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CONFIDENTIALITY WHEN BUYING OR SELLING A BUSINESS

Clyth MacLeod Business Sales do not wish to be a roadblock to you by making it hard to gain information on businesses of interest.

We do need however to take care when passing out sensitive business information. In addition to completion of the confidentiality agreement we will often require specific consent from the business owner prior to release of details on the business.

As a buyer wishing to assess the business suitability and to establish whether it meets your criteria, or not, you will be keen to gain as much information on the business as possible.

However, the identity of the business and the information regarding the business is commercially sensitive.

Before releasing their information the owner of the business will want to know that you;

  • are genuinely interested in purchasing the business,
  • are financially capable of purchasing the business,
  • have the required skills and / or experience to operate the business,
  • are not a competitor, employee, supplier or anyone related to the business of the current owner

Completion of a Confidentiality Undertaking does not necessarily give you automatic entitlement to the business information. We will need the owner’s approval first.

If you’re in the market to buy a business please be patient and understand why the business owner wants an understanding of who you are and how you intend to run and finance the potential purchase of the business.

If you are considering selling your business you can rest assured that at Clyth MacLeod Business Sales we take the confidentiality of your business information seriously.

  

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I/We agree and warrant that the above information is true and correct. I/We further agree:

  1. To act in good faith with any contact or discussions relating to the possible acquisition of an interest in a business;

  2. To act in good faith with respect to any communications, meetings or discussions with Clyth Macleod Business Sales (CML);

  3. To respect the confidentiality of any business information supplied, which I/We acknowledge may be sensitive information; and

  4. To specifically comply with the Further Confidentiality Agreement Terms and Conditions as specified in Schedule 1 of this form.

IMPORTANT:

  1. Rule 9.7 of the Real Estate Agents Act (Professional Conduct and Client Care Rules) 2012 requires that before you sign any contractual document (including this form) that you are aware that you can, and may need to seek legal, technical or other advice and information before signing. We recommend you to do so.

  2. The signing of this form does not create an obligation for us to release the business information to you. Please be aware that we may still be required to obtain our vendor’s authority before we can release further information about the business to you, and, they may require us to obtain further information including information about you, your background and your intentions for the business.

I/We have filled in all required information. I/We accept the terms and conditions of this Confidentiality Agreement and Registration of Interest to Purchase form.


PLEASE ENSURE YOU HAVE CAREFULLY READ SCHEDULE 1 – FURTHER CONFIDENTIALITY AGREEMENT TERMS AND CONDITIONS. IN SIGNING THIS FORM YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS.


Schedule 1 – Further Confidentiality Agreement Terms and Conditions – Clyth Macleod Business Sales (CML).

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. CML may at its sole and unfettered discretion disclose and supply to the Interested Party such confidential information that CML may have in its possession, may obtain, or may have prepared, subject at all times to the vendor’s approval.

For the purpose of this agreement, "confidential information" shall mean:

  1. All information disclosed by CML by any means whatsoever relating to the business(es) and financial affairs of any such business(es) listed for sale with CML (herein called "the business(es)") whether by way of records, documents, representations, financial information, and books of accounts, howsoever connected with the business(es) affairs and financial details of the business(es);

  2. Any information that the Interested Party acquires during negotiations in relation to any dealings, meetings, transactions or affairs of the business(es) through CML or the vendor(s);

  3. Any information that is by its nature confidential whether or not it was identified as such at the time of disclosure; and/or

  4. Any information that CML or the vendor(s) advises the Interested Party is confidential

CML and the Interested Party further agree that:

  1. All confidential Information shall at all times remain the sole property of CML and any notes and copies made by the Interested Party will be received and held in strict confidence by the Interested Party and shall be used for the sole purposes of assessing the viability, financial details and business affairs of the business(es) and that the Interested Party has requested such confidential information as it has a possible intent to acquire by purchase such business(es).

  2. Should for any reason the Interested Party not proceed with any offer to purchase the business(es) or the purchase is not completed for whatever reason, then the confidential information and any notes and copies made there from, and any other tangible information held by the Interested Party relating to the business(es) (other than written material, notes and data in existence at the date hereof and already acquired by the Interested Party) will forthwith be returned to CML. Any confidential information shall be permanently deleted from any computer system, handheld or electronic data storage device or facility of the Interested Party. If required by the vendor(s), 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.

  3. Unless the Interested Party successfully purchases the business(es), or the vendor(s) provides prior consent, the Interest Party will not:

    1. Contact any supplier to the business(es) to solicit them to do business with the Interested Party or any associate(s) of the Interested Party;

    2. Contact any of the staff or contractors to the business(es) or solicit any of them to provide services or employment to the Interested Party or any associate(s) of the Interested Party;

    3. Contact any of the customers and/or clients of the business(es).

  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), any other persons related to the Interested Party and the Interested Party shall take all reasonable steps to ensure that all such parties/persons are aware of and are bound by and observe the conditions of this Agreement.

  1. The Interested Party will take all reasonable steps to protect the confidential information at all times and to prevent any unauthorised acquisition or use and shall indemnify and keep indemnified CML, and its salespersons and employees and the vendor(s) against all claims, losses or damages arising out of the unauthorised disclosure or use of the confidential Information or any parts thereof by the Interested Party or its employees, agents, directors, advisers, associated and subsidiary companies, or any other persons related to the Interested Party.

  2. The Interested Party acknowledges that no failure on the part of CML or the vendor(s) to enforce at any time any of the provisions of this Agreement shall be construed as a waiver of any such rights under this Agreement nor shall any such failure affect the validity of any of the provisions of this Agreement or otherwise prejudice CML or the vendor(s) in any manner whatsoever.

  3. The provisions of this Agreement shall not derogate from and shall be in addition to the obligations upon the Interested Party implied by the common or statute law relating to breach of confidential information.

  4. 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.

  5. 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 or completed by the Interested Party for the business(es).

  6. If the proposal is of interest, the Interested Party acknowledges that CML is the Introducing agent, and the Interested Party herein or any person associated with the Interested Party agrees that all offers to purchase the business(es) including any shares, part or indirect ownership of the business(es) at any time hereafter will only be conducted through CML.

  7. The Interested Party agrees and understands that all information supplied has been sourced from the vendor(s) and to the maximum extent permitted by law neither CML nor its salespersons or employees are liable for the accuracy of such Information and furthermore the Interested Party is advised to make their own enquiries to verifying the accuracy and authenticity of any such financial or other pertinent information as supplied. CML is merely passing over the information as supplied and approved by the vendor(s) or the vendor's advisor(s).

  8. The Interested Party agrees to the receipt of marketing information from CML. Should the Interested Party not wish to continue receiving marketing information, the Interested Party can opt out by email.

  9. PRIVACY: CML will retain any information collected about the Interested Party in accordance with the principles and requirements of the Privacy Act 2003.

  10. The Interested Party agrees that in the event the Interested Party breaches their obligations under this Agreement, CML and/or the vendor(s) may be entitled to interlocutory injunctive relief to prevent a breach and/or continued breach, to mitigate the effects of any breaches and to compel specific performance of this Agreement.

  11. The Interested Party agrees that in the event the Interested Party breaches their obligations under this Agreement, they will be liable to indemnify CML and/or the vendor(s) against any losses arising from the breaches including any enforcement and/or recovery costs.

Thank You!

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