This Agreement is in relation to Henry Schein Dental Practice Sales introduction related to a prospective sale of a Business as a going concern to the Prospective Buyer. Henry Schein Dental Practice Sales has the authority to act on behalf of Vendors to assist with the sale including but not limited to sharing of information etc. For the avoidance of doubt Henry Schein Dental Practice Sales shall act as an agent at all times.
- 1. Definitions
In this Agreement the following terms shall have the meaning as set out below: otherwise requires:
“Affiliate” means, with respect to any person, any other person (and including such other person’s respective directors, officers or employees) that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Applicable Laws” means all applicable laws, legislation, statutes, statutory instruments, regulations, codes of practice edicts, bye-laws or directions or guidance from government or governmental agencies which have the force of law whether local, national, international or otherwise existing from time to time.
“Business” means the Vendor’s Dental Practice and/or Dental business providing dental care. The Business shall be under the Henry Schein Dental Practice Sales Terms of Sale terms.
“Confidential Information” means the Vendors identity and all confidential information in respect of the Business and the fact that it is up for sale, including, but not limited to, any ideas, business methods, prices, accounts, finance, marketing, research, development, manpower plans, processes, market opportunities, intentions, design rights, product information, customer lists or details, employees’ details, trade secrets, computer systems and software, and other matters connected with the products or services manufactured, marketed, provided or obtained by the Vendor, and information concerning the Vendor’s relationships with actual or potential clients or customers and the needs and requirements of such clients’ or customers’ operations and all personal data and sensitive personal data within the meaning of the General Data Protection Regulation (GDPR).
“Party, Parties” means the entities as defined in the Recitals.
“Significant Other” means with respect to any person, his or her father, mother, stepfather, stepmother, brother, sister, son, daughter, spouse, partner living in the same household, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse.
- 2. Obligation of Confidentiality
2.1 The Prospective Buyer shall keep in strict confidence any Confidential Information and shall not use such Confidential Information for any other purpose than the purpose of the performance of this Agreement, the evaluation and the potential execution of the prospective sale. The Prospective Buyer shall protect Information with no less care than it uses to protect its own proprietary information and shall disclose it only to those of its employees or advisors who need to have access to it for the purpose of the performance of this Agreement and shall obligate those employees and advisors to the same confidentiality obligations as set forth herein.
2.2 The Prospective Buyer agrees to keep a record of Confidential Information received.
2.3 Upon written request by the disclosing Vendor, the Prospective Buyer shall without undue delay, at the election of the disclosing Vendor, return, erase or destroy any Confidential Information, including copies, etc., unless and only to the extent and only for the duration that the receiving Prospective Buyer is legally obligated to keep such Confidential Information
- Confidential Information Exclusions
3.1 The obligation of confidentiality as set out in Clause 2 shall not apply to the following where it can be evidenced by the Prospective Buyer:
3.1.1 that it was known to it or known to the public prior to the time it was received; or
3.1.2 that it became known to the public after it was received through no act confidentiality breach; or
3.1.3 receipt at any time from a third party having a bona fide right to disclose the same; or
3.1.4 that it has been developed independently without recourse to the others party Confidential Information; or
3.1.5 that it is obliged under mandatory law to disclose the Information, namely upon the order of a court or governmental authority. In the event that the receiving party is obligated to disclose Confidential Information, it shall inform the disclosing party without undue delay and give the disclosing party reasonable opportunity to mitigate or block such disclosure obligation.
- Prospective Buyer’s Obligations
- The Prospective Buyer shall not re‐direct; or use the information obtained under this Agreement to adversely affect the sale under any circumstances and/or use the information for the purpose of purchasing the Business through an alternative agent or by an Affiliate or Significant Other of the Prospective Buyer.
- In the event the Business or any interest therein is acquired by an Affiliate or a Significant Other of the Prospective Buyer during the term of this agreement or within 36 months following termination or expiry of this Agreement and unless the Prospective Buyer can prove that such Affiliate or Significant Other became aware of the opportunity to acquire the Business without any violation of Clause 2, 3 and 4 hereof, then the Prospective Buyer shall compensate Henry Schein Dental Practice Sales by paying an amount equal to the fees the Prospective Buyer would have paid if the Business had been acquired on the same terms by the Prospective Buyer.
- The Prospective Buyer shall at all times confirm to all Applicable Laws and regulations including but not limited to Data Protection Act 1998 (“DPA”) and General Data Protection Regulation 2018 (“GDPR”).
4.6 The Prospective Buyer must not contact the Local Area Team or Clinical Commissioning Group (“CCG”) regarding any practice sale, by any means unless express consent Is provided by the Vendor.
4.7 The Prospective Buyer shall carry out its own due diligence on all practice purchases and accepts that any information provided by Henry Schein Dental Practice Sales is supplied is on an information only basis provided by the Vendor and Henry Schein Dental Practice Sales shall have no liability in relation to its accuracy and/or completeness.
- This Agreement
5.1 This Agreement, all associated agreements and documentation shall be governed by the law of England and Wales and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
5.2 No relationship of agency, joint venture or partnerships will be created or will be deemed to exist between the Parties by virtue of the execution or performance of this Agreement. Unless this Agreement expressly provides otherwise, neither party will have authority to bind the other Party without the other Party’s written consent.
5.3 No person who is not a party to this Agreement shall have any right to enforce this Agreement (or any agreement or document entered into pursuant to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.
5.4 For the avoidance of doubt Henry Schein Dental Practice Sales acts as Agent and makes no representations or warranties (either express or implied) of any kind. The Agent shall have no liability relating to or resulting from any errors, inaccuracies or omissions.
5.5 The existence of this Agreement and its Terms are confidential and neither Party may disclose information about this Agreement and/or its subject matter or implementation to any person other than in confidence to their legal or professional advisers for the purpose of this Agreement only.
- Finance Referrals
6.1 The Prospective Buyer gives Henry Schein Dental Practice Sales consent to share the Prospective Buyer’s information with Henry Schein Dental Practice Sales Affiliates to provide additional services.
Henry Schein Dental Practice Sales shall refer the Prospective Buyer to the specialist dental lending team and MediFinancial who will contact the necessary banks, whom have preferential healthcare lending rates in some cases, to ascertain which funding is available to the Prospective Buyer
The Prospective Buyer shall be under no obligation to undertake any of the services.
- Deposit for Dental Practice
7.1 Where the Prospective Buyer intends to make a formal offer for a Business as part of this Agreement and such offer is accepted by the Vendor a deposit shall be required to secure the sale and such deposit may vary dependant on the size of the Business. Henry Schein Dental Practice Sales shall hold any deposit paid in client account and shall be returned to the Prospective Buyer on completion of the sale. The Prospective Buyer shall be required to agree a Deposit Schedule in the event the sale of the Business does not proceed.
- Changes to this Agreement
All changes to this Agreement shall be made with the express written consent of Henry Schein Dental Practice Sales.
