Memorandum of Understanding

MEMORANDUM OF UNDERSTANDING
(Non-Binding)

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This Memorandum of Understanding (hereinafter "Memorandum" or "MOU") is dated this ________.

BETWEEN:

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of the following address:

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AND

________

of the following address:

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(referred to herein as "Parties" or individually as "Party")

BACKGROUND

The Parties are interested in working together in connection with the Purpose which is described in this Memorandum.

This Memorandum sets out the initial relationship between the Parties as well as the respective rights and responsibilities of each Party.

This Memorandum is not intended to be legally binding but is intended to document the expectations of each Party.

Each Party respectively is expected to act in good faith in accordance with this Memorandum.

(1) PROJECT AND PURPOSE

(a) The Parties intend to investigate the prospect of working together and/or to actually work together, on a project which will be referred to as ________ ("the Project").

(b) The Project has the following purpose ("the Purpose"):

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(2) NON BINDING MEMORANDUM

(a) The Parties hereby acknowledge and agree that:

(I) The terms of this Memorandum are not intended to be legally binding; and

(II) The terms of this Memorandum are not exhaustive; and

(III) The terms of this Memorandum are expressly "subject to contract" until a final written contract in relation to the Project is entered by the Parties.

(IV) Nothing in this Memorandum will be construed as creating any legal relationship between the Parties.

(V) This Memorandum does not create any rights, obligations or duties for any Party.

(VI) This Memorandum is a statement of intent by the Parties and is intended to encourage mutual cooperation.

(VII) Nothing in this Memorandum affects any other agreement(s) which may exist between the Parties as at the date of this Memorandum or at any subsequent date.

(VIII) Notwithstanding the preceding subclauses hereof, this Memorandum provides an accurate representation of the Parties' respective intentions as at the date of this Memorandum.

(3) CHANGES TO MEMORANDUM

(a) This Memorandum may be amended at any time by agreement between the Parties.

(b) Any changes to this Memorandum must be made in writing and signed by the Parties.

(4) GENERAL OBLIGATIONS

(a) Notwithstanding the non-binding nature of this Memorandum, the Parties will act in good faith and will use their best endeavours to achieve the Purpose and to give effect to the terms of this Memorandum.

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(b) Each Party agrees to cooperate in the spirit of mutual understanding and goodwill in order to develop the Parties' relationships with one another and in order to pursue the Purpose.

(c) The Parties will have the obligations as described below:

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(5) ROLES OF PARTIES

(a) ________ will have the following obligations in relation to the Project:

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(b) ________ will have the following obligations in relation to the Project:

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(6) CONFIDENTIALITY

(a) For the sake of clarity, this "Confidentiality" clause, like the rest of this Memorandum, is not intended to be legally binding. The Parties acknowledge and agree that if they need to be protected by a binding Confidentiality Agreement, they will prepare such a binding Confidentiality Agreement separately.

(b) The Parties each hereby acknowledge and agree that in connection with this Memorandum, they may have access to information that is confidential and/or commercially valuable to one or more of the other Parties ("Confidential Information").

(c) The Parties each hereby acknowledge and agree that they may be both the receiving party in relation to some Confidential Information ("Receiving Party"), and the disclosing party in relation to some other Confidential Information ("Disclosing Party"), and that the terms of this Memorandum may apply to a Party as both a Receiving Party and as a Disclosing Party, as the context so provides.

(d) For the purpose of this Memorandum, Confidential Information may include but is not limited to:

(I) information of whatever nature relating to the Project or to another Party (whether relating to the Project or otherwise);

(II) any information derived from any other information which falls within this definition of Confidential Information; and

(III) any copy of any Confidential Information.

but does not include information which:

(I) was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Disclosing Party, provided that it was known or in the possession of the Receiving Party through legal means, and not as a result of any breach of this Memorandum or any other agreement or obligation relating to confidentiality (whether or not the Receiving Party was a party to such other agreement or obligation);

(II) is, or becomes, publicly available, through no fault of the Receiving Party;

(III) is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

(IV) is provided to the Receiving Party by the Disclosing Party and is marked "Non Confidential"; or

(V) is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Disclosing Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.

(e) In relation to any Confidential Information:

(I) the Receiving Party shall keep the Confidential Information confidential and secret.

(II) the Receiving Party shall only use the Confidential Information for the purpose of working in good faith on the Project in accordance with this Memorandum.

(III) the Receiving Party shall not release the Confidential Information to any other party, unless that other party is an advisor who is under a duty of confidentiality, is assisting with the Project, and needs to have the Confidential Information in order to assist with the Project.

(f) If there is any doubt as to whether any particular information constitutes Confidential Information, the Receiving Party should presume it is Confidential Information, until the Receiving Party obtains explicit confirmation from the Disclosing Party that it is not Confidential Information.

(g) Each Party's respective obligations of confidentiality under this clause will survive the termination or expiration of this Memorandum and will continue after that Party ceases to participate in the Project.

(7) COMPETITION

(a) For the sake of clarity, this "Competition" clause, like the rest of this Memorandum, is not intended to be legally binding. The Parties acknowledge and agree that if they need to be protected by a binding Non-Compete Agreement, they will prepare such a binding Non-Compete Agreement separately.

(b) Each Party respectively agrees that, for the period of time as set out in this clause ("the Time Period") after the Party ceases to participate in the Project, and within the geographical area as set out in this clause ("the Geographical Area"), the Party will not, either directly or indirectly, whether as employee, partner, sole trader, manager, director, advisor, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, undertake any of the following:

(I) engaging in a business or project which is the same as, similar to or in competition with the Project; or

(II) soliciting, hiring, or attempting to hire any other Parties or any employees or staff that are working in connection with the Project;

(III) soliciting any customers or clients of the Project;

(c) For the purposes of this clause, "the Time Period" means, from the date that the Party ceases to participate in the Project:

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(d) For the purposes of this clause, "the Geographical Area" means:

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(e) Each Party's respective obligations under this clause will survive the termination or expiration of this Memorandum and will continue after that Party ceases to participate in the Project.

(8) INTELLECTUAL PROPERTY

(a) In connection with each Party's participation in the Project, each Party respectively may generate, create, contribute to, write or produce intellectual property ("Project Intellectual Property").

(b) For the purposes of this Memorandum, "Project Intellectual Property" includes but is not limited to:

(I) information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property; and

(II) intellectual property that results in any way from work performed for or on behalf of the Project (whether performed by the Party or by somebody else); and

(III) intellectual property, whether the Party generates, creates, contributes to, writes or produces that intellectual property:

(A) directly, indirectly, independently or in cooperation or conjunction with another person or persons; and

(B) during the Party's ordinary working hours, or outside of the Party's ordinary working hours; and

(C) at the location where the Party ordinarily participates in the Project, or at some other location.

(IV) intellectual property that results in any way from the use of resources or assets in connection with the Project, including reference or other materials, personnel, facilities, or other resources; and

(V) intellectual property that relates in any other way to the Project or any business which is developed in connection with the Project.

(c) Unless otherwise expressly agreed between the Parties, nothing in this Memorandum is intended to create any transfer or assignment of any intellectual property rights in relation to any Project Intellectual Property.

(d) Unless otherwise expressly agreed between the Parties, in the event that a particular Party generates, creates, contributes to, writes or produces an item of Project Intellectual Property, that Party shall retain any and all intellectual property rights in relation to that item of Project Intellectual Property.

(e) Each Party's respective obligations under this clause will survive the termination or expiration of this Memorandum and will continue after that Party ceases to participate in the Project.

(9) TIMING AND DURATION OF PROJECT

(a) This Memorandum will commence on ________.

(b) The Parties will negotiate in good faith in order to sign a final and legally binding agreement in relation to the Project (the "Agreement") on or before ________.

(c) This Memorandum will remain in effect until the Agreement commences, or unless and until otherwise terminated by the Parties.

(d) Either Party may terminate this Memorandum by providing notice in writing to the other Party.

(10) CONSEQUENCES OF TERMINATION

(a) In the event that this Memorandum is terminated:

(I) Neither Party will, under this Memorandum, incur any financial liability to the other Party; and

(II) Notwithstanding the preceding sub-clause hereof, either Party may incur liability towards the other Party in connection with matters outside of this Memorandum, which may include but are not limited to liability in relation to breach of contract, tort, or equity.

(III) In the event that a Party ("First Party") is in possession of any equipment, materials, documents, intellectual property, data or other information ("Items") that are the property of the other Party ("Second Party"), then the First Party must promptly return all Items to the Second Party, or destroy any Items if directed to do so by the Second Party; and

(IV) The non-binding obligations provided in the "Confidentiality" clause and in the "Competition" clause of this Memorandum will continue for the time periods as provided in those clauses respectively.

(11) EXCLUSIVITY

(a) Each Party (which, for the purpose of this clause is referred to as the "Representing Party") hereby represents to the other Party that:

(I) Upon the signing of this Memorandum, the Representing Party will terminate any discussions or negotiations with any party other than a Party to this Memorandum ("Third Party"), which relate to the Purpose or to the Project ("Third Party Discussions"), in which the Representing Party, or any employee, agent, advisor, contractor or other representative of the Representing Party, may be engaged.

(II) While this Memorandum is in effect, the Representing Party will not, directly or indirectly:

(A) Engage in any Third Party Discussions; or

(B) Invite, encourage, seek or otherwise solicit any Third Party to engage in Third Party Discussions; or

(C) Respond to any invitation or solicitation from any Third Party in relation to any Third Party Discussions (except to explicitly reject such invitation or solicitation); or

(D) Enter into any agreement, memorandum of understanding, heads of agreement, letter of intent, or other arrangement with any Third Party in relation to any Third Party Discussions (whether legally binding or non-binding).

(III) The Representing Party will ensure that any employee, agent, advisor, contractor or other representative of the Representing Party also complies with the obligations under this clause.

(b) For the sake of clarity, "Third Party Discussions" do not include discussions or negotiations in which the Representing Party may engage with any Third Party in order to pursue the Purpose in good faith and in the spirit of this Memorandum.

(12) 88555

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(13) APPLICABLE LAW

Notwithstanding that this Memorandum is not legally binding, the Parties agree that in the event that laws need to be applied to it, the laws of New South Wales will apply.

SIGNED BY THE PARTIES THIS ________

Signed for and on behalf of ________:

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Signed for and on behalf of ________:

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