delete any Notes, including those electronically stored whether by You or by Your officers, employees or agents:
(1) immediately when requested by Strong Pilates to do so; and
(2) if not earlier requested:
(a) if Strong Pilates notifies You that You will not be granted a Strong Pilates Franchise, on the date that Strong Pilates notifies You; or
(b) if You notify Strong Pilates that You do not intend to take up the Business Opportunity, on the date that You notify Strong Pilates.
4. Disclaimers
4.1 No member of the Strong Pilates Group, or any of their respective employees, officers or agents:
(1) makes any representation, or gives any warranty or assurance as to the accuracy or completeness of the Confidential Information; or
(2) is liable for loss of any kind including damages, costs, interest, loss of profits or special loss or damage arising from any infringement, inaccuracy or incompleteness in the Confidential Information.
5. Remedies
5.1 You acknowledge that:
(1) monetary damages alone would not be a sufficient remedy for a breach of this Deed; and
(2) in addition to any other remedy that may be available in law or equity, Strong Pilates is entitled to interim, interlocutory and permanent injunctions or any of them, to prevent breach of this Deed and to compel specific performance of it.
6. Restraint
6.1 Without limiting any other provision of this Deed You must not, without the prior written consent of Strong Pilates:
(1) for a period of 18 months after the date of this Deed:
(a) develop a business the same as or similar to a Strong Pilates Franchise;
(b) be engaged, concerned or interested in any business or person that competes against any member of the Strong Pilates Group or any Strong Pilates Franchisee; or
(c) solicit, employ or engage the services of any employee of the Strong Pilates Group or of any Strong Pilates Franchisee or any other person who becomes an employee of the Strong Pilates Group or any Strong Pilates Franchisee; and
(2) at any time, use the Confidential Information for any of the purposes specified in clause 6.1(1).
6.2 Clauses 6.1(1)(a) and 6.1(1)(b) do not apply to You in respect of any business operated prior to the date of this Deed.
7. General clauses
7.1 Strong Pilates holds the rights under this Deed expressed to be for other members of the Strong Pilates Group as agent of and trustee for such parties, and they must be treated to this extent as parties to this Deed.
7.2 If anything in this Deed is unenforceable, illegal or void then it is severed and the rest of this Deed remains in force. If anything in this Deed is unenforceable, illegal or void in one jurisdiction but not in another jurisdiction, it is severed only in respect of the operation of this Deed in the jurisdiction where it is unenforceable, illegal or void.
7.3 Your obligations and undertakings continue indefinitely and are not diminished or terminated by the making or completion of an agreement concerning the Business Opportunity.
7.4 Your obligations and undertakings are for the benefit of, and are enforceable by, Strong Pilates and its successors and assigns and are binding on You and Your successors.
7.5 This Deed is the entire agreement and understanding between the parties on everything connected with its subject matter, and supersedes any prior agreement or understanding on anything connected with that subject matter.
7.6 Each party has entered into this Deed without relying on any representation by any other party or any person purporting to represent that party.
7.7 Failure or delay by Strong Pilates in exercising a right, power or remedy does not operate as a waiver of that right, power or remedy. A single or partial exercise of a right, power or remedy by Strong Pilates does not preclude either its exercise in the future or the exercise of any other right, power or remedy by Strong Pilates.
7.8 The law of Victoria governs this Deed. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia.
8. Definitions and interpretation
In this Deed:
8.1
(1) Approved Purposes means the evaluation of the Business Opportunity, the making of a decision whether or not to take up the Business Opportunity and negotiation of a formal agreement concerning the Business Opportunity.
(2) Business Opportunity means the opportunity to purchase and operate a Strong Pilates Franchise. (3) Confidential Information includes the Notes and means information of every kind:
(a) relating to:
(i) the Business Opportunity, including the Business Opportunity itself;
(ii) the Intellectual Property; and/or
(iii) the business methods, trade secrets, financial position, trading or procedures of any member of the Strong Pilates Group or any Strong Pilates Franchisee;
(b) which, by its nature, places or potentially places any member of the Strong Pilates Group at an advantage over its present or future business competitors; and/or
(c) which is the property of the Strong Pilates Group.
(4) Strong Pilates Franchise means the provision of building inspections (at different stages in the build process), contract reviews and building reports for clients engaging with builders to construct residential properties using the Trade Marks and other Intellectual Property.
(5) Strong Pilates Franchisee means a person or entity licensed to operate a Strong Pilates Franchise.
(6) Strong Pilates Group means Strong Pilates and its Related Entities.
(7) Deed means this deed.
(8) Image means the specific image created or prescribed by Strong Pilates for the operation of a Strong Pilates Franchise including names, trade marks, uniform product ranges, specified design and colour schemes for business premises, vehicles, signs, layouts, fixtures and fittings, equipment and uniforms.
(9) Intellectual Property means:
(a) all copyright, trademark rights, patent rights, design rights or any other intellectual property subsisting in the Trade Marks and the Image or created during the development of the Trade Marks, System, Image, Strong Pilates operations manual and any advertising and promotional materials relating to a Strong Pilates Franchise, including software, source and object codes, records, documents, specifications, plans, program listings, calculations, or drawings; and
(b) any Confidential Information and/or know how necessary for or which may be used in connection with the administration, operation and marketing of the Strong Pilates Franchise.
(10) Notes means notes that relate to, summaries and copies of and extracts from any, Confidential Information whether in documentary, visual, machine readable or other form.
(11) Related Entity has the meaning given in section 9 of the Corporations Act 2001 (Cth).
(12) System means any one or more of the processes, systems, operational procedures, methods and policies for operation of a Strong Pilates Franchise as specified by Strong Pilates, the Operations Manual, or otherwise in writing by Strong Pilates.
(13) Trade Marks means all of Strong Rowformer’s authorised trademarks, logos, business names and trade names for use in a Strong Pilates Franchise which may be registered or over which Strong Pilates claims common law protection.
8.2 If a party consists of more than 1 person, this Deed binds each of them separately and any 2 or more of them jointly.
8.3 A party which is a trustee is bound both personally and in its capacity as a trustee4
Executed as a deed and delivered on the date shown on the first page.
By Strong Pilates
Executed by Strong Pilates Franchising Pty Ltd ACN 58 637 543 385 in accordance with section 127 of the Corporations Act 2001:
Director/company secretary
MARK ARMSTRONG
Director
MICHAEL RAMSEY