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IMS Group of Companies may be retained as an independent consultant or contractor with the Client for the purpose of provision of IMS across Insurance, Finance and Risk Management. IMS Group of Companies will receive from the Client, or develop on behalf of the Client, Confidential Information. IMS Group of Companies may also be provided information from the Clients customers. Such information will be deemed to be Confidential Information and will be treated in the same manner as though it were the Client’s.
As a condition of the Client retaining the IMS Group of Companies and the client providing Confidential information to the IMS Group of Companies in addition to other valuable consideration, the receipt and sufficiency of which is acknowledged, the client and IMS Group of Companies agree as follows:
Confidential Information
1. All Written and oral information and materials disclosed or provided by the Client to IMS Group of Companies under this Agreement is Confidential Information regardless of whether it was provided before or after any signed Agreement or how it was provided to IMS Group of Companies.
2. IMS Group of Companies acknowledges that in any position IMS Group of Companies may hold, in and as a result of IMS Group of Companies retainer by the Client, IMS Group of Companies will, or may, be making use of, acquiring or adding to information about certain matters and things which are confidential to the Client.
3.‘Confidential Information’ means all data and information relating to the Client, including but not limited to, the following:
* ‘Customer Information’ which includes names of customers of the Client, their representatives, all customer contact information, contracts and their contents and parties, customer services, data provided by customers and type, quantity and specifications of products and services purchased, leased, licensed or received by customers of the Client;
* Intellectual Property’ which includes information relating to the Clients proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, test data and test results, simulation results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing, and licensing proprietary rights (including patents, copyrights and trade secrets);
* ‘Marketing & Development Information’ which includes marketing & development plans of the Client, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of the Client which have been or are being discussed;
* ‘Business Operations’ which includes internal personnel and financial information of the Client, vendor names and other vendor information (including vendor characteristics, services, and agreements), purchasing and internal cost information, internal services and operational manuals, and the manner and methods of conducting the Clients business;
* ‘Product Information’ which includes all specifications for products of the Client as well as work product resulting from or related to work or projects of the Client, of any type or form in any stage or anticipated research and development;
* ‘Production Processes’ which include processes used in the creation, production and manufacturing of the work product of the Client, including but not limited to, formulas, patterns, moulds, models, methods, techniques, specifications, processes, procedures, equipment, devices, program and designs;
* ‘Service Information’ which includes all data and information relating to the services provided by the Client, including but not limited to, plans, schedules, manpower, inspection and training;
* ‘Proprietary Computer Code’ which includes all sets of statements, instructions or programs of the Client, whether in human readable or machine readable form that are expressed, fixed, embodied or stored in any manner that can be used directly or indirectly in a computer (‘Computer Programs’); and any report format, design or drawing created or produced by such Computer Programs and all documentation, design specifications and charts and operating procedures which support the Computer Programs;
* ‘Computer Technology’ which includes all scientific and technical information or material of the Client, pertaining to any machine, appliance or process, including but not limited to specifications, proposals, models, designs, formulas, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how;
* ‘Accounting Information’ which includes without limitation, all financial statements, annual reports, balance sheets, company asset information, company liability information, revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts receivable, accounts payable , purchasing information, payroll information, constructive delivery evidence, invoicing, sales contracts, purchase orders, statutory obligations payable to any government instrumentality and bank statements;
* Confidential Information will also include any information that has been disclosed to the Client by a third party to the Client, such information does not require a Consultant Agreement entered into between the third party and the Client.
4. Confidential Information will not include the following information:
a. Information that is generally known in the industry of the Client;
b. Information that is now or subsequently becomes generally available to the public through no wrongful act of IMS Group of Companies;
c. Information that IMS Group of Companies rightfully had in its possession prior to receiving the Confidential Information from the Client;
d. Information that is independently created by IMS Group of Companies without direct or indirect use of the Confidential Information;
e. Information that IMS Group of Companies rightfully obtains from a third party who has the right to transfer or disclose it.
Confidential Obligations
Avoiding Conflict of Opportunities
13. It is understood and agreed that any business opportunity relating to or similar to the Client’s current or anticipated business opportunities coming to the attention of IMS Group of Companies during IMS Group of Companies engagement is an opportunity belonging to the Client. Accordingly, IMS Group of Companies will advise the Client of the opportunity and cannot pursue the opportunity directly or indirectly, without written consent of the Client.
Remedies
14. IMS Group of Companies agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Confidential Information in breach of any Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Client. Accordingly, IMS Group of Companies agrees that the Client is entitled to, in addition to all other rights and remedies available to it at law or in equity, an injunction restraining IMS Group of Companies, any of its personnel, and any agents of IMS Group of Companies, from directly or indirectly committing or engaging in any act restricted by any Agreement in relation to the Confidential Information.
Return of Confidential Information
15. IMS Group of Companies agrees that, upon request of the Client, the Contactor will turn over the Client all documents, disks, or other computer media, or other material in the possession or control of IMS Group of Companies that:
- May contain or be derived from ideas, concepts, creations, or trade secrets and other proprietary and Confidential Information; or
- Is connected with or derived from IMS Group of Companies services to the Client
Notices
16. In the event that IMS Group of Companies is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, IMS Group of Companies will give to the Client prompt written notice of such request so the Client may seek an appropriate remedy or alternatively to waive IMS Group of Companies compliance with the provisions of this Agreement in regards to the request.
17. If IMS Group of Companies loses or fails to maintain the confidentiality of any Confidential Information in breach of any Agreement, IMS Group of Companies will immediately notify the Client and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
18. Any notices of delivery required in any Agreement will be deemed completed when;
- Hand-delivered
- Delivered by agent; or
- Seven days after being placed in the post, postage prepaid, to the parties at the addresses contained in any Agreement or as the parties may later designate in writing.
19. The address for any notice to be delivered to any of the parties to this Agreement is as follows:
Name IMS Group of Companies
Address L6, 145 Eagle Street
BRISBANE QLD 4000
Assignment
20. Except where a party has changed its corporate name or merged with another corporation, any Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to any Agreement.
Amendments
21. Any Agreement may only be amended or modified by a written instrument executed by both the Client and IMS Group of Companies.
Governing Law
22. Any Agreement will be construed in accordance with and governed by the laws of the State of Queensland.