Food Manufacturer- Ice Cream

CONFIDENTIALITY AGREEMENT

BETWEEN CLYTH MACLEOD ( 2018 ) LIMITED Licensed under the Real Estate Agents Act 2008 [ “CML” ], Includes Clyth MacLeod General Business Sales, Company Sales & Acquisitions and Food & Beverage Sales; all divisions of (CML).

AND [ “Interested Party” ]

The [ “Interested Party” ] is the person or entity identified by the name, address, suburb, postcode, email address and phone number set out above in this form (together, the “Interested Party”)

IT IS AGREED AS FOLLOWS

The Parties above herein agree that the Interested Party has requested such confidential information as it has a possible intent to acquire by purchase the business(es) listed for sale with CML AND therefore the Interested Party HEREBY AGREES that CML may at its sole and unfettered discretion on behalf of the vendor disclose and supply to it such records, documents, representations, and financial information [ “confidential information” ] that CML may have in its possession, may obtain, or may have prepared.

1. The Interested Party further agrees that, notwithstanding CML’s general privacy policy, it will allow and consents for its details provided in this form to be shared with the Vendor and the Interested Party agrees at all times to act with bona fides intent and in good faith with the Confidential Information, and the Business.
2. All Confidential Information shall at all times remain the sole property of CML and any notes, extracts, and copies howsoever made will be received and held in strict confidence by the Interested Party and shall be used for the sole “Purpose” of assessing the viability, suitability, financial details of the Business and will not be shared, disseminated or provided ( including any part or parts ) to any other person other than the Interested Party’s legal, technical, specialist or financial advisers.
3. Should for any reason the Interested Party not proceed with any interest in or offer to purchase the Business then all Confidential Information and any notes and copies made there from, and any other tangible information supplied to the Interested Party relating to the Business by CML will forthwith be returned to CML without any copies thereof having been kept by the Interested Party. Further, all Confidential Information shall also be permanently deleted from any computer system, handheld or electronic data storage device or facility of the Interested Party. If required by the Vendor, the Interested Party shall immediately upon request sign a statutory declaration confirming that it has returned all Confidential Information to CML and has permanently deleted the same from any computer system, handheld or electronic storage device or facility.
4. The undertakings as to confidentiality contained herein shall bind not only the Interested Party but also its employees, agents, directors, advisers, associated and subsidiary companies (including employees, agents and directors thereof) and the Interested Party shall take all reasonable steps ensure that all such persons are aware of and are bound by and observe the conditions of this Agreement.
5. The Interested Party will take all reasonable steps to protect the Confidential Information at all times and to prevent any unauthorised copying, acquisition, or use and shall indemnify and keep indemnified CML, and it’s salespersons and employees against all claims, losses or damages arising out of the unauthorised disclosure or use of Confidential Information or any parts thereof by the Interested Party or its employees, agents, directors, advisers, associated and subsidiary companies.
6. Without limitation to the foregoing obligations the Interested Party may not after signing this Agreement, unless they purchase the Business, or the Vendor consents in writing beforehand either directly or indirectly do any of the following things;
   1. Contact any supplier to the Business or any customers of the Business to solicit them to do business with the Interested Party or any associate;
   2. Contact any of the staff or contractors to the Business or solicit any of them to provide services or employment to the Interested Party or any associate;
7. The provisions of this Agreement shall not derogate from and shall be in addition to the obligations upon the Interested Party howsoever implied by the common or statute law relating to breach of obligations of confidentiality set out in this agreement.
8. This Agreement is severable, and if a court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such finding shall not affect the remaining provisions of this Agreement.
9. The obligations, covenants and undertakings contained in this Agreement shall continue in force without any limit in point of time notwithstanding that no purchase agreement is entered into by the Interested Party for the Business
10. This Agreement shall be governed by and construed in accordance with New Zealand Law and shall be subject to the non-exclusive jurisdiction of the High Court of New Zealand to which the Interested Party expressly submits.
11. If the Business is of interest, then the Interested Party hereby acknowledges that for the purposes of any purchase that CML is the introducing agent, and the Interested Party herein agrees that all or any negotiations, or offers to purchase the Business now or at any time hereafter including the purchase of any shares or interest in the Business howsoever will only be conducted through CML.
12. The Interested Party agrees and understands and accepts that all Confidential Information herein supplied has been provided by the Vendor or the Vendor’s agents and CML is merely passing over this information as supplied to it. CML cannot guarantee its accuracy as it has not checked, audited, or reviewed the information and the Interested Party or its employees, agents, directors, advisers, associated and subsidiary companies are advised to conduct their own due diligence investigation into this Confidential information, which has been sighted and approved by the Vendor.
13. To the maximum extent permitted by law CML does not accept any responsibility to any party for the accuracy or use of the Confidential information herein, and the Interested Party acknowledge that the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13, 14(1) of the Fair Trading Act 1986 shall not apply. Although the Vendor is not party to this agreement, it is hereby agreed that it is entitled to enforce the above promises, obligations and undertaking against the Interested Party pursuant to the Contract and Commercial Law Act 2017.
14. For the purpose of this Agreement, “Confidential Information” shall include and mean:
    1. All information disclosed by CML relating to the business and financial affairs of any such business(es) listed for sale with CML (herein called “the Business”) whether by way of records, documents, representations, financial information, and books of accounts, howsoever connected with the business affairs and financial details of the Business.
    2. Any information which the [ “Interested Party” ] acquires during negotiations in relation to any dealings, transactions or affairs of the Business.
15. As a prospective purchaser of a business and having executed a Confidentiality Undertaking with CML we have included you in our database. We will give you alerts on similar businesses that may be of interest to you and also provide you with our monthly newsletter. Please let us know if you prefer not to be on our database. You may also unsubscribe from our database at any time.

PRIVACY POLICY: Subject to clause 1 of this agreement above, we will never release, sell or give your details to any other third party or organisation.

This Agreement incorporates by reference, and is completed by, the identifying details of the [ “Interested Party” ] as set out in the details section of this form (name, address, suburb, postcode, email address and phone number), which form part of and are incorporated into this Agreement.