Non-Disclosure Agreement

MUTUAL NON-DISCLOSURE AGREEMENT

This MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into between Norbit Software Pty Ltd ACN 609 822 317 (the Company) the and party who has requested, and received access to a demonstration account (the Recipient), and is effective from the date that the Recipient logs into the provided demonstration account.

1.  Purpose.  

The parties wish to explore a business opportunity of mutual interest, and in connection with this opportunity each party (the “disclosing party”) may disclose to the other party (the “receiving party”) certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.

2.  “Confidential Information”

Confidential Information of a disclosing party means any confidential or proprietary information of the disclosing party that is disclosed by or on behalf of the disclosing party to the receiving party, whether in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation at or prior to the time of disclosure. Confidential Information may include technical data, trade secrets and know-how, including, but not limited to, research, product plans, products, services, suppliers, customer lists and customer information, prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information.  Confidential Information does not, however, include any information which (i) was publicly known and made generally available prior to the time of disclosure by the disclosing party to the receiving party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party in violation of this Agreement; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

3.  Non-use and Non-disclosure.  

Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties.  Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, representatives or professional advisors, except to those employees, representatives and professional advisors of the receiving party who need the information in order to evaluate or engage in discussions concerning the contemplated business relationship and who have agreed to or have been instructed to comply with confidentiality and non-use covenants with respect to Confidential Information of the other party.  Neither party will reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to such party hereunder.

4.  Maintenance of Confidentiality.  

Each party will ensure that its employees, representatives and professional advisors who have access to Confidential Information of the other party have agreed to or have been instructed to comply with confidentiality and non-use covenants with respect to Confidential Information of the other party, prior to any disclosure of such Confidential Information to such employees, representatives or professional advisors.  If any material non-public information is disclosed by a disclosing party that is a publicly traded company, the recipient of such information agrees that it will refrain from trading in the disclosing party’s stock until that material non-public information is publicly disseminated. Notwithstanding anything to the contrary set forth herein, a receiving party is permitted to disclose Confidential Information to the extent required by law, regulation, legal process or securities exchange rules, provided that the receiving party gives the disclosing party prompt written notice of such requirement (if legally permitted) and, upon the request of the disclosing party, cooperates in good faith and at the expense of the disclosing party in any reasonable and lawful actions which the disclosing party takes to resist such disclosure or limit the information to be disclosed.

5.  No Obligation.  

Nothing herein obligates either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate discussions concerning the business opportunity.

6.  No Warranty.  

All confidential information is provided “as is.”  each party makes no warranties, express, implied or otherwise, regarding its accuracy, completeness or performance.

7.  Return of Materials.

All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, will be and remain the property of the disclosing party and will be promptly returned to the disclosing party or destroyed upon the disclosing party’s written request (provided that the receiving party may retain copies of Confidential Information to the extent required by law, regulation, legal process or securities exchange rules or bona fide document retention or compliance policies, or in accordance with security and disaster recovery procedures).  At the request of the disclosing party, the receiving party will furnish a certificate, signed by an officer of the receiving party, certifying that the receiving party has complied with this Section 7.

8. Ownership.

All tangible information, including drawings, specifications and other information submitted hereunder by the Disclosing Party to the Receiving Party, shall remain the property of the Disclosing Party. If either party  elects not to pursue any further business undertaking, the Receiving Party shall promptly return to the Disclosing Party all tangible information, and all copies thereof, related to “Confidential Information”.

9.  No Licence.

Nothing in this Agreement is intended to grant any rights to either party under any intellectual property rights of the other party, nor does this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.

10.  Term.  

The obligations of the Parties to keep confidential the Confidential Information will continue in force until the earlier to occur of:

two (2) years from the date of this Agreement; or
all the Confidential Information becoming generally available in the public domain (other than through a breach of this Agreement).

11.  Remedies.  

Each party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.

12.  Export.

The parties acknowledge that the export of Confidential Information may be subject to laws and regulations which may prohibit the export of such information to certain foreign countries or the disclosure of such information to certain foreign nationals. The parties, therefore, agree to comply with all applicable export laws and regulations (including executive orders).

13.  Intellectual Property Rights

(a)  All title, ownership rights and Intellectual Property Rights, including copyright in relation to Application and/or Software is owned or used under licence by the Company.

(b) Without the Company’s express prior written consent, the Recipient undertakes that it will not and will not permit any person to:

(i) directly or indirectly alter, replicate, copy, recreate, create derivative work from, decompile, reverse engineer, reserve assemble, reserve compile, enhance, interfered with or with part of the Application and/or the Software or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Application and/or Software or any documentation associated with the Application and/or Software;

(ii) interact with any of the Company’s trade marks (whether registered or not) that could cause any adverse effect to the Company’s ownership and/or rights to the intellectual property; or

(iii) copy or reproduce, or create an adaptation or translation of, all or part of the Application and/or Software in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Application and/or Software in accordance with this Agreement;

(iv) incorporate all or part of the Application and/or Software in any other webpage, site, application or other digital or non-digital format for purposes other than marketing and/or training;

(v) (subject to other rights explicitly granted under this Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Application and/or Software on any medium;

(vi) do anything that will infringe the Intellectual Property Rights of any third party; or

(vii) attempt to do any of the above.

14.  Miscellaneous.  

This Agreement will bind and inure to the benefit of the parties hereto and their successors and assigns.  This Agreement will be governed by the laws of the Commonwealth of Australia without reference to conflict of laws principles.  Any disputes under this Agreement will be resolved in a court of general jurisdiction in the state of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that state. This document contains the entire agreement between the parties with respect to the subject matter hereof, and neither party will have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein.  Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. This Agreement may be signed in counterparts, and delivered by facsimile or .pdf, and such facsimile or .pdf counterparts are valid and binding on the parties hereto with the same effect as if original signatures had been exchanged. Notwithstanding anything to the contrary set forth herein, if the parties hereto enter into a definitive agreement for the contemplated business relationship that contains confidentiality and non-use covenants with respect to Confidential Information, then such definitive agreement will control to the extent of any conflict between such definitive agreement and this Agreement.

15. Entire Agreement.

This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed hereunder and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date the Recipient creates an account and/or logs in to the software content management system with the details provided to them by the Company.