We got you covered

This agreement is the non disclosure agreement that governs and protects your confidential information and IP. From the moment you first contacted Smartmates, you as our client (potential, current or past) are automatically covered and protected by this agreement.

The Client (“Client” or “you”) is the party that is purchasing a Smartmates prepaid pack for the delivery of software engineering services by the Contractor. The Contractor (the “Contractor” or “Smartmates” or “we” or “us”) is the party that is delivering the software engineering services, namely Smartmates Pty Ltd ABN: 68 634 856 223 of Level 6, 34 Queen St Melbourne, Victoria 3000.

RECITALS

The Client and The Company intend to either explore commercial propositions relating to the Client’s technology and software ecosystem and/or have decided to work together under a commercial relationship in the provision and receiving of software engineering services, and in the course of discussions and engagements will be disclosing certain commercially valuable, proprietary and confidential business, financial, technical and other information to each other and from time to time. Both parties agree to hold this proprietary and confidential information in the strictest confidence upon the terms and conditions of this Agreement during both any exploratory and/or negotiations phase, and additionally any subsequent formal commercial dealings.

AGREEMENT

1. DEFINITIONS

The following definitions apply in this document.

Confidential Information is defined as any and all information of any kind, whether in written or electronic format, oral or otherwise, and whether or not stated as “Confidential”, including without limitation, information relating to the business, financial condition, marketing strategies, know-how, suppliers, customers, operations, pricing, technical information, contract terms and conditions and all information of any kind relating to either party, their respective shareholders and/or related or associated companies which are disclosed, submitted or howsoever made available by or on behalf of one party to the other or to their Personnel for the purpose of or in connection with the Project, whether before or after the date of this Agreement.

Discloser means the party disclosing the Confidential Information.

Personnel means employees, officers, advisors, consultants, agents and/or contractors of either party or of any of either party’s related bodies corporate (as defined in the Corporations Act 2001 (Cth)).

Project means the discussions and negotiations between the parties regarding a potential transaction and other commercial opportunities that are discussed and negotiated between the parties.

Recipient means the party receiving the Confidential Information.

2. MUTUAL UNDERTAKING

2.1 Both parties agree and undertake

(a) To hold the Confidential Information of the other party in the strictest confidence and to not at any time disclose or use or permit to be disclosed or used any of the Confidential Information or its knowledge of the existence of the Confidential Information for any purpose other than for the purpose of the Project; and

(b) Not to disclose or divulge the Confidential Information of the other party to any person without the prior written consent of the other party except to those persons identified in clause 3.1(a) below.

3. OBLIGATIONS OF CONFIDENTIALITY

3.1 Both parties agree to do all of the following:

(a) To restrict the dissemination, circulation and supply of the Confidential Information of the other party or any part to their Personnel who are directly involved with the Project and only to the extent necessary for each of them to perform their duties.

(b) To use their respective best endeavours to ensure and procure that none of their Personnel will do any act, matter or thing which, if done by that party, would constitute a breach of the obligations of that party under the terms of this Agreement.

(c) To take all reasonable action to prevent unauthorised disclosure or use of the Confidential Information of the other party.

(d) Inform and advise their Personnel who may have access to the Confidential Information of its confidential and proprietary nature.

3.2 Neither party will make any public announcements in relation to:

(a) The Project except after obtaining the other Party’s prior written consent or as required by law or the rules of any stock exchange; or

(b) The other Party’s involvement with the Project except after obtaining their prior written consent or as required by law.

4. SECURITY AND CONTROL

4.1 The Recipient must, at its cost, keep the Confidential Information:

(a) Confidential, in a way that makes it clear that it is confidential and, if so required by the Discloser, that it is confidential to the Discloser;

(b) Under its effective control; and

(c) Secure from theft, loss, damage and unauthorised access, use and disclosure.

5. EXCEPTIONS

5.1 The confidentiality obligations of this Agreement will not apply to any part of the Confidential Information which:

(a) Prior to the date of this Agreement, is in the public domain or later comes into the public domain other than as a result of a breach of this Agreement;

(b) Is explicitly approved for release by the Discloser;

(c) Was known to the Recipient at the time of disclosure as shown by written records in existence at the time of disclosure;

(d) Was lawfully obtained by the Recipient without breach of this Agreement and otherwise not in violation of the Discloser’s rights;

(e) Is required by law or by order of a court of competent jurisdiction or by any rule, direction or regulation of any regulatory or governmental authority or any other relevant authority including without limitation, a recognised stock exchange, to be disclosed, provided always that, to the extent permitted by law, prior to any such disclosure being made, the Recipient will notify and consult with the Discloser as to the proposed form, nature and purpose of the disclosure.

6. DURATION OF OBLIGATION

6.1 The obligations of the parties with regards to the Confidential Information disclosed under or in connection with this Agreement will continue for a period of 2 years.

6.2 Without limiting clause 5.1, Clauses 2, 3, 4, 6.1, 6.2, 7, 8 and 11 survive the expiry of this Agreement to the extent it is applicable.

7. OWNERSHIP OF CONFIDENTIAL INFORMATION

The parties acknowledge and agree that all Confidential Information disclosed by or on behalf of the Discloser will be and remain the property of the Discloser. Nothing in this Agreement will be construed as granting or conferring any license or any rights whatsoever (including without limitation any intellectual property rights), whether expressly, impliedly or otherwise, in respect of the Discloser’s Confidential Information to the Recipient.

8. RESTRICTIONS AND RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION

8.1 Confidential Information will not be copied, in whole or in part, without the prior written consent of the Discloser, except for a reasonable number of copies necessary to carry out the transactions contemplated by or pursuant to this Agreement.

8.2 If the parties decide not to proceed with the Project then upon request by the Discloser and at the Discloser’s direction, the Recipient will immediately:

(a) return all documents and other materials containing Confidential Information together with all copies and reproductions of them; or

(b) destroy all documents and other materials containing such Confidential Information together with all copies and reproductions thereof and the Recipient will confirm such destruction to the Discloser in writing.

9. NO LICENCE

9.1 No license, whether express or implied, in the Confidential Information is granted by either party to the other to use the Confidential Information other than in the manner and to the extent authorised by this Agreement.

9.2 The Recipient understands and agrees that it is not allowed to sell, develop or otherwise exploit any parts, products, services, documents or information which embody in whole or in part any Confidential Information, except as contemplated by this Agreement.

10. NOTIFICATION OF BREACH AND ASSISTANCE BY RECIPIENT

10.1 The Recipient shall notify the Discloser immediately if it suspects or becomes aware that there may have been or has been any breach of this Agreement, including becoming aware of any actual or suspected copying or use or disclosure of Confidential Information other than in accordance with this Agreement.

10.2 The Recipient must give the Discloser all assistance it requires to take any action or bring proceedings in relation to any act or omission giving rise to a breach of:

(a) This Agreement; or

(b) An obligation of confidence owed to the Discloser,

By any Personnel of the Recipient.

11. REMEDIES FOR BREACH

11.1 Both parties acknowledge that they are aware and fully understand that in the event of any breach of this Agreement by the Recipient or their Personnel, then the Discloser could suffer substantial loss and damage which monetary damages cannot adequately remedy.

11.2 The Recipient acknowledges that the Discloser will be entitled to seek specific performance, injunctive and other equitable relief in enforcing the obligations in this Agreement in addition to all other remedies available in law.

12. PRIVACY

12.1 If the Confidential Information contains any personal information, the Recipient must:

(a) comply with all applicable privacy or data protection laws, codes or policies as may be in force from time to time which regulate the collection, storage, use and disclosure of information, as if it were subject to those laws, codes or policies;

(b) promptly notify the Discloser of any complaint or investigation under, or relating to, any of the laws, codes or policies referred to in clause 12.1(a); and

(c) co-operate with the Discloser in the resolution of any such complaint or investigation.

13. GENERAL

13.1 Laws and Jurisdiction

This Agreement is governed by and interpreted in accordance with the laws of Victoria, Australia and each party hereby agrees to submit to the non-exclusive jurisdiction of the Courts of Victoria, Australia

13.2 No Waiver

No delay by either party in exercising any right, power or remedy under this Agreement will operate as a waiver or acquiescence thereof nor will it restrict or affect the party’s right or powers under this Agreement. No waiver of any term or condition to this Agreement will be effective unless made in writing.

13.3 Amendments

This Agreement is the entire agreement between the parties and supersedes any and all prior or contemporaneous representations, agreements and promises, written or oral, between the parties, regarding the subject matter of this Agreement. Any amendments to this Agreement will only be effective if agreed in writing and signed by both parties

13.4 No Obligation To Procure Products Or Services

In no event will this Agreement or the parties’ agreement to enter into this Agreement be construed to mean that either party will procure from or will be obliged to procure from the other party any products or services or to enter into any transaction or be obliged to enter into any transaction with each other.

13.5 Warranties

Each party warrants that there is no impediment to it entering into this Agreement and that it is currently solvent.

13.6 Costs and Expenses

The parties must each pay their own costs and expenses in relation to the negotiation, preparation, execution and delivery of this Agreement.

13.7 Further Assistance

Each party shall execute (and, if necessary, re-execute) all documents and perform all acts necessary to give full effect to this Agreement.

13.8 Severability

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.