By pressing “I Accept” button, you represent that you have read the terms and conditions of the non-disclosure agreement, accept the terms and conditions and that you have the authority to legally bind the Receiving Party named on the form submitted contemporaneously with the date and time of acceptance.
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This Non-Disclosure Agreement (NDA) is entered between Inner Range Pty. Ltd. ABN 26 007 103 933, with offices at 1 Millenium Court, Knoxfield VIC 3180, Australia (Disclosing Party), and the party named on the form submitted contemporaneously with this NDA (Receiving Party) (each, a Party and, collectively, the Parties) is accepted upon the Receiving Party clicking the button, “I Accept”. The Parties agree that this NDA and its obligations herein shall also apply to any affiliates of the Receiving Party, whether directly or indirectly controlled by the Receiving Party or is under the common control as the Receiving Party (defined as having more than 50% ownership or the right to direct the management of such entity), that engage, directly or indirectly, in the Purpose of this NDA.
1. The Disclosing Party has developed and owns certain intellectual property that form part of the Confidential Information (defined below) which the Receiving Party wishes to access and use for the purpose of undertaking integration of the Receiving Party’s products and the Disclosing Party’s products that will either be used by the Receiving Party for its internal purposes or for resale of the Receiving Party’s products that can be integrated with the Disclosing Party’s products to the Receiving party’s customers and in particular, as described in the form submitted contemporaneously with the date of acceptance of this NDA by the Receiving Party and as approved by the Disclosing Party (Purpose). The Disclosing Party grants a limited, conditional, revocable license to the Receiving Party to use the Confidential Information disclosed by it solely for the Purpose until the termination or expiry of this NDA. Under the no circumstances does the limited licence enable the Receiving Party to re-license the Confidential Information or any part of it.
2. In connection with the Purpose, Disclosing Party may disclose Confidential Information (as defined below) to the Receiving Party. Receiving Party shall use the Confidential Information solely for the Purpose and, subject to Section 4, shall not disclose such Confidential Information other than to its affiliates and its or their employees, agents, independent contractors, suppliers, subcontractors, attorneys, accountants, and financial advisors (collectively, “Representatives”) who: (a) need access to such Confidential Information for the Purpose; (b) are informed of its confidential nature; and (c) are bound by confidentiality obligations no less protective of the Confidential Information than the terms of this NDA. For the avoidance of doubt, Receiving Party shall not use the Confidential Information to compete with the Disclosing Party. Receiving Party shall safeguard the Confidential Information from unauthorized use, access, or disclosure using no less than a commercially reasonable degree of care. Receiving Party will be responsible for any breach of this NDA caused by its Representatives.
3. “Confidential Information” means Disclosing Party’s non-public, proprietary, or confidential information; in oral, visual, written, electronic, or other tangible or intangible form; marked or designated as “confidential” or that would reasonably be considered confidential and/or proprietary under the circumstances surrounding disclosure. Confidential Information includes, but is not limited to: (a) technical, marketing, operating, performance, costs, pricing information, programs, inventions, discoveries, trade secrets, material specifications, business and operating techniques, procedures, processes, strategies, models, methods, and practices, source code, API or interface elements of the Disclosing Party’s Integriti/Infiniti software products, information concerning future products, customer lists, employees, strategic relationships, business opportunities, sample data, and any other information; (b) any terms, conditions, or arrangements discussed regarding the Purpose; and (c) all notes, analyses, summaries, and other materials prepared by Receiving Party or any of its Representatives that contain, are based on, or otherwise reflect any of the Confidential Information. Confidential Information does not include any information that (i) is or becomes generally available to the public other than as a result of Receiving Party’s or its Representatives’ breach of this NDA; (ii) is obtained by Receiving Party or its Representatives on a non-confidential basis from a third-party that, to Receiving Party’s knowledge, was not legally or contractually restricted from disclosing such information; (iii) was in Receiving Party’s or its Representatives’ possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party or its Representatives without using any Confidential Information.
4. If Receiving Party or any of its Representatives are required by applicable law or a valid legal order to disclose any Confidential Information, Receiving Party shall, to the extent legally permissible and reasonably possible, notify Disclosing Party of such requirements so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy, and Receiving Party shall reasonably assist Disclosing Party therewith. If Receiving Party remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
5. The Parties must act in good faith in their dealings with each other and the Receiving Party must take all practical steps to inform Disclosing Party of the facts with respect to its use of the Confidential Information that the Disclosing Party ought reasonably know as a party whose interests such use may adversely affect.
6. Receiving Party must do all things necessary to protect and safeguard the Confidential Information from unauthorized disclosure to a third party including but not limited to ensuring that it uses the best and most up-to-date security solutions available on the market to protect and safeguard Confidential Information of the type that is being disclosed under this NDA.
7. Receiving Party must not promote its products as an approved integrated product with the Disclosing Party’s product without its prior written consent.
8. If Receiving Party requests any support from Disclosing Party in respect of any aspect of the integration, Disclosing Party may charge for such support on such commercial terms as agreed between the Parties and subject to Disclosing Party’s Terms & Conditions of Sale published at https://www.innerrange.com/Resources/TERMS-AND-CONDITIONS-OF-SALE.
9. On Disclosing Party’s request, Receiving Party shall promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession; provided, however, that Receiving Party may retain copies of Confidential Information that is stored on Receiving Party’s IT backup and disaster recovery systems until their ordinary course deletion. Receiving Party shall continue to be bound by the terms and conditions of this NDA with respect to such retained Confidential Information until such ordinary course deletion.
10. Each Party warrants that it has the right to make the disclosures under this NDA. NO OTHER WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS NDA. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” DISCLOSING PARTY MAKES NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, ERROR FREE OR FREE FROM CYBER THREATS, OPERABILITY, INTEROPERABILITY OR FUNCTIONABILITY OF THE CONFIDENTIAL INFORMATION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLOSING PARTY WILL HAVE NO LIABILITY TO RECEIVING PARTY RELATING TO RECEIVING PARTY’S OR ITS REPRESENTATIVES’ USE OF ANY OF THE CONFIDENTIAL INFORMATION. THE ENTIRE RISK ARISING OUT OF THE USE OF THE CONFIDENTIAL INFORMATION OR PERFORMANCE OF THE INTEGRATED PRODUCTS RESTS WITH THE RECEIVING PARTY. THE RECEIVING PARTY ACKNOWLEDGES THAT THE CONFIDENTIAL INFORMATION MAY CONTAIN OR PROVIDE ACCESS TO INDEPENDENT THIRD-PARTY PRODUCTS AND RELY ON THEM TO PERFORM CERTAIN FUNCTIONALITIES AND THE DISCLOSING PARTY MAKES NO WARRANTY AS TO THE OPERATION OF ANY THIRD-PARTY PRODUCTS OR THE ACCURACY OF ANY THIRD-PARTY INFORMATION TO THE FULLEST EXTENT PERMITTED BY LAW.
11. RECEIVING PARTY ACKNOWLEDGES THAT DISCLOSING PARTY’S CONFIDENTIAL INFORMATION OR THE INTEGRATED PRODUCT THAT USES OR INCORPORATES THE CONFIDENTIAL INFORMATION MAY FAIL AND THE CONFIDENTIAL INFORMATION HAS NOT BEEN DESIGNED, DEVELOPED, TESTED, LICENSED OR INTENDED FOR USE IN THE DESIGN, CONSTRUCTION, OPERATION, MAINTENANCE, SECURITY OR PROTECTION OF HIGH RISK FACILITIES. DISCLOSING PARTY SHALL HAVE NO RESPONSIBILITY FOR, AND THE RECEIVING PARTY INDEMNIFIES AND HOLDS HARMLESS THE DISCLOSING PARTY FROM ALL CLAIMS, SUITS, DEMANDS, PROCEEDINGS, LIABILITY, LOSSES, DAMAGES, PENALTIES, JUDGMENTS, AWARDS, EXPENSES INCLUDING LEGAL COSTS AND EXPENSES ON A FULL INDEMNITY BASIS ARISING FROM OR IN CONNECTION WITH THE RECEIVING PARTY’S USE OF THE CONFIDENTIAL INFORMATION AND/OR DEPLOYMENT AND/OR SALE OF ITS PRODUCTS FOLLOWING USE OF THE CONFIDENTIAL INFORMATION IN RELATION TO HIGH RISK FACILITIES. “HIGH RISK FACILITIES” MEANS A FACILITY THAT REQUIRES EXTRA SAFETY FUNCTIONALITIES SUCH AS FAIL-SAFE, FAULT TOLERANT PERFORMANCE FEATURES TO MAINTAIN 100% SECURITY WHERE IT IS REASONABLY FORESEEABLE THAT FAILURE OR COMPROMISE OF SECURITY SYSTEM TO THE FACILITY COULD LEAD TO DEATH, PERSONAL INJURY OR CATASTROPHIC PROPERTY DAMAGE WHICH MAY INCLUDE BUT ARE NOT LIMITED TO CRITICAL INFRASTRUCTURE, INDUSTRIAL PLANTS, MANUFACTURING FACILITIES, DIRECT LIFE SUPPORT DEVICES, AIRCRAFTS, TRAINS, BOATS OR OTHER TRANSPORTATION VEHICLES, VEHICLE NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS OR FACILITIES, NUCLEAR FACILITIES, POWER PLANTS, MEDICAL SYSTEMS AND FACILITIES AND TRANSPORTATION FACILITIES.
12. TO THE MAXIMUM EXTENT PERMITTED BY LAW UNDER NO CIRCUMSTANCES WILL DISCLOSING PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SPECIAL DAMAGES INCLUDING LOST OR CORRUPT DATA, LOST REVENUES OR LOST PROFITS, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE DISCLOSING PARTY IS UNABLE TO EXCLUDE OR LIMIT LIABILITY, TO THE FULLEST EXTENT POSSIBLE, IN NO EVENT SHALL THE DISCLOSING PARTY’S LIABILITY UNDER THIS NDA EVER EXCEED TEN AUSTRALIAN DOLLARS (AUD10).
13. Disclosing Party retains its entire right, title, and interest in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license other than the limited license described in Section 1, assignment, or other transfer of any such right, title, or interest to Receiving Party or any other person.
15. Receiving Party acknowledges and agrees that where the Disclosing Party determines that there has been a breach of clause 2 by the Receiving Party and that it has resulted or is likely to result in a loss to the Disclosing Party due to the Receiving Party using the Confidential Information that is not for the Purpose, then Disclosing Party may claim the sum of one thousand US dollars (USD1,000) per site as a liquidated sum, which the Receiving Party agrees is a genuine pre-esimtate of the Disclosing Party’s loss without prejudice to any additional loss or damage which the Disclosing Party may by evidence prove it has suffiered or which the Disclosing Party may be entitled by law or in equity.
16. Additionally, Receiving Party acknowledges and agrees that where the Disclosing Party is of the belief that any breach of this NDA may cause irreparable harm and injury to Disclosing Party for which money damages may be an inadequate remedy and that, in addition to remedies at law, Disclosing Party is entitled to seek equitable relief as a remedy for any such breach. In any such proceeding, Receiving Party waives any claim or defense that Disclosing Party has an inadequate remedy at law.
17. This NDA is governed by, and construed in accordance with, the laws of New South Wales, Australia and the Commonwealth of Australia, without regard to any conflict of laws provisions. Any legal suit, action, or proceeding relating to this NDA must be instituted in the federal or state courts located in Sydney, New South Wales, Australia. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
18. All notices must be in writing and addressed to the relevant Party at its principal place of business or registered office address. All notices must be personally delivered or sent prepaid by nationally recognized courier or certified or registered mail, return receipt requested, and are effective upon actual receipt.
19. The Parties undertake to comply with all applicable export control laws and regulations restricting the use, export and transfer of the materials, information, software, and know-how received or created under this NDA. The Parties agree that these obligations are legal or regulatory in nature and shall, therefore, survive termination of this NDA
20. The Parties hereto are independent contractors, and nothing contained in this NDA shall be deemed to constitute the Parties as principal and agent, partners, joint ventures or employer and employee. Neither Party shall have the authority to enter into any agreements, obligations or commitments on behalf of the other Party. This NDA does not restrict or preclude either Party from pursuing any present or future activities or interests separately or oblige either Party to conclude any agreement with each other in relation to the Purpose.
21. Receiving Party indemnifies and keeps indemnified Disclosing Party against any claim from any person or liability (including reasonable legal fees and expenses on a full indemnity basis) arising from or in connection with any breach or non-compliance with any of its representations, warranties, covenants, obligations or obligations under this NDA including but not limited to the use of any of the Confidential Information, whether or not in a manner permitted or contemplated by this NDA.
22. This NDA constitutes the entire agreement of the Parties with respect to its subject matter, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. Any provision of this NDA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions of this NDA will remain in full force and effect. This NDA may be amended or modified by notice in writing by Disclosing Party. Failure by a Party to exercise any right or remedy under this NDA will not be deemed a waiver of such right or remedy unless in writing signed by the other Party. No waiver by a Party of any right shall extend to or affect any other right, nor shall a waiver by a Party of any breach extend to any subsequent similar or dissimilar breach. Receiving Party may not assign this NDA without the express written approval of the Disclosing Party. Notwithstanding the foregoing, this NDA shall be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party.