Terms and Condition
http://forteasset.com.au/ is a website (Site) operated by Forte Asset Solutions Pty Ltd (ACN 150 811 528) ATF Forte Unit Trust (ABN 18 716 457 579) of Level 6, 99 Queen St, Melbourne 3000 (we, us and our).
2.1 These terms and conditions (Terms) apply to the request of information about our clients by you and the supply of information by us to you (Contract). To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
2.2 The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3.1 When you complete the acquisition business profile form on our Site (Profile Form), it constitutes a request by you to obtain or access information (including information memoranda) of current and future businesses for sale that we consider align with that profile (Information). These Terms and any confidentiality agreement agreed by you apply to your request and each time we send you or give you access to Information.
3.2 Our process allows you to check and amend any errors before submitting the Profile Form to us. Please check the Profile Form carefully before submitting it. You are responsible for ensuring that your information is complete and accurate.
3.3 After you submit your Profile Form, you will be directed to a confirmation page acknowledging that we have received it, but please note that this does not mean that your request for Information has been accepted. Our acceptance of your request for Information will take place as described in clause 3.4.
3.4 Our acceptance of your request for Information takes place when we confirm this by email or phone or when we send you or give you access to Information (Request Confirmation). The acceptance will relate only to our client specified in that Request Confirmation and does not mean that you have been selected to acquire or enter into a joint venture with our client. We do not provide Information on an exclusive basis and may provide the same Information to multiple interested parties.
3.5 If we are unable to supply you with the Information for any reason, we will inform you of this by email or phone.
4.1 Any descriptions on our Site are published for the sole purpose of giving a high-level summary of our clients and their businesses.
4.2 You acknowledge and agree that:
(a) we make no representation, warranty, undertaking or covenant regarding the Information including as to the accuracy, completeness or currency of the Information or that it is not misleading or deceptive; and
(b) the Information is supplied to you “as is” and we accept no liability in relation to its supply or use.
5.1 It is your responsibility to ensure that:
(a) the information in your Profile Form are complete and accurate;
(b) you cooperate with us in all matters relating to the provision of Information to you and to any subsequent discussions and negotiations;
(c) you provide us with such information we may reasonably require in order to assess your suitability to acquire or enter into a joint venture with our clients; and
(d) you comply with all applicable laws.
5.2 If our ability to provide information or continue discussions is prevented or delayed by any inability or failure by you to fulfil any obligation listed in clause 5.1 (Your Default):
(a) we will be entitled to suspend the provision of or access to Information and discussion until you remedy Your Default. In certain circumstances Your Default may entitle us to terminate the Contract under clause 10 (Termination); and
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to provide or give access to Information or from us stopping discussions.
6.1 You are not required to pay us any charges to access or receive Information.
7.1 All intellectual property rights in or arising out of or in connection with the Information will be owned by our client in respect of which the Information relates.
7.2 You grant us a licence-fee free, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract.
8.1 We will use any personal information you provide to us to:
(a) provide the Information;
(b) consider businesses that align with your acquisition business profile;
(c) conduct industry analyses and research, including by creating aggregated data; and
(d) inform you about future businesses or services that may interest to you, but you may stop receiving this information at any time by contacting us.
9.1 Nothing in this Contract limits or excludes our liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
(c) where liability cannot be limited or excluded by applicable law.
9.2 Subject to clause 9.1 we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract, including any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill;
(h) loss of reputation; or
(i) loss of use or corruption of software, data or information.
9.3 Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.
9.4 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.
9.5 This clause 9 will survive termination of the Contract.
10.1 Without affecting any of our other rights, we may suspend providing or giving access to Information and suspend discussions with you, or terminate this Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any other term of this Contract or any other agreement between us and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 30 days after being notified in writing to do so; or
(b) an insolvency event occurs in relation to you.
10.2 On termination of the Contract you must immediately return all Information and you must not use any Information for any purpose unconnected with the Contract.
10.3 Termination of this Contract does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.
10.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
11.1 When we refer to “in writing” in these Terms, this includes email.
11.2 Any notice or other communication given by one of us to the other under or regarding the Contract must be in writing and be delivered personally, sent by pre-paid post or email.
11.3 A notice or other communication is deemed to have been received:
(a) if delivered by hand to the nominated address, when delivered to the nominated address;
(b) if sent by pre-paid post, on the fifth Business Day after the date of posting; or
(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
11.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
11.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
13.1 Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Contract unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
13.2 Words or conduct referred to in clause 13.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
14.1 We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on this webpage if this happens.
14.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
14.3 A breach of clause 14.2 by you entitles us to terminate this Contract.
15.1 If the whole or any part of a provision of this Contract is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
15.2 Clause 15.1 does not apply if the severance of a provision of this Contract in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Contract.
You have entered into this contract in your own right and on behalf of your related entities and associated entities.
We have entered into this contract in our own right and on behalf of our clients in respect of which Information has been provided to you.
No party will make, or permit any person to:
(a) make any public announcement statement, press release or other publicity or marketing materials concerning the existence, subject matter or terms of this Contract, the wider transactions contemplated by it, or the relationship between the parties; or
(b) use the other party’s trade marks, service marks, trade names, logos, symbols or brand names, in each case;
without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
These terms and conditions, their subject matter and their formation, are governed by Victorian law. You and we both agree that the courts in Victoria (including Federal Courts located in Victoria) will have exclusive jurisdiction.