1940 Contra Costa Blvd.,
Pleasant Hill, CA 94523
This CONFIDENTIALITY AGREEMENT (hereafter “Agreement”) is entered into between FranBizNetwork (hereafter “FBN”) and the prospective purchaser (hereafter “Buyer”) of a business offered for sale through FBN. “Seller” shall refer to any business being offered for sale by or through FBN, as well as the owners of such business. Based upon good and valuable consideration, including, but not limited to, the provision of confidential and proprietary information, FBN and Buyer agree as follows:
- NON-DISCLOSURE OF INFORMATION: Buyer acknowledges that the owner of the Business (“Seller”) desires to maintain the confidentiality of the information disclosed. Buyer agrees not to disclose or permit access to any Confidential Information without the prior written consent of Seller to anyone other than Buyer’s legal counsel, accountants, lenders, or other agents or advisors to whom disclosure or access is necessary for Buyer to evaluate the Business. Disclosure of Confidential Information shall be made to these parties only in connection with the potential acquisition of the Business, and then only if these parties understand and agree to maintain the confidentiality of such Confidential Information. Buyer shall be responsible for any breach of this Agreement by these parties, and neither Buyer nor these parties shall use or permit the use of Confidential Information in any manner whatsoever, except as may be required for Buyer to evaluate the Business or as may be required by legal process. If the Buyer does not purchase the Business, Buyer, at the close of negotiations, will destroy or return to FBN (at Seller’s direction) all information provided to Buyer and will not retain any copy, reproduction, or record thereof.
- DEFINITION OF “CONFIDENTIAL INFORMATION”: The term “Confidential Information” shall mean all information including the fact that the Business is for sale, all financial, production, marketing and pricing information, business methods, business manuals, manufacturing procedures, correspondence, processes, data, contracts, customer lists, employee lists, and any other information whether written, oral, or otherwise made known to Buyer (a) from any inspection, examination, or other review of the books, records, assets, liabilities, processes, or production methods of Seller; (b) from communication with FBN, Seller, or Seller’s directors, officers, employees, agents, suppliers, customers or representatives; (c) during visits to Seller’s premises; or (d) through disclosure or discovery in any other manner. However, Confidential Information does not include any information which is readily available and known to the public.
- BUYER’S RESPONSIBILITY AND DISCLAIMER OF FBN’S LIABILITY: FBN has received information about the Business from the Seller which may include, but is not limited to, tax returns, financial statements, equipment lists, and facility leases. Based on information provided by sellers, FBN has prepared a summary description of the business which may include a cash flow projection, an adjusted income statement, or a seller discretionary cash flow statement. Buyer understands that FBN does not audit or verify any information given to FBN or make any warranty or representation as to its accuracy or completeness, nor in any way guarantee future business performance. Buyer is solely responsible to examine and investigate the Business, its assets, liabilities, financial statements, tax returns, and any other facts, which might influence Buyer’s purchase decision, or the price Buyer is willing to pay. Any decision by Buyer to purchase the Business shall be based solely on Buyer’s own investigation and that of Buyer’s legal, tax, and other advisors and not that of FBN.
- NON-CIRCUMVENTION AGREEMENT: The Seller has entered into an agreement providing that Seller shall pay a fee to the listing broker if, during the term of that agreement or up to twenty-four months thereafter, the Business is transferred to a buyer introduced by FBN or a cooperating broker. Buyer shall conduct all inquiries into and discussions about the Business solely through FBN and shall not directly contact the Seller or the Seller’s representatives. Should Buyer purchase all or part of the stock or assets of Business, acquire any interest in, or become affiliated in any capacity with Business, with or without FBN’s participation, and in any way interfere with FBN’s right to a fee, Buyer shall be liable to FBN and any cooperating broker for such fee and any other damages including reasonable attorney’s fees and costs.
- FURTHER TERMS: Neither Buyer nor Buyer’s agents will contact Seller’s employees, customers, landlords, or suppliers, nor linger, or otherwise observe the Business, without Seller’s consent. For three years, Buyer shall not directly or indirectly solicit for employment any employees of Seller. FBN may act as a dual agent representing both Buyer and Seller, or as a “Transaction Broker” if in FL. Seller, Seller’s successors, and Seller’s franchisor are specifically intended to be beneficiaries of the duties and obligations of this Agreement and may prosecute any action at law or in equity necessary to enforce its terms and conditions as though a party hereto. This Agreement can only be modified in writing, signed by both FBN and Buyer. Waiver of any breach of this Agreement shall not be a waiver of any subsequent breach. This Agreement supersedes all prior understandings or agreements between the parties with respect to its subject matter. All parties to this agreement agree to mediate, in good faith, any dispute prior to initiating arbitration or litigation. The prevailing party in the event of arbitration or litigation shall be entitled to costs and reasonable attorney fees except that any party found in those proceedings, to have failed to mediate in good faith shall not be entitled to attorney fees and costs. The venue shall be the county in which the FBN listing office is located. The venue for any action instituted to enforce any terms of the Agreement shall be in the county in which the Business is located. This Agreement may be signed in counterparts and faxed and electronic signatures may be considered as originals. If Buyer is a corporation, partnership, or other such entity, the undersigned executes this Agreement on behalf of Buyer and warrants that he/she is duly authorized to do so. Buyer acknowledges receipt of a fully completed copy of this Agreement.
Do not talk to Owners or Employees