1 Purpose

1.1 The parties are discussing a potential engagement for the supply of marketing, creative, social media and advertising services (the Purpose).

1.2 Confidential Information may be disclosed by either party. In this agreement the party disclosing is the Discloser and the party receiving is the Recipient. Each party may be both.

2 Confidential Information

2.1 Confidential Information means any information disclosed by the Discloser to the Recipient in connection with the Purpose, whether disclosed in writing, verbally, visually or in any other form, and whether or not marked as confidential.

Without limiting clause 2.1, Confidential Information includes:

• unreleased or in-development products, formulations, ingredients, packaging and regulatory status
• product launch dates, launch plans and embargoed announcements
• pricing, margins, cost of goods, revenue, budgets and financial performance
• customer lists, customer data, audience data and analytics
• marketing strategy, creative concepts, campaign plans, media plans and creative work in progress
• supplier, stockist, distributor and third party agency relationships and terms
• business plans, expansion plans and commercial negotiations
• the existence and content of the discussions between the parties

3 Obligations

The Recipient must:

• keep the Confidential Information confidential, and protect it with at least the same care it uses for its own confidential information and no less than a reasonable standard of care
• use the Confidential Information only for the Purpose and for no other purpose
• not disclose the Confidential Information to any person except as permitted under clause 4
• not use the Confidential Information to compete with the Discloser, or to benefit any competitor of the Discloser
• notify the Discloser promptly on becoming aware of any unauthorised use or disclosure

4 Permitted Disclosure

4.1 The Recipient may disclose Confidential Information to its officers, employees, contractors and professional advisers who need to know it for the Purpose, provided the Recipient first ensures each of them is bound by obligations of confidentiality no less protective than this agreement. The Recipient remains responsible for any breach by those people.

4.2 The Recipient may disclose Confidential Information where required by law, by a regulator or by a court. Where it is lawful to do so, the Recipient will give the Discloser prompt written notice so the Discloser has an opportunity to object or seek a protective order.

5 Exclusions

This agreement does not apply to information the Recipient can show:

• was already lawfully known to it, free of any confidentiality obligation, before disclosure by the Discloser
• is or becomes public other than through a breach of this agreement
• is lawfully received from a third party who is free to disclose it
• was independently developed by the Recipient without use of or reference to the Confidential Information

6 No Licence and No Obligation

6.1 Nothing in this agreement transfers or grants any right, title, interest or licence in any Confidential Information, intellectual property, trade mark or creative work.

6.2 Nothing in this agreement obliges either party to proceed with any engagement, to disclose any particular information, or to refrain from working with any other business, except to the extent expressly set out in this agreement.

7 Return and Destruction

7.1 On written request, the Recipient must promptly return or destroy all Confidential Information in its possession or control and confirm in writing that it has done so.

7.2 The Recipient may retain one copy to the extent required by law or by its ordinary electronic backup procedures. This agreement continues to apply to that copy.

8 Term

8.1 This agreement starts on the date it is signed and applies to Confidential Information disclosed while the parties are discussing or performing the Purpose.

8.2 The confidentiality obligations continue for three (3) years from the date of disclosure of the relevant Confidential Information, and continue indefinitely for any information that is a trade secret for so long as it remains a trade secret.

9 Remedies

Each party acknowledges that damages alone may not be adequate compensation for a breach of this agreement, and that the Discloser is entitled to seek injunctive relief in addition to any other remedy available to it.

10 General

10.1 This agreement is governed by the laws of Queensland, and each party submits to the non exclusive jurisdiction of the courts of that State.

10.2 This agreement is the entire agreement between the parties on this subject and replaces any earlier understanding about confidentiality.

10.3 A variation must be in writing and signed by both parties.

10.4 A failure or delay in exercising a right does not waive it.

10.5 If any part of this agreement is unenforceable, it is severed and the rest continues to apply.

10.6 This agreement may be signed in counterparts and by electronic signature, each of which is an original.