Tutti Frutti Confidentiality Deed

Confidentiality Deed
BETWEEN TUTTI FRUTTI AUSTRALIA PTY LTD ACN 152 732 495 AND AND

Mills Oakley Lawyers©
5190760_003.doc

Page i

7 This Deed and the parties’ negotiations Return of Confidential Information Intellectual Property Rights Acknowledgements Indemnity Restraint of Trade 7.2 Use of Confidential Information 2.1 Definitions 7.Tutti Frutti Confidentiality Deed TABLE OF CONTENTS 1 Definitions and interpretation 1.1 Dictionary 1.2 Restraints 7.3 Waiver 8.doc Page ii .4 Authorised Recipients 2.3 Protection of Confidential Information 2.2 Interpretation Confidentiality Obligations 2.2 Further Assurances 8.1 Date of provision of Confidential Information 8.5 Restraints are Reasonable 7.6 Privacy 2.5 Jurisdiction 1 1 2 2 2 3 3 3 3 3 3 4 4 4 4 4 4 5 5 6 6 6 6 6 6 6 7 7 2 3 4 5 6 7 8 Mills Oakley Lawyers© 5190760_003.6 Independent and Severable Restraints General Conditions 8.4 No Amendments without Agreement 8.3 Associates 7.1 Confidentiality 2.4 Non-Solicitation of employees 7.5 Exceptions 2.

204 – 218 Dryburgh Street. relative by blood or adoption or spouse of such a relative. The Discloser wishes to disclose Confidential Information to the Recipient. Confidential Information means any information in any form whatsoever (including oral. North Melbourne VIC 3051 (Discloser) Name: of Name: of (collectively the Recipient) Background A. including (without limitation) details of the Tutti Frutti Group and Tutti Frutti System. know-how. any officer or Related Entity of the party. a spouse. designs. trade secrets. its business or shareholders. trade marks. The parties have agreed to disclose and receive that Confidential Information on the terms and conditions of this deed. inventions and discoveries. Intellectual Property Rights means all and any current and future registered and unregistered rights in respect of copyright. Mills Oakley Lawyers © 5190760_003. investment opportunity and/or other transaction regarding a Tutti Frutti Business by the Recipient. domestic partner. its related bodies corporate. Terms and Conditions 1 1.1 Definitions and interpretation Dictionary In this deed the following words and phrases have the following meanings (unless the context otherwise requires): Associates means: (a) (b) where a party is a body corporate. written. and where the party is a natural person. or which the Discloser makes the Recipient. patents. business. semiconductor or circuit layouts.doc Page 1 . Corporations Act means the Corporations Act 2001 (Cth). B.Tutti Frutti Confidentiality Deed Parties TUTTI FRUTTI AUSTRALIA PTY LTD ACN 152 732 495 of Suite 11. business names. Permitted Purpose means the assessment of a potential acquisition. its advisers or agents aware is considered by it to be confidential and/or proprietary. and electronic information) of a technical. or which is evident on its face as being confidential and/or proprietary. trade names. Month means a calendar month. applications for grant of any of the foregoing or other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world. corporate or financial nature of or in relation to the Discloser.

Tutti Frutti Business means a business operated in accordance with the Tutti Frutti System. sensitive.Tutti Frutti Confidentiality Deed Related Entity has the meaning given to that term in section 9 of the Corporations Act. then it is to be severed from this deed in which case the remainder of this deed will continue to have full force and effect. a reference to a person includes a natural person. use of the word including and similar expressions are not. successors and permitted assigns.doc . 1. figures or symbols in tangible and permanently visible form and includes fax transmission. systems methods. consistency in the quality and preparation of menu items. in the Commonwealth of Australia. and proprietary nature of the Confidential Information. procedures for sale of menu items to customers and customer service and uniform documentation and procedures as described in the Discloser’s standard franchise agreement and specified in the Discloser’s operations manual or otherwise in writing by the Discloser and modified by the Discloser from time to time. however. the obligation binds or enures for the benefit of (as the case may be) those persons jointly and each of them severally. operations. policies. representatives and other persons involved in the operation of a Tutti Frutti Business. Tutti Frutti Group means collectively the Discloser. Tutti Frutti System means the business formats. or any benefit enures for. (c) (d) 2 2. If it is not possible to give that provision any effect at all. standards and controls developed by the Discloser for the operation of Tutti Frutti Businesses including consistent and uniform range of menu items.1 Confidentiality Obligations Confidentiality The Recipient: (a) acknowledges the confidential. and a reference to a party includes the party’s executors. (v) (vi) (b) The language in all parts of this deed shall be in all cases construed in accordance with its fair and common meaning and not strictly for or against either of the parties. where any obligation is imposed on. nor are they to be interpreted as. a reference to writing includes any mode of reproducing words. Any headings are for ease of reference only and do not affect the interpretation of this deed. two or more persons. State means the State of Victoria. Tutti Frutti Stores Pty Ltd ACN 152 732 502 and all of the franchisees. This deed is to be interpreted so that it complies with all applicable State laws and if any provision does not comply then it must be read down so as to give it as much effect as possible. words of limitation.2 Interpretation (a) In this deed unless specified to the contrary: (i) (ii) (iii) (iv) a reference to the singular includes the plural and vice versa. procedures. franchisees’ guarantors. administrators. and Page 2 Mills Oakley Lawyers © 5190760_003. a company or other entities recognised by law.

2.2 Use of Confidential Information The Recipient must not: (a) (b) use any of the Confidential Information for any purpose other than the Permitted Purpose.5 Exceptions The Recipient will not be in breach of its obligations with respect to disclosure or use of Confidential Information if it discloses or uses information that: (a) (b) is in the public domain. it is required to disclose by statute. Page 3 Mills Oakley Lawyers © 5190760_003. the rules of any stock exchange or any applicable accounting standards. (c) 2.3 Protection of Confidential Information The Recipient must keep effective control of all Confidential Information received under or in connection with this deed. take all precautions that are reasonably necessary to prevent any theft. as if such persons were a party to this deed.Tutti Frutti Confidentiality Deed (b) agrees to keep confidential. 2. employees. advisers.7 This Deed and the parties’ negotiations Subject to clause 2. 2. other than through a breach by it of its obligations under this deed. court order or a person acting under the authority of statute or such order. and a breach of such a term or condition by such a person shall be regarded as a breach of this deed by the Recipient.4 Authorised Recipients The Recipient may disclose the Confidential Information to its directors. without the use of any Confidential Information. and financiers on a strictly “need to know” basis provided that: (a) (b) the Recipient must ensure that such persons are under equivalent obligations of confidence to the Recipient as provided in this deed. officers. in whole or part. (c) 2. and must promptly inform the Discloser of any suspected or actual unauthorised use or disclosure of the Discloser’s Confidential Information. the Recipient must treat: (a) the existence and terms of this deed. for the benefit of any other person or for any other purpose.doc . the Recipient must ensure compliance by such persons with the terms and conditions of this deed which impose any obligation on the Recipient. to any third party. or was developed independently by it. or allow any other person to do so without the written consent of the relevant the Discloser. or use any of the Confidential Information in a manner or for a purpose detrimental to the Discloser or its related bodies corporate. (c) 2.5. agents. exploit Confidential Information for its own benefit. and not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information. loss or unauthorised use or disclosure of that Confidential Information.6 Privacy The parties must assist each other to comply with their respective obligations in relation to Confidential Information disclosed under this deed under the Privacy Act 1988 (Cth).

7 7. of this deed: (i) (ii) damages alone may be an inadequate remedy for the Discloser. and all copies. from and against all and any liabilities. notes and records in whatever form (including. and expenses suffered. 3 Return of Confidential Information Upon the written request of the Discloser. incurred or sustained by them arising directly from or in connection with any breach by the Recipient of the terms and conditions of this deed. if any of the following is incapable of being returned. extracts. claims. its related bodies corporate. and in the event of a breach. as Confidential Information. or threatened or anticipated breach.Tutti Frutti Confidentiality Deed (b) (c) the fact that discussions or negotiations are taking place between the parties in respect of a possible transaction. interlocutory or permanent injunction restraining the Recipient without showing or proving any actual damages sustained by it. losses. without limitation. and that the Discloser shall be entitled to seek an interim. costs. 4 Intellectual Property Rights The Recipient acknowledges that there is no transfer or licence to it or any third party of any Intellectual Property Rights in and to. any Confidential Information disclosed under or in connection with this deed. damages. any electronic records) of the whole or any part of the Confidential Information of the Discloser. and any of the proposed terms and conditions of such a possible transaction. 5 Acknowledgements The Recipient acknowledges that: (a) a breach of any of the Recipients’ obligations under this deed may result in either or both of the Discloser suffering loss and damage and may cause irreparable damage to the Discloser. the Recipient must promptly return (or procure the return of) to the Discloser the following (or. demands. and its officers and agents. summaries. or arising from. or Mills Oakley Lawyers © 5190760_003. irretrievably destroy or delete and certify in writing that it has been so destroyed or deleted): (a) (b) the Confidential Information of the Discloser.1 Restraint of Trade Definitions For the purposes of this clause 7: (a) Restrained Business means a business or operation which: (i) is similar to or competitive with a Tutti Frutti Business or the business of the Tutti Frutti Group in the Restraint Area. (b) 6 Indemnity The Recipient indemnifies (and must keep indemnified) the Discloser.doc Page 4 .

agent. the period commencing upon execution of this deed by all parties and continuing for twelve (12) Months after.4. Mills Oakley Lawyers © 5190760_003.Tutti Frutti Confidentiality Deed (ii) (iii) develops. and within 5 kilometres of the premises from which any Tutti Frutti Business is operated. consultant. the period commencing upon execution of this deed by all parties and continuing for eighteen (18) Months after. during the Restraint Period directly or indirectly: (a) conduct. transferees. and the period commencing upon execution of this deed by all parties and continuing for six (6) Months after.doc Page 5 . principal.2 Restraints The Recipients jointly and severally covenant that. successors and assigns of the Discloser) in the reputation and goodwill attaching to or in the Intellectual Property Rights and the Tutti Frutti System. or develops. or any person who is or was within 1 year before the date of this deed a substantial holder of shares in the Recipient or a Related Entity of the Discloser or an employee of the Recipient or of a Related Entity of the Recipient) has any direct or indirect equity or ownership interest. except as a shareholder or unitholder owning or holding less than five percent (5%) of the issued capital or units of a company or trust listed on the Australian Stock Exchange. independent contractor. partnership or entity) as trustee. adviser or in any other capacity. carry on or promote (whether on its own account.2 and 7. in consideration of the Discloser entering into this deed and disclosing Confidential Information and in order to protect the interests of the Discloser (and the legal personal representatives. trust.3 Associates The Recipient must ensure that each and every Associate of the Recipient enter into a covenant with the Discloser agreeing and undertaking to be bound by a covenant in terms identical to the terms referred to in clauses 7. each Tutti Frutti Business. within 10 kilometres of the premises from which any Tutti Frutti Business is operated. in joint venture or as employee or agent of or manager for any other person) any Restrained Business. in partnership. encourages or solicits business from such a person. none of them will. markets or sells any products or services to any person who is a customer or was a customer of a Tutti Frutti Business or the Tutti Frutti Group in the twelve (12) Months preceding the termination or expiration of this deed or otherwise canvasses. shareholder. or provide to any business or entity in which the Recipient (or any Related Entity of the Recipient. any financial assistance which assists that business or entity to engage in any Restrained Business. (b) Restraint Area means each of the following areas: (i) (ii) (iii) (c) Restraint Period means each of the following periods: (i) (ii) (iii) 7. unitholder. be concerned or interested in any Restrained Business (directly or through any interposed body corporate. induces. nor will any of their Associate of any of them. markets or sells any products or services which are similar to or compete with the Discloser in the Restraint Area. (b) (c) 7.

and considers those provisions reasonable in their extent (as to duration. and this clause 7 shall survive the end of this deed. and clause 7.4 Non-Solicitation of employees The Recipient jointly and severally agrees and declares that they shall not hire or employ or otherwise engage employees of the Discloser or other franchisees of the Tutti Frutti System or canvass.6 Independent and Severable Restraints The Recipient acknowledges and agrees that: (a) each of the restraints in clauses 7.3 Waiver (a) (b) A single or partial exercise or waiver of a right relating to this deed will not prevent any other exercise of that right or the exercise of any other right. 8. it will be deemed to be severed to the extent that it is void. 8. for any reason whatsoever. perfect or complete the terms and conditions of this deed. (b) (c) (d) 8 8. exercise.2 Further Assurances Each party must promptly execute all documents and do all things that the other party from time to time reasonably requires of it to effect. severable and independent restraint.Tutti Frutti Confidentiality Deed 7.1 General Conditions Date of provision of Confidential Information This deed binds the Recipient in respect of any and all Confidential Information provided by the Discloser to the Recipient.5 applies to each of those restraints. encourage or solicit such employees to leave their employment during the Restraint Period. and considers those provisions to go no further than reasonably necessary to protect the interests of the Discloser (and the legal personal representatives. whether such Confidential Information was provided to the Recipient prior to or after the date of this deed. induce. Mills Oakley Lawyers © 5190760_003. attempted exercise or failure to exercise. any part of this clause 7 is rendered void. unenforceable or otherwise ineffective. geographical area and restrained conduct). transferees.doc Page 6 .5 Restraints are Reasonable The Recipients jointly and severally represent and warrant to the Discloser that each of them: (a) (b) (c) have obtained independent legal advice with respect to the provisions of this clause 7.4 resulting from the various combinations of the Restraint Periods and the Restraint Areas is a separate. or any delay in the exercise of. unenforceable or otherwise ineffective and it shall not affect the enforceability or effectiveness of the remainder of this clause 7 or any other terms or conditions of this deed. A party will not be liable for any loss. cost or expense of any other party caused or contributed to by any waiver. 7.2 and 7. successors and assigns of the Discloser) in the reputation and goodwill attaching to the Tutti Frutti System or in the Intellectual Property Rights. and if. a right. 7.

and the parties submit to the non-exclusive jurisdiction of the courts of the State.Tutti Frutti Confidentiality Deed 8.doc Page 7 . discharged or abandoned unless by a document signed by the parties. Mills Oakley Lawyers © 5190760_003.5 Jurisdiction This deed is to be governed by and construed in accordance with all applicable laws in force in the State from time to time. 8.4 No Amendments without Agreement This deed may not be modified.

Tutti Frutti Confidentiality Deed EXECUTED as a deed on EXECUTED by TUTTI FRUTTI AUSTRALIA ) PTY LTD ACN 152 732 495 in accordance with ) section 127(1) of the Corporations Act 2001 ) 2012 Signature of Director Signature of Director / Company Secretary (delete as applicable) Name of Director (Please print) Name of Director / Company Secretary (Please print) EXECUTED accordance with section 127(1) of the Corporations Act 2001 in ) ) ) Signature of Director Signature of Director / Company Secretary (delete as applicable) Name of Director (Please print) Name of Director / Company Secretary (Please print) SIGNED by the presence of: in ) ) Signature of Witness Name of Witness (Please print) Signature of SIGNED by the presence of: in ) ) Signature of Witness Name of Witness (Please print) Signature of Mills Oakley Lawyers © 5190760_003.doc Page 8 .