NON-DISCLOSURE AGREEMENT (MUTUAL)
This agreement is made on 1st July 2023
between
PAYROLL AUSTRALIA (ACN 162535775) of 100 Barangaroo Avenue, Bankstown, New
South Wales, 2200
and
(ACN ) of
BACKGROUND
(A)
PAYROLL AUSTRALIA and 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.
(B)
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
1.
Definitions
In this agreement:
Confidential Information in respect of a Party means PAYROLL AUSTRALIA’s Confidential Information or ‘s Confidential Information (as the case may be).
PAYROLL AUSTRALIA’s Confidential Information means all trade secrets, ideas, know-
how, concepts and information whether in writing or otherwise relating in any way to the matters set out in item 1 of schedule 1, and all other information relating to PAYROLL
AUSTRALIA and its affairs or businesses, sales, marketing or promotional information, which
is not in the public domain and includes any such information in PAYROLL AUSTRALIA’s power, possession or control concerning or belonging to any other person.
’s Confidential Information means all trade secrets, ideas, know-how, concepts and
information whether in writing or otherwise relating in any way to the matters described in item 2 of schedule 1, and all other information relating to and its affairs or businesses,
sales, marketing or promotional information, which is not in the public domain and
includes any such information in ’s power, possession or control concerning or belonging
to any other person.
Ineffective means void, illegal or unenforceable.
Parties means PAYROLL AUSTRALIA and , and Party means, as the context requires, one of them.
Specified Purpose means the purpose set out in item 3 of schedule 1.
2.
Access
The Parties acknowledge that each Party may be given access to certain
Confidential Information of the other Party, for the Specified Purpose.
3.
Obligation of confidentiality
In consideration of:
(a) being given access to Confidential Information of the other Party; and
(b) 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.
4.
Duties of Parties
4.1. Non-disclosure and use
Each Party will not and will ensure that its employees do not:
(a)
disclose any of the Confidential Information of the other Party to any
other person without the prior written consent of the other party; or
(b)
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
Each Party will take all reasonable precautions to maintain the confidentiality
of and to prevent the disclosure or use of the Confidential Information of the
other Party.
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).
5.
Exceptions
Neither Party will be bound to keep confidential any information if and to the extent that:
(a)
the information is, or becomes part of the public domain otherwise than by
breach of this agreement by that Party;
(b)
the information is lawfully obtained by that Party from another person without
any restriction as to use and disclosure;
(c)
the information was in that Party’s possession prior to disclosure to it by the other Party;
(d)
the information is required to be disclosed by the operation of any law,
stock exchange, judicial or parliamentary body or governmental agency;
(e)
the other Party has authorised in writing the disclosure of the information; or
(f)
the information is disclosed by the other Party to the other Party’s professional advisers who have agreed to keep confidential the Confidential Information.
6.
Remedy
Each Party acknowledges and accepts that:
(a)
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;
(b)
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
(c)
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.
7.
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).
8.
Cumulative rights
The rights arising out of this agreement do not exclude any other rights of either Party.
9.
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.
10.
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 waiving the right.
10.2. No waiver of subsequent breaches
A waiver by one Party under clause 10.1 does not prejudice its rights in respect of any subsequent breach of this agreement by the other Party.
10.3. No waiver by extension or delay
The failure to exercise, or any delay in exercising, any right, power or remedy by
a Party does not operate as a waiver or an election to abandon the right to
exercise any right, power or remedy.
11.
Execution
(a)
Subject to paragraph 11(b), each Party, and their respective successors and
assigns, will be authorised to rely upon the signatures of all the Parties on
this agreement (or any amendment) which are:
(i)
delivered by facsimile machine; or
(ii)
transmitted electronically in either:
(A)
a tagged image format file (TIFF); or
(B)
portable document format (PDF),
as constituting a duly authorised, irrevocable, actual, current delivery of this
agreement (or any amendment) with original ink signatures of each person
and entity.
(b)
Each Party that delivers or transmits an executed counterpart pursuant to
paragraph 11(a) (Counterpart) to another Party, agrees that it will deliver an
executed original copy of the agreement (or any amendment) to the
Party(s) receiving the Counterpart within 10 business days after the delivery
of the Counterpart.
(c)
Any noncompliance with paragraph 11(b) will not affect the validity,
enforceability or binding effect of this agreement.
12.
Governing law and jurisdiction
12.1. Governing law
This agreement is governed by the laws of the place set out in item 4 of
schedule 1.
12.2. Jurisdiction
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the place set out in item 4 of schedule 1.
13.
Variation
A variation of this agreement will be in writing and signed by the Parties.