Tutti Frutti Confidentiality Deed

Confidentiality Deed
BETWEEN TUTTI FRUTTI AUSTRALIA PTY LTD ACN 152 732 495 AND AND

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TABLE OF CONTENTS
1 Definitions and interpretation 1.1 Dictionary 1.2 Interpretation Confidentiality Obligations 2.1 Confidentiality 2.2 Use of Confidential Information 2.3 Protection of Confidential Information 2.4 Authorised Recipients 2.5 Exceptions 2.6 Privacy 2.7 This Deed and the parties negotiations Return of Confidential Information Intellectual Property Rights Acknowledgements Indemnity Restraint of Trade 7.1 Definitions 7.2 Restraints 7.3 Associates 7.4 Non-Solicitation of employees 7.5 Restraints are Reasonable 7.6 Independent and Severable Restraints General Conditions 8.1 Date of provision of Confidential Information 8.2 Further Assurances 8.3 Waiver 8.4 No Amendments without Agreement 8.5 Jurisdiction 1 1 2 2 2 3 3 3 3 3 3 4 4 4 4 4 4 5 5 6 6 6 6 6 6 6 7 7

3 4 5 6 7

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Parties
TUTTI FRUTTI AUSTRALIA PTY LTD ACN 152 732 495 of Suite 11, 204 218 Dryburgh Street, North Melbourne VIC 3051 (Discloser) Name: of Name: of (collectively the Recipient)

Background
A. B. The Discloser wishes to disclose Confidential Information to the Recipient. The parties have agreed to disclose and receive that Confidential Information on the terms and conditions of this deed.

Terms and Conditions

1
1.1

Definitions and interpretation

Dictionary In this deed the following words and phrases have the following meanings (unless the context otherwise requires): Associates means: (a) (b) where a party is a body corporate, any officer or Related Entity of the party; and where the party is a natural person, a spouse, domestic partner, relative by blood or adoption or spouse of such a relative.

Confidential Information means any information in any form whatsoever (including oral, written, and electronic information) of a technical, business, corporate or financial nature of or in relation to the Discloser, its related bodies corporate, its business or shareholders, or which the Discloser makes the Recipient, its advisers or agents aware is considered by it to be confidential and/or proprietary, or which is evident on its face as being confidential and/or proprietary, including (without limitation) details of the Tutti Frutti Group and Tutti Frutti System. Corporations Act means the Corporations Act 2001 (Cth). Intellectual Property Rights means all and any current and future registered and unregistered rights in respect of copyright, designs, semiconductor or circuit layouts, trade marks, trade names, business names, trade secrets, know-how, patents, inventions and discoveries, applications for grant of any of the foregoing or other rights of a similar nature arising (or capable of arising) under statute or at common law in the Commonwealth of Australia or anywhere else in the world. Month means a calendar month. Permitted Purpose means the assessment of a potential acquisition, investment opportunity and/or other transaction regarding a Tutti Frutti Business by the Recipient.
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Related Entity has the meaning given to that term in section 9 of the Corporations Act. State means the State of Victoria, in the Commonwealth of Australia. Tutti Frutti Business means a business operated in accordance with the Tutti Frutti System. Tutti Frutti Group means collectively the Discloser, Tutti Frutti Stores Pty Ltd ACN 152 732 502 and all of the franchisees, franchisees guarantors, representatives and other persons involved in the operation of a Tutti Frutti Business. Tutti Frutti System means the business formats, systems methods, procedures, policies, operations, standards and controls developed by the Discloser for the operation of Tutti Frutti Businesses including consistent and uniform range of menu items, consistency in the quality and preparation of menu items, procedures for sale of menu items to customers and customer service and uniform documentation and procedures as described in the Disclosers standard franchise agreement and specified in the Disclosers operations manual or otherwise in writing by the Discloser and modified by the Discloser from time to time. 1.2 Interpretation (a) In this deed unless specified to the contrary: (i) (ii) (iii) (iv) a reference to the singular includes the plural and vice versa; use of the word including and similar expressions are not, nor are they to be interpreted as, words of limitation; a reference to a person includes a natural person, a company or other entities recognised by law; a reference to writing includes any mode of reproducing words, figures or symbols in tangible and permanently visible form and includes fax transmission; where any obligation is imposed on, or any benefit enures for, two or more persons, the obligation binds or enures for the benefit of (as the case may be) those persons jointly and each of them severally; and a reference to a party includes the partys executors, administrators, successors and permitted assigns.

(v)

(vi) (b)

The language in all parts of this deed shall be in all cases construed in accordance with its fair and common meaning and not strictly for or against either of the parties. This deed is to be interpreted so that it complies with all applicable State laws and if any provision does not comply then it must be read down so as to give it as much effect as possible. If it is not possible to give that provision any effect at all, however, then it is to be severed from this deed in which case the remainder of this deed will continue to have full force and effect. Any headings are for ease of reference only and do not affect the interpretation of this deed.

(c)

(d)

2
2.1

Confidentiality Obligations
Confidentiality The Recipient: (a) acknowledges the confidential, sensitive, and proprietary nature of the Confidential Information; and
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(b)

agrees to keep confidential, and not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information, in whole or part, to any third party.

2.2

Use of Confidential Information The Recipient must not: (a) (b) use any of the Confidential Information for any purpose other than the Permitted Purpose; exploit Confidential Information for its own benefit, for the benefit of any other person or for any other purpose, or allow any other person to do so without the written consent of the relevant the Discloser; or use any of the Confidential Information in a manner or for a purpose detrimental to the Discloser or its related bodies corporate.

(c) 2.3

Protection of Confidential Information The Recipient must keep effective control of all Confidential Information received under or in connection with this deed, take all precautions that are reasonably necessary to prevent any theft, loss or unauthorised use or disclosure of that Confidential Information, and must promptly inform the Discloser of any suspected or actual unauthorised use or disclosure of the Disclosers Confidential Information.

2.4

Authorised Recipients The Recipient may disclose the Confidential Information to its directors, officers, agents, employees, advisers, and financiers on a strictly need to know basis provided that: (a) (b) the Recipient must ensure that such persons are under equivalent obligations of confidence to the Recipient as provided in this deed; the Recipient must ensure compliance by such persons with the terms and conditions of this deed which impose any obligation on the Recipient, as if such persons were a party to this deed; and a breach of such a term or condition by such a person shall be regarded as a breach of this deed by the Recipient.

(c) 2.5

Exceptions The Recipient will not be in breach of its obligations with respect to disclosure or use of Confidential Information if it discloses or uses information that: (a) (b) is in the public domain, other than through a breach by it of its obligations under this deed; it is required to disclose by statute, the rules of any stock exchange or any applicable accounting standards, court order or a person acting under the authority of statute or such order; or was developed independently by it, without the use of any Confidential Information.

(c) 2.6 Privacy

The parties must assist each other to comply with their respective obligations in relation to Confidential Information disclosed under this deed under the Privacy Act 1988 (Cth). 2.7 This Deed and the parties negotiations Subject to clause 2.5, the Recipient must treat: (a) the existence and terms of this deed;
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(b) (c)

the fact that discussions or negotiations are taking place between the parties in respect of a possible transaction; and any of the proposed terms and conditions of such a possible transaction,

as Confidential Information.

Return of Confidential Information

Upon the written request of the Discloser, the Recipient must promptly return (or procure the return of) to the Discloser the following (or, if any of the following is incapable of being returned, irretrievably destroy or delete and certify in writing that it has been so destroyed or deleted): (a) (b) the Confidential Information of the Discloser; and all copies, extracts, summaries, notes and records in whatever form (including, without limitation, any electronic records) of the whole or any part of the Confidential Information of the Discloser.

Intellectual Property Rights

The Recipient acknowledges that there is no transfer or licence to it or any third party of any Intellectual Property Rights in and to, or arising from, any Confidential Information disclosed under or in connection with this deed.

Acknowledgements
The Recipient acknowledges that: (a) a breach of any of the Recipients obligations under this deed may result in either or both of the Discloser suffering loss and damage and may cause irreparable damage to the Discloser; and in the event of a breach, or threatened or anticipated breach, of this deed: (i) (ii) damages alone may be an inadequate remedy for the Discloser; and that the Discloser shall be entitled to seek an interim, interlocutory or permanent injunction restraining the Recipient without showing or proving any actual damages sustained by it.

(b)

Indemnity
The Recipient indemnifies (and must keep indemnified) the Discloser, its related bodies corporate, and its officers and agents, from and against all and any liabilities, losses, claims, demands, damages, costs, and expenses suffered, incurred or sustained by them arising directly from or in connection with any breach by the Recipient of the terms and conditions of this deed.

7
7.1

Restraint of Trade
Definitions For the purposes of this clause 7: (a) Restrained Business means a business or operation which: (i) is similar to or competitive with a Tutti Frutti Business or the business of the Tutti Frutti Group in the Restraint Area; or

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(ii) (iii)

develops, markets or sells any products or services which are similar to or compete with the Discloser in the Restraint Area; or develops, markets or sells any products or services to any person who is a customer or was a customer of a Tutti Frutti Business or the Tutti Frutti Group in the twelve (12) Months preceding the termination or expiration of this deed or otherwise canvasses, induces, encourages or solicits business from such a person. each Tutti Frutti Business; within 10 kilometres of the premises from which any Tutti Frutti Business is operated; and within 5 kilometres of the premises from which any Tutti Frutti Business is operated. the period commencing upon execution of this deed by all parties and continuing for eighteen (18) Months after; the period commencing upon execution of this deed by all parties and continuing for twelve (12) Months after; and the period commencing upon execution of this deed by all parties and continuing for six (6) Months after.

(b)

Restraint Area means each of the following areas: (i) (ii) (iii)

(c)

Restraint Period means each of the following periods: (i) (ii) (iii)

7.2

Restraints The Recipients jointly and severally covenant that, in consideration of the Discloser entering into this deed and disclosing Confidential Information and in order to protect the interests of the Discloser (and the legal personal representatives, transferees, successors and assigns of the Discloser) in the reputation and goodwill attaching to or in the Intellectual Property Rights and the Tutti Frutti System, none of them will, nor will any of their Associate of any of them, during the Restraint Period directly or indirectly: (a) conduct, carry on or promote (whether on its own account, in partnership, in joint venture or as employee or agent of or manager for any other person) any Restrained Business; be concerned or interested in any Restrained Business (directly or through any interposed body corporate, trust, partnership or entity) as trustee, principal, agent, shareholder, unitholder, independent contractor, consultant, adviser or in any other capacity, except as a shareholder or unitholder owning or holding less than five percent (5%) of the issued capital or units of a company or trust listed on the Australian Stock Exchange; or provide to any business or entity in which the Recipient (or any Related Entity of the Recipient, or any person who is or was within 1 year before the date of this deed a substantial holder of shares in the Recipient or a Related Entity of the Discloser or an employee of the Recipient or of a Related Entity of the Recipient) has any direct or indirect equity or ownership interest, any financial assistance which assists that business or entity to engage in any Restrained Business.

(b)

(c)

7.3

Associates The Recipient must ensure that each and every Associate of the Recipient enter into a covenant with the Discloser agreeing and undertaking to be bound by a covenant in terms identical to the terms referred to in clauses 7.2 and 7.4.

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7.4

Non-Solicitation of employees The Recipient jointly and severally agrees and declares that they shall not hire or employ or otherwise engage employees of the Discloser or other franchisees of the Tutti Frutti System or canvass, induce, encourage or solicit such employees to leave their employment during the Restraint Period.

7.5

Restraints are Reasonable The Recipients jointly and severally represent and warrant to the Discloser that each of them: (a) (b) (c) have obtained independent legal advice with respect to the provisions of this clause 7; and considers those provisions reasonable in their extent (as to duration, geographical area and restrained conduct); and considers those provisions to go no further than reasonably necessary to protect the interests of the Discloser (and the legal personal representatives, transferees, successors and assigns of the Discloser) in the reputation and goodwill attaching to the Tutti Frutti System or in the Intellectual Property Rights.

7.6

Independent and Severable Restraints The Recipient acknowledges and agrees that: (a) each of the restraints in clauses 7.2 and 7.4 resulting from the various combinations of the Restraint Periods and the Restraint Areas is a separate, severable and independent restraint; and clause 7.5 applies to each of those restraints; and this clause 7 shall survive the end of this deed; and if, for any reason whatsoever, any part of this clause 7 is rendered void, unenforceable or otherwise ineffective, it will be deemed to be severed to the extent that it is void, unenforceable or otherwise ineffective and it shall not affect the enforceability or effectiveness of the remainder of this clause 7 or any other terms or conditions of this deed.

(b) (c) (d)

8
8.1

General Conditions
Date of provision of Confidential Information This deed binds the Recipient in respect of any and all Confidential Information provided by the Discloser to the Recipient, whether such Confidential Information was provided to the Recipient prior to or after the date of this deed.

8.2

Further Assurances Each party must promptly execute all documents and do all things that the other party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of this deed.

8.3

Waiver (a) (b) A single or partial exercise or waiver of a right relating to this deed will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.

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8.4

No Amendments without Agreement This deed may not be modified, discharged or abandoned unless by a document signed by the parties.

8.5

Jurisdiction This deed is to be governed by and construed in accordance with all applicable laws in force in the State from time to time, and the parties submit to the non-exclusive jurisdiction of the courts of the State.

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EXECUTED as a deed on EXECUTED by TUTTI FRUTTI AUSTRALIA ) PTY LTD ACN 152 732 495 in accordance with ) section 127(1) of the Corporations Act 2001 )

2012

Signature of Director

Signature of Director / Company Secretary

(delete as applicable)

Name of Director
(Please print)

Name of Director / Company Secretary

(Please print)

EXECUTED accordance with section 127(1) of the Corporations Act 2001

in ) ) )

Signature of Director

Signature of Director / Company Secretary

(delete as applicable)

Name of Director
(Please print)

Name of Director / Company Secretary

(Please print)

SIGNED by the presence of:

in ) )

Signature of Witness Name of Witness

(Please print)

Signature of

SIGNED by the presence of:

in ) )

Signature of Witness Name of Witness

(Please print)

Signature of

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