CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS CONFIDENTIALITY AGREEMENT dated (“Agreement”), by and between Key Property Group Pty Ltd, trading as Business Exits, a NSW registered corporation (“Broker”), and , (“Recipient”).

RECIPIENT ACKNOWLEDGEMENT OF INTRODUCTION AND CONFIDENTIALITY AGREEMENT

The undersigned Recipient acknowledges being first introduced to the business described as (“Business”), by Broker, Business Exits, and requests Confidential Information (as defined below) about the Business. Such Confidential Information shall be provided to Recipient for the sole purpose of evaluating the possible purchase by Recipient of all or part of the Business. As used in this agreement (“Agreement”), the term Recipient applies to the individual executing this Agreement and any entity on whose behalf the individual is executing this Agreement.

RECITALS:

A. The Discloser proposes to deliver certain information to the Recipient to enable the Recipient to consider whether to acquire the Business, negotiate and enter into any agreement to acquire the Business and for other purposes as agreed to between the Discloser and the Recipient from time to time (Purpose).

B. The Recipient has agreed to keep confidential all information disclosed to it by the Discloser except where otherwise provided for in this Agreement.

The parties agree as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, unless the contrary intention appears:

Advisers means legal, financial, technical and/or other advisers of a party;

Authorised Persons means in respect of the Recipient the:

(a) officers and employees of the Recipient; and

(b) any Related Bodies Corporate of the Recipient, their respective employees and officers have a need to know Confidential Information (but only to the extent that they have a need to know) and have been made aware by the Recipient that Confidential Information must be kept confidential and who have signed a confidentiality covenant in favour of the Discloser in the form in Annexure A.

Business means the Business conducted by the Discloser.

Confidential Information means, subject to clause 3.2, the following:

(a) the fact that the Recipient undertakes or proposes to undertake the Purpose;

(b) all information contained in the Information Memorandum;

(c) all information (including commercially sensitive information and technical know-how and information of the Discloser or a Related Body Corporate of the Discloser) directly or indirectly disclosed or made available by or on behalf of the Discloser to the Recipient; and

(d) all copies of the information.

Governmental Agency means any government department or office.

Information Memorandum means an information memorandum prepared by Key Property Group Pty Limited (ACN 095 863 451) in respect of an offer for sale of the Business.

Purpose has the meaning assigned to that term in Recital A.

Related Body Corporate has the meaning given to it in sections 9 and 50 of the Corporations Act 2001.

1.2 Interpretation

In this Agreement, unless the contrary intention appears:

(a) headings are for ease of reference only and do not affect the meaning of this Agreement;

(b) the singular includes the plural and vice versa and words importing a gender include other genders;

(d) a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as altered or replaced from time to time;

(e) a reference to a party includes the party’s executors, administrators and successors; and

(f) words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies, and vice versa.

2. DURATION OF COVENANTS

The obligations of the parties under this Agreement continue in full force and effect for a period of two (2) years from the date of this Agreement, notwithstanding the completion of the Purpose.

3. DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION

3.1 In consideration of the Discloser agreeing to disclose Confidential Information to the Recipient, the Recipient agrees for the benefit of the Discloser:

(a) to use all Confidential Information solely for the Purpose;

(b) subject to clauses 3.1(a), 3.2 and 3.3, to keep confidential all Confidential Information; and

(c) not to disclose the Confidential Information (otherwise than in accordance with this Agreement) without the prior written consent of the Discloser, which consent may be granted or refused at the Discloser’s discretion.

3.2 The obligations of confidentiality under this Agreement do not extend to Confidential Information that (whether before or after this Agreement is executed):

(a) is rightfully known or in the possession or control of the Recipient and is not subject to an obligation of confidence (including an obligation under this Agreement) on the Recipient to the Discloser;

(b) is lawfully generally available to the public, other than as a result of a breach of this Agreement; or

The Recipient shall, whenever practicable and permitted by law, prior to making any disclosure permitted by clause 3.2(c), advise the Discloser of the form and content of the proposed disclosure and will provide the Discloser with a reasonable opportunity to comment on the proposed disclosure.

3.3 The Recipient may disclose Confidential Information only to the Recipient’s Authorised Persons and Advisers.

3.4 The Recipient must, at its own expense:

(a) ensure that, at all times, each of the Authorised Persons and Advisers to whom Confidential Information is disclosed, keeps confidential the Confidential Information;

(b) notify the Discloser immediately if it becomes aware of any suspected or actual unauthorised use or disclosure of Confidential Information; and

(c) immediately take all steps to prevent or stop the suspected or actual unauthorised use or disclosure of Confidential Information

4. SECURITY AND CONTROL

4.1. The Recipient must, and must ensure that the Authorised Persons and Advisers to whom Confidential Information is disclosed, at its expense:

(a) establish and maintain effective security measures to safeguard Confidential Information from access or use not authorised by this Agreement; and

(b) keep Confidential Information under its control.

4.2 The Recipient must provide, and must ensure that each of its Authorised Persons and Advisers provide, the assistance reasonably requested by the Discloser in relation to any proceedings the Discloser may take or commence against any person for unauthorised use or disclosure of Confidential Information.

5. ACKNOWLEDGMENT AND INDEMNITY

5.1 The Recipient acknowledges for itself and for each of its Authorised Persons and Advisers that:

(a) it is aware that any breach of this Agreement will result in the Discloser suffering damage, for which damages may not be an adequate remedy; and

(b) in the event of an actual breach of this Agreement or any obligation of confidentiality under this Agreement, the Discloser is entitled to seek and obtain injunctive relief.

5.2 The Recipient indemnifies and covenants to keep the Discloser indemnified from and against all actual losses, damages, expenses and legal costs that the Discloser reasonably sustains or incurs directly as a result of any breach of this Agreement by the Recipient.

5.3 Notwithstanding clause 5.2, neither party shall be liable for consequential, punitive or non-economic damages.

6. RESTRICTIONS ON CONDUCT

6.1 No discussions or collusion to purchase Business

The Recipient must not (and must procure that its Authorised Persons and its Advisers do not), without the prior written consent of Discloser, directly or indirectly solicit, initiate or enter into any discussions or negotiations with any other party or person (other than Discloser) including, any other person who is or may have been provided with a copy of the Information Memorandum, has or may have entered into a confidentiality deed with Discloser similar to this Agreement, or otherwise is or may be an interested bidder in connection with the Purpose, in relation to any agreement, arrangement, proposal, expression of interest or offer, under which any one or more of them or any of their related bodies corporate may acquire, directly or indirectly, all or any part of the Business (including by way of on-sale from one person to another of all or any part of the Business).

6.2 No contact

Subject to clause 6.3, the Recipient must not (and must procure that its Authorised Persons and Advisers do not), for a period of one (1) year after the date of this Agreement, contact or communicate with any landlord, customer or supplier of Discloser or any of its related bodies corporate, except in the ordinary course of business. The Parties acknowledge that they are or may be currently engaged in competition in the same or similar business, and may already solicit the same or similar customers. Nothing contained herein nor any information provided or obtained hereunder shall be used as a basis for preventing, restraining or prohibiting the Parties from continuing to compete against each other or from soliciting the same customers, providing the confidentiality obligations hereunder are maintained.

6.3 Permissible contact

All contact and communications in relation to the Confidential Information or otherwise in relation to the Purpose or this Agreement made by the Recipient or any of its Authorised Persons or Advisers must be directed through Key Property Group Pty Ltd on behalf of the Discloser, or via such other person as the Discloser or any other authorised Discloser officer may nominate in writing from time to time.

6.4 Non‑solicitation

The Recipient must not (and must procure that its related bodies corporate, other Authorised Persons and Advisers do not), for a period of one (1) year after the date of this Agreement, without the prior written consent of Discloser, solicit, canvass, induce or encourage any officer or director of Discloser or any of its related bodies corporate to leave the employment of Discloser or any of its related bodies corporate .

7. OWNERSHIP

7.1 The parties acknowledge that this Agreement does not convey any interest of a proprietary nature, and in particular but without limitation, does not transfer any interest in any intellectual property (including Confidential Information) to the Recipient.

7.2 All Confidential Information is and will remain at all times the property of the Discloser.

7.3 Nothing in this Agreement is to be treated as granting to the Recipient or to any other person any licence or other right (whether or not of a proprietary nature) in connection with any Confidential Information except to use the Confidential Information solely for the Purpose and strictly in accordance with the provisions of this Agreement.

7.4 Immediately upon the Discloser giving notice to the Recipient, the right to use the Confidential Information ceases and the Recipient must, and must procure that all of its Authorised Persons and Advisers, immediately (at the Discloser’s option):

(a) return to the Discloser; and/or

(b) destroy and certify in writing to the Discloser the destruction of;

all the Confidential Information in the Recipient’s possession or control.

7.5 The return of Confidential Information under clause 7.4 does not affect any accrued rights or remedies that the Discloser may have against the Recipient.

8. ASSIGNMENT

8.1 A party cannot assign or otherwise transfer any of its rights, benefits or entitlements arising under this Agreement to any other party or person, unless that party shall have obtained the prior written consent of the other party

9. QUALITY OF INFORMATION AND RELEASE

9.1 The Discloser does not make or give any representation, assurance or warranty, express or implied, that the Confidential Information or any part of the Confidential Information is or will be complete or accurate and the Recipient agrees that it must make its own assessment of the Confidential Information.

9.2 Subject always to the terms of any agreement in relation to the sale and purchase of the Business between the Recipient and the Discloser, the Recipient releases the Discloser to the fullest extent permitted by law, from and against all claims, actions, damages, remedies and matters arising from or which may arise from or in connection with the provision of, or any purported reliance on, the Confidential Information.

9.3 The Discloser shall notify the Recipient if it becomes aware of any material inaccuracy, incompleteness or change in the Confidential Information.

10. NOTICES

10.1 A party giving notice or notifying under this Agreement must do so in writing:

(a) directed to the Recipient’s address specified in this clause, as varied by any notice; and

(b) hand delivered or sent by prepaid post or facsimile to that address.

10.2 The address for the Recipient is:

The address for the Discloser is:

DISCLOSER TBA

10.3 A notice, request, consent or other communication to be given must be in writing addressed in accordance with the particulars for that party given in this Agreement or to another address for a party as may be notified in writing by that party.

10.4 A communication must be delivered by hand or pre-paid post, or be sent by facsimile or electronic mail.

10.5 A communication will be deemed to be received:

(a) if hand delivered, on the next following business day;

(b) if posted, on the second business day after posting; or

(c) if sent by facsimile or electronic mail, on the next following business day, unless the receiving party has requested re-transmission before the end of that business day.

11. GENERAL

11.1 This Agreement may be executed in counterparts.

11.2 This Agreement is governed by the laws of New South Wales and each party unconditionally and irrevocably submits to the non-exclusive jurisdiction of the courts of that State.

11.3 The failure of a party at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.

11.4 Any consideration to be paid or provided for a supply made under or in connection with this Agreement, does not include an amount of goods and services tax. If a party makes a supply under or in connection with this Agreement on which goods and services tax is imposed, the consideration payable or to be provided for that supply under this Agreement, but for the application of this clause, is increased by, and the other party must also pay on demand an amount equal to, the goods and services tax payable on that supply, if any.

11.5 A variation to this Agreement shall only be effective if in writing and signed by all the parties.

Executed as an agreement.

SIGNED SEALED and DELIVERED by the said:

Name:

Job Title:

EXECUTED by DISCLOSER TBA in accordance with Section 127 of the Corporations Act 2001 (Cth) with the authority of the Director and Secretary:

…………………………………………Director/ Secretary

)

)

………………………………Director

ANNEXURE A

Confidentiality Covenant

EXECUTED BY AN EMPLOYEE OR CONSULTANT OF "THE RECIPIENT"

To: DISCLOSER TBA (Discloser)

By this deed I acknowledge that in my capacity as an employee or consultant of (Recipient) and in the course of my ordinary duties, I have been, or am to be, provided with certain Confidential Information by the Discloser.

I covenant to the Discloser that:

I have read and understood the terms of a certain confidentiality agreement (copy attached for reference) between the Recipient and the Discloser (the Agreement).
I will keep confidential and not disclose to any third party information coming into my possession pursuant to the Agreement.

Signed sealed and delivered

I warrant that I am the Recipient

I warrant that I am operating on behalf of the Recipient

Print name in full:

Date:

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