This Non-Disclosure Agreement is entered into in connection with the envisaged sale (the “Transaction”) of the above-mentioned real estate. Kuoni Mueller & Partner AG (“KM&P”) is acting as Transaction advisor.
You have expressed interest in a potential purchase of the above-mentioned real estate. Since the information that KM&P and the Seller intend to disclose or provide to you is valuable and proprietary confidential information, both parties require that such information be held in confidence and will only be used according to the following conditions:
- Confidential “Transaction Data” includes all information or data made available to you by KM&P and the Seller (including to your representatives, responsible individuals, board members, company officers or any other employee, partner, shareholder, consultant, agent, or advisor (collectively, the “Representatives”)), whether in oral, written, electronic or other form and whether directly or indirectly. You agree to maintain Transaction Data in strict confidence and to use the Transaction Data only for the purpose to evaluate whether to enter into a Transaction.
- Unless otherwise explicitly stated in this Non-Disclosure Agreement, you and your Representatives shall keep the Transaction and the Transaction Data confidential and shall not be permitted to divulge Transaction Data in any manner, whether directly or indirectly, whether all or in part, without KM&P’s prior written consent or the prior written consent of the Seller.
- An exception to this Non-Disclosure Agreement applies regarding data already known to you or that will become known to you on a non-confidential basis. As well as data that is or will become publicly known through no fault of your’s and by reason other than a breach of this Non-Disclosure Agreement.
- You hereby acknowledge that the Transaction Data shall only be used for the examination and potential negotiation of the Transaction. In particular, the Transaction Data shall not be used to the detriment of the Seller or its associated companies, either directly or indirectly.
- You may disclose the data only to those Representatives who need it for the evaluation, the preparation and/or the carrying out of the Transaction and who have previously been informed about the confidentiality of the Transaction Data. The Representatives are obliged to act in accordance with the conditions of this Non-Disclosure Agreement. You shall impose the obligations arising from of this Non-Disclosure Agreement on them to this end. Notwithstanding this, you remain liable to us and the Seller for any breach of this Non-Disclosure Agreement by yourself or any of your Representatives. You shall keep a list with the names of your Representatives which you will disclose to us at any time on our request. We reserve the right to submit an identical Non-Disclosure Agreement to your Representatives or to one of them for signing without obligation to give a reason. In this case, you will use best efforts to work towards getting your Representatives to sign this Non-Disclosure Agreement.
- Apart from the exceptions provided in the former clause, you or your Representatives shall not directly or indirectly inform any natural person, legal entity or authority or give them notice by any other means without our prior written consent, that discussions and /or negotiations regarding the proposed Transaction are taking place or took place. Furthermore, no conditions, circumstances or other facts relating to the proposed Transaction may be disclosed to them. The same applies to all further information or circumstances in connection with the Transaction, the Seller or this Non-Disclosure Agreement including your potential interest in the Transaction.
- In the case of your withdrawal from the Transaction process, and upon written request by KM&P or the Seller, you are obliged to destroy all originals and copies of the Transaction Data as well as other information that was compiled on the basis of the Transaction Data without delay. In accordance with the terms of this Non-Disclosure Agreement, you and your Representatives shall continue to keep any oral Transaction Data confidential. You shall confirm in writing that you have complied with said provision upon our request. Legal requirements for the retention remain reserved.
- KM&P has carefully collected and created the Transaction Data, to the best of KM&P’s knowledge, based on publicly available information as well as information provided by the Seller. You acknowledge that neither KM&P, nor the Seller, nor any of KM&P’s affiliates or their agents guarantee the accuracy, completeness, or usefulness of the Transaction Data. KM&P, the Seller and KM&P’s affiliates expressly disclaim any obligations arising from errors or omissions in relation to the Transaction Data. In the case of the execution of the Transaction, only the warranties and guarantees explicitly stated in the Sales Agreement shall apply.
- You also acknowledge that you can be barred from the Transaction Process without our giving reasons. This Transaction Process or the conduct of negotiations can be freely designed or changed by KM&P or the Seller at any time. The Transaction can also be negotiated with multiple prospects at the same time or in rapid succession. An agreement in relation to the Transaction will not be binding until a notarized formal agreement has been signed and exchanged. KM&P or the Seller are not obliged to negotiate or conclude a Transaction.
- You will be responsible for all costs, expenses and fees incurred by you as part of the evaluation of the Transaction and / or the preparation of the Transaction.
- You acknowledge KM&P and the Seller as sole contacts relating to the Transaction and all matters in connection with it. In particular, you shall not contact the Seller, any board members, executives, directors or other employees of the Seller or its Affiliated Companies.
- You acknowledge that you will not assert or otherwise pretend that KM&P or the Seller has given you a brokerage, agency, or similar mandate. KM&P and the Seller disclaim any payment of any form of broker or consultant fees.
- If the Parties do not consummate the Transaction, the confidentiality undertakings made in this Non-Disclosure Agreement shall nevertheless remain valid and binding for as long as and to the extent that the Transaction Data remains confidential.
- This Non-Disclosure Agreement is subject to Swiss Law. The exclusive place of jurisdiction for all disputes arising from this Non-Disclosure Agreement or otherwise in connection with the Non-Disclosure Agreement is Zurich.
- You acknowledge that the signing of the Agreement does not guarantee access to the data room, site visits or further information.
- You acknowledge that access to the data room and site visits, as well as further steps, are subject to the consent of the Seller. This agreement is entered into for the benefit of the Sellers who shall have the right to enforce it directly against you.