CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (“the Agreement”) dated this _ day of
, __
BETWEEN:
BACKGROUND:
DC Smoke of 8/62 Bishop St, Kelvin Grove QLD 4059, Australia
(the “Information Provider”)
AND
Agency name of Agency address
(the “Recipient”)
- The Information Provider and the Recipient desire to enter into a confidentiality agreement
with regard to: Due diligence of data to transfer (the “Confidential Information”). - In connection with the Permitted Purpose, the Recipient will receive certain confidential
information (the ‘Confidential Information’).
IN CONSIDERATION OF and as a condition of the Information Provider providing the Confidential
Information to the Recipient in addition to other valuable consideration, the receipt and sufficiency
of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:
Confidential Information - All written and oral information and materials disclosed or provided by the Information
Provider to the Recipient under this Agreement constitute Confidential Information
regardless of whether such information was provided before or after the date of this
Agreement or how it was provided to the Recipient. - ‘Confidential Information’ means all data and information relating to the Information
Provider, including but not limited to, the following:
a. ‘Business Operations’ which included internal personnel and financial information
of the Information Provider, vendor names and other vendor information (including
vendor characteristics, services and agreements), purchasing and internal cost
information, internal services and operation manuals, external business contacts
including those store on social media accounts or other similar platforms or
databases operated by the Information Provider, and the manner and methods of
conducting the Information Provider’s business;
b. ‘Customer Information’ which includes name of customers of the Information
Provider, their representatives, all customer contact information, contracts and their
contents and parties, customer services, data provided by customers and the type,
quantity and specifications of products and services purchased, leased, licenses or
received by customers of the Information Provider;
c. ‘Intellectual Property’ which includes information relating to the Information
Providers’ proprietary rights prior to any public disclosure of such information,
including but not limited to the nature of the proprietary rights, production data,
technical and engineering data, technical concepts, test data and test results,
stimulation results, the status and details of research and development of products
and services, and information regarding acquiring, protecting, enforcing and
licensing proprietary rights (including patents, copyrights and trade secrets);
d. ‘Service Information’ which includes all data and information relating to the services
provided by the Information Provider, including but no limited to, plans, schedules,
manpower, inspection, and training information;
e. ‘Product Information’ which includes all specifications for products of the
Information Provider as well as work product resulting from or related to work or
projects of the Information Provider, of any type of form in any stage of actual or
anticipated research and development;
f.
Production Processes’ which includes processes used in the creation, production
and manufacturing of the work product of the Information Provider, including but
no limited to, formulas, patterns, moulds, models, methods, techniques,
specifications, processes, procedures, equipment, devices, programs and designs;
g. ‘Accounting Information’ which includes, without limitation, all financial statements,
annual reports, balance sheets, company asset information, company liability
information, revenue and expense reporting, profit and loss reporting, cash flow
reporting, accounts receivable, accounts payable inventory reporting, purchasing
information and payroll information of the Information
Provider;
h. ‘Marketing and Development Information’ which includes marketing and
development plans of the Information Provider, price and cost data, price and fee
amounts, pricing and billing policies, quoting procedure, marketing techniques
and methods of obtaining business , forecasts and forecast assumptions and
volumes, and future plans and potential strategies of the Information Provider
which have been or are being discussed;
i.
‘Computer Technology’ which includes all scientific and technical information or
material of the Information Provider, pertaining to any machine, appliance or
process, including but not limited to, specifications, proposals, models, designs,
formulas, test results and reports, analyses, simulation results, tables of operating
conditions, materials, components, industrial skills, operating and testing
procedures, shop practices, know-how and show-how;
j.
‘Proprietary Computer Code’ which includes all sets of statements, instructions or
programs of the Information Provider, whether in human readable or machine
readable form, that expressed, fixed, embodied or store in any manner and that
can be used directly or indirectly in a computer (‘Computer Programs’); any report
format, design or drawing created or produced by such Computer Programs: and
all documentation, design specifications and charts, and operating procedures
which support the Computer Programs; and
k. Confidential Information will also include any information that has been disclosed
by a third party to the Information Provider and is protected by a non-disclosure
agreement entered into between the third party and the Information Provider; - Confidential Information will no include the following information:
a. Information that is generally known in the industry of the Information Provider;
b. Information that is now or subsequently becomes generally available to the public
through no wrongful act of the Recipient;
c. Information rightly in the possession of the Recipient prior to receiving the
Confidential Information from the Information Provider, the burden being on the
Recipient to establish this through documentation;
d. Information that is independently created by the Recipient without direct or indirect
use of the Confidential Information, the burden being on the Recipient to establish
this through documentation; or
e. Information that the Recipient rightfully obtains from a third party who has the right
to transfer or disclose it, the burden being on the Recipient to establish this
through documentation.
Confidential Obligations - Except as otherwise provided in the Agreement, the Recipient must keep the Confidential
Information confidential. - Except as otherwise provide in this Agreement, the Confidential Information will remain the
exclusive property of the Information Provider and will only be used by the Recipient for the
Permitted Purpose. The Recipient will not use the Confidential Information for any purpose
that might be directly or indirectly detrimental to the Information Provider or any associated
affiliates or subsidiaries. - The obligations to ensure and protect the confidentiality of the Confidential Information
imposed on the Recipient in this Agreement and obligations to provide notice under this
Agreement will survive the expiration or termination, as the case may be, of this Agreement
and those obligations will last indefinitely. - The Recipient may disclose any of the Confidential Information:
a. To such employees, agents, representatives and advisors of the Recipient that have
a need to know for the Permitted Purpose provided that:
I.
II.
III.
the Recipient has informed such personnel of the confidential nature of the
Confidential Information;
such personnel agree to be legally bound to the same burdens of
confidentiality and non-use as the Recipient;
the Recipient agrees to take all necessary steps to ensure that the terms of this
Agreement are not violated by such personnel; and
IV.
the Recipient agrees to be responsible for and indemnify the Information
Provider for any breach of this Agreement by their personnel.
b. To a third party where the Information Provider has consented in writing to such
disclosure; and
c. To the extent required by law. - The Recipient agrees to retain all Confidential Information at their usual place of business
and to store all Confidential Information separate from other information and documents
held in the same location. Further, the Confidential Information may not be used,
reproduced, transformed, or store on a computer or device that is accessible to persons to
whom disclosure may not be made, as set out in this Agreement.
Ownership and Title - Nothing contained in this Agreement will grant to or create in the Recipient, either
expressly or impliedly, any right, title, interest or license in or to the intellectual property of
the information Provider.
Remedies - The Recipient agrees and acknowledges that the Confidential Information is of a
proprietary and confidential nature and that any failure to maintain the confidentiality of the
Confidential Information in breach of this Agreement cannot be reasonably or adequately
compensated for in money damages and would cause irreparable injury to the Information
Provider. Accordingly, the Recipient agrees that the Information Provider is entitled to, in
addition to all other rights and remedies available to it at law or in equity, an injunction
restraining the Recipient and any agents of the Recipient, from directly or indirectly
committing or engaging in any act restricted by this Agreement in relation to the
Confidential Information.
Return of confidential Information - The information Provider may at any time request the return of all Confidential Information
from the Recipient. Upon the request of the Information Provider, or in the event that the
Recipient ceases to require use of the Confidential Information, or upon the expiration or
termination of the Agreement, the Recipient will:
a. Return all Confidential Information to the Information Provider
b. Provide a certificate to the Information Provider to the effect that the Recipient has
returned all Confidential Information to the Information Provider.
Notices - In the event that Recipient is require in a civil, criminal or regulatory proceeding to disclose
any part of the Confidential Information, the Recipient will give ot the Information Provider
prompt written notice of such request to the Information Provider may seek an appropriate
remedy or alternatively to waive the Recipient’s compliance with the provisions of this
Agreement in regard to the request. - If the Recipient loses or fails to maintain the confidentiality of any Confidential Information
in breach of this Agreement, the Recipient will immediately notify the Information Provider
and take all reasonable steps necessary to retrieve the lost or improperly disclosed
Confidential Information. - Any notices or delivery require in this Agreement will be deemed completed when hand
delivered, delivered by agent, or seven days after being placed in the post, postage
prepaid, to the parties at the addresses contained in this Agreement or as the parties may
later designate in writing. - The addresses for any notice to be delivered to any of the parties of this Agreement are as
follows:
a. Name: DC Smoke
Address: 8/62 Bishop St, Kelvin Grove QLD 4059
b. Name
Address
Representations - In Providing the Confidential Information, the Information Provider makes no
representations, either express or implied as to its adequacy, sufficiency, completeness,
correctness, or its lack of defect of any kind, including any patent or trademark
infringement that may result from the use of such information. The Information Provider will
not be liable for any damage or loss that may occur from such provision or use of the
Confidential Information.
Termination - Either party may terminate this Agreement by providing written notice to the other party.
Except as otherwise provided in this Agreement, all rights and obligations under this
Agreement will terminate at that time.
Assignment - Except where a party has changed its corporate name or merged with another corporation,
this Agreement may not be assigned or otherwise transferred by either party in whole or
part without the prior written consent of the other party to this Agreement.
Amendments - This agreement may only be amended or modified by a written instrument executed by
both he Information Provider and the Recipient.
Governing Law - This Agreement will be construed in accordance with and governed by the laws of the State of
Queensland.
General Provisions - Tim is of the essence in the Agreement.
- This Agreement may be executed in counterpart.
- Heading are inserted for the convenience of the parties only and are not to be considered
when interpreting this Agreement. Words in the singular mean and include the plural and
vice versa. Words in the masculine mean and include the feminine and vice versa. - the clauses, paragraphs, and sub paragraphs contained in this Agreement are intended to
be read and construed independently of each other. If any part of this Agreement is held to
be invalid, this invalidity will not affect the operations of any part of this Agreement. - The Recipient is liable for all costs, expenses and expenditures including, and without
limitation, the complete legal costs incurred by the Information Provider in enforcing this
Agreement as a result of any default of this Agreement by the Recipient. - The Information Provider and the Recipient acknowledge that this Agreement is
reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any
of the provision of the Agreement to be too broad to be enforceable, it is the intention of
the Information Provider and the Recipient that such provision be reduced in scope by the
court only to the extent deemed necessary by that court to render the provision reasonable
and enforceable, bearing in mind that it is the intention of the Recipient to give the
Information Provider the broadest possible protection to maintain the confidentiality of the
Confidential Information. - No failure or delay by the Information Provider in exercising any power, right or privilege
provided in this Agreement will operate as a waiver, nor will any single or partial exercise of
such rights, powers or privileges preclude an further exercise of them or the exercise of any
other right, power or privilege provided in this Agreement. - This Agreement will inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns, as the case may be, of the Information
Provider and the Recipient. - This Agreement constitutes the entire agreement between the parties and there are no
further items or provisions, either oral or otherwise.
IN WITNESS WHEREOF DC Smoke and [Agency Name] have duly affixed their signatures under
hand and seal on this _____ day of ___, _ DC Smoke Per: __________________
(Seal)
Agency name