CLOSING DOWN ASSET SALE - CAFÉ/RESTAURANT (EASTERN MELBOURNE) BFB3080

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Confidentiality Agreement
Prospective Purchaser
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Business
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1. Where did you first see the Business Advertised?
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2. To assist us in finding the right opportunity please list a few points in what you require in a Business opportunity. le Return to Owner, Turnover, Location, Business Type, Price Range:
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Executed as a Deed by the Prospective Purchaser
Date *
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The parties agree as follows:
1 Definitions
1.2  Dictionary
Associate	means, in relation to a party, any person / entity which is: a related entity of that party (as defined in section 9 of the Corporations Act substituting the word body corporate for the first mentioned person); a related body corporate of that party (as defined in section 9 of the Corporations Act); a relative of that party (as defined in section 9 of the Corporations Act); or an associate of that party (as defined in section 10-17 of the Corporations Act).
Business / Businesses	means the businesses which: BF Brokers, as agent, is authorised to sell; and which is related to any enquiry, inquiry, question or request made by the Prospective Purchaser.
Business Day	means a day (not being a Saturday, Sunday or public holiday) on which Australian banks (as defined in section 9 of the Corporations Act) are open for general banking business in the capital city of the State.
Business Profile	means a business profile prepared by BF Brokers in relation to the Business, which may include information regarding the operational and financial aspects of the relevant Business.
Claim	means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Confidential Information	means any information in any form whatsoever (including oral, written and electronic information) of a technical, business, corporate, legal, financial or other nature in connection with a Business, a Vendor and / or a Relevant Transaction. For the avoidance of doubt, Confidential Information includes any Business Profile, due diligence materials, supplier information, client names and contact details, client lists, product information and details, business plans, business strategies, financial reports (in any form), financial data, financial statements, details of staff members, tax returns and other commercially sensitive information.
Corporations Act	means the Corporations Act 2001 (Cth).
Due Diligence Materials	means the information, data, comments, statements and documents provided by, or on behalf of, either BF Brokers or the relevant Vendor to the Prospective Purchaser in connection with a Relevant Transaction.
Governmental Authority	means a government or government department or other body, a governmental, semi-governmental or judicial person, or a person who is charged with the administration of any law.
Loss	includes a damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Permitted Purpose	means the Prospective Purchaser’s good faith financial and legal due diligence investigation of the Businesses solely for the purposes of determining whether to proceed with a Relevant Transaction, and not for any other purpose.
Relevant Transaction	means the proposed sale of a Business by a Vendor to the Prospective Purchaser.
Representatives	means, in relation to a party, its officers, employees, contractors, agents, advisers and / or financiers.
Specified Businesses	means those businesses which are described by the following listings on the BF Brokers website: [Note – Insert details of all relevant listings. For example, SNAP FITNESS 24/7 (NORTHERN MELBOURNE) $199,000 79PFI6703 PROPERTY ID 79].
State	means the state of Victoria in the Commonwealth of Australia.
Vendor	means the person or entity who has engaged BF Brokers as an agent to act on its behalf to sell its Business. For the avoidance of doubt: the Vendor will be a principal and BF Brokers will be an agent of the Vendor for the purposes of this agreement; and the Vendor’s details will be undisclosed for the purposes of this agreement.
 
1.3 Rules for interpretation
In this agreement unless the context otherwise requires:
1. (plural) the singular includes the plural and vice versa, and a gender includes other genders;
2. (successors) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
3. (individuals and entities) a reference to a person includes a natural person, partnership, body corporate, trust, association, government authority or local authority or agency or other entity;
4. (no limitation by examples) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
5. (no contra proferentem) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.
 
1.4 Legal advice
1. The parties have sought independent legal advice (or have been provided with the reasonable opportunity to seek independent legal advice) in relation to their rights and obligations under this agreement.
2. The parties agree that their rights and obligations under this agreement are necessary and go no further than what is required to protect their legitimate commercial interests.
 
1.5 Background
The recitals inclusive in this agreement under the heading ‘Background’ are true and correct in every material particular and legally bind the parties to the extent they impose any obligation or confer any rights.
 
1.6 Fairness
The parties acknowledge and agree that the terms of this agreement are reasonable in the circumstances, and the matters and circumstances contemplated by it, are not:
1. contrary to the interests of the parties (whether as a whole or individually); nor
2. oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a party or parties to this agreement in any capacity.
 
2 Undisclosed principal
1. The parties acknowledge, agree and confirm that BF Brokers will enter into this agreement on the following basis:
   1. in accordance with express authority provided by each relevant Vendor;
   2. as the agent and representative for each relevant Vendor only;
   3. with each relevant Vendor being the principal of BF Brokers; and
   4. on the basis that BF Brokers does not become personally liable as a party to the contract in addition to each Vendor.
2. The parties acknowledge, agree and confirm that that each relevant Vendor can enforce the terms of this agreement against the Prospective Purchaser (including seeking a remedy for breach of contract), as if it were specifically named as a party to this agreement.
 
3 Consideration and acknowledgements
3.1 Mutual exchange of consideration
1. BF Brokers must, for and on behalf of the relevant Vendor, provide a Business Profile to the Prospective Purchaser in connection with the Relevant Transaction. The parties acknowledge and agree that this obligation constitutes valuable consideration.
2. The Prospective Purchaser agrees to only use any Confidential Information provided (including any such Confidential Information contained within the Business Profile) strictly in accordance with the terms of this agreement. The parties acknowledge and agree that this obligation constitutes valuable consideration.
3.2 Acknowledgement
The parties acknowledge and agree that none of the rights and obligations referred to in this agreement constitute mere performance of existing contractual duties, and the consideration referred to in clause 3.1(a) and clause 3.1(b) are in response to the promises set out in this agreement.
 
4 Confidentiality obligations
4.1 Timing
This agreement applies to any and all of the Confidential Information to which the Prospective Purchaser gains access or becomes aware of at any time.
4.2 Confidentiality
The Prospective Purchaser:
1. acknowledges the confidential, commercially sensitive, valuable and proprietary nature of the Confidential Information;
2. agrees to keep confidential, and not directly or indirectly divulge, benefit from, commercialise, exploit, communicate or otherwise disclose the Confidential Information, in whole or part, subject to the terms of this agreement;
3. must reasonably assist the Vendor in connection with any Claim regarding any possible, actual or threatened unauthorised disclosure or misuse of the Confidential Information; and
4. must not make any improvements or modifications to or derivations or discoveries from any of the Confidential Information, save for on the basis that such improvements, modifications, derivations or discoveries are at the request of the Vendor and for the benefit of the Vendor, and that all ownership and interest in them is or becomes the property of the Vendor.
4.3 Use of Confidential Information
In consideration for the Prospective Purchaser receiving the Confidential Information (including the provision of the Business Profile to the Prospective Purchaser by BF Brokers), the Prospective Purchaser must not, and must procure that their Associates do not:
1. use any of the Confidential Information for any purpose other than the Permitted Purpose;
2. exploit the Confidential Information for their own benefit (other than for the Permitted Purpose), for the benefit of any other person or entity, or allow any other person or entity to do so without the prior written consent from BF Brokers (acting as agent on behalf of the Vendor);
3. abuse, copy, replicate, reverse engineer or commercialise the Confidential Information in any way for its, or its Associates’, benefit or gain (other than for the Permitted Purpose); and
4. use any of the Confidential Information in a manner or for a purpose detrimental to the Vendor (other than for the Permitted Purpose).
4.4 Determining Confidential Information
1. If there is any uncertainty as to whether any information is Confidential Information, that information must be treated as Confidential Information unless the parties to this agreement notify the Prospective Purchaser to the contrary in writing.
2. If the Prospective Purchaser claims that information is not Confidential Information because it is excluded information under the definition of Confidential Information, the Prospective Purchaser must prove that the information is excluded under that definition, beyond reasonable doubt. Failing that proof, the information must be treated as Confidential Information.
4.5 Representatives
1. All Confidential Information provided by a Representative of the Vendor (including BF Brokers) will be treated for the purposes of this agreement as if that Confidential Information was provided by that Vendor.
2. All Confidential Information received by a Representative of a Prospective Purchaser will be treated for the purposes of this agreement as if that Confidential Information was provided to that Prospective Purchaser.
 
5 Protection of Confidential Information
The Prospective Purchaser must:
1. protect and keep effective control of all Confidential Information received in connection with this agreement;
2. take all precautions and maintain such security measures that are necessary to maintain the absolute confidentiality of the Confidential Information;
3. take such necessary action to prevent any theft, loss or unauthorised use or disclosure of that Confidential Information;
4. promptly inform the Vendor of any suspected or actual unauthorised use or disclosure of the Confidential Information, or any potential breach of this agreement; and promptly do anything reasonably required by the Vendor to prevent or restrain a breach or suspected breach of this agreement or any infringement or suspected infringement by any person of the Vendor’s rights under this agreement.
 
6 Exception
1. 1. 1. The Prospective Purchaser will not be in breach of their obligations with respect to disclosure or use of Confidential Information under this agreement, if, in relation to that circumstance:

         1. such disclosure or use is required by law, and the Prospective Purchaser immediately gives notice to and consults with the Vendor to the extent practicable and uses its best endeavours consistent with its obligations to minimise any such disclosure;

         2. the relevant Confidential Information is already in the public domain as at the date of this agreement; or

         3. the information is disclosed to a Representative of the Prospective Purchaser who needs to know the information concerned in order to assist the Prospective Purchaser with the Permitted Purpose, and that Representative provides an undertaking to the Vendor (which the Prospective Purchaser warrants they ensure that the relevant person observes):

            1. to disclose any of the Confidential Information in any form to anyone else;

            2. to comply with the terms of this agreement as if they were a party to it as a Prospective Purchaser; and

            3. only to use the Confidential Information in a manner consistent with the Prospective Purchaser’s obligations under this agreement and for the purpose of assisting the Prospective Purchaser with the Permitted Purpose.

      2. Any act or omission of the Prospective Purchaser’ Representatives which if that person had entered into this agreement as a Prospective Purchaser would be a breach of this agreement, is deemed to be a breach by the Prospective Purchaser of this agreement.
 
7 Return of Confidential Information
1. 1. 1. Upon the written request of the Vendor, the Prospective Purchaser must promptly (but not later than 10 Business Days after the written request) return (or procure the return of) to the Vendor the following (or, if any of the following is incapable of being returned, irretrievably destroy or delete and erase so that it cannot be recovered or reconstructed in any way, and certify in writing that it has been so destroyed or deleted and erased):

         1. the Business Profile;

         2. the Confidential Information of the Vendor; and

         3. all copies, extracts, summaries, notes and records in whatever form (including any electronic records) of the whole or any part of the Confidential Information of the Vendor.

      2. Upon request by the Vendor at any time, the Prospective Purchaser must promptly provide the Vendor with written confirmation that it has complied with all of its obligations under this clause 7.
 
8 No warranty
8.1 Reliance
Subject to the terms of any formal contract executed after the date of this agreement between the Vendor and the Prospective Purchaser which implements the Relevant Transaction, the Prospective Purchaser acknowledges and agrees that:
1. 1. 1. the Prospective Purchaser is responsible for making their own independent assessment of the Confidential Information made available to the Prospective Purchaser and will not hold the Vendor nor their Associates responsible for:

         1. any errors or omissions in the Confidential Information; or

         2. any Loss or Claim directly or indirectly suffered by the Prospective Purchaser or their Associates and / or its Representatives arising out of any use of, or acting in reliance on or refraining from acting as a result of, any Confidential Information; and

      2. the Vendor makes no representation or warranty, express or implied, that any Confidential Information is or will be reliable, complete or accurate or that it has been audited or verified.
8.2 Waiver
Subject to the terms of any formal contract executed after the date of this agreement between the Vendor and the Prospective Purchaser which implements the Relevant Transaction, the Prospective Purchaser waives any right to seek to recover any Loss or Claim against the Discloser arising out of or in connection with any use or reliance by the Prospective Purchaser, their Associates or Representatives on the Confidential Information.
9 Acknowledgements
The Prospective Purchaser acknowledges that:
1. a breach of any of the Prospective Purchaser’ obligations under this agreement may result in the Vendor suffering Loss, including consequential loss, and may cause irreparable damage to the Vendor;

2. in the event of a breach, or threatened or anticipated breach, of this agreement:

   1. damages alone may be an inadequate remedy for the Vendor;

   2. the Vendor will be entitled to seek an interim, interlocutory or permanent injunction restraining the Prospective Purchaser without showing or proving any actual damages sustained by it; and

3. if any breach by it of any provision of this agreement directly or indirectly results in:

   1. the Vendor suffering any loss or damage; or

   2. a financial gain for the Prospective Purchaser or any third party,
the Vendor will be entitled to seek compensation (including an account of profits) from the Prospective Purchaser and / or from any other party who benefited from the breach in respect of such loss or damage or such financial gain.
10 Indemnity
The Prospective Purchaser must indemnify (and shall keep indemnified) the Vendor immediately upon demand from and against all Losses and Claims suffered, incurred or sustained by them arising directly from or in connection with any breach by the Prospective Purchaser or their Associates of the terms of this agreement.
11 General conditions
11.1 Governing law
The laws of the State govern this agreement. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts in the State.
11.2 Giving effect to this agreement
The parties must do everything (including execute any document) and must ensure that its employees and agents do anything (including execute any document) that may be reasonably required to give full effect to this agreement.
11.3 Operation of this agreement
1. 1. 1. Any provision of this agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this agreement enforceable, unless this would materially change the intended effect of this agreement.

      2. For the avoidance of doubt, any indemnity provided by one party to another under the terms of this agreement survives termination of this agreement or completion of any transactions contemplated hereunder.
11.4 Counterparts
1. 1. 1. This agreement may consist of several counterparts and if so the counterparts taken together constitute one and the same instrument.

      2. This agreement is not binding on any party unless one or more counterparts have been duly executed by each party to this agreement.

      3. This agreement is binding on the parties on the exchange of counterparts. A copy of the counterpart sent by email:

         1. must be treated as an original counterpart;

         2. is sufficient evidence of the execution of the original; and

         3. may be produced in evidence for all purposes in place of the original.
11.5 Electronic signature
1. The parties hereby consent to the receiving and sending of information in connection with the Relevant Transaction and this agreement electronically.
2. Satisfactory evidence of execution of this agreement will include evidence of execution sent by facsimile or electronic transmission (including by email) by the relevant party and in such case, the executing party undertakes to produce the original upon request.
11.6 Acceptance by conduct
The Prospective Purchaser may accept the terms of this agreement by:
1. providing notice to the Vendor and / or BF Brokers which communicates their acceptance of the terms of this agreement; or

2. continuing to provide instructions to the Vendor and / or BF Brokers in relation to the Relevant Transaction (including requesting the Business Profile or making further due diligence information requests in connection with the Business).
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