1 - It is hereby agreed as follows:

Interpretation: In this Agreement the following words and expressions shall have the following meanings:

(a) “The Purpose” means discussions and negotiations relating to Fixinc partner program.

(b) “Confidential Information” means any information which is made available by or on behalf of the Disclosing Party to the Receiving Party which the Receiving Party knows to be confidential (whether because it has been characterised as such by the Disclosing Party or otherwise), whether such information is made available directly or indirectly (by way of example only, by inspection) and whether made available orally, in writing, magnetically, by electronic transmission, or by any other means.

(c) “Disclosing Party” means in relation to any Confidential Information whichever of the parties hereto shall have disclosed that information to the other party and references to the Disclosing Party shall be deemed to include any party which is wholly or partly owned or controlled by such party or related to or affiliated with such party in any way.

(d) “Receiving Party” means in relation to any Confidential Information whichever of the parties hereto shall have received that information from the other Party and references to the Receiving Party shall be deemed to include any officer, employee and professional adviser of the Receiving Party.

2 - Undertaking

Each Party acknowledges that the Confidential Information is a valuable, special and unique asset of the Disclosing Party and agrees that for a period of 3 years from the date the Confidential Information is disclosed the Receiving Party will:

(a) keep secret and confidential all Confidential Information received by it;

(b) use the Confidential Information received;

(c) not use, copy, adapt, alter, disclose or part with possession of or apply the Confidential Information or any portion of it for any purpose other than the Purpose without the prior written approval of the Disclosing Party in each instance;

(d) not at any time copy, disclose, or otherwise make available to any third party any of the Confidential Information without the prior written consent of the Disclosing Party in each instance (even if such party is under a similar restriction on disclosure with the Disclosing Party), other than:

(i) to those of the Receiving Party’s directors, officers or employees who need to know such Confidential Information in order to fulfil the Purpose and who have been made aware of and accept the provisions of this undertaking; and;
(ii) to those of the Receiving Party’s professional advisers who have been made aware of and accept the provisions of this undertaking;

(e) use at least the same degree of care to protect the confidentiality of all Confidential Information it receives as it uses to protect its own confidential information including by securely storing all Confidential Information in its custody or control.  However in no event shall the Receiving Party use less than a reasonable degree of care to protect Confidential Information received from the Disclosing Party;

(f) at the request of the Disclosing Party return or destroy at the Receiving Party’s own expense the Confidential Information received by it together with any copies in its possession or control or in the possession or control of its directors, officers, employees or professional advisers, and shall erase any Confidential Information in any materials or documentation prepared or which has been recorded in all media, and the Receiving Party shall provide a declaration signed by a duly authorised officer certifying that all such Confidential Information has been destroyed or returned.

3 - Limitation

The undertakings at clause 2 above shall not apply to any Confidential Information which:

(a) is in the public domain at the date of its disclosure or subsequently becomes public knowledge in any way other than in breach of this Agreement;
(b) the Receiving Party can show to have been in its possession prior to receipt from the Disclosing Party;
(c) has been is now or later is independently developed by the Receiving Party without use of or resort to the Confidential Information and can be so proven by written records;
(d) the Receiving Party is required to disclose by any court order or government or regulatory action, provided that the Receiving Party gives the disclosing party at least ten days written notice of such order or action.

If only a portion of the Confidential Information falls within sub-clauses 3 (a) to 3 (d) then the undertakings at clause 2 shall not apply only to that portion.

4 - No Rights in and No Warranty of Confidential Information

(a) Each party acknowledges and agrees that it shall not acquire by implication or otherwise any right or licence in or title to the Confidential Information;
(b) neither party makes any express or implied representation or warranty as to the accuracy or completeness of any Confidential Information;
(c) nothing in this Agreement shall require either party to disclose any Confidential Information to the other party.

5 - No Waiver

(a) Failure by either party to enforce any of its rights under this Agreement shall not be taken as or deemed to be a waiver of such rights.
(b) No waiver or amendment of any provisions of this Agreement shall be valid or binding against either party unless the waiver or amendment is made in writing and signed by the duly appointed representatives of both parties.

6 - No Assignment

This Agreement is personal to the parties and may not be assigned or otherwise transferred in whole or in part by either party without prior written consent or the other party.

7 - Damages Not Adequate Remedy

Each party acknowledges that the other party would be harmed by any breach of the terms of this Agreement and that damages may not be an adequate remedy and that therefore the other party may be entitled to a temporary restraining order and/or an injunction against any breach of the terms hereof.

8 - Governing Law

This undertaking shall be governed by and construed and interpreted in accordance with New Zealand Law and the parties hereby submit to the exclusive jurisdiction of a relevant Law Court of and within New Zealand.

‍

‍