Confidentiality Agreement


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This Confidentiality Agreement (the “Agreement”) is made and entered into as of , (the “Effective Date”) by and between Equation Realty DBA Equation Capital Group (“ECG or Broker”), and   , (“Individual, or Purchaser”). For the purposes of this Agreement, ECG and Purchaser shall each be a “Party” and together are the “Parties” .

RECITALS

WHEREAS, the Parties are initiating discussions about a possible business relationship (“Relationship”);

WHEREAS, in connection with the Relationship, the Purchaser will have access to certain Confidential Information (as defined herein) concerning the business of the Broker;

WHEREAS, the Confidential Information is proprietary and valuable to the Broker and the disclosure or inappropriate use of such Confidential Information could be detrimental to the business of the Broker; and,

WHEREAS, Purchaser will be provided with specific Confidential Information regarding businesses or property acquisitions and other related business opportunities by the Broker.

WHEREAS, in order to protect the Confidential Information of the Broker, their assets and the rights and interests of their customers, the Broker desires to disclose such Confidential Information pursuant to and in reliance on this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and obligations hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, it is hereby agreed between the Parties, as follows:

  1. Definitions. Confidential Information” shall mean: (a) all information, data, reports, analyses, compilations, records, notes, summaries, studies and other materials (in whatever form maintained) containing or reflecting information relating to a Party (the “Disclosing Party”) or the Disclosing Party’s assets, liabilities, properties, accounts, financial information, operations, services, products, business plans or models or strategies, distribution systems, network or communication systems, software or customers, vendors and suppliers, that have already been disclosed or may hereafter be disclosed, provided or made available to the other Party (hereinafter, the “Recipient”) or its Representatives (as defined herein), or to which the Recipient or its Representatives otherwise become aware or gain access or possession, (b) all data, reports, analysis, compilations, extracts, summaries, writings, studies, interpretations, forecasts, records or other materials (whether documentary, electronic or otherwise) prepared by or on behalf of the Parties or any of their Representatives, that relate to or are based on or contain any of the information listed in (a) above or that reflect a summary or review or evaluation of any of the business, plans, operations, financials, data, documents or customers of the Parties, (c) the existence of any discussions or negotiations between the Parties, and (d) any other information which is marked or expressly designated as “Confidential” by the disclosing Party or its Representatives, provided that the term Confidential Information shall not include any information that: (i) is or becomes generally available to the public, other than as a result of a breach of this Agreement by Recipient or its Representatives; (ii) was known by the Recipient or its Representatives prior to the date of this Agreement except for any information provided to it by the Disclosing Party in contemplation of this Agreement and the pending relationships; (iii) is independently developed by a Party without the use of Confidential Information of the other Party; or (iv) becomes available to Recipient or its Representatives on a non-confidential basis from a third party who is not bound by any confidentiality, fiduciary or other obligation to the Disclosing Party. “Representatives” shall refer to all of each respective Party’s partners, officers, employees, members, accountants, attorneys, independent contractors, temporary employees, agents or any other representatives or persons that may from time to time be employed, retained by, working for, or acting on behalf of, such Party.
  2. Confidentiality. Except as otherwise provided herein, each Purchaser shall: (a) use any Confidential Information of the Party only in connection with exploring a Relationship and for the specific purposes for which it is disclosed and not for any competitive purpose, including without limitation the development of similar or equivalent programs or concepts which make use of all or any portion of the Confidential Information; (b) hold all Confidential Information of the other Party in confidence and not disclose Confidential Information to anyone; (c) protect the confidentiality of and take all reasonable steps to prevent disclosure or unauthorized use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons not generally bound to maintain its confidentiality; and (d) advise the other Party in writing (within two (2) days) in the event such Party becomes aware of any misappropriation or misuse of Confidential Information of the other Party by any person, and provide reasonable assistance to the other Party in any proceeding or lawsuit related thereto; and (e) shall not disclose that discussed assets or property are available for sale to anyone, including but not limited to the employees, competition, customers, vendors, suppliers, Landlord, or tenants. Purchaser may disclose Confidential Information to Representatives who need to know such information for the purpose of evaluating a possible Relationship or performing the Relationship, such as an attorney, accountant, or financial planner (it being understood that each Party will maintain corresponding written agreements from such Representatives containing confidentiality obligations substantially similar to the obligations in this Agreement even if Confidential Information is being disclosed to a professional such ). The Parties shall be responsible for any breach of this Agreement arising or resulting from any action or disclosure by them or any of their Representatives (including any Representative who may hereafter cease to be an employee by, acting for, or otherwise associated with, the Parties). The Parties shall take all reasonably necessary measures to restrain any Representatives or former Representatives from any unauthorized disclosure or use of any Confidential Information. Should a Recipient be faced with legal action or a requirement under governmental regulations requiring it to disclose Confidential Information protected hereunder, the Purchaser shall immediately notify the Broker, and upon the Disclosing Party’s reasonable request, shall cooperate in contesting such disclosure.
  3. Copies of Confidential Information. No additional copies of any Confidential Information may be made or retained without prior written consent of the Broker. If Purchaser decides not to continue this Relationship, or to stop any further consideration of discussed transactions or opportunities, Purchaser agrees to notify Broker in writing and to return copies of any Confidential Information furnished within 1 business day. If Anything furnished to Purchaser or any of its Representatives, as well as all copies, compilations, notes or memoranda relating to the Confidential Information, are and shall remain the property of the Broker and shall, upon Broker’s request, be promptly returned to the Broker accompanied by all copies of such items.
  4. Unfair Competition. Purchaser acknowledges and agrees that the sale or unauthorized use or disclosure of any of Broker’s Confidential Information, including information concerning Broker’s current products and any future or proposed products or services, constitutes unfair competition. During the Term and for a period of five (5) years immediately following any Termination of this Agreement, Recipient shall not directly or indirectly make known to any person, firm, or corporation the names or addresses of any of the customers or prospects of Broker or any other information pertaining to them, or either directly or indirectly or on behalf of any other person, firm or entity, call on, solicit, take away, or attempt to call on, solicit, or take away any of the customers of Broker, either for itself or any other person, firm, or corporation. Purchaser acknowledges and agrees that the names and addresses of Broker’s customers, prospects and business relationships constitute trade secrets of Broker and that the sale or unauthorized use or disclosure of any of Broker’s trade secrets obtained by Purchaser constitutes unfair competition. Purchaser further acknowledges that Broker’s employees are a valuable asset in the operation of Broker’s business. Recipient promises and agrees not to engage in any unfair competition with Broker either during the term of this Agreement or at any time thereafter.
  5. Negotiations. Purchaser acknowledges and agrees that from this point forward Broker will handle all communications and negotiations with any prospective Sellers, Partners, or other related Parties for the entire transaction through closing. Purchaser acknowledges that ECG is the first Broker to reveal the fact that said assets, business, property or other related opportunity is currently available for sale, or may be in the near future. Purchaser, and all related Parties or Representatives, hereby agree not to complete any transactions in which Broker is due a commission or fee until Broker is paid in full. Purchaser agrees to assume personal responsibility and liability if this agreement is violated, and to fully pay Broker any fees or commissions due to Broker from Seller. 
  6. Term. The term of this Agreement shall be for five (5) years from the Effective Date and the Parties agree that all obligations hereunder related to Confidentiality shall survive the expiration or termination of this Agreement for a period of two (2) years or such longer period as any of the Confidential Information may be protected by applicable state or federal law.
  7. No Warranty. The Purchaser hereby acknowledge that Broker, nor any of their respective agents, representatives, affiliates or assigns, has obtained Confidential Information from Seller or other third party sources and does not make any representations or warranties whatsoever, either express or implied, concerning the accuracy, completeness or correctness of the Confidential Information disclosed hereunder, nor must such representation or warranty be implied. Broker expressly disclaims any and all liability that may be based on its Confidential Information, errors therein or omissions therefrom. Subject to such limitations and restrictions as may be specified therein, only those representations and warranties that are made pursuant to a definitive agreement for a Relationship, when, as and if executed, will have any legal effect. Purchaser receives and utilizes Confidential Information from the Broker at its sole cost, risk and exposure. Purchaser agrees that Broker shall not have any liability resulting from any use of or reliance upon the Confidential Information. At all times hereunder, Broker shall retain ownership of all Confidential Information disclosed.
  8. No Obligations. Neither this Agreement, nor the disclosure of Confidential Information under this Agreement, nor the ongoing discussions and correspondence between the Parties or their respective directors, officers, employees, agents or Representatives, shall create any obligation of a Party to furnish information to the other Party or its affiliates or Representatives, or to enter into any binding commitment or Relationship regarding the subject matter of the Confidential Information. If in the future the Parties elect to enter into a binding commitment regarding a Relationship or the subject matter of the Confidential Information, such Relationship or commitment will be explicitly stated in a separate written agreement executed by both Parties, and the Parties hereby affirm that they do not intend their discussions, correspondence, and other activities to be construed as forming a contract regarding the subject matter of the Confidential Information or any other Relationship between them without execution of such separate written agreement.
  9. Injunctive Relief. It is understood and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Broker shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and Recipient further agrees to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.
  10. Governing Law; Jurisdiction. This Agreement has been made and entered into in the State of Michigan and shall be construed in accordance with the laws of the State of Michigan. All actions, suits or other proceedings arising in connection with this Agreement shall be tried and litigated in state courts located in Oakland County, Michigan or Federal Courts of the Eastern District of Michigan. Partner does hereby expressly state that they will submit to the jurisdiction of these named courts and waive any claims of lack of personal jurisdiction to the Courts.
  11. Costs of Evaluation. Purchaser and Purchaser’s Representatives shall bear all costs of the evaluation of the Confidential Information provided by the Broker, including the fees and disbursements of counsel and advisors engaged by Purchaser.
  12. Costs of Enforcement. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party to this Agreement has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees such non-breaching party has incurred in connection with such litigation, including any appeals.
  13. Public Disclosures/Press Releases. Unless agreed to in another written agreement between the parties, even if executed prior to this Agreement, neither Party shall issue any press release, review, blog posting, or other disclosure to the general public regarding any matters existing or contemplated between the Parties without the prior written consent of the other Party.
  14. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
  15. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 
  16. Miscellaneous. This Agreement represents the entire agreement between the Parties with respect to the subject matter herein, supersedes all prior written or oral agreements concerning the subject matter herein, and may be executed in one or more separate counterparts, all of which shall constitute one and the same Agreement and may be amended only in writing executed by both Parties. The failure of either Party to enforce or insist upon compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, shall not constitute the permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions shall remain at all times in full force and effect. No amendment, modification and/or discharge of this Agreement shall be valid or binding on the Parties unless made in writing and signed on behalf of each of the Parties by their respective duly authorized officers or Representatives. The prevailing Party in any action to enforce this Agreement shall be entitled to all costs and reasonable attorneys’ fees.
  17. Notices. All notices hereunder shall be in writing and mailed, telefaxed or otherwise delivered to the parties involved unless the Party to whom notice is to be given has provided a change of address to the other Party in writing (and then to such changed address), and shall be effective upon receipt or on the fifth (5th) business day after posting if by first class U.S. mail. Confirmation of execution by electronic transmission of a facsimile signature shall be binding upon any Party so confirming.

 

IN WITNESS WHEREOF, the Parties have made and executed this Agreement effective as of the date and year first written above.

Agreed to and Accepted By Purchaser:                             Broker or Agent for Broker:    

 

Signed by Stephanie Goodman
Signed On: August 12, 2016

Equation Capital Group https://equationcapitalgroup.com
Signature Certificate
Document name: Confidentiality Agreement
Unique Document ID: 41b9c91628a727698245d1b04c873141f3c1e113
Timestamp Audit
2016-08-11 14:12:37 ESTConfidentiality Agreement Uploaded by Stephanie Goodman - stephanie@equationcapitalgroup.com IP 107.143.140.138