Mutual Confidentiality Agreement
The University of Adelaide
AND
[# Insert name]
Version: August 2014
For the current version of this template, please refer to the Legal and Risk website (www.adelaide.edu.au/legalandrisk)
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MUTUAL CONFIDENTIALITY AGREEMENT
PARTIES
1. The University of Adelaide ABN 61 249 878 937, a body corporate established pursuant to the provisions of the University of Adelaide Act 1971, of North Terrace, Adelaide, South Australia 5005, Australia; and
2. [Insert name] [Insert ABN] of [Insert Address].
Version: August 2014
For the current version of this template, please refer to the Legal and Risk website (www.adelaide.edu.au/legalandrisk)
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BACKGROUND
A. The parties have agreed to disclose Confidential Information to each other solely for the Permitted Purpose and on the terms of this Agreement.
B. Each Recipient agrees to keep the Confidential Information confidential and use it only in accordance with the terms of this Agreement.
OPERATIVE PART
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires:
1.1.1 “Confidential Information” of a Disclosing Party means any information or data, of whatever description regardless of its form whether tangible visible recorded or communicated orally or visually, which is disclosed to or obtained by the Recipient whether before or after the date of this Agreement, and which is either marked or stated to be confidential by, or is by its nature intended to be confidential to, the Disclosing Party and includes:
1.1.1.1 any present or future business activities, financial affairs, plans and products of the Disclosing Party;
1.1.1.2 any technical information, data, technology, specifications and manuals of the Disclosing Party; and
1.1.1.3 supplier and customer information of the Disclosing Party.
1.1.2 “Disclosing Party” means a party to this agreement who discloses Confidential Information to a Recipient.
1.1.3 "Intellectual Property Rights" means any patent, copyright, design, trade mark, eligible layout or similar whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know-how, good will and confidential information;
1.1.4 “Recipient” means a party who obtains Confidential Information of the other Party;
1.1.5 words or expressions importing the singular include the plural and vice versa;
1.1.6 words or expressions importing a gender include any other gender;
1.1.7 words or expressions denoting individuals include corporations, firms, unincorporated bodies, government authorities and instrumentalities;
1.1.8 any heading, index, table of contents or marginal note is for convenience only and does not affect the interpretation of this Agreement; and
1.1.9 the Schedule forms part of this Agreement.
2. confidentiality and rights of use
2.1 The Recipient acknowledges that:
2.1.1 the Confidential Information is the property of the Disclosing Party;
2.1.2 Confidential Information given to the Recipient prior to the date of this Agreement was given on the condition that it be kept confidential; and
2.1.3 the right to maintain the confidentiality of the Confidential Information is a right which the Disclosing Party is entitled to protect.
2.2 Subject to clause 3, the Recipient will ensure that all Confidential Information provided by or obtained from the Disclosing Party will:
2.2.1 be kept strictly confidential and securely stored;
2.2.2 not be disclosed to any third party or published in any other manner (unless the prior written consent of the Disclosing Party is obtained in each instance); and
2.2.3 be used only to the extent necessary for the approved purpose set out in the Schedule. In the case of any uncertainty the Recipient agrees to obtain prior written clearance from the Disclosing Party.
2.3 The Recipient may communicate the Confidential Information to such of its officers, employees and advisors who need to know the Confidential Information in order for the Recipient to undertake the approved purpose set out in the Schedule.
2.4 The Recipient will ensure that any persons to whom it provides access to the Confidential Information are aware of and comply with the Recipient’s obligations under this Agreement as if each of those persons was a party and signatory to this Agreement.
2.5 Upon request the Recipient will provide the Disclosing Party with a list of all persons to whom it has provided access to Confidential Information.
2.6 The Recipient must promptly notify the Disclosing Party if it becomes aware of a breach of this Agreement.
2.7 The Recipient agrees that:
2.7.1 the Confidential Information, together with all patent, copyright, trade secret, trade mark and other intellectual property rights comprised in the Confidential Information, is and remains the property of the Disclosing Party (or its licensors); and
2.7.2 this agreement does not convey any interest of a proprietary nature, and in particular does not transfer any interest in any intellectual property rights.
2.8 The obligations of confidence under this Agreement are in addition to and not in replacement of any other obligations of confidence that might arise at common law, or in equity.
3. EXCLUSIONS
3.1 The obligations in clause 2 do not extend to such of the Confidential Information as:
3.1.1 was known to the Recipient prior to receipt from the Disclosing Party;
3.1.2 was in or becomes part of the public domain other than through a breach of this Agreement;
3.1.3 is disclosed to the Recipient by any third party which does not owe any obligation to the Disclosing Party (directly or indirectly); or
3.1.4 is required by law to be disclosed by the Recipient (provided that the Recipient will immediately notify the Disclosing Party of any such requirement - if possible before making the disclosure).
3.2 The onus of proof of the matters referred to in clause 3.1 is on the Recipient.
4. no warranty
Each Recipient acknowledges that:
4.1 any Confidential Information supplied by a Disclosing Party is made available “as is” and that no warranties of any kind are granted or implied with respect to the quality of the Confidential Information, including but not limited to, its fitness for any purpose, accuracy, completeness or correctness, or whether it is up-to-date;
4.2 it must make its own assessment of the Confidential Information and satisfy itself as to its accuracy and completeness;
5. indemnity
5.1 The Recipient indemnifies the Disclosing Party against all damage loss and expenses arising from:
5.1.1 any disclosure or use of Confidential Information in breach of this Agreement by Recipient; or
5.1.2 any unauthorised disclosure or use by the Recipient or any persons to whom the Recipient provides or discloses Confidential Information.
5.2 The parties acknowledge that damages alone may not be an adequate remedy for breach of obligations under this Agreement and that the appropriate remedies for any such breach or threatened breach may include, at the Disclosing Party’s sole discretion, orders for specific performance and/or injunctive relief.
6. term
6.1 This Agreement will start from date of the last signature to this Agreement and will remain in force for the term set out in the Schedule.
6.2 Notwithstanding clause 6.1 the provisions of clauses 2, 3, 4 and 7 will survive the termination of this Agreement.
7. return of confidential information
7.1 The Disclosing Party may at any time by notice in writing require the return or destruction of the Confidential Information.
7.2 Within seven (7) days of receipt of a notice pursuant to clause 6.1, the Recipient must deliver to the Disclosing Party all Confidential Information in its possession disclosed or provided by or obtained from the Disclosing Party together with all copies of all Confidential Information in the Recipient’s possession:
7.2.1 provided by or obtained from the Disclosing Party; or
7.2.2 which the Recipient has made for any reason.
7.3 Any part of the Confidential Information which cannot conveniently be returned by the Recipient to the Disclosing Party shall be completely destroyed in such manner and at such time as directed by the Disclosing Party (including by deletion from all computer records and electronic or magnetic storage devices) and the Recipient must certify in writing that it has done so.
7.4 The Recipient is permitted to retain a copy for its record keeping purposes to the extent required by law.
8. general
8.1 This Agreement is the entire agreement between the parties as to its subject matter and supersedes all prior agreements and understandings.
8.2 A Party will not assign, or purport to agree to assign this Agreement or any rights under this Agreement without the prior written consent of the other party.
8.3 No change to this Agreement is binding unless in writing and signed by each of the parties.
8.4 If any part of this Agreement is or becomes invalid for any reason this will not affect the validity of the remaining parts.
8.5 The law of this Agreement is the law of South Australia and the parties submit themselves to the non-exclusive jurisdiction of the Courts of that State.
9. notices
9.1 Any notice to be given under this Agreement must be in writing and may be served either personally or by post or electronic mail to the address indicated in the Schedule, or any other address which is subsequently notified by a party. Notice given by post is deemed to have been received by the addressee at the expiration of three (3) days after the same has been posted. Notice given by email is deemed to have been served on the date that the email enters the addressee's mail server.
Version: August 2014
For the current version of this template, please refer to the Legal and Risk website (www.adelaide.edu.au/legalandrisk)
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EXECUTED as an agreementEXECUTED by an authorised officer of THE UNIVERSITY OF ADELAIDE in the presence of: / )
)
)
)
……………………………………………
WITNESS
……………………………………………
Name
(BLOCK LETTERS) / ……………………………………………
AUTHORISED OFFICER
……………………………………………
Name
(BLOCK LETTERS)
Date:
EXECUTED by an authorised officer of [INSERT NAME] in the presence of: / )
)
)
)
……………………………………………
WITNESS
……………………………………………
Name
(BLOCK LETTERS) / ……………………………………………
AUTHORISED OFFICER
……………………………………………
Name
(BLOCK LETTERS)
Date:
Version: August 2014
For the current version of this template, please refer to the Legal and Risk website (www.adelaide.edu.au/legalandrisk)
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Schedule 1
Item 1 / Approved Purpose(clause 2.2.3)
Item 2 / Term of Agreement
(clause 6.1)
Item 3 / Address for Notices
(clause 9.1) / For the University of Adelaide
Address:
Attention:
Phone:
Email:
For [insert party name]
Address:
Attention:
Phone:
Email:
Version: August 2014
For the current version of this template, please refer to the Legal and Risk website (www.adelaide.edu.au/legalandrisk)