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Confidentiality / Non-Disclosure Agreement
1. Confidential Information – Recipient understands that the seller set forth in the Listing referenced above (“Seller”) and of the business also set forth in the Listing (the “Business”) shall, directly or indirectly through the Broker as its conduit, disclose to Recipient certain confidential and proprietary information related to the Business (“Confidential Information”) which shall include information relating to non-public, confidential and proprietary operations, properties, personnel, financial information, materials, products, technology, computer programs, manuals, business plans, software, marketing plans and other information submitted, orally, in writing, or by any other media solely relating to Recipient’s interest in purchasing the Business. Recipient agrees not to disclose, publish or otherwise reveal any of the Confidential Information to any other parties, agents, representatives or employees whatsoever without the prior written consent of the Seller (“Authorised Persons”); except that Recipient may disclose the Confidential Information to Recipient’s legal counsel, accountant or lender. The Recipient agrees that the Broker is not obliged to disclose any particular Confidential Information to the Recipient.
2. Disclosure – The Recipient may disclose the Confidential Information to Authorised Persons, provided that before doing so, the Recipient must ensure that all such Authorised Persons knows of the Recipient’s obligations under this Deed and know 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 Broker, the Recipient must provide the Broker with a list of all Authorised Persons to whom the Confidential Information has been disclosed by the Recipient.
3. Conduct – Recipient understands and agrees that all communications concerning the Business shall be conducted solely through the Broker, and Recipient agrees not to approach or contact Seller or its principals or visit the physical business location without an appointment arranged through Broker. Recipient also agrees not to contact or approach Seller’s employees, officials, agents, customers, suppliers and/or competitors without the prior written consent of Seller. Recipient shall be liable to Broker for any and all damages Broker may suffer, including but not limited to Broker’s full commission as set forth in a separate agreement with Seller if (a) Recipient buys, leases, receives in trade or otherwise obtains any part of the Business during the two (2) year period commencing from the Effective Date; (b) Seller and Recipient enter into a contract for sale; (c) Recipient, through no fault of Seller, fails or refuses to complete a sale, lease, trade or other disposition of the Business after entering into an agreement to do so; or (d) Recipient does any act equivalent of a purchase, or has an employment, independent contractor or consulting relationship directly or indirectly with Seller, Recipient shall be fully responsible for any breach of this Agreement by Recipient, Recipient’s Agents, representatives or employees.
4. Information – All information and documents provided to Recipient and Authorised Persons concerning the Business is the Property of the Seller and must be returned or destroyed immediately upon written request by Broker or Seller. Any and all representations and warranties shall be made solely by and between Seller and Recipient in a signed purchase/sale agreement and subject to the provisions thereof. Recipient fully understands that Broker makes no representations or warranties whatsoever, expressed or implied, to Recipient with respect to the Business and Confidential Information disclosed to Recipient. Recipient acknowledges that it is and will not rely upon any information, written or oral, furnished by Broker, and Recipient understands that all information received must be independently verified by Recipient. Recipient acknowledges that all information furnished and/or received by Recipient is provided by Seller and not verified in any way by Broker or its agents and that Broker and its agents are relying upon Seller for the accuracy and completeness of the information. Recipient agrees that any information and documents received by Recipient will not be used in any way to Seller’s or Broker’s detriment or liability, and Recipient agrees to indemnify and hold Broker harmless from any claims or damages from its use and/or reliance thereon. The provisions in this paragraph shall also inure to the benefit of Broker’s agents.
5. Seller as Third Party Beneficiary – Recipient acknowledges that Seller has the right to protect the Confidential Information and to obtain the benefits hereunder. Accordingly, and for such limited purposes only, Seller shall be considered an intended third party beneficiary hereunder. The fact that Seller is not a signatory to this Agreement shall not prohibit, alter or limit Seller’s or Broker’s right to enforce the terms hereof.
6. Advice – Recipient understands, agrees and acknowledges that Recipient has been advised to consult a solicitor and/or certified public accountant for assistance in reviewing and verifying the legal, financial and/or any other pertinent information concerning the Business. Recipient further understands and agrees that Broker is merely acting as a conduit of information and has not made any independent investigation of the accuracy of the information provided by Seller. Recipient agrees to independently verify all representations and warranties made by Seller and understands that Broker has not made nor will it make any verification or warranty regarding any information provided.
7. Indemnity – Recipient agrees to indemnify the Seller, Broker and their related entities against all claims, proceedings and/or costs that any of them may sustain or incur as a result of or in connection with any breach by Recipient or any act or omission by the Recipient which, if done or omitted to be done by the Recipient, would be a breach of the Recipient’s obligations under this Agreement.
8. Procuring Cause – Recipient hereby recognises Broker as the procuring cause of any purchase or other act set forth in paragraph 3 above, and agrees that for a period of two (2) years from the Effective Date not to deal directly or indirectly with the Seller, its agents, representatives or assigns, without the prior written consent of Broker. If Recipient or an entity in which Recipient has an interest, or person or entity introduced to the Business and/or Seller by Recipient, enters into a (a) sale and/or purchase agreement, (b) management contract or other financial arrangement with Seller with respect to the Business or part thereof, including leasing the Business premises from Seller or Seller’s landlord, Recipient shall be liable to Broker for any and all damages Broker may suffer, including but not limited to the payment of the full commission due Broker under a separate agreement with Seller. To ensure the collection of its compensation, Recipient hereby grants Broker the right to place a lien on the Business assets which may be acquired by Recipient in violation of this Agreement, and Recipient agrees and does hereby appoint Broker its solicitor to execute all documents necessary to perfect such lien, and this Agreement shall be Recipient’s consent to do so as required by the laws of New Zealand.
9. Warranties – Recipient warrants that the sole purpose of requesting and receiving information on the Business is to possibly affect a purchase or merger and/or acquisition, and none other, and Recipient knows that Seller and Broker are relying upon such representations in disclosing the Confidential Information to Recipient. 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.
10. No Implied Waiver – Either party’s failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
11. Consent & Jurisdiction – This Agreement shall be governed by the laws and construed in accordance with the laws of New Zealand and the parties consent and agree that New Zealand shall be the sole and exclusive venue for all proceedings relating to this Agreement and/or its subject matter, including without limitation the enforcement hereof. Recipient hereby waives all objections to establishing venue elsewhere. Recipient agrees that in the event of any breach or threatened breach of the confidentiality provisions contained herein. Seller or Broker may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Broker and/or Seller against any such breach or threatened breach.
12. Legal Fees – In the event of any dispute or litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable legal fees, costs and expenses incurred in both the trial court and appellate levels.
13. Notices – Any notice, demand, consent, approval, request, waiver or other communication (notice) to be given under this Agreement must be in writing and must be given to the recipient at its Address for Service.
14. Copies – Recipient has received a copy of this Agreement and a fax or electronically transmitted copy with signatures shall be considered as an original.