Confidentiality AGREEMENT

Warning Statement

You or your Company are about to commit to a Confidentiality Agreement as a pre-requisite of Real Estate Dynamics disclosing to you certain Confidential Information. This is a legally enforceable document and if you have any concerns with respect thereto you should seek independent legal advice as to the full meaning and effect of the Agreement.

You and your Company:

1. Are responsible for any misuse of the Confidential Information by any of your staff, Directors, Partners, Accountants, Legal Practitioners, Bankers or other advisors; and
2. May not contact directly any owner, representative or employee of the business or businesses to which the confidential information relates.

Confidential Information is the cornerstone of the commercial undertaking of Real Estate Dynamics. The Confidential Information that will be disclosed after of the entry into the Confidentiality Agreement has a real value to its business and any intentional or inadvertent distribution, disclosure or use of same is likely to cause immediate and/or accumulative financial loss. Any threatened or actual conduct of such nature will entitle Real Estate Dynamics to seek immediate injunctive relief against you or your Company together with monetary compensation for such breach.

This Confidentiality Agreement

is made on this date.

BETWEEN Real Estate Dynamics Pty Ltd ACN 107 701 637 a company incorporated in Queensland and having its registered office at 261 Charleton Street, Chandler QLD 4155 (the Disclosing Party) of the First Part

AND

Your or your company as entered above (the Recipient) of the second part.

 

BACKGROUND

1. The parties intend to enter into discussions about the Proposed Transaction.
2. The Disclosing Party agrees to disclose Confidential Information to the Recipient for the Proposed Transaction, and on the terms stated in this Agreement.

 

AGREEMENT

1. Defined terms and interpretation

1.1 In this Agreement:

• Associates has the meaning given in the Corporations Act 2001 (Cth).
• Australian Privacy Principles means the principles specified in the Privacy Act for the regulation of Personal Information and Sensitive Information.
• Business Day means a day on which banks are open for business excluding Saturdays, Sundays or public holidays in Brisbane, Queensland.
• Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or Liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
• Client means the client(s) on whose behalf Real Estate Dynamics Pty Ltd ACN 107 701 637 may be acting.
• Confidential Information (whether or not marked confidential) means:
  1. the contents of this Agreement, and that the parties are entering into discussions regarding, or may participate in, the Proposed Transaction;
  2. the Intellectual Property;
  3. all the Disclosing Party’s information relating to its dealings, transactions, finances or affairs or that of its customers or clients;
  4. all the Disclosing Party’s business records and all other business and financial information;
  5. any information relating to the Disclosing Party which, by its nature, places or potentially places the Disclosing Party at an advantage over its present or future business competitors; or
  6. any information that would otherwise at law be considered secret or confidential information.
• Agreement means this Agreement and any annexures or schedules attached to it.
• Disclosing Party includes any Client on whose behalf Real Estate Dynamics Pty Ltd ACN 107 701 637 may disclose Confidential Information;
• Intellectual Property means the Disclosing Party’s rights and interests, whether registered or unregistered in:
  1. all processes, systems, procedures, databases, manuals, notes and trade secrets, all scientific, technical, product and marketing information, any know how or any other verbal information or written data about the Disclosing Party and its business, operation and marketing;
  2. any brand names, trade names and business names used in operating the Disclosing Party’s business and the products and services distributed under them;
  3. any domain names, any websites associated with them and all rights, designs and interests connected with or attaching to that website, and all programs or images necessary to operate or alter the website;
  4. intellectual property rights or interests owned, licensed or otherwise used by the Disclosing Party;
  5. any intellectual property which is created and which is owned by the Disclosing Party or which the Disclosing Party has a contractual or other right to use in connection with its business;
  6. the Confidential Information;
  7. any computer software licences, programs or improvements or similar used by the Disclosing Party;
  8. logos, symbols, marks, copyright, trademarks, designs or patents used in or forming party of the Disclosing Party’s business; and
  9. any telephone or mobile numbers or facsimile numbers associated with or used by the Disclosing Party.
• Liabilities means liabilities (whether actual, contingent or prospective), losses, damages, outgoings, costs (including legal costs and accounting costs on an indemnity basis) and expenses of whatever description, whether or not ascertained, and for the avoidance of doubt includes any liability for any tax.
• Personal Information and Sensitive Information have the meanings given in the Privacy Act.
• Privacy Act means the Privacy Act 1988 (Cth) and any guidelines issued by the Australian Privacy Commission or the Office of the Australian Information Commissioner relating to privacy or the Australian Privacy Principles.
• Proposed Transaction means any rent roll sale or purchase transaction, or any other transaction between the Recipient and the Client.

1.2 In this Agreement, the following rules of interpretation apply, unless expressed to the contrary:

1. Headings do not affect the interpretation of this Agreement.
2. The singular includes the plural and vice versa.
3. If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
4. The word ‘includes’ in any form is not a word of limitation.
5. The meaning of ‘or’ is that of inclusion, being one, some or all of a number of possibilities.
6. No rule of construction applies to the disadvantage of a party because that party was responsible for preparing this Agreement or any part of it.
7. A reference to:
   1. a gender includes all other genders;
   2. a person includes a natural person, partnership, joint venture, Government Agency, association, corporation or other body corporate;
   3. a thing (including a chose in action or other right) includes a part of that thing;
   4. a party includes its successors, executors, administrators, and permitted assigns;
   5. a document includes all amendments or supplements to that document;
   6. a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;
   7. this Agreement includes all schedules and attachments to it;
   8. a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
   9. an agency or body means, if that agency or body ceases to exist, any reconstituted or renamed agency or body or, failing that, the agency or body which most closely performs the previous functions of that agency or body;
   10. an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
   11. a monetary amount is in Australian dollars.
8. An agreement on the part of two or more persons binds them jointly and severally.
9. Doing something on a:
   1. day which is not a Business Day, means doing it on the following Business Day; and
   2. specified date, means it must be done by 5.00pm on that date and if done after that time, it is taken as done on the next day.
10. The time of day, where relevant, is:
    1. for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
    2. for any other purpose, time is Australian Eastern Standard Time (AEST).

2. Acknowledgements

2.1 The Recipient acknowledges that:

1. the terms of this Agreement are reasonable in all the circumstances;
2. breaching this Agreement is harmful to the Disclosing Party or its Associates, assigns or successors;
3. damages may be inadequate compensation for breaching this Agreement;
4. if a breach occurs, the Disclosing Party is entitled to seek equitable relief, including injunction and specific performance as a remedy; and
5. if not for the Recipient entering into this Agreement, the Disclosing Party would not have entered into discussions regarding the Proposed Transaction or shared Confidential Information.

3. Application and term

3.1 This Agreement applies to all of the Confidential Information the Recipient gains access to or becomes aware of, whether before or after the date of this Agreement.

3.2 This Agreement does not merge, and the confidentiality obligations created by it are not released when discussions about the Proposed Transaction end. It continues whilst any Confidential Information remains confidential.

4. Benefit of this Agreement

4.1 The Recipient acknowledges that the undertaking of confidentiality given to the Disclosing Party, are for the Disclosing Party’s benefit and that of its Associates, or any third party associated with the Disclosing Party.

4.2 To the extent that an acknowledgement, confirmation, waiver or undertaking operates in favour of the Disclosing Party’s Associates or a third party associated with the Disclosing Party who is not a party to this Agreement (including for the avoidance of doubt, any Client), this Agreement is in favour of, and enforceable by, that party or by the Disclosing Party as trustee for that person.

5. Protecting Confidential Information

5.1 The Recipient must, unless stated otherwise in this Agreement, or with the Disclosing Party’s prior written consent:

1. not use or exploit the Confidential Information except for the Proposed Transaction;
2. not disclose any Confidential Information;
3. keep all Confidential Information disclosed to the Recipient under the Recipient’s control;
4. keep all Confidential Information confidential, and take all reasonable physical and legal steps necessary to prevent it being used or disclosed;
5. not make any written notes, copy, reproduce, retain, store, record, computerise, document or duplicate any part of the Confidential Information which appears in written, computerised or other recorded form;
6. immediately notify the Disclosing Party if the Recipient becomes aware of or suspects that the Confidential Information has been or may be used or disclosed;
7. do anything reasonably required by the Disclosing Party to prevent, restrain or mitigate the consequences of a breach of this Agreement or of the Confidential Information being used or disclosed;
8. reasonably assist the Disclosing Party in connection with any action or investigation about a possible, actual or threatened unauthorised disclosure or misuse of the Confidential Information; and
9. not make any improvements or modifications to or derivations or discoveries from any of the Confidential Information.

6. Disclosing Confidential Information

6.1 The Recipient may use the Confidential Information solely for the purpose of evaluating the Proposed Transaction.

6.2 The Recipient may only disclose Confidential Information:

1. to its relevant employees, bankers, financiers, accountants and other professional advisers as necessary to evaluate the Proposed Transaction;
2. as required by law;
3. if the information is in the public domain, otherwise than by being disclosed in breach of this Agreement; or
4. if required to comply with an obligation in this Agreement.

6.3 The Recipient is liable for the act or omission of any person to whom the Recipient has provided Confidential Information under this Agreement, which if that person had entered into this Agreement, would be a breach of this Agreement.

7. Returning or destroying Confidential Information

7.1 The Recipient must immediately when requested in writing by the Disclosing Party or when this Agreement ends:

1. return to the Disclosing Party all its Confidential Information obtained under this Agreement; or
2. if required by the Disclosing Party, destroy all of the Disclosing Party’s Confidential Information obtained under this Agreement; and
3. give the Disclosing Party evidence in the form of a statutory declaration confirming that the Recipient has returned or destroyed all Confidential Information.

7.2 The Recipient may retain:

1. one copy of documents containing Confidential Information where those documents must be retained according to any applicable laws, regulations, professional standards, ethical standards, practices, codes or insurance policies; and
2. Confidential Information which is held electronically and cannot, using commercially reasonably efforts, be permanently deleted because of the Recipient’s automated backup or archiving system.

8. Personal and Sensitive Information

8.1 Unless expressly stated otherwise, the Recipient must not use Confidential Information contrary to the Australian Privacy Principles.

8.2The Recipient must comply with the:

1. Australian Privacy Principles relating to both the Personal Information and Sensitive Information which is disclosed to it by the Disclosing Party; and
2. Disclosing Party’s privacy policies as communicated to it.

8.3 The Recipient agrees to indemnify the Disclosing Party on demand from and against any Liability incurred by the Disclosing Party because of the Recipient’s breach of this clause 8.

9. Intellectual Property

9.1 Any improvement or modification to or discovery from any part of the information comprised in the Disclosing Party’s Intellectual Property, whether attributed wholly or partly to the Recipient, becomes and remains the Disclosing Party’s property.

9.2The Recipient acknowledges that it:

1. has no proprietary right or interest in the Disclosing Party’s Intellectual Property;
2. must not use the Disclosing Party’s Intellectual Property for any commercial purpose or assist or allow anyone else to do so;
3. must not register or record or attempt to register or record any part of the Disclosing Party’s Intellectual Property anywhere in the world, or assist or allow anyone else to do so.
4. must assign to the Disclosing Party, or at its request to the Disclosing Party’s nominated Associate, all proprietary rights or interest it acquires in the Disclosing Party’s Intellectual Property; and
5. is liable for any breach of this Agreement by any of its employees, bankers, financiers, accountants and other professional advisers.

10. Content of information

10.1 Nothing in this Agreement obliges the Disclosing Party to disclose information to the Recipient. The Disclosing Party has an absolute discretion about the information it discloses.

10.2 The Recipient must:

1. assess the information disclosed by the Disclosing Party; and
2. satisfy itself about the accuracy, content, legality and completeness of the Confidential Information.

10.3 Unless otherwise agreed in writing, the Recipient acknowledges that the Disclosing Party:

1. makes no representation or warranty, express or implied, about the accuracy, content, legality or completeness of the Confidential Information;
2. is not obliged to notify the Recipient or give the Recipient any further information if it becomes aware of any inaccuracy, incompleteness or change in the Confidential Information;
3. makes no representation or warranty, express or implied, that the Confidential Information does not infringe any person’s intellectual property rights or any other right; and
4. is not liable for any direct or indirect damage arising from the Recipient using information (including the Confidential Information) the Disclosing Party provides either directly or indirectly.

11. Indemnity

11.1 The Recipient indemnifies and keeps the Disclosing Party (including for the avoidance of doubt, any Client) indemnified against all:

1. Claims made against the Disclosing Party (including for the avoidance of doubt, any Client) arising out of or in connection with the Recipient or Recipient’s employees, bankers, financiers, accountants and other professional advisers breaching this Agreement; and
2. Liabilities incurred or suffered by the Disclosing Party (including for the avoidance of doubt, any Client) arising out of or in connection with the Recipient or Recipient’s employees, bankers, financiers, accountants and other professional advisers breaching this Agreement.

11.2 The indemnity in clause 1 is a continuing obligation, separate and independent from the Recipient’s other obligations and survives this Agreement ending.

11.3 It is not necessary for the Disclosing Party (including for the avoidance of doubt, any Client) to incur expense or make any payment before enforcing its right of indemnity in clause 1.

12. General

12.1 Law and jurisdiction

1. This Agreement is governed by the law of Queensland.
2. The parties agree to the non-exclusive jurisdiction of the courts of Queensland, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.

12.2 Amending this Agreement

This Agreement may only be amended in writing by all parties.

12.3 Counterparts

1. This Agreement may be signed in counterparts, all of which taken together constitute one document.
2. All parties agree that a facsimile of a party’s signature or other electronically transmitted signature of a party is sufficient to bind them under the terms of this Agreement.

12.4 Each party must do whatever is necessary

Each party must do or refrain from doing whatever is reasonably required to give effect to this Agreement, both before and after it is signed.

12.5 Assigning this Agreement

A party must not, without obtaining the other party’s written consent, assign or novate this Agreement or any right under it.

12.6 Giving a notice

1. A notice or other communication given to a party under this Agreement must be:
   1. in writing and addressed to that party at the address stated in this Agreement, or as otherwise notified in writing by that party to the other party;
   2. signed by the party making the communication or by that party’s legal representative, or any attorney, director, secretary, or authorised agent of that party on its behalf; and
   3. delivered by hand or posted by priority prepaid post to the party’s address or emailed to the party’s email address.
2. A notice or other communication given to a party under this Agreement is deemed delivered:
   1. if delivered by hand, upon delivery;
   2. if posted within Australia to an Australian address, four Business Days after posting, and in any other case, 10 Business Days after posting; or
   3. if delivered by electronic mail, and the email is in a commonly used format, and any attached file is a pdf, jpeg, tiff or other commonly used format, subject to clause 12.6(b)(iv) when the email left the sender’s email system, unless the sender receives notice that the email was not received by the recipient; and
   4. if received after 5.00pm in the place it is received or on a day which is not a business day in that place, at 9.00am on the next business day in that place.

12.7 Severability

1. If all or any part of a term of this Agreement is unenforceable or invalid, it must:
   1. where possible, be interpreted as narrowly as necessary to allow it to be enforceable and valid; or
   2. if it cannot be interpreted narrowly to allow it to be enforceable and valid, be severed from this Agreement.
2. The validity and enforceability of the remaining terms is not affected.

12.8 No waiver

1. The failure of either party to enforce any term of this Agreement is not a waiver of their right to enforce any term of this Agreement at any later time.
2. A right may only be waived in writing, signed by the parties.

12.9 Who must pay costs?

Unless expressly stated otherwise, each party agrees to pay their own costs associated with:

1. preparing and finalising this Agreement and any ancillary document required to give effect to this Agreement; and
2. obtaining independent advice about this Agreement.

 

Important Notice to Recipient

Real Estate Dynamics is an agent of the Seller and neither it nor its employees are financial advisors. Real Estate Dynamics does not investigate or make any professional or other judgement in relation to the material supplied by the Seller and as such Real Estate Dynamics does not warrant the veracity or accuracy of the Confidential Information. The Recipient must satisfy itself and conduct its own enquiries in relation to all of the Confidential Information supplied pursuant to this Agreement.