1.1This agreement is between and (each a ‘Party’, and together the ‘Parties’).
1.2Its terms apply to both Parties equally: each may give, and each may receive, confidential information.
2.1The Parties intend to discuss (the ‘Purpose’). In those discussions each of them may give the other confidential information.
3.1‘Confidential Information’ means any information, in whatever form it is given — orally, in writing, electronically or otherwise — that one Party (the ‘Discloser’), or a person acting for it, gives the other Party (the ‘Recipient’) in connection with the Purpose, if it is marked as confidential or a reasonable person in the Recipient’s position would understand it to be confidential.
3.2Confidential Information includes information given in connection with the Purpose before this agreement was signed, and the fact that the Parties are in discussions and what the discussions concern.
4.1The duties in clause 5 do not apply to information that the Recipient can show (a) is or becomes generally available to the public, other than through a breach of this agreement; (b) was in its possession, free of any duty of confidence, before the Discloser gave it; (c) came to it lawfully from a third party who was free to pass it on; or (d) was developed by it independently, without use of the Discloser’s information.
5.1The Recipient must keep the Discloser’s Confidential Information confidential and use it only for the Purpose. It must not disclose it to anyone, except as clauses 5.2 and 6 permit.
5.2The Recipient may share Confidential Information with those of its directors, officers, employees, contractors and professional advisers who need it for the Purpose, if each of them is bound to keep it confidential on terms at least as protective as these. The Recipient is responsible for their use and disclosure of it as if they were its own.
5.3The Recipient must take at least reasonable care to protect Confidential Information, and must notify the Discloser in writing without delay if it becomes aware of any use or disclosure of it in breach of this agreement.
6.1The Recipient may disclose Confidential Information to the extent that a law, a court or tribunal, or the rules of a securities exchange on which it is listed require it to. If the law permits, it must first notify the Discloser.
6.2Nothing in this agreement prevents or restricts anyone from (a) reporting a suspected offence to the police or another law enforcement agency, or assisting an investigation; (b) reporting a matter to a regulator, or assisting one; (c) making a disclosure that qualifies for protection under Part 9.4AAA of the Corporations Act 2001 (Cth), which protects whistleblowers; (d) telling a lawyer, in confidence, about this agreement or any matter it concerns, to obtain legal advice; or (e) making any other disclosure that the law does not allow an agreement to prevent.
7.1This agreement takes effect on the date on which the last of the Parties signs it, and the duties in clause 5 last for from that date (the ‘Confidentiality Period’).
7.2No duty in clause 5 binds information at any time when it is generally available to the public, unless that is the result of a breach of this agreement. The end of the Confidentiality Period does not affect any right or remedy for an earlier breach.
7.3The end of the Confidentiality Period is not consent to any use or disclosure of information that is still confidential, and does not release any duty of confidence that exists apart from this agreement. Clause 8 and clauses 10 to 13 continue to apply after it ends.
8.1If the Discloser asks in writing, the Recipient must without delay return or destroy the Discloser’s Confidential Information, including copies and notes, and then confirm in writing that it has done so.
8.2The Recipient may keep anything the law requires it to keep, and copies in automatic back-ups that cannot reasonably be deleted. Whatever it keeps remains Confidential Information under clause 5.
9.1Each Party keeps all its rights in its own Confidential Information. Nothing in this agreement gives the Recipient a licence of it, or of any patent, trade mark, design, copyright or other intellectual property.
9.2This agreement does not oblige either Party to disclose particular information or to make any further agreement, and either Party may end the discussions at any time.
9.3The Discloser does not promise that its Confidential Information is accurate or complete, unless the Parties agree otherwise in writing.
9.4This agreement does not prevent either Party from competing with the other, provided it does not use or disclose the other’s Confidential Information.