***THE FOLLOWING IS NOT A LEGAL DOCUMENT. PLEASE CONSULT AN ATTORNEY WHEN DRAFTING AN AGGREMENT***
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT is made and entered into as of the ____ day of ______ 20__, by and between _____________________________ (“Seller”) and ________________________, (“Buyer”).
W I T N E S S E T H:
WHEREAS, Buyer is interested in pursuing the purchase of
(Address:)__________________________________________________. (Address:)__________________________________________________. (Address:)__________________________________________________.
(collectively, the “Transaction”)
To assist Buyer in the evaluation of this Transaction, Seller will provide Buyer with certain information (defined below as “Evaluation Material”). Furthermore, during the process of the Transaction, Buyer and Seller may each disclose to the other certain information concerning such disclosing party and/or its subsidiaries (a party hereto when disclosing such information being hereinafter collectively referred to with such subsidiaries as a “Disclosing Party” and a party hereto when receiving such information being hereinafter collectively referred to with such subsidiaries as the “Receiving Party”); and
WHEREAS, the parties are willing to disclose such information to each other upon the terms hereinafter set forth;
WHEREAS, Buyer agrees that all offers and negotiations with regard to the Transaction will be conducted exclusively through the Seller’s Broker.
NOW, THEREFORE, for and in consideration of the mutual covenants of the parties herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. EVALUATION MATERIAL. As used in this Agreement, the term “Evaluation Material” shall mean any information about the Disclosing Party furnished to the Receiving Party by or on behalf of the Disclosing Party in connection with the Transaction and shall also include any notes, analyses, compilation, studies and other materials prepared by the Receiving Party or the Receiving Party’s Advisors (as defined below) containing or based in whole or in part on any such information. The term “Evaluation Material” shall also include (i) the fact that information has been made available to the Receiving Party for purposes of the Transaction, (ii) the fact that discussions or negotiations concerning the Transaction are taking place, and (iii) any of the terms, conditions or other facts relating to the Transaction. Evaluation Material shall not include information which (i) is already in the Receiving Party’s possession at the time of entering into this Agreement if such information is not known by the Receiving Party to be subject to another confidentiality agreement with the Disclosing Party or another party, (ii) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or the Receiving Party’s Advisors, (iii) becomes available to the Receiving Party on a nonconfidential basis from a source other than the Disclosing Party or the Disclosing Party’s agents or advisors, provided that such source is not known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party, or any other party with respect to such information, or (iv) is independently developed by the Receiving Party (although Receiving Party is not obligated to provide to Disclosing Party any such information. However, if such information is provided, it will be deemed to fall within the definition of “Evaluation Materials”).
2. USE OF EVALUATION MATERIAL. The Receiving Party hereby agrees that the Evaluation Material shall be used only in connection with the Receiving Party’s consideration of the Transaction, shall be kept confidential by the Receiving Party and the Receiving Party’s officers, employees, directors and Advisors and shall not be disclosed to any other person, unless in the opinion of the Receiving Party’s counsel such disclosure is required by law, and except as otherwise permitted in this Agreement. Such disclosure may be made (i) to the Receiving Party’s directors, officers and employees who have a reasonable need to know the contents thereof in connection with the Transaction, (ii) to the Receiving Party’s attorneys, accountants, partners, independent contractors, investors, financial advisors, lenders, and other representatives and agents (collectively “Advisors”) who are assisting the Receiving Party in connection with the Transaction, and (iii) to any other person to whom the Disclosing Party agrees in advance in writing, provided in each case that such disclosure is conditioned upon the agreement of the person to whom the Receiving Party provides Evaluation Material to keep it confidential in accordance with this Agreement and that the Disclosing Party reserves the right to request that any such person join in this Agreement directly. The Disclosing Party shall have the right to hold the Receiving Party responsible for any breach of this Agreement by any person to whom the Receiving Party furnishes Evaluation Material, it being understood that the term “person” as used in this Agreement shall be broadly interpreted to include any entity, group or individual.
3. DISCLAIMER OF ACCURACY AND COMPLETENESS. Although the Disclosing Party has endeavored to include in the Evaluation Material information known to the Disclosing Party which the Disclosing Party believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands that neither the Disclosing Party, nor any of its respective representatives, agents or Advisors, have made or make any representation or warranty as to the accuracy or completeness of the Evaluation Material and that they shall have no liability to the Receiving Party or any of the Receiving Party’s agents or Advisors resulting from the use of the Evaluation Material except as may otherwise be provided in any definitive Agreement that may be entered into between the Receiving Party and the Disclosing Party regarding a Transaction between the Disclosing Party and the Receiving Party .
4. INJUNCTIVE RELIEF. It is understood and agreed that damages may not be a sufficient remedy for breach of this Agreement by the Receiving Party, the Receiving Party’s agents or the Receiving Party’s Advisors and that the Disclosing Party shall be entitled to seek specific performance and/or injunctive relief as nonexclusive remedies for any such breach. Notwithstanding the foregoing, in any civil action brought by the Disclosing Party to enforce or recover under this Agreement, the Disclosing Party shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees.
5. INDEMNIFICATION. Buyer herewith understands that the marketing and sale of these properties is considered to be the principle means of the Broker’s livelihood. Buyer agrees that it shall make no disclosures or contacts that circumvent the Broker-commissionable activities. Further, Buyer recognizes that it is the Broker’s business practice to create relationships between Buyers and Sellers. As such, the Broker may cause a direct relationship between Buyer and Seller to expedite the sale of the property. This is not to be construed to be a relinquishment of Broker’s responsibilities, but rather a stronger conduit to ensure and effect a close of escrow. Accordingly, Buyer shall indemnify and hold Seller and Broker/Seller harmless from and against any claims, causes of action or liabilities, including, without limitation, reasonable attorney's fees and court costs which may be incurred with respect to any claims for other real estate commissions, Broker’s fees or finder's fees in relation to or in connection with the property to the extent claimed, through or under Seller.
6. EFFECT OF DEFINITIVE AGREEMENT. In the event that Seller enters into a definitive Agreement with Buyer regarding a Transaction between Buyer and Seller, the provisions of this Agreement shall be superseded by such definitive Agreement and none of the restrictions and provisions contained herein shall have any further force or effect except to the extent they may be specifically contained in such definitive Agreement. Should such a definitive agreement not be entered into between the parties, then the parties agree that their mutual obligations set forth herein with respect to the confidentiality and security of all Evaluation Material shall remain in full force and effect for a period of __________(___) years following the date hereof, unless otherwise expressly agreed to in a subsequent written agreement between the parties.
7. NOTICES. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by either party to the other party pursuant to this Agreement shall be in writing and shall be hand delivered (including delivery by courier so long as a receipt or confirmation of delivery is obtained), sent by Federal Express or other recognized overnight delivery service, mailed by firstclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by facsimile transmission (followed by delivery of the original of such document), addressed as follows:
If to Buyer:
_______________
_______________
_______________
If to Seller:
_______________
_______________
_______________
Either party hereto may designate by notice, in the manner herein above provided, a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request or communication which shall be mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, the affidavit of messenger or telephonic confirmation of receipt (in the case of a facsimile transmission) being deemed conclusive but nonexclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
8. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State where the Seller’s principal place of business is located without regard to its conflict of laws rules.
9. MODIFICATIONS AND CHANGES. This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all other prior agreements and understandings between the parties with respect thereto, whether written or oral. This Agreement may only be amended or modified by a written document executed by all parties hereto. There are no representations or warranties, express or implied, other than those contained herein.
10. SEVERABILITY. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable by reason of any rule of law, administrative or judicial provision or public policy, all other provisions of this Agreement shall nevertheless be construed so as to remain in full force and effect.
11. HEADINGS. The headings contained herein are for convenience of reference only and are not intended to define, limit, expand or describe the scope or intent of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date first set forth above.
BUYER SELLER
By: _________________________________ By: _________________________________
Title: _________________________________ Title: _________________________________
