Investor Terms and Conditions
TERMS AND CONDITIONS – ACCESS TO CONFIDENTIAL INFORMATION OF POWERCO LIMITED (“POWERCO”)The Recipient agrees to hold the Confidential Information on the terms and conditions below, and will not use or disclose the Confidential Information except as set out below, or as expressly agreed in writing between the Recipient and Powerco from time to time.
1 The Recipient must keep the Confidential Information provided by Powerco strictly confidential, must not disclose the Confidential Information provided (directly or indirectly), and must not use the Confidential Information for any purpose other than the Agreed Purpose (unless otherwise agreed in writing between the Recipient and Powerco).
2 The Recipient may disclose the Confidential Information to its Affiliates as reasonably necessary for the Agreed Purpose, provided that each relevant Affiliate agrees to comply with confidentiality protections at least as strict as these conditions (and the Recipient must ensure such compliance).
3 The Recipient may disclose Confidential Information to the extent required by law, but (unless prohibited by law) must notify Powerco as early as possible of the requirement for disclosure, consult with Powerco on the extent of the disclosure, and provide any reasonable assistance requested by Powerco for the purpose of opposing the requirement and/or seeking to ensure that the person receiving the disclosure maintains its confidentiality.
4 The Recipient must take all reasonable care to ensure that all materials in its possession that contain or incorporate the Confidential Information are securely kept.
5 The Recipient agrees that all rights in the Confidential Information (including all intellectual property rights) are and will remain the property of Powerco and its licensors. The Recipient is not granted any rights to use or exploit the Confidential Information, other than the non-exclusive right to use the Confidential Information for the Agreed Purpose.
6 The Recipient must return or destroy all material containing Confidential Information as directed by Powerco, and must confirm in writing to Powerco that this has occurred, except:
(a) board papers, or board or board committee minutes, provided these contain no more detail than is usual given normal business practice and the established practices of the board or committee;
(b) any information that the Recipient is required by law to retain;
(c) documents created or retained by advisers of the Recipient, where required by the adviser to comply with law, professional standards or its insurance policies;
(d) materials created specifically for the Agreed Purpose, where Powerco can reasonably be taken to have supplied the relevant Confidential Information on the understanding that such materials would be created, and would be retained by the Recipient; or
(e) information that cannot reasonably be erased because of the nature of digital storage practices or technologies.
7 If any of the Confidential Information provided by Powerco to the Recipient is "inside information" under the Financial Markets Conduct Act 2013 (NZ) or the Corporations Act 2001 (Cth) (Aus), or "Material Information" under the NZX Limited Main Board/Debt Market Listing Rules, the Recipient must not contravene the provisions of either of those Acts or those rules.
8 Unless agreed in writing otherwise with Powerco, the Recipient's obligations under this agreement continue indefinitely, despite the end of discussions or activities relating to the Confidential Information provided to the Recipient by Powerco.
9 The Recipient acknowledges that its breach of this confirmation may result in third party claims against Powerco for breach of confidentiality in relation to the Confidential Information. The Recipient also acknowledges that damages alone would be an inadequate remedy for breach of this confirmation, and the appropriate remedies for an actual or anticipated breach may include an injunction and/or an order for specific performance.
10 This confirmation may be enforced by any Related Company of a party under Part 2, Subpart 1 of the Contract and Commercial Law Act 2017, as if each reference in this agreement to that party also referred to that Related Company. Otherwise, this agreement is not enforceable by anyone other than the Recipient or Powerco.
11 This confirmation is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.
12 This confirmation cannot be amended, except in writing and agreed by both parties.
13 In this confirmation:
Affiliates means in relation to a Recipient, means that Recipient's Related Companies, and any contractors, advisers, employees and/or agents in their capacity working for or on behalf of that Recipient or any of its Related Companies.
Agreed Purpose means the purpose for which Powerco is making the Confidential Information available to the Recipient.
Related Company has the meaning given in the Companies Act 1993, read as if the word "company" included any body corporate incorporated anywhere in the world.
Confidential Information means all information (of any kind, in any form, including documents and digital files), that is or has been provided or made available by Powerco to the Recipient, or generated or acquired by the Recipient in the course of working on or examining any premises, facilities, equipment or systems of Powerco. This also includes any information which the Recipient derives from the foregoing. However, Confidential Information excludes anything that can be established by written records to be known to the Recipient independently of Powerco (without the use of any other Confidential Information), and anything that is in the public domain through no fault of the Recipient. Each reference to the Recipient or Powerco also includes a reference to that party's Affiliates.