Parties

(1)  HIGHAMS SAAZ LLP incorporated and registered in England and Wales with company number OC420709 whose registered office is at 9 Greyfriars Road, Reading, Berkshire, England RG1 1NU (Party 1)

(2)       The Parties are as stated in and incorporated and registered as set out in section 1 and 2 of the Application (Party 2)

BACKGROUND

(a)      The parties intend to enter into discussions relating to the Purpose which will involve the exchange of Confidential Information between them.

(b)      The parties have agreed to comply with this agreement in connection with the disclosure and use of Confidential Information.

Agreed terms

1.       Interpretation

1.1     Definitions:

Business Day:  a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information:  has the meaning given in clause 2.

Discloser:  a party to this agreement when it discloses its Confidential Information, directly or indirectly, to the other party.

Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group. Each company in a Group is a member of the Group.

Group Company: in relation to a company, any member of its Group.

Holding company: has the meaning give in clause 1.2(e).

Purpose: The evaluation or establishment of a collaboration in respect of providing finance or investment for Party 2 and its projects.

Recipient:  a party to this agreement when it receives Confidential Information, directly or indirectly, from the other party.

Representative(s): in relation to each party and any member of its Group:

(a)  its officers and employees that need to know the Confidential Information for the Purpose;

(b)  its professional advisers or consultants who are engaged to advise that party [and/or any member of its Group] in connection with the Purpose;

(c)  its contractors and sub-contractors engaged by that party [and/or any member of its Group] in connection with the Purpose; and

(d)  any other person to whom the other party agrees in writing that Confidential Information may be disclosed in connection with the Purpose.

Subsidiary: has the meaning give in clause 1.2.

1.2     Interpretation.

(a)  A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b)  Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)  A reference to writing or written includes email.

(d)  A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

(e)  A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 [and a company shall be treated, for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:

(i)       another person (or its nominee) by way of security or in connection with the taking of security; or

(ii)      its nominee].

(f)   Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2.       Confidential Information

2.1     Confidential Information means all confidential information relating to the Purpose which the Discloser or its Representatives or any of its Group Companies, or their Representatives directly or indirectly discloses, or makes available, to the Recipient or its Representatives or any of its Group Companies, or their Representatives, before, on or after the date of this agreement. This includes:

(a)  the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;

(b)  the existence and terms of this agreement;

(c)  all confidential or proprietary information relating to:

(i)       the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the Discloser or of any of the Discloser's Group Companies; and

(ii)      the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Discloser, or of any of the Discloser's Group Companies;

(d)  any information, findings, data or analysis derived from Confidential Information; [and]

(e)  any other information that is identified as being of a confidential or proprietary nature..

2.2     Information is not Confidential Information if:

(a)  it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or its Representatives [or by any of the Recipient's Group Companies or their Representatives in breach of this agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information);

(b)  it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;

(c)  it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;

(d)  it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; or

(e)  it is developed by or for the Recipient independently of the information disclosed by the Discloser; or

(f)   the parties agree in writing that the information is not confidential.

3.       Confidentiality obligations

3.1     In return for the Discloser making Confidential Information available to the Recipient, the Recipient undertakes to the Discloser that it shall:

(a)  keep the Confidential Information secret and confidential;

(b)  not use or exploit the Confidential Information in any way except for the Purpose;

(c)  not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with this agreement; [and]

(d)  not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose. Any such copies, reductions to writing and records shall be the property of the Discloser.

3.2     The Recipient shall establish and maintain adequate security measures [(including any reasonable security measures proposed by the Discloser from time to time)] to safeguard the Confidential Information from unauthorised access or use.

4.       Permitted disclosure

4.1     Disclosure to Representatives.

(a)  The Recipient may disclose the Confidential Information to its Representatives, any of its Group Companies, or their Representatives on the basis that it:

(i)       informs those Representatives, Group Companies or their Representatives of the confidential nature of the Confidential Information before it is disclosed; and

(ii)      procures that those Representatives, Group Companies or their Representatives comply with the confidentiality obligations as stated in this agreement as if they were the Recipient.

(b)  The Recipient shall be liable for the actions or omissions of the Representatives, any of its Group Companies or their Representatives in relation to the Confidential Information as if they were the actions or omissions of the Recipient.

4.2     Disclosure to the Serious Fraud Office relating to Bribery Act 2010 offences. The Recipient may, provided that it has reasonable grounds to believe that the Discloser is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose the Discloser's Confidential Information to the Serious Fraud Office without first notifying the Discloser of such disclosure.

5.       Mandatory disclosure

5.1     Subject to the provisions of this clause 5, a party may disclose Confidential Information to the minimum extent required by:

(a)  an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction;

(b)  the rules of any listing authority or stock exchange on which its shares [or those of any of its Group Companies are listed or traded; or

(c)  the laws or regulations of any country to which its affairs [or those of any of its Group Companies] are subject.

5.2     Before a party discloses any Confidential Information pursuant to clause 5.1 it shall, to the extent permitted by law, use all reasonable endeavours to give the other party as much notice of this disclosure as possible.[Where notice of such disclosure is not prohibited and is given in accordance with clause 5.2, that party shall take into account the reasonable requests of the other party in relation to the content of this disclosure.

5.3     If a party is unable to inform the other party before Confidential Information is disclosed pursuant to clause 5.1 it shall, to the extent permitted by law, inform the other party of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.

6.       Return or destruction of Confidential Information

6.1     If so requested by the Discloser at any time by notice in writing to the Recipient, the Recipient shall:

(a)  destroy or return to the Discloser all documents and materials [(and any copies)] containing, reflecting, incorporating or based on the Discloser's Confidential Information;

(b)  erase all the Discloser's Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form; and

(c)  to the extent technically and legally practicable, erase all the Discloser's Confidential Information which is stored in electronic form on systems and data storage services provided by third parties; and

(d)  certify in writing to the Discloser that it has complied with the requirements of this clause 6.1.

6.2     Nothing in clause 6.1 shall require the Recipient to return or destroy any documents and materials containing or based on the Discloser's Confidential Information that the Recipient is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject. The provisions of this agreement shall continue to apply to any documents and materials retained by the Recipient pursuant to this clause 6.2.

7.       Reservation of rights and acknowledgement

7.1     Each party reserves all rights in its Confidential Information. The disclosure of Confidential Information by one party does not give the other party or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in this agreement.

7.2     Except as expressly stated in this agreement, neither party makes any express or implied warranty or representation concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.

7.3     The disclosure of Confidential Information by the parties shall not form any offer by, or representation or warranty on the part of, that party to enter into any further agreement with the other party in relation to the Purpose.

 

8.       Inadequacy of damages

Without prejudice to any other rights or remedies that each party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the other party. Accordingly, each party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this agreement.

9.       No obligation to continue discussions

Nothing in this agreement shall impose an obligation on either party to continue discussions or negotiations in connection with the Purpose, or an obligation on each party, or any of its Group Companies] to disclose any information (whether Confidential Information or otherwise) to the other party.

10.     Ending discussions and duration of confidentiality obligations

10.1   If either party decides not to continue to be involved in the Purpose with the other party, it shall notify that other party in writing immediately.

10.2   Notwithstanding the end of discussions between the parties in relation to the Purpose pursuant to clause 10.1, each party's obligations under this agreement shall continue in full force and effect for a period of [two] years from the date of this agreement.

10.3   The end of discussions relating to the Purpose shall not affect any accrued rights or remedies to which either party is entitled.

11.     No partnership or agency

11.1   Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties (unless expressly stated) constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

11.2   Each party confirms it is acting on its own behalf and not for the benefit of any other person.

12.     General

12.1   Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement, unless expressly agreed to.

13.     Entire agreement.

(a)  This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

13.2   Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.3   Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4   Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

13.5   Notices.

(a)  Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, [fax or] e-mail.

(b)  A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in section 1 of the application form; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.

(c)   The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.6   Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.

13.7   Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction

HIGHAMS SAAZ LLP and HIGHAMS SAAZ LLC (collectively referred to as the "Company") are exclusively mandated on behalf of Highams Saaz (Jersey) Limited to provide consulting and advisory services in compiling and carrying out due diligence on potential investments introduced to them either directly or via third parties.  

From time to time, the Company may act as advisors/consultants providing the Client/ Investee with advice and services not explicitly referred to in this document but may be chargeable. If this is the case, then we will advise you in advance of such and these services may be subject to a separate engagement letter.

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1. The Company only uses the data supplied by you for the purposes you have agreed to. We comply with our obligations under the relevant country data Protection legislation in respect of the UK that is Data Protection Act 1996. The license registration reference is ZA310167, issued by the UK Information Commissioners Office. In the USA, we are compliant in accordance with the Data Protection Laws and Regulations 2020.

2. Obligations of the Company

The Company shall:

2.1 comply with all laws in the conduct of its Business in the country it is resident.

2.2 not do or omit to do anything which may bring the Company or the Client/Investee into disrepute.

2.3 keep confidential all information about the Business which it carries out for its Clients/Investee.

2.4 Obligations of the Client

The Client shall:

3.1 comply with all applicable laws and regulations.

3.1 wherever possible ensure that the company remains solvent at all times during the progression of this Application and if at any point during the application process the company becomes insolvent, appoints administrators, has legal judgement granted by a court and or there has been any other substantial change in the circumstance of the company, which would have a material effect on the Application, the Client/Investee will immediately inform The Company.     

3.2 not approach or conduct Business directly or indirectly or through another party with any individual or organisation to which the Company have introduced to you other than through us on these terms (unless authorised by us), nor will you pass details of any individual or organisation to whom we have introduced you to any other party. The level of commission/ fees agreed as confirmed in writing shall be paid to the Company on any & all subsequent deals completed with such lenders, organisations, corporations, individuals or any other person that the Company has introduced unless otherwise agreed.

3.3 not disclose, reveal or make use of any other information obtained during discussion or observation regarding methods, concepts, ideas, products/ services, or proposed new products or services without the written consent of the Company.

3.4 not hold the Company responsible for any actions, short-comings, failures to perform or for the failures of any third party or institution introduced by the Company to the Client. The Client/Investee agrees fully and completely to indemnify the Company from the consequences of, or in respect of any loss caused by such actions, short-comings or failures.

3.5 understand that the Company relies on the Client/Investee for the accuracy of statements, Information and representations notified in writing to the company by the Client/Investee, or by his professional advisers, for the purposes of negotiating terms on behalf of the Client/Investee. The Client/Investee agrees fully and completely to indemnify the Company from the consequences of, or in respect of any loss caused by, inaccuracies or misrepresentations for which he is responsible and on which the Company has relied.

3.6 underdtand that by accepting these terms you the Client/Investee and any Parent Company are accepting responsibility for payment of our fees, and the same terms apply to all subsidiary companies and any Special Purpose Funding Vehicles which you are involved with, connected to, or represent.

3.7 understand that where finance, in any form, is provided by or via the Company either directly or indirectly, or you accept finance/investment in any form at any time from any source to which the Company has introduced you to, our fees are payable, in full, on completion.

3.8 understand that where any other service as stipulated, other than finance/investment, are utilised then any applicable terms, the Client/Investee will adhere to any applicable terms and periods as defined. In specific, the Company are representing you as their consultants/advisor on a project and that there is a consulting fee payable upon performance-related, then such fees will be determined and paid in accordance with the terms as stated in a letter or an agreement or other communication as determined and accepted by the Parties to this Agreement. 

3.9 understand that they are entering this Agreement wholly or predominantly for the purposes of a business carried out by the Client or intended to be carried out by the Client.

4. Quotations

Any quotation or investment proposal made is subject to due diligence, contract and variation at any time and is valid for 30 days, unless an extension to this time scale is agreed in writing

5. Structured Investment Fees

5.1 Whereby the Company are providing structured equity investment via Highams Saaz (Jersey) Limited, then there will be an Engagement Fee ("the Fee") payable, the details of which will be clearly defined in the Outline Proposal Document (OPD). The minimum Fee payable is £35,000 plus VAT or the equivalent in the relevant investment currency. Depending on the level of engagement and structuring, required the Fee may well be higher, and the final figures, together with terms of payment will be defined in the OPD.

5.2 Upon acceptance of the OPD and execution thereof, the Fee becomes due and payable within 14 days. The Fee is non-refundable.

5.3 Depending on the final agreed investment structure the Pre-Contract Closing Costs can be upwards of £250,000 and the Client/Investee will be responsible for all third-party Pre-Contract closing costs and will need to demonstrate their capability to fund the agreed Closing Costs upon or shortly after the execution of the OPD or the Outline Investment Proposal (OIP)  

5.4 Any other fees not mentioned in this section will be set out in the OPD/OIP but will be further defined within the respective proposal document.

6. Site introduced for purchase or Purchasers introduced to Client.

6.1 If the Company introduce a Client to the Purchaser/ Investor or vice versa, then our fees as agreed in the OIP/OPD will become payable at the exchange of contracts and would be payable immediately upon completion.  

6.2 In the event after the exchange of contract, the transaction does not complete for whatever reason, the Fee irrespectively becomes due and payable immediately.

7. Consulting and Other Services

7.1 If the Company has been retained by the Client to provide consulting services, then the provision of these services will be defined between the Client and the Company and documented in an OPD.

7.2 Payment of Consulting Fees is payable within seven days of the Client receiving the invoice and will be remitted to the Company's designated bank account.

7.3 In the event the Client cancels the Consulting Services before the end of the defined period for whatever reason then the Client will pay the remaining balance of the fees due as defined in OPD     

8. General

8.1 In all cases and where applicable there is a firm of solicitors acting on behalf of the Client in settlement of the transaction then the Company are duly authorised to submit their account to the Client's Solicitors/lawyers (who are hereby irrevocably instructed by the Client to pay the Company's Fee, by way of copy of this Agreement) for payment on completion.

8.2 In the event of any account for fees/ commission payable in accordance with this Agreement remaining unpaid for more than 14 days after the due date, interest will be payable at the rate of 5% above bank base rate, calculated daily (or part thereof) applicable after that.

8.3   Any Fee and Commission Schedule as defined in any OPD or OIP is a part of this Agreement.

These Terms of Business including any schedules are issued in an electronic format and attached to an email communication from the Company and delivery of that communication to the Client will have been deemed to have been accepted by the Client, unless to the contrary, the Client has confirmed the acceptance or declining of these terms. 

Although all due care and attention is provided to each and every case, the Company has to rely on the Information that is supplied by the potential investee/client in order to determine each projects suitability for debt and or equity investment and therefore consequently the Company and its associates will be held harmless for any provision of Information, documentation and or explanations provided by the investee/client if it is found that such information was false or inaccurate, for which the investee/client will become liable for payment of any losses, time spent or costs incurred by the Company and or by its subsidiaries or direct associates.  

The applicant/Client/Investee is duly informed that by completing this Application does not guarantee any investment or finance in their respective projects.

The signatory, as noted below, is authorised to act on behalf of the company/ client/ Investee in completing this application form and applying for a structured investment as outlined in this Application and;

 

The signatory is aware that in signing this Application, they are confirming that they fully understand the Terms of Business that will become binding upon execution.

 

1.    I/We confirm that;

• the Information in this application form is true and complete, including any answers which have been completed by someone else.
• I have the necessary approvals from the board of directors and that I am authorised to commit the company as noted below.
• The company at the time of completing this Application is solvent and that it has made sufficient provisions, revenue, funds available on deposit to last a minimum of 4 months.

 

2.    I/We understand that;

• the closing costs can be and have or will make arrangements to cover such costs and provide proof of capability.
• upon acceptance of an Outline Proposal Document (OPD) or Outline Investment Proposal (OIP) an Engagement Fee is payable and that the company has funds to meet this obligation.