Corporate NDA Form

Disclaimer and Confidentiality Agreement

When the term ‘we’, ‘us’, ‘our’, or ‘THE BROKER’ is used, it refers to the operators of this website Biz Transfer, and includes officers, employees, successors, agents, including:

SUPER BOOM GROUP PTY LTD T/A Biz Transfer (ACN 618 481 655);

Michael Short T/A Biz Transfer (ABN 672 338 342 31).

The terms ‘you’, ‘your’ or ‘THE PURCHASER’ shall mean the person named in the application for registration form above.

Where the person named in the application for registration above is acting on behalf of a business they are taken to have executed this contract for and on behalf of the company in accordance with Section 127 of the Corporations Act 2001 (Cth).

We (THE BROKER) has prepared a BUSINESS PROFILE and Due Diligence Data Room for information purposes only and it is not intended that this form any part of an agreement between you and the Vendor or THE BROKER.

The Vendor of the business you enquired through us has engaged THE BROKER to act as its agent to negotiate the successful sale of the business. THE BROKER, acting on behalf of the VENDOR is authorised to provide THE PURCHASER with access to the BUSINESS PROFILE and at a later stage, the Due Diligence Data Room subject to the execution of the CONFIDENTIALITY AGREEMENT.

All documents and information contained within the BUSINESS PROFILE and Due Diligence Data Room have been supplied to THE BROKER by the VENDOR of the business and/or their advisors and service providers. THE BROKER does not warrant the information is correct and has not audited the business’s financial information or verified that the documents and the information contained within the BUSINESS PROFILE and Due Diligence Data Room is correct. All images and graphs are for indicative purposes only.

Furthermore, no representations or warranties expressed or implied have been made by THE BROKER as to the accuracy or completeness of the information contained within the BUSINESS PROFILE and Due Diligence Data Room and THE BROKER accepts no responsibility for any errors, omissions, inaccuracies or misstatements contained within the BUSINESS PROFILE and Due Diligence Data Room whatsoever. THE BROKER and the Vendor recommend that you make further enquiries on the business and seek independent legal, commercial and financial advice before proceeding to contract for the purchase of this business.

THE BROKER and the Vendor reserve the right to amend or replace any information contained in the BUSINESS PROFILE and Due Diligence Data Room, and THE BROKER is under no obligation to do so. THE BROKER, at its sole discretion may terminate or suspend your access to the BUSINESS PROFILE and Due Diligence Data Room.

The Vendor has specifically requested that you do not directly approach the Vendor, any staff, customers or suppliers of the business without explicit permission of THE BROKER. Therefore, all enquiries or requests for additional information must be directed to THE BROKER.

If you decide not to proceed with the purchase of this business, within 14 (fourteen) business days you must return or destroy all information received permanently in compliance the Clause 6 of the Confidentiality Agreement.

Background

A             THE BROKER and THE PURCHASER wish to discuss a possible purchase relating to the business you enquired through us (the Purpose).

B             The Parties may wish to disclose certain confidential information to each other relating to the Purpose, and therefore enter this Agreement to protect the confidentiality of that information, on the terms set out below.

It is agreed:

  1. Definitions

1.1          Agreement means this Confidentiality Agreement, including any attachments and any other documents incorporated by express reference.

1.2          Confidential Information means

  1. a)Information Documents
  2. b)information acquired by the Obtaining Party or its Representatives in relation to the processes; and
  3. c)any notes, copies or any other thing derived from anything described in paragraph (a) or (b) of this definition,

whether or not marked as “Commercial in Confidence”, “Proprietary” or “Confidential”, and which may be provided in writing, electronically, verbally or otherwise, but does not include any information which the Obtaining Party can demonstrate to be in the public domain or was known to the Obtaining Party at the time of disclosure other than under any other obligation of confidence or through a breach of this Agreement.

1.3          Commencement Date The Date this agreement being electronically returned to THE BROKER

1.4          Disclosing Party means the Party which discloses Confidential Information to the Obtaining Party.

1.5          Obtaining Party means the Party which receives Confidential Information from the Disclosing Party.

1.6          Personnel means any employee, officer, agent, contractor, subcontractor, or volunteer of a Party, and any employee, officer, agent, contractor, subcontractor, or volunteer of a contractor or subcontractor, but excludes the other Party and its Personnel.

  1. Roles of the Parties

2.1          Each Party acknowledges and agrees that it may be both an Obtaining Party and Disclosing Party, and that the terms of this Agreement are binding upon it as an Obtaining Party and enforceable by it as a Disclosing Party.

  1. Confidentiality

3.1          Each Party acknowledges and agrees that the Confidential Information is valuable.

3.2          In consideration for the Disclosing Party providing the Confidential Information to the Obtaining Party, the Obtaining Party accepts and agrees to keep the Confidential Information confidential in accordance terms of this Agreement.

3.3          Subject to clause 3.4, the Obtaining Party must:

(a)           keep the Confidential Information confidential and preserve its confidential nature; and

(b)           not use or disclose or permit the use or disclosure of Confidential Information for any purpose other than the Purpose.

3.4          This Agreement does not prohibit the use or disclosure of Confidential Information:

(a)           by the Obtaining Party to its legal or other professional advisers, subject to the relevant adviser being subject to confidentiality obligations or a confidentiality undertaking in a form reasonably satisfactory to the Disclosing Party;

(b)           which is necessary for the Purpose, but only to the extent necessary for the Purpose;

(c)           to an auditor solely for the purposes of an audit; or

(d)           which the Disclosing Party has agreed in writing may be used or disclosed by the Obtaining Party, provided such use or disclosure is in accordance with the terms of that agreement.

3.5          The Obtaining Party must ensure:

(a)           its Personnel are made aware of the confidential nature of the Confidential Information and the terms of this Agreement before being provided with or having access to Confidential Information; and

(b)           its Personnel do not do or fail to do anything that, if done or not done, would amount to a breach of the Obtaining Party’s obligations under this Agreement.

3.6          If the Obtaining Party becomes aware that it has or may have breached this Agreement, it must immediately notify the Disclosing Party and take all reasonable steps required to stop the breach.

  1. Duration of obligations of confidentiality

4.1          Unless the Parties agree otherwise in writing, this Agreement and the obligations under this Agreement continue in full force and effect for 3 (three) years from the Commencement Date.

  1. Ownership of Confidential Information

5.1          The Obtaining Party acknowledges that the Confidential Information remains the property of the Disclosing Party at all times and that this Agreement does not convey to the Obtaining Party or any of its Personnel any proprietary or other interest in the Confidential Information.

  1. Return of Confidential Information

6.1          The Obtaining Party must, promptly upon request by the Disclosing Party, return or destroy all material containing Confidential Information in its possession, power or control, which was either received from the Disclosing Party or which the Obtaining Party has generated.

  1. Remedies

7.1          The Obtaining Party acknowledges that disclosure of any Confidential Information in breach of this Agreement would cause irreparable harm to the Disclosing Party for which damages may not be an adequate remedy.

7.2          The Obtaining Party consents to the grant of injunctive relief to restrain any breach of this Agreement, or specific performance to compel the Obtaining Party to perform its obligations under this Agreement, as a remedy for any breach or threatened breach of this Agreement and in addition to any other remedies available to the Disclosing Party.

  1. Governing law

8.1          This Agreement is governed by the laws of New South Wales.  The Parties agree to submit to the non-exclusive jurisdiction of its courts.

  1. Miscellaneous

9.1          This Agreement shall be binding upon and for the benefit of the Parties, their successors and assigns.

9.2          This Agreement constitutes the entire understanding of the Parties in relation to its subject matter and supersedes all prior written or oral agreements or undertakings regarding that subject matter.

9.3          Neither Party may assign this Agreement (or any right under it) to another person without the prior, written consent of the other Party.

9.4          The termination or expiry of this Agreement for any reason will not extinguish the obligations of the Parties which, either expressly or by their nature, are intended to survive termination or expiry, including clause 7.

Biz Transfer Team