NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
Results Business Advisors LLC, a Nebraska limited liability company (herein referred to as “RBA”, “we” or “us”), has agreements with owners or businesses (each a “Seller”), which requires us to obtain a Non-Disclosure and Confidentiality Agreement before we disclose the name, location, financial records, and/or other confidential or proprietary information of any Seller being confidentially marketed for sale. IN CONSIDERATION FOR receiving information on any Seller or its business offered for sale by RBA, Buyer, for itself and on behalf of its agents, advisors, representatives, owners and employees hereby understands and agrees as follows:
1. Confidential Information.
a) “Confidential Information” means any and all non-public proprietary or confidential information of Seller, including, but not limited to, commercial, financial, marketing, business, technical, customer, investment or other information of Seller, which is disclosed by or on behalf of Seller to Buyer or any of its agents or affiliates (collectively, “Buyer Parties”) in connection with the transactions contemplated hereby; provided that Confidential Information shall not include any information that was in the public domain at the time of its disclosure, or which becomes public domain property through no direct or indirect fault of any Buyer Party.
b) Buyer shall (i) use the Confidential Information solely in connection with its due diligence review of the assets of Seller subject to purchase under this Agreement (the “Purpose”), and not use it otherwise; (ii) use its best efforts to keep strictly confidential and protect the Confidential Information to prevent unauthorized dissemination, distribution, use or publication thereof; and (iii) not disclose to any third party any of the Confidential Information without Seller’s prior written consent; provided that Buyer may disclose Confidential Information to its legal counsel, accountants, and finance sources for the transactions contemplated hereby so long as: (A) such disclosure relates only to the Purpose; (B) said person or entity is made aware of the confidential nature of the Confidential Information; and (C) Buyer remains solely liable for said person’s or entity’s use or misuse of the Confidential Information.
c) Upon Seller’s request, Buyer shall promptly (and in any event no later than five (5) days after the request) return or cause to be returned to Seller or, at Seller’s discretion, permanently destroy or cause to be permanently destroyed and verify (by sworn affidavit under penalty of perjury) and certify the completion of such destruction of all Confidential Information in any Buyer Party’s possession, and permanently destroy or cause to be permanently destroyed or cause to be permanently destroyed and verify (by sworn affidavit under penalty of perjury) and certify the completion of such destruction all notes, analyses, summaries, and other materials prepared by any Buyer Party that contain, are based on, or otherwise reflect any of the Confidential Information, whether in tangible or intangible form (“Notes”). Notwithstanding the return or destruction of Confidential Information and/or Notes, the Buyer shall continue to be bound by its obligations hereunder.
2. No Contact with Seller.
Buyer will not, directly or indirectly, contact the Seller, Seller’s employees, suppliers, or customers except through RBA. Buyer will not use the Confidential Information received through this process to establish a competitive advantage over the Seller of the business. All correspondence, inquiries, offers to purchase, and negotiations relating to the purchase or lease of any business of Seller will be conducted exclusively through RBA.
3. Accuracy of Confidential Information; Disclaimer.
All Confidential Information is assembled and provided by the Seller. RBA has conducted no audit or verification process with respect to any Confidential Information and RBA does not verify the completeness or the accuracy of any of the Confidential Information; RBA and Buyer rely solely on each Seller for the accuracy and completeness of said Confidential Information and RBA makes no warranty, express or implied, as to the accuracy or completeness of such Confidential Information. Prior to finalizing an agreement to purchase a business, Buyer is responsible to conduct an independent verification of all Confidential Information, including but not limited to any audits it deems necessary. Buyer acknowledges and agrees that RBA is not responsible for the accuracy of any Confidential Information received, and Buyer agrees to indemnify and hold RBA harmless from any and all claims or damages whatsoever resulting from its use. Buyer fully and unconditionally releases RBA from any responsibility or liability whatsoever regarding any claim arising out of the Confidential Information. Buyer will look only to Seller and rely upon Buyer’s own investigation and due diligence for all information regarding any business offered by RBA.
4. No Professional Advice.
RBA does not provide real estate brokerage services or give tax, accounting, or legal advice. Buyer is advised to seek advice and counsel from an independent licensed real estate professional, attorney, certified public accountant and any other advisors Buyer deems necessary to make a fully-informed decision regarding the purchase of any business opportunity bought or sold through RBA.
5. Creditworthiness; Deposit.
RBA reserves the right to request and review information evidencing Buyer’s financial ability to complete a transaction with a Seller. In addition, should Buyer enter into an agreement to purchase a Seller’s business, Buyer grants to the Seller the right to obtain, through standard reporting agencies, financial and credit information concerning Buyer and its owners and affiliates and understands that this information will be held confidential by Seller and RBA and will only be used for the purpose of the Seller evaluating the extending of credit to Buyer should an agreement to do so arise. In the event that Buyer pays an earnest money deposit, and the Buyer cannot consummate this business/investment purchase through no fault of Buyer, the earnest money deposit will be refunded in full LESS any amount expended for an appraisal, credit report, U.C.C. filing search, or other expenses incurred and agreed to herein. Buyer agrees that if Buyer should refuse to or delay completion of this transaction, then any funds or deposit with RBA will be forfeited to RBA [and Seller].
6. Agency Disclosure.
The Buyer(s) acknowledges that RBA is acting as an agent of the Seller and, except as provided herein, all fees due RBA are, and will be, the responsibility of the Seller. As Seller’s agent, RBA acts on behalf of Seller pursuant to the terms of a listing agreement with the Seller, and it has affirmative obligations of honest dealing and disclosure.
7. Risk Disclosure.
Business opportunities by their very nature carry risks. These risks include obsolescence or reduced demand for services or products, regulatory laws, ineffective management or loss of key personnel, changes in the local or national economic condition, and many others. Due to the risks inherent in all business opportunities, Buyer(s) agree and understand that they could incur a loss, including, but not limited to, the loss of Buyer’s entire investment. Buyer acknowledges that it understands these inherent risks and that RBA cannot and does not in any way warrant or guarantee the success, profit, future vitality or growth of any business.
8. Indemnification and Hold Harmless Disclosure.
Buyer acknowledges and agrees that neither RBA, nor any of RBA's agents, employees, officers, directors, shareholders, co-brokers, independent contractors and affiliates have made any representations or warranties whatsoever regarding any material fact regarding the business/stock being sold, any legal issues, aspects or ramifications connected with the proposed purchase/sale of the business at issue, or any representation or warranty to Buyer concerning the financial condition of any Seller, or any matter relating to any Seller. RBA has made no independent investigation or verification of any representation, warranty, document, or information presented by any Seller. Buyer has either done its own independent investigation with respect to such items or was advised by RBA to do so and elected not to.
Buyer hereby releases, indemnifies and holds harmless RBA from and against any and all claims and damages of each kind attributable to the performance or non-performance of any Seller and/or Buyer under any agreement connected with the sale/purchase of the business/stock described above. RBA shall not be liable or responsible for, and are hereby indemnified and held harmless by Buyer from and against any and all claims and damages of any kind relating to the above referenced sale/purchase.
*I understand that entering my electronic signature on the following screen shall constitute a facsimile of my signatureand acceptance of all terms outlined in the agreement above.
