Each party agrees to keep confidential all
Confidential Information disclosed to it by the other party on the terms of
TERMS OF THIS AGREEMENT
Definitions: In this Agreement, the following terms
have the stated meaning:
relation to a party, a Related Company, director, officer, shareholder, owner,
employee or professional advisor of that party.
Agreement:clauses 1 to 9 of this document.
Confidential Information: includes:
▲ all information (whether in oral, written, electronic
or other recorded form) disclosed by or on behalf of a party to the other party
in connection with the Purpose, whether before or after the date of this Agreement;
▲ all copies of that information,
but does not include:
▲ publicly available information; or
▲ information which becomes known to the
other party from a third person who is not in breach of any obligation of
confidentiality to the party who disclosed the information; or
▲ the fact that discussions are taking place
related to the Purpose or that either party has engaged the other for services.
▲ Carrying out the service and processes of
Excel Rescue Limited.
▲ assessing a party’s interest in acquiring
all or part of the business of the other party by way of an acquisition of
shares and/or assets.
has the meaning given in the New Zealand Companies Act 1993.
Unauthorised Activity: any unauthorised access, use, copying or disclosure of Confidential
1.2 Interpretation: In this Agreement:
clause and other
headings are for ease of reference only and do not affect the interpretation of
words importing the
singular include the plural and vice versa; and
a reference to:
a party to this Agreement
includes that party’s permitted assigns;
similar words do not imply any limit; and
includes an individual, body corporate, unincorporated body or other entity.
Nothing in this Agreement obliges a party to disclose Confidential Information
to the other party.
USE AND DISCLOSURE
Use: Each party must use the other party’s Confidential
Information solely for the Purpose.
2.2 Disclosure: A party must not disclose the other party’s Confidential
Information to any person except an Affiliate who has:
a need to know for the
Purpose, but only to the extent of that need to know; and
agreed to comply with obligations
the same or substantially similar to those under this Agreement.
Breach by Affiliate:
A breach of this Agreement
by an Affiliate of a party is deemed to be a breach of this Agreement by that
Onsupply: The exception in clause 2.2 does not extend
to enable an Affiliate to disclose Confidential Information to its affiliates.
Acknowledgement: Each party acknowledges that the other
party’s Confidential Information is provided on terms of strict
3.2 Security: Each party must:
establish and maintain proper
and effective security measures to safeguard the other party’s Confidential
Information at all times from Unauthorised Activity;
subject to any express clause
to the contrary in this Agreement, keep the other party’s Confidential
Information under its control;
immediately notify the
other party of any suspected or actual Unauthorised Activity relating to the
other party’s Confidential Information, including by an Affiliate; and
take all steps to stop
any Unauthorised Activity, including providing all assistance that is
reasonably requested by the other party in relation to any proceedings that the
other party takes against any person for Unauthorised Activity.
DISCLOSURE REQUIRED BY
4.1 Types of disclosure: Clause 4.2 applies if a party is obliged
to disclose the other party’s Confidential Information by:
law (including under
the New Zealand Official Information Act 1982 or the rules of any stock
exchange to which the relevant party is subject); or
a court order.
4.2 Action to take: The party must:
promptly, and prior to
disclosure, give written notice of the requirement to the other party to enable
the other party to seek a protective order or other appropriate remedy; and
where the other party’s
Confidential Information is disclosed as a result of the requirement, use all
reasonable endeavours to obtain, from the recipient, assurances that the
Confidential Information will be treated as confidential.
Each party acknowledges that in the case of a breach
of this Agreement by it or an Affiliate:
the breach may result
in loss to the other party that may not be adequately compensated by payment of
the other party is
entitled to equitable relief, including enforcing its rights by specific
performance or injunction proceedings.
6.1 No warranty: Neither party makes or gives any express or implied
representation, undertaking or warranty that:
a the Confidential Information is or will be:
complete or accurate;
independently verified; or
reasonable care has
been or will be taken in compiling or preparing the Confidential Information.
No liability for
use: A party will not be
liable to the other party (or the other party’s Affiliates) in respect of its
Confidential Information or the use of that Confidential Information.
party retains all intellectual property rights, title and interest in the Confidential
Information that it discloses.
COMPLETION OF PURPOSE
continue: The obligations
under this Agreement continue to apply to the parties after completion or
termination of the Purpose.
8.2 Return of information:
At the request of a
party after completion or termination of the Purpose, the other party must
promptly return to it or destroy all Confidential Information which is in the party’s,
or its Affiliates’, possession and control.
Despite clause 8.2a, a
party, or any of its professional advisors, may retain Confidential Information
that it is legally required to retain, but only to the extent of that legal
The other party must
provide the first party with written confirmation that it has complied with
clause 8.2a and/or 8.2b.
Waiver: To waive a right under this Agreement,
the waiver must be in writing and signed by the waiving party.
Assignment: Neither party may assign or otherwise
transfer any of its rights or obligations under this Agreement unless with the
other party’s prior written consent.
Law: This Agreement is governed by, and must be
interpreted in accordance with, the laws of New Zealand. Each party submits to
the non-exclusive jurisdiction of the Courts of New Zealand in relation to any
dispute connected with the Agreement.
Severability: If any provision of this Agreement is, or
becomes, unenforceable, illegal or invalid for any reason, the relevant
provision is deemed to be varied to the extent necessary to remedy the unenforceability,
illegality or invalidity. If variation is not possible, the provision must be
treated as severed from this Agreement without affecting any other provisions
of this Agreement.
Counterparts: This Agreement may be signed in
counterparts, each of which constitutes an original and all of which constitute
the same agreement. A party may enter this Agreement by signing and sending
(including by facsimile or email) a counterpart copy to the other party.
Variation: Any variation to this Agreement must be
in writing and signed by both parties.
Further acts: Each party must sign and deliver any
document and undertake any act, matter and thing which is reasonably requested
by the other party to give effect to the intent and purpose of this Agreement.
Entire agreement: This Agreement sets out everything agreed
by the parties relating to its subject matter and supersedes and cancels anything
discussed, exchanged or agreed prior to the date of this Agreement. The
parties have not relied on any representation, warranty or agreement relating
to the subject matter of this Agreement that is not expressly set out in this
Agreement, and no such representation, warranty or agreement has any effect
from the date of this Agreement.