Between the parties specified on page 3
Operative provisions 3
1. Definitions and interpretation 3
2. Confidentiality 7
3. Acknowledgment 8
4. Receiving Party to ensure others comply 9
5. Indemnity 9
6. Disclaimer 9
7. Reservations 10
8. No exclusivity 10
9. Termination 10
10. Notices 11
11. General 12
Party Short title
1. Name: The Jones-Arnfield Trust ABN 26057879064 Disclosing Party
2. Name: Receiving Party
A. Disclosing Party wishes to disclose, and Receiving Party wishes to receive, the Confidential Information, for the Designated Purpose, and on the covenants recorded in this document.
1. Definitions and interpretation
In this document:
Affiliate of a person means:
(a) where the person is a body corporate:
(i) a shareholder of the person.
(ii) a Related Body Corporate of the person; and
(iii) a director, company secretary or officer of the person.
(b) an entity the person Controls.
(c) an entity that Controls the person.
(d) a Related Entity of the person.
(e) a Relation of the person.
(f) an entity that is controlled by an entity that Controls the person; and
where the person is a trust, any person who is a beneficiary under that trust.
Business Day means a day on which banks are open for business in Brisbane, Australia, excluding a Saturday, Sunday or public holiday in that city.
Confidential Information means all information (including information in machine-readable form) concerning the Disclosing Party, that comes into the possession or control of Receiving Party as a result of this document or otherwise and that:
(a) is by its nature confidential.
(b) is designated by Disclosing Party as confidential; or
(c) Receiving Party knows or ought to know is confidential, and includes:
(d) the intellectual property of any kind, including copyright, inventions, designs, proprietary ideas, patentable ideas, know-how, trade secrets, marks (whether trade or service marks) and logos, processes and know-how, and whether registerable or not;
(e) prototypes, tooling, patterns, moulds, dies, jigs, fixtures, fittings and other aids to manufacture.
(f) business plans and forecasts.
(g) financial records, reports, accounts and proposals.
(h) client lists and client contact details.
(i) supplier lists and supplier contact details; and
(j) any login details relating to online accounts. Control has the meaning set out in section 50AA of the Corporations Act. Designated Purpose means the purpose of
Receiving Party assessing whether to enter the Proposed Transaction. Government Agency means any:
(a) statutory authority.
(c) government department.
(d) governmental, semi-governmental or judicial person; or
(e) person (whether autonomous or not), charged with the administration of any applicable law. Insolvency Event means, in relation to a person:
(a) if the person is a corporation, the corporation becomes a Chapter 5 Body Corporate: or
(b) if the person is an individual, the individual:
(i) becomes a bankrupt (as defined in the Bankruptcy Act 1966 (Cth));
(ii) enters into a debt agreement (as defined in the Bankruptcy Act 1966 (Cth))
(iii) enters into a personal insolvency agreement (as defined in the Bankruptcy Act 1966 (Cth)). Jurisdiction means Queensland, Australia.Loss or Claim means, in relation
to any person:
(a) A damage, loss, cost, expense or liability incurred by the person (including, but not limited to, any indirect, incidental, consequential, exemplary, punitive and special damages); or
(b) a claim, action, proceeding or demand made against the person,
whether based in contract, equity, tort (including negligence), statute or otherwise, and whether present or future, fixed or unascertained, actual or contingent.
Proposed Transaction means a proposed transaction where the Disclosing Party (or an Affiliate of the Disclosing Party) will divest a portion of their interest in issued shares, or all of (or substantially all of) the assets of a BUsiness, or any other similar transaction.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Related Entity has the meaning given to it in section 9 of the Corporations Act.
Relation of a person means:
(a) where the person is an individual, the spouse (including a de facto spouse), siblings, parents and children of that person; and
(b) where the person is a body corporate, the spouse (including a de facto spouse), siblings, parents and children of the person or persons that Control the body corporate.
Specified Person means:
(a) an Affiliate of a Receiving Party.
(b) a financier or an adviser of the a Receiving Party; or
(c) an officer, agent or employee of a Receiving Party or of any entity referred to in paragraphs (a) and (b) of this definition,
who, in each case, has a specific need to have access to the Confidential Information for the Designated Purpose.
In this document:
(a) clause and subclause headings are for reference purposes only.
(b) the singular includes the plural and vice versa.
(c) words denoting any gender include all genders; reference to a person includes any other entity recognised by law and vice versa;
(d) where a word or phrase is defined its other grammatical forms have a corresponding meaning.
(e) any reference to a party to this document includes its successors and permitted assigns.
(f) any reference to any agreement or document includes that agreement or document as amended at any time;
(g) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(h) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
(i) except in the definitions of “Related Body Corporate”, a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
(k) if a day on or by which an obligation is to be performed or an event is to occur is not a Business Day, the obligation is to be performed or the event is to occur on or by the next Business Day.
(l) A reference to A$, $A, dollar or $ is to Australian currency.
(m) a reference to an agreement other than this document includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing.
(n) a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind.
(o) a reference to a clause, schedule or annexure is to a clause of, or schedule of, or annexure to this document, and a reference to this document includes any schedule or annexure;
(p) a reference to a body, other than a party to this document (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
(q) a reference to time is to time in the Jurisdiction.
Receiving Party covenants to:
(a) keep confidential the Confidential Information.
(b) only use the Confidential Information for the Designated Purpose.
(c) not use or attempt to use any Confidential Information for its own advantage or gain, or the advantage or gain of any third party, directly or indirectly; and
(d) immediately, upon demand by Disclosing Party, and at Disclosing Party’s option, deliver up to Disclosing Party, or destroy, the Confidential Information in Receiving Party’s possession, power or control.
2.2 Application to confidential information already disclosed
Without limiting the operation of this document, this document applies to Confidential Information disclosed to, or accessed by, the Receiving Party or any Specified Person before the date of this document.
2.3 Permitted disclosure
Receiving Party may disclose the Confidential Information only to those of its officers and employees who:
(a) have a need to know for the purposes of this document (and only to the extent that each has a need to know); and
(b) have, by deed poll delivered to Disclosing Party, covenanted to be bound by this clause 2.2.
2.4 Obligations of confidentiality
The obligations of confidentiality under this document do not extend to information that (whether before or after the date of this document):
(a) is rightfully known to or in the possession or control of Receiving Party and not subject to an obligation of confidentiality on Receiving Party.
(b) is public knowledge (otherwise than as a result of a breach of this document); or
(c) subject to clause 2.5, is required by law to be disclosed.
2.5 Disclosure required by law
If Receiving Party is required by law to disclose any Confidential Information to a third person (including without limitation any government or other authority), Receiving Party must:
(a) before disclosing the Confidential Information, notify Disclosing Party; and
(b) not disclose the Confidential Information until Disclosing Party has had a reasonable opportunity to take any steps Disclosing Party considers necessary to protect the confidentiality of that information.
Receiving Party is not to make any statement, press release or other announcement relating to this document without Disclosing Party's prior written consent.
The parties covenant that this clause 2 will continue to have effect notwithstanding the termination or expiration of this document.
Receiving Party acknowledge that, subject to clause 2.5:
(a) the Confidential Information is secret and highly confidential to Disclosing Party.
(b) this document does not convey any proprietary or other interest in the Confidential Information to Receiving Party or any Specified Person.
(c) use or disclosure of Confidential Information in breach of this document could cause considerable commercial and financial detriment to Disclosing Party;
(d) any opinions expressed in any Confidential Information are opinions given 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, circumstances or attitudes; and
(e) damages may be inadequate compensation for breach of this document and, subject to the court’s discretion, Disclosing Party may restrain by an injunction or similar remedy, any conduct or threatened conduct which is or could be a breach of this document.
4. Receiving Party to ensure others comply
Each Receiving Party must:
(a) inform each Specified Person of Receiving Party obligations under this document.
(b) procure that each Specified Person strictly observes all of that Receiving Party’s obligations under this document as if those obligations were imposed on that person; and
(c) as soon as practicable, on request by Disclosing Party, provide to Disclosing Party in writing the names, employers and contact details of each Specified Person who has been given access to Confidential Information.
Each Receiving Party covenants to indemnify, and keep indemnified, Disclosing Party against any Loss or Claim in relation to any breach of this document by the Receiving Party.
(a) Except as may otherwise be expressly agreed to in writing by Disclosing Party, Disclosing Party, its Affiliates, or any of their respective officers, employees or advisers:
(i) do not make any representation or warranty:
(A) as to the accuracy or completeness of the Confidential Information; or
(B) that the Confidential Information has been audited, verified or prepared with reasonable care.
(ii) do not accept any responsibility for any interpretation, opinion or conclusion that Receiving Party or a Specified Person may form as a result of examining the Confidential Information.
(iii) do not accept any responsibility to inform Receiving Party of any matter arising or coming to Disclosing Party’s notice that may affect or qualify any Confidential Information that Disclosing Party provides to Receiving Party; and
(iv) is not liable, and Receiving Party covenant not to make any Claim against any of them in relation to:
(A) an error, inaccuracy, incompleteness or similar defect in the Confidential Information; or
(B) any default, negligence or lack of care in relation to the preparation or provision of the Confidential Information,
except to the extent that liability cannot by law be excluded.
(b) Receiving Party acknowledges that they are making an independent assessment of the Confidential Information and that it will:
(i) carry out, and rely solely on, its own investigation and analyses in relation to the Confidential Information; and
(ii) verify all information on which it intends to rely to its own satisfaction.
(c) Any reliance by Receiving Party, or any Specified Person, on any Confidential Information, or any use of any Confidential Information, is solely at its own risk.
(a) This document does not assign, create, grant, license or transfer any rights or authority in Confidential Information, except the limited right to use Confidential Information for the Designated Purpose in accordance with clause 2.1(b).
(b) Without limiting clause 7(a), this document does not assign, transfer or license any intellectual property rights.
(c) Receiving Party covenants that nothing in this document obliges Disclosing Party to disclose any particular information to Receiving Party.
8. No exclusivity
Receiving Party acknowledges and agrees that nothing in this document confers any rights of exclusivity on Receiving Party or prevents Disclosing Party from disclosing any Confidential Information to any other person or granting rights of exclusivity to another person.
9.1 Termination by Disclosing Party
Disclosing Party may terminate this document at any time with immediate effect by giving written notice to Receiving Party.
9.2 Consequences of termination
On termination of this document, the right of the Receiving Party to use Confidential Information stops. The obligations of confidentiality imposed by this document survive the expiry or termination of this document.
9.3 Actions on termination
On termination, the Receiving Party must immediately return to Disclosing Party:
(a) all Confidential Information.
(b) all copies of Confidential Information; and
(c) any other material containing or relating in any way to Confidential Information made or developed by Receiving Party or a Specified Person,
in the possession or control of Receiving Party or a Specified Person.
A notice, demand, certification, process or other communication relating to this document must be in writing in English and may be given by an agent of the sender.
10.2 How to give a communication
In addition to any other lawful means, a communication may be given by being:
(a) personally delivered.
(b) left at the party’s current delivery address for notices.
(c) sent to the party’s current postal address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail.
(d) sent by fax to the party’s current fax number for notices; or
(e) sent by email to the party’s current email address for notices, in which case the communication is to state that it is a communication under this document.
10.3 Particulars for delivery of notices
The particulars for delivery of notices for each party are specified in Schedule 1 (Notice details).
10.4 When communication is given
Subject to clause 10.5, a communication is given:
(a) if posted:
(i) within Australia to an Australian postal address, three Business Days after posting or the date of actual receipt (whichever is earlier); or
(ii) outside of Australia to an Australian postal address or within Australia to an address outside of Australia, 10 Business Days after posting or the date of actual receipt (whichever is earlier);
(b) if sent by fax, when the sender’s fax machine produces a report that the fax was sent in full to the addressee. That report is conclusive evidence that the addressee received the fax in full at the time indicated on that report; and
(c) if sent by email, one hour after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address notified for the purposes of this clause 10.
10.5 After hours communications
If a communication is given:
(a) after 5:00pm in the place of receipt; or
(b) on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken as having been given at 9:00am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.
10.6 Additional clauses
A notice sent or delivered in a manner provided by clause 10.2 must be treated as validly given to and received by the party to which it is addressed even if:
(a) the addressee has suffered an Insolvency Event, is deregistered or absent from the place at which the notice is delivered or to which it is sent; or
(b) if the notice is returned unclaimed.
This document may only be varied by a further written agreement signed by or on behalf of each of the parties.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this document without the prior written consent of each other party.
Each person who executes this document on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his authority to do so under that power of attorney.
Unless this document expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this document. To be effective, any consent under this document is to be in writing.
(a) This document may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.
(b) A party that has executed a counterpart of this document may exchange that counterpart with another party by faxing or emailing it to the other party or the other party’s legal representative.
11.6 Entire agreement
This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
11.7 Further acts
Each party will promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this document.
(a) This document is governed by the law in force in the Jurisdiction.
(b) Each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this document.
(c) Each party irrevocably waives any objection it may have now or in the future to the venue of any proceedings where that venue falls within the Jurisdiction.
11.9 Legal advice
Each party warrants it has read and understood this document and obtained independent legal advice about its terms.
11.10 No merger
No right or obligation of any party will merge on completion of any transaction contemplated by this document.
Any provision of this document that is illegal, void or unenforceable is to be severed without prejudice to the balance of the provisions of this document which will remain in force.
(a) If any party (Trustee) enters into this document in the capacity as trustee of any trust (Trust) under any trust deed, deed of settlement or other instrument (Trust Deed), and whether or not the other parties have notice of the Trust, then the Trustee enters into this document both as trustee of the Trust and in its personal capacity.
(b) The Trustee represents and warrants that:
(i) the Trustee has power under the Trust Deed and, in the case of a corporation, under its constitution, to enter into and execute this document and to perform the obligations imposed under this document as trustee.
(ii) all necessary resolutions have been passed as required by the Trust Deed and, in the case of a corporate Trustee, by its constitution, to make this document fully binding on the Trustee.
(iii) the execution of this document is for the benefit of the Trust.
(iv) the Trustee is not in default under the Trust Deed.
(v) there is not now, and the Trustee will not do anything by which there will be in the future, any restriction or limitation on the right of the Trustee to be indemnified out of the assets of the Trust; and
(vi) there is no material fact or circumstance relating to the assets, matters or affairs of the Trust that might, if disclosed, be expected to affect the decision of the other parties, acting reasonably, to enter into this document.
(c) Subject to any other provision in this document and until such time that all requirements under this document have been performed, no change of Trustee can occur without the prior written consent of the other parties, which consent must not be unreasonably withheld or delayed.
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this document by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this document.
(b) Any waiver or consent given by any party under this document will only be effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of any term of this document will operate as a waiver of another breach of that term or of a breach of any other term of this document.
11.14 Relationship of parties
(a) A party is not a partner, agent, employee or representative of any other party.
(b) Nothing in this document gives a party authority or power to bind any other party in any way or incur any obligations on behalf of, or pledge the credit of, any other party.
11.15 Remedies cumulative
Except as provided in this document and permitted by law, the rights, powers and remedies provided in this document are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this document.
11.16 Clauses that survive termination
(a) Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of this document, clauses 2, 3, 5, 4, 5, 7 and 9 and this clause 11.16 survive the termination or expiry of this document.
(b) Each indemnity contained in this document is a continuing obligation, independent from the other obligations of the parties and survives the termination or expiry of this document. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this document.
Schedule 1 (Notice details)
Name Notice details (clause 10)
The jones-Arnfield Trust ABN 26057879064 Delivery address: Private
Facsimile: Not applicable
Email: [email protected]
Executed as a deed.
Executed by The Jones-Arnfield Trust ABN 26057879064
in accordance with section 127 of the Corporations Act 2001 (Cth) by:
Director / sole director and sole secretary (delete whichever is not applicable)
Director/secretary (delete whichever is not applicable)
Anyone that wishes to enter into a non-disclosure agreement as above, for the purpose of helping set up a business for the benefit of the TRust, please PM me
No Barristers were hurt in the production of this NDA. All edits were performed with the assistance of Grammarly.