This agreement is made on the last date signed in the Execution Clause.
1. Definitions
1.1 In this Agreement, except where the context otherwise requires:
Approved Purpose means the purpose of the parties discussing potential investment and insurance enquiries and performing associated due diligence assessments.
Confidential Information means any and all information and/or data and/or documents, regardless of whether it is in tangible form, that is:
(a) disclosed by the Discloser to the Recipient including, but not limited to, any information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, billing records, finances, and products or services, including those of its Group Companies;
(b) know-how, trade secrets or generally not publicly available information of the Discloser;
(c) designated as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered confidential; and
(d) lawfully disclosed to or acquired by the Recipient through the Discloser or a third party authorised by the Discloser to make such disclosure, whether before or after the date of this Agreement;
but does NOT include any information which the Recipient can prove lawfully:
(e) came into possession before disclosure by the Discloser or a third party authorised by the Discloser to make such disclosure; or
(f) becomes publicly available, through no fault of the Recipient or any other person owing an obligation of confidence to the Discloser
Discloser means a party that discloses its Confidential Information to the other party and “Disclosing party” shall bear a corresponding meaning.
Group Company means a party’s related bodies corporate (as defined in the Corporations Act 2001 (Cth))
Intellectual Property Rights means any and all rights in respect of or in connection with any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), designs or trademarks throughout the world, whether such rights are afforded protection by a system of registration or not, and includes all rights to apply for registration of such rights where applicable.
Permitted Disclosure means any disclosure of Confidential Information by the Recipient:
(a) to its directors, employees and professional advisors provided that such disclosure is:
(i) absolutely necessary for achieving the Approved Purposes; and
(ii) made on the same terms and conditions as set out in this Agreement; or
(b) that it is legally required to make.
Recipient means a party that receives or obtains Confidential Information of the other party and “Receiving party” shall bear a corresponding meaning.
2. Obligations of Confidentiality
2.1 The Recipient undertakes, on its own behalf and on behalf of its directors, officers, staff and employees, to:
(a) keep the Confidential Information absolutely secret and confidential save for Permitted Disclosures;
(b) not copy, reproduce or store, or assist a third party to do any of those things to, the Confidential Information, except to the extent reasonably required for achieving the Approved Purpose;
(c) immediately notify the Discloser of any breach or suspected breach of its obligations set out in this Agreement or any unauthorised use, copying or disclosure of the Confidential Information; and
(d) immediately on the Discloser’s demand, return or destroy all documents, reports, notes, memoranda, storage media and other material (including any copies or reproductions) containing or relating in any way to the Confidential Information, and certify by way of statutory declaration that such return or destruction has been completed.
2.2 Where the Recipient is in doubt about whether certain information is Confidential Information, the Recipient must treat such information as Confidential Information until such time as the Discloser declares such information to be not Confidential Information.
3. Acknowledgments
3.1 The Recipient acknowledges that:
(a) the Confidential Information is confidential and of value to the Discloser and is unique and difficult to assess in monetary terms;
(b) damages are not a sufficient remedy for the Discloser for any breach of this Agreement and the Discloser is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by the Recipient, in addition to any other remedies available to the Discloser at law or in equity;
(c) upon creation, all rights (including any Intellectual Property Rights) in:
(i) the Confidential Information; and
(ii) any developments or improvements to the Confidential Information created or developed by the Recipient,
immediately vests in the Discloser, and forms part of the Confidential Information.
(d) The Recipient’s rights in the Confidential Information are limited to only those expressly granted by this Agreement. In particular, no implied licence is granted to the Recipient directly or indirectly under any patent, invention, discovery, copyright or other industrial or intellectual property right owned, made, obtained or licensable by the Discloser now or in the future;
(e) The Discloser does not represent or warrant that the Confidential Information is complete, accurate or fit for any purpose; and
(f) Nothing in this Agreement requires the Discloser to disclose all the Confidential Information or to enter into any further agreement with the Recipient in relation to the Confidential Information or the Approved Purpose.
(g) Before the Recipient discloses any Confidential Information that is required to be disclosed under any law or order of any court, tribunal, authority, regulatory body or the rules of a recognised stock exchange, the Recipient must provide the Discloser with:
(i) sufficient notice to enable it to seek a protective order or other remedy; and
(ii) all assistance and co-operation which the Discloser considers necessary to prevent that disclosure of the Confidential Information.
4. General
4.1 In this Agreement, except where the context otherwise requires:
(a) Headings are for convenience only and do not affect interpretation.
(b) The singular includes the plural and conversely.
(c) The meaning of general words is not limited by specific examples introduced by the words including or for example, or similar expressions.
(d) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(e) A reference to a clause, Schedule or Annexure is a reference to a clause of, a Schedule to or an Annexure to this Agreement.
(f) A reference to an agreement or document (including, a reference to this Agreement) includes all permitted amendments, variations, supplements to or novations of that agreement or document.
(g) A reference to a party to this Agreement or another agreement or document includes the party's successors and permitted assigns.
(h) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
4.2 No amendment or variation of this Agreement is valid or binding unless made in writing executed by the parties.
4.3 If any part or whole of a provision of this Agreement is held to be void or unenforceable for any reason, that part or whole of that provision which is void or unenforceable is deemed severed from this Agreement without otherwise affecting the validity or enforceability of the other provisions contained in this Agreement.
4.4 The Recipient must not assign any of its rights or obligations under this Agreement without the written consent of the Discloser. A party may not assign or transfer any of its rights or obligations under this Agreement other than by novation of all of its rights and obligations under this Agreement.
4.5 This Agreement:
(a) contains the entire agreement and understanding between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it;
(b) is governed by the laws of Victoria, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the Victoria courts and any courts of appeal from them;
(c) binds each party and their respective successors in title and permitted assigns; and
(d) commences upon execution and will continue indefinitely in respect of each piece of Confidential Information until it is no longer Confidential Information.