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CONFIDENTIALITY AGREEMENT
B E T W E E N:
PRO Business Brokers PTY LTD (ACN: 163 582 429)
of 23 Milton Parade, Malvern, Victoria 3144
(“The Discloser”)
AND……………………………………………………………………………………………………….
Of:………………………………………………..PH:……………………………………………………
(“The Recipient”)
In respect of the Business:…………………………………………………………………………….
Conducted at: ……………………………………………………………………………………………
(“The Business”)
RECITALS
A.
B.
C.
The Discloser (being the Agent of the Owner of the Business) and the Recipient
propose to have discussions relating to the proposed acquisition of the business of
the Owner.
The Discloser is willing to disclose to the Recipient certain confidential information
concerning The Business to enable The Recipient to investigate the feasibility of the
Recipient acquiring The Business and evaluating the Business. (“The Stated
Purpose”).
The Recipient agrees that it will not use or disclose the information except as
provided in this Agreement.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1.
Definition of Confidential Information
For the purposes of this Agreement “Confidential Information” means all information
passing from the Discloser to the Recipient, whether oral or in writing relating to the
Owner or the Business including, but not limited to, details of the Owner’s operational
operational procedures, trade secrets, know how, techniques, data, business and
marketing plans, financial information and records, Leases and Business documents,
arrangements and agreements with third parties, customer and supplier information
and lists.
2.
Acknowledgments and Agreements
2.1. In consideration of the Discloser providing information to the Recipient, the
Recipient acknowledges that the information is confidential and is and remains the
property of the Discloser and/or the Owner of the Business, and undertakes to the
Discloser:
2.1.1. Ownership of the Confidential information will not be challenged by the
Recipient;
2.1.2. the Recipient will use the Confidential Information solely for the stated
Purpose;
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.1.3. The Recipient will only disclose the Confidential Information to its
employees, agents, Directors (in the case of the Recipient being a
Corporation)or professional advisers:2.1.3.1.
to whom it is necessary to disclose the Confidential
information for the stated Purpose; and
2.1.3.2.
who are informed by the Recipient of the Confidential
nature of the information and who agree in writing to
comply with the terms of this Agreement before
disclosure of the Confidential Information to them.
the Recipient may disclose the Confidential Information to any other person for
the stated Purpose but only with the prior written approval of the Discloser and
provided that they are informed of the confidential nature of the Information and
agree in writing to comply with the terms of this Agreement before disclosure of
the Confidential information to them;
the Recipient will and will ensure that each of its employees, officers and
advisers to whom the Confidential Information is disclosed will keep the
Confidential Information confidential and secret and will not use, provide or
disclose the Confidential Information to any person other than as expressly
permitted in this Agreement;
the Recipient will ensure that the Confidential Information will at all times remain
in the Recipient’s possession or custody or otherwise under its control;
the Recipient will not make any copies of the Confidential Information without first
obtaining the written consent of the Discloser.
the Recipient will promptly notify the Discloser in writing if it suspects or becomes
aware of any unauthorized access, use, storage, copying or disclosure of any
part of the Confidential Information and will give the Discloser, all reasonable
assistance in connection with any action which the Discloser and/or the Owner
of the Business may take, or proceedings which the Discloser and/or the Owner
may institute, in respect of the unauthorized access use, copying or disclosure,
and
the Recipient will take all reasonable steps to keep the Confidential Information
secure and protect it from unauthorized use, disclosure, access, damage or
destruction.
The Recipient will not disclose to any person (other than as permitted under this
Agreement) that discussions have been held in relation to the stated purpose.
3.
Return of the Confidential Information
3.1. The Recipient must immediately, upon being requested at any time to do so by
the Discloser, return the whole or part of the Confidential information and must
return any and all copies and extracts of the Confidential Information or part of it
and all summaries, reports and notes made in relation to or use in the
Confidential Information (whether on paper or in an electronic information
storage and retrievable system or any in other storage retrievable system or any
other storage medium).
4.
Indemnity
4.1. The Recipient indemnifies the Discloser and the Owner of the Business in
respect of any claim, action, damage, loss, liability, cost, charge, expense, or
payment which the Discloser or the Owner of the Business pays, suffers, incurs
or is liable arising out of or as a result of any breach of, or default under this
Agreement by the Recipient or its employees, officers and advisers.
4.2. The Recipient acknowledges that this Agreement is for the benefit of the
Discloser and the Owner of the Business either or both of whom may enforce
it’s terms and/or recover damages for breach thereof.
5.
Term
The obligations of the Recipient under this Agreement shall endure as continuing
obligations subject only to such general or limited release that the Discloser may, in
its absolute discretion, give in writing to the Recipient.
6.
Commission
The Recipient will not approach the owner of the Business directly without the consent in
writing of the Discloser and all inspections, communications, negotiations and offers
regarding the Business must be made through the Discloser. The Recipient hereby
acknowledges that should the Recipient be involved in any way in eventually purchasing
the Business directly from the Owner or through any other Agent which results in the
Discloser not receiving a Commission from the Owner, the Recipient will be responsible
for the loss of commission and agrees to pay the Discloser the amount of such
commission immediately upon receiving a written demand from the Discloser.
7.
Representation/Warranties
The Confidential Information is provided by the Discloser under the instructions of the
Owner of the Business and has been prepared from information supplied by the Owner
and/or it’s advisors without detailed investigation or examination by the Discloser. The
Discloser makes no express or implied warranties or representations in relation to the
accuracy of the Confidential Information whatsoever and the Recipient agrees to conduct
its own enquiries and investigations into the Confidential Information and the viability of
the Business.
8.
Governing Law and Jurisdiction
This Agreement is governed by the law of Victoria, Australia and the Discloser and
the Recipient irrevocably submit to the exclusive jurisdiction of the courts of Victoria,
Australia.
EXECUTED as an Agreement this
day of
201
SIGNED for and on behalf of The Discloser
by its authorized representative:
……………………………………………….
(PRINT NAME) …………………………………………………………
SIGNED by the Recipient (or in the case
of a Corporation for and on its behalf by its
authorized representative)
……………………………………………….
(PRINT NAME) …………………………………………………………