CONFIDENTIALITY DEED

(MUTUAL)

Level 39, 2 Park Street Sydney NSW 2000 Tel: +61 (0)2 9004 7212 Fax: +61 (0)2 9004 7070

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CONFIDENTIALITY DEED
DEED dated _________________________ 2009.

Between PARTY A Name: _________________________________________________________________________________ Address: ___________________________________________________________________________ ACN/ABN: __________________________________________________________________________

And PARTY B Name: ___________________________________________________________________________ Address: _________________________________________________________________________ ACN/ABN: ________________________________________________________________________

BACKGROUND A: Party A possesses Confidential Information relating to:______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________

B:

Party B possesses Confidential Information relating to:______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________

C:

Party A and Party B wish to conduct discussions and negotiations (“Discussions”) concerning the following matters and those matters are the reason (“Sole Purpose”) why each party is willing to disclose Confidential Information to the other party: ______________________________________________________________________________________ ______________________________________________________________________________________

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______________________________________________________________________________________ ______________________________________________________________________________________

D.

The parties agree that the Discussions will require the exchange of confidential information and that it is important that the information exchanged as part of the Discussions must remain confidential.

1. CONFIDENTIAL INFORMATION ("Confidential Information") means, regardless of the form of disclosure or the medium used to store it, all confidential information of the relevant party making the disclosure (“Disclosing Party”), or information treated by the Disclosing Party as confidential (whether marked ‘confidential’) that the Recipient becomes aware of before or after the date of this Deed, either: 1.1 through disclosure by the Disclosing Party to the Recipient; or 1.2 otherwise through the Recipient’s involvement with the Disclosing Party, and includes without limitation: a) b) c) financial information and other trade secrets and confidential know-how of the Disclosing Party; information regarding the Disclosing Party’s business; all information based on the Disclosing Party’s information that is generated by the Recipient in connection with or in relation to the Discussions and the Sole Purpose; and d) the terms of the Discussions.

2. NON-CONFIDENTIAL INFORMATION 2.1 Confidential Information does not include information: a) the Recipient creates (whether alone or jointly with any person) independently of the Confidential Information of the Disclosing Party (if the Recipient has evidence in writing that the information falls within this exception); or b) that is public knowledge or becomes public knowledge (other than as a result of a breach of confidentiality by the Recipient or any person to whom the Recipient has disclosed the information). 3. RECIPIENT’S OBLIGATIONS The Recipient must: 3.1 only use the Confidential Information of the other party for the Sole Purpose;

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3.2 gain prior written approval from the Disclosing Party before any of the Confidential Information is disclosed to any entity that is not a party to this Deed; 3.3 ensure that any person or entity to whom Confidential Information is disclosed maintains the confidentiality of that Confidential Information and does not do anything that, if done by the Recipient, would be a breach of this Deed; 3.4 ensure that no part of the Confidential Information is copied or recorded in any form except as is strictly necessary in connection with the Sole Purpose; 3.5 ensure that any Confidential Information is, where at all possible, returned to the Disclosing Party or is destroyed or deleted if any of the Confidential Information has been copied or recorded; 3.6 use all reasonable efforts to protect and preserve the confidential nature and secrecy of all Confidential Information; and 3.7 notify the Disclosing Party promptly if the Recipient is or may be required by law to disclose Confidential Information. 4. LIMITATION OF OBLIGATIONS The Recipient’s obligations do not apply to any information that: 4.1 the Recipient is required by law to disclose; 4.2 is in the public domain other than as a result of the breach of the terms of this Deed; or 4.3 the Recipient can prove was known to it at the time of disclosure by the Disclosing Party. 5. OWNERSHIP OF INFORMATION The Recipient acknowledges that ownership of a Disclosing Party’s Confidential Information remains the property of the Disclosing Party at all times and this Deed does not: 5.1 transfer to the Recipient an interest in the intellectual property or Confidential Information of the Disclosing Party; or 5.2 oblige the Disclosing Party to disclose any Confidential Information to the other party. 6. OBLIGATIONS CONTINUE The Recipient’s obligations of confidentiality under this Deed continue even if: 6.1 the Discussions are completed or terminated; or 6.2 the Recipient has returned, destroyed or deleted the Confidential Information.

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7. LIABILITY OF RECIPIENT The Recipient accepts liability for any action not in accordance with the terms of this Deed by a person to whom the Recipient has disclosed Confidential Information (regardless of whether the Recipient was authorised by the Disclosing Party to make that disclosure). 8. LIABILITY OF DISCLOSING PARTY The Disclosing Party represents and warrants to the Recipient that it will act honestly and in good faith in the course of the Discussions and will make full and accurate disclosure to the Recipient. 9. RETURN OF DOCUMENTS The Recipient must immediately upon the Disclosing Party’s request: 9.1 return to the Disclosing Party all Confidential Information in the Recipient’s possession and control; 9.2 delete, destroy or return to the Disclosing Party any file, record, document or any other material that contains or refers to Confidential Information; and 9.3 provide written confirmation to the Disclosing Party of its compliance with its obligations under this clause. 10. ENFORCEABILITY The Recipient acknowledges that: 10.1 each part of the Confidential Information is confidential to the Disclosing Party; 10.2 any disclosure of the Confidential Information will damage the Disclosing Party; 10.3 the Disclosing Party is, without showing or proving it has sustained any actual damage, entitled to seek an injunction restraining any breach or threatened breach of this Deed; 10.4 monetary damages alone would not adequately compensate the Disclosing Party for a breach of the Recipient’s obligations under this Deed and specific performance of those obligations is an appropriate remedy; and 10.5 this Deed is governed by the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that State. 11. DEFINITIONS AND INTERPRETATIONS 11.1 In this Deed unless the contrary intention appears: a) any reference to Confidential Information includes any part or parts of the Confidential Information;
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b) c)

a reference to this Deed includes any variation or replacement of it; a reference to a clause, party, schedule or attachment is a reference to a clause, party, schedule or attachment to the Deed;

d)

a reference to a party includes, where applicable, reference to a director, officer, employee, agent, contractor and representative of that party;

e) f) g)

the singular includes the plural number and vice versa; a provision must not be construed against a party only because the party prepared it; and the word “including” is not a word of limitation.

11.2 All headings have been inserted for ease of reference only and they do not affect the meaning or interpretation of this Deed.

EXECUTED as a deed Signed, sealed and delivered for and on behalf of Party A by: Signed, sealed and delivered for and on behalf of Party A by:

DIRECTOR

DIRECTOR/SECRETARY

NAME

DATE

NAME

DATE

Signed, sealed and delivered for and on behalf of Party B by:

Signed, sealed and delivered for and on behalf of Party B by:

DIRECTOR

DIRECTOR/SECRETARY

NAME

DATE

NAME

DATE

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