NON-DISCLOSURE AGREEMENT
This agreement is made on 1st July 2023
between
Microproperty AUSTRALIA (ACN 671 177 629)
5/14 French Avenue. Bankstown NSW 2200
and
(ACN )
[Insert Address]
BACKGROUND
Microproperty AUSTRALIA and [Second Party] wish to embark on the Specified Purpose. Each party possesses certain confidential information which it may be necessary to disclose to the other party for the Specified Purpose. The parties have agreed to disclose some of their respective confidential information to each other on the terms and conditions of this agreement.
OPERATIVE PROVISIONS
Definitions
In this agreement:
- Confidential Information in respect of a Party means Microproperty AUSTRALIA’s Confidential Information or [Second Party]’s Confidential Information (as the case may be).
- Microproperty AUSTRALIA’s Confidential Information means all trade secrets, ideas, know-how, concepts, and information whether in writing or otherwise relating to the matters set out in item 1 of schedule 1, and all other information relating to Microproperty AUSTRALIA and its affairs or businesses, sales, marketing, or promotional information, which is not in the public domain and includes any such information in Microproperty AUSTRALIA’s power, possession, or control concerning or belonging to any other person.
- [Second Party]’s Confidential Information means all trade secrets, ideas, know-how, concepts, and information whether in writing or otherwise relating to the matters described in item 2 of schedule 1, and all other information relating to [Second Party] and its affairs or businesses, sales, marketing, or promotional information, which is not in the public domain and includes any such information in [Second Party]’s power, possession, or control concerning or belonging to any other person.
- Ineffective means void, illegal, or unenforceable.
- Parties means Microproperty AUSTRALIA and [Second Party], and Party means, as the context requires, one of them.
- Specified Purpose means the purpose set out in item 3 of schedule 1.
Access
The Parties acknowledge that each Party may be given access to certain Confidential Information of the other Party for the Specified Purpose.
Obligation of Confidentiality
In consideration of:
- being given access to Confidential Information of the other Party; and
- the mutual promises contained in this agreement,
each of the Parties agrees that it will keep and will ensure that its employees keep confidential the Confidential Information of the other Party unless and until the other Party agrees that the Confidential Information is in the public domain other than by a breach of this agreement.
Duties of Parties
4.1. Non-disclosure and Use
Each Party will not and will ensure that its employees do not:
- disclose any of the Confidential Information of the other Party to any other person without the prior written consent of the other party; or
- use any of the Confidential Information of the other Party otherwise than for the Specified Purpose.
4.2. Uncertainty
If either Party is uncertain as to whether any information is Confidential Information of the other Party, that Party will treat the information as if it were Confidential Information of the other Party and as not being in the public domain unless and until the other Party agrees in writing that the information is in the public domain.
4.3. Precautions
If either Party is uncertain as to whether any information is Confidential Information of the other Party, that Party will treat the information as if it were Confidential Information of the other Party and as not being in the public domain unless and until the other Party agrees in writing that the information is in the public domain.
4.4. Unauthorised Disclosure or Use
Each Party will immediately notify the other Party of any unauthorised disclosure or use of the Confidential Information of the other Party of which that Party becomes aware and will take all steps which the other Party may reasonably require in relation to such unauthorised disclosure or use.
4.5. Return of Confidential Information
At the conclusion of the Specified Purpose or upon the written request of the other Party, at its own expense, each Party will immediately deliver to the other Party all records and materials (and copies of those records and materials) containing or embodying the Confidential Information of the other Party in the possession of that Party, its employees, and any person to whom that Party has disclosed all or any of the Confidential Information of the other Party (whether or not with the consent of the other Party).
Exceptions
Neither Party will be bound to keep confidential any information if and to the extent that:
- the information is, or becomes part of the public domain otherwise than by breach of this agreement by that Party;
- the information is lawfully obtained by that Party from another person without any restriction as to use and disclosure;
- the information was in that Party’s possession prior to disclosure to it by the other Party;
- the information is required to be disclosed by the operation of any law, stock exchange, judicial or parliamentary body or governmental agency;
- the other Party has authorized in writing the disclosure of the information; or
- the information is disclosed by the other Party to the other Party’s professional advisers who have agreed to keep confidential the Confidential Information.
Remedy
Each Party acknowledges and accepts that:
- the other Party would suffer financial and other loss and damage if the Confidential Information of the other Party were disclosed to any other person or used for any purpose other than the Specified Purpose and that monetary damages would be an insufficient remedy;
- in addition to any other remedy which may be available in law or equity, the other Party is entitled to injunctive relief to prevent a breach of this agreement and to compel specific performance of this agreement; and
- it will immediately reimburse the other Party for all costs and expenses (including legal costs and disbursements on a full indemnity basis) incurred in enforcing the obligations of that Party under this agreement.
Indemnity
7.1. Indemnity for Costs
Each Party indemnifies the other Party against all costs, expenses, actions, or claims directly or indirectly incurred or suffered by the other Party as a result of any breach of this agreement by that Party.
7.2. Scope of Indemnity
The indemnity in clause 7.1 extends to and includes all costs, damages, and expenses incurred by the other Party in defending or settling any such costs, expenses, actions, suits, proceedings, claims, or demands (including legal costs and disbursements on a full indemnity basis).
Cumulative Rights
The rights arising out of this agreement do not exclude any other rights of either Party.
Enforceability
9.1. Effect of Ineffectiveness on Part of the Agreement
Any clause or part of a clause of this agreement which is ineffective in any jurisdiction is ineffective only to that extent in that jurisdiction.
9.2. Severance of Ineffective Parts of the Agreement
Where any clause or part of a clause is ineffective, it may be severed without affecting any other part of this agreement.
Waiver
10.1. No Waiver Except by Notice in Writing
No right under this agreement is waived or deemed to be waived except by notice in writing signed by the Party
