Buyer Profile & Non-Disclosure Agreement
Buyer Profile
Non-Disclosure Agreement ("NDA")
In consideration of being provided access to Confidential Information regarding the Business, and as a material inducement to Broker and Seller (as defined below) to disclose the same, Buyer agrees as follows:
§1 Confidential Information. Buyer acknowledges and agrees that the officers, managers, agents and representatives of the Business ("Seller") shall directly or indirectly through Broker, as a conduit of information, disclose to Buyer certain confidential and proprietary information related to the Business ("Confidential Information"), which shall include, but not be limited to, information relating to non-public, confidential and proprietary operations, properties, personnel, financial information, materials, products, technology, computer programs, manuals, business plans, software, marketing plans, and other information disclosed or submitted, orally, in writing, or by any other media solely relating to Buyer's interest in purchasing the Business. Buyer agrees not to disclose, publish or otherwise reveal any of the Confidential Information to any other parties, agents, representatives or employees whatsoever without the prior written consent of Seller, except that Buyer may disclose the Confidential Information to Buyer's legal counsel, accountant or lender. Buyer acknowledges that Broker is acting on behalf of Seller and not on behalf of Buyer or in a dual agency role. Buyer acknowledges and agrees that this document shall be governed by the laws of the State of New Jersey. Buyer has had ample opportunity to seek independent legal advice related to this NDA and is not relying on any statements of Broker. Nothing in this Agreement shall limit or supersede any rights or remedies available to Broker or Seller under the New Jersey Trade Secrets Act, N.J.S.A. 56:15-1 et seq., or any other applicable statute or common-law doctrine, all of which are expressly preserved.
§2 Conduct. Buyer acknowledges and agrees that all communications concerning the above Business shall be conducted solely through Broker, and that Buyer shall be obligated to pay Broker its full compensation if Buyer intentionally or negligently interferes with, prevents or otherwise contravenes Broker's right to be paid its compensation as determined by any written agreement between Broker and Seller upon the occurrence of the following: (1) Buyer is ready, willing and able to purchase the Business at the terms advertised by Seller, or at any other price and/or terms acceptable to Seller; (2) Buyer buys, leases, receives in trade or otherwise obtains any part of the Business during the two (2) year period commencing from the Effective Date; (3) Seller and Buyer enter into a contract for sale; (4) Buyer, through no fault of Seller, fails or refuses to complete a sale, lease, trade or other disposition of the Business after entering into an agreement to do so; (5) Buyer does any act equivalent of a purchase, or has an employment, independent contractor or consulting relationship directly or indirectly with Seller. Buyer agrees not to approach or contact Seller or any of its officers, managers or agents, or to visit the physical Business location, without an appointment arranged through Broker. Buyer agrees not to contact or approach the Business's employees, independent contractors, customers, suppliers, and/or competitors without the express written consent of Broker. Buyer shall be solely responsible for any breach of this Agreement by Buyer, Buyer's agents, representatives or employees, and shall fully indemnify, defend and hold Broker harmless from any costs, damages, or expenses whatsoever incurred by Broker by Buyer's violation, or threatened violation, of the terms of this Agreement.
§3 Information. Buyer acknowledges and agrees that Broker is acting as a conduit of the information provided by Seller and its representatives and has not and will not make any independent investigation of the accuracy of the information provided. All information and documents provided to Buyer concerning the Business are the property of Seller and must be returned immediately upon written request by Broker or Seller. Any and all representations and warranties shall be made solely by and between Seller and Buyer in a signed purchase/sale agreement and subject to the provisions thereof. Buyer specifically acknowledges and agrees that Broker makes no representations or warranties whatsoever, express or implied, to Buyer with respect to the Business and the veracity or completeness of the Confidential Information disclosed to Buyer, or any representations and warranties made by Seller. Buyer acknowledges and agrees that it will not rely upon any information, written or oral, furnished by Broker, and that all Confidential Information received must be independently verified by Buyer. Buyer acknowledges and agrees that all Confidential Information furnished and/or received by Buyer is provided by Seller and is not verified by Broker or its agents, and that Broker and its agents are relying upon Seller for the accuracy and completeness of the information. Buyer agrees that any Confidential Information received by Buyer will not be used in any way to Seller's or Broker's detriment. Buyer and its authorized representative(s) executing this NDA acknowledge and agree that they shall be jointly and severally liable for any breach or threatened breach of this NDA, irrespective of whether the breach or threatened breach was the result of the actions of the signer of this Agreement or an agent, representative or officer of Buyer, and further agree to indemnify and hold Broker harmless from any claims or damages arising from their use and/or reliance thereon. The provisions in this paragraph shall also inure to the benefit of Broker's agents and shall survive termination of this NDA.
§4 Seller as Third-Party Beneficiary. Buyer acknowledges and agrees that Seller has the right to protect the Confidential Information and to enforce the terms of this NDA. Accordingly, and for such limited purposes only, Seller shall be considered an intended third-party beneficiary hereunder. The fact that Seller is not a signatory to this NDA shall not prohibit, alter or limit Seller's or Broker's right to enforce the terms hereof.
§5 Representation & Advice. Buyer understands and agrees that Broker is a transaction broker as defined by state law. As such, Broker is not a single agent or representative of Seller or Buyer. Buyer further acknowledges and agrees that Broker has advised Buyer to consult an attorney and/or certified public accountant for assistance in reviewing and verifying the legal, financial and/or any other information and Confidential Information regarding the Business.
§6 Procuring Cause. Buyer acknowledges and agrees that Broker is the procuring cause of any purchase or other act set forth in §2 herein triggering Broker's right to compensation, and acknowledges and agrees that for a period of two (2) years from the Effective Date, Buyer will not deal directly or indirectly with the Seller, its agents, representatives or assigns, without the prior written consent of Broker. If Buyer, or an entity in which Buyer has an interest, or a person or entity introduced to the Business and/or Seller by Buyer, enters into: (a) a sale and/or purchase agreement; or (b) a management contract or other financial arrangement with Seller with respect to the Business or any part thereof, including leasing the Business premises from Seller or Seller's landlord; Buyer shall be liable to Broker for any and all damages Broker may suffer, including but not limited to the payment of the full compensation due Broker under a separate agreement with Seller. To ensure the collection of its compensation, Buyer hereby grants Broker the right to place a lien on the Business assets which may be acquired by Buyer in violation of this Agreement, and Buyer agrees and does hereby appoint Broker its attorney-in-fact to execute all documents necessary to perfect such lien, and this Agreement shall be Buyer's consent to do so as required by New Jersey state law.
§7 Warranties. Buyer represents and warrants that it does not represent any third-party competitor of the Business, and is not an employee or agent of a competitor business. Buyer warrants that the sole purpose for requesting and receiving Confidential Information on the Business is to evaluate its desire to effect a purchase, merger and/or acquisition of the Business, and Buyer acknowledges and agrees that no compensation will be payable to Buyer as a result of a purchase, merger and/or acquisition. Buyer acknowledges and agrees that Seller and Broker are relying upon Buyer's agreement to be bound by the terms of this NDA in disclosing the Confidential Information to Buyer. Buyer further warrants that it is financially capable of purchasing the Business, has not filed for an undisclosed bankruptcy, and has not been convicted of any felony or crime, and that Buyer has no legal impediments that would prevent it from purchasing the Business.
§8 No Implied Waiver. Either party's failure to insist in any one or more instances upon strict performance by the 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.
§9 Consent & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, and the parties consent and agree that Mercer County, New Jersey shall be the sole and exclusive venue for all proceedings relating to this Agreement and/or its subject matter, including without limitation the enforcement hereof. Buyer hereby waives all objections to establishing venue elsewhere. Buyer agrees that in the event of any breach or threatened breach of the provisions contained herein, Seller or Broker may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Broker and/or Seller against any such breach or threatened breach. Buyer acknowledges and agrees that Seller or Broker may obtain such equitable relief with the posting of a minimal bond as determined by a court of competent jurisdiction.
§10 Attorneys' Fees. In the event of any dispute or litigation arising out of or relating to this NDA, the prevailing party shall be entitled to an award of its reasonable attorneys' fees, costs, and expenses incurred at both the trial-court and appellate levels.
§11 Commission Acknowledgment (N.J.S.A. 25:1-16). Buyer acknowledges that Broker is engaged by Seller under a separate written listing or engagement agreement that specifies the rate or amount of Broker's commission upon a sale, lease, exchange, or other disposition of the Business or any material part thereof. Buyer further acknowledges that, in the event Buyer becomes liable to Broker under §2 (Conduct) or §6 (Procuring Cause) of this Agreement, the measure of Broker's damages shall be the full commission Broker would have earned under that separate written agreement with Seller, and Buyer's signature below constitutes Buyer's written acknowledgment of Broker's authority and right to such compensation for purposes of N.J.S.A. 25:1-16(c). The applicable commission rate or amount shall be made available to Buyer upon written request and execution of any further confidentiality protections Broker reasonably deems necessary.
§12 Wire Transfer Fraud Notice. Broker will never request or send wire instructions by electronic mail. Buyer acknowledges and agrees to verbally verify any account information directly from any escrow agent and not to rely on account or contact information obtained via email without verbally confirming accuracy. Any wire instructions received by Buyer purporting to come from Broker by email should be treated as suspicious and confirmed by telephone using a known, independently-verified number for Broker before any funds are transferred.
§13 Copies; Electronic Execution. This NDA may be executed in multiple parts and the separate parts may be jointly deemed one whole. An electronically transmitted copy with signatures shall be considered an original. The parties expressly intend and consent that this Agreement may be executed by electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., and the New Jersey Uniform Electronic Transactions Act, N.J.S.A. 12A:12-1 et seq., and that an electronic signature affixed by Buyer through the Broker's signing platform shall have the same legal effect as a handwritten signature on a paper original.