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: ) ) ) ) ) ) ) ) ) ) ...................................................................................... 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. ...................................................................................... Name of authorised representative (block letters) Date: ...................................................................................... Signature of witness ...................................................................................... Name of witness (block letters) Date: SIGNED for and on behalf of by its duly authorised representative in the presence of: ) ) ) ) ) ) ) ) ) ...................................................................................... Signature of authorised representative ...................................................................................... Name of authorised representative (block letters) Date: ...................................................................................... Signature of witness ...................................................................................... Name of witness (block letters) Date:
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