Deed of Confidentialityand Non-Disclosure

Queenstown lakes district council

[]

H:\NRPortbl\LNDMS\AXS\6199367_1.DOC /

6219270.1

1

DATE / 2017

Parties

queenstown lakes district council(Provider)

[] (Receiver)

Background

  1. The Provider has agreed to disclose certain valuable Confidential Information to the Receiver and to allow the Receiver to use that Confidential Information for the Specified Purpose, subject to its confidentiality being protected.
  2. The Confidential Information is of a secret and confidential nature, highly sensitive and of commercial value. In order to protect and maintain the secrecy, confidentiality and value of such Confidential Information, the Receiver has agreed to be bound by certain duties of confidentiality in respect of the information by entry into this Deed.

THIS DEED RECORDS

  1. Definitions
  2. Definitions: In this Deed unless the context otherwise requires:

Confidential Information means all information (oral, written or machine readable) which belongs to the Provider and/or is treated by the Provider as confidential(including, without limitation, all ancillary information and documentation, notes, memoranda and records (in whatever form) of the Provider or any of its employees) whether created before, on or after the date of this Deedrelating to the fact and nature of the dealings between the parties regarding the Specified Purpose and including the fact of the Specified Purpose and all information regarding the existence and status of any discussions or negotiations between the Provider and the Receiver relating to the Specified Purpose.

but does not include information which (whether before or after the date of this Deed):

1.1.1the parties agree in writing to exclude from the terms of this Deed; and

1.1.2at the date of this Deed is in the public domain or which subsequently enters the public domain without fault on the part of the Receiver;

Related Company has the meaning given to that term under section 2(3) of the Companies Act 1993;

Specified Purpose meansthe provision of a leased Frankton Library space to service the Frankton community.

  1. Obligations of Confidentiality
  2. Duty of Confidentiality: The Receiver receives the Confidential Information in the strictest confidence and in good faith and must keep confidential and procure its employeesto keep confidential all Confidential Information. The Receivermust not at any time (except as expressly provided otherwise in this Deed) without the prior written consent of the Provider:
  3. directly or indirectly disclose, publish, distribute or permit to be disclosed, published or distributed the Confidential Information to any person (including any employee);
  4. in any way use or disclose the Confidential Information or any knowledge or information which it may acquire as a result of receiving the Confidential Information (and must procure its employees not to disclose to allow to disclose) in any way which is directly or indirectly detrimental to the interests of the Provider or for any purpose whatsoever other than the Specified Purpose.
  5. Permitted Disclosures: Notwithstanding the foregoing provisions of this Deed, the Receiver shall be entitled to disclose the Confidential Information:
  6. to such of its employees (and to such extent) as is absolutely necessary to enable such persons in the course of their duties and in accordance with their instructions to evaluate and utilise the Confidential Information for the Specified Purpose;
  7. to the extent required by law.
  8. Undertakings: The Receiver undertakes that prior to and as a condition of the Receiver making any disclosure pursuant to clause 2.2 above, the Receiver shall advise the Provider of the names of such employees and, if required by the Provider, shall cause each such employee to give a written confidentiality undertaking to the Provider (in the form attached to this deed and marked “A”). The Receiver shall ensure that all such employees are aware of the confidentiality of the Confidential Information, the existence and terms of this Deed, and consider themselves bound by the provisions of this Deed as if they were parties hereto and the Receiver shall use his or her best endeavours to ensure that any employee to whom Confidential Information is disclosed by the Receiver complies with the provisions of this Deed.
  9. No Reproduction: The Receiver may make copies of the Confidential Information to provide a sufficient number of working copies necessary for the Specified Purpose. The Receiver must not make or procure or allow the making of (and must ensure that its employees do not make or procure or allow the making of) any other copies of the Confidential Information without the prior written consent of the Provider.
  10. Uncertainty: In the event of the Receiver or its employees being uncertain as to whether particular information is Confidential Information, such information is deemed to be Confidential Information unless the Receiver is notified by the Provider in writing to the contrary.
  11. Security: The Receiver will:
  12. maintain effective security measures to protect all Confidential Information in its or its employees’ possession or under its or any of its employees’ control from unauthorised use, copying or disclosure; and
  13. give the Provider all reasonable assistance in connection with any action, proceeding or investigation which the Provider may commence relating to any suspected, expected or actual unauthorised disclosure, unauthorised copying or misuse of the Confidential Information.
  14. Disclosure Notification: If the Receiver is required or requested by any court, governmental, regulatory or other person to disclose any Confidential Information, the Receiver will immediately advise the Provider of that requirement or request and will co-operate with the Provider in opposing such requirement or request if the Provider so requires to the extent that the Receiver’s statutory duties or duties at law allow.
  15. Control of Use, Copying or Disclosure of Confidential Information: The Receiver must:
  16. maintain proper records of the use, copying and disclosure of the Confidential Information by him or her and any person to whom Confidential Information is disclosed; and
  17. produce those records to the Provider on request.
  18. Limitations
  19. No Warranties: The Provider makes no representation or warranty that the Confidential Information is accurate or complete.
  20. Disclosure: The Provider may disclose to the Receiver only so much of the Confidential Information as the Provider, in its sole discretion, believes is necessary for the Specified Purpose.
  21. Termination
  22. Continuing Obligations: The obligations contained in this Deed are independent and shall survive termination of this Deed. The obligations contained in this deed shall continue to apply without limit in point of time and shall not merge or be extinguished except where the Provider at its absolute discretion has acknowledged in writing that such Confidential Information has become publicly available.
  23. Termination of Right to Use Confidential Information: The Provider may terminate the Receiver’s right to use Confidential Information at any time with immediate effect by giving written notice to the Receiver.
  24. Consequences on Termination: On termination of this Deed the right of the Receiver to use the Confidential Information ceases.
  25. Actions on Termination: On termination of this Deed or sooner if requested by the Provider, the Receiver shall immediately, at the option of the Provider:
  26. return to the Provider; or
  27. destroy and certify in writing to the Provider the destruction of; or
  28. destroy and permit a representative of the Provider to witness the destruction of,

all Confidential Information and copies of Confidential Information in the possession or control of the Receiver or any of its employees.

The Receiver shall, upon demand by the Provider, return to the Provider all the Confidential Information (including all copies or reproductions of the same) in the possession or control of the Receiver and its employees together with all information and documentation containing, comprising or relating in any way to the Confidential Information (which information and documentation shall be included within the term “Confidential Information” for the purposes of this Deed). The return of all such Confidential Information shall be accompanied by a certificate of a director of the Receiver stating that the Confidential Information returned comprises all the Confidential Information in the possession or control of the Receiver and its employees and that no Confidential Information whatsoever (including any copies or other reproductions thereof) has been retained by or on behalf of the Receiver or any of its employees.

4.5Accrued Rights and Remedies: Termination of this Deed does not affect any accrued rights or remedies the Receiver may have.

  1. Intellectual Property
  2. No Transfer: This Deed does not transfer any interest in any intellectual property of the Provider.
  3. Property of the Provider: The Receiver acknowledges that the Confidential Information constitutes valuable and proprietary information of the Provider and all intellectual property rights in that Confidential Information (including copyright, design and patent right) are the exclusive property of and will remain the exclusive property of the Provider.
  4. Indemnity

The Receiver will indemnify the Provider against all losses, damages, demands, costs, expenses and liabilities which the Provider incurs as a result of any unauthorised disclosure or use of the Confidential Information by reason of any breach of this Deed.

  1. Miscellaneous
  2. Execution by Counterpart, Copy or Facsimile: This Deed may be executed in counterparts (including facsimile copy), all of which together constitute a binding agreement when signed by the last of the parties.
  3. Entire Deed: This Deed constitutes the entire agreement of the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter; and may only be altered in writing signed by both parties.
  4. Severability: A term or part of a term of this Deed that is illegal or unenforceable may be severed from this Deed and the remaining terms or parts of the terms of this Deed continue in force.
  5. No Waiver: No failure or delay by any party to exercise any right under this Deed shall operate as a waiver of that right, nor shall any single or partial exercise by any party to this Deed or any right preclude any other or further exercise of that right or of any other right. The parties rights expressed in this Deed are cumulative and do not exclude any rights provided by law.
  6. No Assignment: The Receiver must not assign or otherwise transfer any or all of her rights, duties or obligations arising out of this Deed without the written consent of the Provider.
  7. Binding on Successors: The Deed shall be binding on the parties and their respective permitted nominees, successors and assigns.
  8. Jurisdiction of document: This Deed is governed by New Zealandlaw in every particular, including formation and interpretation, and will be deemed to have been made in New Zealand.
  9. Proceedings in New Zealand:Any proceedings arising out of or in connection with this Deed may be brought in any Court of competent jurisdiction in New Zealand.
  10. Arbitration: In the event of any dispute arising from this Deed, the parties shall consult with a view to resolving the dispute in good faith. In the event that no resolution can be achieved, the parties agree that the dispute shall be decided by reference to a single arbitrator agreed on by the parties. If the parties fail to agree on the appointment of an arbitrator within 14 days, the arbitrator shall be appointed by the President for the time being of the Auckland District Law Society. A reference of any dispute to arbitration shall be submission to arbitration within the meaning of the Arbitration Act 1996.

EXECUTED as a Deed

Executed by

queenstown lakes district council

in the presence of

Authorised Signatory
Authorised Signatory
Witness signature
Full name
Occupation
Address

Executed by

[]

in the presence of

Director/Authorised Signatory
Director/Authorised Signatory
Witness signature
Full name
Occupation
Address

6219270.1

Schedule 1 - Confidentiality Undertaking

To:Queenstown Lakes District Council (Provider); and

[] (Receiver)

Date:2017

I, agree with the Provider and the Receiver, as legally binding obligations, that:

  1. I have received a copy of the deed of confidentiality dated and annexed to this document (Confidentiality Deed).
  2. I am:

(a)An officer, employee, or adviser of the Receiver; or

(b)An officer, employee or adviser to the Receiver; or

(c)An officer, employee, agent, consultant or adviser of a related body corporate of the Receiver.

  1. In consideration of the disclosure of Confidential Information to me, I will be bound by all provisions of the Confidentiality Deed as if I were a party to the Confidentiality Deed.
  2. In particular, but without limitation, I will not disclose or communicate any Confidential Information (as defined in the Confidentiality Deed) to any person who has not entered into a Confidentiality Undertaking in the same terms as this Confidentiality Undertaking unless first I have obtained the written consent of the Provider to do so and have complied with all conditions of that consent.

Executedand declared as a deed by

in the presence of

Witness signature
Full name
Occupation
Address

6219270.1