Confidentiality and Non-disclosure Agreement
(1) Student and Business desire to enter into a relationship wherein Student will learn certain real estate related principles and actions to help increase the Student’s existing or future real estate company (the “Transaction”). In the course of the Transaction, Business may disclose information that is of a confidential and proprietary nature solely for the purpose of allowing Student to perform the steps necessary to grow its business (the “Permitted Use”). Business wishes to protect the confidentiality of such information and prevent the intended or unintended disclosure of same to any outside party that is not a student of the event that took place on the Event’s Date.
(2) Business may disclose information concerning the Transaction. Any information produced, either in writing or orally (including any reports, videos, analyses, summaries, interpretations, financial statements, memoranda, notes, studies or any other written or electronic materials prepared by or for Student or its Representatives that contain, reflect, or are based on or generated from such information), and whether or not marked as being confidential; all of which Student is hereinafter referred to as “Proprietary Information” of Business.
In consideration of the Parties’ discussions and any access Student may have to Proprietary Information of Business, Student hereby agrees as follows:
1. Confidentiality and Non-Disclosure.
(1) Student agrees (i) to use the Proprietary Information solely in accordance with the Permitted Use, and (ii) to hold the Proprietary Information in strict confidence and to take reasonable precautions to protect such Proprietary Information[, including, without limitation, all precautions Student employs with respect to its own strictly confidential or proprietary materials]; provided, however that Student may disclose Proprietary Information (A) to those directors, officers, employees, financial advisers, accountants, legal counsel, [lending institutions] [or other potential debt and equity finance sources] (together, its “Representatives”) on a need to know basis in accordance with the Permitted Use and subject to the restrictions contained herein, (B) to the extent that Business consents in writing, and (C) to the extent necessary to comply with any federal securities law [except to the extent such requirement for disclosure under the federal securities laws results from any attempt by Student to acquire Business or any of its affiliates] or in connection with any judicial or administrative proceeding in accordance with Section 1.(c) and Section 1.(d). Student agrees, at its sole expense, to take all reasonable measures to restrain any Representative granted access to Proprietary Information from using such Proprietary Information other than in accordance with the Permitted Use and otherwise in accordance with this Agreement. Student acknowledges that it will be responsible for any breach of this Agreement by any of its Representatives [except those Representatives who have entered into a separate written agreement with Business regarding the use or disclosure of the Proprietary Information].
(2) Notwithstanding the foregoing, the term “Proprietary Information” does not include information that (i) is or becomes generally available or known to the public, through no improper action or inaction by Student or any of Student’s Representatives; (ii) was in possession of or known by Student prior to receipt from Business, which prior possession can be documented by written evidence; (iii) was
(3) Student agrees that neither Student nor its Representatives will, without prior written consent of disclosed to Student by a source other than Business or its Representatives, provided that such other source is, or was at the time of such disclosure, not prohibited in any way from disclosing the information to Student, or (iv) was independently developed by Student without use of any Proprietary Information. Business, directly or indirectly disclose to any other person (excluding Student’s Representatives) (i) the existence of a proposed Transaction, or the existence of potential, present or previous discussions or negotiations in relation thereto, (ii) the existence or details of this Agreement, or (iii) the fact that Business or its Representatives have received or produced any Proprietary Information (items (i), (ii) and (iii), collectively, the “Transaction Information”); provided, however, Student may disclose Transaction Information to the extent (A) required in connection with a judicial or administrative proceeding in accordance with Section 1.(d), and (B) based on the written opinion of Student’s outside counsel, such disclosure is required following the execution of a definitive Transaction agreement in order to avoid violating the federal securities laws, and in the cases of both (A) and (B) the requirement to make such disclosure does not arise from Student’s breach of this Agreement or as a result of its unilateral actions.
(4) Student and its Representatives may make disclosures of Transaction Information or Proprietary Information in connection with a judicial or administrative proceeding or pursuant to a formal request from a regulatory examiner, provided however, that Student shall: (A) give prompt notice to Business of the disclosure requirements, and to the extent legally permissible, the scope of the information that Student intends to disclose, (B) provide Business a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which the order was issued, (C) cooperate fully with the efforts of Business under (B) above, as requested by Business, and (D) minimize the extent of any such disclosure ; and provided further that Student’s accountants may disclose any such Proprietary Information or Transaction Information to the extent such disclosure is required by regulations applicable to accounting firms provided that such disclosure is made to a regulatory body regulating the accounting profession that is subject to confidentiality obligations with respect to such disclosed Proprietary Information and Transaction Information.
(5) Student understands that nothing herein (i) requires the disclosure of any Proprietary Information of Business, which shall be disclosed, if at all, solely at the option of Business; or (ii) requires Business to proceed with any proposed transaction or relationship in connection with the Transaction.
2. Return or Destruction of Proprietary Information. Immediately upon (i) the decision by either Party not to enter into the Transaction, or (ii) a written request by Business, at any time, delivered to the address of Student as set forth below its signature to this Agreement, Student will return to Business or destroy (at Student’s option), and certify to such destruction, all Proprietary Information of Business and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof, including, to the extent practicable, expunging all such Proprietary Information from any computer, word processor or other device containing such information. Notwithstanding the foregoing, (i) Student or its Representatives may retain Proprietary Information to the extent it is “backed-up” on the electronic information management and communications systems or servers of Student or Student’s Representatives, is not available to an end user and cannot be expunged without considerable effort, and (ii) Student’s legal department and/or outside counsel may keep one copy of the Proprietary Information, and with respect to Student’s Representatives who are accounting firms, such firms may keep one copy of the Proprietary Information in accordance with policies and procedures in place to comply with applicable law, regulations, professional standards or reasonable business practice. The delivery or destruction of Proprietary Information under this Section 2. shall not terminate any duties or obligations under this Agreement.
3. Completeness and Accuracy of Proprietary Information. Business reserves the right, in its sole discretion, to determine what information it will provide or withhold, as well as the times at which it will make such information available. Student understands and acknowledges that neither Business nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness, of the Proprietary Information. Student agrees that neither Business nor any of its Representatives shall have any liability to Student or to any of Business’s Representatives relating to or resulting from the use of the Proprietary Information or any errors therein or omissions therefrom. Only those representations or warranties made in a Definitive Agreement regarding the Transaction, when and if executed, and subject to the limitations or restrictions specified therein, will have any legal effect. “Definitive Agreement” means a written contract executed by all parties thereto for the Transaction, which binds the parties thereto to close such Transaction, subject only to such conditions to closing as may be negotiated between the parties thereto; not including any executed letter of intent or any other preliminary written agreement, or any verbal or written acceptance of any offer or bid.
4. Effect of Agreement. Student understands and agrees that no contract or agreement providing for any transaction between them shall be deemed to exist between them unless and until a Definitive Agreement has been executed and delivered, and Student hereby waives, in advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with the Transaction unless and until the Parties have entered into a Definitive Agreement specifically agreed to herein unless and until the Parties have entered into a Definitive Agreement. Business reserves the right, in its sole discretion, for any reason or no reason, to reject any and all proposals made to it or its Representatives with regard to a Transaction and to terminate discussions and negotiations with Student at any time; provided that this Agreement shall thereafter continue in full force and effect.
5. Non-Solicitation/Non-Hire. Student understands and agrees that, for a period of thirty-six months from the date hereof, neither Student nor any of its Representatives or affiliates may, directly or indirectly, solicit or hire any of the officers or other employees of Business or any of its subsidiaries or any other executive or managerial employee of Business with whom Student or Student’s Representatives communicated in connection with the contemplated Transaction; provided however that nothing in this Section 7. shall be construed to prevent Student from hiring or soliciting any employee (i) through general advertisements or a third-party recruiter (in each case not specifically directed towards the employees of Business), (ii) who was terminated [without cause] by Business or its subsidiary prior to the solicitation, or (iii) who was not been an employee of Business for at least 360 days prior to any direct or indirect solicitation by Student or its Representatives or affiliates.
6. Scope and Term of Agreement. Except as set forth in Section 4. and Section 7., the obligations hereunder with respect to the Proprietary Information shall remain as long as such information retains its status as Proprietary Information and is not excluded pursuant to Section 1.(b) of this Agreement, and for information which is a “trade secret,” the foregoing commitments shall remain in place as long as the applicable information retains its status as a trade secret. Student and its Representatives agree that the terms and restrictions herein shall apply fully to their respective subsidiaries and affiliates.
7. Earnings Disclaimer. Every effort has been made to accurately represent, however, there is no guarantee that you will earn money using the techniques and ideas provided. Examples are not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using our product, ideas and techniques. Your level of success in attaining the results claimed in our materials depends on the time you devote to the program, ideas and techniques mentioned, your finances, knowledge and various skills. Since these factors differ according to individuals, we cannot guarantee your success or income level, nor are we responsible for any of your actions.
All information provided is for educational and informational purposes only. Use caution and seek the advice of qualified professionals. check with your accountant, lawyer or professional advisor, before acting on this or any information. Users of our products, services and affiliates are advised to do their own due diligence when it comes to making business decisions and all information, products, and services that have been provided should be independently verified by your own qualified professionals.
You agree that our company is not responsible for the success or failure of your business decisions relating to any information presented by our company products or services.
8. Remedies. Student acknowledges and agrees that due to the unique nature of Business’s Proprietary Information, money damages would not be a sufficient remedy for any breach of this Agreement, that any such breach may allow Student or third parties to unfairly compete with Business resulting in irreparable harm to Business, and therefore, that upon any such breach or any threat thereof, Business shall be entitled to equitable relief, including, without limitation, injunctive relief and specific performance. Such remedies shall not be deemed to be the exclusive remedies available at law or equity to Business. Student further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this Agreement is or would be compensable by an award of money damages.
9. Miscellaneous Provisions.
(1) Assignability. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by either Party without the prior written consent of the other Party, and any such assignment without such prior written consent shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.
(2) Amendments; Waivers. This Agreement may not be modified, amended or supplemented except by a written instrument signed by the Parties. In addition, no waiver of any provision of this Agreement shall be binding unless set forth in a writing signed by the Party affecting the waiver. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.
(3) Payment of Expenses. Each Party hereto shall pay its own legal, accounting, investment banking and other fees and expenses incident to preparing for, entering into and carrying out this Agreement.
(4) Notices. Any notice, consent or waiver required or permitted to be given under this Agreement shall be in writing and be deemed given when delivered by hand or received by registered or certified mail, postage prepaid, or by nationally reorganized overnight courier service addressed to the Party to receive such notice at the following address or any other address substituted therefor by notice pursuant to these provisions:
If to Business:
Paul W. Vincent, Esq.
26600 Detroit Rd., Suite 250
Westlake, Ohio 44145
If to Student:
(5) Governing Law. This Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the State of Ohio without regard to the conflicts of law provisions thereof to the extent that such principles would direct a matter to another jurisdiction.
(6) Enforcement. Each Party agrees that it shall bring any legal action or proceeding to enforce or interpret the terms and conditions of this Agreement or to collect any monies under it, exclusively in the courts of the State of Ohio and the Federal courts of the United States of America located in the State of Ohio (the “Chosen Courts”). Each Party (i) irrevocably consents to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Court, (iii) waives to the fullest extent possible, any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto, and (iv) agrees that service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 10.(d). Each Party agrees that a final judgment in any action brought in the Chosen Courts shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(7) Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality, validity or enforceability of the remainder of the Agreement.
(8) Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.
(9) Entire Agreement. This Agreement contain[s] the entire understanding among the Parties and supersede[s] any prior written or oral agreements between them respecting the subject matter of this Agreement. There are no representations, agreements, arrangements, or understandings, oral or written, between the Parties relating to the subject matter of this Agreement that are not fully set forth herein, and unless and until such time as the Definitive Agreement is executed and delivered pursuant to its terms, this Agreement constitute a complete and exclusive statement of the terms of the agreement between the Parties with respect to the subject matter hereof.