Non-Disclosure (Confidentiality) Agreement (NDA)

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Confidentiality Agreement and Agency Relationship Disclosure


Definitions

Purchaser (or “Buyer”) means the individual or entity which is represented or introduced by the signer.

“Broker” is the Agent/Broker signer for Business Edge, Inc.


Objective

The undersigned prospective purchaser (“Buyer”) hereby requests confidential information, currently and from this time forward, on businesses represented by Broker. Buyer hereby acknowledges that Broker first provided such information to the Buyer. In consideration of Broker having provided such information, the Buyer hereby agrees:


  1. Any information Broker provides about a business was obtained from the business owner, and Broker makes no representations or warrantees as to its accuracy or completeness. Buyer is solely responsible for investigating all aspects of the business and obtaining any legal, tax or other counsel Buyer deems necessary, prior to purchasing the business.

  2. Any information Buyer is given about a business, including its availability for acquisition, shall be treated as confidential and proprietary. Buyer shall not disclose, without prior written permission, any such information to any third party except Buyer’s representatives/affiliates engaged in evaluating the information, and shall obtain the agreement of such third parties to maintain confidentiality. If Buyer decides not to purchase the business, Buyer shall promptly notify Broker of this fact and shall promptly return all documentation without retaining copies, summaries, analyses or extracts. Any unauthorized disclosure shall constitute a material breach of Buyer’s duty to the Seller and Broker and could result in their seeking recourse against the Buyer. Buyer shall indemnify, defend and hold Broker harmless from any liability resulting from such unauthorized disclosure.

  3. The Seller of each business about which a Buyer shall be given information by Broker has entered into an agreement providing that Seller shall pay a fee to Broker if, during the term of that agreement or within twenty-four months thereafter, the business is transferred to a Buyer introduced by Broker. Should Buyer, Buyer Family Member or anyone with whom Buyer is connected acquire any interest in or become affiliated in any capacity with such a business, Buyer shall protect Broker’s right to a fee from the Seller.

  4. Buyer shall conduct all inquiries into and discussion with any business about which Broker provides information solely through Broker, and shall not directly contact the owner, employees or other representatives of the business except by prior written permission from Broker.

  5. If Buyer breaches the terms of this Agreement or in any way interferes with Broker’s right to a fee, Buyer shall be liable for such fee and any other damages, including reasonable attorney’s fees. All parties to the Agreement shall mediate any dispute or claim between them arising out of this Agreement or any resulting relationship or transaction between such parties. The mediation shall be held prior to any court action or arbitration. The mediation shall be confidential and in accordance with applicable sections of the California Evidence Code. In the event the parties are not able to agree on a mediator within thirty (30) days of the first party seeking mediation, the presiding judge of the Superior Court of the county in which venue would lie for the filing of a complaint for relief in such dispute shall have jurisdiction to appoint a mediator. In the event the mediator determines that a second mediation is necessary, it shall be conducted in accordance with this paragraph. Should any party attempt an arbitration or a court action before attempting to mediate, that party or parties shall not be entitled to attorney’s fees that might be otherwise available to them in a court action or arbitration and the party who is determined by the arbitrator or judge to have resisted mediation may be sanctioned by the arbitrator or judge. Mediation fees, if any, shall be divided equally by the parties to the dispute.

  6. The undersigned has not dealt with any other Agent/Office except: ____________________________

  7. Agency Disclosure: Broker may act as a dual agent representing both Buyer and Seller. A Business Broker, a California licensed Real Estate Salesperson or Real Estate Broker, can legally be the agent of both the Seller and the Buyer in a transaction (dual agency) and is hereby notifying you that this may be the situation in this or similar transaction. In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer:

    1. a fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with both the Seller and the Buyer,

    2. diligent exercise of reasonable skill and care in performance of the agent’s duties,

    3. a duty of honest and fair dealing and good faith,

    4. a duty to disclose all facts known to the agent materially affecting the value or desirability of the business that are not known to, or within the diligent attention and observation of, the parties and

    5. a duty to disclose all facts known to the agent materially affecting the desirability of the Buyer – financial history, creditworthiness and background of the Buyer that are not known to, or within the diligent attention and observation of, the parties.

A Business Broker is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.

In representing both Seller and Buyer, the agent may not, without the express permission of the respective party, disclose to the other party that the Seller will accept a price less than the asking price or that the Buyer will pay a price greater than the price offered.

The above duties of the agent in a business opportunity transaction do not relieve a Seller or Buyer from the responsibility to protect his/her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A business broker is a person qualified to advise about buying and/or selling business opportunities. If legal or tax advice is desired, consult a competent professional.

Throughout your business opportunity transaction, you may receive more than one disclosure form, depending upon the number of Business Brokers assisting in the transaction. The law requires each agent with whom you have more than a casual relationship to present you with this disclosure form.

  1. By signing below I/WE (“BUYER”) ACKNOWLEDGE RECEIPT OF A COPY OF THIS AGENCY DISCLOSURE.

  2. Buyer Acknowledges receiving a copy of this AGREEMENT.

 

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