Exceptional 4-chair Specialist Orthodontic Practice

Agreed Terms

1. Defined terms & interpretation

1.1 Defined terms

In this deed:

1. Confidential Information means the following, whether or not in material form:
   1. all information disclosed or made available by or on behalf of the Discloser to the Recipient (including all information disclosed prior to the date of this deed);
   2. that part of all notes and other records prepared by the Recipient or the Discloser based on, oг incorporating, any confidential information; and
   3. the nature of any actual or proposed negotiation, transaction, dispute or settlement between the parties (including that the parties have entered into negotiations or discussions in relation to the proposed transaction) and the terms and existence of this deed.
2. Corporations Act means Corporations Act 2001 (Cth).
3. Permitted Purpose means: to progress an equity investment in the Discloser with the consent of its directors.
4. Permitted Disclosee means, in relation to the Recipient, any legal advisor (whether a firm, individual or company) engaged by the Recipient solely and directly in connection with the Permitted Purpose.

1.2 Interpretation

In this deed:

1. the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
2. no provision shall be interpreted against the interests of a party merely because that party proposed this deed or some provision in it or because that party relies on a provision of this deed to protect itself;
3. a reference to a document or agreement (including a reference to this deed) is to that document or agreement as amended, novated, supplemented, varied or replaced; and
4. terms defined in the Corporations Act have the same meanings when used in this deed.

2. Disclosure and use of Confidential Information

2.1 Confidentiality obligations

The Recipient must:

1. keep the Confidential Information in strict confidence and only use the Confidential Information for the Permitted Purpose;
2. not disclose, or cause or permit the disclosure of, the Confidential Information, except with the prior written consent of the Discloser or in accordance with clause 2.2;
3. not make use of the Confidential Information to the commercial, financial or competitive disadvantage or detriment of the Discloser; and
4. not reproduce any Confidential Information.

2.2 Permitted disclosure

The Recipient may disclose Confidential Information to a Permitted Disclosee if:

1. the disclosure is necessary for the Permitted Purpose (including for the purposes of obtaining advice in relation to the Permitted Purpose); and
2. the persons to whom the disclosure is made agree to keep the Confidential Information in strict confidence and otherwise comply with the obligations in clause 2.1,

and the Recipient must ensure that any Permitted Disclosee to whom it discloses Confidential Information observes the obligations in clause 2.1 as if they were obligations of that Permitted Disclosee.

2.3 Exclusions

The obligations of confidence in clause 2.1 do not apply to the extent that Confidential Information:

1. is required to be disclosed by any applicable law, the requirements of any government agency, by court order, or in accordance with the applicable rules of any stock exchange, as long as the Recipient:
   1. only discloses the minimum amount of Confidential Information required to satisfy the relevant law, order, requirement or rule;
   2. except where immediate disclosure is required, consults with the Discloser about the form and content of the disclosure; and
   3. before disclosing any information, gives all available notice to the Discloser and takes reasonable steps to allow the Discloser to restrict the disclosure by lawful means;
2. is in the public domain otherwise than as a result of a breach of this deed or other obligation of confidence;
3. was in the possession of the Recipient before it was disclosed to it by the Discloser, and which the Recipient did not acquire from any person whom it knew owed an obligation of confidence in respect of the Confidential Information at the time it was given.

2.4 No reliance

The Recipient acknowledges and agrees that:

1. the Discloser makes no representations or warranties as to the accuracy or completeness of the Confidential Information;
2. the Confidential Information may be inaccurate or incomplete; and
3. the Discloser is not liable for any loss or damage however caused (including by the negligence of the Discloser) suffered or incurred by the Recipient in connection with the Confidential Information or this deed.

2.5 Injunctive relief

The Recipient acknowledges that:

1. the Discloser may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information, and that monetary damages would be an insufficient remedy; and
2. in addition to any other remedy available at law or in equity, the Discloser is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 2.

3. Intellectual property

The Recipient acknowledges that:

1. as between the parties the Discloser retains the intellectual property rights in and in connection with the Confidential Information; and
2. nothing in this deed is intended to give the Recipient any intellectual property rights or other rights in or in connection with the Confidential Information.

4. Return or destruction

If the Confidential Information is no longer required for the Permitted Purpose, if this deed is terminated, or if requested by the Discloser, the Recipient’s right to use the Confidential Information ceases and the Recipient must immediately, at the Discloser’s sole option:

1. return to the Discloser;
2. destroy and certify in writing to the Discloser the destruction of, or
3. destroy and permit the Discloser to witness the destruction of,

all Confidential Information.

5. Indemnity

5.1 Recipients indemnity

The Recipient indemnifies and must keep indemnified the Discloser from and against all liability, damage, charges, claims, demands, writs, summonses, suits, proceedings, judgements, orders, decrees, Costs, losses and expenses of any nature whatsoever which the Discloser may suffer or incur arising from or in connection with any breach by the Recipient of any of the provisions of this document.

5.2 Payment on demand

The Recipient agrees to pay amounts due under this indemnity on demand from the Discloser.

6. Term and termination

6.1 Termination

The Discloser may terminate this deed at any time by notice to the Recipient in which case this deed will terminate on the date specified in that notice or, if no date is specified, immediately.

6.2 Waiver and acknowledgement

1. The Recipient expressly waives any rights it may have to terminate this deed.
2. The Recipient acknowledges that the Discloser may terminate this deed under this clause 6 without considering the impact of the termination on the Recipient.

6.3 After termination

On termination of this deed accrued rights or remedies of a party are not affected.

6.4 Survival

Notwithstanding the termination of this deed, the obligations of the Recipient under clauses 2, 4 and 5 (and any other provision which is expressly or by implication intended to come into force or continue on or after termination) shall continue indefinitely from the date of termination or the completion of any discussions in relation to the Permitted Purpose (whichever occurs first).

7. General

7.1 Governing law and jurisdiction

The laws of Victoria govern this deed and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria and courts competent to hear appeals from those courts.

7.2 Assignment and novation

1. The Recipient must not assign, in whole or in part, or novate the Recipient’s rights and obligations under this deed without the prior written consent of the Discloser.
2. The Discloser may assign or novate its interest under this deed without consent.

7.3 Severability

A clause or part of a clause of this deed that is illegal or unenforceable may be severed from this deed and the remaining clauses or parts of the clause of this deed continue in force.

7.4 Entire agreement

This deed supersedes all previous agreements about its subject matter. This deed embodies the entire agreement between the parties.

7.5 Further assurances

Each party must do all things reasonably necessary to give effect to this deed and the transactions contemplated by it.

7.6 Costs

Each party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this deed.

7.7 No waiver

1. The failure of a party to require full or partial performance of a provision of this deed does not affect the right of that party to require performance subsequently.
2. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
3. A right under this document may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

7.8 Notices

1. A notice, consent or communication under this deed must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person’s address as specified at the beginning of this deed or as the person notifies the sender.
2. A notice, consent or communication is given and received:
   1. if it is hand delivered, on the day it is given;
   2. if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside Australia); and
   3. if it is sent by email, that day, if the time of departure from the sender’s mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient’s mail server (other than an ‘out of office’ message or other response generated by or at the instigation of the recipient) (Failure Message) that the email has not been delivered within two hours.