THIS AGREEMENT is made and entered into between the undersigned individually and on behalf of undersigned's business entity, its officers, directors, partners, shareholders, employees, agents and advisors (collectively "Buyer") and Touchstone Business Advisors, LLC, a Colorado limited liability company ("TOUCHSTONE") for the benefit of TOUCHSTONE and any business entity presented by TOUCHSTONE as an acquisition candidate ("Seller").
WHEREAS Buyer may request information from TOUCHSTONE and a Seller for the purposes of investigating a possible acquisition through the purchase or transfer of assets, stock, partnership interests or otherwise, merger or joint venture involving all or part of the business interests owned by a Seller ("Transaction"). Therefore, in consideration of the mutual promises and covenants contained herein, and to induce the release of information by Seller and TOUCHSTONE, Buyer agrees as follows:
1. Buyer will not disclose any information about any Seller, whether obtained from TOUCHSTONE or elsewhere in the course of its investigations of the business interests of a Seller, to any person, organization, broker, intermediary, lending institution, prospective equity partner, or make known by disclosure or confirmation that Seller or any portion of its assets or ownership interests are for sale without specific prior written authorization by TOUCHSTONE.
2. Buyer shall not contact any Seller, its banker, accountant, attorney, employees, suppliers, competitors, customers or others who might have information concerning Seller for any purpose whatsoever (including the hiring of Seller's employees) without specific prior written authorization by TOUCHSTONE. The existence, extent and nature of this Agreement shall be fully disclosed to all individuals at such time they receive information hereunder and who shall thereafter be equally bound by the provisions hereof.
3. This Agreement applies to all information received by Buyer from or on behalf of a Seller at any time, which is not available to the general public. All information provided pursuant to this Agreement shall be deemed confidential and valuable and constitutes the proprietary trade secrets of Seller. Unauthorized disclosure of said information, even without intent to harm, shall cause substantial and irreparable damage to TOUCHSTONE and Seller. All information provided to Buyer shall be used for the sole purposes set forth hereinabove and shall not at any time, or in any manner, be utilized for any other purpose. At such time as its review and investigation of Seller are completed, or upon written request of TOUCHSTONE, Buyer shall promptly return all information, in whatever form, without retaining copies, summaries or extracts thereof.
4. Neither TOUCHSTONE nor Seller makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of any information provided to Buyer under this Agreement. Any and all representations and warranties shall be made solely by Seller in a signed acquisition agreement and then be subject to the provisions thereof. Buyer assumes full responsibility for its reliance upon such information and expressly waives all rights of recourse, if any, against TOUCHSTONE for Buyer's reliance thereon.
5. In the event of a dispute among the parties hereto, the prevailing party, in addition to the award of damages or any other remedy (including, as necessary, to ensure the confidentiality of Seller's information and trade secrets, injunctive relief), shall be entitled to recover its attorney fees and other reasonable costs incurred in enforcing this Agreement.
6. Buyer understands and agrees Seller is an intended third party beneficiary of this Agreement and as such is entitled to enforce any breach hereof in Seller's own name. Buyer understands and agrees it will not knowingly take any action such as will interfere with or adversely affect the rights of TOUCHSTONE and/or Seller under any fee (or compensation) or other agreements. Buyer agrees that if it violates the provisions of this Agreement and completes a Transaction with a Seller, Buyer shall be jointly and severally liable with such Seller for any uncollected fees due to TOUCHSTONE from such Seller.
7. The respective obligations of the parties under this Agreement shall survive for a period of two (2) years following the date hereof. Buyer, in executing this Agreement, acknowledges TOUCHSTONE is acting solely and exclusively as an agent for Seller and therefore owes Seller its undivided loyalty, confidentiality and full disclosure.
I have read, and agree, and accept the terms of this Confidentiality Agreement, and further certify that the information in the Confidential Customer Profile form is accurate as of the date of this document and I authorize TOUCHSTONE to verify such information through such reference and background checks as its Seller may require.
For purposes of this document, seller also means “landlord” (which includes sublandlord) and buyer also means “tenant” (which includes subtenant).
Seller’s Agent: A seller’s agent (or listing agent) works solely on behalf of the seller to promote the interests of the seller with the utmost good faith, loyalty, and fidelity. The agent negotiates on behalf of and acts as an advocate for the seller. The seller’s agent must disclose to potential buyers all adverse material facts actually known by the seller’s agent about the property. A separate written listing agreement is required which sets forth the duties and obligations of the broker and the seller.
Buyer’s Agent: A buyer’s agent works solely on behalf of the buyer to promote the interests of the buyer with the utmost good faith, loyalty, and fidelity. The agent negotiates on behalf of and acts as an advocate for the buyer. The buyer’s agent must disclose to potential sellers all adverse material facts actually known by the buyer’s agent including the buyer’s financial ability to perform the terms of the transaction and, if a residential property, whether the buyer intends to occupy the property. A separate written buyer agency agreement is required which sets forth the duties and obligations of the broker and the buyer.
Transaction-Broker: A transaction-broker assists the buyer or seller or both throughout a real estate transaction by performing terms of any written or oral agreement, fully informing the parties, presenting all offers and assisting the parties with any contracts, including the closing of the transaction without being an agent or advocate for any of the parties. A transaction-broker must use reasonable skill and care in the performance of any oral or written agreement, and must make the same disclosures as agents about all adverse material facts actually known by the transaction-broker concerning a property or a buyer’s financial ability to perform the terms of a transaction and, if a residential property, whether the buyer intends to occupy the property. No written agreement is required.
Customer: A customer is a party to a real estate transaction with whom the broker has no brokerage relationship because such party has not engaged or employed the broker, either as the party’s agent or as the party’s transaction-broker.