THIS AGREEMENT RECORDS:
1. Definitions and Interpretation
1.1 Definitions: In this Agreement unless the context otherwise requires:
Affiliate includes, where the context is appropriate and without limitation, any shareholder, director, partner, consultant, employee, agent, representative, contractor, subcontractor, professional or legal adviser or other affiliate of the relevant Party and includes any related company of the relevant Party (as defined in the Companies Act 1993) and any Affiliate of such related company;
Confidential Information means any information, data and know-how (whether technical or not) stored or imparted in whatever form (written, electronic or otherwise) owned by, under the control of, or otherwise concerning the Disclosing Party, which is disclosed whether intentionally or unintentionally, to the Receiving Party pursuant to this Agreement, and includes:
1.1.1 all information not in the public domain and disclosed by the Disclosing Party, in whatever form, to the Receiving Party or otherwise acquired by the Receiving Party directly or indirectly from the Disclosing Party, including:
(a) information concerning the Disclosing Party’s goods or services, its business, assets, liabilities or financial position, any information concerning its operations, dealings, organisation, personnel, business strategies, ideas, intellectual property rights, trade secrets, innovative ideas or technical processes;
(b) personal information under the control of the Disclosing Party that is subject to the provisions of the Privacy Act 2020; and
(c) information regarding the Disclosing Party’s customers, pricing policies, procedures, marketing strategies, proposed business plans and business generally whether disclosed by the Disclosing Party or any other person;
1.1.2 that part of all notes, memoranda, data, computer or electronic media and other records prepared or brought into existence by the Receiving Party based on, incorporating or relating in any way to the information referred to in subclause 1.1.1 and all copies of the information and those parts of the notes and other records referred to in this subclause or subclauses 1.1.1 above; and
1.1.3 the terms of this Agreement including the fact the Parties are having discussions for the Purpose and the Purpose itself;
Agreement means this Agreement (including any Schedules) as amended in writing from time to time;
Disclosing Party means either Party, to the extent Confidential Information of that Party is disclosed to the other Party, and includes, where the context is appropriate, any Affiliate of the Disclosing Party;
Party means either Global Bus Ventures or Victor and Irvine Limited as the context requires, and Parties means both of them;
Purpose means the parties considering negotiating the entry into a commercial arrangement between them in relation to Business Planning and capital raising documents.
Receiving Party means either Party, to the extent Confidential Information of the other Party is disclosed to it, and includes, where the context is appropriate, any Affiliate of the Receiving Party;
Working Day means a day that is not a Saturday or a Sunday on which banks are open for business in Christchurch, New Zealand.
1.2 Interpretation: In this Agreement unless the context otherwise requires:
1.2.1 headings are for ease of reference only and will not be deemed to form any part of the context or affect the interpretation of this Agreement;
1.2.2 references to a statute include references to regulations, orders, codes and notices made under or pursuant to such a statute; and references to a statute include references to all amendments to that statute whether by subsequent statute, or statute passed in substitution for the statute;
1.2.3 the singular includes the plural and vice versa;
1.2.4 a Party includes a reference to that party’s lawful executors, administrators, successors and permitted assigns, and (where the context permits) that party’s Affiliates, contractors, subcontractors and representatives, or receiver, liquidator or statutory manager, and Parties means all parties to this Agreement;
1.2.5 a reference to a person is deemed to include:
(a) any individual, company, corporation, body corporate, firm, partnership, joint venture, incorporated and unincorporated associations, organisation, trust, state or agency of state, government department and local and municipal authorities, in each case whether or not having separate legal personality;
(b) the person’s lawful executors, administrators, successors, substitutes (including persons taking by novation) and assigns and the person’s Affiliates;
1.2.6 the meaning of general words is not limited by specific examples introduced by the words including, for example or similar expressions;
1.2.7 an Agreement, representation, warranty or indemnity on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally;
1.2.8 if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
1.2.9 if an event must occur on a stipulated day which is not a Working Day then the stipulated day will be taken to be the next Working Day.
1.3 Contra proferentem: The terms of this Agreement must not be construed adversely against a Party if a reason for doing so is that the Party prepared this Agreement or caused it to be prepared.
2. Obligations of Confidentiality
2.1 Use of Confidential Information: The Receiving Party agrees, in relation to any and all Confidential Information that it receives from a Disclosing Party:
2.1.1 to keep that Confidential Information in the strictest confidence and subject to disclosure only as expressly permitted under this Agreement;
2.1.2 to use the Confidential Information solely in relation to the Purpose; and
2.1.3 to not divulge, communicate or directly or indirectly disclose or assist in the disclosure of the Confidential Information to any third party, except to Affiliates in accordance with this Agreement or otherwise with the express written consent of the Disclosing Party.
2.2 Disclosure: The Receiving Party may only disclose Confidential Information to, and allow Confidential Information to be used by, its Affiliates:
2.2.1 on the basis that any such Affiliate is informed the Confidential Information is confidential; and
2.2.2 if it is necessary to disclose the Confidential Information in relation to consideration by the Receiving Party of the Purpose and the Affiliate has a need to know.
2.3 Receiving Party Liability: The Receiving Party will ensure that each of its Affiliates to which Confidential Information is disclosed under clause 2.2 complies with the provisions of this Agreement as if that Affiliate were party to this Agreement, and the Receiving Party will be in breach of this Agreement where any of its Affiliates does or omits to do anything that would constitute a breach of this Agreement if that Affiliate were party to this Agreement.
2.4 Exceptions: The obligations of confidentiality under this Agreement do not apply to the extent the Confidential Information is (whether before or after this Agreement is executed):
2.4.1 in the public domain, provided the Confidential Information is in the public domain without breach of this Agreement or fault or neglect on the part of the Receiving Party or an Affiliate of the Receiving Party; or
2.4.2 acquired by the Receiving Party from a third party not owing any obligation of confidence to the Disclosing Party.
2.5 Required Actions: The Receiving Party must, at its own expense:
2.5.1 notify the Disclosing Party immediately if it becomes aware of a suspected or actual breach of this Agreement;
2.5.2 immediately take all reasonable steps to prevent or stop and to comply with any reasonable direction issued by the Disclosing Party from time-to-time regarding a suspected or actual breach; and
2.5.3 establish and maintain proper and effective security measure to safeguard the Disclosing Party’s Confidential Information at all times; and
2.5.4 store and keep safe the Confidential Information in its possession and under its control, and maintain sufficient and appropriate procedures for the protection of the Confidential Information (including where disclosed to Affiliates).
2.6 Assistance in proceedings: The Receiving Party will provide all assistance reasonably requested by the Disclosing Party in relation to any proceedings the Disclosing Party may take against any person for unauthorised use, copying or disclosure of the Confidential Information where the unauthorised use, copying or disclosure is a consequence of the Receiving Party's act or omission.
2.7 Required disclosure: If a Receiving party or one of its Affiliates is required to release the Disclosing Party’s Confidential Information as a requirement of law, court order or the rules of a recognised stock exchange, such disclosure may be made only after the Disclosing Party has been notified and has had a reasonable opportunity to oppose such disclosure on reasonable grounds and to consult with the Receiving Party, or its Affiliate, as to the timing and content of such disclosure.
3. Termination
3.1 Termination: This Agreement will terminate on the earlier of where the Disclosing Party at its absolute discretion has acknowledged in writing to the Receiving Party that such Confidential Information has become publicly available or the Parties agree in writing to terminate the Agreement.
3.2 Return of Confidential Information: The Receiving Party will at any time upon demand by the Disclosing Party, return to the Disclosing Party (or destroy) all the Confidential Information (including all copies or reproductions of the same) in the possession or control of the Receiving Party and/or any of its Affiliates together with all information and documentation containing, comprising or relating in any way to the Confidential Information provided that this clause 3.2 will not apply to any Confidential Information that is required to be retained by the Receiving Party by the operation of any law.
3.3 Accrued Rights and Remedies: Termination of this Agreement will not affect any accrued rights or remedies that either Party may have.
4. Intellectual Property and Limitations
4.1 Property: The Parties acknowledge that each Party’s Confidential Information constitutes valuable and proprietary information of that Party and all intellectual property rights in a Party’s Confidential Information (including copyright, design and patent rights) are the exclusive property, and will remain the exclusive property, of that Party.
4.2 No warranty: The Receiving Party acknowledges that disclosure of any Confidential Information is made on the understanding that the Disclosing Party neither represents nor expressly or impliedly warrants the accuracy or completeness of the Confidential Information.
4.3 Limitation of loss or damage: To the fullest extent permitted by law, the Disclosing Party will not be liable to the Receiving Party for any loss or damage suffered as a consequence of any error or omission contained in the Confidential Information or any use of the Confidential Information.
5. Acknowledgement and Indemnity
5.1 Possibility of loss: The Receiving Party acknowledges the unauthorised disclosure of any Confidential Information may cause the Disclosing Party, to suffer financial loss or to be in breach of the Privacy Act 2020 or to suffer loss that cannot be adequately compensated for in damages.
5.2 Injunctive relief: In the event of any breach of this Agreement by the Receiving Party, the Disclosing Party may apply to a court for injunctive relief to prohibit or restrain any continuing breach and seek damages against the Receiving Party for the loss suffered by the Disclosing Party as a consequence of such breach.
5.3 Indemnity: Without limiting the rights of the Disclosing Party at law, the Receiving Party will indemnify the Disclosing Party in respect of all claims, losses, liabilities, costs or expenses of any kind incurred directly or indirectly by the Disclosing Party, as a result of a breach of any of the obligations of the Receiving Party under this Agreement.
6. Miscellaneous
6.1 Counterparts: This Agreement may be executed in two or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument.
6.2 Duty of Good Faith: In the event of any dispute arising between them in relation to this Agreement, the Parties will consult in good faith with a view to resolving the dispute.
6.3 Costs: Each Party will meet its own costs relating to the negotiation, preparation, implementation and termination of this Agreement.
6.4 Entire Agreement: This Agreement constitutes the entire Agreement of the Parties as to its subject matter and supersedes all prior representations and Agreement s in connection with that subject matter; and may only be altered in writing signed by both Parties.
6.5 Severability: A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement will continue in force.
6.6 No Waiver: No failure or delay by either Party to exercise any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise by either Party to this Agreement of any right preclude any other or further exercise of that right or of any other right. The Parties’ rights expressed in this Agreement are cumulative and do not exclude any rights provided by law.
6.7 No Assignment: Neither Party may assign or otherwise transfer (or attempt to assign or otherwise transfer) any or all of its rights, duties or obligations arising out of this Agreement without the prior written consent of the other Party, such consent not to be unreasonably or arbitrarily withheld.
6.8 Governing law: This Agreement is governed by New Zealand law, and the parties irrevocably submit to the exclusive jurisdiction of the New Zealand Courts.