NDA for Sellers


Confidentiality agreement

between

The Seller,  

and

Jonathan Fagan Business Brokers Limited

This agreement is dated

Parties

  • The Seller
  • Jonathan Fagan Business Brokers Limited, incorporated and registered in England and Wales with company number 10750269 whose registered office is at Ty Brith, Llandegla Road, Mold CH7 4QX (JFBB)

BACKGROUND

  • The Parties are discussing, or intend to enter into discussions relating to the Proposed Transaction, which will involve the disclosure of Confidential Information by the Seller to JFBB and may result in the disclosure of confidential information from JFBB to the Seller.
  • The Parties wish to ensure that any Confidential Information disclosed to each other in connection with the Proposed Transaction remains confidential and is not used by the other Party for any purpose other than the Permitted Purpose.
  • The parties have agreed to comply with this agreement in connection with the use and disclosure of the Confidential Information.

Agreed terms

  1. Interpretation
    • The definitions and rules of interpretation in this clause apply in this agreement.
  • Business: the business and undertaking of the Seller.
  • 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 1.
  • Copies: copies of Confidential Information, including any document, electronic file, note, extract, analysis, study, plan, compilation or any other way of representing, recording or recalling information which contains, reflects or is derived or generated from, any Confidential Information.
  • Permitted Purpose: considering, evaluating, negotiating or advancing the Proposed Transaction, liaising with accountants, legal advisers, and other professional advisers solely for the purpose of soliciting professional advice or finance for the Permitted Purpose and Proposed Transaction.
  • Permitted Recipient: any person referred to in clause 1 to whom Confidential Information is disclosed by, or at the request of, JFBB.
  • Proposed Transaction: the acquisition of the Business by a third party.
    • Clause headings do not affect the interpretation of this agreement.
    • References to clauses are to the clauses of this agreement.
    • A reference to this agreement or any other agreement or document referred to in this agreement, is a reference to this agreement or such other agreement or document, in each case as varied from time to time.
    • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective successors and permitted assigns, and references to any party shall include that party's successors and permitted assigns.
    • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    • 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 CA 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 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:
      • another person (or its nominee), by way of security or in connection with the taking of security; or
      • its nominee.
    • Unless expressly provided otherwise in this agreement, a reference to writing or written excludes fax but not email.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision:
      • is a reference to it as it is in force as at the date of agreement;
      • shall include all subordinate legislation made as at the date of this agreement under that legislation or legislative provision.
    • Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  1. Confidential Information
    • In this agreement, Confidential Information means all confidential or proprietary information that is disclosed or made available (in any form or medium), directly or indirectly, by either Party or any of its officers, employees, consultants, agents or advisers) to the other Party or any of its officers, employees, consultants agents or advisers) whether before, on or after the date of this agreement, in connection with the Proposed Transaction, including:
      • the fact that the Seller is considering selling the Business, that discussions and negotiations are taking (or have taken) place concerning the Proposed Transaction and the status of those discussions and negotiations;
      • the existence and contents of this agreement;
      • all confidential or proprietary information relating to:
        • the Business, or the affairs, financial or trading position, assets, customers, clients, suppliers, employees, plans, intentions or market opportunities of the Seller; and
        • the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Business or the Seller);
      • any information, findings, data or analysis derived from the information referred to in this clause 1; and
      • any other information that is identified as being of a confidential or proprietary nature,

but excluding any information referred to in clause 2.2.

  • Information is not Confidential Information if:
    • it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed a Party to this agreement or any of its Permitted Recipients in breach of this agreement;
    • it was, is, or becomes available to a Party to this agreement on a non-confidential basis from a person who to the Party’s knowledge, is not under any confidentiality obligation in respect of that information;
    • the information was lawfully in the Party’s possession before it was disclosed by (or on behalf of) the disclosing Party, and it is not under any obligation of confidence in respect of that information; or
    • the parties agree in writing that the information is not confidential.
  1. JFBB’s obligations
    • In return for the Seller making Confidential Information available to JFBB, JFBB undertakes that it shall:
      • keep the Confidential Information it receives secret and confidential;
      • not use or exploit the Confidential Information in any way, except for the Permitted Purpose;
      • 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, the terms of this agreement;
      • not make any Copies, except as expressly permitted by, and in accordance with, the terms of this agreement;
      • not use, reproduce, transform or store the Confidential Information in an externally accessible computer or electronic information retrieval system, or transmit it in any form or by any means outside its usual place of business;
      • inform the Seller immediately on becoming aware, or suspecting, that Confidential Information has been disclosed to, or otherwise obtained by, an unauthorised third party.
    • JFBB shall only make such Copies as are strictly necessary for the Permitted Purpose and shall:
      • clearly mark all Copies as confidential;
      • ensure that all Copies can be separately identified from its own information; and
      • ensure that all Copies within its control are protected against theft or unauthorised access.
    • Upon receiving a written request from the Seller, JFBB shall (to the extent reasonably practicable), promptly provide to the Seller a written record of:
      • the location of all Confidential Information that has been supplied to JFBB or a Permitted Recipient;
      • all Copies that have been made by JFBB or a Permitted Recipient (excluding any Copies containing insignificant extracts from or references to Confidential Information) and where such Copies are held; and
      • the names and addresses of every person to whom Confidential Information has been disclosed by, or at the request of, JFBB.
  1. Permitted disclosure
    • Subject to complying with its obligations in clause 2, JFBB may disclose Confidential Information to:
      • those officers or employees of JFBB that need to know that Confidential Information for the Permitted Purpose;
      • the professional advisers or consultants engaged to advise JFBB in connection with the Proposed Transaction;
      • its bankers, potential investors or funders (and their respective professional advisers or consultants) for the purpose of securing financing for the Proposed Transaction; and
      • any person whom the Seller agrees in writing may receive that Confidential Information.
    • Where Confidential Information is disclosed to a Permitted Recipient, JFBB shall:
      • inform the Permitted Recipient of the confidential nature of the Confidential Information before it is disclosed; and
      • procure that the Permitted Recipient shall, in relation to any Confidential Information disclosed to it, comply with this agreement as if it were JFBB and, if the Seller so requests, procure that the Permitted Recipient enters into a confidentiality agreement with the Seller on terms equivalent to those contained in this agreement.
    • JFBB shall be liable for the actions and omissions of its Permitted Recipients in relation to the Confidential Information as if they were the actions or omissions of JFBB.
  2. Mandatory disclosure
    • Subject to the provisions of this clause 5, JFBB may disclose Confidential Information to the minimum extent required by:
      • an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction]
      • the laws or regulations of any country to which the affairs of JFBB are subject.
    • Before disclosing any Confidential Information under clause 1, JFBB shall (provided it is permitted by law to do so)
      • give the Seller as much notice of the disclosure as possible, including details of the full circumstances of the required disclosure and the Confidential Information that must be disclosed;
      • take all such steps as may be reasonable and practicable in the circumstances to agree the contents of the required disclosure with the Seller before it is made;
      • consult with the Seller as to possible steps to avoid or limit the required disclosure and to take those steps where they would not result in significant adverse consequences to JFBB;
      • gain assurances as to confidentiality from the body or authority requiring the disclosure; and
      • where the disclosure is by way of public announcement, agree the wording of such announcement with the Seller before it is made.
    • JFBB shall co-operate with the Seller (at the Seller's cost and expense) if the Seller decides to bring any legal or other proceedings to challenge the validity of a requirement to disclose Confidential Information pursuant to clause 1.
    • If JFBB is unable to inform the Seller before Confidential Information is disclosed pursuant to clause 1, JFBB shall (to the extent permitted by law) inform the Seller of the full circumstances of the disclosure and the information that has been disclosed immediately after such disclosure has been made.
  3. Authorised Contact
    • All communications with the Seller concerning the Proposed Transaction and the Permitted Purpose shall be addressed to at (Authorised Contact).
    • Except with the prior written consent of the Seller, neither JFBB nor anyone acting on its behalf, shall contact or communicate with any officer, employee, consultant, agent, adviser, landlord, banker, customer, client or supplier of the Seller or any member of its Group in connection with the Proposed Transaction
  4. Return or destruction of Confidential Information
    • If so requested by the Seller at any time by notice in writing to JFBB, JFBB shall promptly:
      • destroy or return all documents and materials containing, reflecting, incorporating, or based on any Confidential Information, that have been supplied to or generated by JFBB or any Permitted Recipient, including all Copies;
      • erase all Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form;
      • to the extent technically and legally practicable, erase all Confidential Information which is stored in electronic form on systems and data storage services provided by third parties;
      • procure that its Permitted Recipients take the steps referred to in clause 1(a) in relation to all Confidential Information in their possession; and
      • certify in writing to the Seller (by a certificate signed by a director of JFBB) that it has complied with its obligations under this clause 1.
  1. Seller's obligations
    • Subject to clause 2, the Seller undertakes that it shall (and shall procure that each member of its Group shall) keep secret and confidential JFBB's interest in the Proposed Transaction and shall take all reasonable precautions to ensure that this remains confidential.
    • The Seller may disclose JFBB's interest in the Proposed Transaction to:
      • the officers or employees of the Seller where necessary for the Permitted Purpose;
      • any professional advisers or consultants engaged to advise the Seller in connection with the Proposed Transaction;
      • any person whom JFBB agrees in writing may receive this information;
      • the minimum extent required by the laws or regulations of any country to which the affairs of the Seller are subject.
  1. Indemnity
    • The Parties shall indemnify each other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by one Party arising out of or in connection with any breach of this agreement by the other Party, including as a result of the actions or omissions of any of its Permitted Recipients in accordance with clause 3.
    • If a payment due under clause 1 is subject to tax (whether by way of direct assessment or withholding at its source), the Party shall be entitled to receive such amount as shall ensure that its net receipt, after tax, in respect of the payment is the same as it would have been if the payment was not subject to tax.
  2. Reservation of rights and Buyer's acknowledgement
    • This agreement and the supply of Confidential Information shall not constitute an offer, representation or warranty by the Seller to enter into the Proposed Transaction or any further agreement with JFBB.
    • The Parties reserves all rights in their Confidential Information and none of the Confidential Information shall be the property of the other Party. The disclosure of Confidential Information to each other does not give the other Party any licence or other right of any nature in respect of any Confidential Information beyond the rights expressly set out in this agreement.
    • Neither the Seller nor their agents or advisers make any warranty or representation (whether express or implied) concerning the Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.
  3. Inadequacy of damages

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

  1. Duration
    • This agreement shall terminate upon completion of the Proposed Transaction.
    • Save as provided in clause 1, this agreement shall continue in full force and effect for a period of 3 years from the date of this agreement. The parties' obligations under this agreement shall not be affected by any termination of their negotiations or discussions in relation to the Proposed Transaction.
    • Termination of this agreement shall not affect any accrued rights or remedies to which a party is entitled.
  2. Entire agreement
    • This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • Each party acknowledges that in entering into this agreement it does not rely on, and 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 based on any statement in this agreement.
  3. Variation and waiver
    • No variation of this agreement shall be effective unless it is in writing and signed by all the parties (or their authorised representatives).
    • A waiver of any right or remedy is only effective if given in writing.
    • A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
  4. Costs

Except as expressly provided in this agreement, each party shall pay its own costs and expenses incurred in connection with the Proposed Transaction, including the negotiation, preparation and execution of this agreement and the evaluation and review of the Confidential Information.

  1. Notices
    • Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
      • sent by email to the following addresses (or an address substituted in writing by the party to be served):
        • Seller: (to be provided by the seller in due course)
        • JFBB: jf@jonathanfagan.co.uk
      • Any notice shall be deemed to have been received:
        • if delivered by hand, at the time the notice is left at the proper address;
        • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
      • This clause 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  1. Severance

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

  1. Third party rights
    • Except as expressly provided otherwise in this agreement, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
    • The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
  2. Counterparts

This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

  1. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Governing law and jurisdiction
    • 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.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the beginning of it.

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Signed by Jonathan Fagan
Signed On: 28/09/2023


Signature Certificate
Document name: NDA for Sellers
lock iconUnique Document ID: 01e74dfe803d8b8ad512deb687651fd2f3f8312e
Timestamp Audit
07/09/2023 17:20 BSTNDA for Sellers Uploaded by Jonathan Fagan - jbfagan@ten-percent.co.uk IP 82.68.255.158