CONFIDENTIALITY & NON DISCLOSURE DEED OF
AGREEMENT
FRUITFUL TECHNOLOGIES PTY LTD
ACN 600095869
Address:
Address:
Top Floor, 4-8 Osborne Street, South
Yarra, VIC, Australia
“Fruitful Tech”
“The Company”
Fruitful Tech and The Company wish to provide information to each other as part
of the proposed collaboration between the two companies. In this document, the
Provider is the party providing Confidential Information to the other party and the
Recipient is the party receiving Confidential Information from the other party. In
consideration for the disclosure of various information by the Provider to the
Recipient, the Recipient agrees to be bound by this document.
Definitions
"Confidential Information” means information of a confidential nature provided by
the Provider or any of its Representatives, whether provided before or after the
execution of this document, in connection with the Express Purpose. It includes:
a) All confidential business information, documents, records, financial
information, reports, technical information and forecasts which relate to the
Provider or any of its related bodies corporate or the business of the Provider
or any of its related bodies corporate;
b) the terms and conditions of this document;
c) all Intellectual Property or other proprietary information or material of the
Provider or its related bodies corporate;
d) information designated as confidential by the Provider;
e) all software code and functionality of the solution;
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f) the fact that the Confidential Information may be or has been provided;
and extends to all forms of storage or representation of the Confidential
Information including, but not limited to, loose notes diaries, memoranda,
drawings, photographs, electronic storage and computer print-outs.
Confidential Information excludes any Confidential Information, or any portion
thereof, which:
g) is, or becomes, publicly available, other than through a breach of this
document or an obligation of confidence owed to the Provider or any
Representative of the Provider;
h) the Recipient can prove by contemporaneous written documentation that the
information was independently acquired or developed without breaching any
of the Recipient’s obligations set out in this document.;
i) is disclosed with the Provider’s prior written consent.
j) is required by law to be disclosed , provided, however, that Recipient has: (i)
provided the Provider with prompt written notice and reasonable assistance
so that the Provider may seek appropriate remedy prior to such disclosure
by Recipient, (ii) taken all reasonable requirements to lawfully resist or
narrow the requirement to disclose, and (iii) should disclosure of any portion
of the Products be required, Recipient furnishes only that portion that is
legally required to be disclosed.
“Intellectual Property” means patents, copyright, designs, trade or service marks,
semiconductor topography rights, bespoke code, database rights, rights in knowhow, moral rights or other similar rights in any country (whether or not
registered), any applications for registration of any of the foregoing, and all rights
to apply to register any of the foregoing.
“Representative” means any director, officer, employee, agent, contractor,
financier, professional adviser or any related bodies corporate of a party.
Operative Parts
1
In consideration of the mutual covenants set out in this Deed the Recipient
agrees to keep Confidential Information of Provider confidential at all times.
The Recipient must carry out its obligations using the same degree of care it
uses in protecting its own proprietary information, but at least a reasonable
degree of care. The Recipient must not use or disclose any Confidential
Information for any purpose other than the Express Purpose. The Recipient
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must not disclose or permit the disclosure of the information to any person
other than its Representatives who need to know the information for the
Express Purpose, to the extent that disclosure is required by law, or with the
Provider’s written consent. The Recipient must ensure that such persons to
whom Confidential Information of the other party is disclosed are at all times
subject to and comply with the terms and conditions set out in this document.
2.
The Recipient must protect the Confidential Information against unauthorised
access, use or disclosure. The Recipient shall notify the Provider immediately
of any information which comes to its attention regarding any actual or
potential breach of confidentiality, disclosure or unauthorised use of the
Confidential Information, and must comply with any direction from the
Provider in relation to the protection of the information.
3.
If the Recipient becomes aware of any actual or potential breach of this
document, it is required to do everything necessary to investigate and restrict
further dissemination of the information and if necessary that party shall
enforce its rights to injunctive or other relief to the fullest extent possible.
Each party shall assist the other in every way in enforcing those rights.
4
At the Provider’s written request the Recipient must return to the Provider or
destroy all material, including any material created or generated by the
Recipient, containing the Confidential Information in its possession, power or
control.
5
The Provider shall retain title to all Confidential Information, and all copies of
it. The Recipient must not copy or reproduce, in whole or in part, any
Confidential Information without written authorisation from the Provider. This
document does not convey to the Recipient or any of its Representatives any
proprietary or other interest in the Confidential Information.
6
Confidential Information shall not be used by the Recipient to invent, create,
modify, adopt or manufacture any hardware or software or other products or
services which would or could compete with or be used instead of the
Provider’s hardware or software or other products or services.
7
The Recipient acknowledges that Confidential Information has tangible value
and contains trade secrets and proprietary information of the Provider, and
that the Provider may suffer irreparable damage for which damages may not
be an adequate remedy for any breach of this document. The Provider shall
be entitled to seek specific performance and injunctive relief as remedies to
restrain any breach or threatened breach of this document, in addition to all
other remedies available to the Provider.
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8
The Provider makes no representations and gives no warranties in relation to
the Confidential Information. To the maximum extent permitted by law, the
Provider disclaims all liability for any loss or damage suffered by any person
using, disclosing, relying or acting on any information disclosed by the
Provider or any of its Representatives.
9
On request by Fruitful Tech Recipient will immediately return, or dispose of, at
Fruitful Tech request, all Confidential Information and copies of them which
are in Recipient’s or any of its Representatives’ possession, power or control,
including any material created or generated by the Recipient which is derived
from the Confidential Information.
If requested by Fruitful Tech, Recipient
must give Fruitful Tech a written statement confirming that all material
containing Confidential Information has been returned to Fruitful Tech or
destroyed in accordance with this document.
10 This document continues for the benefit of, and binds, a successor in title of a
party, including a third party to whom a party’s rights and obligations are
assigned in accordance with this document.
11 These provisions are in addition to (and not in substitution for) all other
security or confidentiality obligations between the parties.
12 This document is governed by the law of the State of Victoria.
13 Any failure to enforce any provision of this document, or a delay in doing so,
shall not constitute a waiver or of any other provision hereof.
14 A waiver is only effective if it is in writing.
15 This document may not be amended unless it is in writing and signed by both
parties.
16 This document is properly executed if each party executed either this
document or an identical document. Where this Agreement is executed in two
or more parts Agreement takes effect when the last of the parts is executed.
17 This Agreement shall enter into force on the date it is executed and shall
remain in force for a period of three years (3) years from such date unless the
Provider specifically releases the Recipient in writing.
18 If any portion of this document is declared or found to be illegal,
unenforceable or invalid, then such portion will be treated as removed from
this document, but the rest of this document is not affected to the full extent
permitted by applicable law.
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Executed as a Deed
Fruitful Technologies Pty Ltd
The Company
Signature of:
Signature of:
Name: Allan Bennetto
Name:
Title: Managing Director
Title:
Date:
Date:
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