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Uncork Confidentiality Agreement.

RECITALS

  • Uncork is engaged in the business of the design, development, manufacture, wholesale (including export) and retail via online sales of wine cellar management and wine information software packages and related accessories including bottle tags, barcode scanners and other products ("Products") under the Uncork brand ("the Business").
  • Uncork seeks to enter into commercial relationships with local and international distributors, wholesalers and/or retailers for the distribution and sale of their Products or with other persons or entities including but not limited to potential agents, investors or partners interested in exploiting the Products and employees, contractors, manufacturers and advisors interested in joining or assisting the Business.
  • The Recipient wishes to enter into discussions to form a Commercial Relationship with Uncork.
  • During these discussions there will be the disclosure of Confidential Information about the Business including design ideas and concepts which has a unique value to Uncork.
  • Uncork will be prejudiced by any unauthorised use or disclosure of the Confidential Information.
  • The parties agree to disclose and use the Confidential Information as provided in this Agreement.

 

THE PARTIES AGREE as follows:

Definitions and interpretation

1. In the construction of this Agreement, unless the contrary intention appears:

'Approved purpose' means evaluation by the Recipient of Uncork and the Business to decide whether or not to enter into a Commercial Relationship with Uncork in relation to the Business.

'Confidential information' means all information provided by Uncork or its employees, agents, officers or advisers to the Recipient including:

  • technical information, software, designs, artwork, website content, photographs and written work including preliminary concepts and sketches;
  • trade secrets, including ideas, know-how and business concepts not reduced to material form;
  • business plans, systems, policies and procedures;
  • market information;
  • marketing material;
  • commercial information about Uncork or persons with whom Uncork deals, including details of agreements with employees, contractors, customers and others;
  • financial information about Uncork;
  • all intellectual property including trademarks and work to which copyright applies;
  • any information marked "confidential" or which Uncork informs the Recipient is confidential or a trade secret;
but excluding:
  • information available to the public (other than through disclosure by the Recipient or by a person to whom the Recipient disclosed the Confidential Information);
  • information which the Recipient can prove it lawfully possessed before obtaining it in connection with this Agreement;

'Regulatory Body' means any Federal or State Minister of the Crown, government or quasi government agency or statutory authority whose approval or consent is necessary for the Approved Purpose.

Value and ownership

2. The Recipient acknowledges that all of the Confidential Information will at all times remain the absolute property of Uncork.

General obligation

3. The Recipient must take all steps necessary to safeguard the confidentiality of the Confidential Information.

Particular obligation

4. The Recipient may use the Confidential Information only:

  • for the Approved Purpose; or
  • to the extent and for a purpose to which Uncork has consented in writing.

Restrictions

5. Without limiting the generality of the above Clauses, the Recipient MUST not:

  • profit from the use of the Confidential Information, except in respect of the Approved Purpose;
  • develop any business idea, enterprise, products or services based on the Confidential Information without Uncork's consent in writing; and
  • use or disclose to a third party any aspect of the Confidential Information for the purpose of contacting or contracting with any employee or client of Uncork.

Permitted Disclosures

6. The Recipient may disclose the Confidential Information only:

  • to a person, including any and all of its employees, agents, officers or advisers if:
    • the Recipient has informed that person of the confidential nature of the Confidential Information; and
    • that person has undertaken in writing to Uncork to keep the Confidential Information secret and confidential, on the same terms as those in this Agreement; and
    • it is necessary for the Recipient to disclose the Confidential Information for the Approved Purpose; or
  • to the extent and for a purpose to which Uncork has consented in writing; or
  • to the extent required by law.

Printing and Reproduction

7. The Recipient may copy or print the Confidential Information only if Uncork has consented in writing.

Communication with Regulatory Body

8. The Recipient may communicate with a Regulatory Body about the Approved Purpose or the Confidential Information only if Uncork has consented in writing.

Security

9. The Recipient must

  • keep all the Confidential Information in a secure manner.
  • immediately report to Uncork any unauthorised use, disclosure, copy or printing of the Confidential Information of which the Recipient becomes aware.
  • use its best efforts to obtain the return or destruction or deletion of any unauthorised copy or print-out of the Confidential Information.

Return and Destruction

10. On demand by Uncork, the Recipient must:

  • deliver to Uncork all the Confidential Information in the Recipient's possession or control;
  • delete all the Confidential Information held electronically in any medium in the Recipient's possession or control; and
  • destroy all documents which were prepared by or for the Recipient and which were based wholly or partly on the Confidential Information, and delete all such documents held electronically in any medium in the Recipient's possession or control.

Claims in case of Breach

10. Uncork reserves the right to make claims for all remedies available to it against the Recipient in relation to any losses or damage suffered by Uncork should the Recipient commit any breach of this Agreement.

Injunctive relief

11. In the event of a breach or threatened breach of this Agreement, Uncork is entitled to injunctive relief in addition to any other remedies available at law or in equity, without showing or proving any actual damage sustained by Uncork due to the breach or threatened breach.

Continuing obligations

12. The obligations of the Recipient under this Agreement survive the completion of the Recipient's evaluation of the Business as well as the completion of any agreement in respect of the Approved Purpose, except as otherwise provided by such an agreement.

Licence Rights

13. This Agreement does NOT grant the recipient any licence rights or other rights relating to the Business. Any rights must be detailed in a separate Agreement and signed by both parties.

No Assignment

14. The Recipient must not assign all or any of its rights or obligations under this Agreement without the prior written consent of Uncork.

Applicable law

15. This Agreement is governed by the law of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.

No warranties

17. Uncork makes no warranty or representation that the Confidential Information:

  • is fit for any general, or any particular purpose; and
  • does not infringe the rights of any other person.

Amendments

18. Uncork may modify this Agreement at any time. You agree to assume all responsibility in reviewing this Agreement periodically so that you will be apprised of any changes.

Severability

19. If any provision of this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.

Acceptance of Terms

20. Each party agrees to be bound by the terms of this Agreement. The Recipient by clicking on 'I have read and agree to the terms in the Uncork Confidentiality Agreement' is deemed to have read, understood and agreed to its terms and to have sought legal advice from an independent legal adviser as to the matters in issue. Should the Recipient elect not to seek independent legal advice, the Recipient by by clicking on 'I have read and agree to the terms in the Uncork Confidentiality Agreement' hereby waives its right to seek same and forever indemnifies Uncork from any claim arising from misinterpretation or misunderstanding of the terms of this Agreement.

 

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