1. Forteoffers a range of consulting services to its clients, including assisting businesses to sell their business, assets or shares.
2. Forte is prepared to, as agent for the Client, disclose certain information to the Interested Partyfrom time to time for the purpose of assisting the Recipient to decide whether it is willing to engage in discussions and due diligence investigations in relation to the acquisition of the business, assets or shares of theClient, in accordance with the terms and conditions of this deed (Approved Purpose).
3. The parties have agreed to disclose and receive information on the terms and conditions of this deed.
4. The obligations of the Interested Party under this deed are ongoing obligations, which are intended to continue to bind the Interested Party in relation to information provided from time to time by Forte in relation to one or more Clients.
1. 1. INTERPRETATION
The following definitions apply in this deed, unless the context require otherwise:
Approved Purpose means for the purpose stated in the Recitals to this deed.
Associate of a party means any associated entity (as defined in sections 15 and 50AAA of the Corporations Act).
Business Day means a day (not being a Saturday, Sunday or public holiday) on which Australian Banks (as defined in the Corporations Act 2001 (Cth)) are open for general banking business in the capital city of the State.
Client means any client and its Associates of Forte with respect to whom Forte makes a disclosure to the Recipient from time to time pursuant to the terms and conditions of this deed and may be more than one client (and its Associates).
Confidential Information means any information in any form whatsoever (including oral, written, and electronic information) of a technical, business, corporate or financial nature of or in relation to a person, its Associates, its business and shareholders, which the Disclosermakes the Recipient aware of, is considered by it to be confidential and / or proprietary, or which is evident on its face as being considered confidential and / or proprietary, and includes:
The following rules apply unless the context otherwise requires.
- (a) Headings are for convenience only and do not affect interpretation.
- (b) The singular includes the plural and conversely.
- (c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
- (d) The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
- (e) A reference to a clause or Schedule is a reference to a clause of, or a schedule to, this deed.
- (f) A reference to a party to this deed or another agreement or document includes the party’s successors and permitted substitutes or assigns (and, if applicable, the party’s legal personal representatives).
- (g) This deed is to be interpreted so that it complies with all applicable laws and if any provision does not comply then it must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, however, then it is to be severed from this deed in which case the remainder of this deed will continue to have full force and effect.
- (h) Specifying anything in this deed after the terms 'include', 'including', 'includes', 'for example', 'such as' or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
- (i) No provision of this deed will be construed adversely to a party because that party was responsible for the preparation of that provision or this deed.
The Recipient expressly acknowledges, undertakes, covenants and agrees that:
- (a) the Confidential Information is confidential, sensitive and of a proprietary nature and valuable to Forte and the Client, and agrees to hold the Confidential Information secret and to protect and preserve the confidential nature and secrecy of the Confidential Information;
- (b) it may only use or reproduce Confidential Information for the Approved Purpose;
- (c) it will not disclose the Confidential Information to any person except as permitted under this deed;
- (d) it must not make, assist or permit any person, including any of its or their own personnel to make any unauthorised use, disclosure or reproduction of Confidential Information;
- (e) it must ensure that any person, through or on behalf of either of them, who has access to the Confidential Information, does not use, reproduce or disclose the same, other than in accordance with this deed;
- (f) subject to sub-clause (h), it must keep effective control of all Confidential Information and take all precautions that are reasonably necessary to safe-guard the Confidential Information, and prevent against theft, damage, loss, misuse or unauthorised use or disclosure;
- (g) it must promptly inform the other party of any suspected or actual unauthorised use or disclosure of the Confidential Information;
- (h) it must co-operate with each other in relation to any matter, thing or action that may arise regarding any investigation, breach (threatened or otherwise) or enforcement of the obligations imposed herein;
- (i) it must comply with all reasonable requests made by the Discloser regarding Confidential Information; and
- (j) it must not exploit the Confidential Information for the party’s own benefit, for the benefit of any other person or for any other purpose, or allow any other person to do so without the written consent of the Discloser;
- (k) this deed does not give a Recipient or any other person any right, title or interest in the Confidential Information Disclosed to it by the Discloser; and
- (l) its obligations under this clause 2 are in addition to, and nothing in this deed limits, any common law or equitable obligations of confidence owed to the Discloser or its Related Bodies Corporate by the Recipient or its Personnel.
3. PERMITTED DISCLOSURES
3.1 The Recipient may disclose the Confidential Information to their Personnel who need to know the Confidential Information for the Approved Purposes subject at all times to the Recipient:
- (a) ensuring the Personnel are made fully aware of the confidential nature of all Confidential Information;
- (b) procuring that the Personnel enter into a confidentiality deed with the Recipient on similar terms as this deed, prior to the Personnel receiving the Confidential Information; and
- (c) taking all reasonable steps to ensure that its Personnel do not disclose any Confidential Information directly or indirectly to any person nor do nor omit to do anything which, if done by the Recipient would constitute a breach of obligations under this deed.
4. ONGOING DISCLOSURE OF CONFIDENTIAL INFORMATION
The Recipient acknowledges that:
- (a) Fortemay disclose Confidential Information at any time and from time to time on and from the date of this deed;
- (b) that Confidential Information may be in relation to one or more Clients of Forte; and
- (c) whenever Forte discloses Confidential Information to the Recipient in relation to a new or subsequent Client, notwithstanding that a new confidentiality deed may not be provided by Forte at that time, any such information is provided on the terms and conditions of this deed.
5. INTELLECTUAL PROPERTY RIGHTS
The Recipient acknowledges that there is no transfer or licence to it or any third party of any Intellectual Property Rights in and to, or arising from, any Confidential Information disclosed under or in connection with this deed.
Except with the prior written consent of the relevant Discloser, a party that is a Recipient of Confidential Information must not for a period of 12 months from the date of this deed:
solicit the employment of any employee or officer currently employed or engaged by the Discloser or its Related Bodies Corporate, or attempt to entice any such person to leave their employment or engagement with the Discloser or its Related Bodies Corporate;
contact, approach or solicit any clientof the Discloser or its Related Bodies Corporate.
Despite the above a Recipient is not prevented from soliciting the employment of a person who:
- responds to a general advertisement or recruitment campaign;
- contacts the Recipient or its Related Bodies Corporate without any solicitation from the Recipient or its Related Bodies Corporate; or
- is put forward by a recruitment consultant and such recruitment consultant has not been engaged nor given specific instructions by the Recipient to direct recruitment activity at such person.
- (a) Either party may terminate this deed by giving the other party 3 months written notice at any time (Termination).
- (b) Notwithstanding Termination, the Recipient’s obligations under this deed in respect of Confidential Information disclosed to the Recipient prior to Termination will continue to bind the Recipient for a period of 3 years commencing on and from the date of Termination.
8. RETURN OF CONFIDENTIAL INFORMATION
The Recipient shall promptly, on demand by the Discloser:
- (a) return the Confidential Information, including all copies, summaries, notes and records of the Confidential Information in its possession, power or control as the case may be and whether or not such material forms were created by it (or, irretrievably destroy or delete the Confidential Information with the Discloser’s prior written consent and certify in writing that it has been so destroyed or deleted); and
- (b) procure that any third party in possession of the Confidential Information including all copies, summaries, notes and records of the Confidential Information returns that Confidential Information (or procure that the relevant third party(s) irretrievably destroy or delete that Confidential Information with the Discloser’s prior written consent and certify in writing that it has been so destroyed or deleted),
and the return, destruction or deletion of Confidential Information under this Clause 8 does not release the Recipient (or its Personnel) from its obligations under or in connection with this deed.
9. DISCLAIMER AND WARRANTY
- (a) The Recipient acknowledges that neither Forte nor the Client makes any representation or warranty as to the accuracy or completeness of the Confidential Information disclosed by them except that the Confidential Information has been disclosed in good faith.
- (b) To the maximum extent permissible by law, neither the Client nor Forte shall be liable to the Recipient in any way for any loss of any kind including, without limiting the generality of the foregoing, damages, costs, interest, loss of profits or special loss or damage, arising from any error, inaccuracy, incompleteness or other similar defect in the Confidential Information disclosed by Forte.
- (a) Subject to sub-clause (b), and without limiting the rights of Forte at law, the Recipient agrees to indemnify (and keep indemnified) the Client and Forte, including their officers, Associates and agents, in respect of all claims, losses, liabilities, demands, damages, costs and expenses of any kind incurred directly or indirectly as a result of a breach by the Recipient of any of its obligations under this deed.
- (b) The Recipient acknowledges that damages may not be an adequate remedy for a breach by the Recipient of this deed and that Forte and/or the Client are entitled to seek specific performance or injunctive relief as a remedy for any such breach, in addition to any other remedies available at law or in equity.
- (c) The Recipient shall be liable to the Discloser for the actions or omissions of any Personnel or Associate in relation to the Confidential Information as if they were the actions or omissions of the Recipient.
11. TRUST AND CAPACITY
This deed binds Forte for its own benefit and for the benefit of the Client as if the Client were a party to this deed. Where this deed confers a right or benefit on the Client, Forte holds that benefit on trust for the Client.
The Interested Party enters into this deed in his or her own right and on behalf of its Associates.
11.1 NO OBLIGATION TO CONTINUE DISCUSSIONS
Nothing in this deed shall impose an obligation on either party to continue discussions or negotiations in connection with the Approved Purpose, or an obligation on either party or an Associate of that party to disclose any information (whether Confidential Information or otherwise) to the other party.
Any notice, demand, consent or other communication (the "Notice") given or made under this deed:
- (a) must be in writing and signed by a person duly authorised by the sender;
- (b) must either be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand, or emailto the postal or email address under clause 12.2.
12.2 Particulars for delivery of notices
(a)The particulars for delivery of notices are as set out in the Parties section of this document.
- (b) Each party may change its particulars for delivery of notices by notice in writing to each other party.
12.3 Particulars for delivery of notices
(a) Subject to sub clause (b), a communication will be taken to be duly given or made:
- (i) in the case of delivery in person, when delivered;
- (ii) in the case of delivery by post, two Business Days after the date of posting (if posted to an address in the same country) or seven Business Days after the date of posting (if posted to an address in another country); and
- (iii) in the case of fax, on receipt by the sender of a transmission control report from the dispatching machine showing the relevant number of pages, the correct destination fax machine number and the result of the transmission as "OK".
(b) If a communication is given or made on a day which is not a Business Day in the place of receipt or is later than 5.00 p.m. in the place of receipt it will be taken to have been duly given or made on the next Business Day in the place of receipt.
13.1 Date of provision of Confidential Information
This deed binds the Recipient in respect of any and all such Confidential Information provided by Forte to the Recipient, whether such Confidential Information was provided to the Recipient prior to or after the date of this deed, pursuant to the terms of this deed.
13.2 Non – merger of provisions
A provision of this deed which can and is intended to operate after conclusion will remain in full force and effect.
13.3 Further Assurance
Each party must promptly execute all documents and do all things that the other party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of this deed.
- (a) A single or partial exercise or waiver of a right relating to this deed will not prevent any other exercise of that right or the exercise of any other thing.
- (b) A party will not be liable for any loss, cost, expense or any other party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.
No amendment or variation of this deed is valid or binding on a party unless made in writing executed by all parties.
13.6 Entire agreement
This deed constitutes the entire agreement between the parties about its subject matter. This deed may be executed in counterparts and these counterparts together constitute one instrument.
This deed is governed by the law in force in Victoria.Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this deed..