CONFIDENTIALITY AND RESTRAINT DEED

Dated PARTIES:
1.

20

LPNZ LIMITED (Proprietor) of (Recipient) (address)

2.

RECITALS: A. The Recipient has been or will be provided with the Confidential Information which is the exclusive property of the Proprietor and which is secret and of value to the Proprietor. The Recipient wishes to obtain access to the Confidential Information to enable the Recipient to evaluate whether or not the Recipient wants to set up and operate a Lollipops Playland franchise business and enter into a Franchise Agreement with the Proprietor. The Proprietor is willing to release the Confidential Information to the Recipient on the terms and conditions of this Deed. The Recipient has agreed to be bound by the terms and conditions of this Deed and in particular by certain duties of confidentiality and non-use in respect of the Confidential Information.

B.

C. D.

IT IS AGREED:

Definitions
1.1 In this Agreement, unless the context otherwise requires: Confidential Information means all information which is disclosed by the Proprietor or on the Proprietors behalf to the Recipient relating to the Proprietor and its business for the Purpose and includes but is not limited to: (a) trade secrets, drawings, know-how, data, concepts, designs, plans and models. (b) business techniques, systems, processes and methods;

(c) (d) (e) (f) (g) (h) (i) (j) (k)

business plans, marketing plans, strategies, techniques and information; financial information; the Lollipops Playland Disclosure Document, Heads of Agreement (if applicable), and Franchise Agreement; information designated as confidential; information or material which the Recipient knows or reasonably ought to know is actually or potentially of commercial value to the Proprietor; information acquired by the Recipient solely by virtue of the provision of the Proprietor's information; information imparted in confidence to the Recipient by the Proprietor; any other information capable of being classed in equity as confidential information; and any evaluation, including all minutes, notes, papers, communications and other records capable of being reproduced made by or on behalf of the Recipient

whether written or oral and whether of a business, financial, technical, intellectual property or other nature and in whatever form including electronically stored information but shall not include information or material which (a) the Recipient can prove by contemporaneous written records was already known to the Recipient at the time of its disclosure; or

(b) is in or becomes part of the public domain other than through breach of this Deed. Person includes any natural person, corporation and body of persons whether corporate or not. "the Purpose" means the purpose of evaluating whether or not the Recipient wants to set up and operate a Lollipops Playland franchise business and enter into a Franchise Agreement with the Proprietor. 2. 2.1 Recipients Covenants and Undertakings In consideration of the Proprietor disclosing the Confidential Information to the Recipient, the Recipient covenants and agrees with the Proprietor that it will: (a) hold the Confidential Information in strict confidence;

(b) (c)

only use the Confidential Information for the Purpose and not any other purpose; not directly or indirectly disclose or permit the disclosure of any of the Confidential Information whether verbally or in writing to any person other than pursuant to the terms of this Deed; store the Confidential Information safely and securely; not make copies of any documents supplied by the Proprietor under this Deed without the prior written approval of the Proprietor; not, without the prior written approval of the Proprietor, remove from the premises of the Proprietor or any other premises from which the Proprietor conducts business or performs its ordinary duties any representation, record or reproduction of the Confidential Information; not to solicit any supplier, customer or client of the Proprietor or its current franchisees; not to solicit any employee of the Proprietor; not do any act, thing or omission involving the use of the Confidential Information which may injure or cause loss to or be calculated to injure or cause loss to the Proprietor or one of its current franchisees, or which may affect the carrying on of the Proprietors business or any of its franchisees businesses; not use or attempt to use the Confidential Information for the benefit of any third person; confine the distribution of the Confidential Information to those of its directors, employees, agents and contractors (if any) approved by the Proprietor and only as shall be absolutely necessary for the Purpose. The Recipient will obtain from such directors, employees, agents and contractors a written undertaking, in such form approved by the Proprietor, to observe secrecy and confidentiality in relation to the Confidential Information before making the Confidential Information available to such persons;

(d) (e)

(f)

(g) (h) (i)

(j) (k)

(l)

be wholly responsible and liable for the acts and defaults of its directors, employees, agents and contractors in respect of any Confidential Information disclosed to them; take all reasonable measures to enforce the obligations of secrecy and confidentiality with respect to any of its directors, employees, agents and contractors who may have had access to the Confidential Information; immediately report to the Proprietor any unauthorised use, disclosure, copy or printing of the Confidential Information of which the Recipient becomes aware; immediately upon request from the Proprietor and immediately upon the completion of the Recipients evaluation of whether or not the Recipient wants to set up and operate a Lollipops Playland franchise business and enter into a Franchise Agreement with the Proprietor, return to it all Confidential Information, all copies thereof or other documents which have been provided by the Proprietor to the Recipient and all other documents prepared by or on behalf of the Recipient and which contain any Confidential Information; indemnify and keep indemnified and hold harmless the Proprietor or any one or more of its current franchisees against all losses, damages, costs or expenses which the Proprietor or one of its current franchisees may incur as a result of any breach of this Deed or any unauthorised disclosure or use of the Confidential Information by the Recipient or any of his directors, employees, agents and contractors.

(m)

(n)

(o)

(p)

3. 3.1

Recipient's Acknowledgments The Recipient acknowledges and accepts that the Confidential Information is of considerable value to the Proprietor and the Proprietor will suffer financial and other loss and damage if there is a breach of any covenant or undertaking in this Deed and/or if the Confidential Information is disclosed to any other person or used for any purpose other than the Purpose and that monetary damages will be an insufficient remedy for any breach of this Deed by the Recipient or its directors, employees, agents and contractors. The Recipient acknowledges and accepts that in addition to all other remedies which may be available at law or in equity the Proprietor shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. The Recipient acknowledges and agrees that it will make its own assessment and evaluation of the Confidential Information and that any reliance it places on the Confidential Information is at its own risk. Indemnity The Recipient indemnifies and agrees to keep indemnified the Proprietor against all costs, expenses, damages, losses, actions or claims directly or indirectly incurred or suffered by the Proprietor as a result of any breach of this Deed by the Recipient or any of its directors, employees, agents and contractors and/or any infringement of the Proprietor's rights in respect of the Confidential Information. This indemnity extends to and includes all costs, damages and expenses incurred by the Proprietor in defending and/or settling any such costs, expenses, actions, suits proceedings, claims or demands (including legal costs and disbursements on a full indemnity basis). Restraint The Recipient must not, without the written consent of the Proprietor, use or disclose the Confidential Information for any purpose, other than the Purpose, to obtain an unfair advantage or springboard into the indoor childrens Pay for Play market during the specified periods in the specified areas. (a) (b) For the purposes of this provision: The specified periods are:

3.2

4.
4.1

5. 5.1

(i) (ii)

during the period of the Recipient evaluating the franchise; and for a period of 2 years from the time the Recipient decides it does not wish to enter into a Lollipops Playland franchise, or the Proprietor decides it does to wish to grant a Lollipops Playland franchise to the Recipient.

(whichever is the longest) (c) The specified areas are: (i) (ii) the State in which the Recipient resides; or in any population centre in Australia with a population that exceeds 100,000.

(whichever is the greatest). 5.2 The Recipient acknowledges that the restraints in clause 5.1 are reasonably required to protect the Proprietor's legitimate business interests and those of its franchisees and in all the circumstances are reasonable. The circumstances include: (a) (b) the unique combination of services offered by Lollipops Playland; the fact that the Proprietor has significant experience in the indoor childrens Pay for Play market having commenced trading in 1993 and having opened 21 Playland centres between 1993 and 2004.

5.3

This clause has effect as if each of the restraints in clause 5.1 were separate and independent and each being severable from the others. If any of the restraints are invalid or unenforceable for any reason such invalidity or unenforceability will not affect the validity or enforceability of any other restraints. Miscellaneous The failure of either party to enforce any provision of this Agreement at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.

6. 6.1

6.2

The Recipient acknowledges and agrees that the covenants and undertakings in this Deed shall survive and continue in force until the Proprietor notifies the Recipient, in writing, that the Confidential Information is no longer confidential or until the Confidential Information becomes part of the public domain other than through breach of this Deed. If any provision of this Deed does not comply with any law then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all then it must be treated severable from the rest of this Deed. This approach is to be used equally where any Court is construing this Deed and finds a provision to be invalid, void or unenforceable. This Deed shall bind the Proprietor and the Recipient and each and every of their heirs, successors or assigns. This Deed supersedes all prior obligations of confidence between the parties relating to the Confidential Information and constitutes the complete Deed of the parties in respect of those obligations. This Deed shall be governed by the laws of Victoria, Australia, and the parties hereby submit to jurisdiction of the courts of Victoria, Australia. This Deed binds each of the signatories even if one or more of the persons named may not execute or be bound by this Deed. Any notice required to be served under this Deed must be in writing and served by: (a) personal service on the other party or the solicitor for the other party; (b) prepaid post to the other party at the address set out in this Deed or to the solicitor for the other party; (c) facsimile transmission to the other party or to the solicitor for the other party. Service is effected 2 days after posting if the notice is posted and immediately if the notice is served personally or by facsimile transmission.

6.3

6.4 6.5

6.6

6.7 6.8

IN WITNESS WHEREOF this Agreement was executed on the day of 20 SIGNED by )

for and on behalf of LPNZ Limited ) in the presence of: ) . ) Witness ) .

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Address

SIGNED by the Recipient ) in the presence of: .. ) .

) )

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Occupation

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Address