AND the Party referred to in this form and hereinafter referred to as “Recipient”.
Unless the context otherwise requires:
‘Associate’ means any person or Entity who has been, is, or will be a Client, Prospect, Lead, Co-Developer, Strategic Alliance Partner, Purchaser of Rights or Licences, Contractor or Supplier of the Discloser at any time from the date this Deed is executed by the Recipient to the end of the Restraint Period, including:-
a. Any existing Associate;
‘Confidential Information’ means information relating to the commercial activities, technologies, business processes, client relationships, strategic information and any other information related to the conduct of the businesses of the Discloser including but not limited to information concerning the design, development and commercialisation of a range of inventions and business models, and includes all information regarding the Associates, operations and affairs of the Discloser or any of their Directors, Employees, Associates or Related Entities including but not limited to:-
b. Any person or Entity that the Discloser has contracted with previously;
c. A Related Entity of any Associate;
d. Any party who refers Associates to the Discloser;
e. Any employees, directors, consultants or contractors of any Associates.
a. reports, technical specifications, drawings, images, schedules, samples, patent applications, independent analyses and reports, emails, letters and sundry correspondence;
b. lists of Associates and interested parties and associated information;
c. contracts and agreements whether verbal or written including contracts or agreements which are still being negotiated and yet to be formed;
d. planning and marketing strategies, procedures, techniques and information;
e. all training manuals and policy manuals used or held by either party related to disclosed intellectual property or being of Company property;
f. business models, concepts and plans, research, development and survey information;
g. financial and accounting information;
h. all details or information in relation to any Client, interested party, Prospect or Lead;
i. information technology specifications, processes and materials;
j. sales techniques;
k. planning and marketing strategies, procedures, techniques and information;
l. names and addresses of referral sources;
m. the existence or terms of this Deed;
n. any other information regarding any of the parties which is apparent from its nature is confidential or would reasonably be expected to be confidential.
including any Confidential Information which has been provided by or on behalf of the Discloser to the Recipient prior to the date of this Deed.
‘Entity’ means any business unit including but not limited to a government, council, institution, company, association, charitable body, trust, partnership, joint venture, sole trader, or any division, department, or subsidiary thereof, and all employees, directors, shareholders, stakeholders, consultants and volunteers.
‘Lead’ means any referred person or Entity who might be interested in conducting business with the Discloser, whether introduced by the Recipient or otherwise.
'Middle East' means Saudi Arabia, Lebanon, Syria, Iraq, Iran, Israel, Palestine or any other country present or future which may be considered to fall within this region.
'Pacific Islands' means Tonga, New Guinea, Fiji, Hawaii, Vanuatu or any other country present or future which may be considered to fall within this region.
‘Prospect’ means any person or Entity who might, by virtue of the nature of their business, be interested in conducting business with the Company, whether introduced by the Recipient or otherwise.
‘Related Entity’ means any company, partnership, trust, business or other Entity of which a party hereto, or their spouse or any immediate family member:-
a. is a director, secretary or officer;
b. is a shareholder;
c. is a member;
d. is a beneficiary;
f. is able to exert influence over (whether or not such influence is actually exerted).
‘Restraint Area’ means the World or the maximum of;
a. Australia, New Zealand, Africa including South Africa, Asia, Europe, The United Kingdom, Ireland, Russia, the United Arab Emirates, the Middle East, the United States of America, Pacific Islands, South and Central America and Canada;
b. Australia, New Zealand, Africa, Asia, Europe, The United Kingdom, the United States of America, and Canada;
c. Australia, New Zealand, South Africa, South East Asia, Europe, and the United Kingdom;
d. Australia, New Zealand, and South East Asia;
e. Australia and New Zealand;
f. Any areas on or adjacent to a facility used or proposed for use by the Discloser;
g. Any asset controlled by an Entity which the Discloser has approached for business;
h. Any asset controlled by an Entity which is an actual Client or Associate of the Discloser;
whichever area a court deems the maximum reasonable in the circumstances.
‘Restraint Period’ means the period commencing on the date of the Recipient signing this Deed, and ending 25 years or the greater of the following;
a. 15 years;
b. 10 years;
c. 5 years;
d. 3 years;
e. 2 years;
f. 1 year;
g. 6 months;
whichever time a court deems the maximum reasonable in the circumstances, from the latter of (a) the date of termination of any business association between the parties and (b) the date of disclosure by the Discloser of the Confidential Information.
‘South East Asia’ means India, Bangladesh, Myanmar, Laos, Thailand, Malaysia, Singapore, Indonesia, Vietnam, Cambodia, Hong Kong, China, Korea, Taiwan, Japan and the Philippines or any country present or future which may be considered to fall within this region.
‘Strategic Alliance Partners’ means any person or Entity who may be interested in further developing or commercialising the Confidential Information under a commercial arrangement with the Discloser.
‘Subsidiary Entities’ means any and all companies and trusts which are partly or wholly owned either directly or indirectly.
CONFIDENTIALITY AND RESTRAINT
- The Recipient has a duty to protect Confidential Information disclosed under this Deed for the Restraint Period, and hereby covenants to perform all its obligations contained herein across the Restraint Area and for the Restraint Period.
- The Recipient shall not disclose Confidential Information to any third-party individual, corporation or other entity without the prior written consent of the Discloser and shall limit its disclosure to its employees having a need to know such information. The employees are to be made aware that the information is confidential and that they owe a duty of confidence to the Discloser. A Recipient shall protect the disclosed Confidential Information by using the same degree of care, but no less than the reasonable degree of care required by law to prevent the unauthorised dissemination or publication of the Confidential Information as the recipient uses to protect its own confidential information of a like nature.
- The Recipient is aware of and agrees to adhere to obligations placed on them by Federal Privacy Legislation pertaining to the use and disclosure of Personal Information.
- The Recipient shall take all reasonable precautions to prevent unauthorised disclosure of the Confidential Information, and shall keep a record of any attendance from time to time by any party at the location of the Confidential Information, where such party might view or have access to the Confidential Information, and the Recipient shall specifically record details of the person or Entity who has, or who might have, had access to the Confidential Information. The Recipient will promptly provide all such information to the Discloser at the request of the Discloser from time to time.
- The Recipient shall have a duty to protect only that Confidential Information that is or has been:-
a. Disclosed by the Discloser in writing and is marked as Commercial-In-Confidence at the time of disclosure; or
b. Disclosed by the Discloser in any other manner and is identified as confidential at the time of disclosure whether verbally or otherwise; or
c. Disclosed by the Discloser and is deemed confidential in nature by Law.
- The obligations herein will not apply to confidential information that is:-
a. Available to the public other than by breach of this Deed by the Recipient;
b. Rightfully received by the Recipient from a third party without confidential limitations;
c. Known to the Recipient prior to the first receipt of Confidential Information from the Discloser.
- In the event that the Recipient is legally required to make disclosure in pursuance of any procedure for discovery of documents and any proceedings before any court, or is required to make disclosure pursuant to any law or regulation having the force of law, it shall notify the Discloser thereof and the Discloser shall be entitled to make representation, to the court, tribunal or other body seeking or ordering disclosure as to whether or not the Confidential Information should be disclosed. The costs of such representation by the Discloser will be at the expense of the Discloser unless in relation to a breach by the Recipient.
- The Recipient shall promptly notify the Discloser if it becomes aware of any breach of confidence by any person, firm or corporation to whom it has disclosed all or any part of the Confidential Information or who becomes aware of it in an unauthorised way, and shall give the Discloser all reasonable assistance in connection with any proceedings which the Discloser may institute against such person, firm or corporation for breach of confidence or otherwise.
- The Recipient shall not, without the prior written consent of the Discloser, disclose to any person, firm, corporation or body the fact that it has received any Confidential Information, or that discussions or negotiations are taking place concerning the purpose of this Agreement.
- The Recipient shall within seven (7) days of a request by the Discloser, return to the Discloser all Confidential Information provided to the Recipient in written, printed, electronic or tangible form together with all copies, summaries and notes of the contents of any confidential information provided to the recipient in oral form.
- The Recipient shall not disclose and shall continue to keep confidential in accordance with this Deed the portions of any analyses, compilations, studies or other documents prepared by the Recipient that include, utilise or reflect the Confidential Information.
- The Recipient expressly agrees that it and its Related Entities shall not seek to gain a commercial benefit in any form whatsoever from the Confidential Information without the express prior consent in writing of the Discloser, and then only to the extent specifically approved in writing by the Discloser from time to time.
- The Discloser warrants that it has the right to make disclosures under this Deed.
- The Recipient acknowledges the valuable nature of the Confidential Information, and acknowledges that the maximum restraints contained in this Deed are fair and reasonable in regard to the terms, subject matter, area and duration, and are reasonably required, by the Discloser to protect the Discloser’s business and financial interests.
- The Recipient does not acquire any licences or any other intellectual property rights of the Discloser under this Deed.
- Neither party has an obligation under this Deed to purchase any service or item from the other party.
- Neither party has an obligation under this Deed to offer for sale products using or incorporating the Confidential Information.
- The Recipient will not transfer any confidential information received hereunder or any product made using such Confidential Information to any country prohibited from obtaining such data or product by the Australian Customs Regulations without first obtaining a validated export licence, and the consent in writing of the Discloser.
- The parties do not intend that any agency or partnership relationships be created between them by this Deed.
- The Discloser may assign the benefits of this Deed to a third party in its absolute discretion without first obtaining the consent of the Recipient.
- For the purposes of the administration of this Deed, either of the Discloser parties may act on behalf of the Discloser, and the Recipient acknowledges that any breach by the Recipient against either of the Discloser parties will be a breach against both Discloser parties.
- Where any of the Parties have previously executed an agreement or deed related to, or incorporating provisions related to, the protection of the Confidential Information, then such previous agreements and deeds will remain in force, except that should any conflict exist or arise between the terms of this Deed and any such prior agreements or deeds, then the terms of this Deed shall prevail.
- Additions or modifications to this Deed will not be legally binding unless made in writing and signed by the relevant parties.
- This Deed is made under and shall be construed according to the laws of the State of Queensland.
EXECUTED AS A DEED
This Deed is deemed signed sealed and delivered by GAINQUARTZ PTY LTD ACN 010 922 522 in accordance with section 127 of the Corporations Act 2001 on this day in the presence of Michael Geoffrey Reid as Sole Director and Secretary.
This Deed is deemed signed sealed and delivered by the Recipient by clicking on the acceptance button and providing a signature in the section provided in this form.