Deed of Confidentiality
This deed made the
day of
, 2012
Parties
1.
The person named in Item 1 of Schedule 1 ("Discloser")
2.
The person named in Item 2 of Schedule 1 ("Recipient")
Background
A.
The Recipient is or will become the recipient of the Confidential Information from the
Discloser.
B.
The Discloser considers it to be imperative that the security and confidentiality of
the Confidential Information be maintained.
C.
The Discloser has allowed the Recipient to have access to the Confidential
Information.
D.
Improper use or disclosure to third parties of the Confidential Information would
cause serious loss or damage to the Discloser.
E.
The Recipient agrees that it is necessary to take all reasonable steps (including the
execution of this Deed) to ensure that the confidentiality and security of the
Confidential Information is protected.
Operative Part
1.
Definitions
1.1
In this Deed:
Confidential Information means all information passing from the Discloser and
from any employee or consultant of the Discloser to the Recipient relating to the
Purpose including, but not limited to, data, know-how, designs, sketches,
photographs, plans, drawings, specifications, layouts, ideas, concepts, reports,
manuals, certificates, prototypes, methods of manufacture of any work, trade
secrets, source and object codes, business, financial and marketing information,
arrangements and agreements with third parties, present or potential customer
information and lists, formulae, concepts not reduced to material form and all other
information whatsoever whether in writing or oral and includes any Confidential
Information created by any of the employees, servants, consultants, nominees or
agents of the Discloser.
Deed means this deed of confidentiality and the Schedule.
Document includes any form of storage of information whether visible to the eye or
not.
Purpose means the purposes set out in Item 3 of the Schedule.
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1.2
Interpretation
The following rules apply unless the context requires otherwise:
(a)
if more than one person or legal entity is a recipient of Confidential
Information under this Deed, each of them is jointly and severally liable to
perform the obligations of the Recipient under this Deed; and
(b)
no rule of construction applies to the disadvantage of a party merely because
that party was responsible for the preparation of this Deed or any part of it.
2.
Non Disclosure
2.1
No Disclosure without Consent
Except as provided under clause 2.2, the Recipient must not disclose or grant
access to the Confidential Information to any person without prior written consent of
the Discloser which it may grant or withhold in its absolute and unfettered discretion
on any conditions it thinks fit.
2.2
Recipient’s Employees and Consultants
The Recipient may disclose or grant access to the Confidential Information solely
for the Purpose to the Recipient’s employees, agents, nominees, contractors or
consultants engaged by the Recipient.
2.3
Obligations survive this Deed
The obligations of the Recipient contained in this Deed survive the expiration or
termination of this Deed.
3.
Restriction of Use
3.1
The Recipient undertakes to the Discloser that it:
(a)
will use the Confidential Information solely for the Purpose;
(b)
will not copy the Confidential Information;
(c)
will not make any notes or memoranda based on or relating to the
Confidential Information other than for the Purpose;
(d)
will maintain secure custody of the Confidential Information;
(e)
will not utilise any new technological developments or business
methodologies revealed by the Discloser to the Recipient in any business in
competition with the Discloser unless the technologies or business
methodologies are:
(f)
(i)
available in the public domain;
(ii)
presently within the knowledge of the Recipient; or
(iii)
subject to an agreement between the Recipient and the Discloser which
involves an entitlement to use those technologies or methodologies;
will not, without the prior written consent of the Discloser, contact any current
or prospective customer or supplier of the Discloser or current employee of or
contractor to the Discloser (except to the extent the Recipient has an existing
relationship with that person and the contract does not arise out of or relate to
the Confidential Information);
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(g)
4.
is responsible for making its own independent assessment of the Confidential
Information made available to the Recipient and will not hold the Discloser
responsible for:
(i)
any errors or omissions in the Confidential Information however caused;
or
(ii)
any loss incurred by the Recipient acting or refraining from acting as a
result of receiving the Confidential Information.
Employees and Contractors
The Recipient, on the Discloser’s request, will procure the execution of a deed on
the same terms and conditions as this Deed to the Discloser by any employees,
agents, nominees, contractors, legal advisers or consultants engaged by the
Recipient who may have access to the Confidential Information.
5.
Delivery or Destruction of Documents
5.1
The Recipient must confirm in writing to the Discloser that all Documents in the
possession or under the control of the Recipient containing the Confidential
Information have at the Discloser’s request, either been delivered up to the
Discloser or destroyed:
(a)
at the completion of the Purpose; and
(b)
if applicable, on the Recipient’s earlier written or oral demand, within 7 days of
receipt of that demand;
5.2
The Recipient must deliver to the Discloser within 14 days of a written request, a
statutory declaration confirming that it has delivered up to the Discloser or
destroyed all Documents containing the Confidential Information.
6.
Indemnity
The Recipient indemnifies and will keep the Discloser indemnified against any
judgment, loss, damage, cost and expense which is incurred by the Discloser
directly or indirectly in connection with or arising out of any breach or nonobservance of this Deed by the Recipient.
7.
Purpose
This Deed does not impose any obligation on either party regarding the outcome of
any negotiations relating to the Purpose.
8.
No exclusion of Law or Equity
This Deed must not be construed to exclude the operation of any principle of law or
equity intended to protect and preserve the confidentiality of the Confidential
Information.
9.
Disclosure under compulsion
9.1
This Deed does not apply to any Confidential Information that the Recipient can
document in writing, is required to be disclosed pursuant by or under any applicable
law or legally binding order of any court, government, authority, commission or
tribunal acting within its powers (“Legal Requirement”) provided that the Recipient
must:
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(a)
to the extent permitted by law, immediately notify the Discloser in writing of
the Legal Requirement;
(b)
permit the Discloser, at its own expense, to take such steps to prevent or limit
the disclosure of the Confidential Information pursuant to the Legal
Requirement and, for that purpose, co-operate with the Discloser and permit
the Discloser to take action in the name of the Recipient;
(c)
limit any disclosure of the Confidential Information to the minimum required in
order to comply with the Legal Requirement; and
(d)
immediately notify the Discloser in writing of the nature and extent of any
disclosure of the Confidential Information pursuant to the Legal Requirement.
10.
General
10.1
Urgent relief
The Recipient acknowledges that damages may be inadequate compensation for
breach of an obligation under this Deed and without compromising the Discloser’s
right to seek any damages or any other form of relief in the event of a breach of this
Deed, the Discloser may seek and obtain an ex-parte interlocutory judgment or final
injunction or similar remedy to prohibit or restrain the Recipient from any breach or
threatened breach of this Deed.
10.2
Non-Merger
The obligations under this Deed do not merge in any subsequent agreement
between the parties in the absence of any written provision to that effect.
10.3
Amendment
This Deed may only be varied or replaced by a document duly executed by the
parties.
10.4
Entire understanding
This Deed contains the entire understanding between the parties as to the subject
matter contained in it. All previous agreements, representations, warranties,
explanations and commitments, expressed or implied, affecting this subject matter
are superseded by this Deed and have no effect.
10.5
Further assurance
Each party must promptly execute and deliver all documents and take all other
action necessary or desirable to effect, perfect or complete the transactions
contemplated by this Deed.
10.6
Legal costs and expenses
Each party must pay its own legal costs and expenses in relation to the negotiation,
preparation and execution of this Deed and other documents referred to in it, unless
expressly stated otherwise.
10.7
Severance
(a) If a provision in this Deed is held to be illegal, invalid, void, voidable or
unenforceable, that provision must be read down to the extent necessary to
ensure that it is not illegal, invalid, void, voidable or unenforceable.
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(b)
If it is not possible to read down a provision as required in this clause, that
provision is severable without affecting the validity or enforceability of the
remaining part of that provision or the other provisions in this Deed.
10.8
Counterparts
This Deed may be executed in any number of counterparts all of which taken
together constitute one instrument.
10.9
Waiver
No waiver by the Discloser of any breach or default shall be effective unless it is
signed by the Discloser and that waiver shall not constitute a waiver of any other
continuing breach or default of this Deed.
10.10
Governing law and jurisdiction
This Deed is governed by and shall be construed under the laws of Tasmania and
each party irrevocably submits to the exclusive jurisdiction of the courts of
Tasmania.
10.11
Notices
(a) Any notice to or by a party under this Deed must be in writing and signed by
the sender and may be served by delivery in person or by prepaid post or
transmission by facsimile to the address or number of that party.
(b)
Any notice shall be effective for the purpose of this Deed:
(i)
if delivered by hand, at the time of delivery;
(ii)
if posted two business days (in the place of receipt) after posting; or
(iii)
if delivered by facsimile on production of a transmission report indicating
the communication was received in its entirety at the recipient’s number.
Executed by the Recipient as a deed.
(If the Recipient is a company)
Executed by the Recipient in accordance
with section 127(1) of the Corporations Act
2001:
)
)
)
..............................................................................
Director
..............................................................................
Secretary/Director
..............................................................................
Name of Director (print)
..............................................................................
Name of Secretary/Director (print)
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(If the Recipient is a natural person)
Signed by the Recipient in the presence
of:
..............................................................................
Signature of Witness
..............................................................................
Full name (print)
..............................................................................
Address
..............................................................................
Occupation
)
)
)
..............................................................................
Signature of Recipient
..............................................................................
Print Recipient’s name
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Schedule 1
1.
Discloser
Name:
Tas-Air Pty Ltd (in Liquidation)
ACN 009 487 101
Address:
C/- Tenbensel & Dee
Level 2, 79 Collins Street, Hobart, TAS 7000
Facsimile:
03 6233 1881
Short name:
Discloser
Contact:
Robert Tenbensel
Name:
Robert Tenbensel (in his capacity as liquidator)
Address:
C/- Tenbensel & Dee
Level 2, 79 Collins Street, Hobart, TAS 7000
Facsimile:
03 6233 1881
Short name:
Liquidator
The Discloser and Liquidator receive the benefits of the obligations of the Recipient
under this Deed jointly and severally as the Discloser, however the obligations of
the Discloser owed to the Recipient under this Deed are owed severally by the
Discloser and the Liquidator.
2.
Recipient
Name:
Address:
Facsimile:
Contact:
3.
Purpose
The purpose of enabling the Recipient to investigate and negotiate, and conduct a
due diligence in respect of, the proposed purchase of some or all of the assets of
the Discloser by the Recipient.
Table of Contents
1.
Definitions........................................................................................................1
2.
Non Disclosure ................................................................................................2
3.
Restriction of Use ............................................................................................2
4.
Employees and Contractors ............................................................................3
5.
Delivery or Destruction of Documents .............................................................3
6.
Indemnity .........................................................................................................3
7.
Purpose ...........................................................................................................3
8.
No exclusion of Law or Equity .........................................................................3
9.
Disclosure under compulsion ..........................................................................3
10.
General ...........................................................................................................4
Schedule 1 ..................................................................................................................7