Warning Statement
You or your Company are about to commit to a Confidentiality Agreement as a pre-requisite of Deans Property Pty. Ltd. disclosing to you certain Confidential Information in relation to a business, property, leasehold, development or other transaction opportunity. This is a legally enforceable document and if you have any concerns with respect thereto you should seek independent legal advice as to the full meaning and effect of the Agreement.
You and your Company:
1. Are responsible for any misuse of the Confidential Information by any of your staff, Directors, Partners, Accountants, Legal Practitioners, Bankers or other advisors; and
2. May not contact directly any owner, vendor, seller, landlord, tenant, occupier, representative, employee, supplier, customer, managing agent, authority, consultant or neighbouring owner of the business, property or opportunity to which the Confidential Information relates.
Confidential Information is the cornerstone of the commercial undertaking of Deans Property Pty. Ltd. and its clients. The Confidential Information that will be disclosed after entry into the Confidentiality Agreement has a real value to the relevant business, property, owner, seller, landlord and/or client and any intentional or inadvertent distribution, disclosure or use of same is likely to cause immediate and/or accumulative financial loss. Any threatened or actual conduct of such nature will entitle Deans Property Pty. Ltd and/or its client to seek immediate injunctive relief against you or your Company together with monetary compensation for such breach.
Agreement
This Confidentiality Agreement is made on this date.
BETWEEN Deans Property Pty. Ltd. ACN 067 210 593 a company incorporated in NSW and having its registered office at Level 1, Suite 5, 87-97 Regent Street Chippendale NSW 2008 (the Disclosing Party) of the First Part
AND
You or your company as entered below (the Recipient) of the second part.
Background
A. The parties intend to enter into discussions about the Proposed Transaction.
B. The Disclosing Party agrees to disclose Confidential Information to the Recipient for the Proposed Transaction, and on the terms stated in this Agreement.
C. The Proposed Transaction may relate to a business, property, land, building, leasehold interest, development site, tenancy, rent roll, going concern, asset sale, investment, management appointment, joint venture or any combination of those matters.
1. Defined terms and interpretation
1.1 In this Agreement:
- Associates has the meaning given in the Corporations Act 2001 (Cth).
- Business Day means a day on which banks are open for business excluding Saturdays, Sundays or public holidays in Sydney, New South Wales.
- Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or Liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
- Client means the client(s) on whose behalf Deans Property Pty. Ltd. may be acting, including any vendor, owner, seller, landlord, lessor, business owner, property owner, developer, investor, related entity or other principal connected with the Proposed Transaction..
- Confidential Information (whether or not marked confidential) means:
a. the contents of this Agreement, and that the parties are entering into discussions regarding, or may participate in, the Proposed Transaction;
b. the Intellectual Property;
c. all the Disclosing Party's information relating to its dealings, transactions, finances or affairs or that of its customers or clients;
d. all the Disclosing Party's business records and all other business and financial information;
e. any information relating to the Disclosing Party which, by its nature, places or potentially places the Disclosing Party at an advantage over its present or future business competitors; or
f. any information that would otherwise at law be considered secret or confidential information.
g. any information concerning the business, assets, goodwill, intellectual property, systems, staff, suppliers, customers, trading records, financial performance, stock, plant and equipment, licences, permits, contracts, lease arrangements or operational affairs of any business connected with the Proposed Transaction;
h. any information concerning any property, land, building, premises, title, ownership, vendor, seller, landlord, lessor, tenancy, tenant, occupier, lease, licence, rent, outgoings, incentives, arrears, disclosure statements, building services, improvements, fixtures, fitout, plant and equipment, plans, surveys, photographs, floor areas, access arrangements, easements, encumbrances or property management information;
i. any planning, zoning, development approval, highest and best use, feasibility, development potential, environmental, heritage, contamination, building, services, structural, survey, engineering, town planning, valuation, market appraisal, sales evidence or due diligence information relating to any property or opportunity;
j. any transaction information, including the identity of the opportunity, asking price, proposed sale price, reserve, vendor expectations, buyer interest, offers, counteroffers, negotiation status, timing, commercial strategy, sale method, whether the opportunity is public or off-market, and any communications with the Agent, Client or their advisers; and
k. any notes, copies, extracts, summaries, analyses, reports, memoranda, valuations, feasibilities, emails, records or materials prepared by the Recipient or its advisers that contain, reflect or are derived from the Confidential Information.
- Disclosing Party includes any Client on whose behalf Deans Property Pty. Ltd. may disclose Confidential Information.
- Proposed Transaction means any proposed sale, purchase, acquisition, disposal, lease, assignment, licence, management agreement, rent roll transaction, business sale, going concern sale, asset sale, property sale, development, investment, joint venture, funding, project, consultancy, appointment or other commercial transaction or opportunity involving the Recipient and the Client, whether relating to a business, property or both.
- Property means any land, building, premises, tenancy, leasehold interest, licence area, development site, strata lot, freehold interest, leasehold interest, going concern, business premises or related property asset connected with the Proposed Transaction.
1.2 The existing rules of interpretation should otherwise be retained. References to a thing include any part of that thing and references to a document include all amendments, supplements and attachments.
2. Acknowledgements
2.1 The Recipient acknowledges that the terms of this Agreement are reasonable in all the circumstances; breaching this Agreement is harmful to the Disclosing Party or its Associates, assigns or successors; damages may be inadequate compensation; equitable relief may be required; and if not for the Recipient entering into this Agreement, the Disclosing Party would not have entered into discussions regarding the Proposed Transaction or shared Confidential Information.
2.2 The Recipient acknowledges that the Confidential Information may concern valuable business, property, leasing, development, valuation, planning, transaction and client information and that unauthorised use or disclosure may cause immediate and serious commercial loss to the Disclosing Party and/or the Client.
3. Application and term
3.1 This Agreement applies to all of the Confidential Information the Recipient gains access to or becomes aware of, whether before or after the date of this Agreement.
3.2 This Agreement does not merge, and the confidentiality obligations created by it are not released when discussions about the Proposed Transaction end. It continues whilst any Confidential Information remains confidential.
4. Benefit of this Agreement
4.1 The Recipient acknowledges that the undertaking of confidentiality given to the Disclosing Party is for the Disclosing Party's benefit and that of its Associates, or any third party associated with the Disclosing Party.
4.2 To the extent that an acknowledgement, confirmation, waiver or undertaking operates in favour of the Disclosing Party's Associates or a third party associated with the Disclosing Party who is not a party to this Agreement, including any Client, this Agreement is in favour of, and enforceable by, that party or by the Disclosing Party as trustee for that person.
5. Protecting Confidential Information
5.1 The Recipient must, unless stated otherwise in this Agreement, or with the Disclosing Party's prior written consent:
a. not use or exploit the Confidential Information except for the Proposed Transaction;
b. not disclose any Confidential Information;
c. keep all Confidential Information disclosed to the Recipient under the Recipient's control;
d. keep all Confidential Information confidential, and take all reasonable physical and legal steps necessary to prevent it being used or disclosed;
e. not make any written notes, copy, reproduce, retain, store, record, computerise, document or duplicate any part of the Confidential Information except as strictly necessary to evaluate the Proposed Transaction;
f. immediately notify the Disclosing Party if the Recipient becomes aware of or suspects that the Confidential Information has been or may be used or disclosed;
g. do anything reasonably required by the Disclosing Party to prevent, restrain or mitigate the consequences of a breach of this Agreement or of the Confidential Information being used or disclosed;
h. reasonably assist the Disclosing Party in connection with any action or investigation about a possible, actual or threatened unauthorised disclosure or misuse of the Confidential Information; and
i. not make any improvements or modifications to or derivations or discoveries from any of the Confidential Information.
5.2 The Recipient must not use the Confidential Information to compete with, circumvent, damage, approach, solicit, interfere with or obtain an advantage over the Disclosing Party, the Client, any owner, vendor, landlord, tenant, occupier, business, employee, supplier, customer, consultant or other party connected with the Proposed Transaction.
5.3 The Recipient must not directly or indirectly disclose the existence of the Proposed Transaction, the identity or location of any business or property, the identity of the Client, the fact that the business or property may be available, or any transaction strategy, pricing or negotiation information, except as permitted under this Agreement.
6. Disclosing Confidential Information
6.1 The Recipient may use the Confidential Information solely for the purpose of evaluating the Proposed Transaction.
6.2 The Recipient may only disclose Confidential Information to its relevant employees, bankers, financiers, accountants, legal practitioners and other professional advisers as necessary to evaluate the Proposed Transaction, provided those persons are informed of the confidential nature of the information, are directed to use it only for the Proposed Transaction, and are not permitted to make any unauthorised disclosure or contact.
6.3 The Recipient may also disclose Confidential Information as required by law, if the information is in the public domain otherwise than by being disclosed in breach of this Agreement, or if required to comply with an obligation in this Agreement.
6.4 The Recipient is liable for the act or omission of any person to whom the Recipient has provided Confidential Information under this Agreement, which if that person had entered into this Agreement, would be a breach of this Agreement.
6A. No contact, no circumvention and controlled inspections
6A.1 Unless the Disclosing Party gives prior written consent, the Recipient must not directly or indirectly contact, approach, communicate with, solicit, negotiate with or seek information from any Client, owner, vendor, seller, landlord, tenant, occupier, employee, contractor, supplier, customer, managing agent, neighbouring owner, authority, consultant, financier or adviser connected with the business, property or Proposed Transaction.
6A.2 All enquiries, inspections, requests for information, offers, negotiations and communications concerning the Proposed Transaction must be directed through the Disclosing Party or such other person nominated in writing by the Disclosing Party.
6A.3 The Recipient must not enter, inspect, photograph, record, measure, survey, test, advertise, promote or otherwise access any property or business premises, or speak with staff, tenants, occupiers or customers at the premises, except by prior appointment arranged through the Disclosing Party.
6A.4 The Recipient must not seek to circumvent the Disclosing Party or exclude the Disclosing Party from any transaction, arrangement or negotiation concerning the business, property, Client or Proposed Transaction introduced or disclosed by the Disclosing Party.
6A.5 The obligations in this clause apply whether the Proposed Transaction proceeds directly, indirectly, through a related entity, through an Associate or through any other person introduced to the opportunity by the Recipient.
7. Returning or destroying Confidential Information
7.1 The Recipient must immediately when requested in writing by the Disclosing Party or when this Agreement ends return to the Disclosing Party all Confidential Information or, if required by the Disclosing Party, destroy all Confidential Information and provide evidence in the form reasonably required by the Disclosing Party confirming return or destruction.
7.2 The Recipient may retain one copy of documents containing Confidential Information where required by applicable laws, regulations, professional standards, ethical standards, practices, codes or insurance policies, and Confidential Information which is held electronically and cannot using commercially reasonable efforts be permanently deleted because of automated backup or archiving systems.
8. Personal and Sensitive Information
8.1 Unless expressly stated otherwise, the Recipient must not use Confidential Information contrary to the Australian Privacy Principles.
8.2 The Recipient must comply with the Australian Privacy Principles relating to Personal Information and Sensitive Information disclosed to it by the Disclosing Party and with the Disclosing Party's privacy policies as communicated to it.
8.3 The Recipient agrees to indemnify the Disclosing Party on demand from and against any Liability incurred by the Disclosing Party because of the Recipient's breach of this clause 8.
9. Intellectual Property
9.1 Any improvement or modification to or discovery from any part of the information comprised in the Disclosing Party's Intellectual Property, whether attributed wholly or partly to the Recipient, becomes and remains the Disclosing Party's property.
9.2 The Recipient acknowledges that it has no proprietary right or interest in the Disclosing Party's Intellectual Property and must not use it for any commercial purpose other than evaluating the Proposed Transaction.
10. Content of information and due diligence
10.1 Nothing in this Agreement obliges the Disclosing Party to disclose information to the Recipient. The Disclosing Party has an absolute discretion about the information it discloses.
10.2 The Recipient must assess the information disclosed by the Disclosing Party and satisfy itself about the accuracy, content, legality and completeness of the Confidential Information.
10.3 Unless otherwise agreed in writing, the Recipient acknowledges that the Disclosing Party makes no representation or warranty, express or implied, about the accuracy, content, legality or completeness of the Confidential Information; is not obliged to notify the Recipient or provide further information if it becomes aware of any inaccuracy, incompleteness or change; and is not liable for any direct or indirect damage arising from the Recipient using information provided directly or indirectly.
10.4 The Recipient acknowledges that any information concerning a business, property, lease, tenancy, planning control, development approval, building condition, valuation, market appraisal, feasibility, trading performance, rent, outgoings, tax, finance, legal issue or other matter may have been supplied by a Client or third party and may not have been independently verified by the Disclosing Party.
10.5 The Recipient must rely on its own enquiries, inspections, due diligence and professional advice, including legal, accounting, financial, valuation, planning, building, environmental, tax and property advice, before entering into any transaction.
10.6 Nothing in this Agreement obliges the Client, owner, vendor, landlord or Disclosing Party to proceed with any transaction, accept any offer, continue negotiations, provide further information or grant exclusivity to the Recipient.
11. Indemnity
11.1 The Recipient indemnifies and keeps the Disclosing Party, including any Client, indemnified against all Claims and Liabilities arising out of or in connection with the Recipient or the Recipient's employees, bankers, financiers, accountants, legal practitioners and other professional advisers breaching this Agreement.
11.2 The indemnity in clause 11.1 is a continuing obligation, separate and independent from the Recipient's other obligations and survives this Agreement ending.
11.3 It is not necessary for the Disclosing Party, including any Client, to incur expense or make any payment before enforcing its right of indemnity in clause 11.1.
12. General
12.1 Law and jurisdiction: This Agreement is governed by the law of New South Wales. The parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.
12.2 This Agreement may only be amended in writing by all parties.
12.3 This Agreement may be signed in counterparts and electronic signatures are sufficient to bind the parties.
12.4 Each party must do or refrain from doing whatever is reasonably required to give effect to this Agreement, both before and after it is signed.
12.5 A party must not, without obtaining the other party's written consent, assign or novate this Agreement or any right under it.
12.6 Notices may be delivered by hand, post or email to the address or email address notified by the relevant party.
12.7 If all or any part of a term of this Agreement is unenforceable or invalid, it must where possible be interpreted narrowly as necessary to allow it to be enforceable and valid, or if that is not possible, severed from this Agreement.
12.8 The failure of either party to enforce any term of this Agreement is not a waiver of their right to enforce any term at any later time. A right may only be waived in writing, signed by the parties.
12.9 Unless expressly stated otherwise, each party agrees to pay their own costs associated with preparing and finalising this Agreement and obtaining independent advice about this Agreement.
Important Notice to Recipient
Deans Property Pty. Ltd. is an agent of the Seller and/or the relevant Client, owner, vendor, landlord or business owner and neither it nor its employees are financial advisors, valuers, building consultants, town planners, lawyers or tax advisers. Deans Property Pty. Ltd. does not investigate or make any professional or other judgement in relation to the material supplied by the Seller or other third parties and as such Deans Property Pty. Ltd. does not warrant the veracity or accuracy of the Confidential Information. The Recipient must satisfy itself and conduct its own enquiries in relation to all of the Confidential Information supplied pursuant to this Agreement.