MUTUAL CONFIDENTIALITY AGREEMENT
This agreement is made on
__________________________ (“the Commencement Date”)
PARTIES: <insert
name of party> ACN 000 000 000 of
<insert registered street address>(“the Prospective Vendor”)
AND: NAME
OF THE COMPANY OR INDIVIDUAL/S
_____________________________________________________
of
_____________________________________________________
(“the Interested Party”)
BACKGROUND
A The Prospective Vendor and the Interested Party propose to enter into discussions and
negotiations with a view to the Prospective
Vendor selling to the Interested
Party the whole or some part of the business of the Prospective Vendor.
B In
the course of the discussions and negotiations, each party may disclose to the
other information relating to its business including information concerning its
corporate and business structure, existing and proposed business contracts,
products information, technical information and specifications, product and
materials prices and costs, managerial, financial and marketing strategies, the
identities of actual and target clients and customers, employee agreements,
employee reward schemes (including share option and profit sharing
arrangements) and the identities of present or proposed employees which is not
known to the receiving party or which is not available in the public domain
(“Confidential Information”).
C The parties intend that each of them
shall, at all times throughout the discussions and negotiations, and thereafter
until this Agreement has been superseded by a subsequent written agreement,
maintain the confidentiality of the Confidential Information for the purposes
of protecting their respective interests in the Confidential Information and to
advance the prospect of them concluding a mutually satisfactory commercial
agreement contemplated by these recitals.
OPERATIVE PROVISIONS:
1.
This Agreement embodies the
full agreement between the parties and any amendment of this Agreement must be
in writing and signed by the parties.
2.
The use of one gender includes
other genders and the use of the singular includes the plural.
3.
Words importing persons shall
include firms and corporations.
4.
The use of the terms “the Prospective Vendor”
“Interested Party”, “party” and “parties” includes their subsidiaries,
successors, assigns, shareholders, directors, officers, employees, agents and
associated companies.
5.
Where this Agreement is made
between the Prospective Vendor and
a company, partnership or other body, which is not a legal person, the Interested
Party duly authorizes one of its senior officers to execute this Agreement on
its behalf.
6.
Each party shall keep the
Confidential Information confidential and shall not disclose it or make it
available directly or indirectly to any third party in any form or medium
whatsoever without the express written consent of the disclosing party.
7.
Each party acknowledges that
the Confidential Information is commercially sensitive and valuable and that
any unauthorized disclosure or use of it could give rise to considerable damage
to the disclosing party.
8.
The Parties agree not to use or
exploit the Confidential Information for any purpose other than that for which
it was disclosed without the express written consent of the disclosing party.
9.
Neither party shall permit any
employee, agent or subcontractor of that party to have access to the
Confidential Information until such time as that employee, agent or
subcontractor shall have entered into a confidentiality agreement with the
disclosing party in a form approved by the disclosing party.
10.
Each party shall immediately
notify the other party of any information, which comes to its attention
regarding any actual or potential unauthorized disclosure or use of the
Confidential Information. Each party shall co-operate with the other in any
investigation, prosecution, litigation or other action taken regarding the
subject of any such information.
11.
In the event of any actual or
alleged unauthorized disclosure of use of Confidential Information by any
future, existing or former employee, agent or subcontractor of a party, that
party shall enforce its rights to injunctive or other relief to the fullest
extent possible or, if requested by the other party, assign such rights to the
other party. Each party shall reasonably assist the other party in enforcing
those rights.
12.
Upon termination or completion
of the discussions and negotiations, each party shall deliver up to the other
party any Confidential Information in that party’s possession or control, which
is capable of delivery up. Each party shall delete, erase or otherwise destroy
any Confidential Information contained in any computer memory, magnetic,
optical, laser, electronic or other recording media in its possession or
control which is not capable of delivery up to the other party.
13.
Each party shall protect the
Confidential Information from unauthorized access or use. Neither party shall
be obliged to provide access to its computer or other business systems unless
and until the other party satisfies it that the method of proposed access
provides sufficient security and safety procedures. Any consent, whether oral
or written, by one party to the other party regarding access may be
confidential and may be withdrawn at any time without the necessity of giving
any reason therefore.
14.
Each party shall comply with
all the other party’s security and safety procedures and will permit and
co-operate with any additional security or safety procedures, which either
party may wish to implement.
15.
(a) Unless the context otherwise requires, words which are defined
in the Privacy Act 1988 (“the Act”)
mean the same thing in this clause.
(b) If a part is a small
business operator, it must ensure that it is entered in the register of
operators maintained under section 6EA(3) of the Act at all times that it holds
confidential information that includes personal information.
(c) Without limiting any
other provision of this Deed, the parties must comply with the Act in all
respects and without limitation:
i use personal
information it obtains from the other party only for the Approved Purpose;
ii not collect, use,
disclose or otherwise deal with personal information in a manner that would
breach a National Privacy Principle or an applicable Approved Privacy Code;
iii take reasonable steps
to protect the personal information it holds from misuse and loss and from
unauthorized access, modification or disclosure; and
iv ensure that all of
its officers, employees and approved subcontractors are aware of and comply
with their obligations under the Act.
16.
Each party shall assist the
other party in its evaluation, investigation or implementation of security and
safety procedures including, but not limited to, providing information which
might be relevant to the disclosing party’s assessment of whether it should
approve access to the Confidential Information by an employee, agent or
subcontractor of the receiving party.
17.
The provisions of this
Agreement are in addition to and not in substitution for or derogation of any
duty of confidence imposed upon the parties generally at law, in equity or under
any other agreement, arrangement or understanding already in place between the
parties. Where any inconsistency in those duties occurs, the provisions of this
Agreement shall prevail.
18.
The provisions of this
Agreement shall remain in force indefinitely beyond the termination of the
discussions and negotiations. All Confidential Information shall remain
confidential until the earlier of:-
(a) the time it becomes
known to the receiving party through an authorized disclosure to the receiving
party by a third party; or
(b) the time it becomes
available in the public domain other than through the act, neglect or default
of the receiving party.
19.
If for any reason a provision
of this Agreement or part of it shall be illegal, voidable or unenforceable in
any jurisdiction, it shall be read down or severed to the extent necessary so
that it may not be so construed. The illegality or unenforceability of any
provision or part of one in any jurisdiction shall not effect the legality,
validity or enforceability of any other provision, or of that provision, in any
other jurisdiction.
20.
The Agreement
shall be governed by and construed in accordance with the laws in force from
time to time in the State of <insert state>, Commonwealth
of Australia.
The Agreement
shall be governed by and construed in accordance with the laws in force from
time to time in the State of <insert state>, Commonwealth
of Australia.
21.
This Agreement shall commence
and be of full force and effect on and from the Commencement Date.
Execution Page
SIGNED for
and on behalf of Signature
………………………….
the Prospective
Vendor by its duly
authorized officer Name
………………………………
Title
………………………………...
In the presence of (witness)
Signature ……………………………….
Name …………………………………..
Date ……………………………………
SIGNED for
and on behalf of Signature
………………………….
the Interested Party by its
duly authorized officer Name
……………………………….
Title
………………………………...
In the presence of (witness):
Signature ………………………………
Name ………………………………….
Date …………………………………...
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