A. The Parties wish to discuss potential business opportunities and/or collaboration under which each may disclose its Confidential Information to the other (Permitted Purpose).
B. The Parties agree to disclose Confidential Information in accordance with the terms and conditions set out in this Agreement.
The Parties agree:
In this Agreement the following definitions shall apply:
The Receiving Party agrees during the term of this Agreement to:
use all Confidential Information of the Disclosing Party solely for the Permitted Purpose;
hold all of the Confidential Information of the Disclosing Party in strict confidence;
not copy or reproduce the Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party.
This Agreement and the Parties’ obligation of confidentiality shall expire on the earlier of:
the date that is one year after the Effective Date; or
until such time as it is superseded by another agreement between the Parties.
The Parties further agree not to use the Confidential Information disclosed by the Disclosing Party for its own use or for any purpose other than to carry out discussions concerning the undertaking of any business relationship between the Parties.
The Receiving Party will not disclose such Confidential Information to anyone, including to their employees, unless required to carry out the contemplated business partnership.
Each party has had or will have employees or third parties to whom Confidential Information is disclosed sign a Non-disclosure or Confidentiality Agreement substantially similar to this Agreement, and will produce copies or records of the document when requested to do so by the other party.
Each party agrees that it will take all reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of unauthorized persons.
Each party also agrees to notify the other immediately in writing of any misuse or misappropriation of Confidential Information of the other party that may come to its attention.
All Confidential Information shall remain the exclusive property of the Disclosing Party, and the Receiving Party shall have no right to use the Confidential Information except as provided herein. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties and in carrying out such relationship. The Disclosing Party warrants that it has the right to disclose its Confidential Information to the Receiving Party. Otherwise, all information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.
Any materials or documents that have been furnished by one party to the other will be promptly returned upon a written request by the Disclosing Party. The Receiving Party is obliged to return to the Disclosing Party all Confidential Information, including all such documents or media containing any Confidential Information of the Disclosing Party and any and all copies or extracts thereof. The Receiving Party shall at the request of the Disclosing Party provide a certificate or letter stating or confirming that all of the Confidential Information, in whatever form, has been returned or destroyed by the Receiving Party pursuant to the terms of this Agreement.
The Receiving Party acknowledges and agrees that due to the unique nature of the Confidential Information of the Disclosing Party, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party, and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to (a) specific performance and other injunctive relief without the necessity of posting a bond, in addition to whatever remedies it might have at law, and (b) be indemnified by the Receiving Party from any loss or harm, including, without limitation, solicitor’s fees on a solicitor and client cost basis or full indemnity basis, in connection with any breach or enforcement of the Receiving Party’s obligations hereunder or the unauthorised use or release of any such Confidential Information of the Disclosing Party. The Receiving Party shall notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorised release or other breach of which it is aware.
The Parties may directly involve one or more of their Affiliated or Associated Companies in the discussions under this Agreement, which have agreed to be bound by the confidentiality and non-use provisions of this Agreement, and which shall be considered a “Party” for the purposes of this Agreement. The Parties may exchange Confidential Information with such Affiliated or Associated Companies, and each party accepts responsibility that its Affiliated or Associated Companies will abide by the confidentiality and non-use provisions of this Agreement, including preservation of each party rights to their respective intellectual property or proprietary rights.
This Agreement shall be governed by the laws of the State of Victoria and the Parties herein submit to the non-exclusive jurisdiction of the courts of that place. This Agreement shall be binding upon the successors and assignees of the respective parties.
Either parties may make disclosures required by court order if each:
uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order; and
promptly provides notice to the other, including to allow the other party participation in any proceeding.
All notices or requests required or contemplated by this Agreement shall be in writing and, shall be hand-delivered or mailed to the address of the Parties stated above in this Agreement or any other address given through written notice by one Party to the other. Requests or notices given by personal delivery shall be deemed given and received at the time of delivery, and requests or notices given by mail shall be deemed given and received the earlier of three days from the date of mailing or upon receipt.
In the event that any of the provisions of this Agreement shall be held by a Court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof.
This Agreement may not be modified or amended except by an instrument in writing signed by the Parties. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement. No waiver of this Agreement will be binding upon either party unless made in writing and signed by a duly authorised representative of each party and no failure or delay in enforcing any right will be deemed a waiver. All waivers shall be strictly construed.
EXECUTED as an Agreement by Airwallex.