Terms and Conditions of Confidentiality for User Access
The Discloser may provide Confidential Information to the Recipient in connection with the sale of a business (the Discussions).
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.
It is agreed as follows.
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 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 Information about this business and similar businesses will be provided electronically by email and data room. By signing this agreement, the recipient authorises Ray White business Sales to provide ongoing correspondence via email.
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 This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
16 The parties agree to following RWBS sales process as set out below.
16.1 Feedback and questions with the broker.
16.2 Optional phone conference with the owner or manager (if under management)
16.3 Purchaser provides an “expression of interest” or “non binding offer” to purchase the business
16.4 If accepted, a 10% holding deposit is paid to Ray White Trust account – fully refundable until the parties exchange contracts
16.5 The draft contract of sale provided in the sales data room should now be forwarded to the purchasers solicitor for review
16.6 A Heads of agreement is drawn up by Ray White and signed by the parties – unless agreed, non binding at this point and subject to final due diligence.
16.7 Once the heads of agreement is signed, the parties may agree to act exclusively for an agreed period of time, generally 7-10 days.
16.8 Final Due Diligence – complete any further further due diligence including a site visit to meet the owner or manager (if under management)
16.9 The Final contract of sale is modified in line with the heads of agreement and re issued to the purchasers solicitor for review and sign off.
16.10 The final signed versions of the contract of sale are then exchanged by the solicitors – the agreement is binding on both parties and generally only subject to a lease assignment or new lease if applicable.
17. By ticking the box, you agree to the terms of this agreement, receive emails and future communication from Ray White Business Sales Sydney.