Parties to this agreement:
The Recipient listed in Schedule 1 and its representatives (the Recipient‘s Representatives) may be having certain discussions (the Discussions) with:
The Vendor listed in Schedule 1 and its representatives (the Vendor’s Representatives) regarding the potential interest of the Recipient in the Approved Purpose of the Vendor.
With respect to the Information, the parties agree as follows:
1. The Information will be kept confidential and will not, without the prior written consent of the Vendor, be disclosed by the Recipient or its Representatives to any third parties in any manner whatsoever, in whole or in part, and will not be used by the Recipient or its Representatives, directly or indirectly, for any purpose other than the Approved Purpose. For the avoidance of doubt, the Recipient may disclose the Information to its officers, employees and professional advisers (all of whom are Representatives) in connection with the Discussions.
2. The Recipient and its Representatives will be responsible for keeping any Information disclosed to them secure, in safe custody and confidential in accordance with the terms of this agreement.
3. Subject to paragraph 4, the Information and all copies thereof will, at the option of the Vendor, be destroyed or returned without retaining any copies thereof within 10 Business Days of a request by the Vendor. Should the Recipient and/or its Representatives retain any internally prepared notes, papers and/or analysis related to the Discussions, the Recipient agrees that all such information retained will be treated as Information.
4. The Vendor acknowledges that the Recipient may include Information or references to the Discussions in internal board, board committee or senior executive meeting papers for the purpose of evaluating the Discussions or any proposed transaction and for making decisions in relation to the Discussions or any proposed transaction. The Vendor acknowledges that the Recipient will be entitled to retain those internal papers and records in accordance with its internal corporate governance policies and any applicable law. The Recipient agrees to treat the papers and records as Information, in a secure manner and not use it otherwise than for the Approved Purpose.
5. This agreement shall be inoperative, and the obligation of confidence shall not apply, to such portions of the Information as:
(a) are or become generally available to the public, or enter the public domain, other than as a result of a disclosure by the Recipient or any of its Representatives in breach of this agreement;
(b) where the Recipient can demonstrate that such information was known to it or its Representatives prior to disclosure to it by the other party; or
(c) is required to be disclosed by any applicable laws, rules, requirements, or regulations or directions of any statutory or regulatory authority, any recognised stock exchange or an order of court.
6. In the event that the Recipient or any of its Representatives is requested to become legally compelled (by oral questions, request for information or documents, subpoena, civil investigative demand or similar process) or any Information is required to be disclosed by any applicable laws, rules, requirements, or regulations or directions of any statutory or regulatory authority, any recognised stock exchange or an order of court, to disclose any of the Information, the Recipient will provide the Vendor with prompt written notice and must consult with the Vendor and use its best endeavors to minimize such disclosure.
7. The Recipient acknowledges that a breach of any of the Recipient’s obligations under this agreement may result in the Vendor suffering loss and damage including, without limitation, consequential loss, and may cause irreparable damage to the Vendor and the Vendor may be entitled to equitable relief by way of injunction or other appropriate remedy to redress a breach or threatened breach hereof, without prejudice to any other rights or remedies otherwise available.
8. It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege under this agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This agreement may not be amended or modified except by the mutual written consent of the parties hereto.
9. Except as provided for in any subsequent agreement between the parties, the Recipient acknowledges that the Information has been prepared without independent audit or review and that any opinion or judgement contained in the Information is not a representation of fact.
10. Except as provided for in any subsequent agreement between the parties, the Recipient acknowledges that any statement, fact, estimate, or projection contained in the Information shall not be, or deemed to be, included in any subsequent agreement and no representations or warranties by the Vendor are contained therein. The Recipient acknowledges and agrees that it is responsible for making its own independent assessment of the Information made available to it and the Recipient will not hold the Vendor or its Representatives responsible for:
– any errors or omissions in the Information; or
– any loss or claim directly or indirectly suffered by the Recipient or its Representatives, arising out of any use of, or acting in reliance on or refraining from acting as a result of, any Information.
11. The Recipient acknowledges that it and its Representatives will not communicate this agreement, any of the Information, or the existence or any details of the Discussions, to any of the staff, suppliers, financiers, or customers of the Vendor without the prior written consent of the Vendor.
12 The Recipient agrees that it is responsible for the performance of its Representatives of their obligations under this agreement and any failure on the part of any of them to comply with its terms.
13 The Recipient also agrees (subject to the terms of any subsequent agreement between the parties) to keep confidential:
(a) the fact that parties have had, will have, or are having the Discussions:
(b) the terms of any Discussions or agreements between the parties in connection with the Approved Purpose: and
(c) any information of a confidential nature disclosed by the Vendor to the Recipient, its shareholders or its or their employers or advisers, in connection with the Approved Purpose.
14 Except as may be provided for in any subsequent agreement between the parties, this agreement contains the entire understanding and agreement between the parties with respect to the protection and use of the Information and supersedes any and all prior agreements and understandings relating thereto.
15 This agreement will endure for the benefit of any associated entities of the Vendor and may accordingly be enforced by each of them on the basis that any of them may suffer loss or damage in the event of any breach by the Recipient of its obligations under this agreement.
16 This agreement shall be governed and construed in accordance with laws of Australia, and with the laws of the State of Territory in which the Vendor conducts their business, as applicable.
17 The Recipient will not, make or permit, or procure to be made or solicit or assist any other person to make, any announcement or disclosure regarding the Approved Purpose without the prior written consent of the Vendor.
18 The Recipient acknowledges that there is no transfer or license to it or any third party of any Intellectual Property Rights in and to, or arising from, any Information disclosed under of in connection with this agreement.
19 The Vendor and the Recipient will assist each other to comply with their respective obligations in relation to Information disclosed under this agreement under the Privacy Act 1988 (Cth)
20 The Recipient indemnifies (and shall keep indemnified) the Vendor and its Representatives, from and against all and any liabilities, losses, claims, demands, damages, costs and expenses suffered, incurred or sustained by them arising directly from or in connection with any breach by the Recipient or its Representatives of the terms and conditions of this agreement.
DEFINITIONS:
“Approved Purpose” refers to any one or more of the following circumstances: –
a. Purchase of the business(es) of the Vendor;
b. Entering into a merger with the Vendor;
c. Entering into a partnership with the Vendor;
d. Entering into any employment arrangement with the Vendor including arrangements on an employee, contract, or consultancy basis.
“Business Day” refers to a day (not being a Saturday, Sunday or public holiday) on which Australian banks (as defined in section 9 of the Corporations Act 2001 (Cth)) are open for general banking business.
“Information” refers to any information in any form whatsoever (including oral, written and electronic information) of a technical, business, corporate or financial nature of or in relation to the Vendor and the Vendor’s business, or of which the Vendor makes the Recipient or its agents aware, is considered by it to be confidential and/or proprietary, or which is evident on its face as being confidential and/or proprietary, or which is by its nature confidential, and includes without limitation:
(a) the existence and terms of this agreement;
(b) customer lists and contact details;
(c) reports or advice from professional advisers or other experts;
(d) marketing, sales and pricing information;
(e) financial information and records;
(f) supplier information;
(g) employee information and records;
(h) product and pricing information;
(i) technical information;
(j) trade secrets;
(k) all information that is personal information for the purposes of the Privacy Act 1998 (Cth) ; and
(l) any notes, records, calculations, conclusions or summaries or other material derived or produced partly or wholly from any of the above information by any person, but does not include information which:
(m) was in the public domain when it was given to the Recipient;
(n) becomes, after being given to the Recipient, part of the public domain, except through a breach of it by the Recipient’s obligations under this agreement;
(o) was in the Recipient’s possession when it was given to the Recipient, and was not acquired from the Discloser directly or indirectly; or
(p) was developed independently by it, without the use of any information.
In connection with the Discussions, the Vendor will be furnishing to the Recipient information relating to their businesses which is either non-public, confidential or proprietary in nature. All such information furnished, whether written or oral, in connection with the Discussions including the terms or general nature of the Discussions is hereinafter collectively referred to as the “Information”.
“Representatives” refers to any agents, directors, officers or advisors of the Recipient or Vendor respectively.
“Intellectual Property Rights” means all and any current and future registered and unregistered rights in respect of copyright, designs, program code, semiconductor or circuit layouts, trademarks, tradenames, business names, trade secrets, know-how, patents, inventions and discoveries, applications for grant of any of the foregoing or other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world.
