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RECITALS

• The parties wish to explore the feasibility of one or more possible business initiatives, integrations and/or transactions.
• Each party may disclose to the other Confidential Information that the disclosing party desires the receiving party to treat as confidential.
• The parties enter into this Agreement to govern the use of any such Confidential Information disclosed.

OPERATIVE PARTS

In consideration of the mutual covenants and obligations set out in this Agreement, the parties agree as follows.

1. DEFINITIONS
   
   
   1. In this agreement, unless the context requires otherwise:
      
      
      Business Day a day is not a Saturday, Sunday, public holiday or bank holiday in Sydney, Australia.
      
      
      Confidential Information means:
      
      
      • oral communications, written documents or other information (including but not limited to drawings, concepts, models, methodologies, samples, photographs, data, reports, manuals, brochures, business plans, processes and operations, technology, systems, processes);
      • intellectual property of the Disclosing Party;
      • information treated by the Disclosing Party as confidential or which the Receiving Party ought reasonably to know is confidential (whether disclosed or discovered before or after this Agreement is executed);
      • the fact that Confidential Information may be or has been provided by the Disclosing Party to the Receiving Party;
      • the fact that the Receiving Party may be, or has been, participating in discussions and/or has withdrawn from discussions with Disclosing Party or the substance of any of those discussions;
      • those parts of notes and other records based on, derived from or containing, information referred to in this definition;
      • copies of information and those parts of notes and other records referred to in this definition; and
      • the terms of this Agreement (including the identity of the parties).
      Corporations Act means the Corporations Act 2001 (Cth).
      
      
      Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
      
      
      Permitted Purpose means the purpose specified in the Recitals to this Agreement.
      
      
      Related Body Corporate has the meaning given to that term in the Corporations Act.
      
      
      Representative means a party’s director, officer, employee, contractor or advisor.
      
      
   2. In this Agreement, expect the context requires otherwise:
      • the singular includes the plural and vice versa, and a gender includes other genders;
      • a reference to a clause, paragraph or annexure is to a clause or paragraph of, or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
      • a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
      • a reference to a party is to a party to this Agreement and includes its Related Bodies Corporate;
      • a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
      • a reference to 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;
      • a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
      • any agreement, representation, warranty or indemnity in favor of two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
      • a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
      • if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day; and
      • a reference to a document includes any computer program, circuit, circuit layout, drawing, specification, material, record and any other means by which confidential information may be stored or reproduced.
   
   
2. NON-DISCLOSURE
   
   
   1. Each party (Receiving Party) which receives Confidential Information of the other party (Disclosing Party) under this Agreement acknowledges that all Confidential Information provided to it or to which it is exposed is confidential to the Disclosing Party.
   2. The Receiving Party:
      • must treat all Confidential Information of the Disclosing Party as confidential and not make it public or disclose it to any other person without the prior written consent of the Disclosing Party, or otherwise as expressly permitted under this Agreement; and
      • must only use the Confidential Information for the Permitted Purpose.
   3. The Receiving Party must not:
      • reproduce, publicly display, publicly preform, distribute, or creative derivative works from any Confidential Information of the Disclosing Party; or
      • reverse engineer, disassemble or decompile any prototypes, software or other tangible works or objects that embody the Disclosing Party’s Confidential Information.
   4. The Receiving Party acknowledges and agrees that the Confidential Information is, by virtue of its special nature, valuable property of the Disclosing Party and that the Disclosing Party may suffer damage or loss by any use or disclosure of the Confidential Information in breach of this Agreement.
   
   
3. EXCEPTIONS
   
   
   1. The Receiving Party may disclose Confidential Information to its Representatives on a need to know basis who are governed by similar obligations of confidence.
   2. The obligations under clauses 2, 4 and 8 shall not apply to Confidential Information which (whether before or after execution of this Agreement):
      • was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party;
      • becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party or its Representatives;
      • is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the disclosure;
      • is received by the Receiving Party from a third party lawfully in possession of such information and without breach of such third party’s obligations of confidentiality; or
      • is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
   3. The Receiving Party may disclose Confidential Information if required to do so by a Government Agency or any law or court order, or the rules of any applicable securities exchange or any financial market, provided it is lawful and practical to do so, after first giving notice to the Disclosing Party and after taking all practicable steps to cooperate with the Disclosing Party to prevent the disclosure to the maximum extent permitted by law.
   
   
4. SECURITY AND CONTROL
   
   
   1. The Receiving Party must at its own expense:
      • keep Confidential Information secret;
      • establish and maintain effective security measures not less than those it uses to maintain the security of its own confidential information, to safeguard the Confidential Information from unauthorised access or use;
      • keep the Confidential Information under its control; and
      • where applicable, comply with any data room rules, due diligence rules or protocol established by the Disclosing Party which sets out the rules and procedures under which the Receiving Party will be given access to documents and to the extent that there is any inconsistency between this Agreement and any data room rules, due diligence rules or procedures, the Receiving Party must comply with the more onerous obligations.
   2. The Receiving Party must at its own expense:
      • immediately give the Disclosing Party notice of any suspected or actual unauthorised use, storage, copying, release or disclosure of Confidential Information;
      • immediately take steps to prevent or stop the unauthorised use, storage, copying or disclosure of Confidential Information;
      • comply with the Disclosing Party’s directions in relation to the unauthorised use, storage, copying, release or disclosure of Confidential Information; and
      • give any assistance reasonably requested by the Disclosing Party in relation to any proceedings the Disclosing Party may take against any person for unauthorised use, storage, copying or disclosure of the Confidential Information.
   3. The Receiving Party must:
      • immediately give the Disclosing Party notice of any suspected or actual breach of this Agreement; and
      • immediately take all steps necessary to prevent or stop the breach.
   4. The Receiving Party acknowledges that the Disclosing Party will suffer damage because of a breach of this Agreement or confidentiality obligation under this Agreement or any Confidentiality Undertaking for the following reasons:
      • the Confidential Information is secret and highly confidential to the Disclosing Party;
      • the Confidential Information is the exclusive property of the Disclosing Party and this Agreement does not convey any proprietary or other interest in the Confidential Information to the Receiving Party or any specified person;
      • disclosure of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to the Disclosing Party.
   5. Nothing in this Agreement obliges the Disclosing Party to disclose any particular information to the Receiving Party and the Disclosing Party is free and entitled to disclose or make available Confidential Information on such terms and conditions as the Disclosing Party in its absolute discretion sees fit.
   6. The Receiving Party acknowledges that damages may not be an adequate remedy and that the Disclosing Party may seek specific performance or injunctive relief in addition to any other remedies available at law or in equity if there is a suspected or actual breach of this Agreement or obligation of confidentiality under this Agreement.
   
   
5. INTELLECTUAL PROPERTY RIGHTS
   
   
   This Agreement does not transfer any interest in pre-existing intellectual property rights (including patents, copyright, rights in circuit layouts, registered designs, trademarks, business names, moral rights, know-how, any right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights).
   
   
6. ACCURACY AND COMPLETENESS
   
   
   1. Neither the Disclosing Party nor any of its Representatives makes (now or at any time any Confidential Information is given to the Receiving Party) any representation or warranty:
      • as to the accuracy of completeness of the Confidential Information;
      • that the Confidential Information has been audited, verified or prepared with reasonable care; or
      • that the Confidential Information is the totality of the information that the Receiving Party may require for any purpose.
   2. Neither the Disclosing Party nor any of its Representatives:
      • accepts any responsibility for any interpretation, opinion or conclusion that the Receiving Party or a specified person may form as a result of examining the Confidential Information;
      • accepts any responsibility to inform the Receiving Party of any matter arising or coming to the Disclosing Party’s notice that may affect or qualify and Confidential Information that the Disclosing Party provides to the Receiving Party; or
      • is liable, and the Receiving Party covenants not to make any claim or commence or pursue any proceedings against any of them, for any loss of any kind arising from an error, inaccuracy, incompleteness or similar defect in the Confidential Information or any default, negligence or lack of care in relation to the preparation of provision of the Confidential Information (unless liability cannot by law be excluded).
   3. The Receiving Party acknowledges that it is making an independent assessment of the Confidential Information and that:
      • it will carry out, and rely solely on, its own investigation and analysis in relation to the confidential information;
      • it will verify all information on which it intends to rely to its own satisfaction;
      • any opinions expressed in the Confidential Information are based on the knowledge and approach of the persons forming the opinion at the date that the opinion was formed and may have ceased or may in the future cease to be appropriate in the light of subsequent knowledge or attitudes;
      • no representation is made that there is a reasonable basis for projections, forecasts or other forward looking statements in the Confidential Information or that such statements reflect what will or is likely to occur in the future, and the Receiving Party will not rely on any such projections, forecasts or forward looking information; and
      • any reliance by the Receiving Party on any confidential information, or any use of any Confidential Information, is solely at its own risk.


7. NO OBLIGATION
   
   
   Neither party is obligated by this Agreement to disclose any information to the other and each party reserves the right, in its sole discretion, to terminate discussions between them.
   
   
8. RETURN OF CONFIDENTIAL INFORMATION
   
   
   1. All Confidential Information (including copies) remains the property of the Disclosing Party and must be returned to the extent practicable (or, upon the Disclosing Party’s written request, destroyed) upon written request.
   2. The obligations in this clause will not apply to the extent that Confidential Information:
      • is contained in internal credit or management documents;
      • must be retained to comply with law or requirements of a Government Agency; or
      • must be retained by a professional adviser in order to comply with either applicable professional standards or indemnity insurance requirements.


9. TERM
   
   
   This Agreement survives:
   • for 3 years from the date of execution by both parties; or
   • while the parties are exploring the Permitted Purpose,
   whichever is longer.
   
   
10. RELATIONSHIP OF PARTIES
    
    
    1. Neither this agreement nor any discussions or disclosures hereunder shall be deemed a commitment to any business relationship, contract, or future dealing with the other party.
    2. This Agreement does not represent, and in no way implies, a partnership, joint venture, employment, or other commercial relationship between the parties, an authorisation for either party to act as the agent or representative of the other, or an encouragement to either party to expend funds or other resources in the development of products or services.
    
    
11. EXECUTION
    
    
    1. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
    2. Each party represents and warrants that is had full power and authority to execute this Agreement and that all necessary corporate or other action has been taken in order to enable its Representatives to execute and deliver this Agreement.
    3. The transmission by a party by email, fax or other electronic means of an executed copy of this Agreement will be deemed proof of signature of the original for the purposes of constituting a binding agreement between the parties, and the signed copy so transmitted will be deemed the original for the purposes of this Agreement
    
    
12. ASSIGNMENT AND VARIATION
    
    
    1. Neither party may assign, charge or deal with any of its rights and obligations under this Agreement or attempt or purport to do so, without the prior written consent of the other party. Any attempted assignment in violation of this is void.
    2. This Agreement may not be varied, amended or modified unless in writing and signed by both parties.
    
    
13. GOVERNING LAW AND JURISDICTION
    
    
    This Agreement shall be governed by the laws of the New South Wales, Australia. Each party irrevocably submits to the nonexclusive jurisdiction of the courts of New South Wales, Australia.