Dear Recipient,
Non-Disclosure Agreement
We, Cross Group PTY LTD ("Cross Care") are writing in connection with a potential collaboration to enter into a franchise agreement together (the "Proposed Transaction"). The purpose of this letter (the "Letter") is to record the terms and conditions on and subject to which the Parties are prepared to supply certain information to each other to evaluate the Proposed Transaction. Such information is to be used for the sole purpose of performing the Proposed Transaction (the "Permitted Purpose") and not for any other purpose.
In this Letter, "us", "we" and "our" means Cross Care and, pursuant to the terms of this Letter, Cross Care may pass the Confidential Information to the dedicated team of Cross Care employees acting in relation to the Proposed Transaction (the "Team") and, notwithstanding any other provision of this Letter, the restrictions contained herein shall only apply to those individuals among Cross Care’s Team and Representatives that actually receive or actually have access to the Confidential Information directly from Cross Care, and Cross Care’s liability under this Letter shall be limited accordingly save to the extent that its staff within any other team, department or division receive or obtain Confidential Information directly or indirectly from the Team, in which case the obligations set out in this Letter will upon and from the date of such receipt or obtainment be taken to apply to those individuals who have received or obtained Confidential Information within such other team, department or division.
Scope of this Letter
1.1 For the purposes of this Letter:
"Confidential Information" means information of whatever nature relating to the Proposed Transaction, or the Disclosing Party, which is of a confidential nature whether in writing, communicated orally or otherwise, including (but not limited to) all financial, technical, operational, commercial, staff, management and other information, data, and know-how (or copies thereof) and for the avoidance of doubt, the fact that any Confidential Information has been made available to the Receiving Party, that discussions or negotiations are taking place regarding a possible transaction concerning the Disclosing Party, or any of the terms, conditions or other facts with respect to the Proposed Transaction, including the status thereof, which are (i) prepared by the Receiving Party, the Disclosing Party or its or their Representatives or (ii) directly or indirectly disclosed to the Receiving Party by the Disclosing Party or its Representatives or professional advisers.
"Disclosing Party" means a Party to this Letter disclosing Confidential Information to the Receiving Party.
"Parties" means you and us and "Party" means either of the Parties, as applicable.
"Representatives" means, in relation to either Party, its respective affiliates and its and their officers, employees, directors and advisers.
"Receiving Party" means a Party to this Letter receiving Confidential Information from the Disclosing Party.
"You" and "you" means the applicants name mentioned above ’s subsidiaries, subsidiary undertakings from time to time of such holding companies, all of them and each of them as the context admits, and "Your" and "your" includes such persons.
1.2 The terms of this Letter apply to all or any Confidential Information supplied to the Receiving Party by or on behalf of the Disclosing Party. For the avoidance of doubt, this includes Confidential Information supplied by the Disclosing Party’s Representatives.
1.3 None of the undertakings or obligations contained in this Letter shall apply to Confidential Information:
(a) which, at the date of its disclosure, is public knowledge or becomes public knowledge other than by reason of a breach of the terms of this Letter or any other obligation of confidentiality;
(b) which was received from a source not connected with the Disclosing Party at a time when that source was not under any obligation of confidence in respect of that Confidential Information; or
(c) which was (as can be demonstrated by the Receiving Party’s written records) lawfully in its possession prior to the first disclosure by the Disclosing Party or its Representatives and not acquired directly or indirectly from the Disclosing Party or its Representatives, provided that such information was not subject to any obligations of confidence, secrecy or non-use.
2. Use and disclosure of Confidential Information
2.1 In consideration of the Confidential Information being supplied, the Receiving Party agrees and undertakes:
(a) to treat the Confidential Information as being strictly private and confidential and to take all precautions necessary to maintain its status as such;
(b) to use the Confidential Information solely for the Permitted Purpose and not for any other purpose;
(c) except as provided in paragraph 2.2, not at any time, without the Disclosing Party’s prior written consent, to disclose any of the Confidential Information to any third party other than to the Receiving Party’s Representatives who are required in the course of, and solely for the purpose of, the Proposed Transaction to have the Confidential Information disclosed to them;
(d) that the persons referred to in paragraph 2.1(c) are made fully aware of the terms of this Letter prior to disclosure of any Confidential Information to them and that such persons understands fully the provisions of this Letter as if they were themselves parties to it and subject to the same obligations as the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Letter by any person to whom disclosure of Confidential Information is made as if it was the Receiving Party who had breached the terms of this Letter;
(e) not to copy, reproduce or distribute, in whole or in part, Confidential Information; and
(f) not to disclose to any third party the existence or subject matter of this Letter or the fact that the Receiving Party are in discussions with the Disclosing Party as to the Proposed Transaction.
2.2 The agreement and undertaking contained in paragraph 2.1(a) shall not apply to Confidential Information, the disclosure of which is required or requested by (i) any applicable law or by any supervisory, regulatory body, stock exchange or in connection with any legal proceedings that the Receiving Party is subject to provided that:
(a) subject to any law to the contrary and if it is reasonably practicable, the Receiving Party will promptly notify the Disclosing Party in writing if any disclosure of Confidential Information is so requested or required;
(b) the Receiving Party will only make a disclosure to the extent that it is legally obliged to do so, but not further or otherwise;
(c) the Receiving Party must use its reasonable efforts to ensure that the Confidential Information so disclosed is treated confidentially.
3. Destruction or Return of Confidential Information
3.1 The Receiving Party agrees that it will within 20 business days, upon receiving a written demand from the Disclosing Party, which may be given at any time (whether in writing or not):
(a) destroy or at the Receiving Party’s election, return to the Disclosing Party all documents and any other tangible record of the Confidential Information in its possession (including all copies of, or extracts from, those documents and records) and delete (to the extent practicable) all Confidential Information from any computer into which it has been programmed; and
(b) procure that each person to whom Confidential Information has been disclosed as permitted pursuant to paragraph 2.1(c) at their election either destroys or returns to the Disclosing Party all documents and any other tangible record of the Confidential Information in its possession (including all copies of, or extracts from, those documents and records) and deletes all Confidential Information from any computer into which it has been programmed.
3.2 It is understood that the destruction and/or return of Confidential Information shall not relieve the Receiving Party and its Representatives from any other obligations under this Letter.
3.3 For the avoidance of doubt, notwithstanding the above, the Receiving Party and its Representatives may keep copies of the Confidential Information if so required by law, regulation or pursuant to a bona fide compliance policy, or as such copies are created by any automated computer back-up system which may not conveniently be deleted.
4. Exclusion of liability
4.1 The Receiving Party acknowledges that it will be responsible for making its own decisions on, and investigations with respect to, the Proposed Transaction and the Confidential Information supplied to it, and acknowledge that neither the Disclosing Party nor any of its Representatives make any representation or warranty (express or implied) as to the accuracy or completeness or reasonableness of, or will have any liability whatsoever for any provision of, inaccuracy in, omission from, or the use by the Receiving Party or any decision based on such Confidential Information.
5. Miscellaneous
5.1 The Receiving Party’s obligations under this Letter are in addition to any other obligations which it may have under statute, common law or otherwise. The provisions of this Letter are without prejudice to any other right or remedy which the Disclosing Party or any of its affiliates may have in connection with the use or disclosure of the Confidential Information.
5.2 The Confidential Information is supplied on a subject to contract basis and will not (unless agreed otherwise in writing by all parties to the Proposed Transaction) form the basis of any contract for the Proposed Transaction.
5.3 The Receiving Party acknowledges the competitive value and the confidential and/or proprietary nature of the Confidential Information and the damage that could result to the Disclosing Party or its affiliates if any Confidential Information is disclosed or communicated directly or indirectly (whether in writing or orally or in any other manner) in breach of the terms of this Letter. The Receiving Party agrees that damages may not be an adequate remedy for any breach or threatened breach by the Receiving Party of this Letter and that the Disclosing Party and its affiliates may (in addition to any other rights or remedies available to any of them) be entitled, without proof of special damage, to seek injunctive and other equitable remedies.
5.4 The Receiving Party acknowledges that in furnishing the Confidential Information neither the Disclosing Party nor its Representatives undertake to provide the Receiving Party with access to any additional information or to update Confidential Information supplied or to correct any inaccuracies therein which may become apparent.
5.5 The Receiving Party acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and undertake not to use any Confidential Information for any unlawful purpose.
5.6 The obligations under this Letter shall terminate and have no further effect upon the expiry of 12 months from the date of execution, provided that such termination shall not affect liability for any breach occurring prior to the expiry of such period.
5.7 This Letter may be executed in any number of counterparts which together shall constitute one agreement. Any party may enter into this Letter by executing a counterpart and this Letter shall not take effect until it has been executed by both Parties.
5.8 This Letter together with any documents referred to in it constitutes the entire agreement (and supersedes any previous written or oral agreement) between the Parties relating to the subject matter of this Letter.
5.9 No variation of this Letter will be valid unless it is in writing and signed by or on behalf of each Party.
5.10 Nothing contained or implied in this Letter creates a joint venture or partnership between the Parties or makes one Party the agent or legal representative of the other for any purpose.
5.11 Neither party will assign or transfer any rights or obligations under this Letter without the prior written consent of the other party.
5.12 If any provision of this Letter shall be held to be void, illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Letter. For the avoidance of doubt, the enforceability of the remainder of this Letter shall not be affected.
5.13 This Letter 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 laws of New South Wales and subject to the exclusive jurisdiction of the New South Wales courts.
Please indicate your acceptance of the terms of this Letter by ticking the box below and signing the Cross Care Franchise form.
Yours faithfully,
Cross Care