- The Disclosing Party possesses Confidential Information to which the Recipient wishes to have access for the Approved Purpose.
- The Disclosing Party has agreed to disclose Confidential Information to the Recipient on the terms and conditions set out in this Deed.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed unless the context otherwise requires:
- “Approved Purpose” means the evaluation by the Recipient of the Disclosing Party’s CLAYDATA Modules for the purpose of deciding whether to enter into a contract with CLAYDATA to be granted access to use them;
- “Business Day” means a day that is not a Saturday, Sunday or a public holiday in Sydney, New South Wales;
- “CLAYDATA Modules” means the cloud computing web-based applications known as CLAYDATA modules and includes all software, medical records, computer programming, object and source codes and network access for same;
- “Commencement Date” means the date of this Deed;
- “Confidential Information” means all information, whether in oral, visual or written form, of the Disclosing Party concerning:
- the CLAYDATA Modules;
- the operations and dealings of the Disclosing Party and its business;
- the organisation, financial information, customers, markets, suppliers, Intellectual Property and know-how of the Disclosing Party;
- formulae, techniques and processes used or developed by the Disclosing Party;
which is designated as confidential or by its nature is confidential but which does not include:
- information which is in or becomes part of the public domain other than through a breach of this Deed by the Recipient; or
- information which the Recipient acquires from a third party entitled to disclose it; and
- “Intellectual Property” means all present and future rights, title and interest conferred by statute, common law or equity in or in relation to copyright, trade marks, service marks, designs, inventions (including patents), circuit layouts, business and domain names, and Confidential Information, whether or not now existing and whether or not registered or registrable and includes:
- any right to apply for the registration of these rights;
- all renewals and extensions of these rights; and
- all ancillary rights or related rights such as Moral Rights.
- “Moral Rights” means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world.
2.1 Reference to:
- one gender includes the other;
- the singular includes the plural and the plural includes the singular;
- a person includes:
- an individual, firm, body corporate, partnership, joint venture, unincorporated body or association or any statutory or government body or agency; and
- a person’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
- a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- another grammatical form of a defined term or expression has a corresponding meaning;
- this Deed includes any annexure, exhibit or schedule to this Deed;
- a notice from, consent or approval of a party and agreement between the parties for the purposes of this Deed means a written notice, consent, approval or agreement;
- “including” and similar expressions are not words of limitation;
- “dollars” or “$” is to United States currency;
- an agreement, representation or warranty:
- in favour of two or more persons is for the benefit of them jointly and each of them individually; and
- by two or more persons binds them severally only;
- a period of time that is calculated from a given day or the day of an act or event, is to be calculated exclusive of that day ;
- time is a reference to Australian Eastern Standard Time unless specifically stated otherwise in writing; and
- a document (including this Deed) includes any novation, variation or replacement of it.
- No provision of this Deed will be construed adversely to a party on the ground, irrespective of whether or not it is the only ground, that the party was responsible for the preparation of this Deed or the inclusion of a specific provision in this Deed.
- Where an act must be done or period of time expires on a specified day and that day is not a Business Day, the act must be done instead on the next Business Day.
- Headings and underlining are for convenience only and do not affect interpretation.
3. VALUE AND OWNERSHIP
- The Recipient acknowledges that the Confidential Information has commercial value and is the property of the Disclosing Party.
- In consideration of the Disclosing Party disclosing Confidential Information to the Recipient, the Recipient agrees:
- to use the Confidential Information solely for the Approved Purpose;
- it must not profit from the use of the Confidential Information except in respect of the Approved Purpose;
- to keep confidential the fact that it is in discussions about the CLAYDATA Modules;
- to keep confidential all Confidential Information except:
- for disclosure permitted under clause 4.4; and
- to the extent (if any) it is required by law to disclose any Confidential Information and in any such event, the Recipient agrees to take all reasonable steps to oppose or prevent the disclosure and to limit, so far as is reasonably possible, the extent of that disclosure.
- On demand by the Disclosing Party, the Recipient must, unless otherwise specified in this Deed:
- continue to keep confidential all Confidential Information;
- cease to use the Confidential Information; and
- immediately at the option of the Disclosing Party, return the Confidential Information to the Disclosing Party, or destroy, and certify in writing to the Disclosing Party the destruction of, the Confidential Information.
- The Recipient may disclose Confidential Information only to officers, employees, partners or advisers of the Recipient who:
- have a need to know for the purposes of the business dealings envisaged in this Deed (and only to the extent that each has a need to know); and
- have been directed to and have agreed to keep confidential that Confidential Information on the terms contained in this Deed,
provided the written consent of the Disclosing Party has been obtained prior to any such disclosure.
- The Recipient must:
- ensure that each person or company to whom it discloses Confidential Information under clause 4.3 complies with its direction and honours its agreement to maintain confidentiality;
- notify the Disclosing Party of, and use reasonable commercial efforts to prevent or stop, a suspected or actual breach of a direction; and
- take reasonable steps to enforce the confidentiality obligations imposed by clause 4.1 including diligently prosecuting, at its own cost, any breach or threatened breach of those obligations by a person to whom the Recipient has disclosed the Confidential Information; and
- cooperate and provide the Disclosing Party with all reasonable assistance in any action which the Disclosing Party may take to protect the confidentiality of the Confidential Information.
- If it is required by law to disclose any Confidential Information to a third person (including, but not limited to, any government agency or regulatory body) the Recipient must:
- before doing so:
- notify the Disclosing Party; and
- give the Disclosing Party a reasonable opportunity to take any steps, at the Disclosing Party’s own cost, that the Disclosing Party considers necessary to protect the confidentiality of the Confidential Information; and
- notify the third person that the information is Confidential Information of the Disclosing Party.
- The Recipient acknowledges that it is fully responsible for any breaches of confidentiality by any person or persons to whom it has disclosed the Confidential Information.
- The Recipient must:
- establish and maintain effective security measures to safeguard Confidential Information from unauthorised access or use; and
- provide assistance reasonably requested by the Disclosing Party in relation to any proceedings that the Disclosing Party may take against any person for unauthorised use, copying or disclosure of Confidential Information.
- If the Recipient is uncertain as to whether any information it has received is Confidential Information, the information will be treated by the Recipient as if it is Confidential Information unless and until the Disclosing Party agrees in writing that the information is not to be treated as Confidential Information.
- The obligations of confidentiality set out in this Deed do not apply to Confidential Information:
- which the Recipient can prove with clear evidence was in its possession before it was disclosed to it;
- which is or becomes generally available to the public (other than as a result of any breach by the Recipient);
- which is received from another person provided that person was not in breach of confidence to the Disclosing Party;
- which is independently developed by the Recipient without use or reference to the Disclosing Party’s Confidential Information;
- which is disclosed with the prior written consent of the Disclosing Party.
- acknowledges that the Disclosing Party will suffer financial and other loss and damage if any provision of this Deed is breached and that monetary damages would not be a sufficient remedy;
- indemnifies the Disclosing Party against all claims, losses, damages, reasonable expenses and legal costs (on a solicitor and own client basis and whether incurred by or awarded against ) that may sustain or incur as a result, whether directly or indirectly, of any breach of this Deed by the Recipient; and
- acknowledges that in addition to any other remedy which may be available in law or equity the Disclosing Party is entitled to injunctive relief to prevent a breach of this Deed or to compel specific performance of this Deed.
The Recipient must not issue any information, publication, document or article for publication in any news or communications media or make any public statement in relation to this Deed without the prior consent of the Disclosing Party.
8. INTELLECTUAL PROPERTY
- The Recipient acknowledges and agrees that all Intellectual Property in and relating to the CLAYDATA Modules remains the property of the Disclosing Party, and that the Recipient acquires no right, title or interest in any Intellectual Property owned or licensed by the Disclosing Party, including without limitation the CLAYDATA Modules, by virtue of this Deed.
- All Recipient modifications, adaptations and improvements to the CLAYDATA Modules will vest in the Disclosing Party upon their creation.
- In the event that any Intellectual Property in the CLAYDATA Modules vests in the Recipient, its associated entities or their officers, employees, contractors or agents (“Recipient’s CLAYDATA IP”), the Recipient hereby assigns such Intellectual Property to the Disclosing Party for use by all means, in perpetuity, throughout the universe without restriction or limitation.
- The Recipient will do all things necessary to vest ownership of the Recipient’s CLAYDATA IP in the Disclosing Party, including the execution of documents by the Recipient and its officers, employees, contractors and agents.
- The Recipient must take all steps as the Disclosing Party reasonably requires to maintain the validity and enforceability of the Intellectual Property of the Disclosing Party.
- To the extent permitted by applicable law, the Recipient unconditionally and irrevocably waives and consents and will obtain all other necessary unconditional and irrevocable waivers and consents from its officers, employees, contractors and agents of all Moral Rights in the Recipient’s CLAYDATA IP and all modifications, adaptations and improvements to the Recipient’s CLAYDATA IP made by the Recipient and will not institute, maintain or support any claim or proceeding for infringement of these Moral Rights and will ensure that none of its officers, employees, contractors, agents or associated entities do so.
- The Recipient must not, and must procure that its associated entities do not, engage in any conduct which endangers the capacity of any Intellectual Property of the Disclosing Party to be protected by design, patent, trade mark or other registration, or threatens the validity of any such registration.
9. REVERSE ENGINEERING
- The Recipient shall not attempt to reverse compile, reverse assemble, or reverse engineer the CLAYDATA Modules or any of the Disclosing Party’s other software.
10. TRADE RESTRICTION
- Without limitation to the other provisions in this Deed, the Recipient covenants that for a period of one (1) year from the date of this Deed neither it, nor its associated entities or their officers, employees, contractors or agents, will participate in the exploitation or development of any application, product or service that is similar to, based on, or derived from the CLAYDATA Modules except as agreed with the Disclosing Party.
11. NO WARRANTY
- The Recipient acknowledges that the Disclosing Party makes no warranty as to the accuracy or completeness of the Confidential Information and accordingly, to the extent permitted by law, the Recipient releases the Disclosing Party from all liability for any loss or damage (whether foreseeable or not) suffered by any person acting on any Confidential Information whether the loss or damage arises in connection with any negligence, default, lack of care, misrepresentation or any other cause.
- No right under this Deed is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
- A waiver by one party under clause 12.1 does not prejudice its rights in respect of any subsequent breach of this Deed by the other party.
- The Recipient must not assign or otherwise transfer any or all of its rights arising out of this Deed without the prior written consent of the Disclosing Party, which consent the Disclosing Party may withhold in its absolute discretion.
- The Disclosing Party may by notice in writing to the Recipient assign or otherwise transfer any or all of its rights arising out of this Deed.
The signatories to this Deed hereby personally warrant that they have express and sufficient authority to execute this Deed on behalf of the party on whose behalf they have signed.
15. CONTINUING OBLIGATIONS
- The Recipient agrees that its obligations under this Deed survive any termination of the Deed and are ongoing.
- In the event clause 14.1 is read down for any reason the obligations under this Deed will remain in effect for ten (10) years from the date of its execution.
Any clause of this document which is illegal, void or unenforceable is only ineffective to the extent of that illegality, voidness or unenforceability, without invalidating the remaining clauses.
17. ENTIRE UNDERSTANDING
This Deed constitutes the entire understanding between the parties related to the protection of the Confidential Information and supersedes all prior and collateral communications, reports and understandings between the parties relating to Confidential Information.
18. RELATIONSHIP OF THE PARTIES
- Nothing in this Deed creates a partnership between the parties or appoints the Recipient as agent of the Disclosing Party for any purpose whatever.
- The Recipient has no authority or power to bind the Disclosing Party or to contract in the name of and create a liability against the Disclosing Party in any way or for any purpose.
- The parties are not partners or joint venturers.
Each party shall bear its own legal costs of and incidental to the preparation of this Deed or any agreement entered or document executed pursuant to or to give effect to the Deed.
This Deed may be executed in counterparts, in which event the Deed shall become effective upon exchange of counterparts. The counterparts may be exchanged by post, facsimile or email.
21. GOVERNING LAW AND JURISTICTION
This Deed is governed by, takes effect and will be construed in accordance with the laws of New South Wales, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in New South Wales and courts entitled to hear appeals therefrom.