NDA - 2nd in Market Window Business
CONFIDENTIALITYAND NON DISCLOSURE AGREEMENT dated (“Agreement”), by and between Business Exits LLC, a California limited liability company (“Broker”), and , . (“Entity”).
WHEREAS, Broker and Entity desire to exchange certain information that would help Broker and Entity discuss Georgia Tree Company LLC (“The Deal”); and
WHEREAS, in connection with The Deal, Broker may also disclose to Entity, and Entity may disclose to Broker, certain sensitive nonpublic information, concerning Broker and/or Entity, respectively; and
WHEREAS, the parties hereto desire that the exchange of such nonpublic information be subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. Certain Definitions.
(a) “Confidential Information” means any form of information provided by Broker to Entity, or by Entity to Provider, prior to the execution of this Agreement or between the execution of this Agreement and three months thereafter, provided that such information: (i) is directly related to the subject matter described above; (ii) is in writing, is in some other tangible record-bearing media or is in the form of a physical embodiment, such as a sample; (iii) is conspicuously marked “Confidential”; and (iv) is provided only after the disclosing party has given the receiving party a generic description of the information and the receiving party has consented to receive it; provided, however, that “Confidential Information” will not include any information that: (i) is at the time it is provided, or thereafter becomes, a part of the public domain other than through the act or omission of the receiving party; (ii) is lawfully in the possession of the receiving party prior to its being provided by the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party that does not have an obligation to the disclosing party; or (iv) is independently developed by the receiving party.
(b) “Broker Confidential Information” means Confidential Information provided by Broker as the disclosing party to Entity as the receiving party.
(c) “Entity Confidential Information” means Confidential Information provided by Entity as the disclosing party to Broker as the receiving party.
(a) The Broker Confidential Information will be used solely for the purposes of evaluating Broker's ability to sell The Deal, and such information will be kept confidential by Entity and each of its directors, officers, employees, agents and advisors; provided, however, that: (i) the Broker Confidential Information may be disclosed to any of Entity’s directors, officers, employees, agents and advisors (hereinafter referred to as “Entity Authorized Recipients”) who need to know such information for the sole purpose of evaluating The Deal (it being understood that each such Entity Authorized Recipient shall be informed by Entity of the confidential nature of such information and directed by Entity to treat such information confidentially, and Entity shall be responsible for any breach of this Agreement by any such Entity Authorized Recipient); (ii) any disclosure of the Broker Confidential Information may be made to a person other than an Entity’s Authorized Recipient with Broker written consent; and (iii) any disclosure of the Broker Confidential Information may be made as required by law or regulatory authority after compliance with Section 5.
(b) The Entity Confidential Information will be used solely for the purposes of evaluating The Deal, and such information will be kept confidential by Broker and each of its directors, officers, employees, agents and advisors; provided, however, that: (i) the Entity Confidential Information may be disclosed to any of Provider’s directors, officers, employees, agents and advisors (hereinafter referred to as “Broker Authorized Recipients”) who need to know such information for the sole purpose of evaluating The Deal (it being understood that each such Broker Authorized Recipient shall be informed by Broker of the confidential nature of such information and directed by Broker to treat such information confidentially, and Broker shall be responsible for any breach of this Agreement by any such Broker Authorized Recipient); (ii) any disclosure of the Entity Confidential Information may be made to a person other than a Broker Authorized Recipient with Entity’s written consent; and (iii) any disclosure of the Entity Confidential Information may be made as required by law or regulatory authority after compliance with Section 5.
3. Return. Confidential Information and all copies thereof will be returned by the receiving party to the disclosing party, and the receiving party shall not retain any copies thereof, within ten (10) days of either party’s decision not to proceed with The Deal. Any analyses, compilations, studies or other documents prepared by the receiving party in whole or in part on the basis of the disclosing party’s Confidential Information will be destroyed by the receiving party upon return of the disclosing party’s Confidential Information. Such destruction will be certified by the receiving party to the disclosing party in writing at the disclosing party’s request.
4. Confidentiality. Each party will undertake all necessary and appropriate steps to ensure that the confidentiality and secrecy of the Confidential Information is maintained. Each party will arrange for appropriate contacts for due diligence purposes. All communications regarding The Deal requests for additional information, requests for management meetings and discussions or questions regarding procedures will be submitted to the respective persons designated by each party and identified in Section 10 hereof.
5. Legal Process. In the event that the receiving party or anyone to whom the receiving party transmits the disclosing party’s Confidential Information pursuant to this Agreement becomes legally compelled to disclose all or any portion of the disclosing party’s Confidential Information, the receiving party will provide the disclosing party with prompt notice thereof, so that the disclosing party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving party or the recipient of such disclosing party’s Confidential Information will furnish only that portion of the disclosing party’s Confidential Information that is legally required and the receiving party will exercise its best efforts to obtain reliable assurance that confidential treatment will be afforded such portion of the disclosing party’s Confidential Information.
6. Equitable Remedies. In view of the difficulties of placing a monetary value on the information comprising or contained in the Confidential Information, in the event of any breach or threatened breach hereof, the parties shall, in addition to any other remedies which may be available, be entitled to injunctive and other equitable relief in any court of competent jurisdiction.
7. Confidential Information. Neither party hereto, nor its directors, officers, employees, agents or advisors, makes any representation as to the accuracy or completeness of its Confidential Information, except as may be provided in a definitive work order, agency or marketing agreement. Neither party hereto nor its directors, officers, employees, agents or advisors shall have any liability resulting from the use of or reliance upon its Confidential Information by the other except as may be provided for in a definitive work order, agency or marketing agreement. The delivery of the Confidential Information shall not constitute an offer or result in any obligations or liabilities on behalf of either party hereto with respect to any transaction involving The Deal except as otherwise provided herein.
8. No Other Obligation. Except for or with respect to the matters specifically agreed to in this Agreement which are expressly stated to be binding on the parties, neither party to this Agreement shall be under any legal obligation of any kind whatsoever with respect to The Deal until the definitive work order, agency or marketing agreement has been executed and delivered by all parties thereto, and Broker and Entity hereby waive any and all claims (including, without limitation, claims for breach of contract) relating to The Deal.
9. Term. Provider, Entity and their respective Authorized Recipients will continue to be bound by the terms of this Agreement for a period of two (2) years from the date hereof or the dale of sale of The Deal, whichever occurs later, notwithstanding the return or destruction of either party’s Confidential Information.
10. Notice. Either party hereto may, by a signed writing, give any consent or waive any compliance by the other party with any of the provisions of this Agreement. All notices hereunder shall be either i) personally delivered to or mailed by registered or certified mail or ii) emailed with return receipt and written acknowledgement of acceptance; to the parties at the following addresses:
if to Broker :
Business Exits, LLC
8665 Wilshire Blvd,
Beverly Hills, CA 90211
email: [email protected]
if to Entity:
Your Business Name:
Your Business Address:
******** Section for initials
Broker: JP Initial Entity:
BUSINESS: Georgia Tree Company LLC
BROKER: Business Exits LLC
Agency and Dual Agency: On the reverse of this form is printed a portion of California Civil Code section 2079.16, which requires disclosure of some concepts and definitions concerning the relationship between a principal and an agent in the sale of certain residential real estate. While the listing and sale of a business is not a transaction requiring the use of the form prescribed by that Code section, the information provided is completely applicable to the business sale context as well, and you are requested to read it carefully and acknowledge that you have been advised of its contents.
When a broker lists a business for sale, the broker becomes an “agent” representing the seller. The same broker also often works with prospective buyers, and by the nature of that relationship, becomes a buyer’s agent as well; this is called “dual agency.” Although a buyer and seller are sometimes represented by different agents of the same brokerage firm, this is also a dual agency, because the broker who employs each of the agents is really the agent for both parties.
Full Disclosure: Under California law, the buyer and the seller of a business are each required to fully and fairly disclose to the other, any and all information which is known to that party, or reasonably should be known, and which may or will be “material” to the other party’s decision to enter into the transaction. An agent must fully disclose all relevant information known to the agent to the party or parties that the agent represents. An agent, whether acting only for one party, or as a dual agent, must make the same such disclosures to the other party, or to the other party’s agent, and cannot withhold any material information which such agent may know, or in the exercise of reasonable diligence, should discover.
Price and Valuation: There is an exception to the rule that a dual agent must disclose all information in his or her possession. In representing both seller and buyer, the agent shall not, without the express permission of the respective party, disclose to the other party that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price offered, even though there otherwise might be a duty to do so. Likewise, a broker acting as a dual agent will not disclose valuations or appraisals prepared by the broker for the seller (but must disclose any comparable sales figures which may have been a major factor in such evaluation), nor the contents of any previous negotiations, contracts or offers between either the buyer or seller and any other parties. This is the only way negotiations can be conducted when the broker represents both the buyer and the seller.
Acknowledgment of Disclosure and Agreement to Dual Agency: Each party, by signing below, acknowledges and agrees that:
The party has carefully read and fully understands the matters discussed above, as well as the language of the statute quoted on the
reverse of this form, and has had the opportunity to ask questions and/or to seek the advice of legal counsel prior to signing below.
The Seller consents and agrees that the Broker representing said party may, in his discretion, act as an agent for any buyer or prospective buyer as well as for the Seller, as explained above and on the reverse hereof, and agrees to the conditions stated above.
The Buyer consents and agrees that the Broker representing the Seller will continue to do so even though said Broker will also represent the Buyer as a dual agent, understands all of the information stated above and on the reverse hereof and consents to such dual agency.
THIS FORM MAY BE SIGNED IN COUNTERPARTS. NOT ALL SIGNATURES ARE REQUIRED TO APPEAR ON THE SAME COPY. FACSIMILE SIGNATURES ARE ACCEPTABLE AND BINDING.
Broker: JP Initial Entity:
Excerpt from CALIFORNIA CIVIL CODE § 2079.16
SELLER’S AGENT: When you enter into a discussion with a real estate agent regarding a real estate transaction, you should from the outset understand what type of agency relationship or representation you wish to have with the agent in the transaction.
A Seller’s agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller’s agent or a subagent of that agent has the following affirmative obligations:
To the Seller: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller. To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent’s duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or
within the diligent attention and observation of, the parties.
BUYER’S AGENT: An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.
A selling agent can, with a Buyer’s consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller’s agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller. An agent acting only for a Buyer has the following affirmative obligations:
To the Buyer: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer. To the Buyer and the Seller:
within the diligent attention and observation of, the parties. An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.
AGENT REPRESENTING BOTH SELLER AND BUYER: A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer. In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty, and loyalty in the dealings with either Seller or the Buyer.
(b) Other duties to the Seller and the Buyer as stated above in their respective sections.
In representing both Seller and Buyer, the agent may not, without the express permission of the respective party, disclose to the other party that the Seller will accept a price less than the listing price or that the Buyer will pay a price greater than the price offered.
The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional.
IN WITNESS WHEREOF, Broker and Entity have caused this Agreement to be executed on the date first above written.
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Document Name: NDA - 2nd in Market Window Business
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