The parties to this Agreement (hereinafter “the Parties” or individually “the Party”) wish to exchange certain Confidential Information. In consideration for the mutual promises and obligations set out in this Agreement, the Parties agree as follows:
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(1) PROJECT AND PURPOSE
(a) The Parties intend to work together and to share confidential information in connection with the following purpose (“Purpose”):
The Receiving Party wishes to investigate the possibility of purchasing the Business or Businesses specified above, which the Disclosing Party acts as Agent for its proprietor.
(b) Any Confidential Information disclosed in connection with this Agreement shall only be used for the Purpose and for the sole benefit of the Disclosing Party.
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(2) CONFIDENTIAL INFORMATION
(a) For the purpose of this Agreement, “Confidential Information” means any and all material disclosed to the Receiving Party, whether directly, indirectly or as a result of the Receiving Party’s observation, by the Disclosing Party or any of its employees, associated entities, subsidiaries or representatives.
(b) For the purpose of this Agreement, “Confidential Information” does not include:
(I) information which was publicly available, other than as a result of a breach of this Agreement; or
(II) information which the Receiving Party received from a third party, provided that third party did not breach any confidentiality obligations in relation to the said information; or
(III) information which was already in the Receiving Party’s possession (other than as a result of a breach of any confidentiality obligations) before it was provided by the Disclosing Party.
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(3) OBLIGATIONS
(a) The Receiving Party must keep the Confidential Information confidential, and must only use it for the Purpose.
(b) The Receiving Party must only allow a representative (such as an employee, agent, or consultant of the Receiving Party) (“Representative”) to have access to Confidential Information if such access is necessary for the attainment of the Purpose, and the Receiving Party ensures that any such Representative who has access to the Confidential Information keeps the Confidential Information strictly confidential.
(c) When requested by the Disclosing Party, the Receiving Party shall destroy and/or deliver to the Disclosing Party any Confidential Information in the Receiving Party’s possession or control.
(d) The restrictions contained in this Agreement on the use and disclosure of Confidential Information do not apply to the extent that the disclosure is required by law, provided that the Receiving Party advises the Disclosing Party as soon as possible about any proposed disclosure and takes such reasonable steps as the Disclosing Party shall require to oppose such disclosure and/or to minimise the impact upon the Disclosing Party of such disclosure.
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(4) LIMITATIONS
(a) Nothing in this Agreement transfers or grants any rights in the Confidential Information from the Disclosing Party to the Receiving Party.
(b) The Receiving Party acknowledges and agrees that:
(I) the Disclosing Party and any of its representatives make no representation or warranty, express or implied, that the Confidential Information disclosed in connection with this Agreement is accurate or complete; and
(II) the Receiving Party must make its own assessment of all Confidential Information and satisfy itself as to the accuracy and completeness of the Confidential Information.
(c) Subject to any provision to the contrary, the Disclosing Party and its representatives disclaim all liability for any loss suffered by any person using, disclosing or acting on any Confidential Information and whether such loss arises in relation to, in connection with or as a result of any negligence, default, lack of care or from any misrepresentation or any other cause.
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(5) INDEMNITY
The Receiving Party agrees to indemnify, and to keep indemnified, the Disclosing Party against any costs, claims, losses, or demands (including legal costs and expenses on a full indemnity basis) that the Disclosing Party suffers (directly or indirectly) as a result of a breach of this Agreement by the Receiving Party, or by any unauthorised disclosure or use of the Confidential Information by the Receiving Party, or by any person or organisation that received Confidential Information from the Receiving Party (whether directly or indirectly) including any agent, professional adviser, consultant, employee or other person engaged by the Receiving Party.
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(6) REMEDIES
(a) The Parties hereby acknowledge and agree that the Disclosing Party would suffer significant loss and damage in the event that Confidential Information was released in breach of this Agreement, and that such loss or damage may not be adequately compensated with an award for damages.
(b) The Parties hereby acknowledge and agree that in addition to any other remedy available to the Disclosing Party, the Disclosing Party shall be entitled to injunctive relief to prevent a breach (or further breaches) of this Agreement and/or to obtain specific performance of this Agreement.
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(7) TERM AND TERMINATION
(a) This Agreement commences on the earlier to occur of: the date this Agreement is executed; and the date upon which Confidential Information is first provided to, learned or accessed by the Receiving Party.
(b) The Parties acknowledge and agree that the terms of this Agreement continue to operate until such time as the Parties mutually release each other, in writing, from their respective obligations under this Agreement, or all of the information which has been disclosed in connection with the Purpose no longer meets the definition of Confidential Information under this Agreement.
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(8) GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of New South Wales. The parties shall submit to the non-exclusive jurisdiction of the courts of New South Wales, including any courts that hear appeals from those courts.
