MUTUAL CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made this day between
BETWEEN:
(1) [Online Ventures Pty Ltd, T/A SITEMINDER ], a company registered in Australia whose registered office is at 88 Cumberland St Sydney, 2000, NSW; (the “Recipient”) and
(2) Your company, as described in this online form.
(each a “Party” and together referred to as the “Parties”)
WHEREAS both Parties have agreed to disclose to each other without charge and have agreed to keep confidential certain Confidential Information (as defined in this Agreement) subject to the terms and conditions hereinafter contained for the purpose of facilitating various discussions relating to an technical integration between your company as specified in this application and Online Ventures Pty Ltd, T/A SITEMINDER
NOW IT IS HEREBY AGREED as follows:-
1. The following expressions shall unless the context otherwise admits have the following meanings:-
1.1 “Confidential Information” shall mean the trade and professional secrets, financial, business, operational, administrative, marketing, economic and technical or other data and all other information (whether written, oral or on magnetic or other media) including information pertaining to its existing, former or proposed customers, employees, suppliers, agents, partners and business associates, including any and all personal data as defined by Section 1(1) of the Data Protection Act 1998 in relation to such persons (“Personal Data”) disclosed or revealed by each party to the other or any company within the receiving party’s Group or its Representatives (the “receiving party”) whether before or after the execution of this Agreement and whether deliberately or otherwise given to the other Party together with any Know-how,
1.2 “Know-how”means all those patentable and non-patentable inventions, discoveries, improvements, processes and copyright works (including without limitation computer programmes) and design rights whether or not registered and shall include all industrial technical marketing and commercial information and techniques including (without prejudice to the generality of the foregoing) drawings, formula, diagrams, blueprints, network models, test reports, operating and testing procedures, manufacturing processes, instruction manuals, marketing methods, particulars of customers and advertising copy or anything similar to the foregoing;
1.3 “Representative” shall mean any director, officer, employee, agent, contractor or adviser of either Party or either Party’s Group.
1.4 “Holding Company” and “Subsidiary Company” shall be defined in accordance with the Companies Act
1.5 “Group” shall mean the group composed of any Party, its ultimate Holding Company, and all Subsidiary Companies of the Party’s ultimate Holding Company.
2. In consideration of the disclosure of Confidential Information by the disclosing party to the receiving party each Party agrees that the receiving party:
2.1 shall keep the Confidential Information confidential subject to the terms and conditions of this Agreement; and
2.2 shall only use the Confidential Information or any part of it for the Purpose; and
2.3 shall not disclose the Confidential Information or any part thereof to any other Representative or member of its Group other than any Representative or member of its Group to whom disclosure is strictly necessary to fulfil the Purpose (“Authorised Person”) and shall require that such Authorised Persons comply with the provisions contained in this Agreement.
3. Notwithstanding any of the other provisions hereof, neither Party shall be liable for release or disclosure of any Confidential Information that:-
3.1 is required by law or any governmental or other regulatory authority to be disclosed provided that any such disclosure is retricted to that which is strictly necessary. Any such disclosure shall be notified to Online Ventures Pty Ltd as soon as is practical and wherever possible in advance of any such disclosure being made;
3.2 is or becomes part of the public domain through no fault of the receiving party, its Group, employees, agents, contractors, professional advisers or authorised representatives;
3.3 is known to the receiving party prior to the disclosure by the disclosing party without an obligation to keep such Confidential Information confidential;
3.4 is subsequently obtained by the receiving party from a third party without breach of any obligation of confidentiality owed to any third party or Online Ventures Pty Ltd;
3.5 is independently developed by the receiving party or a company within the receiving party’s Group without any breach of this Agreement; or
3.6 is approved in writing for public release by the disclosing party.
4. The receiving party shall in relation to Confidential Information consisting of Personal Data supplied by the disclosing party to the receiving party:
4.1 take such technical and organisational security measures as are appropriate to ensure against unauthorised or unlawful processing of, and/or accidental loss or destruction of, or damage to, such Personal Data including all reasonable steps to ensure the reliability of any employees or agents who process or have access to such Personal Data; and
4.2 when processing Personal Data on behalf of the disclosing party, act only on and in accordance with instructions from the disclosing party; and
4.3 comply promptly with any request by the disclosing party (or any Court Order) to cease processing or to rectify, block or erase any such Personal Data; and
4.4 allow the disclosing party to take reasonable steps, to include the right for the disclosing party to audit (but only as far as is necessary) the receiving party’s books, records, policies, procedures and technical and organisational security measures on reasonable notice to the receiving party, to ensure that the receiving party complies with its obligations hereunder.
5. Each party shall use its reasonable endeavours to prevent the disclosure, to a party to whom disclosure of Confidential Information is not permitted, of the fact that they are in negotiation in respect of the Purpose.
6. Notwithstanding the termination for whatever reason of this Agreement the obligations of confidentiality shall, unless otherwise agreed in writing between the parties, continue for a period of seven (7) years in respect of Confidential Information disclosed pursuant to this Agreement from the date of disclosure of the Confidential Information.
7. All Confidential Information (and any copies thereof or any part or parts thereof) shall remain (or in the case of copies shall become upon the creation thereof) the property of the disclosing party.
8. This Agreement shall not operate as an assignment to the receiving party of any patents, copyrights, registered designs, unregistered designs, trade marks, tradenames or other rights of the disclosing party as may subsist in or be contained in or reproduced in the Confidential Information and neither Party shall, nor shall any persons on its behalf, apply for any patent in respect of the Confidential Information or any part thereof.
9. Each party acknowledges and agrees that Confidential Information directly or indirectly disclosed to it by the other party is the exclusive property of that other party. Therfore, each party acknowledges and agrees that it shall not acquire any right or interest in the Confidential Information disclosed to it by the other party which shall remain the sole owner of the Confidential Information including, but not limited to all patent, copyright, trademark, trade secret, trade name, contract, industrial design, and other property rights pertaining thereto, anywhere in the world.
10. Each party acknowledges and agrees that the disclosure of Confidential Information by the other does not constitute an offer by the Disclosing Party for the sale, license or other transfer of the Confidential Information.
11. Should one party or any of its employees, agents, suppliers or representatives conceive any invention, innovation, discovery, computer program, process, technique or the like, as a result of observing or having access to the Confidential Information of the other party, the Receiving Party agrees to assign or have assigned said innovation, discovery, computer program, technique or the like, to the Disclosing Party.
12. The disclosing party makes no representations or warranties as to the accuracy or completeness of the Confidential Information disclosed.
13. Nothing in this Agreement shall impose or be deemed to impose on either Party an obligation to disclose Confidential Information or to enter into any agreement or transaction and in particular shall not oblige either Party to enter into any agreement in relation to the Purpose.
14. Neither Party shall assign its rights or obligations under this Agreement.
15. The invalidity or unenforceability of any part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder.
16. Each Party agrees to keep the existence of and the contents of this Agreement confidential and shall not use this Agreement or the name of the other Party in any advertisement or publicity campaign or other disclosure without the prior written consent of the other Party.
17. The Parties agree that money damages would not be a sufficient remedy if another Party is in breach and the disclosing party will be entitled to seek any legal remedy including the remedies of injunction, specific performance or other comparable equitable relief to prevent any breach, or anticipated breach, by the receiving party. This right shall be in addition to the disclosing party’s other rights in law or in equity and nothing contained in this clause shall be construed as a waiver by either Party of any other rights including, without limitation, the right to damages.
18. This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter and replaces all previous agreements between, or understandings by, the Parties with respect to such subject matter. This Agreement cannot be varied except by written instrument signed on behalf of both of the Parties.
19. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
20. Upon termination of this Agreement or upon the request of either Party the receiving party shall return all the materials, data, documents, papers and any copies thereof (hereinafter called “Materials”) containing the Confidential Information or any part thereof received by it or supplied to it by the disclosing party or a member of the disclosing party’s Group or shall destroy the Materials containing the Confidential Information or any part thereof and shall give written confirmation that it has destroyed the Materials as mentioned in this Clause 17.
21. Any notice given under this agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by pre-paid recorded delivery or registered post or fax to the address and for the attention of the relevant party set out in herein (or as otherwise notified by that party hereunder). Any such notice shall be deemed to have been received:
21.1 if delivered personally, at the time of delivery;
21.2 in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting;
21.3 in the case of registered airmail, five days from the date of posting; and
21.4 in the case of fax, at the time of transmission.
Provided that if deemed receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9am on the next Business Day. For the purpose of this clause, "Business Day" means any day which is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent.
22. This Agreement including the consequences and termination hereof and any proceedings pursuant hereto shall be construed and governed by the laws of Australia and the Parties hereby irrevocably submit to the exclusive jurisdiction of the Australian Courts.