NON-DISCLOSURE AGREEMENT
BACKGROUND:
A. The Seller and the Buyer are contemplating a possible transaction (the “Transaction”)
with respect to:
i. The Seller’s business, Aussie Pathtag Club.
B. In connection with the Transaction (the “Permitted Purpose”), the Seller has requested
certain confidential information (the “Confidential Information”).
IN CONSIDERATION OF and as a condition of the Buyer providing the Confidential
Information to the Seller in addition to other valuable consideration, the receipt and
sufficiency of which consideration is hereby acknowledged, the parties to this Agreement
agree as follows:
Confidential Information
- All written and oral information and materials disclosed or provided by the Buyer to the
Seller under this Agreement constitute Confidential Information regardless of whether
such information was provided before or after the date of this Agreement or how it
was provided to the Buyer. - ‘Confidential Information’ means all data and information relating to the transaction and
the Buyer, including but not limited to, the following:
a. ‘Customer Information’ which includes names of customers of the Seller, their
representatives, all customer contact information, contracts and their contents
and parties, customer services, data provided by customers and the type,
quantity and specifications of products and services purchased, leased, licensed
or received by customers of the Seller;
b. ‘Intellectual Property’ which includes information relating to the Seller’s
proprietary rights prior to any public disclosure of such information, including
but not limited to the nature of the proprietary rights, production data, technical
and engineering data, technical concepts, test data and test results, simulation
results, the status and details of research and development of products and
services, and information regarding acquiring, protecting, enforcing and
licensing proprietary rights (including patents, copyrights and trade secrets);
c. ‘Service Information’ which includes all data and information relating to the
services provided by the Seller, including but not limited to, plans, schedules,
manpower, inspection, and training information;
d. ‘Product Information’ which includes all specifications for products of the Seller
as well as work product resulting from or related to work or projects of the
Seller, of any type or form in any stage of actual or anticipated research and
development;
e. ‘Production Processes’ which includes processes used in the creation, production
and manufacturing of the work product of the Seller, including but not limited
to, formulas, patterns, moulds, models, methods, techniques, specifications,
processes, procedures, equipment, devices, programs, and designs;
f. Confidential Information will also include any information that has been
disclosed by a third party to the Seller and is protected by a non-disclosure
agreement entered into between the third party and the Seller. - Confidential Information will not include the following information:
a. Information that is generally known in the industry of the Seller;
b. Information that is now or subsequently becomes generally available to the public
through no wrongful act of the Seller;
c. Information rightly in the possession of the Buyer prior to the disclosure to the
Seller by the Buyer, the burden being on the Seller to establish this through
documentation;
d. Information that is independently created by the Buyer without direct or indirect
use of the Confidential Information, the burden being on the Buyer to establish
this through documentation; or
e. Information that the Buyer rightfully obtains from a third party who has the right
to transfer or disclose it, the burden being on the Buyer to establish this through
documentation.
Obligations of Non-Disclosure - Except as otherwise provided in this Agreement, the Seller must not disclose the
Confidential Information. - Except as otherwise provided in this Agreement, the Confidential Information will remain
the exclusive property of the Seller and will only be used by the Seller for the
Permitted Purpose. The Seller will not use the Confidential Information for any
purpose that might be directly or indirectly detrimental to the Buyer or any associated
affiliates or subsidiaries. - The obligations to ensure and prevent the disclosure of the Confidential Information
imposed on the Seller in this Agreement and any obligations to provide notice under
this Agreement will survive the expiration or termination, as the case may be, of this
Agreement and those obligations will last indefinitely. - The Buyer may disclose any of the Confidential Information:
a. to such employees, agents, representatives and advisors of the Buyer that have a
need to know for the Permitted Purpose provided that:
i. the Seller has informed such personnel of the confidential nature of the
Confidential Information;
ii. such personnel agree to be legally bound to the same burdens of non disclosure and non-use as the Seller;
iii. the Seller agrees to take all necessary steps to ensure that the terms of this
Agreement are not violated by such personnel; and
iv. the Seller agrees to be responsible for and indemnify the Buyer for any
breach of this Agreement by their personnel.
b. to a third party where the Buyer has consented in writing to such disclosure; and
c. to the extent required by law. - The Seller agrees to retain all Confidential Information at their usual place of business
and to store all Confidential Information separate from other information and
documents held in the same location. Further, the Confidential Information may not
be used, reproduced, transformed, or stored on a computer or device that is accessible
to persons to whom disclosure may not be made, as set out in this Agreement.
Ownership and Title - Nothing contained in this Agreement will grant to or create in the Buyer, either expressly
or impliedly, any right, title, interest or license in or to the intellectual property of the
Seller.
Remedies - The Seller agrees and acknowledges that the Confidential Information is of a proprietary
and confidential nature and that any disclosure of the Confidential Information to a
third party in breach of this Agreement cannot be reasonably or adequately
compensated for in money damages and would cause irreparable injury to the Buyer.
Accordingly, the Seller agrees that the Buyer is entitled to, in addition to all other
rights and remedies available to it at law or in equity, an injunction restraining the
Seller and any agents of the Seller, from directly or indirectly committing or engaging
in any act restricted by this Agreement in relation to the Confidential Information.
Return of Confidential Information - The Buyer may at any time request the return of all Confidential Information from the
Seller. Upon the request of the Buyer, or in the event that the Seller ceases to require
use of the Confidential Information, or upon the expiration or termination of this
Agreement, the Seller will:
a. return all Confidential Information to the Buyer;
b. provide a certificate to the Buyer to the effect that the Seller has returned all
Confidential Information to the Seller.
Notices - In the event that the Seller is required in a civil, criminal or regulatory proceeding to
disclose any part of the Confidential Information, the Seller will give to the Buyer
prompt written notice of such request so the Buyer may seek an appropriate remedy
or alternatively to waive the Seller’s compliance with the provisions of this
Agreement in regards to the request. - If the Seller loses or makes unauthorised disclosure of any of the Confidential
Information, the Seller will immediately notify the Buyer and take all reasonable steps
necessary to retrieve the lost or improperly disclosed Confidential Information. - Any notices or delivery required in this Agreement will be deemed completed when
hand-delivered, delivered by agent, or seven days after being placed in the post,
postage prepaid, or via electronic means to the parties at the addresses contained in
this Agreement or as the parties may later designate in writing.
Representations - In providing the Confidential Information, the Buyer makes no representations, either
express or implied as to its adequacy, sufficiency, completeness, correctness or its
lack of defect of any kind, including any patent or trademark infringement that may
result from the use of such information. The Seller will not be liable for any damage
or loss that may occur from such provision or use of the Confidential Information.
Termination - Either party may terminate this Agreement by providing written notice to the other party.
Except as otherwise provided in this Agreement, all rights and obligations under this
Agreement will terminate at that time.
Assignment - Except where a party has changed its corporate name or merged with another corporation,
this Agreement may not be assigned or otherwise transferred by either party in whole
or part without the prior written consent of the other party to this Agreement.
Amendments - This Agreement may only be amended or modified by a written instrument executed by
both the Seller and the Buyer.
Governing Law - This Agreement will be construed in accordance with and governed by the laws of the
State of South Australia.
General Provisions - Time is of the essence in this Agreement.
- This Agreement may be executed in counterpart.
- Headings are inserted for the convenience of the parties only and are not to be considered
when interpreting this Agreement. Words in the singular mean and include the plural
and vice versa. Words in the masculine mean and include the feminine and vice versa. - The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to
be read and construed independently of each other. If any part of this Agreement is
held to be invalid, this invalidity will not affect the operation of any other part of this
Agreement. - The Seller is liable for all costs, expenses and expenditures including, and without
limitation, the complete legal costs incurred by the Buyer in enforcing this Agreement
as a result of any default of this Agreement by the Seller. - The Seller and the Buyer acknowledge that this Agreement is reasonable, valid and
enforceable. However, if a court of competent jurisdiction finds any of the provisions
of this Agreement to be too broad to be enforceable, it is the intention of the Seller
and the Buyer that such provision be reduced in scope by the court only to the extent
deemed necessary by that court to render the provision reasonable and enforceable,
bearing in mind that it is the intention of the Seller to give the Buyer the broadest
possible protection against disclosure of the Confidential Information. - No failure or delay by the Seller in exercising any power, right or privilege provided in
this Agreement will operate as a waiver, nor will any single or partial exercise of such
rights, powers or privileges preclude any further exercise of them or the exercise of
any other right, power or privilege provided in this Agreement. - This Agreement will inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns, as the case may be, of the Seller
and the Buyer. - This Agreement constitutes the entire agreement between the parties and there are no
further items or provisions, either oral or otherwise
