PART 1. MUTUAL SITE CONFIDENTIALITY AGREEMENT
between the parties for THE ALLBIZ HUB listing platforms including:
Including subdomains and associated entities
This website is part of a network of digital businesses referred to as THE ALLBIZ HUB. THE ALLBIZ HUB is the trading name for an incorporated group of companies reporting as ABN 56 630 339 150 and part the Mentored Business Group ACN’s 630 150 542, 630 339 150, 630 337 487, and 630 390 475. Each business entity in the group adheres to the group's policies.
The "Primary Discloser" (Deal Owner or Manager), which includes the business's owners, directors, shareholders, and employees, as well as any legally appointed consultants and agents duly authorised on their behalf, may disclose Confidential Information to the Recipient in connection with the sale of a business or asset (the Discussions).
The "Joint Discloser" (Website Operator) being THE ALLBIZ HUB ABN 56 630 339 150 and associated trading entities, it's directors, employees and contractors.
The "Primary Recipient" (Recipient and Purchaser) In consideration of the Discloser engaging with the Recipient in relation to the Discussions, the Recipient agrees to treat the Confidential Information as Confidential on the terms and conditions set out below.
Joint and Mutual Agreement between the parties.
a) Where a Party is disclosing its Confidential Information to the other Party, it will be a "Discloser" and where a Party is receiving Confidential Information from a Discloser, it will be a "Recipient".
b) All Parties mutually agree not to in any way publicly disparage, call into disrepute, defame, post negative reviews, slander or otherwise criticise the other parties reputation or such other parties' subsidiaries, brokers, affiliates, successors, agents, contractors or officers.
c) The parties mutually agree to bind each other to this Agreement.
It is agreed.
1 Confidential Information means this Agreement and all Information of the Discloser which is disclosed to or otherwise comes to be known by the Recipient, whether before or after the date of this Agreement, which is in fact or which is reasonably regarded by the Discloser as Confidential to the Discloser. This includes but is not limited to Information relating to technology, processes, products, specifications, inventions or designs used or developed by the Discloser, trade secrets and know-how and Information of a commercially sensitive nature.
Permitted Purpose means the Purpose of enabling the Recipient and the Discloser to have the Discussions.
2 The Recipient must:
(a) keep confidential all Confidential Information and, except as permitted under this Agreement, not use or disclose any of it without the Discloser's prior written consent;
(b) ensure that the Confidential Information is only disclosed to those directors, employees and professional advisers of it (and its related bodies corporate) who have a specific need to access the Confidential Information for the Permitted Purpose;
(c) ensure that those directors, employees and professional advisers of it (and its related bodies corporate) to whom the Confidential Information is disclosed comply with this Agreement; and
(d) immediately on request by the Discloser, return or destroy all copies of the Confidential Information.
3 The obligations in this Agreement do not apply to any specific Confidential Information which the Recipient can prove:
(a) is in, or comes into, the public domain other than by a breach of this Agreement;
(b) was lawfully in its possession prior to disclosure by the Discloser;
(c) was received from a third Party who is not under an obligation to the Discloser to maintain the Confidential Information in confidence and who legitimately obtained the Confidential Information; or
(d) subject to clause 4, it is required to disclose in order to enforce this Agreement or under law or a binding order of a governmental agency or court.
4 If the Recipient wishes to rely on clause 3(d), it must:
(a) inform the Discloser of the required disclosure in advance to enable the Discloser to have a reasonable opportunity to object to the required disclosure; and
(b) use all reasonable efforts to obtain Confidential treatment of such Confidential Information required to be disclosed.
5 The Recipient acknowledges that:
the Discloser owns the Confidential Information and all rights (including intellectual property rights) in it, and the Discloser reserves all rights in the Confidential Information. No rights in the Confidential Information, other than those expressly contained in this Agreement, are granted or to be implied from this Agreement. In particular, no licence is granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right now or in the future held, made, obtained or licensable by the Discloser.
6 The Recipient further acknowledges that:
the value of the Confidential Information to the Discloser is unique and difficult to assess in monetary terms; a breach by the Recipient of any of its obligations under this Agreement would irreparably harm the Discloser and damages would not be an adequate remedy for any such breach; and if the Recipient actually breaches or threatens to breach this Agreement, the Discloser will be entitled to enforce this Agreement by injunctive relief or specific performance as a remedy (in addition to other available relief) without proof of actual or special damage.
7 The Recipient indemnifies and will keep indemnified the Discloser against all claims, proceedings, liabilities, losses, damages, expenses and legal costs (on a solicitor-client basis) that the Discloser may reasonably sustain or incur as a result of any breach of this Agreement by the Recipient.
8 Each Party warrants that it has the full power and authority to enter into and perform its obligations under this Agreement.
9 This Agreement contains the entire Agreement and understanding between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
10 This Agreement may be amended only by another agreement executed by both parties.
11 The obligations in this Agreement will continue indefinitely in respect of each item of Confidential Information until such Confidential Information subsequently falls within an exception in clause 3.
12 A Party may not assign any of its rights or obligations under this Agreement without the written consent of the other Party.
13 Confidential Information will be provided electronically by data room and email and as such the Recipient authorises ongoing correspondence via email and or SMS.
14 This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of courts exercising jurisdiction there.
15. While the parties are encouraged to pursue their own transaction flow, in the absence of a transaction agreement, the parties agree to follow the process outlined below.
a) All correspondence will be directed via the agent; neither Party will contact the other in relation to the sale process.
b) The Purchaser will present an offer to purchase all or part of the business for sale in the form of an "offer" or an "expression of interest" to purchase the business or asset.
c) A deposit equivalent to 10% of the all-inclusive sale price (or equivalent to the agents fees) shall be paid to a mutual agreed trust account/
d) A formal contract OR Non-binding heads of Agreement will be prepared based on the offer. Where the parties have elected to issue a Heads of Agreement, the parties agree this will form the basis of a formal sale agreement.
e) The parties agree to complete any due diligence without delay and consider the business will remain for sale until such time as the parties' exchange contracts.
f) The parties agree to use their best endeavours to complete the sale and purchase without delays. The parties further understand and agree that unnecessary delays by either Party in the settlement process will be detrimental to the business. In particular, where key parties have been advised, such as staff, suppliers, banks and landlords.
g) Where the Purchaser does not complete the sale and commits a breach following the exchange of contracts - the Purchaser shall not be entitled to the return of the Deposit; instead, the Purchaser shall forfeit the Deposit to be released to the Vendors Agent to account for Agents fees. Additionally, the Vendor may seek to recover any deficiency in the business resale from the Purchaser.
h) Where the Vendor does not complete the sale and commits a breach following the exchange of contracts - the Vendor must return the Deposit in full and make good on any costs reasonably accrued by the Purchaser during the course of the transaction.
16 This Agreement may be executed in any number of counterparts and may be executed a) electronically via accepting "Terms of Confidentiality" or, b) email with the Recipient's details stating "I have read and accept the Terms of Confidentiality" https://drive.allbizdealroom.com/site-terms-and-confidentiality or, c) signing a printed copy or, d) signing by electronic signature.
All counterparts together will be taken to constitute one instrument.
PART 2. GENERAL WEBSITE TERMS AND CONDITIONS OF USE
General access and use by parties.
About the Website
The Website facilitates interactions between: users and members of our websites (the 'Receiver '); and Advertisers, sellers, deal owners, business owners (the 'Provider '),
making it easier for the Receiver and the Provider to locate, communicate, arrange payment and deliver the services in a fast and secure manner (the 'Services ').
Access to and use of the Website, or any of its associated products or Services, is provided by THE ALLBIZ HUB. Please read these terms and conditions (the 'Terms ') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of its products or Services, immediately.
THE ALLBIZ HUB reserves the right to review and change any of the Terms by updating this page at its sole discretion. When THE ALLBIZ HUB updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
Acceptance of the Terms
You accept the Terms by registering for the Services and/or making any payment as required under the Terms for use of the Services. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you by THE ALLBIZ HUB in the user interface.
In order to access the Services, both the Receiver and the Provider are required to register for an account through the Website (the 'Account').
As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
· Email address
· Preferred username
· Mailing address
· Telephone number
· business information
You warrant that any information you give to THE ALLBIZ HUB in the course of completing the registration process will always be accurate, correct and up to date.
Once you have completed the registration process, you will be a registered member of the Website ('Member ') and agree to be bound by the Terms.
You may not use the Services and may not accept the Terms if:
you are not of legal age to form a binding contract with THE ALLBIZ HUB; or
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
Your obligations as a User / Member
4.1.As a Member, you agree to comply with the following:
you will not share your profile with any other person;
you will use the Services only for purposes that are permitted by: the Terms; and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
you have sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify THE ALLBIZ HUB of any unauthorised use of your password or email address or any breach of security of which you have become aware;
you must not expressly or impliedly impersonate another Member or use the profile or password of another Member at any time;
any content that you broadcast, publish, upload, transmit, post or distribute on the Website ('Your Content') will always be accurate, correct and up to date and you will maintain reasonable records of Your Content. you agree not to harass, impersonate, stalk, threaten another Member of the Website (where interaction with other Members is made available to you); access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of providing the Services;
you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of THE ALLBIZ HUB;
you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from Member profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by THE ALLBIZ HUB for any illegal or unauthorised use of the Website; refrain from posting negative reviews about the website's operators, which could have a financial impact on the business and result in a claim for financial compensation against the member or user; and
you acknowledge and agree that any automated use of the Website or its Services is prohibited.
Using the Website as the Receiver
Use the site in accordance with the site's terms and conditions, refrain from disclosing (unless required by law), posting private information about advertisers, and follow all policies outlined in these conditions.
Using the Website as the Provider
Provide only honest and correct information to website visitors, respond within one business day, and follow all policies outlined in these conditions.
Since THE ALLBIZ HUB is only a facilitator in introducing the Receiver to the Provider and providing a system to make safe payment, THE ALLBIZ HUB does not hold any liability to the Receiver directly and will not personally refund them any payments made in the use of Services.
Notwithstanding the above clause, if a Receiver is unsatisfied with the services provided by the Provider or believes that they may be entitled to a refund, then THE ALLBIZ HUB requires the Receiver to: contact the Provider directly to request a refund; and if contacting the Provider is not successful after fourteen (14) days, contact THE ALLBIZ HUB through the 'Contact Us' section of the Website outlining why you believe you are entitled to a refund so we are able to determine if the Provider should be removed from the Services. If contacted by a Receiver who is requesting a refund pursuant to the above clause, the Provider agrees that it will immediately: complete the THE ALLBIZ HUB refund request form (the 'Request Form') provided on the Website; and provide both the Request Form and the email from the Receiver requesting the refund to THE ALLBIZ HUB.
If the Provider agrees to a refund it is acknowledged that the Provider will instruct THE ALLBIZ HUB to refund all or part of the payments made to the Receiver directly, less any fees and charges incurred by THE ALLBIZ HUB in processing the refund.
Both the Receiver and Provider agree that they will comply with the Refund Policy contained in this Clause of these Terms.
Copyright and Intellectual Property
The Website, the Services and all of the related products of THE ALLBIZ HUB are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by THE ALLBIZ HUB or its contributors.
All trademarks, service marks and trade names are owned, registered and/or licensed by THE ALLBIZ HUB, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
use the Website pursuant to the Terms;
copy and store the Website and the material contained in the Website in
your device's cache memory; and
print pages from the Website for your own personal and non-commercial use.
THE ALLBIZ HUB does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by THE ALLBIZ HUB.
THE ALLBIZ HUB retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
You may not, without the prior written permission of THE ALLBIZ HUB and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
Where you broadcast, publish, upload, transmit, post or distribute Your Content on the Website, then you grant to THE ALLBIZ HUB a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.
Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian
Consumer Law (or any liability under them) which by law may not be limited or excluded.
Subject to this clause, and to the extent permitted by law: all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and THE ALLBIZ HUB will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of THE ALLBIZ HUB make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of THE ALLBIZ HUB) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following: failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website); costs incurred as a result of you using the Website, the Services or any of the products of THE ALLBIZ HUB; and the Services or operation in respect to links which are provided for your convenience.
You acknowledge that THE ALLBIZ HUB Website and the Services are only intended to facilitate the interactions between the Receiver and the Provider and does not offer any services other than the Services and THE ALLBIZ HUB holds no liability to you as a result of any conduct of the Members or the misuse of Your Content by any party (including other Members).
Limitation of Liability
THE ALLBIZ HUB's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
You expressly understand and agree that THE ALLBIZ HUB, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
You acknowledge and agree that THE ALLBIZ HUB holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the Website.
Termination of Contract
If you want to terminate the Terms, you may do so by providing THE ALLBIZ HUB with 30 days' notice of your intention to terminate by sending notice of your intention to terminate to THE ALLBIZ HUB via the 'Contact Us' link on our homepage.
THE ALLBIZ HUB may at any time, terminate the Terms with you if: you have breached any provision of the Terms or intend to breach any provision;
THE ALLBIZ HUB is required to do so by law;
THE ALLBIZ HUB is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or the provision of the Services to you by THE ALLBIZ HUB is, in the opinion of THE ALLBIZ HUB, no longer commercially viable.
Subject to local applicable laws, THE ALLBIZ HUB reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts THE ALLBIZ HUB's name or reputation or violates the rights of those of another party.
When the Terms come to an end, all of the legal rights, obligations and liabilities that you and THE ALLBIZ HUB have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
You agree to indemnify THE ALLBIZ HUB, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content; any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or any breach of the Terms.
Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties ') must:
Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
If for any reason whatsoever, 30 DAYS days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the www.amr.asn.au. The most popular choices are the 'Australian Mediation Association or his or her nominee;
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
The mediation will be held in Sydney, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
Termination of Mediation:
If 6 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.