Non-Disclosure Agreement
Definitions
In this agreement:
Confidential Information in respect of a Party means Rubix Studios Pty. Ltd.’s or partners’ Confidential Information (as the case may be).
Rubix Studios Pty. Ltd.’s Confidential Information means all trade secrets, ideas, know-how, concepts and information, whether in writing or otherwise, relating in any way to the matters set out in item 1 of schedule 1, and all other information relating to Rubix Studios Pty. Ltd. and its affairs or businesses, sales, marketing or promotional information, which is not in the public domain and includes any such information in Rubix Studios Pty. Ltd.’s power, possession or control concerning or belonging to any other person.
Partners’ Confidential Information means all trade secrets, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to the matters described in item 2 of schedule 1, and all other information relating to partners and its affairs or businesses, sales, marketing or promotional information, which is not in the public domain and includes any such information in partners’s power, possession or control concerning or belonging to any other person.
Ineffective means void, illegal or unenforceable.
Parties means Rubix Studios Pty. Ltd. and partners, and Party means, as the context requires, one of them.
Specified Purpose means the purpose set out in item 3 of schedule 1.
Access
The Parties acknowledge that each Party may be given access to certain Confidential Information of the other Party, for the Specified Purpose.
Obligation of confidentiality
In consideration of:
(a) being given access to Confidential Information of the other Party; and
(b) the mutual promises contained in this agreement,
Each of the Parties agrees that it will keep and will ensure that its employees keep confidential the Confidential Information of the other Party unless and until the other Party agrees that the Confidential Information is in the public domain other than by a breach of this agreement.
Duties of Parties
Non-disclosure and use
Each Party will not and will ensure that its employees do not:
(a) disclose any of the Confidential Information of the other Party to any other person without the prior written consent of the other party; or
(b) use any of the Confidential Information of the other Party otherwise than for the Specified Purpose.
Uncertainty
If either Party is uncertain as to whether any information is Confidential Information of the other Party, that Party will treat the information as if it were Confidential Information of the other Party and as not being in the public domain unless and until the other Party agrees in writing that the information is in the public domain.
Precautions
Each Party will take all reasonable precautions to maintain the confidentiality of and to prevent the disclosure or use of the Confidential Information of the other Party.
Unauthorised disclosure or use
Each Party will immediately notify the other Party of any unauthorised disclosure or use of the Confidential Information of the other Party of which that Party becomes aware and will take all steps which the other Party may reasonably require in relation to such unauthorised disclosure or use.
Return of Confidential Information
At the conclusion of the Specified Purpose or upon the written request of the other Party, at its own expense, each Party will immediately deliver to the other Party, all records and materials (and copies of those records and materials) containing or embodying the Confidential Information of the other Party in the possession of that Party, its employees and any person to whom that Party has disclosed all or any of the Confidential Information of the other Party (whether or not with the consent of the other Party).
Exceptions
Neither Party will be bound to keep confidential any information if and to the extent that:
(a) the information is, or becomes part of the public domain otherwise than by breach of this agreement by that Party;
(b) the information is lawfully obtained by that Party from another person without any restriction as to use and disclosure;
(c) the information was in that Party’s possession prior to disclosure to it by the other Party;
(d) the information is required to be disclosed by the operation of any law, stock exchange, judicial or parliamentary body or governmental agency;
(e) the other Party has authorised in writing the disclosure of the information; or
(f) the information is disclosed by the other Party to the other Party’s professional advisers who have agreed to keep confidential the Confidential Information.
Remedy
Each Party acknowledges and accepts that:
(a) the other Party would suffer financial and other loss and damage if the Confidential Information of the other Party were disclosed to any other person or used for any purpose other than the Specified Purpose and that monetary damages would be an insufficient remedy;
(b) in addition to any other remedy which may be available in law or equity, the other Party is entitled to injunctive relief to prevent a breach of this agreement and to compel specific performance of this agreement; and
(c) it will immediately reimburse the other Party for all costs and expenses, (including legal costs and disbursements on a full indemnity basis) incurred in enforcing the obligations of that Party under this agreement.
Indemnity
Indemnity for costs
Each Party indemnifies the other Party against all costs, expenses, actions or claims directly or indirectly incurred or suffered by the other Party as a result of any breach of this agreement by that Party.
Scope of indemnity
The indemnity in clause ‘Indemnity for costs’ extends to and includes all costs, damages and expenses incurred by the other Party in defending or settling any such costs, expenses, actions, suits proceedings, claims or demands (including legal costs and disbursements on a full indemnity basis).
Cumulative rights
The rights arising out of this agreement do not exclude any other rights of either Party.
Enforceability
Effect of ineffectiveness on part of the agreement
Any clause or part of a clause of this agreement which is Ineffective in any jurisdiction is Ineffective only to that extent in that jurisdiction.
Severance of Ineffective parts of the agreement
Where any clause or part of a clause is Ineffective it may be severed without affecting any other part of this agreement.
Waiver
No waiver except by notice
No right under this agreement is waived or deemed to be waived except by notice in writing or electronic signed by the Party waiving the right.
No waiver of subsequent breaches
A waiver by one Party under clause ‘No waiver except by notice’ does not prejudice its rights in respect of any subsequent breach of this agreement by the other Party.
No waiver by extension or delay
The failure to exercise, or any delay in exercising, any right, power or remedy by a Party does not operate as a waiver or an election to abandon the right to exercise any right, power or remedy.
Execution
(a) Subject to paragraph (b), each Party, and their respective successors and assigns, will be authorised to rely upon the signatures of all the Parties on this agreement (or any amendment) which are:
(i) delivered by facsimile machine; or
(ii) transmitted electronically in either:
(A) a tagged image format file (TIFF); or
(B) portable document format (PDF),
As constituting a duly authorised, irrevocable, actual, current delivery of this agreement (or any amendment) with signatures or electronic signatures of each person and entity.
(b) Each Party that delivers or transmits an executed counterpart pursuant to paragraph (a) (Counterpart) to another Party, agrees that it will deliver an executed original copy of the agreement (or any amendment) to the Party(s) receiving the Counterpart within 10 business days after the delivery of the Counterpart.
(c) Any noncompliance with paragraph (b) will not affect the validity, enforceability or binding effect of this agreement.
Agreement Duration
Indefinitely
Governing law and jurisdiction
Governing law
This agreement is governed by the laws of the place set out in item 4 of schedule 1.
Jurisdiction
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the place set out in item 4 of schedule 1.
Variation
A variation of this agreement will be in writing and signed by the Parties.
Schedule 1
Description of subject matter (of Rubix Studios Pty. Ltd.’s Confidential Information: clause 1)
- Any potential transaction
- The identity of the parties and details of negotiations between them books and records
- Know-how and business secrets
- Business and marketing plans
- Financial or technical analysis and results
- Passwords and secure documentation
Description of subject matter (of partners’s Confidential Information: clause 1)
- Any potential transaction
- The identity of the parties and details of negotiations between them books and records
- Know-how and business secrets
- Business and marketing plans
- Financial or technical analysis and any results
- Passwords and secure documentation
Specified Purpose
- In relation to discussing and evaluating a potential business partnership
- In relation to services rendered
Place of proper law of agreement
Victoria
This agreement is in effect upon the delivery of a quotation, consultation, or payment by the parties mentioned and clients engaged with Rubix Studios.
This policy is effective from 16th June 2019.
Last updated 12th December 2023.
