This NDA is for the application into [CALC]. Read through and return to the application form to tick that you have agreed to its terms.
This Non-Disclosure Agreement is made on the date of completion of the below form.
BETWEEN the Applicant with their principal place of business as detailed below, hereinafter referred to as the “Disclosing Party.” The expression “Disclosing Party” shall mean and include the Disclosing Party’s authorised representative(s), associates, affiliate, partners it may appoint on its behalf.
Caron Margarete Pty Ltd with their principal place of business at 199 Arbour Blvd, Burnside Heights, VIC, 3023, Australia, hereinafter referred to as the “Receiving Party.” The expression “Receiving Party” shall mean and include the Receiving Party’s authorised representative(s), associates, affiliate, partners, or group members it may appoint on its behalf or collaborate in a work or personal capacity.
Each party wishes to provide certain proprietary, confidential and/or trade secret information to the other party to further their discussions and exchange of information regarding a potential business relationship between the parties. (the “Purpose”). As a condition of providing such information, the parties have agreed to enter into this Agreement and abide by its terms. Therefore, the parties agree as follows:
As used in this Agreement:
- “Confidential Information” means (i) any information (other than Excluded Information) supplied in any form, including orally, to the Receiving Party (defined below) by, or at the direction of, the Disclosing Party (defined below) and any copies, excerpts, summaries, analyses or notes thereof generated by the Receiving Party and (ii) the existence of this Agreement and discussions between the parties regarding the Purpose;
- “Excluded Information” means (i) information in the public domain at the time that it was provided by the Disclosing Party or which subsequently comes into the public domain other than as a result of breach of this Agreement; (ii) information obtained from a third party unaffiliated with the Disclosing Party and not bound by a confidentiality agreement with the Disclosing Party; (iii) information independently developed by the Receiving Party without reference to the Information; or (iv) is required to be disclosed under any law, government rule or regulation of court order.
- “Disclosure Period” means the period from the Effective Date until earlier to occur of (a) the execution of a definitive agreement governing the Purpose which contains confidentiality restrictions that expressly supersede this Agreement (a “Definitive Agreement”), (b) written notice given by either party terminating discussions relating to the Purpose, or (c) one year after the date hereof (provided that, if a Definitive Agreement is executed but does not contain confidentiality restrictions that expressly supersede this Agreement, the Disclosure Period shall extend until the expiration or termination of the Definitive Agreement);
- Each of the parties is a “Receiving Party” to the extent it receives Confidential Information under this Agreement, and a “Disclosing Party” to the extent it furnishes Confidential Information under this Agreement. For the purposes of this agreement, the Disclosing Party is G2L-Unity Ltd.
- Term. This Agreement shall terminate on the expiration of all obligations of confidentiality under this Agreement, which shall continue (a) with respect to all Confidential Information other than trade secrets, for three years after the end of the Disclosure Period and (b) with respect to Confidential Information consisting of trade secrets, until such Confidential Information no longer qualifies as a trade secret under the applicable law of this Agreement.
- Restrictions on Use.
- General Obligation of Confidentiality. Receiving Party shall take precautions to prevent disclosure or use of Confidential Information other than as permitted by this Agreement. Those precautions must be equal to those taken by Receiving Party to protect its own Confidential Information of like sensitivity or those that a reasonable person in the position of Receiving Party would take, whichever is greater.
- Disclosure to Authorized Persons. Confidential Information shall be used solely for the Purpose and for no other purpose. Confidential Information shall not be disclosed without the Disclosing Party’s prior written consent to any person other than the Receiving Party and such of its officers, directors, employees and advisers who are essential to achieve the Purpose on a “need to know” basis (each an “Authorized Person”).
- Authorized Persons. Prior to disclosing any Confidential Information to any Authorized Person, the Receiving Party shall notify each Authorized Person of the confidential nature of the Confidential Information and each such person (other than a person otherwise under a duty to keep the Confidential Information confidential, including as a result of being an employee, officer, director or attorney of the Receiving Party) shall execute a confidentiality agreement obligating it to maintain the confidentiality of the Confidential Information in manner consistent with this Agreement. The Receiving Party is not authorized to share Confidential Information with its affiliates; however, if any affiliate of the Receiving Party receives Information, the Receiving Party shall be responsible for ensuring compliance with the provisions of this Agreement by its affiliate(s). Receiving Party agrees to be responsible for any actions taken by its Authorized Persons or any other person gaining access to Confidential Information through it that are inconsistent with the terms of this Agreement.
- Notices; Required Communications Channels. The parties acknowledge that all (i) Confidential Information and requests for additional Confidential Information, (ii) communications regarding the Purpose, (iii) requests for visits or meetings, (iv) discussions or questions regarding procedures, and (v) any notice under this Agreement shall be submitted or directed to the persons designated by each party from time to time. All notices shall be in writing.
- Access. The Disclosing Party may limit access to its facilities, equipment, contractors, data and other materials, information and personnel.
- Compliance with Applicable Laws and Policies. The Receiving Party shall not use and shall not permit any others to use any Confidential Information in violation of any laws, including securities laws and regulations, or in any other manner detrimental to the Disclosing Party, such as the development of any product or service for itself or any other person. The Receiving Party shall comply with all of the Disclosing Party’s applicable security rules that are disclosed to the Receiving Party in writing.
- Legally Required Disclosure. If the Receiving Party or any of its Authorized Persons becomes legally compelled (e.g., by law, rule, regulation, or as part of a judicial or administrative proceeding) to disclose any of the Information, the Receiving Party shall provide the Disclosing Party with immediate written notice of such requirement so that the Disclosing Party may seek a protective order or another appropriate remedy. If the Disclosing Party fails to obtain such protective order or another remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
- Return or Destruction. Upon termination without a Definitive Agreement and subject to Section 3(8)(ii) below,
(i) the Receiving Party shall, at its option and own expense, take reasonable efforts to return or destroy all Confidential Information, and no Confidential Information shall be retained by the Receiving Party in any form. Within ten (10) days after request by the Disclosing Party, the Receiving Party shall certify in writing that it has taken such efforts to return or destroy such Confidential Information.
(ii) Receiving Party may retain a copy under the control of its counsel for the purpose, in the event of a future dispute, of proving what information it did or did not receive hereunder.
(iii) Notwithstanding the return or destruction of Confidential Information, the Receiving Party shall continue to be bound by its obligations of confidentiality hereunder until the expiration as described in Section 2.
- Ownership of Confidential Information. All Confidential Information shall remain the property of the Disclosing Party. The Receiving Party will not use nor permit the use of the Disclosing Party’s names, logos, trade or service marks or other identifying data, or otherwise discuss or make reference to the Disclosing Party, in any notices to third parties, any promotional or marketing material or in any press release or other public announcement or advertisement, however, characterized, without the Disclosing Party’s prior written consent. No rights to or under trademarks, service marks, patents, copyrights, trade secrets or other intellectual property are granted by this Agreement.
- Representations and Warranties. The Disclosing Party represents and warrants that it has the right to disclose all Confidential Information disclosed under this Agreement and that such disclosure does not violate the rights of any third parties. The Receiving Party understands that the Disclosing Party does not make any express or implied representation or warranty regarding the accuracy or completeness of any Confidential Information provided hereunder.
- Limitation of Damages. The Disclosing Party shall not be liable to the Receiving Party for amounts representing indirect, incidental, consequential or punitive damages of the Receiving Party in connection with the provision or use of Information hereunder.
- Injunctive Relief Permitted. The Receiving Party recognizes that a breach of this Agreement may cause irreparable harm to the Disclosing Party and that actual damages may be difficult to ascertain and in any event may be inadequate. Accordingly, the Receiving Party agrees that in the event of such breach or a threatened breach, the Disclosing Party shall be entitled to seek injunctive relief in addition to such other remedies as may be available at law or in equity.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof, and all prior agreements, understandings, writings, or negotiations, whether written or oral, are hereby superseded. No failure or delay by either party in exercising its rights hereunder shall operate as a waiver of such rights. No rights or obligations under this Agreement may be waived or amended except by written agreement of both parties.
- Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, except with the prior written consent of the other party. Notwithstanding the foregoing, this Agreement will be binding upon, inure to the benefit of, and be enforceable by the respective permissible successors of the parties hereto.
- Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and shall be enforced and interpreted as if such invalid, void or unenforceable provision were never a part of this Agreement to the extent it is invalid, void or unenforceable; otherwise, all provisions of this Agreement shall be valid and enforceable to the full extent permitted by law.
- Execution. This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received.
- Governing Law. This Agreement shall be governed exclusively by the laws of Australia without regard to its conflicts of law principles. Any action brought hereunder shall be brought exclusively in Australia, and both parties hereby consent to the jurisdiction of such courts and to such venue, which both agree is convenient. The Parties irrevocably waive all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this agreement.
- No Obligation. This Agreement does not obligate either party to enter into an agreement for the Purpose or prevent either party from entering into a similar transaction with any third party, provided the obligations of confidence under this Agreement are maintained.