Non Disclosure Agreement (NDA) for Safer Business Growth

Last updated: 2nd April 2024

This Confidentiality Agreement is made and entered into on [date] by and between Safer Business Growth, a company registered in Australia, with company registration number 84 246 626 658 ('SAFER BUSINESS GROWTH'); and [Client], a company registered in Australia, with company registration number [Client's ABN] ('CLIENT').

WHEREAS

CLIENT and SAFER BUSINESS GROWTH, for their mutual benefit, desire to disclose certain proprietary and confidential information to the other party. Each party desires to protect its proprietary and confidential information and to prevent other persons and entities from acquiring, appropriating, or discovering its proprietary and confidential information.

NOW, THEREFORE, in consideration of the promises and covenants set forth herein, and for other good and valuable consideration, the receipt, adequacy, and legal sufficiency of which are hereby acknowledged, the parties agree, and covenant as follows:

1. Definitions

“Purpose” means any discussions, negotiations or agreements entered into between SAFER BUSINESS GROWTH and CLIENT in respect of the supply of goods and/or services by SAFER BUSINESS GROWTH to CLIENT or CLIENT to SAFER BUSINESS GROWTH.

“Proprietary information” means all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in writing, orally, visually, by email, by electronic data transfer or by any other means, which relates to the business, affairs, products, developments, intellectual property, ideas, inventions (whether patentable or not), designs, drawings, schematics, trade secrets, know-how, personnel and consultants, methodologies, processes, plans or intentions, f orecasts, quotations, costs, rates, materials, sources, customers and suppliers of the Disclosing Party (whether or not designated as “Proprietary Information” by any party) together with all information derived from the foregoing.

2. Confidentiality

2.1 With respect to any Proprietary Information already disclosed or to be disclosed in the future by the Disclosing Party to the Receiving Party, the Receiving Party hereby agrees for a period of five (5) years from the date of disclosure:

1. to hold the Proprietary Information in trust and confidence for the other party and protect the Proprietary Information with the same degree of care as the Receiving Party employs for the protection of its own Proprietary Information (but in no event shall such care be less than that which is commercially reasonable); and
2. to use and reproduce the Proprietary Information solely and strictly for the Purpose and to limit use of, access to and disclosure of the Proprietary Information to the Receiving Party’s employees, sub-contractors, agents, auditors or professional advisors on a “need to know” basis only and to ensure that all such third parties are bound by obligations of confidentiality no less onerous than those contained herein. The Receiving Party shall be liable for any breach of the Disclosing Party’s confidentiality by any such employee, sub-contractor, agent, auditor or professional advisor as if it had itself performed such breach; and
3. not to use or exploit or make commercial use of any such Proprietary Information for its own benefit or any other person’s or entity’s (including but not limited to competitors of the Disclosing Party) benefit without the prior written consent of the Disclosing Party, save as and only to the extent expressly required for the Purpose.

2.2 The obligations set out in this Clause 2 shall not apply to any information which:

1. is or becomes through no fault of the Receiving Party part of the public domain;
2. was already known to the Receiving Party at the time of disclosure as evidenced by written documents;
3. is independently developed by the Receiving Party without reference to or use of any Proprietary Information received from the Disclosing Party as evidenced by written documents; or
4. is lawfully obtained by the Receiving Party from a third party outside of this Agreement which third party also lawfully obtained the Proprietary Information; or
5. is disclosed pursuant to law, judicial order or government regulation so long as the Receiving Party promptly notifies the other party prior to disclosure to the greatest extent permitted by the applicable law.

2.3 If the Receiving Party becomes aware, or has reason to believe, that there has been an unauthorised disclosure or use of the Proprietary Information, the Receiving Party shall immediately notify the Disclosing Party thereof. The Receiving Party shall immediately take any and all actions necessary to protect the Proprietary Information including such actions as may reasonably be requested by Disclosing Party.

2.4 All rights in the Proprietary Information are reserved by the Disclosing Party including rights in any material produced by the Receiving Party relating to such Proprietary Information. Each party acknowledges that the Proprietary Information shall remain the sole property of the Disclosing Party and that neither this Agreement nor the disclosure of Proprietary Information constitutes or implies any intention by the Disclosing Party to grant a license over or confer any rights in the Proprietary Information to the Receiving Party.

2.5 At the expiry or termination of this Agreement in accordance with Clause 5 whichever is sooner, the Receiving Party shall cease all use of the Proprietary Information and shall return to the Disclosing Party any tangible items which contain or manifest, in any form, the Proprietary Information and shall delete from its computer systems any copies, amended versions or derivatives thereof and shall certify in writing that this has been done.

3. Remedies

3.1 In the event of any actual or threatened breach by the Receiving Party of any provision of this Agreement, the Receiving Party acknowledges that the other party will incur significant and irreparable damage for each such breach and that the other party has no adequate remedy at law for such breach. Therefore, the other party shall be entitled to injunctive relief immediately and permanently restraining the Receiving Party from such continuing and/or threatened breach.

4. No Warranties

4.1 The Proprietary Information is supplied ‘as-is’ with no warranties or guarantees that it is fit for any or a particular purpose, and each of the parties hereby expressly excludes any and all statutory warranties that might otherwise be implied into this Agreement in respect of their own Proprietary Information.

5. Duration and Termination

5.1 This Agreement shall become effective on the Effective Date and shall continue until completion of the Purpose or for a period of five (5) years whichever is the shorter, unless or until terminated in accordance with the provisions of Clause 5.2.

5.2 Either party (“the Initiating Party”) may forthwith terminate this Agreement at any time on giving written notice to the other parties if:

1. the other party commits a material breach of any term of the Agreement and in the case of a breach which is reasonably capable of remedy fails to remedy that breach to the reasonable satisfaction of the Initiating Party within thirty (30) days of a written request to remedy the same: or
2. the other party becomes insolvent or ceases to trade.

5.3 The expiry of this Agreement or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of either of the parties accrued prior to such termination.

6. Survival

6.1 All notices made pursuant to this Agreement must be made in writing. Any written notice to be given pursuant to the provisions of this Agreement shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party's address stated above and marked for the attention of the Company Secretary. Unless otherwise provided in this Agreement, all notices shall be deemed as given on the day of their receipt by the receiving party.

7. General

7.1 The provisions of Clauses 1, 2, 3, 5.3, 6, and 7 shall continue in full force and effect notwithstanding termination or expiry of this Agreement or the Purpose.

7.2 This Agreement constitutes the entire agreement between the parties and supersedes any other communication whether written or oral that might have taken place between the parties in respect of the subject matter hereof.

7.3 This Agreement shall be interpreted, construed, and enforced according to the laws of Australia and shall be subject to the exclusive jurisdiction of the Australian Courts.

7.4 If any provision of this Agreement is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of this Agreement shall not be affected by that judgement, and that the remainder of this Agreement shall remain valid and enforceable. No waiver by either party of any term of this Agreement shall constitute a waiver of any such term in any other case or at any other time. No single or partial exercise of any power or right by either party shall preclude any other or further exercise of that or any other such power or right under this Agreement. This Agreement may not be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of the parties. The rights and obligations of both parties in respect of the subject matter hereof shall be limited to those expressly set out in this Agreement.