NON-DISCLOSURE AGREEMENT

1. For the purpose of this Agreement, the term “affiliate” shall mean any person or entity controlling, controlled by, or under common control with another person/entity. For the purpose of this Agreement, each above party may be referred to separately as “Party” and will collectively be known as “Parties”.

2. As used herein, the term “Confidential Information” refers to any business or technical information, whether or not stored in any medium, relating to the Discloser’s business (and those of its suppliers and customers) including, but not limited to, product or service specifications or strategies, marketing plans, pricing information, financial information, information relating to existing, previous and potential suppliers, customers, contracts, products, intellectual property, business models, and other know-how disclosed directly or indirectly by the Discloser to the Recipient, in writing, electronically or orally, designated as confidential but shall not include any information which:

is already in the Recipient’s possession;
is or becomes available to the public or the Recipient other than as a result of a breach of this Agreement;
is or was independently developed by the Recipient without use of the Confidential Information;
is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality known to the Recipient. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing (including by email) by the Discloser as being Confidential Information within two (2) weeks after disclosure; or
the disclosure is permitted with prior written consent of the Discloser.

3. The Recipient agrees that it will:

treat the Confidential Information as confidential and not disclose it to anyone except as provided for by Clause 4 below and use the same standard of care in handling such information as it uses with respect to its own confidential information;
use the Confidential Information only for the purpose of evaluating the Transaction;
not disclose to anyone the fact that the Confidential Information has been made available or discussions are taking place with the Discloser in connection with the Transaction; and
ensure that any person to whom it passes any Confidential Information (unless disclosed under clause 4(b) below) acknowledges and complies with the provisions of this Agreement as if that person were a party to it.

4. The Recipient may disclose the Confidential Information

to its directors, employees, professional advisors and auditors (Representatives) to the extent necessary for consideration of the Transaction subject to such Representatives being informed of the confidential nature of the Confidential Information and bound to similar confidentiality obligations as set out herein;
where requested or required by any competent judicial, governmental, supervisory, or regulatory body, or where required by applicable laws or regulations; and
to such other parties as the Discloser agrees in writing.

5. The Recipient shall be responsible for any breach of this Agreement by the Representatives. To the extent practicable and permitted by law and regulation, the Recipient shall inform the Discloser of the full circumstances of any disclosure under paragraph 4(b); and upon becoming aware that Confidential Information has been disclosed in breach of this Agreement.

6. The Recipient undertakes and warrants to the Discloser that:

it has and shall have the requisite authorisation to receive the Confidential Information from the Discloser;
disclosure of the Confidential Information to it does not and shall not violate, conflict with or constitute a default under any applicable laws;
it shall comply with the provisions of applicable laws while dealing with the Confidential Information provided by the Discloser;
It shall not:
- distribute, disclose or disseminate the Confidential Information in any way to anyone, except its employees and Representatives who have a need to know and who shall be advised of this Agreement and agree to be bound by the provisions hereof; provided that such disclosure of the Confidential Information to its employees and Representatives who have a need to know shall be limited to only so much of such Confidential Information as is necessary for such person to perform their respective functions; and
- use such Confidential Information for its own benefit or the benefit of others, except to evaluate, carry out and/or enforce the Transaction and as otherwise authorised by the other Party.

7. If either Party decides that it does not wish to proceed with the Transaction, it shall inform the other Party of such decision, in writing. Upon written request, the Recipient shall:

Either return to the Discloser or destroy all Confidential Information and all copies thereof made by it; and
Ensure that the Representatives destroy or permanently erase such Confidential Information and all copies made by them, in each case save to the extent obligated to retain any Confidential Information by any applicable law.

8. Neither the Discloser nor any of its employees or advisers makes any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information.

9. Both Parties agree that the unauthorised disclosure of the Confidential Information will cause irreparable harm to the Discloser and in addition to all other remedies available, the Discloser shall be entitled to seek injunctive and other relief in a court of competent jurisdiction. The Recipient acknowledges that some or all of the Confidential Information is or may be price- sensitive information and use of such information may be regulated or prohibited by applicable legislation relating to insider dealing. The Recipient undertakes not to use any Confidential Information for any unlawful purpose.

10. The undertakings contained in this Agreement shall remain in effect indefinitely, extending beyond the termination or expiration of any agreement between the Discloser and Recipient, and to the extent permissible by law, including:

all confidentiality obligations relating to any Confidential Information which constitutes trade secret, or more favourable protection of which is available under applicable law, the confidentiality obligations shall remain in force as long as such protection is available under the applicable law;
the confidentiality obligations relating to the name list, personal, financial and any kind of information of the customers or prospective customers of the Discloser which are subject to the relevant government authority’s privacy regulation shall remain in force for the duration(s) specified in that behalf as per applicable law or regulation;

11. The Recipient hereby assumes full responsibility for all gross and willfully negligent acts or omissions amounting to contravention of the terms and conditions of this Agreement by the Recipient or its officers and employees which result in a loss or damage to the Discloser. Recipient indemnifies Discloser against all losses, damages, expenses and legal costs (on the standard basis and whether incurred by or awarded against Discloser) that Discloser may reasonably sustain or incur as a result, whether directly or indirectly, of any breach by Recipient of this Agreement.

12. The Parties further agree that this Agreement shall be governed by the laws of New South Wales and the Parties irrevocably agree to the non-exclusive jurisdiction of Courts in that State.

13. Miscellaneous

13.1 This Agreement constitutes the entire understanding between the Parties as to the Confidential Information and supersedes all prior discussions between them relating thereto and may only be modified in a writing duly signed by both Parties.

13.2 Neither Party may assign or transfer, in whole or in part, any of its rights, obligations or duties under this Agreement.

13.3 Nothing in this Agreement shall or is intended to confer any rights or benefits on any third party.

13.4 The failure or delay of the Discloser to enforce at any time any provisions of this Agreement shall not constitute a waiver of the Discloser’s right thereafter to enforce any such provisions.

13.5 Nothing in this Agreement shall preclude either Party from dealing with other Parties on similar subject matter to that covered in this Agreement.