1 DEFINITIONS AND INTERPRETATION
Confidential Information means all technical, business and all other commercially valuable information, documents and materials, including data, processes, specifications, drawings, reports, inventions, formulae, technology, trade secrets and know-how, in whatever form provided by the Provider to the Recipient.
Materials means all materials in whatever form provided by the Provider to the Recipient.
Provider means the party providing Confidential Information to the other party.
Purpose has the meaning given to that term in Item 3 of the Agreement Details.
Recipient means the party receiving Confidential Information from the other party.
Unless the context otherwise requires a word which denotes a person includes an individual, a body corporate and a government.
The Recipient acknowledges that Confidential Information given to the Recipient prior to the date of this Agreement was given on the condition that it be kept confidential.
3.1.1 The Recipient must:
(a) take all such reasonable precautions as may be necessary to maintain the confidentiality of the Confidential Information;
(b) only disclose the Confidential Information to those of its officers, employees and financial or legal advisers who need to know for the Purpose;
(c) ensure that each officer, employee and financial and legal adviser who comes into possession of the Confidential Information is advised of the confidentiality provisions of this Agreement and agrees to maintain the confidentiality of the Confidential Information; and
(d) immediately on demand from the Provider:
(i) deliver to the Provider all Materials and all Confidential Information which are capable of being transferred by delivery; and
(ii) delete permanently all Materials and Confidential Information in electronic form stored on any computer or similar facility under the control of the Recipient.
3.1.2 The Recipient must not:
(a) communicate or make available any Confidential Information to any person other than in accordance with Clause 3.1.1;
(b) use the Confidential Information for:
(i) any purpose other than the Purpose; or
(ii) the Recipient’s own gain or in any manner which may cause loss to the Provider; or
(c) copy the Confidential Information, without the Provider’s prior written consent.
The obligations of the Recipient under this Agreement do not apply to any Confidential Information which the Recipient can demonstrate to the reasonable satisfaction of the Provider:
(a) was in the Recipient’s possession at the time of disclosure to the Recipient and was not acquired in breach of an obligation of confidence or under an obligation of confidence;
(b) is in the public domain, other than as a result of a breach of this Agreement;
(c) is acquired from a third party, provided that it was not acquired by the third party unlawfully or in breach of an obligation of confidence; or
(d) is required to be disclosed by law.
(a) warrants that it is entitled to disclose its Confidential Information to the Recipient without the consent of any other person; and
(b) does not give any warranty to the Recipient as to the accuracy or completeness of the Confidential Information.
The Recipient indemnifies the Provider against all losses, damages, costs and expenses (including legal fees) incurred by the Provider arising out of:
(a) a breach of this Agreement by the Recipient;
(b) any negligent or unlawful act or omission by the Recipient or its officers, employees, advisers, agents or contractors in respect of the Confidential Information; or
(c) any act or omission by any person to whom the Recipient discloses Confidential Information which, if done or omitted to be done by the Recipient, would constitute a breach by the Recipient of this Agreement.
This Agreement may only be varied by the written agreement of the parties.
The Recipient must not assign any of its rights or novate any of its obligations under this Agreement without the prior written agreement of the Provider.
Where the consent or approval of the Provider is required under this Agreement, the Provider may withhold its consent or approval or give it conditionally or unconditionally as it sees fit.
A waiver under this Agreement is not binding on a party unless it is in writing and signed by the party. A waiver is not a waiver of any other right.
6.5 Entire agreement
(a) This Agreement embodies the entire understanding and agreement between the parties as to its subject matter.
(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this Agreement.
6.6 Further assurance
The Recipient must promptly sign all documents and do all things that the Provider from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.
6.7 Governing law and jurisdiction
Where both parties are incorporated in Australia, this Agreement is governed by and must be construed in accordance with the laws of New South Wales and where both parties are incorporated in New Zealand, the laws of New Zealand will apply. Each party:
(a) irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales (where both parties are incorporated in Australia) or otherwise the courts of New Zealand (where both parties are incorporated in New Zealand) and all courts which have jurisdiction to hear appeals from those courts; and
(b) waives any right to object to proceedings being brought in those courts for any reason.