Established FMCG Product Brokerage – high profit, long standing clients

THIS NDA COVERS ALL PROPERTIES I/WE MAKE ENQUIRY ON FROM TODAY ONWARDS.

In consideration for the Agent providing sensitive and confidential information relating to the above mentioned properties/businesses, the Recipient hereby undertakes:

1. That everything which the Agent and/or the owner of the Business discloses, and which is properly capable of being regarded as proprietary information of the Agent and /or the owner of the Business regardless of the form of disclosure, will be treated in confidence by the Recipient, it’s partners and/or it’s employees and other associated or proprietary companies, and will not be used by the Recipient it’s partners and/or it’s employees for any purpose other than:
   1. Conducting an evaluation and determining the Recipient’s interest in entering into an agreement exclusively through the Agent to purchase the whole or portion of the Business and
   2. Such purposes as may be contained in any formal agreement that may be entered into between the Recipient and the owner of the Business
2. That disclosures of all such information and details shall be limited to only those professional advisors, partners or employees of the Recipient which are reasonably required to be in possession of said information and details, and
3. To immediately return to the Agent all such information and other details in written form, including any drawings and any copies made of written information and drawings or notes, summaries or extracts thereof if and when requested by the Agent
4. All requests for information and all negotiations shall be through the Agent and the Recipient shall not directly visit the property/business or contact the owner of the property/business, the staff of the property/business and /or any other person associated with property/business without the prior express consent of the Agent
   
   The Recipient hereby irrevocably acknowledges:
5. That the information being provided to us has been supplied to the Agent by the vendors of the properties or businesses. We understand that the information is provided by the Agent in good faith and acknowledge that the Agent is acting as mere messenger of the information provided by the vendors of the properties and businesses and, as such, is not responsible for any errors, omissions or misrepresentations that may be found. The Agent recommends that I/we seek independent advice and make our own full and proper enquiries before acting on any information provided. The Agent has advised me/us that any indication of past performance of the property/business, in the information provided, does not infer any warranty or representation that a new owner of the property/business would achieve such results in the future. Subject to any terms implied by law and which cannot be excluded, we acknowledge and agree that the Agent will not be held responsible for any loss, damage, cost or expense incurred by us as a result of any error, omission or representation within the information provided.
6. The Agent is solely instrumental in me/us being introduced to the property/business offered for sale
7. That the obligations herein are fair and reasonable and have been designed to protect the legitimate business interests of the Vendor of the property/business and the Agent.
8. The Agent will suffer loss or damage if I/we contact, attempt to or deal directly with the vendor of the property/business.
9. The Vendor of the property/business will suffer loss and damage from any breach by me/us of any of the duties under this acknowledgement.
10. The terms and conditions of this Deed shall continue to have full force and effect after the property/business is sold
11. Any matter arising from this undertaking and acknowledgement shall be governed by, takes effect and will be construed in accordance with the laws of Vic, NSW and Qld, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts entitled to hear appeals there from.

I/we have read and agree with the terms and conditions of the undertakings and acknowledgements contained herein

1 Confidentiality obligations

• 1.1  The Recipient agrees, at any time prior to termination of this deed whether before or at any time after termination of this deed or ceasing the discussions with the Discloser, in consideration of the Confidential Information being disclosed to it:
  
  

  1. not to disclose the Confidential Information to any third party at any time;

  2. only to use the Confidential Information for the purpose for which it was disclosed by the Discloser and not for any other purpose including, but not limited to, for the purpose of personal gain or profit;

  3. to use its best endeavours to protect the Confidential Information from unauthorised disclosure;

  4. to be responsible for and assume liability in relation to all of its Authorised Persons to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in this deed;

  5. to not use the Confidential Information, directly or indirectly, to compete with the Discloser, or offer services similar to the Discloser, including but not limited to by entering into business arrangements with any customers, clients, employees, contractors or agents of the Discloser;

  6. to not use the Confidential Information, directly or indirectly, to interfere with or disrupt the relationship between the Discloser and any party contracting with the Discloser; and

  7. to not use the Confidential Information, directly or indirectly, to induce or solicit any employee, contractor or agent of the Discloser to leave the employment or agency of the Discloser, except that advertisement of employment opportunities not specifically targeted at the Discloser’s employees, contractors or agents shall not constitute such inducement or solicitation.

• 1.2 The Recipient acknowledges that the Discloser is not obliged to disclose any particular Confidential Information to the Recipient.
• 1.3 The Recipient may disclose the Confidential Information to its Authorised Persons, but not any other employees, agents, advisors, consultants or contractors, provided that before doing so, the Recipient must ensure that all such Authorised Persons knows of the Recipient’s obligations under this deed and knows of the confidential nature of the information disclosed to them and that the Confidential Information must only be used for the Permitted Purpose. At any time and on request from the Discloser, the Recipient must provide the Discloser with a list of all Authorised Persons to whom the Confidential Information has been disclosed by the Recipient.
• 1.4 The Recipient understands and agrees that all communications concerning the Business shall be conducted solely through Volt Business Sales, and the Recipient agrees not to approach or contact the Seller or its principals or visit the physical Business location without an appointment arranged through Volt Business Sales. The Recipient also agrees not to contact or approach the Seller’s employees, officials, agents, customers, suppliers and/or competitors without the prior written consent of the Seller.
• 1.5 The Recipient warrants that the sole purpose of requesting and receiving the Confidential Information is for the Permitted Purpose, and none other, and the Recipient acknowledges that the Discloser is relying upon such representations in disclosing the Confidential Information to the Recipient. The Recipient further warrants that it is financially capable of purchasing the Business, has not filed for an undisclosed bankruptcy and has not been convicted of any crime.
• 1.6 If the Recipient’s acquisition of the Business is not satisfactorily completed by the Recipient and the Seller, then, other than with the prior express written consent of the Seller, which consent may not be unreasonably withheld, the Recipient 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.

2 When confidentiality obligations do not apply

• 2.1 The obligations do not apply to Confidential Information:
  
  

  1. that is already in the public domain, except as a result of the Recipient’s breach of this deed;

  2. received from a third party, except where there has been a breach of confidence; and/or

  3. that must be disclosed by law, regulation or an order of a court to disclose, provided that the Recipient only discloses the Confidential Information that the Recipient is required to disclose by law, and gives sufficient notice to the Discloser in order to allow the Discloser to object to, or prevent, the Confidential Information being disclosed.

3 Unauthorised Use of Confidential Information

• 3.1   The Recipient must report to the Discloser any known or suspected unauthorized use, disclosure, copy or printing of the Confidential Information.
• 3.2 The Recipient must, at its cost:
  

  1. use its best efforts to obtain the return or organise the destruction or deletion of any unauthorized copy or print-out of the Confidential Information; and

  2. provide the Discloser with all assistance it requires to prevent any further disclosure of the Confidential Information.

4 Disclaimers

• 4.1 The Recipient acknowledges that the disclosure of Confidential Information does not grant to the Recipient, expressly or impliedly, any ownership, right or licence to the Confidential Information.
• 4.2 The Discloser does not represent, warrant or undertake that the Confidential Information is accurate, up to date, exhaustive or complete, and disclaims any and all liability in connection with the Recipient’s use of Confidential Information.
• 4.3 The Recipient acknowledges that it will make its own independent enquiries and will seek professional advice in relation to the Confidential Information prior to entering into any binding legal agreements to give effect to the transactions contemplated by the disclosure of the Confidential Information to it.

5 Remedies

• 5.1 The Recipient acknowledges and agrees that any breach of this deed could cause the Discloser irreparable harm for which monetary damages may be difficult to ascertain or an inadequate remedy. The Recipient agrees that the Discloser is entitled, in addition to other rights, to seek and obtain injunctive relief, or any other action for specific performance, for any breach of this deed.

6 Discloser’s Limitation of Liability and Exclusion of Liability

• 6.1 The Discloser is not liable to the Recipient for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this deed, including, but not limited to, any loss of claim for revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract, tort, negligence, equity, statute or otherwise, except to the extent that such liability cannot be lawfully limited or excluded.

7 Recipient’s Liability

• 7.1 The Recipient shall be liable to Volt Business Sales for any and all damages Volt Business Sales may suffer, including but not limited to Volt Business Sales’s full commission as set forth in a separate agreement with the Seller if:
  

  1. the Recipient buys, leases, receives in trade or otherwise obtains any part of the Business during the two (2) year period commencing from the date of this deed;

  2. the Seller and the Recipient enter into a contract for sale of the Business that subsequently completes;

  3. the Recipient, through no fault of the Seller, fails or refuses to complete a sale, lease, trade or other disposition of the Business after entering into an agreement to do so, other than where the contract is lawfully terminated under the provisions of its conditions or rescinded by mutual agreement between the parties; or

  4. the Recipient, or any of its employees, contractors, agents, consultants or advisors, does any act equivalent of a purchase, or has an employment, independent contractor or consulting relationship directly or indirectly with the Seller.

8 Indemnity

• 8.1 The Recipient is liable for and agrees to indemnify and hold harmless the Discloser in respect of any loss, damage, cost, charge, expense, penalty, fine or payment which the Discloser suffers, incurs or is liable for, as a result of a breach by the Recipient of this deed; and any claim or action taken against the Discloser as a result of a breach by the Recipient of this deed.

9 Dispute Resolution

• 9.1 If a dispute arises between the Parties, the complainant must not commence any court or arbitration proceedings, except where that Party seeks urgent interlocutory relief, unless it has first complied with this clause:
  

  1. Notification : the complainant must inform the other party in writing of the nature of the dispute, the outcome the complainant desires and the action the complainant believes will settle the dispute.

  2. Endeavour to resolve the dispute : on receipt of the complaint from the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days;

  3. Mediation : any unresolved dispute or difference whatsoever arising out of or in connection with this deed will be submitted to mediation at the equal cost of both Parties. 

  This clause survives termination of this deed.

10 Obligations on termination

• 10.1 This deed shall be effective as of the date of the Recipient’s signature and will survive and continue without limitation of time.
• 10.2 On discussions between the Parties ceasing, the Recipient agrees to promptly return to the Discloser all information, data and/or documents containing or relating to the Confidential Information which is in the Recipient’s possession, custody or control, and cause any other person to whom the Recipient has disclosed Confidential Information to do the same; and
  

  1. securely destroy any copies of any information, data or documents containing or relating to the Confidential Information, including analyses, compilations, reports and memoranda prepared by or for the Recipient and based wholly or partly on the Confidential Information not returned to the Discloser; and

  2. delete all Confidential Information held electronically in any medium which is in the Recipient’s possession, custody or control and cause any other person to whom the Recipient has disclosed Confidential Information to do the same.

• 10.3 The Recipient may keep one copy of such information, in secure and confidential storage, if required by law for record keeping purposes, only to the extent and for the period required by law.

11 Notices

• 11.1 A notice or other communication must be in writing in English and may be:
  

  1. delivered personally;

  2. given by an agent of the sender;

  3. left at a Party’s current delivery address for notices; and/or

  4. sent by prepaid mail to a Party’s current postal address for notices; and/or

  5. sent by email to a Party’s current email address.

• 11.2 A notice or communication is taken as having been given:
  

  1. when left at a Party’s current delivery address for notices; or

  2. if mailed within Australia to an Australian address, on the third Business Day after posting; or

  3. if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting; or

  4. if sent by email, when the sender receives a sent confirmation.

• 11.3 Addresses for service are set out at the start of the deed. A Party may change its address for service of notices by written notice to the other Party.

12 General

• 12.1 Authority to enter into deed : The Parties each confirm that they have authority to enter into this deed.
• 12.2 Relationship of parties: This deed is not intended to create a partnership, joint venture or agency relationship between the Parties.
• 12.3 Assignment : A Party must not assign or deal with the whole or any part of its rights and/or obligations under this deed without the prior written consent of the other Parties (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect.
• 12.4 Waiver or variation of rights : Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this deed does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
• 12.5 Further assurance : Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to this deed.
• 12.6 Acceptance and counterparts :
  

  1. This deed may be executed in any number of counterparts and the counterparts taken together will constitute one and the same deed.

  2. The date of this deed will be the date that it is executed by the last Party, or agreed to by email by the Recipient.

• 12.7 Entire agreement and understanding : In respect of the subject matter of this deed:
  

  1. this deed contains the entire understanding between the Parties; and

  2. all previous oral and written communications, representations, warranties or commitments are superseded by this deed and do not affect the interpretation or meaning of this deed; and

  3. if any provision of this deed is unenforceable, illegal, invalid, void or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the enforceability and validity of the remaining provisions of this deed are not affected.

• 12.8 Governing law and jurisdiction : This deed is governed by the laws of the State or Territory in which the business is registered and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the State or Territory in which the business is registered.

13 Definitions & Interpretation

• 13.1 In this deed, unless expressed to the contrary:

  1. headings are for convenience and do not affect the interpretation of this deed;

  2. “includes” and similar words mean includes without limitation;

  3. no clause of this deed shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

  4. a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation; and

  5. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally.

• 13.2 Definitions
  
  

  1. Authorised Persons means the legal counsel, accountant, lender or business advisor of the Recipient;

  2. Confidential Information includes but is not limited to:

     1. business models, business plans, information, ideas, concepts, knowledge, know-how, intellectual property, trade secrets, inventions, technology, operating procedures, processes, techniques, software, business methods, financial, accounting, monetisation, capital raising, marketing and technical plans and information, customer and supplier lists (including any prospective or proposed customer and supplier lists), analytical information, funding arrangements and other commercially valuable information belonging to the Discloser; and

     2. notes, records and related information generated by the Recipient from the Confidential Information, including any copies of the Confidential Information, and copies of the notes, records and related information generated

     whether or not such information is reduced to a tangible form or marked in writing as "confidential", and whether it is disclosed by the Discloser to the Recipient or received, acquired, overheard, or learnt by the Recipient in any way whatsoever.

  3. Permitted Purpose means the Recipient’s proposed acquisition of the Business.