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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Copies – Recipient has received a copy of this Agreement and a fax or
electronically transmitted copy with signatures shall be considered as an original.