CONFIDENTIALITY AND RESTRAINT DEED
Dated
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PARTIES:
1.
LLCA Pty Ltd ACN 109 088 057of 28 Rodborough Road, Frenchs Forrest, NSW, 2086
(“Proprietor”)
2.
of
(“Recipient”)
RECITALS:
A.
The Recipient has been or will be provided with the Confidential Information which is the
exclusive property of the Proprietor and which is secret and of value to the Proprietor.
B.
The Recipient wishes to obtain access to the Confidential Information to enable the
Recipient to evaluate whether or not the Recipient wants to set up and operate an Explore
& Develop franchise business and enter into a Franchise Agreement with the Proprietor.
C.
The Proprietor is willing to release the Confidential Information to the Recipient on the
terms and conditions of this Deed.
D.
The Information is and shall at all times remain the exclusive property of the Proprietor.
E.
The Recipient has agreed to be bound by the terms and conditions of this Deed and in
particular by certain duties of confidentiality and non-use in respect of the Confidential
Information.
IT IS AGREED:
1.
Definitions:
1.1
In this Deed, unless the context otherwise requires:
“Confidential Information” means all information which is disclosed by the Proprietor or
on the Proprietor’s behalf to the Recipient relating to the Proprietor and its business for the
Purpose and includes but is not limited to:
(a)
trade secrets, drawings, know-how, data, concepts, designs, plans and models.
(b)
business techniques, systems, processes and methods;
(c)
business plans, marketing plans, strategies, techniques and information;
(d)
financial information;
(e)
the Explore & Develop Disclosure Document, Heads of Agreement (if applicable),
and Franchise Agreement;
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(f)
(g)
(h)
(i)
(j)
(k)
information designated as confidential;
information or material which the Recipient knows or reasonably ought to know is
actually or potentially of commercial value to the Proprietor;
information acquired by the Recipient solely by virtue of the provision of the
Proprietor's information;
information imparted in confidence to the Recipient by the Proprietor;
any other information capable of being classed in equity as confidential
information; and
any evaluation, including all minutes, notes, papers, communications and other
records capable of being reproduced made by or on behalf of the Recipient
whether written or oral and whether of a business, financial, technical, intellectual property
or other nature and in whatever form including electronically stored information but shall
not include information or material which:
(a)
the Recipient can prove by contemporaneous written records was already
independently developed or known to the Recipient at the time of its disclosure; or
(b)
is in or becomes part of the public domain other than through breach of this Deed.
“Person” includes any natural person, corporation and body of persons whether corporate
or not.
"the Purpose" means the purpose of evaluating whether or not the Recipient wants to set
up and operate an Explore & Develop franchise business and enter into a Franchise
Agreement with the Proprietor.
2.
Recipient’s Covenants and Undertakings
2.1
In consideration of the Proprietor disclosing the Confidential Information to the Recipient,
the Recipient covenants and agrees with the Proprietor that it will:
(a)
hold the Confidential Information in strict confidence;
(b)
only use the Confidential Information for the Purpose and not any other purpose;
(c)
not directly or indirectly disclose or permit the disclosure of any of the Confidential
Information whether verbally or in writing to any person other than pursuant to the
terms of this Deed;
(d)
store the Confidential Information safely and securely;
(e)
not make copies of any documents supplied by the Proprietor under this Deed
without the prior written approval of the Proprietor;
(f)
not, without the prior written approval of the Proprietor, remove from the premises
of the Proprietor or any other premises from which the Proprietor conducts
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business or performs its ordinary duties any representation, record or reproduction
of the Confidential Information;
(g)
not to solicit any supplier, customer or client of the Proprietor or its current
franchisees;
(h)
not to solicit any employee of the Proprietor;
(i)
not do any act, thing or omission involving the use of the Confidential Information
which may injure or cause loss to or be calculated to injure or cause loss to the
Proprietor or one of its current franchisees, or which may affect the carrying on of
the Proprietor’s business or any of its franchisees’ businesses;
(j)
not use or attempt to use the Confidential Information for the benefit of any third
person;
(k)
confine the distribution of the Confidential Information to those of its directors,
employees, agents and contractors (if any) approved by the Proprietor and only as
shall be absolutely necessary for the Purpose. The Recipient will obtain from such
directors, employees, agents and contractors a written undertaking, in such form
approved by the Proprietor, to observe secrecy and confidentiality in relation to the
Confidential Information before making the Confidential Information available to
such persons;
(l)
be wholly responsible and liable for the acts and defaults of its directors,
employees, agents and contractors in respect of any Confidential Information
disclosed to them;
(m)
take all reasonable measures to enforce the obligations of secrecy and
confidentiality with respect to any of its directors, employees, agents and
contractors who may have had access to the Confidential Information;
(n)
immediately report to the Proprietor any unauthorised use, disclosure, copy or
printing of the Confidential Information of which the Recipient becomes aware;
(o)
immediately upon request from the Proprietor and immediately upon the
completion of the Recipient’s evaluation of whether or not the Recipient wants to
set up and operate an Explore & Develop franchise business and enter into a
Franchise Agreement with the Proprietor, return to it all Confidential Information,
all copies thereof or other documents which have been provided by the Proprietor
to the Recipient and all other documents prepared by or on behalf of the Recipient
and which contain any Confidential Information;
(p)
indemnify and keep indemnified and hold harmless the Proprietor or any one or
more of its current franchisees against all losses, damages, costs or expenses
which the Proprietor or one of its current franchisees may incur as a result of any
breach of this Deed or any unauthorised disclosure or use of the Confidential
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Information by the Recipient or any of his directors, employees, agents and
contractors.
3.
Recipient's Acknowledgments
3.1
The Recipient acknowledges and accepts that the Confidential Information is of
considerable value to the Proprietor and the Proprietor will suffer financial and other loss
and damage if there is a breach of any covenant or undertaking in this Deed and/or if the
Confidential Information is disclosed to any other person or used for any purpose other
than the Purpose and that monetary damages will be an insufficient remedy for any breach
of this Deed by the Recipient or its directors, employees, agents and contractors. The
Recipient acknowledges and accepts that in addition to all other remedies which may be
available at law or in equity the Proprietor shall be entitled to seek specific performance
and injunctive or other equitable relief as a remedy for any such breach.
3.2
The Recipient acknowledges and agrees that it will make its own assessment and
evaluation of the Confidential Information and that any reliance it places on the
Confidential Information is at its own risk.
4.
Indemnity
4.1
The Recipient indemnifies and agrees to keep indemnified the Proprietor against all costs,
expenses, damages, losses, actions or claims directly or indirectly incurred or suffered by
the Proprietor as a result of any breach of this Deed by the Recipient or any of its directors,
employees, agents and contractors and/or any infringement of the Proprietor's rights in
respect of the Confidential Information. This indemnity extends to and includes all costs,
damages and expenses incurred by the Proprietor in defending and/or settling any such
costs, expenses, actions, suits proceedings, claims or demands (including legal costs and
disbursements on a full indemnity basis).
5.
Restraint
5.1
The Recipient must not, without the written consent of the Proprietor, use or disclose the
Confidential Information for any purpose, other than the Purpose, to obtain an unfair
advantage or springboard into the Childcare market or into a business that is similar to a
childcare business during the specified periods in the specified areas.
(a)
For the purposes of this provision:
(b)
The specified periods are:
(i)
during the period of the Recipient evaluating the franchise; and
(ii)
for a period of 2 years from the time the Recipient decides it does not wish
to enter into an Explore & Develop franchise, or the Proprietor decides it
does not wish to grant an Explore & Develop franchise to the Recipient.
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(whichever is the longest)
(c)
The specified areas are:
(i)
(ii)
The State in which the Receipient resides, or
Australia.
(whichever is greatest).
5.2
The Recipient acknowledges that the restraints in clause 5.1 are reasonably required to
protect the Proprietor's legitimate business interests and those of its franchisees and in all
the circumstances are reasonable. The circumstances include:
(a)
the unique combination of services offered by Explore & Develop;
(b)
the fact that the Proprietor has significant experience in the Childcare market.
5.3
This clause has effect as if each of the restraints in clause 5.1 were separate and
independent and each being severable from the others. If any of the restraints are invalid
or unenforceable for any reason such invalidity or unenforceability will not affect the validity
or enforceability of any other restraints.
6.
Miscellaneous
6.1
The failure of either party to enforce any provision of this Deed at any time shall not
operate as a waiver of that provision in respect of the particular act or omission or any
other act or omission.
6.2
The Recipient acknowledges and agrees that the covenants and undertakings in this Deed
shall survive and continue in force until the Proprietor notifies the Recipient, in writing, that
the Confidential Information is no longer confidential or until the Confidential Information
becomes part of the public domain other than through breach of this Deed.
6.3
If any provision of this Deed does not comply with any law then the provision must be read
down so as to give it as much effect as possible. If it is not possible to give the provision
any effect at all then it must be treated severable from the rest of this Deed. This
approach is to be used equally where any Court is construing this Deed and finds a
provision to be invalid, void or unenforceable.
6.4
This Deed shall bind the Proprietor and the Recipient and each and every of their heirs,
successors or assigns.
This Deed supersedes all prior obligations of confidence between the parties relating to the
Confidential Information and constitutes the complete Deed of the parties in respect of
those obligations.
6.5
6.6
This Deed shall be governed by the laws of New South Wales, Australia, and the parties
hereby submit to jurisdiction of the courts of New South Wales, Australia.
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6.7
This Deed binds each of the signatories even if one or more of the persons named may
not execute or be bound by this Deed.
6.8
Any notice required to be served under this Deed must be in writing and served by:
(a)
(b)
(c)
personal service on the other party or the solicitor for the other party;
prepaid post to the other party at the address set out in this Deed or to the solicitor
for the other party;
facsimile transmission to the other party or to the solicitor for the other party.
Service is effected 2 days after posting if the notice is posted and immediately if the notice
is served personally or by facsimile transmission.
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IN WITNESS WHEREOF this Deed was executed on the
SIGNED by
for and on behalf of LLCA Pty Ltd
in the presence of:
…………………………………………………………….
Witness
day of
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Occupation
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Address
SIGNED by the Recipient
in the presence of:
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Witness
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Occupation
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Address
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