Mutual

Confidentiality
Deed

Company Name
ACN/ABN [insert]

Company Name
ACN/ABN [insert]

Address details
 Mutual Confidentiality Deed | page i

Table of contents

1. DEFINITIONS & INTERPRETATION................................................1

2. CONFIDENTIAL INFORMATION.....................................................3
3. PERMITTED DISCLOSURE............................................................4
4. PRIVACY......................................................................................4
5. ENFORCEMENT............................................................................4
6. RETURN OF CONFIDENTIAL INFORMATION .................................5
7. ACKNOWLEDGEMENT AND RELEASE...........................................5
8. NO OBLIGATION..........................................................................6
9. TITLE...........................................................................................6
10. ASSIGNMENT.............................................................................6
11. GENERAL...................................................................................6
 Mutual Confidentiality Deed | page 1

THIS CONFIDENTIALITY DEED is made on [DD/MM/YYYY]

BETWEEN Company Name

ACN [insert
Address details
(Name)

AND Company Name

ACN [insert
Address details
(Name)

RECITALS
A. The Parties intend to enter into discussions and negotiations concerning the
Express Purpose.
B. In the course of such discussion and negotiations, each Party will have access to
Confidential Information of the other Party and/or its Related Bodies Corporate.
C. Each Party has agreed to preserve the secrecy of the Confidential Information of
the other Party and its Related Bodies Corporate and only to use such Confidential
Information for the Express Purposes subject to the terms and conditions of this
Deed.
IT IS AGREED

1. DEFINITIONS & INTERPRETATION

1.1 Definitions
In this Deed:

Business Day means a day other than a Saturday, Sunday or public holiday in New
South Wales, Australia.

Confidential Information of the Discloser means all information which is marked

as confidential or is confidential by its nature relating to the Discloser or its
Related Bodies Corporate that is disclosed in respect of the Express Purpose,
whether disclosed in writing or orally to the Recipient or its Related Bodies
Corporate (or their Representatives) by the Discloser or its Related Bodies
Corporate (or their Representatives) at any time before or after the date of this
Deed, including information relating to their operations, business, products,
services, members, sponsors, customers and suppliers, whether or not the
information is embodied in documentary or other physical form, including business
plans and reports; marketing plans, strategies and reports; discussion papers and
other information regarding proposed or possible new programs, projects, products
or services; quotations, estimates and other pricing information; requests for tender
or expressions of interest; financial information, accounts, data and reports;
technical data and other information relating to the products and services of the
Discloser and its Related Bodies Corporate; and the terms of the agreements of the
Discloser and Related Bodies Corporate with their customers, suppliers, sponsors,
contractors, consultants, employees and joint venture partners and the fact that the
Discloser and the Recipient are involved in negotiations regarding the Express
Purposes; other than information which:
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(a) is disclosed to the Recipient or its Related Bodies Corporate (or their
Representatives by the Discloser or its Related Bodies Corporate (or their
Representatives) but which was and can be demonstrated to have been
lawfully in the possession of, or known to the Recipient or its Related
Bodies Corporate (or their Representatives) prior to such disclosure; or
(b) is in or comes into the public domain otherwise than through any act of the
Recipient or its Related Bodies Corporate (or their Representatives) in
breach of this Deed or through any disclosure by any person acquiring the
same from the Recipient or its Related Bodies Corporate (or their
Representatives);
(c) is disclosed to the Recipient or its Related Bodies Corporate (or their
Representatives) by a third party which is not known by the Receiving
Party or its Related Bodies Corporate (or their Representatives) to owe an
obligation of confidence to the Discloser or its Related Bodies Corporate in
respect thereof, and is not known by the Receiving Party or its Related
Bodies Corporate (or their Representatives) to have been disclosed to that
third party in consequence of a breach of confidence; or
(d) is independently developed by the Recipient or its Related Bodies
Corporate without use of or reference to the Confidential Information or
the Discloser.
Discloser means a Party who discloses, whose Related Bodies Corporate disclose,
or their respective Representatives disclose, Confidential Information of that Party
and its Related Bodies to the Recipient.
Express Purpose means [insert].

Government Agency means any governmental, semi-governmental,

administrative, fiscal, judicial or quasi-judicial body, department, commission,
authority, tribunal, agency or entity.
Parties means the Discloser and the Recipient.
Personal Information has the same meaning as given to that term by the Privacy
Act 1988 (Cth).
Recipient means the Party who receives, or its Related Bodies Corporate (or their
Representatives) who receive, the Confidential Information of the Discloser and/or
its Related Bodies Corporate from the Discloser.
Related Body Corporate has the same meaning as given to that term by section
50 of the Corporations Act 2001 (Cth).
Representative means any officer, director, employee, agent or external advisor of
a Party or its Related Bodies Corporate.
1.2 Interpretation

Headings are for convenience only and do not affect interpretation. The following
rules of interpretation apply unless the context requires otherwise:

(a) the singular includes the plural and vice versa;

(b) a gender includes every other gender;
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(c) where a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
(d) a reference to a party to this Deed includes the party’s successors and
permitted assigns;
(e) a reference to a person includes a firm, a body corporate, an
unincorporated association or an authority and vice versa;
(f) a reference to this Deed or another document includes any variation,
novation, replacement or supplement to any of them from time to time;
(g) a reference to a part, clause, annexure, exhibit, appendix or schedule is
a reference to a part of, clause of, an annexure, exhibit, appendix or
schedule to this Deed and a reference to this Deed includes any annexure,
exhibit, appendix and schedule;
(h) a reference to a right or obligation of two or more persons confers that
right, or imposes that obligation, as the case may be, jointly and severally;
(i) a reference to any legislation or to any provision of any legislation
includes any modification or re-enactment of it, any legislative provision
substituted for it and any regulations and statutory instruments issued
under it;
(j) a reference to conduct includes any omission, representation, statement or
undertaking, whether or not in writing; and
(k) mentioning anything after includes or including does not limit what else
might be included.

2. CONFIDENTIAL INFORMATION
2.1 Acknowledgement
The Recipient acknowledges that the Confidential Information is the sole and
valuable property of the Discloser or its Related Bodies Corporate and that any
unauthorised disclosure or use of it could give rise to considerable damage to the
Discloser or its Related Bodies Corporate.

2.2 Covenants
The Recipient covenants and agrees that as from the date of execution of this Deed,
it must, and must procure that its Related Bodies:
(a) at all times keep the Confidential Information absolutely secret and
confidential and may not directly disclose or communicate that
Confidential Information to any third party other than as expressly
permitted in this Deed or as otherwise permitted by the Discloser in
writing;
(b) not use or exploit (for itself or for any other person) any or all of the
Confidential Information for any reason other than for the Express
Purpose;
(c) not, either for itself or any third party, appropriate or in any manner reverse
engineer any of the Confidential Information of the Discloser;
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(d) take all steps and do all such things as may be necessary or desirable in the
circumstances to safeguard the confidentiality of the Confidential
Information; and
(e) immediately notify the Discloser of any potential, suspected or actual
breach of this Deed.

3. PERMITTED DISCLOSURE
3.1 Disclosure required by law
Despite any other provision of this Deed, the Recipient does not breach its
obligations of confidence under this Deed by reason solely of disclosing the
Confidential Information if required to do so:
(a) by law; or
(b) by an order, rule or regulation of any Government Agency or regulatory or
other authority; or
(c) by the rules of any stock exchange
provided that it must first, to the extent that it is legally able, give notice to the
Discloser of such requirement before actually disclosing that Confidential
Information to enable the Discloser to seek a protective order or remedy.
3.2 Disclosure to officers, employees, advisers and agents
Despite any other provision of this Deed, the Recipient may disclose the
Confidential Information of the Discloser to its Representatives who have a
specific need to know such Confidential Information for the Express Purposes
provided that any such representatives have:
(a) been made aware of the terms upon which the Confidential Information has
been disclosed to the Recipient; and
(b) agreed to be bound by those terms

4. PRIVACY
If the Confidential Information includes any Personal Information, the Recipient
must in respect of that Personal Information:

(a) comply with the Privacy Act 1988 (Cth)

5. ENFORCEMENT
5.1 Court order
The Recipient acknowledges that the Discloser or its Related Bodies Corporate (as
the case may be) may obtain a court order enforcing the obligations of
confidentiality imposed on the Recipient both by this agreement (in the case of the
Discloser) and generally at law (in the case of the Discloser and its Related Bodies
Corporate).
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5.2 Injunction
The Recipient acknowledges that the Discloser or its Related Bodies Corporate (as
the case may be) are entitled to approach any court of competent jurisdiction and,
subject to the courts discretion, obtain an injunction restraining the Recipient from
failing or threatening to fail to comply with its obligations under this agreement or,
at the Discloser’s option, to obtain monetary damages or both.
5.3 Survival
Recipient’s rights and obligations with respect to any Confidential Information of
the Discloser disclosed under this Deed will survive and continue for 2 years from
the date of the disclosure of such Confidential Information.

6. RETURN OF CONFIDENTIAL INFORMATION

6.1 Return of information
Upon receipt of written notice from the Discloser requiring the return or
destruction of any of the Confidential Information in the possession, custody or
control of the Recipient, its Related Bodies (as the case may be), the Recipient
must, as reasonably practicable:

(a) return to the Discloser or destroy (as the Discloser may direct), all
Confidential Information of the Discloser including all documentation and
materials in its possession or under its control which in any way relate to or
embody the Confidential Information together with any and all copies or
extracts of such Confidential Information or related documentation
6.2 Exception
(a) The return of Confidential Information of the Discloser required by clause
6.1 does not include the return of any legal advice, internal working papers
or legal due diligence reports prepared for the Recipient or directors’
papers or board minutes relating to those issues; and.
(b) The Recipient and/or its Related Bodies Corporate (and their
Representatives) may retain a copy of the Confidential Information, if
required to do so, for good corporate governance, legal, credit or audit
purposes. Any Confidential Information will be held on the terms of this
Deed.
In addition, the Discloser accepts that the Recipient may have computer back up
records that are not able to be deleted or erased.

7. ACKNOWLEDGEMENT AND RELEASE

7.1 Acknowledgement
The Recipient agrees and acknowledges that:

(a) to the extent permitted by law, the Discloser disclaims all liability for any
and all loss, damage, action or claim (including any direct, special,
incidental, indirect or consequential damages of any kind in connection
with this Deed, even if the Discloser or its Related Bodies Corporate have
been informed in advance of the possibility of such damages) suffered by
the Recipient, its Related Bodies Corporate or any other person as a result
 Mutual Confidentiality Deed | page 6

of or in connection with, the provision or use of the Confidential

Information of the Discloser;
(b) it will make its own assessment of the Confidential Information of the
Discloser to satisfy itself as to the accuracy of the Discloser’s Confidential
Information and that it will rely entirely on its own investigations and
assessment in evaluating the Express Purposes;
(c) the Discloser does not make or give any representation, guarantee or
warranty as to the accuracy or completeness of any of the Discloser’s
Confidential Information;
(d) the Discloser is under no obligation to update Confidential Information if
the Discloser becomes aware of any inaccuracy, incompleteness or change
in that Confidential Information; and
(e) any opinions expressed in the Confidential Information of the Discloser
may have ceased or may in the future cease to be appropriate in the light of
subsequent knowledge.
7.2 Release
To the extent permitted by law, the Recipient unconditionally releases the
Discloser from any liability which may arise (directly or indirectly) in relation to,
in connection with or as a result of the provision of the Discloser’s Confidential
Information or any reliance placed by any person on any of the Discloser’s
Confidential Information or the non-disclosure of any information.

8. NO OBLIGATION
Nothing herein shall obligate either Party to proceed with any transaction or
relationship between them, and each Party reserves the right, in its sole discretion,
to terminate any discussions contemplated by this Deed at any time.

9. TITLE
Nothing in this Deed conveys or grants to the Recipient or any other person any
right, title or interest in the Confidential Information of the Discloser or its Related
Bodies Corporate.

10. ASSIGNMENT
A Party may not assign, novate or otherwise transfer any of its rights or obligations
under this Deed without the prior written consent of the other Party, which consent
may be granted or withheld by the other party in their absolute discretion.

11. GENERAL
11.1 Notices
(a) All notices, requests and demands which either Party is required or may
desire to give to the other Party under this Deed must be in writing and
delivered to such Party at the applicable address specified in the Parties
section of this Deed.
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(b) Either party may designate by written notice to the other Party any other
address, telephone number or fax number to which notices may be sent.
(c) Each notice, request and demand sent under this clause will be deemed
delivered or made as follows: (i) if sent by hand delivery, upon delivery;
(ii) if sent by mail or delivery service, upon the earlier of the date of receipt
or 5 Business Days after deposit in prepaid mail; and (c) if sent by
facsimile, upon receipt.
11.2 Governing law
This Deed is governed by the laws of [Insert], and both Parties submit to the
exclusive jurisdiction of the courts of that State.

11.3 Severance
Any provision of this Deed which is prohibited or unenforceable in any jurisdiction
will be ineffective in that jurisdiction to the extent of the prohibition or
unenforceability. This will not invalidate the remaining provisions of this Deed nor
affect the validity or enforceability of the provision in any other jurisdiction.

11.4 Waiver
(a) Waiver of a breach or of any right of election arising from a breach of this
document must be in writing and signed by the party granting the waiver.
(b) A breach or any right of election arising from a breach of this document is
not waived by any failure to or delay in the exercise, or partial exercise, of
that right of election or any other right.
11.5 Variation
Any variation of this document must be in writing and signed by the parties.

11.6 Entire Deed

(a) This Deed contains the entire agreement of the Parties with respect to its
subject matter.
(b) It sets out the only conduct relied on by the Parties and supersedes all
earlier conduct by the Parties with respect to its subject matter.
11.7 Counterparts
This Deed may be executed in a number of counterparts. All counterparts taken
together constitute this Deed.

11.8 No merger
(a) The rights and obligations of the Parties will not merge on the completion
of any transaction contemplated by this Deed.
(b) They will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
 Mutual Confidentiality Deed | page 8

DATED

SIGNED as a DEED

Signed and delivered by [ Company

Name (ACN [insert] ) in accordance
with s 127 of the Corporations Act 2001
(Cth):

Signature of Senior Partner Signature of director/secretary

Name of Senior Partner (print) Name of director/secretary (print)

Signed and delivered by [ Company

Name (ACN [insert] )
in accordance with s 127 of the
Corporations Act 2001 (Cth):

Signature of director Signature of director/secretary

Name of director (print) Name of director/secretary (print)