Confidentiality Agreement

MUTUAL CONFIDENTIALITY AGREEMENT 

BETWEEN

The party named in the initiating document.

AND

ROIC Business Group

A.C.N 661 241 318  

of Level 4, 90 William Street Melbourne Victoria 3000

RECITALS

The parties to this Agreement wish to share information and have discussions regarding a possible transaction (“Discussions”).

The parties may disclose Confidential Information to each other to assist in the Discussions and, if appropriate, to enable the parties to enter into contractual arrangements, regarding the subject matter of the Discussions (“Purpose”).

The parties have agreed to keep all Confidential Information confidential following the terms of this Agreement.

THE PARTIES AGREE:

DEFINITIONS AND INTERPRETATION

Definitions

In this Agreement:

“Confidential Information” of a party and its Related Bodies Corporate (also called the “Owner”) means, regardless of the form of disclosure or the medium used to store it, all confidential information of the Owner, or information treated by the Owner as confidential and of which the other party and its Related Bodies Corporate (also called the “Recipient”) first becomes aware, whether before or after the date of this Agreement, either:

through disclosure by the Owner (or the Owners’ Personnel) to the Recipient; or

otherwise through the Recipient’s involvement with the Owner,

and includes without limitation:

the fact that the parties may have or are having the Discussions or are receiving or providing Confidential Information.

financial information and other trade secrets and confidential know-how.

information regarding the Owner’s business.

all information generated by the Recipient based on the Owner’s information for the Discussion or the Purpose; and

the terms of this Agreement,

but excludes information:

the Recipient creates (whether alone or jointly with any person) independently of the Owner’s Confidential Information (if the Recipient has evidence that the information falls within this exception).

that is public knowledge (otherwise than because of a breach of confidentiality by the Recipient or any person to whom it has disclosed the information); or

otherwise lawfully known by the Recipient.

“Personnel” of a party means:

directors, employees, agents, and advisers to a party.

in the case of all directors, employees, agents, and advisers of the ROIC P/L or Group of Companies.

“Related Body Corporate” has the meaning given to that term in section 50 of the Corporations Law.

“TBC Company Group Companies” includes TBC Company and its Related Bodies Corporate.

Interpretation

The following rules of interpretation apply unless the context requires otherwise:

the singular includes the plural and conversely.

a gender includes all genders.

where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

a reference to a person includes a body corporate and unincorporated body or other entity and conversely.

a reference to a clause or schedule is to a clause or schedule to this Agreement.

a reference to any party to this Agreement or any other agreement or document or body or person referred to in this Agreement includes that party, body or person’s permitted assigns.

headings and bolding are for convenience only and do not affect interpretation; and

a reference to any legislation includes any amendment, consolidation, re-enactment, or replacement of legislation.

The Recitals form part of this Agreement.

USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION

Confidentiality

In consideration of the mutual promises contained in this Agreement, the Recipient agrees:

to use the Owner’s Confidential Information solely as permitted by clause 2.2;

to keep confidential the Owner’s Confidential Information (subject to disclosure permitted under clause 2.3); and

otherwise, to comply with the terms of this Agreement.

Permitted Use

The Recipient may use the Owner’s Confidential Information as follows:

to participate in the Discussions with the Owner; and

for the Purpose.

Permitted Disclosure

The Recipient may disclose the Owner’s Confidential Information as follows:

to the Personnel of the Recipient who:

HAVE A NEED TO KNOW (and only to the extent that each has a need to know); and

before disclosure, have read this Agreement and been directed by, and have agreed with, the Recipient to keep confidential all Confidential Information of the Owner (referred to as a “Direction”);

if the disclosure is required by law (and then only to the extent, and to the persons, required by law and in accordance with clause 2.4); or

to fulfil any obligations to report to the Australian Government or a recognised stock exchange.

Disclosure required by law

If the Recipient is required by law to disclose any Confidential Information of the Owner to a third person, the Recipient must:

before doing so:

notify the Owner; and

give the Owner a reasonable opportunity to take any steps the Owner considers necessary to protect the confidentiality of that information; and

notify the third person that the information is the confidential information of the Owner.

Recipient’s Personnel

The Recipient must ensure that its Personnel comply with the provisions of this Agreement which impose any obligation on the Recipient as if such Personnel are party to this Agreement.  A breach of any provision of this Agreement by any of the Personnel will be regarded as a breach of this Agreement by the Recipient.

Indemnity

The Recipient will indemnify the Owner against any losses, expenses, costs (including legal costs on a full indemnity basis) or liability incurred, suffered, or sustained as a result of a breach of this Agreement by the Recipient or the Recipient’s Personnel.

SECURITY AND CONTROL

    A Recipient must:

establish and maintain effective security measures to safeguard the Owner’s Confidential Information from unauthorised use or disclosure.

keep the other’s Confidential Information under its control.

take reasonable steps to ensure, at all times, that each person to whom it discloses Confidential Information of the Owner under clause 2.3 complies with its Direction.

notify the Owner of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.

must provide assistance, reasonably requested by the Owner, in relation to any proceedings that the Owner may take against any person for unauthorized use or disclosure of the Owner’s Confidential Information; and

not make any copies of the Owners’ Confidential Information without the prior written consent of the Owner.

ACKNOWLEDGMENT

Remedies

  Each party acknowledges that any breach of this Agreement may result in irreparable harm and significant injury to the other party and that each party is entitled, in addition to any other rights and remedies it may have, to enforce its rights by seeking and obtaining specific performance and/or injunctive relief from breaches of this Agreement.

Transaction

Each party acknowledges that no party is under any legal obligation and will have no liability to the other party with respect to any transaction to implement the Purpose by virtue of this Agreement or otherwise and the parties may conduct the Discussions or terminate them as they see fit.

Confidential Information

Each party acknowledges and agrees that:

to the extent permitted by law, no liability (whether in negligence or other torts, by contract or under statute or otherwise) is accepted by the Owner by reason of or in conjunction with the provision of the Confidential Information or any purported reliance thereon.

except as provided in any definitive agreements between the parties which may be entered into, neither the Owner nor the Owner’s Personnel:

make any representation or warranty, express or implied, or assume any responsibility or liability for the accuracy or completeness of the Confidential Information.

is under any obligation to notify the Recipient or to provide any further information to the Recipient if it becomes aware of any inaccuracy, incompleteness or change in the Confidential Information or to update such Confidential Information.

RETURN OF CONFIDENTIAL INFORMATION

  The Recipient must immediately, on request at any time from the Owner, and automatically, without request by the Owner, on termination of the Discussions:

return to the Owner.

destroy and certify to the Owner the destruction of; or

destroy and permit an employee of the Owner to witness the destruction of,

 all the Owner’s Confidential Information, stored in any medium, in the Recipient’s possession or control (including the original medium, copies and that part of notes and other records prepared by the Recipient based on or incorporating any Confidential Information) other than:

the information incorporated in goods, including software, that the Recipient is licensed under another agreement to use;

one copy of any notes and other records that a Recipient is required by law to retain; and

information that a Recipient is required to disclose in order to comply with any reporting obligations to the Australian Government or a recognised stock exchange.

GENERAL

Survival

The obligations of confidentiality under this Agreement continue to apply to the parties to this Agreement (in addition to any permitted assignee) after the assignment or termination of the Discussions.

Waiver

The failure of a party to insist on the performance of any provision of this Agreement is not a waiver of its right at any later time to insist on the performance of that or any other provision of this Agreement.

Assignment

Neither party may assign or otherwise transfer any or all of its rights arising out of this Agreement without the written consent of the other party.

Jurisdiction

This Agreement is governed by the laws of the State of New South Wales and each party submits to the non-exclusive jurisdiction of the Courts of that State.

Notices