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Non-Disclosure Agreement

THE PARTIES. This Non-Disclosure Agreement, hereinafter known as the “Agreement”, and is by and between CMK Fitness Pty Ltd, hereinafter known as “1 st Party”,  and the Consenting Party, hereinafter known as “2 nd Party”, and collectively known as the “Parties”. 

WHEREAS:

A. That this Agreement is being executed in connection with the discussions and other exchanges of information that representatives of the parties have had or will have for the purpose of evaluating the possibility of entering into a business arrangement.

B. That in the process each Party (hereinafter the ‘Disclosing Party’) shall provide to the other Party (hereinafter the ‘Confidant’) access to certain information including confidential information, confidentiality whereof has to be maintained and accordingly, the Parties are entering into this Confidentiality Agreement.

C. That in the process each Party (hereinafter the ‘Disclosing Party’) shall provide to the other Party (hereinafter the ‘Confidant’) access to certain information including confidential information, confidentiality whereof has to be maintained and accordingly, the Parties are entering into this Confidentiality Agreement.

NOW THIS AGREEMENT WITNESSES AND IT IS HEREBY AGREED AS FOLLOWS:

  1. Purpose: That the Parties wish to explore a business opportunity of mutual interest and in connection with this opportunity, each Party may disclose or have already disclosed to the other certain confidential technical and business information which the Disclosing Party desires the Confidant to treat as confidential.
  2. Confidential Information: That for the purposes of this Agreement, “Confidential Information” shall mean any proprietary and confidential information and trade secrets with respect to the Disclosing Party’s business, including without limitation information relating to its products, technology, processes, drawings, specifications, programs, models, financial information and projections, formulae, methods, techniques, composition, compound, development, plan, vendor information, customer information, research reports, map data, clinical data, financial data, know-how, developments, designs, improvements, software programs, products, marketing or business plans and strategies, corporate structure for regulatory compliance, forecast, personnel data, customer and supplier lists and other valuable business information and opportunities , materials relating to the proprietary technical, financial, customer or business affairs of the party disclosing Confidential Information (the “Disclosing Party”) in any form (including in writing, electronically, computerized, orally or otherwise) which is either identified as confidential or which by its nature is generally considered proprietary and confidential (regardless of whether such information is specifically labeled as such) to the party receiving Confidential Information (the “Confidant”) pursuant to the terms of this Agreement.
  3. Exclusions:  That this Agreement imposes no obligation upon Confidant with respect to information that:  (i) was in Confidant’s lawful possession before receipt from Disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of Confidant; (iii) is rightfully received by Confidant from a third party without a duty of confidentiality; (iv) is obtained by the Confidant from a third party lawfully in possession of such information, without a breach of such third party’s obligations of confidentiality and as shown by documents and other competent evidence in the Confidant’s possession; (v) is independently developed by Confidant without use of or reference to the disclosing party’s Confidential Information; (vi) is disclosed under operation of law, except that Confidant will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed; or (vii) is disclosed by Confidant with Disclosing Party’s prior written approval.
  4. Confidant’s Duties:  Confidant shall not use Confidential Information for any purpose other than the intended use set forth in Paragraph 1 above, and shall not disclose, disseminate or otherwise publish or communicate Confidential Information received hereunder to any person, firm, corporation or other third party without the prior written consent of Disclosing Party, except as follows: (a) to employees, professional advisers, and individual independent contractors of Confidant who have a need to know and who have been informed of Confidant’s obligations hereunder; (b) to consultants of Confidant and other third Parties, but only with Disclosing Party’s prior written consent, which Disclosing Party may grant or withhold in its discretion; and (c) when disclosure is required under applicable law, if Confidant first gives Disclosing Party a notice of the required disclosure and cooperates with Disclosing Party, at Disclosing Party’s expense, in seeking reasonable protective arrangements (however, Confidant is not required to act in a manner which would result in sanctions or other penalties). Confidant shall be primarily liable to Disclosure for the compliance of each person described in clause (a) or (b) with this Agreement. Confidant agrees to use the same degree of care that it uses to protect its own confidential information of a like nature from unauthorized disclosure, but in no event less than a reasonable degree of care.
  5. Term and Termination of Agreement: This Agreement shall come into force from “Effective Date”. This Agreement and each Party’s duties with respect to the other Party’s proprietary information shall terminate upon the occurrence of the earlier of following events:
    a) by written agreement between the Parties in furtherance to the purpose under Clause 1;
    b) when either Party notifies the other by giving 10 days notice in writing electing to discontinue the discussions in respect of the Purpose.
    c) In the event that no arrangement or agreement is entered into between the parties relating to the Opportunity or any other matter, this Agreement shall expire three (3) years after the Effective Date.  If such an arrangement or agreement is entered into, the term of this Agreement shall continue indefinitely until either party terminates this Agreement upon thirty (30) days’ prior written notice to the other party.
    d) Nothing herein shall obligate either party to disclose any Confidential Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to the Opportunity or any other matter.
  6. The confidentiality obligation imposed by this Agreement for confidential information already disclosed under the provisions of this Agreement shall survive such termination.
  7. No Obligation: Nothing in this Agreement shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity.
  8. Warranty: Each Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS,” AND WITHOUT ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
  9. Injunctive Relief: The Parties agree that, in the event of a breach or threatened breach of the terms of this Agreement, any Party shall be entitled to an injunction in addition to and not in lieu of any other legal or equitable relief including money damages.  The Parties acknowledge that the Confidential Information is valuable and unique and that disclosure will result in irreparable injury to the proprietor of the Confidential Information.
  10. Ownership and Other Rights: Neither Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the intended use. Except as otherwise specifically provided herein, no license or transfer of intellectual property rights in any Confidential Information is provided hereunder, either expressly or by implication, estoppel or otherwise. Nothing herein grants any rights whatsoever to the parties to test, disassemble, decompile, reverse engineer, replicate, or otherwise copy any of the Confidential Information or a party’s intellectual property.  To the extent applicable, each party shall reproduce the other party’s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. No party shall use or cause to be published in any kind of media or communication the name, logo or other identifying information of any of the parties to this Agreement without the prior expressed written consent of the specific party.
  11. No waiver: Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
  12. Costs: Except as the Parties may otherwise agree in writing, each Party will bear its own costs in connection with the activities undertaken in connection with this Agreement.
  13. Assignment: Neither Party shall assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party.
  14. Relationship: This Agreement is not intended to constitute, create, give effect to, or otherwise recognize a joint venture, partnership or formal business entity of any kind and the rights and obligations of the Parties shall be limited to those expressed set forth herein. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose whatsoever and no Party shall have any authority to bind the other Party.
  15. Entire Agreement: This Agreement constitutes the entire understanding between the Parties with respect to the proprietary information described above and it supersedes any prior or contemporaneous oral or written communications relating to the subject matter hereof.
  16. Amendment:  All additions or modifications to this Agreement must be made in writing and must be signed by both Parties.
  17. Governing law: This Agreement shall be governed by, construed and enforced in accordance with the laws of Australia and the Courts in Queensland shall have exclusive jurisdiction.