Capitalised words and phrases in this Agreement have their meaning as set out below:
Agreement means this Mutual Non-Disclosure Agreement, formed by execution of a Formal Instrument of Agreement that incorporates this document by reference.
Authorised Person means any:
officer or employee/officer, employee, agent or contractor of the Recipient or any of its related bodies corporate;
person engaged to provide legal, financial or other professional advice to the Recipient in relation to the Permitted Purpose; and
other person approved by the Discloser in writing whose approval has not been withdrawn and who, before any Confidential Information is disclosed to it has been made aware of the Recipient’s obligations under this Agreement and has agreed to comply with similar obligations.
Business Day means an eight-hour working day, Monday through Friday inclusive, except when any such day falls on a statutory or public holiday, observed in the location of the Agilyx party to this Agreement determined by the table in the ‘Governing law and jurisdiction’ clause.
Claim means all claims, demands, actions, suits, complaints, proceedings and causes of action of every description, both at law and in equity, including for losses, damages, interest and the costs thereof, and includes any arbitral, legal, administrative, government or other proceedings or investigations, whether the circumstances giving rise to those are known or unknown to the parties on the date of the Agreement.
Confidential Information means information (except the Excluded Information) of the Discloser in any form or media, and whether given or acquired directly or indirectly before or after the date of this Agreement, relating to the Discloser’s:
business, or the business of any of its affiliated or related entities;
corporate or customer data, past, present or future structure, business activities, strategies, and assets; products and their methods of production and distribution, trade secrets and know-how, financial affairs, network, communications, technology, clients, customers, suppliers, distributors and their financial affairs;
pricing, mailing lists, proprietary data, data model(s), data integrators, product designs, capabilities, specifications, program code, software systems and processes, information regarding existing and future technical, business and marketing plans and product strategies, analysis reports or results from the testing of any products and the identity of actual and potential customers, data providers and suppliers; and
information that is by its nature confidential or that is marked or designated or confirmed by the Discloser as confidential or proprietary at the time of its disclosure, including without limitation any confidential information supplied by its data providers or clients.
Discloser means a party who makes Confidential Information available to the other party.
Excluded Information means information that:
is in or enters the public domain through no wrongful act; or
the Recipient can establish to the reasonable satisfaction of the Discloser was either made available on a non-confidential basis to the Recipient (again through no wrongful act) or was developed by the Recipient without using any Confidential Information.
Government Agency means a government or government department or other body; a governmental, semi-governmental or judicial person; or a person (whether autonomous or not) who is charged with the administration of a Law.
Law means any applicable law, which includes without limitation, common law, equity, judgment, legislation, orders, regulations or subordinate legislation, by–laws, ordinances or any other legislative or regulatory measures.
Liability means all liabilities, damages, interest, fees, penalties, fines, assessments, forfeiture and expenses of whatever description (whether actual, contingent, current or prospective).
Permitted Purpose means the purpose of the exchange of Confidential Information listed on the Formal Instrument of Agreement.
Recipient means a party that receives Confidential Information from the other party.
Records means records (including all copies) in any form or media that contain, refer to, or are based on, any Confidential Information or any analysis of it.
In this Agreement, unless it is provided otherwise, the Rules of Interpretation apply.
Each party enters into this Agreement in consideration of the other party agreeing to observe the provisions of this Agreement applying to any Confidential Information provided to that party.
A party may make Confidential Information available to the other for the Permitted Purpose.
The Recipient must not, directly or indirectly:
use any Confidential Information except to the extent necessary for the Permitted Purpose; or
disclose any Confidential Information, except in accordance with the ‘Permitted Disclosures’ clause below, without first obtaining the Discloser’s written consent.
Without limiting this ‘Confidential Information’ clause, the Recipient may make Records, and allow Records to be made, but only to the extent necessary for the Permitted Purpose.
If the Recipient is uncertain whether any information is Confidential Information it must treat that information as Confidential Information until the Discloser agrees in writing that it is not Confidential Information.
Without limiting the provisions of this Agreement, the Recipient may only disclose Confidential Information as set in the subclauses below, on the conditions also set out.
The Recipient may disclose Confidential Information to an Authorised Person who needs to know that Confidential Information for the Permitted Purpose, provided that the Recipient:
must ensure that each Authorised Person complies with obligations at least as restrictive those of the Recipient under this Agreement in relation to the Confidential Information; and
is responsible for any Authorised Person’s breach of his or her obligations concerning the Confidential Information, or
The Recipient may disclose Confidential Information to comply with a Law or legally enforceable requirement to do so, including an order of a court or tribunal of competent jurisdiction; or to comply with a requirement of any Government Agency, stock exchange or other regulatory body, provided that the Recipient:
to the extent possible, notifies the Discloser in writing immediately if it anticipates that it may be required to comply with a legally enforceable requirement to disclose the Confidential Information and take all reasonable steps to prevent the disclosure from occurring; and
if disclosure cannot be avoided, only disclose Confidential Information to the extent reasonably necessary to comply and use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential.
The Recipient must use all reasonable steps to ensure that the Confidential Information and all Records are kept under its effective control and are secure from theft, loss, damage and unauthorized access, use and disclosure.
The Recipient must allow the Discloser and its representatives reasonable access to the Recipient’s Records to check the Recipient’s compliance with its obligations under this Agreement and, at the Discloser’s request, give details to the Discloser of the steps taken by it to comply with this Agreement.
The Recipient must notify the Discloser in writing immediately if it becomes aware of any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information or Records, whether or not because of any breach of this Agreement.
The Recipient must, at its cost, promptly take all steps that the Discloser may reasonably require, including starting, conducting and settling or joining any enforcement proceedings, in relation to any actual, suspected, likely or threatened breaches of this Agreement or other theft, loss, damage or unauthorized access, use of disclosure of or to any Confidential Information or Records that is or was in its possession, custody or control; and
The Recipient must immediately notify the Discloser in writing if it does not wish to proceed with the Permitted Purpose and when it terminates or completes the Permitted Purpose.
The Recipient acknowledges and agrees that the Discloser has not made and does not make any representation or warranty (express or implied) that the Confidential Information is accurate, complete or reliable or that reasonable care has been or will be taken by it in the compilation, preparation or provision of any Confidential Information;
The Recipient acknowledges and agrees that the Recipient will conduct its own investigation and analysis of the Confidential Information and rely solely on that investigation and analysis (rather than on the Confidential Information itself) for the Permitted Purpose;
The Recipient acknowledges and agrees that the Recipient has no rights or interests in any of the Confidential Information other than the right to use and disclose it on the terms of this Agreement; and
The Recipient acknowledges and agrees that, to the extent permitted by law, neither the Discloser nor any of its officers, employees, agents or consultants is liable for any loss or damage (whether or not on the basis of negligence) that the Recipient or anyone else may suffer or incur as a result of using, or (contrary to this Agreement) relying on, any Confidential Information.
At the Discloser’s request, or when no longer required for the Permitted Purpose, or on the completion or termination of the Permitted Purpose, whichever occurs first, the Recipient must immediately, at its cost stop using all Confidential Information and:
deliver to the Discloser, or, at the Discloser’s option, destroy, all tangible Records; and
erase, or destroy in another way (including from electronic storage), all intangible Records, in the possession, custody or control of the Recipient or any person to whom it has given access to these Records, whether or not in accordance with this Agreement.
The Discloser may at any time require the Recipient to certify in writing satisfactory to the Discloser that all Records have been returned, removed or destroyed and to permit the Discloser’s representative to witness any destruction.
The Recipient’s compliance with this clause does not release it from any of its other obligations under this Agreement.
The Recipient acknowledges that any breach or threatened breach of this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. The Recipient agrees that the Discloser may commence any proceedings to restrain any breach or threatened breach of this Agreement and any other unauthorized access to, or use or disclosure of, any Confidential Information or to compel specific performance of this Agreement.
This Agreement can only be amended, supplemented, replaced or novated by another document signed by the parties.
Other than to a related body corporate, no party may assign its rights or obligations under this agreement without the prior written consent of the other parties, which consent may be given or withheld, or given on conditions, in the absolute discretion of those other parties.
The terms of this Agreement continue to apply to the parties (in addition to any permitted assignee) despite any permitted assignment of any rights under this Agreement or the completion or termination of the Permitted Purpose, or the completion, expiration or termination of this Agreement.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
The exercise of a power or right does not preclude:
its future exercise; or
the exercise of any other power or right; or
the variation or waiver of a provision of this agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.
Each party will pay its own costs of, and incidental to, this Agreement.
Should a dispute arise between the parties in relation to this Agreement then prior to pursuing any legal rights, other than seeking urgent interlocutory rights, the aggrieved party must provide written notification of the problem to the Managing Director (or equivalent position) of the other party, the details of whom are notified in writing by that other party. Both parties shall then use all reasonable endeavours to resolve the dispute within 30 days of receiving this notice. Should there still be no resolution then the aggrieved party is entitled to pursue its legal rights.
A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
delivered personally;
posted to their registered office address when it will be treated as having been received on the seventh Business Day after posting if posted from a location within the same country as the recipient or twenty Business Days after posting if posted from a location outside of the country of the recipient; or
sent by email to their email address, when it will be treated as received when it enters the recipient’s information system unless the sender receives an automatic notification of ‘out of office’ or similar. Email notices sent to Agilyx must be copied to legal@agilyxgroup.com.
This Agreement is governed by the laws of the jursidiction listed in the below table for the Agilyx party that entered into the Agreement with the counterparty. Each party irrevocably and uncoditionally submits to the exclusive jurisdiction of the courts of the jurisdiction listed for the Agilyx party to the Agreement and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proeedings in connection with this Agreement.
| Agilyx Party | Jurisdiction |
|---|---|
| Agilyx Pty Limited | New South Wales, Australia |
| Agilyx EMEA Limited | England, United Kingdom |
| Agilyx Africa (Pty) Ltd | Pretoria, Republic of South Africa |
| Agilyx NZ Limited | New Zealand |
| Agilyx Ireland Services Ltd | Ireland |
| Agilyx Solutions Limited | British Columbia, Canada |
| Agilyx Solutions LLC | Wyoming, United States of America |
| Agilyx Sdn Bhd | Kuala Lumpur, Malaysia |
| Agilyx Pte Ltd | Singapore |
This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of this Agreement will be the date on which it is executed by the last party.
Each party will do, sign, execute and deliver all agreements, documents, instruments and acts reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
This Agreement is the whole and entire agreement in relation to its subject matter between the parties and supersedes all oral and written communications by or on behalf of any of the parties.
Any provision of, or the application of any provision of this Agreement, which is prohibited, void, illegal or unenforceable in any jurisdiction:
is, in that jurisdiction, ineffective only to the extent to which it is void, illegal, unenforceable or prohibited;
does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of this Agreement in that or any other jurisdiction;
is severable from this Agreement and will not affect the remaining provisions of this Agreement; and
the application of this subclause is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.
