Mitre 10 Hardware, $1.8m Avg Turnover, 40 yrs strong, GP Margin 40%

CONFIDENTIALITY DEED

• The Donor holds a duty of confidentiality to its clientele and any other persons it holds information on or about.
• The duty of confidentiality is enforceable by law.
• The Donor is prepared to undertake discussions with the recipient and to make available to the recipient information regarding the undertaking described in the Schedule A. The donor does so upon the recipient’s express undertaking that they will retain in confidence all information the recipient may gain or the donor may disclose to them in this regard.
• The information disclosed under this deed remains confidential and any information obtained by the recipient cannot be disclosed unless its disclosure is permitted by the laws of the jurisdiction.
• The Recipient undertakes to promote, uphold and comply with the Estate Agents Act 1980 (Vic) and Property and Stock Agents Act 2002 (NSW).

This deed is governed by the laws of Victoria and New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of those states.

In the interpretation of this deed:

• References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
• Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders, and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
• Grammatical forms of defined words or phrases have corresponding meanings;
• Parties must perform their obligations on the dates and times fixed by reference to the capital city of Victoria;
• Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
• If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
• References to a party are intended to bind their executors, administrators and permitted transferees;
• Obligations under this deed affecting more than one party bind them jointly and each of them severally;
• Confidential information means all personal and corporate information acquired by the recipient from the donor relating to the undertaking described in the Schedule A. This includes all financial, management and marketing information, all research, plans or other documentation, and all other information imparted in discussions or obtained through inspections or by any other method from the donor or the agents, advisers, consultants, employees or contractors of the donor. Information already in the public domain or that is proven to have been within the knowledge of the recipient is not confidential for the purposes of this deed.
• Personal information:
• Personal information includes information or an opinion about an identified individual, or a reasonably identifiable individual:
  • whether the information or opinion is true or not; and
  • whether the information or opinion is recorded in a material form or not.
    • This includes but is not limited to:
      • Name;
      • Address;
      • Phone number;
      • Date of birth;
      • Details of private or family life;
      • Racial or ethnic origin or identification;
      • Political opinion;
      • Religious beliefs;
      • Sexual orientation;
      • Employment records;
      • Criminal record;
      • Credit information; and
      • medical records.
• The purpose of this Deed of Confidentiality agreement is to:
• ensure compliance with all privacy laws, regulations and regulatory bodies codes surrounding the storage, collection and disclosure of personal information obtained by or for the Donor and shared with the Recipient during the performance of its duties.
• safeguard the confidentiality of information obtained by the Recipient from the Donor while making enquiries to purchase the business;
• make provisions for maintaining confidentiality in the collection, recording, accessing, storage, dissemination, and disposal of information;
• ensure that the information that is collected during the provision of business broking services are only used for the purpose in which it was obtained;
• To warrant that any disclosures that do occur are done so with either:-
  • with the informed consent of the relevant client or a person with legal authority to act on behalf of the client;
  • where there is a legal obligation to do so, including where there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information; or
  • when consulting colleagues, or during supervision or professional training, provided the business broker
    • On the basis that identity of clients and associated parties involved are concealed; or
    • On the client’s consent, and on the prior notice to the recipients of the information that they are required to preserve the client’s privacy, and obtains an undertaking from the recipients of the information that they will preserve the client’s privacy.
• Where the disclosure is permitted by law or code disclosure is only of the information that is necessary to achieve the purpose of the disclosure; and
• To promote the protection of the privacy of individuals, to promote responsible and transparent handling of personal information.
• In consideration of the donor providing the recipient with access to confidential information the recipient agrees to:
  • Treat the confidential information as subject to a duty of confidence and to only use it for the purpose of the undertaking the duties they are performing with the Donor;
  • Ensure that all information is stored in a secure environment, including in secured filing systems and on any secure devices with the appropriate firewalls and anti-virus software to prevent any data breaches.
  • Only disclose the confidential information on a need to know basis for the purpose of the undertaking of duties they are performing with JS Business Brokers.
  • Advise each person to whom the confidential information is disclosed that the recipient is subject to a duty of confidence, and that the confidential information is not to be used for any purpose other than for the undertaking of duties they are performing with JS Business Brokers.
  • Take at the recipient’s sole expense whatever steps the donor may consider necessary to enforce the duty of confidence against any person to whom the confidential information has been disclosed by the recipient and who is in breach of that duty;
  • On request provide the donor with a list of recipients;
  • Take all reasonable steps to secure and recover any data if a breach occurs;
  • Identify each document on its face as a confidential document for the eyes only of the recipient; and
  • Immediately notify the Donor of any breaches or suspected breaches of the duty of confidence or data security.
  • All confidential material including copies remain the absolute property of the Donor.
  • All confidential material including copies will be securely stored by the Recipient.
  • Ensure that all information is stored in a secure environment, including in secured filing systems and on any secure devices with the appropriate firewalls and anti-virus software to prevent any data breaches.
  • All confidential material including copies will be securely destroyed by the recipient through the use of the secure destruction means supplied by the donor. Save that copies of all client records should be held for the requisite periods as directed by the appropriate medical authorities and privacy acts, as amended from time to time;
  • Upon written demand the recipient will immediately return to the donor all confidential information and any copies thereof received by the recipient and will cause all other recipients of the confidential information to do likewise;
  • No client is to receive a copy of their file directly or personally unless the disclosure is permitted by law; and
  • All files must be handled according to the appropriate file management, ownership and access requirements as approved by the proper medical authorities and in accordance with the Privacy Acts, as amended from time to time.

The Recipient indemnifies the Donor against any loss, damage, cost or expense, whatever incurred by the donor directly or indirectly, as a result of a breach by the recipient, or other person or corporation receiving the confidential information from the recipient directly or indirectly, of any of the terms of this deed.

The rights and obligations under this deed cannot be assigned by the recipient.

Each party has relied entirely on its own enquiries in entering into this deed which contains the whole agreement between them superseding all prior oral and written communications.

A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:

• Delivered personally; or
• Posted to their address when it will be treated as having been received on the second business day after posting; or
• Faxed to their facsimile number when it will be treated as received when it is transmitted; or
• Sent by email to their email address when it will be treated as received when it enters the recipient’s information system.

I/we have read and agree with the terms and conditions of the undertakings and acknowledgements contained herein