Confidentiality Agreement

To: Flooring Xtra Pty Ltd, of 24 Silkwood Rise Carrum Downs Victoria 3201 (“Flooring Xtra”)
And to: Flooring Xtra’s heirs, successors, transferees and assigns
1. Background
A. Flooring Xtra has developed a distinctive business format and specialised and original
business systems, operating techniques, procedures, policies and practices and has completed confidential and commercially valuable data, materials, precedents and documentation in respect of the retailing of retail flooring.
B. The Licensee has expressed interest in entering into a franchise agreement with Flooring Xtra. In order for these discussions to proceed it will be necessary or desirable for Flooring Xtra to disclose or provide the Licensee with access to Confidential Information. The Licensee covenants with Flooring Xtra to protect the Confidential Information on the terms set out in this Deed so that Flooring Xtra is able to freely disclose that information.
2. Definitions
In this Deed the following definitions shall apply:
2.1 “Approved Purposes” means the evaluation of the Franchise including obtaining legal, accounting and business advice;
2.2 “Confidential information” means all information relating to Flooring Xtra, any Related Entity, any supplier to the franchise network or the Franchise of every kind disclosed by Flooring Xtra to the Licensee and for the avoidance of doubt includes specifically:
any financial data of Flooring Xtra, any Related Entity or any other person;
the contents of any operations or procedures manual or other document containing any aspect of the Franchise, or Flooring Xtra’s business format, systems, techniques, procedures, policies or practices;
any document or information pertaining to the trade marks, names, logos, internet site, products, colour schemes or other intellectual property relevant to the Franchise;
any marketing or other copyright material belonging to Flooring Xtra or any Related Entity;
any price lists, customer lists, customer information or other material pertaining to the Franchise or belonging to Flooring Xtra, any Related Entity or any supplier or customer of Flooring Xtra or relevant to the Franchise;
2.3 “Flooring Xtra” means Flooring Xtra Pty Ltd described above and its heirs, successors, transferees and assigns and where the context requires includes all Related Entities of
Flooring Xtra Pty Ltd.
2.4. “Related Entity” is as defined in Corporations Act 2001 (Cth).
3. Interpretation
This agreement is to be interpreted according to the following:
3.1 References to laws include regulations, instruments and by-laws and all other subordinate legislation or orders made by any authority with jurisdiction in respect of this agreement.
3.2 This agreement must be interpreted so that it complies with all applicable laws. If any pro-vision of this agreement does not comply with any law, then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, then it must be severed from the rest of the agreement.
3.3 The law of the state of Victoria to this agreement.
3.4 Any change to this agreement must be in writing and signed by the parties.
3.5 An obligation imposed by this agreement on or in favour of more than one person binds or benefits all of them jointly and each of them individually.
3.6 The use of one gender includes the other and the singular includes the plural and vice versa.
3.7 If Flooring Xtra or Licensee is an individual, this agreement binds that person’s legal personal representative. If either of them is a corporation, this document binds its transferees.
3.8 The headings and mode of presentation of this agreement do not form a part of this agreement and cannot be used for its interpretation.
4. Confidentiality
4.1 The Confidential Information will be kept confidential by the Licensee and will not be dis-closed in any way manner or format without the prior written consent of Flooring Xtra.
4.2 The Confidential Information must only be used by the Licensee for the Approved Purposes and for no other purpose.
4.3 The Licensee must not make any written notes, copy, reproduce or duplicate any of the Confidential Information without the prior written consent of Flooring Xtra and any such notes, reproductions, copies or duplicates will be delivered up to Flooring Xtra forthwith upon its request to do so.
4.4 The terms of this Deed are to apply to all employees, agents, contractors, advisors or representatives engaged by or for the Licensee. The Licensee is strictly liable to Flooring Xtra for any breach by any such employee, agent, contractor, and advisor or representative.
4.5 The Licensee must take all steps necessary to maintain all Confidential Information in strictest confidence including ensuring secure and proper storage, taking precautions to prevent accidental disclosure, advising all employees, contractors, agents and representatives the confidentiality obligations contained in this Deed.
5. Information in the Public Domain
This Deed does not impose obligations upon the Licensee in respect of Confidential Information that is in the public domain otherwise than as a result of disclosure by the Licensee or any employee’s agent or representative of the Licensee or in relation to disclosure required by a court order.
6. Remedies
The Licensee acknowledges that damages would not be a sufficient remedy for a breach of this Deed and Flooring Xtra is entitled in addition to any other remedy to seek any form of injunctive relief to prevent breach and to compact specific performance of its.