The “Primary Discloser” being the vendor and/or their appointed Agent, Business Advisor, Business Broker or Legal Representative may provide Confidential Information to the Recipient in connection with the sale of a business (the Discussions).
The “Primary Recipient” being the purchaser or their nominated advisors and/or agents 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.
1. In this Agreement, 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 "Receiver".
2. The consideration for each party entering into this Agreement is the provision of Confidential Information by the other party. Each party acknowledges that this is a valuable consideration.
3. The Recipient must keep all Confidential Information in strict confidence and use it solely for the Purpose. The Recipient must ensure that only its officers with a need to know the Confidential Information for the Purpose has access to the Confidential Information. The Recipient must ensure that all such officers who have access to the Confidential Information keep the Confidential Information in strict confidence.
4. It is not a breach of this Agreement for the Recipient to disclose Confidential Information which it is obliged to disclose by law or court order. If the Recipient is required or anticipates that it may be required to do so, it must immediately notify the Discloser and use reasonable endeavours to delay and withhold disclosure until the Discloser has had a reasonable opportunity to oppose disclosure by lawful means.
5. 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.
6. The Recipient must destroy or return to the Discloser all of the Discloser's Confidential Information immediately upon request by the Discloser.
7. The Discloser does not make any representation or warranty that the Confidential Information does not infringe the rights of another person or as to the accuracy of the Confidential Information. Neither party is liable to the other for any infringement or inaccuracy in the Confidential Information.
8. Each Party acknowledges that, in addition, to any other remedy that may be available in law or equity, the other Party is entitled to interim, interlocutory and permanent injunctions to prevent a breach of this Agreement and to ensure the specific performance of the Agreement.
9. The laws of New South Wales govern this Agreement.
"Confidential Information" means this Agreement (including the existence of this Agreement, the Purpose (including the existence of the Purpose) and all information concerning the Discloser or which is the property of the Discloser and which is disclosed in writing, orally or by any other means to the Recipient or its representatives. It includes any notes, copies or extracts made by the Recipient or its officers in relation to this information but does not include information which the Recipient can prove to the reasonable satisfaction of the Discloser:
a) was publicly available, other than as a result of a breach of this Agreement.
b) that the Recipient obtained it from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information or
c) was already in the possession of the Recipient before being provided by the Discloser.
The Recipient Agrees to the default sales process unless the Discloser or their agent provides an alternative sales process.
a) All correspondence will be directed via the agent unless the discloser is acting directly.
b) Any offer to purchase all or part of the business for sale will be presented in a formal “offer” or an “expression of interest” to purchase the business either by email or using the Mentored online offer process.
c) A deposit placed into a nominated trust or otherwise mutually agreed.
e) The recipient understands the discloser has invested in the sale process and agrees to act in a timely manner to enter into a term sheet, MOU or heads of agreement prior to entering into a formal sale agreement.
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 recipients 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.
Mentored Business Sales Site Confidentiality Agreement V2.2018