Non-Disclosure and Confidentiality Agreement
This Non-Disclosure and Confidentiality Agreement (the "Agreement") is entered into as of the date of acceptance by , by and between Crown Point Commercial Real Estate ("Crown Point"), and and its/their affiliates “Interested Party(s)”.
1. Purpose. The Parties intend to engage in or representing a client(s) who have expressed an interest in engaging in evaluating, negotiating, advising on a real estate or business transaction. During the course of normal discovery, discussions and negotiation it is likely that each Party will disclose or deliver to the other Party’s, Party’s clients, clients directors, officers, employees, agents and/or advisors (this may include but not limited to attorneys, accountants, lenders/banker, financial advisor) herein after collective referred to as “Representatives”, certain proprietary, confidential, personal and trade secrets. The Parties have entered into this Agreement in or to protect and assure the confidentiality of all Confidential Information as defined herein in accordance with the terms of this Agreement. The Party disclosing Confidential Information shall be referred as “Disclosing Party” and the party receiving the Confidential Information shall be the “Recipient Party”. Confidential Information may be used solely for the consideration of a potential transaction involving Crown Point Realty , its Client and Interested Party and its Client herein referred to as the “Purpose”.
2. Confidential Information. "Confidential Information'' means all information that is or has been disclosed to the Recipient Party or its Representatives by the Disclosing Party or its Representatives in connection with the Purpose (as defined in Section 1) or otherwise, unless such information is excluded from the definition of Confidential Information pursuant to Section 3(b). Confidential Information includes, without limitation (except as excluded pursuant to Section 3(b), confidential and/or proprietary information, data and materials, business plans, financial reports, tax returns and data, marketing data, analyses, forecasts, compilations, employee data, customer lists, forecasts, strategies, all business information, software or firmware codes, layouts, diagrams, designs, algorithms, inventions, unpublished patent, trademark, or copyright applications or registrations, or other know-how, specifications, drawings, schematics, studies, plans and specifications, technology, client lists, notes, memorandums, processes, and any other trade secrets, discoveries, ideas, concepts, techniques, formulae, compositions, information, data, results, plans, surveys and/or reports of a business development and/or a marketing nature. Confidential Information will be protected under this Agreement irrespective of whether it is identified as "confidential," “proprietary”, etc. at the time of disclosure. Confidential Information may be that of the Disclosing Party or of third parties to whom the Disclosing Party has an obligation to treat the disclosed information as confidential. Confidential Information also includes copies, notes, abstracts and other tangible embodiments made by the Recipient Party that are based on or contain any such information.
3. Protection of Confidential Information and Non-Disclosure: The Recipient Party agrees to the following:
(a) The Recipient Party: (i) will not (and will cause its Representatives not to) disclose the Confidential Information to any person or entity, other than Representatives of the Recipient Party who need to know such information in order to achieve the Purpose, and only if such Representatives are bound by obligations of confidentiality consistent with the terms of this Agreement (and, in any event, the Recipient Party will be responsible for a breach of this Agreement by its Representatives as if such Representatives were party hereto); and (ii) will (and will cause its Representatives to use the Confidential Information only for the Purpose and not to the detriment of the Disclosing Party or its Representatives. The Recipient Party will use (and will cause its Representatives to use) the same degree of care to protect the Confidential Information from unauthorized use or disclosure as it would use to protect its own information of a similar nature, but in no event with less than strict confidence and reasonable care and efforts; (iv) will not to disclose their participation in the matters set forth herein, the existence or terms and conditions of the Sale of the Real Property and/or Business, or the fact that discussions are being conducted with respect to the Real Property and/or Business in this Agreement; (v) . the Confidential Information shall not be used, disseminated or shared for any other purpose without the prior written consent of the Disclosing Party (vi) shall upon request, shall return to Disclosing Party all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request.
(b) Confidential Information" does not include information that: (i) the Disclosing Party authorizes in writing to be disclosed, to the extent so authorized; (ii) the Recipient Party knows at the time of disclosure by the Disclosing Party, free of any obligation to keep it confidential; (iii) is or becomes generally known to the public other than as a result of a disclosure by the Recipient Party or its Representatives in violation of this Agreement; (iv) without the forehand knowledge of, access to or use of Confidential Information provided by the Disclosing Party the Recipient Party independently develops; or (v) the Recipient Party rightfully obtains from a third party who has the right to disclose it without violation of any confidentiality obligations. No combination of features shall be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the Recipient Party’s possession, unless the combination itself and its principles of operations are in the public domain or in the Interested Party's possession; and
(c) If the Recipient Party is subject to judicial or governmental proceedings requiring disclosure of particular Confidential Information or is otherwise required to disclose Confidential Information pursuant to applicable law, regulation or stock exchange listing requirement, then, prior to any such disclosure and to the extent permitted by applicable law, regulation or stock exchange listing requirement, the Recipient Party will provide the Disclosing Party with reasonable prior written notice and ·will obtain, or provide the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information.
4. Ownership and Return of Confidential Information. All Confidential Information remains the property of the Disclosing Party and will be returned to it or destroyed at its request Within thirty (30) days of receiving such a request from the Disclosing Party, the Recipient Party will comply with the request and provide a written certification, signed by an officer, of its compliance. Notwithstanding the foregoing, where necessitated by applicable laws and regulations, the Recipient Party may retain such Confidential Information strictly up to the extent necessary to comply with such laws and regulations, provided that the Recipient Party shall maintain the confidentiality of the Confidential Information so retained in accordance with the confidentiality obligations herein. In respect of notes, abstracts and other tangible embodiments made by the Recipient Party or its Representatives that are based on or contain any Confidential Information, the Recipient Party agrees to comply with the confidentiality obligations herein.
5. Other Information. No party to this Agreement shall have an obligation with respect to Confidential Information which becomes publicly available without breach of this Agreement; is rightfully received by a recipient without obligations of confidentiality; or is developed by a recipient without breach of this Agreement.
6. No Publicity. Subject to any disclosure required under clause 3(c) above, the Recipient Party shall not disclose to any third party (except its Representatives to the extent permitted under clause 3(a) above or make any announcement or press release regarding, the existence and progress of the Purpose or the fact that Confidential Information has been made available, except with the prior written consent of the Disclosing Party. The Recipient Party shall ensure that its Representatives comply with the aforesaid obligation.
7. Injunctive Relief. The parties agree that violation of the restrictions imposed hereunder would cause irreparable harm and that remedies at law would be inadequate to redress any actual or threatened violation of this Agreement. The parties agree that, in addition to other relief, this Agreement may be enforced by injunctive relief.
8. Term. The obligations of the parties imposed by this Agreement shall terminate two (2) year from the date first set forth herein above.
9. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Nevada, and the parties consent to the exclusive jurisdiction of the state courts and U.S. federal courts located in Clark County, Nevada for any dispute arising out of this Agreement.
10. Representation and Warranty. Although the Disclosing Party is providing information they deemed to be reasonable accurate, complete and relevant for the Recipient’s investigation, due diligence and assessment, HOWEVER, ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS, WEHERE IS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO A WARRANTY THAT IT IS ACCURATE OR COMPLETE OR A WARRANTY AGAINST INFRINGEMENT. The Recipient Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Recipient Party or to any of its Representatives relating to or resulting from the se of the Confidential Information or any errors therein or omissions therefrom. Only those representations or warranties that are made in a duly executed transaction agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
11. No Publicity. No party shall publicize the terms, subject matter or existence of this Agreement without the prior written consent of all parties. Absolutely no contact is to be made with Client’s Tenants, Employee’s, Agents, or Competitors without prior written consent by Client.
12. Communications Protocols. Neither the Recipient Party nor its Representatives will initiate or maintain contact with the Disclosing Party or its Representatives regarding the business, operations, prospects or finances of the Disclosing Party, except with the express written permission of Broker. Should the Recipient Party enter into an agreement for Business Brokerage services with Broker and their Client at that time Recipient Party will be free from all communication protocols in this agreement.
13. Final Agreement. This Agreement supersedes and replaces all prior understandings and agreements between the parties pertaining to the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by all parties.
14. No Assignment. No party may assign this Agreement or any interest herein without the prior written consent of all parties. Subject to the foregoing restriction, this Agreement will be binding upon each party’s successors and assigns and will inure to the benefit of, and be enforceable by, such party’s successors and assigns.
15. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of any of the other provisions and applications of this Agreement shall not, in any way, be affected or impaired.
16. Cost; Damages; Attorneys’ Fees. In the event of a wrongful disclosure or use of Confidential Information by Recipient or its Representatives, Recipient shall assume liability for all costs, damages and expenses sustained by the Disclosing Party as may be caused or compounded thereby. If any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing Party, in addition to all other amounts such Party shall be entitled to receive from the non-prevailing Party to such action, shall be awarded reasonable attorneys’ fees and court costs.
17. Representatives. "Representative" of a party means its affiliates, directors, officers, employees, attorneys, agents and financial and other advisors.
18. Binding Effect. This Agreement benefits and binds the parties to this Agreement and their respective successors and permitted assigns, per section the terms herein. The Recipient Party acknowledges and agrees that Recipient Party and its affiliates are third party beneficiaries of this Agreement.
19. Notices. All notices hereunder shall be in writing and shall be delivered either (a) in person, or (b) sent by registered or certified mail, postage prepaid, to the address of the other party as set forth below or to such other address as such party shall have designated by proper notice, or (c) sent by electronic transmission to the email address set forth below. If such notice is served in person, delivery shall be deemed conclusive at the time of such personal service. If such notice is given by mail, delivery shall be deemed conclusive two (2) business days after deposit thereof in the United States mail. If such notice is given by electronic transmission, delivery shall be deemed conclusive at the time of such electronic transmission.
20. No Implied Waiver. Any party’s failure to insist upon strict performance by any other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
21. Time is of the Essence. Time is of the essence concerning all provisions of this Agreement.
22. Termination. This Agreement shall terminate two years from the date hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.