CONFIDENTIALITY AGREEMENT
DATE
VOCAL CHANNELS PTY LIMITED (ACN 131 307 858), of Level 3, 669
South Dowling Street, Surry Hills, NSW 2010 ("Vocal")
BETWEEN
AND
PERMITTED PURPOSE
(Example: Evaluating the commercial feasibility of entering into a proposed business
relationship with the other party for the purposes of supplying telecommunications services
and/or broadband services)
RECITALS:
A
B
(b) was known by the Recipient prior to its
disclosure by the Provider; or
Both parties, for their mutual benefit, desire to
disclose to the other certain information for a
defined Permitted Purpose.
(c) was
independently
developed
without
reference to information disclosed to the
Recipient by the Provider; or
The parties have agreed to disclose to each other
certain information on the terms and conditions of
this Agreement, in consideration of the mutual
promises set out in this Agreement.
(d) was obtained from a source other than the
Provider;
without breach of any obligation of confidentiality.
OPERATIVE PROVISIONS:
Representative means a director, officer,
employee, adviser (financial or legal) or agent.
1
INTERPRETATION
1.1
The following words have these meanings in this
Agreement unless the contrary intention appears:
Confidential Information means any information
(whether in writing or otherwise) disclosed
(directly or indirectly) to the Recipient or its
Representative by the Provider (whether before
or after the date of this Agreement) including
(without limitation) information relating to the
Permitted Purpose and information concerning
the business and affairs (financial or otherwise) of
the Provider, but does not include information
which:
(a)
is by reason of general publication or the
like, part of the public domain or readily
available in the public domain; or
Permitted Purpose has the meaning given to it at
the beginning of this agreement.
Provider means a party that discloses
Confidential Information to the other party.
its
Recipient means a party that receives or obtains
Confidential Information of the other party.
2
CONFIDENTIALITY
2.1
The Recipient undertakes to keep secret and treat
as confidential the Confidential Information of the
Provider. In particular, the recipient undertakes to
ensure that third persons do not gain access to the
Confidential Information other than as permitted
under this Agreement. To this end, the Recipient will
not, without the Provider's prior written consent:
(a)
(b)
disclose or in any way communicate to any
other person all or any of the Confidential
Information except as expressly authorised
under this Agreement;
(c)
permit unauthorised persons to have
access to places where the Confidential
Information is displayed, reproduced or
stored;
(d)
make or assist any person to make any
unauthorised use of the Confidential
Information; or
(e)
2.2
(b)
2.4
(c)
required by law; or
(ii) required by the rules of any stock
exchange where the Recipients securities are
listed or quoted;
provided that the Recipient has first notified the
Provider that the Recipient is required to disclose
the Confidential Information and the Recipient has
used its reasonable endeavours to assist the
Provider, should it wish to do so, to take whatever
opportunities are available (if any) to protect the
confidentiality of the Confidential Information;
(d)
make or permit to be made copies of the
Provider’s Confidential Information.
take reasonable steps to enforce the
confidentiality obligations imposed by this
Agreement including diligently prosecuting
at its cost, any breach or threatened or
suspected breach of such confidentiality
obligations by a person to whom the
Recipient has disclosed the Confidential
Information; and
where such disclosure is:
(i)
The Recipient must:
(a)
2.3
use or permit any person to use the
Confidential Information for any purpose
other than the Permitted Purpose;
in connection with legal proceedings between
the parties relating to the confidentiality
provisions of this Agreement. For the
avoidance of doubt, unless otherwise
provided for in this Agreement, the
Confidential Information may not be disclosed
in connection with any dispute or legal
proceedings not related to this Agreement.
2.5
The Recipient will immediately notify the Provider of
any actual, suspected or threatened unauthorised
disclosure or use of the Confidential Information and
must comply with any reasonable direction issued by
the Provider concerning the Provider’s Confidential
Information.
2.6
The Recipient acknowledges that a breach of this
Agreement may cause the Provider irreparable
damage for which monetary damages would not be
an adequate remedy. Accordingly, in addition to
other remedies that may be available, the Provider
may seek and obtain injunctive relief against such a
breach or threatened or suspected breach. If either
party is liable to the other party for breach of this
Agreement the party’s agree that their liability in the
aggregate for all damages will be limited to
A$1,000,000.
2.7
The Recipient's obligations with respect to the
Confidential Information survive termination or
expiration of this Agreement and bind the Recipient
until the Provider sends the Recipient written notice
releasing the Recipient from this Agreement, or until
the relevant Confidential Information has become
part of the public domain otherwise than as a result
of a breach of any obligation of confidentiality.
2.8
The Recipient undertakes not to make any use of
the Confidential Information or any part of it to the
competitive disadvantage of the Provider.
(ii) on a need to know basis only; and
3
RETURN OF INFORMATION
(iii) upon the Representative undertaking
to keep strictly confidential any
information disclosed.
3.1
The Recipient undertakes that it will, within fourteen
(14) days of the Provider’s request, return, or at the
option of the provider, destroy and certify the
destruction of, all documents and other materials
(including copies) provided to the Recipient or any of
its Representatives by the Provider relating to or
containing the Provider’s Confidential Information.
co-operate, and provide the Provider with
all reasonable assistance, in any action
which the Provider may take to protect the
confidentiality
of
the
Confidential
Information.
Where a breach, or threatened or suspected
breach does not or would not involve a breach by
the Recipient of its obligations under this
Agreement, then the Provider agrees to
reimburse the Recipient for its reasonable costs
and expenses incurred as a result of complying
with clause 2.2(a).
The Recipient may only disclose Confidential
Information (to the extent reasonably necessary):
(a)
to its legal advisers in relation to its rights
under this Agreement;
(b)
to its Representatives:
(i)
for the sole purpose of furthering the
Permitted Purpose; and
4
REPRESENTATIONS AND WARRANTIES
EXECUTED as an Agreement
4.1
The Recipient acknowledges that the Provider
makes no representation or warranty, express or
implied, as to the accuracy or completeness of the
Confidential Information and accepts no
responsibility to the Recipient or any other person
for any false, inaccurate or misleading
Confidential Information or for any interpretation,
opinion or conclusion that the Recipient may form
as a result of examining the Confidential
Information.
5
GENERAL
5.1
The rights, powers, obligations and remedies
provided in this Agreement are cumulative with,
5.2 and not exclusive of, the rights, powers or
remedies provided by law or in equity
independently of this Agreement.
SIGNED for and on behalf of VOCAL CHANNELS
by its duly authorised representative in the presence
of:
)
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Signature of authorised representative
5.2
This Agreement does not constitute a grant or an
intention or commitment to grant any right, title or
interest in any Confidential Information to the
Recipient.
5.3
To be effective, a waiver of any right under this
Agreement must be in writing signed by the
waiving party. The failure of the Provider at any
time to insist on performance of any provision of
this Agreement is not a waiver of its right
subsequently to insist on performance of that or
any other provision of this Agreement.
5.4
Any addition or variation to this Agreement must
be in writing and signed by both parties to be
effective.
5.5
This Agreement is governed by the laws from time
to time in force in New South Wales and the
parties unconditionally submit to the nonexclusive
jurisdiction of the Courts in that state for
determining any dispute concerning this
Agreement.
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Name of authorised representative (block letters)
Date:
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Signature of witness
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Name of witness (block letters)
Date:
SIGNED for and on behalf of
by its duly authorised representative in the presence
of:
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)
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)
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)
)
)
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Signature of authorised representative
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Name of authorised representative (block letters)
Date:
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Signature of witness
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Name of witness (block letters)
Date: