Confidentiality & Non-Disclosure Agreement of information exchanged for potential collaboration or transaction with CHARM
Dear — —
This letter sets out the terms for the protection of confidential information to be exchanged by CHARM Holdings Pty Ltd (“the Company,” “we,” or “us”) and CHARM IP Pty Ltd (“CHARM”, “CHARM IP”, or “the Technology”) with — — and/or — (“you”) in the course of discussions and negotiations for the purpose of deciding whether we enter into a potential collaboration and/or transaction with you to work in service of the Technology.
Contact Details
For the purpose of administering this letter, the primary points of contact, with respect to the transmission, receipt and control of Confidential Information exchanged hereunder and for providing notices required by or relating to this letter, are designated by the respective parties as follows:
Tenure
This letter shall take effect on the date of execution by all parties (the “Effective Date”). All obligations under this letter shall expire three (3) years after the Effective Date.
Definitions
In this letter,
“Advisers” means a party’s agents, contractors (including subcontractors), consultants, or advisers (including legal advisers) engaged in, or in relation to, the performance or management of this Agreement.
“Approved Personnel” means the natural persons agreed in writing between the Company, CHARM IP, — — and — who may have access to confidential information relating to the Approved Purpose.
“Approved Purpose” means:
1) discussions and negotiations for the purpose of deciding whether the parties enter into a Potential Transaction or Potential Collaboration to explore the use of CHARM technology for purposes such as, but not limited to, marine reef restoration, research, development, and education;
2) to negotiate the terms of a Potential Transaction and any agreements, deeds, or other documents necessary to record and give effect to those terms.
“Confidential Information” includes (i) all information regarding the existence and status of any discussions or negotiations between you, — — and —, CHARM, and the Company under this letter; (ii) all know-how, trade secrets, intellectual property, inventions (whether or not reduced to practice), financial information, business information and any other materials or information disclosed by or on behalf of a party to the other party under this letter which the disclosing party regards as confidential, proprietary or of a commercially sensitive nature, whether disclosed orally, in writing or by electronic means, directly or indirectly, and whether disclosed before or after the date of this letter; and (iii) all information created, ascertained, discovered or derived by a party directly or indirectly from any Confidential Information of the other party; but does not include (iv) information which is in the public domain or enters the public domain through no fault of the receiving party, (v) information which can be shown by contemporaneous records to have been known to the receiving party at the time it is received pursuant to this letter, (vi) information which is lawfully provided to the receiving party by a third party after the date of this letter without violating any restriction on its disclosure or (vii) information which is independently developed by the receiving party without using any Confidential Information of the other party.
For the avoidance of doubt, CHARM’s Confidential Information includes all information relating to: (a) CHARM’s coral husbandry and reef-restoration apparatus, together with the associated hardware, software, firmware, sensors, and data outputs; (b) the automation, artificial intelligence, and analytical systems used to operate the apparatus and interpret its results; (c) the markets and applications that CHARM is pursuing or exploring, including coral reef restoration, coastal protection, aquaculture, biodiversity credit system trading, water filtration, pharmaceutical discovery and manufacturing, minerals, catalysts, advanced manufacturing, power systems, quantum sensing, AI computation, soft robotics, electro-agriculture, jewellery, ornamentals, research, and education; (d) CHARM’s products, partnerships, commercial pipeline, financial position, and strategic plans; and (e) any information you receive, directly or indirectly, in connection with visits to CHARM’s offices, facilities, sites, or collaborators.
“Intellectual Property” means any and all intellectual property rights of the Technology, including but not limited to all registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, business names, know-how, confidential information, patents, inventions and discoveries, of the party or licensed to or contractually bound to the party;
“Potential Collaboration” means:
1) the possible joint venture, performance, and/or partnership with a party;
2) the possible instance wherein parties work together for a common purpose to achieve outcomes towards the Approved Purpose.
“Potential Transaction” means:
1) the possible purchase or acquisition of technologies and securities issued by the Company;
2) the possible entering into of a contract, supply, advisory services, or any similar arrangement relating to the use and/or service of the Technology over time;
3) any transaction which achieves a substantially similar outcome towards the Approved Purpose.
“Products” means the products and systems that are developed by or contractually bound to each party and which utilise patent protected technology filed and held by the them or by their principals;
Confidentiality Undertakings
Each party will receive the Confidential Information of the other party in confidence and in good faith and must not directly or indirectly disclose that Confidential Information or permit it to be disclosed to any person other than in accordance with this letter.
Each party must immediately notify the other party if it becomes aware of any actual or suspected breach of this letter and use its best endeavours to remedy or prevent such a breach.
You must only use the Confidential Information solely for the Approved Purpose.
You must take all reasonable precautions to secure all Confidential Information against loss and unauthorised access, use, modification, or disclosure. You must implement security procedures to ensure that it meets its obligations under this Agreement and will provide details of these procedures to the other party on request.
You must not challenge the ownership of the Confidential Information.
You must not disclose any Confidential Information without the prior written authorisation of the Company to any person other than Approved Personnel, who: need to have access to that Confidential Information for the Approved Purpose; who are aware of the requirements of this letter, and; who are bound by obligations of confidence substantially equivalent to those contained in this letter.
You must not file, register or record any of the Confidential Information of CHARM with any regulatory or other authority, assert rights of any nature in respect of the Confidential Information of the other party, or contest the ownership of the Confidential Information of the Company.
You must not apply for, or assist any other person, directly or indirectly, to apply for, any patents or designs or other industrial or intellectual property or proprietary rights based on, or that utilise, any part of the Confidential Information.
You may not replicate or reverse-engineer, in whole or in part, any business processes or products disclosed in the Confidential Information.
You may not use any Confidential Information of the other party in any way which is detrimental to the interests of the other party or for any purpose other than for the Approved Purpose. You must ensure that all persons to whom you disclose any Confidential Information of from us do not do or omit to do any act which, if done or omitted by the party, would result in you breaching any of the obligations in this letter.
Required disclosures. If you are required by law, court order, or regulatory process to disclose any Confidential Information, you shall, to the extent legally permitted, give CHARM prompt written notice of the requirement so that CHARM may seek a protective order or other appropriate remedy. You shall cooperate with CHARM in any such effort and shall disclose only the minimum amount of Confidential Information legally required.
Notice of breach or loss. In the event of any loss, misplacement, or unauthorised disclosure of Confidential Information, you shall: (a) immediately notify CHARM in writing; (b) take all reasonable steps to retrieve or contain the Confidential Information; and (c) cooperate with CHARM in investigating and mitigating the incident.
Non-Association and Non-Solicitation
No claim of association or endorsement. You shall not represent, publish, imply, or hold out to any third party any relationship, partnership, endorsement, advisory role, employment, engagement, or association with CHARM, its personnel, its principals, its investors, its customers, its partners, its collaborators, or its advisers — including through use of CHARM’s name, logos, marks, imagery, brand, or the names, titles, biographies, likenesses, or credentials of CHARM’s personnel or principals, and including via websites, social media, pitch materials, investor presentations, portfolios, press releases, podcasts, media interviews, or private communications — without CHARM’s prior written consent. This restriction applies during and after the term of this letter.
Non-solicitation of CHARM’s network. During the term of this letter and for twelve (12) months thereafter, you shall not, directly or indirectly, solicit, recruit, hire, engage, contract with, invest in, partner with, introduce to third parties, or seek to do any of the foregoing with, any person or organisation whose identity, role, capabilities, or relationship with CHARM became known to you by reason of this letter, the Approved Purpose, or the Confidential Information — including CHARM’s employees, contractors, consultants, advisers, investors, customers, suppliers, partners, and research collaborators — for any purpose outside the Approved Purpose, without CHARM’s prior written consent.
Use of know-how, insights, and contacts. You acknowledge that insights, methods, strategic perspectives, introductions, and network relationships acquired through interactions with CHARM or its personnel form part of CHARM’s Confidential Information, whether formally designated as confidential at the time of disclosure or not. You shall not use any such insights, methods, introductions, or contacts to advance any venture, proposal, fundraise, transaction, or commercial activity outside the Approved Purpose, nor to derive commercial, reputational, professional, or personal benefit by association with CHARM or its personnel, without CHARM’s prior written consent.
Return of Confidential Information
You must, on the earlier of receipt of a written request by the other party or the completion of the Approved Purpose, cease all use of the Confidential Information and return it to the Company or destroy (at the other party’s option) all notes, memoranda, and records in whatever form made by it containing, referring to or based on any of the Company’s Confidential Information and all other Confidential Information of the Company (including all copies of the same) save that you may retain the material as required by law and may retain in the possession of your legal advisers one copy of such Confidential Information, including records, for use solely in the event of, and for the purpose of resolving, any dispute arising out of this Agreement.
Acknowledgments
You acknowledge that the opportunity to use our Confidential Information for the Approved Purpose is good and valuable consideration for the undertakings given in this letter. You agree that due to the proprietary and competitively sensitive nature of the the Company’s Confidential Information, we would be irreparably harmed by any actual or threatened breach of the obligations in this letter and that monetary damages would be insufficient to remedy such breach.
Neither party gives any warranty as to the accuracy or completeness of any of its Confidential Information and each party acknowledges that it must make its own assessment of the other party’s Confidential Information. To the extent permitted by law, all liability of the Company for any loss or damage arising out of or in connection with the use of its Confidential Information by the other party is excluded. Neither party is under any obligation to disclose any information under this letter and, unless expressly agreed otherwise in writing, neither party is under any obligation to enter into any agreement or business relationship with the other party on any specific terms, or at all.
Privacy
The parties agree, in relation to the use of the Confidential Information not to do any act or engage in any practice which, if done or engaged in by us, would be a breach of the requirements of the Australian Privacy Principles.
General
The obligations contained in this letter will continue to apply without limit of time unless expressly agreed otherwise. This letter is governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.
Entire agreement. This letter constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, and understandings, whether oral or written.
Amendments. This letter may be amended or modified only by a written instrument signed by authorised representatives of both parties.
Electronic execution. This letter may be executed in counterparts and by electronic means, including typed signatures, digital signatures, and electronic acceptance. Each counterpart, including any electronic record of acceptance, shall constitute an original and together shall constitute one and the same instrument. The parties consent to the electronic execution of this letter in accordance with applicable electronic transactions legislation in Victoria, Australia, and equivalent laws in the signatory’s jurisdiction.
Assignment. Neither party may assign or otherwise transfer this letter, in whole or in part, without the prior written consent of the other party, except that a party may assign this letter to a successor in connection with a merger, acquisition, or sale of substantially all of its assets, upon written notice to the other party.
No waiver. No failure or delay by either party in exercising any right, power, or privilege under this letter shall operate as a waiver, nor shall any single or partial exercise of such right preclude any further exercise of the same or of any other right.
Severability. If any provision of this letter is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be reduced in scope only to the extent necessary to render it enforceable, and the remaining provisions shall continue in full force and effect. It is the intention of the parties to give CHARM the broadest possible protection against disclosure of Confidential Information.
Please sign (or have an appropriate person within your organisation sign) a copy of this letter and return it to the sender’s address to signify your organisation’s agreement to the terms of this letter. The signatory who does so warrants that he or she is entitled to bind your organisation to the obligations in this letter.