Details
Discloser: Precast Pools Pty Ltd ACN 651 533 523
Recipient: You and the business for which you access any Confidential Information
Recitals
A. The Confidential Information of the Discloser is valuable and confidential information.
B. The Discloser is the owner of the Intellectual Property Rights.
C. The Recipient is requesting, and the Discloser is willing to grant, a licence for the use of the Intellectual Property Rights for the Permitted Purpose.
D. The Recipient executes this agreement in consideration of the Discloser disclosing to the Recipient the Confidential Information and providing a licence, solely for the Permitted Purpose and on the terms of this agreement.
Operative Provisions
1. Definitions And Interpretation
1.1 Definitions
Capitalised terms used in this agreement have the meanings given to those terms below. In this Agreement, including the recitals:
Approved Person: a director, officer, employee, professional adviser or related body corporate (as defined in the Corporations Act 2001 (Cth)) of the Recipient who has a need to know the Confidential Information for the Permitted Purpose, who has been advised of the confidential nature of the Confidential Information, who is obliged to the Recipient to keep confidential the Confidential Information and who has been approved by the Discloser for the purposes of this definition.
Confidential Information: means information (in whatever form) Disclosed or otherwise made available by the Disclosure to the Recipient for in connection to the Permitted Purpose, including:
(a) information marked as confidential or with a similar legend, at the time of disclosure; or
(b) information which is clearly identified to the Recipient as confidential at the time of disclosure; or
(c) information which by its nature is confidential, is known to be confidential or which the Recipient ought to have known was confidential; or
(d) all business plans, technical, financial, commercial or other information (whether orally, in writing or by any other means) which is marked as being confidential or which the Recipient could reasonably regard as confidential; or
(e) personal information; or
(f) financial statements, management reports, revenue information and details relating to clients and employees.
Confidential Information also includes information belonging to a third party such as service providers, suppliers, or potential service providers or suppliers, of the disclosing party.
Disclose: includes, in relation to any information, directly or indirectly, to disclose, provide access to, permit to use or make available the information.
Effective Date: the date of this agreement, or an earlier date agreed by the parties.
Excluded Information: any Information:
(a) which the Recipient can prove is in the public domain other than due to of a breach of this agreement;
(b) which, at the time it was Disclosed by the Discloser, was already known by the Recipient or is subsequently Disclosed to the Recipient by someone other than the Discloser and the Information was not acquired directly or indirectly from the Discloser; or
(c) independently developed by the Recipient without any reference to or reliance on, or as a result of, the Disclosure of the Information by the Discloser.
Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Information: all information, books, records, documents, reports, advice, accounts, spreadsheets, data and files in whatever form.
Intellectual Property Rights: includes swimming pool designs and any patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, anywhere in the world.
Licence fee: $1.00.
Notes: any record, note, extract, copy, summary, analysis, opinion or report.
Permitted Purpose: to provide any services required to fulfil orders received by the Discloser, from the Discloser’s customers.
1.2 Interpretation
In this Agreement, the following rules of interpretation apply, unless the contrary intention appears, or context otherwise requires:
(a) headings and subheadings are for convenience only and do not affect the interpretation of this agreement;
(b) words denoting the singular include the plural and words denoting the plural include the singular;
(c) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) the word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency, whether or not it comprises a separate legal entity;
(e) references to clauses are references to clauses of this agreement;
(f) specifying anything in this agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;
(g) a reference to conduct includes an omission, statement or undertaking, whether or not in writing; and
(h) no provision of this agreement will be construed adversely to a party because that party was responsible in any way for the preparation of any part of that provision or this agreement.
2. Status Of Confidential Information
(a) The Confidential Information is, and at all times remains, the property of the Discloser.
(b) The Recipient acknowledges and agrees that the Confidential Information is confidential, secret and valuable property of the Discloser.
3. Confidential Information
3.1 Use of Confidential Information
The Recipient must:
(a) use the Confidential Information only for the Permitted Purpose;
(b) keep the Confidential Information secret and confidential and not disclose it to any person other than:
(i) to the extent that disclosure is required by law or the rules of an applicable financial market, in which case the Recipient must immediately notify the Discloser and only disclose the minimum amount of Confidential Information which is required by law or the rules of that applicable financial market to be disclosed; or
(ii) to an Approved Person;
(c) not reproduce or record or make any Notes of any Confidential Information except to the extent necessary for the Permitted Purpose;
(d) not allow or assist any of its Approved Persons to disclose, use, publish or release the Confidential Information for any purpose other than the Permitted Purpose or as otherwise specifically provided for in this agreement;
(e) put in place and maintain appropriate and adequate security measures to protect the confidentiality of the Confidential Information being no less stringent than the Recipient uses with respect to its own confidential information including:
(i) taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;
(ii) taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and
(iii) taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction;
(f) not disclose the existence of or terms of this agreement or the fact that Confidential Information has or is being disclosed; and
(g) immediately notify the Discloser if it becomes aware of a breach of this agreement.
3.2 Recipient to ensure compliance
The Recipient must ensure that any person to whom it discloses Confidential Information (including any Approved Person) complies with the terms of this agreement as if that person were the Recipient.
4. Return Or Destruction Of Confidential Information
(a) The Recipient must, and must ensure that each of its Approved Persons, promptly upon written demand by the Discloser:
(i) cease to use or access the Confidential Information;
(ii) either deliver up to the Discloser all copies of the Confidential Information in its possession, or at the Discloser’s election, subject to clause 5, permanently destroy or delete all copies of the Confidential Information in its possession and the Recipient must certify in writing to the Discloser that the Confidential Information has been destroyed or deleted.
(b) The return, destruction or deletion of Confidential Information under this clause 4 does not release the Recipient (or its Approved Persons) from its obligations under or in connection with this agreement.
5. Exceptions
Despite clause 4, the Recipient or an Approved Person that is a third party adviser to the Recipient may retain any Confidential Information it requires (acting reasonably and only for as long as is reasonably required):
(a) to fulfil legal, regulatory or reporting obligations or for the purposes of any professional standards or practices or insurance policies applicable to the Recipient or the Approved Person;
(b) that is included in the directors’ papers or board committee papers of the Recipient or the Approved Person; or
(c) that is stored electronically pursuant to an existing routine data back-up as long as the relevant Confidential Information is deleted from local hard drives and no attempt is made to recover it other than as required by law,
and provided that the Recipient or the Approved Person (as applicable) adopts or maintains reasonable security arrangements to minimise the risk of disclosure and loss of the confidential nature of the Confidential Information.
6. Acknowledgements
The Recipient acknowledges and agrees that:
(a) the Discloser makes no representation, warranty, undertaking or covenant regarding the Confidential Information including as to the accuracy, completeness or currency of the Confidential Information or that it is not misleading or deceptive;
(b) the Confidential Information is supplied by the Discloser to the Recipient “as is” and the Discloser accepts no liability in relation to its supply or use;
(c) it is liable to the Discloser for any unauthorised access, use or disclosure by it or any of its Approved Persons;
(d) the Discloser is entitled to specific performance or injunctive or other relief (as appropriate) as a remedy for any breach or threatened breach in addition to any other remedies available to the Discloser; and
(e) the Discloser is not obliged to enter into, or refrain from entering into, any agreement or discussion as a result of the Recipient executing this agreement (with the Recipient or any other person).
7. Licence
(a) The Discloser grants to the Recipient a non-exclusive, revocable and non-transferable licence to use Intellectual Property Rights from the Effective Date subject to the terms of this agreement for the Permitted Purpose.
(b) In consideration of the licence granted under clause 7(a), the Recipient must pay the Licence Fee to the Discloser, promptly on demand.
(c) The Recipient acknowledges and agrees that:
(i) the Discloser or third parties may license or otherwise deal with the Intellectual Property Rights at any time and in any way, including in a way identical to and in competition with the rights granted to the Licensee under this agreement;
(ii) the Recipient must comply with the specifications, standards and directions relating to the Intellectual Property Rights notified in writing by the Discloser from time to time and with all applicable laws, regulations and codes of practice related to the Permitted Purpose;
(iii) the Recipient must not make modifications or alterations to the any designs or other intellectual property without the consent of the Licensor, such consent is not to be unreasonably withheld; and
(iv) to the extent permitted by law, the Licensor has not made and does not make any warranty or representation concerning the suitability or fitness for purpose of the Intellectual Property Rights for the Permitted Purpose; and
(v) to the extent permitted by law, the Discloser will not be liable to the Recipient for any special, incidental, indirect or consequential loss or damages, loss of profits, data or business opportunity or liabilities in respect of third parties that may be suffered or incurred or arise directly or indirectly in connection with this agreement, however caused and whether or not the party has been advised of the possibility of such loss or damage.
8. Protection Of Intellectual Property Rights
The Recipient must notify the Licensor immediately and in writing, providing full details, if it becomes aware of:
(a) any actual, suspected or threatened infringement of any of the Intellectual Property Rights of which it becomes aware and shall provide the Licensor with such documents, information and assistance as it can in relation to such use or attack; and
(b) any claim made or threatened that any of the Intellectual Property Rights infringe the rights of any third party.
9. Indemnity
The Recipient indemnifies the Discloser and keeps the Discloser indemnified against all costs, expenses, actions, losses or damages of any nature that that Discloser suffers, incurs or sustains in connection with any breach of the terms of this agreement by the Recipient or its Approved Persons (other than any indirect or consequential loss).
10. Term
(a) This agreement commences on the Effective Date and continues for a period of 3 years, unless terminated earlier in accordance with this clause 10.
(b) Without affecting any other right or remedy available to it, either party (the non-defaulting party) may terminate this agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this agreement and either:
(i) the breach cannot be remedied; or
(ii) the other party fails to remedy that breach within a period of 20 days after the other party has, or is deemed to have, received written notice requesting it to do so.
(c) The Discloser may terminate this agreement at any time, by providing 10 days’ notice to the Recipient.
11. General
(a) No party may rely on the words or conduct of any other party (including, without limitation, any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel) as being a waiver of any right, power or remedy arising under or in connection with this agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(b) This agreement is governed by the law in force in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.
(c) Clauses 3, 9 and 10 will survive termination of this agreement.
(d) An amendment or variation of any term of this agreement must be in writing and signed by each party.
(e) This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute this agreement by signing any counterpart. The date on which the last counterpart is executed is the date of this agreement.