Background
- This Agreement is in relation to Henry Schein Practice Sales’ (HSPS) introduction of dental practices and/or the Business to the Prospective Buyer on behalf of the Seller.
- HSPS has the authority to act on behalf of the Seller and the Prospective Buyer to assist with the sale of the Business including but not limited to sharing of Confidential Information and any other authorised confidential information or financial information as part of the due diligence process.
- HSPS shall at all times act as agent in relation to the sale of the Business.
1. Definitions
In this Agreement the following terms shall have the meaning as set out below:
“Affiliate” means, with respect to any company, any other company (including such company’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 or shares a parent company with the company specified and in respect of the Prospective Buyer only, their Significant Other.
“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 Seller’s dental practice and all and any assets (including property if applicable) and liabilities included in the sale as part of this.
“Confidential Information” means the Sellers’ 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 Seller, and information concerning the Seller’s relationships with actual or potential Prospective Buyers or customers and the needs and requirements of such Prospective Buyers’ or customers’ operations and all personal data and sensitive personal data within the meaning of the General Data Protection Regulation (GDPR).
“Commencement Date” shall mean the date of this Agreement.
“Completion Date” means the date that the sale of the Business completes.
“Initial Period” means the period of 12 months from the Commencement Date.
“Party, Parties” means HSPS and the Prospective Buyer.
“Sale Price” means the price at which the Prospective Buyer purchases the Business.
“Seller” means the seller of the Business.
“Significant Other” means with respect to any person, his or her father, mother, stepfather, stepmother, brother, sister, son, daughter, spouse, partner, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse or such other party living in the same household or significantly connected to the Prospective Buyer.
2. Term
2.1 This Agreement shall commence on the Commencement Date and continue for the Initial Period and will automatically renew thereafter for one or more additional periods of one year until terminated by either party providing the other with not less than 60 days’ notice in writing.
2.2 HSPS shall have the right to terminate this Agreement at will at any time on giving 60 days’ notice in writing to the Prospective Buyer.
3. Obligation of Confidentiality
3.1 The Prospective Buyer shall keep in strict confidence any Confidential Information and shall not use such Confidential Information for any purpose other than the performance of this Agreement and in relation to the intended purchase of the Business. The Prospective Buyer shall protect the Confidential 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 the intended purchase of the Business and shall obligate those employees and advisors to the same confidentiality obligations as set forth herein.
3.2 If the Prospective Buyer discloses the Confidential Information to an Affiliate or any other third party in connection with the intended purchase of the Business, the Prospective Buyer agrees to ensure that the Affiliate or other third party keeps the Confidential Information confidential. The Prospective Buyer shall be liable to HSPS on a full indemnity basis for any breach of these confidentiality provisions by an Affiliate, or any other third party that the Prospective Buyer discloses the Confidential Information to, who uses it for a purpose not connected with the intended purchase of the Business.
3.3 The Prospective Buyer agrees to keep a record of all Confidential Information received and who it has disclosed the information to.
3.4 Upon written request by the Seller, the Prospective Buyer shall without undue delay, at the election of the Seller, return, erase or destroy any Confidential Information, including copies and ensure that any party the Prospective Buyer has disclosed the Confidential Information to does the same. The Prospective Buyer is permitted to retain one copy only to the extent and only for the duration necessary to comply with any legal obligation to retain such information and agrees not to use it for any other purpose.
3.5 The obligation of confidentiality as set out in Clause 3.1 shall not apply to the following where it can be evidenced by the Prospective Buyer:
3.5.1 that it was known to it or known to the public prior to the time it was received; or
3.5.2 that it became known to the public after it was received but not because of any breach by the Prospective Buyer of this Agreement; or
3.5.3 receipt at any time from a third party having a bona fide right to disclose the same; or
3.5.4 that it has been developed independently without recourse to the other party’s Confidential Information; or
3.5.5 that it is obliged under mandatory law to disclose the Confidential 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.
4. Prospective Buyer’s Obligations
4.1 The Prospective Buyer shall not re‐direct or use the Confidential Information to adversely affect the sale of the Business under any circumstances and/or use the Confidential Information for the purpose of purchasing the Business through an alternative agent or through an Affiliate of the Prospective Buyer.
4.2 In the event the Business or any interest therein is acquired by an Affiliate of the Prospective Buyer during the term of this agreement or within 24 months following termination or expiry of this Agreement and unless the Prospective Buyer can prove that such Affiliate became aware of the opportunity to acquire the Business without any violation of Clause 3, then the Prospective Buyer shall compensate HSPS 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 adhere to all Applicable Laws.
- The Prospective Buyer agrees to keep HSPS regularly informed throughout the sale of the Business and to instruct their advisors to do the same.
4.5 In the event that the Prospective Buyer chooses not to utilise all of HSPS’ services during the sale of the Business, the Prospective Buyer accepts that this does not reduce the fees due to HSPS under this Agreement.
4.6 The Prospective Buyer agrees not to contact the NHS Body Care Quality Commission, or Clinical Commissioning Group regarding the sale of the Business or in relation to any practice sale where HSPS is the agent, by any means unless express consent in writing is provided by the Sellers prior to this.
4.7 The Prospective Buyer agrees to carry out its own due diligence with the benefit, as applicable, of its own professional advisors in relation to the Prospective Buyer’s intended purchase of the Business, or any practice purchase where HSPS is agent and accepts that any information provided by HSPS is supplied on an information only basis sent for and on behalf of the Sellers and thus HSPS shall have no liability in relation to its accuracy and/or completeness.
4.8 The Prospective Buyer acknowledges that HSPS has been appointed by the Seller as their representative in this transaction. All communications, inquiries, or approaches related to the transaction must be routed solely through HSPS. The Prospective Buyer agrees not to contact the Seller directly or indirectly, unless explicitly authorised in writing by HSPS. This protocol is established to ensure that the process remains controlled, confidential, and efficient as per the Seller’s explicit instructions.
4.9 Following any viewing, meeting, or other interaction facilitated by HSPS between the Prospective Buyer and Seller, the Prospective Buyer agrees to provide feedback to HSPS within three (3) working days. If feedback is not received within seven (7) working days from the interaction, it will be assumed that the Prospective Buyer no longer has interest in the opportunity, and HSPS reserves the right to proceed with other interested parties at its sole discretion.
4.10 The Prospective Buyer agrees that if, at any point during the term of this agreement, they feel that the level of service provided by HSPS does not meet satisfactory standards, they will promptly raise any issues through a formal complaints procedure, allowing HSPS the opportunity to address and resolve such concerns in a timely manner. Any issues not raised formally during the Term will not be considered valid grounds for fee reduction, waiver, or adjustment at a later stage. Fees remain fully payable as agreed and will not be subject to renegotiation based on service issues only raised after transaction discussions are substantially concluded.
5. Finance
5.1 The Prospective Buyer gives HSPS consent to share the Prospective Buyer’s information with HSPS’ Affiliates to provide additional services.
5.2 Unless the Prospective Buyer indicates that it does not wish to receive this assistance, HSPS shall refer the Prospective Buyer to the internal finance broker 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.
5.3 The Prospective Buyer shall be under no obligation to undertake or proceed with any of the services recommended by HSPS.
6. Deposit
6.1 Where the Prospective Buyer intends to make a formal offer for the Business as part of this Agreement and such offer is accepted by the Seller, a deposit may be required to secure the sale and such deposit may vary dependant on the size of the Business. The Seller’s solicitor shall hold any deposit paid by the Prospective Buyer on account. The Prospective Buyer shall be required to agree a Deposit Schedule with the Seller, via their legal representatives, in the event the sale of the Business does not proceed which will determine in what circumstances the deposit may be forfeited if the sale does not complete.
7. Exclusion of Liability
7.1 FOR THE AVOIDANCE OF DOUBT HSPS ACTS AS AGENT FOR THE SELLERS AND PROSPECTIVE BUYER TO FACILITATE THE SALE OF THE BUSINESS TO THE PROSPECTIVE BUYER AND MAKES NO REPRESENTATIONS OR WARRANTIES (EITHER EXPRESS OR IMPLIED) OF ANY KIND IN RELATION TO THE CONFIDENTIAL INFORMATION AND THE BUSINESS OR ITS SUITABILITY FOR THE POTENTIAL BUYER. HSPS SHALL HAVE NO LIABILITY RELATING TO OR RESULTING FROM ANY ERRORS, INACCURACIES OR OMISSIONS IN THIS REGARD AND THE POTENTIAL BUYER AGREES TO RELY ON ITS OWN DUE DILIGENCE TO ASSESS THE ACCURACY OF THE CONFIDENTIAL INFORMATION AND THE SUITABILITY OF THE BUSINESS FOR ITS PURPOSE.
8. Intellectual Property
8.1 Nothing in this Agreement grants any rights to either party under any patent, copyright or other intellectual property of the other party, nor shall this Agreement grant the Prospective Buyer any rights in or to the Confidential Information of the Seller except as expressly set forth in this Agreement. No right, either express or implied, is granted to a party by this Agreement to use in any manner any name, trade name, trademark or service mark of the other party.
8.2 In relation to HSPS it shall retain all rights including but not limited to copyright in all photographs, drawings, designs, specifications, catalogues and other similar works or promotional material supplied to the Prospective Buyer by HSPS, and the Prospective Buyer shall not copy or reproduce or allow the copying or reproduction of any such works without the prior written consent of HSPS.
9. This Agreement
9.1 Save as set out in clause 9.2, this Agreement and any associated agreements and documentation shall be governed by the laws 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 laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction.
9.2 If the Prospective Buyer is situated or resident in Ireland, then the laws of Ireland shall prevail, and the courts of Ireland shall have exclusive jurisdiction.
9.3 No relationship of agency, joint venture or partnership 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 express written consent.
9.4 The parties shall at all times conform to the Applicable Laws, including but not limited to the Data Protection Act 1998 (“DPA”) and General Data Protection Regulation 2018 (“GDPR”) and any amendment to these. HSPS AND ITS AFFILIATES MAY USE YOUR PERSONAL INFORMATION TO INFORM YOU ABOUT PRODUCTS AND SERVICES WHICH MAY BE OF INTEREST TO YOU.
9.5 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.
9.6 All notices to be served under this Agreement shall be served by first class pre-paid post at the registered office or principal trading address of the intended recipient or sent by email. Notices shall be deemed served when they would ordinarily have been received in normal business hours according to the means of transmission of such notices and for email shall be deemed delivered on the date sent.
9.7 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.
10. Changes to this Agreement
All changes to this Agreement shall be recorded in writing, signed by the parties and made with the express written consent of HSPS.
