Terms and Conditions of Confidentiality between the parties
The "Primary Discloser" (Vendor) being the business owners, its directors, shareholders, employees and contractors may provide Confidential Information to the Recipient in connection with the sale of a business (the Discussions).
The "Joint Discloser and Recipient" (Sales Agent) being MENTORED BUSINESS SALES SERVICES PTY LTD ABN 56 630 339 150 and associated trading entities, it's directors, employees and contractors.
The "Primary Recipient" (Recipient and Purchaser) In consideration of the Discloser engaging with the Recipient in relation to the Discussions, the Recipient agrees to treat the Confidential Information as Confidential on the terms and conditions set out below.
Joint and Mutual Agreement between the parties.
a) Where a Party is disclosing its Confidential Information to the other Party, it will be a "Discloser" and where a Party is receiving Confidential Information from a Discloser, it will be a "Recipient".
b) All Parties mutually agree not to in any way publicly disparage, call into disrepute, defame, slander or otherwise criticise the other parties reputation or such other parties' subsidiaries, brokers, affiliates, successors, agents, contractors or officers.
c) The parties mutually agree to bind each other to this Agreement.
It is agreed.
1 Confidential Information means this Agreement and all Information of the Discloser which is disclosed to or otherwise comes to be known by the Recipient, whether before or after the date of this Agreement, which is in fact or which is reasonably regarded by the Discloser as Confidential to the Discloser. This includes but is not limited to Information relating to technology, processes, products, specifications, inventions or designs used or developed by the Discloser, trade secrets and know-how and Information of a commercially sensitive nature.
Permitted Purpose means the Purpose of enabling the Recipient and the Discloser to have the Discussions.
2 The Recipient must:
(a) keep confidential all Confidential Information and, except as permitted under this Agreement, not use or disclose any of it without the Discloser's prior written consent;
(b) ensure that the Confidential Information is only disclosed to those directors, employees and professional advisers of it (and its related bodies corporate) who have a specific need to access the Confidential Information for the Permitted Purpose;
(c) ensure that those directors, employees and professional advisers of it (and its related bodies corporate) to whom the Confidential Information is disclosed comply with this Agreement; and
(d) immediately on request by the Discloser, return or destroy all copies of the Confidential Information.
3 The obligations in this Agreement do not apply to any specific Confidential Information which the Recipient can prove:
(a) is in, or comes into, the public domain other than by a breach of this Agreement;
(b) was lawfully in its possession prior to disclosure by the Discloser;
(c) was received from a third Party who is not under an obligation to the Discloser to maintain the Confidential Information in confidence and who legitimately obtained the Confidential Information; or
(d) subject to clause 4, it is required to disclose in order to enforce this Agreement or under law or a binding order of a governmental agency or court.
4 If the Recipient wishes to rely on clause 3(d), it must:
(a) inform the Discloser of the required disclosure in advance to enable the Discloser to have a reasonable opportunity to object to the required disclosure; and
(b) use all reasonable efforts to obtain Confidential treatment of such Confidential Information required to be disclosed.
5 The Recipient acknowledges that:
the Discloser owns the Confidential Information and all rights (including intellectual property rights) in it, and the Discloser reserves all rights in the Confidential Information. No rights in the Confidential Information, other than those expressly contained in this Agreement, are granted or to be implied from this Agreement. In particular, no licence is granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right now or in the future held, made, obtained or licensable by the Discloser.
6 The Recipient further acknowledges that:
the value of the Confidential Information to the Discloser is unique and difficult to assess in monetary terms; a breach by the Recipient of any of its obligations under this Agreement would irreparably harm the Discloser and damages would not be an adequate remedy for any such breach; and if the Recipient actually breaches or threatens to breach this Agreement, the Discloser will be entitled to enforce this Agreement by injunctive relief or specific performance as a remedy (in addition to other available relief) without proof of actual or special damage.
7 The Recipient indemnifies and will keep indemnified the Discloser against all claims, proceedings, liabilities, losses, damages, expenses and legal costs (on a solicitor-client basis) that the Discloser may reasonably sustain or incur as a result of any breach of this Agreement by the Recipient.
8 Each Party warrants that it has the full power and authority to enter into and perform its obligations under this Agreement.
9 This Agreement contains the entire Agreement and understanding between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
10 This Agreement may be amended only by another agreement executed by both parties.
11 The obligations in this Agreement will continue indefinitely in respect of each item of Confidential Information until such Confidential Information subsequently falls within an exception in clause 3.
12 A Party may not assign any of its rights or obligations under this Agreement without the written consent of the other Party.
13 Confidential Information will be provided electronically by data room and email and as such the Recipient authorises ongoing correspondence via email and or SMS.
14 This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of courts exercising jurisdiction there.
15.The parties agree to the sale process described below unless mutually agreed otherwise.
a) All correspondence will be directed via the agent; neither Party will contact the other in relation to the sale process.
b) The Purchaser will present an offer to purchase all or part of the business for sale in the form of an "offer" or an "expression of interest" to purchase the business
c) A deposit equivalent to 10% of the all-inclusive sale price (or equivalent to the agents fees) shall be paid to the Mentored Trust account – refundable until the parties' exchange contracts OR otherwise mutually agree.
d) A formal contract OR Non-binding heads of Agreement will be prepared based on the offer. Where the parties have elected to issue a Heads of Agreement, the parties agree this will form the basis of a formal sale agreement.
e) The parties agree to complete any due diligence without delay and consider the business will remain for sale until such time as the parties' exchange contracts.
f) The parties agree to use their best endeavours to complete the sale and purchase without delays. The parties further understand and agree that unnecessary delay's by either Party in the settlement process will be detrimental to the business. In particular, where key parties have been advised, such as staff, suppliers, banks and landlords.
g) Where the Purchaser does not complete the sale and commits a breach following the exchange of contracts - the Purchaser shall not be entitled to the return of the Deposit; instead, the Purchaser shall forfeit the Deposit to be released to the Vendors Agent to account for Agents fees. Additionally, the Vendor may seek to recover any deficiency in the business resale from the Purchaser.
h) Where the Vendor does not complete the sale and commits a breach following the exchange of contracts - the Vendor must return the Deposit in full and make good on any costs reasonably accrued by the Purchaser during the course of the transaction.
16 This Agreement may be executed in any number of counterparts and may be executed a) electronically via accepting "Terms of Confidentiality" or, b) email with the Recipient's details stating "I have read and accept the Terms of Confidentiality" mentored.business/confidentiality-agreement or, c) signing a printed copy or, d) signing by electronic signature.
All counterparts together will be taken to constitute one instrument.
V2.3 January 2017