The Company provides an investment introduction service (the Service) pursuant to which the Company introduces Investors to Vendors for the purpose of the Investors investing in the Vendor’s Assets. The Vendor acknowledges and agrees that the Company has not been engaged to act as its agent in any capacity.
The Vendor agrees that the Company may provide the Vendor information to Investors. When introducing a Vendor, the Company will provide name, address, email and telephone number, together with a description of the relevant Assets. The Vendor acknowledges and agrees that while the Company will use all reasonably commercial efforts to identify suitable Investors, the Company makes no representation or warranty that the Vendor will be able to reach an agreement or execute a Sale Contract with any Investor or that any Investor will be able to settle any such Sale Contract.
Nothing in the provision of this Service or actions by the Company is intended to or shall operate to:
(a) create a partnership between the Parties;
(b) authorise either Party to act as agent for the other;
(c) grant authority to other Party to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power); or
(d) give rise to any relationship of employer and employee, agency, partnership or otherwise between the Parties.
The Company may, at its complete discretion, refer the Vendor to a Broker for the purpose of assisting the Vendor to identify an Investor and to execute one or more transactions to sell the Vendor’s Assets. The Vendor acknowledges and accepts that the Company may receive a finder’s fee from the relevant Broker for a referral. The Vendor is not obliged to enter into an agreement with any Broker referred to it by the Company.
The Vendor warrants and acknowledges that:
(a) the Company has made no representation or warranty regarding the quality, suitability or existence of any Investor;
(b) it is the legal owner of the Assets and is able transfer unencumbered title in the Assets
(c) it assumes all legal and financial responsibility for any Sale Contract that it enters into with an Investor;
(d) the Vendor is solely responsible for conducting its own investigations, searches and enquiries regarding the suitability of any Sale Contract it enters into with any Investor;
(e) it is solely responsible for any and all costs and fees (including legal fees, registration and transfer fees) associated with or arising from any Sale Contract or dispute with any Investor;
(f) the Company accepts no responsibility for any loss, costs, fees or expenses arising from or in relation to the Vendor entering into any Sale Contractor other agreement pursuant to the Service or a referral to a Broker; and
(g) the Company makes no representation or warranty as to the suitability of the Broker or the Broker’s ability to fulfil any obligation it may owe to the Investor.
In return for receiving introductions to potential Investors, the Vendor shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Vendor’s use of the Service and/or any transaction or dispute that arises from its use of the Service.
In no event shall the Company, its officers, directors, employees, agents and sub-contractors be liable to the Vendor to the extent that the alleged infringement is based on:
(a) the Vendor’s use of the Service in a manner contrary to the instructions given to the Vendor by the Company; or
(b) the Vendor’s use of the Service after notice of the alleged or actual infringement from the Company or any appropriate authority.
Limitation of liability
Except as expressly and specifically provided:
(a) the Vendor assumes sole responsibility for results obtained from the introductions by the Company, and transactions resulting from such use;
(b) the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Vendor in connection with the Service, or any actions taken by the Company at the Vendor’s direction;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Service provided by the Company;
(d) the Service and information regarding any Assets or Investors are provided to the Vendor on an “as is” basis; and
(e) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising as a result of the Vendor accessing the Service.
The Company will introduce the Vendor to Investors on an exclusive basis for the Exclusive Period, after which time if the Vendor has not executed an Sale Contract with the Investor, the Company may introduce the Vendor to other Investors or refer the Vendor to a Broker.
(a) may use the Confidential Information of the other party solely for the purposes of accessing the Service;
(b) except as permitted under this clause, must keep confidential all Confidential Information of the other party; and
(c) may only disclose Confidential Information of the other party to persons who:
While using the Service and for a period of 12 months thereafter, the Vendor will not, either directly or indirectly, without written consent from the Company:
(a) employ, canvass, solicit, entice or engage any of the Company’s employees, staff or servants, (Personnel) to terminate their employment with the Company;
(b) employ, engage, retain or source any of the Company’s Personnel for any business activities that are of a competitive nature to the Company’s business;
(c) canvass, solicit, entice or engage any of the Vendors introduced by the Company; and
(d) directly or indirectly interfere with or engage, procure, endeavour to entice away, aid, abet or counsel any of the Vendors or other Investors for any activities which are of a competitive nature to the Company’s business.
The Company may cease offering the Service and the Vendor may cease to use the Service at any time giving the other party written notice.
As used herein:
(a) Asset means real, personal or intellectual property, rights, claims
(b) Broker means any licensed Real Estate Agent or Business Broker introduced by the Company for the purposes of assisting the Vendor with finding and purchasing Suitable Assets.
(c) Claim means a claim, action, demand, damage, loss, liability, cost, charge, expense (including legal costs on a full indemnity basis), outgoing, fine or payment.
(d) Confidential Information of a Party means information of a confidential nature including information about its business, operations, strategy, technology, customers, affairs, employees, suppliers or clients, but does not include any information that is in the public domain, other than through a breach of confidence.
(e) Consequential Loss means any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity.
(f) Exclusive Period means four (4) weeks following the receipt by the Investor of the Vendor’s details.
(g) Intellectual Property means any inventions, designs, formulas, know-how, processes, business methods, patents, trademarks, copyrights, ideas or images used in providing the Service.
(h) Sale Contract means a contract for the sale of the Vendor’s Assets executed by the Vendor and an Investor introduced by the Company.
The use of the Service is governed by the laws of New Zealand. In the event of any dispute arising out of or in relation to the Service, the Investor agrees that the exclusive venue for resolving any dispute shall be in the courts of New Zealand.