BACKGROUND
A. The parties intend to explore the possibility of entering into the Proposed Transaction.
B. The Vendor has agreed to disclose Confidential Information about its Business to the Prospective Purchaser for the Permitted Purpose.
C. The Prospective Purchaser has:
i. agreed to deal with the Confidential Information on the terms of this agreement; and
ii. consented to the Vendor collecting Personal Information about the Prospective Purchaser in connection with the Proposed Transaction and in accordance with the terms of this agreement.
TERMS AND CONDITIONS
The parties agree as follows:
1. DEFINITIONS
1.1 Dictionary
In this agreement, unless the context requires otherwise, the following words and phrases have the following meanings:
Affiliate means, in relation to a person, any person who:
(a) is a related entity (as that term is defined in Section 9 of the Corporations Act substituting the name of that person for the words body corporate);
(b) a related body corporate (as defined in section 9 of the Corporations Act);
(c) a relative (as defined in section 9 of the Corporations Act); or
(d) an associate (as defined in section 10-17 of the Corporations Act);
Business means the business of the Vendor from time to time.
Business Broker means Zircom Business Marketing Pty Ltd ATF Zircom Unit Trust Trading As Zircom Business Brokers.
Business Day means a day (not being a Saturday, Sunday or public holiday) on which Australian banks (as defined in section 9 of the Corporations Act) are open for general banking business in the capital city of the State.
Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Confidential Information means any information in any form whatsoever (including oral, written and electronic information) which is:
(a) related to, or connected with, at least one of the following:
(i) the Business;
(ii) the Vendor; or
(iii) the Proposed Transaction,
(b) directly or indirectly provided by the Vendor (or their Representatives) to the Prospective Purchaser (or its Representatives) either before or after the date of this agreement; and
(c) not in the public domain as at the date on which the relevant disclosure was made.
Corporations Act means the Corporations Act 2001 (Cth).
Loss includes damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Permitted Purpose means:
(a) if carried out by the Prospective Purchaser:
(i) the Prospective Purchaser’s good faith due diligence investigation of the Business in connection with the Proposed Transaction,
(b) if carried out by the Vendor:
(i) the Vendor’s good faith due diligence investigations of the Prospective Purchaser in connection with the Proposed Transaction.
Personal Information means the personal information of the Prospective Purchaser or its Affiliates or its Representatives, as that term is defined in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Proposed Transaction means the proposed sale of the Business by the Vendor to the Prospective Purchaser.
Representatives means, in relation to a party, its directors, officers, employees, contractors, agents, representatives, brokers, advisers (including legal and accounting advisers) and financiers. For the avoidance of doubt, with respect to the Proposed Transaction, this includes (but is not limited to) the Business Broker.
State means the state of Western Australia in the Commonwealth of Australia.
1.2 Rules for interpretation
In this agreement unless the context otherwise requires:
(a) (plural) the singular includes the plural and vice versa, and a gender includes other genders;
(b) (grammatical form) another grammatical form of a defined word or expression has a corresponding meaning;
(c) (cross references) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
(d) (amendment to documents) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) (time) a reference to time is to Western standard, Australia time;
(f) (successors) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(g) (individuals and entities) a reference to a person includes a natural person, partnership, body corporate, trust, association, government authority or local authority or agency or other entity;
(h) (amendments to law) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
(i) (no limitation by examples) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(j) (no contra proferentem) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
(k) (time for performance) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
1.3 Legal Advice
(a) The parties have sought independent legal advice (or have been provided with the reasonable opportunity to seek independent legal advice) in relation to their rights and obligations under this agreement.
(b) The parties agree that their rights and obligations under this agreement are necessary and go no further than what is required to protect their legitimate commercial interests.
1.4 Background
The recitals inclusive in this agreement under the heading ‘Background’ are true and correct in every material particular and legally bind the parties to the extent they impose any obligation or confer any rights.
1.5 Fairness
The parties acknowledge and agree that the terms of this agreement, and the matters and circumstances contemplated by it, are not:
(a) contrary to the interests of the parties (whether as a whole or individually); nor
(b) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a party or parties to this agreement in any capacity.
2. PERSONAL INFORMATION
2.1 Personal Information
The Prospective Purchaser acknowledges and agrees that:
(a) the Vendor may collect Personal Information directly from the Prospective Purchaser (or its Affiliates or Representatives) or from third parties (such as credit reporting agencies) for the Permitted Purpose, which may include the following details:
(i) full name;
(ii) residential address and contact details;
(iii) date of birth; and
(iv) credit score and credit history details,
(b) the Vendor may disclose the Personal Information to third parties (such as credit reporting agencies) for the Permitted Purpose.
3. CONFIDENTIALITY OBLIGATIONS
3.1 Confidentiality
The Prospective Purchaser:
(a) acknowledges the confidential, sensitive, and proprietary nature of the Confidential Information;
(b) agrees to keep confidential, and not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information, in whole or part, to any third party, subject to the terms of this agreement;
(c) must reasonably assist the Vendor in connection with any Claim regarding any possible, actual or threatened unauthorised disclosure or misuse of the Confidential Information; and
(d) must not make any improvements or modifications to or derivations or discoveries from any of the Confidential Information, save for on the basis that such improvements, modifications, derivations or discoveries are at the request of the Vendor and for the benefit of the Vendor, and that all ownership and interest in them is or becomes the property of the Vendor.
3.2 Use of Confidential Information by Prospective Purchaser
In consideration of the Vendor agreeing to provide the Prospective Purchaser with the Confidential Information, the Prospective Purchaser must not:
(a) use any of the Confidential Information for any purpose other than the Permitted Purpose;
(b) exploit or use the Confidential Information:
(i) for its own benefit other than for the Permitted Purpose, for the benefit of any other person or for any other purpose, or allow any other person to do so without the written consent of the parties to this agreement; or
(ii) to the commercial disadvantage of the Vendor or the Business;
(c) abuse, copy, replicate, reverse engineer or commercialise the Confidential Information in any way for its, or its Affiliates’ or Representatives, benefit or gain (other than solely for the Permitted Purpose);
(d) other than with the prior express written consent of the Vendor, which consent may not be unreasonably withheld, the Prospective Purchaser will not, from the date of this deed for a period of two years directly or indirectly target clients, employees or contractors of the Business that they have been made aware of through receipt of Confidential Information, for employment, custom or for their own gain thereby negatively impacting the Business;
(e) use any of the Confidential Information in a manner or for a purpose detrimental to the Vendor (other than solely for the Permitted Purpose);
(f) contact the Vendor or any of the Vendor’s staff, suppliers, customers, lessors or their managing agents or other persons or entities associated with the Business, or visit or approach the Business premises at any time without the prior written approval of the Business Broker and which may be withheld at the Business Broker’s sole discretion.
3.3 Use of Confidential Information by Prospective Purchaser’s Affiliates and Representatives
In consideration of the Vendor agreeing to provide the Prospective Purchaser with the Confidential Information, the Prospective Purchaser must procure that its Affiliates and Representatives do not:
(a) use any of the Confidential Information for any purpose other than the Permitted Purpose;
(b) exploit or use the Confidential Information:
(i) for its own benefit other than for the Permitted Purpose, for the benefit of any other person or for any other purpose, or allow any other person to do so without the written consent of the parties to this agreement; or
(ii) to the commercial disadvantage of the Vendor or the Business;
(c) abuse, copy, replicate, reverse engineer or commercialise the Confidential Information in any way for its, or its Affiliates’ or Representatives, benefit or gain (other than solely for the Permitted Purpose); and
(d) use any of the Confidential Information in a manner or for a purpose detrimental to the Vendor (other than solely for the Permitted Purpose).
3.4 Determining Confidential Information
(a) If there is any uncertainty as to whether any information is Confidential Information, that information must be treated as Confidential Information unless the parties to this agreement notify the Prospective Purchaser to the contrary in writing.
(b) If the Prospective Purchaser claims that information is not Confidential Information because it is excluded information under the definition of Confidential Information, the Prospective Purchaser must prove that the information is excluded under that definition. Failing that proof, the information must be treated as Confidential Information.
3.5 Representatives
(a) All Confidential Information provided by a Representative of the Vendor will be treated for the purposes of this agreement as if that Confidential Information was provided by that Vendor directly.
(b) All Confidential Information received by a Representative of the Prospective Purchaser or its Affiliates will be treated for the purposes of this agreement as if that Confidential Information was provided to the Prospective Purchaser directly.
4. PROTECTION OF CONFIDENTIAL INFORMATION
The Prospective Purchaser must:
(a) keep effective control of all Confidential Information received under or in connection with this agreement or the Permitted Purpose;
(b) take all precautions and maintain such security measures that are necessary to maintain the absolute confidentiality of the Confidential Information;
(c) take such necessary action to prevent any theft, loss or unauthorised use or disclosure of that Confidential Information;
(d) promptly inform the parties to this agreement of any suspected or actual unauthorised use or disclosure of the Confidential Information; and
(e) promptly do anything reasonably required by the parties to this agreement to prevent or restrain a breach or suspected breach of this agreement or any infringement or suspected infringement by any person of the Vendor’s rights under this agreement.
5. EXCEPTION
The Prospective Purchaser will not be in breach of its obligations with respect to disclosure or use of Confidential Information if it discloses or uses information that the Prospective Purchaser is required to disclose by statute, or any applicable accounting standards, court order or a person acting under the authority of statute or such order and the Prospective Purchaser immediately gives notice to and consults with the Vendor to the extent practicable and uses its best endeavours consistent with its obligations to minimise any such disclosure.
6. RETURN OF CONFIDENTIAL INFORMATION
(a) Upon the earlier of the following:
(i) written request of the Vendor; or
(ii) the Prospective Purchaser elects not to proceed with the Proposed Transaction,
the Prospective Purchaser must promptly (but not later than three Business Days after the written request) return (or procure the return of) to the Vendor the Confidential Information of the Vendor and all copies, extracts, summaries, notes and records in whatever form (including, without limitation, any electronic records) of the whole or any part of the Confidential Information of the Vendor.
(b) If any of the Confidential Information referred to in clause 6(a) is incapable of being returned, the Prospective Purchaser must irretrievably destroy or delete and erase so that it cannot be recovered or reconstructed in any way and certify in writing that it has been so destroyed.
(c) Upon request by the Vendor at any time, the Prospective Purchaser must promptly provide the Vendor with written confirmation that it has complied with all of its obligations under this clause.
7. NO WARRANTY
7.1 Reliance
The Prospective Purchaser acknowledges and agrees that:
(a) the Prospective Purchaser is responsible for making its own independent assessment of the Confidential Information made available to the Prospective Purchaser and will not hold the Vendor, the Business Broker nor any of their Affiliates or Representatives responsible for:
(i) any errors or omissions in the Confidential Information; or
(ii) any Loss or Claim directly or indirectly suffered by the Prospective Purchaser or its Affiliates or Representatives arising out of any use of, or acting in reliance on or refraining from acting as a result of, any Confidential Information.
(b) The Vendor and the Business Broker make no representations or warranties, express or implied, that any Confidential Information is or will be reliable, complete or accurate or that it has been audited or verified.
7.2 Waiver
(a) The Prospective Purchaser waives any right to seek to recover any Loss or Claim against the Vendor or the Business Broker arising out of or in connection with any use or reliance by the Prospective Purchaser, its Affiliates or Representatives on the Confidential Information.
8. ACKNOWLEDGEMENTS
8.1 Injunction and compensation
The Prospective Purchaser acknowledges that:
(a) a breach of any of the Prospective Purchaser’s obligations under this agreement may result in the Vendor suffering Loss including, without limitation, consequential loss, and may cause irreparable damage to the Vendor; and
(b) in the event of a breach, or threatened or anticipated breach, of this agreement:
(i) damages alone may be an inadequate remedy for the Vendor; and
(ii) the Vendor shall be entitled to seek an interim, interlocutory or permanent injunction restraining the Prospective Purchaser without showing or proving any actual damages sustained by it; and
(c) if any breach by it of any provision of this agreement directly or indirectly results in:
(i) the Vendor suffering any Loss or damage; or
(ii) a financial gain for the Prospective Purchaser or any third party,
(iii) the Vendor will be entitled to seek compensation (including an account of profits) from the Prospective Purchaser and from any other party who benefited from the breach in respect of such Loss, damage or such financial gain.
8.2 Provision of information
The Prospective Purchaser acknowledges and agrees that nothing in this agreement:
(a) obliges the Vendor to disclose Confidential Information or other information to the Prospective Purchaser or its Affiliates or Representatives;
(b) creates or imposes an obligation on the Vendor to consummate any agreement or transaction with the Prospective Purchaser, or to enter into exclusive negotiations with the Prospective Purchaser regarding the same; and
(c) provides the Prospective Purchaser or its Affiliates or Representatives with any title, interest or right in, or in connection with, the Confidential Information (or any part of it).
The Prospective Purchaser acknowledges and agrees that:
(a) the Business Broker provides the Confidential Information for and on behalf of the Vendor as its agent and makes no representations as to the accurateness or completeness of the Confidential Information provided to the Prospective Purchaser;
(b) any projections, facts and representations included in the Confidential Information provided to the Prospective Purchaser are not a warranty or promise by the Business Broker or its Representatives; and
(c) neither the Business Broker nor any of its Representatives are able to give any warranty, as to the correctness of the information, or that all relevant information is contained in the Confidential Information.
9. INDEMNITY
The Prospective Purchaser indemnifies (and shall keep indemnified) the Vendor, the Business Broker, and their Affiliates, officers and agents, from and against all and any liabilities, Losses, Claims, demands, damages, costs, and expenses suffered, incurred or sustained by them arising directly from or in connection with any breach by the Prospective Purchaser or its Affiliates or its Representatives of the terms of this agreement.
10. NOTICES
10.1 Form
(a) Any notice or other communication including, any request, demand, consent or approval, to or by a party to this agreement:
(i) must be in legible writing and in English;
(ii) where the sender is a company, must be signed by an officer or under the common seal of the sender;
(iii) is regarded as being given by the sender and received by the address when transmitted to the addressee by email (but if the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee’s time) it is regarded as received at 9.00am on the following Business Day); and
(iv) can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
(b) In this clause 10, a reference to an addressee includes a reference to an addressee’s officer, agents, legal representative or employees or any person reasonably believed by the sender to be an officer, agent, legal representative or employee of the addressee.
11. GENERAL CONDITIONS
11.1 Electronic signing
(a) The parties irrevocably consent to electronic execution of this agreement.
(b) The parties mutually agree that execution via BusinessSales or Zircom Business Brokers website is sufficiently appropriate and reliable for electronic execution of this agreement.
(c) Each party who executes this agreement does so in accordance with applicable law.
11.2 Governing law
(a) The laws of the State govern this agreement.
(b) Each party irrevocably and unconditionally submit to:
(i) the non-exclusive jurisdiction of the courts in the State; and
(ii) if the Vendor so requires, the court of competent jurisdiction located closest to the Business premises of the Vendor’s choosing.
11.3 Giving effect to this agreement
The parties must do everything (including execute any document), and must ensure that its employees and agents do anything (including execute any document) that may be reasonably required to give full effect to this agreement.
11.4 Waiver of rights
A right may only be waived by a party in writing, signed by that party, and:
(a) no other conduct of the party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
11.5 Operation of this agreement
(a) This agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this agreement and has no further effect.
(b) Any right that a party may have under this agreement is in addition to, and does not replace or limit, any other right that the party may have.
(c) Any provision of this agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this agreement enforceable, unless this would materially change the intended effect of this agreement.
(d) For the avoidance of doubt, any indemnity provided by one party to another under the terms of this agreement survives termination of this agreement or completion of any transactions contemplated hereunder.
11.6 Amendment
A provision of this agreement, or right, power or remedy created under it, may not be varied except as agreed in writing by all parties.
11.7 Counterparts
(a) This agreement may consist of several counterparts and if so the counterparts taken together constitute one and the same instrument.
(b) This agreement is not binding on any party unless one or more counterparts have been duly executed by each party to this agreement.
(c) This agreement is binding on the parties on the exchange of counterparts. A copy of the counterpart sent by email:
(i) must be treated as an original counterpart;
(ii) is sufficient evidence of the execution of the original; and
(iii) may be produced in evidence for all purposes in place of the original.
