Confidentiality Agreement
Corner Realty (“Broker”) is presenting for sale a 3X Convenience Stores with Fuel in Oregon (“the Opportunity”), comprising three gas station & convenience store properties, (“the Properties”) by the Properties’ owner (the “Owner”). Broker’s agreement with the Owner requires that we obtain a Non-Disclosure Agreement (the “Agreement”) before disclosing the name and location of the Properties. The undersigned (the “Recipients”) hereby acknowledge and agree that certain Confidential Information (as defined below) that has been or may be disclosed is intended solely for Recipient’s limited use in considering whether to pursue negotiations to acquire the Properties.
Confidential Information is all information, whether or not such information is labeled or otherwise identified as confidential, including information obtained through documents, observations, inspection of facilities or discussions with the Owner or Broker, and all analyses, compilations, data studies or other documents prepared by the Recipients containing or based upon, in whole or in part, any such information concerning the Opportunity. Confidential Information is not information that (i) is or becomes generally available to the public, other than as a result of a disclosure by the Recipients; (ii) become available to the Recipients on a non-confidential basis from a source other than Owner or Broker, provided that such source is not bound by a confidentiality agreement with Owner or Broker or is otherwise prohibited from transmitting the Confidential Information to the Recipient by a contractual, legal or fiduciary obligation; (iii) can be shown by documentary evidence that it was known to the Recipient on a non-confidential basis prior to disclosure by Owner or Broker; (iv) authorized in writing by Owner or Broker; or (v) required by legal subpoena, court order or other legal process provided that Recipients shall first notify the Owner or Broker so that they may seek a protective order or appropriate remedy to ensure the Confidential Information receives confidential treatment.
Neither the Owner nor Broker or any of their respective officers, employees or agents, make any representation or warranty, expressed or implied, as to the accuracy or completeness of this Confidential Information and no legal liability is assumed or shall be implied with respect thereto. Information provided has been or will be gathered from sources that are deemed reliable; however, neither Owner nor Broker warrants or represents that the information is true or correct. Recipients are advised to verify information independently. Owner and/or Broker reserve(s) the right to change any Properties or market information provided, or to withdraw the Properties from the market at any time without notice.
Recipients agree that the information provided by Broker is confidential and as such, agrees to hold and treat such information in the strictest of confidence and to only disclose Confidential Information to its employees who need to know the Confidential Information to evaluation the Opportunity. In addition, Recipients agree not to disclose, directly or indirectly, or permit anyone else to disclose this information to any person, firm or entity without prior written authorization of Owner or Broker and not use or permit to be used this information in any fashion or manner detrimental to the interests of Owner or Broker. Photocopying or other duplication of such Confidential Information is strictly prohibited. Recipients agree not to i) solicit any store or Owner’s employees for employment, ii) discuss the Properties nor the nature of this NDA with such employees, iii) nor mention a potential sale of the Properties to the Properties’ staff, employees, officers, shareholders, vendors, or competitors in connection with Recipients’ review of the Properties or Confidential Information, and that any breach of this Agreement shall be subject to actual and punitive damages to the Recipient. IN ADDITION, THE CONFIDENTIAL INFORMATION SHALL NOT BE DEEMED AS REPRESENTATIVE OF THE STATE OF AFFAIRS OF THE PROPERTIES OR CONSTITUTE AN INDICATION THAT THERE HAS BEEN NO CHANGE IN THE BUSINESS OR AFFAIRS OF THE PROPERTIES SINCE THE DATE OR PREPARATION OF THIS AGREEMENT.
Recipient acknowledges that any breach of this Agreement shall result in irreparable and continuing damage to Broker and Owner and, therefore, in addition to any other remedy which may be afforded by law, any breach or threatened breach of this Agreement may be prohibited by restraining order and/or injunction or any other equitable remedies of any court.
Recipient further acknowledges and agrees that Owner is an intended third-party beneficiary of this Agreement. As such, Owner shall have the right to enforce the terms and provisions of this Agreement directly against Recipient, including but not limited to seeking remedies for any breach of the confidentiality obligations set forth herein. Buyer expressly agrees that Owner may exercise all rights and remedies available under this Agreement and applicable law as if Owner were a party to this Agreement. This provision shall not limit or affect Broker’s rights to enforce the terms of this Agreement independently.
While Owner and/or Broker may discuss the purchase and sale of the Properties with Recipients, either Owner or Broker, in their sole and absolute discretion, may terminate sale discussions at any time and for any reason. Recipients acknowledge that neither Owner nor Broker has any obligation to discuss or agree to the sale of the Properties. The acquisition discussions may be lengthy and complex. Notwithstanding that the parties may reach one or more oral understandings or agreements on one or more issues, neither of the parties shall be bound by any oral agreement of any kind, and no rights, claims, obligations or liabilities of any kind, either expressed or implied, shall arise or exist in favor of or be binding upon either Owner or Broker except to the extent expressly set out in a written agreement signed by both Owner and Broker.
This letter will further confirm that Recipients understand that Broker is presenting the information on the above-referenced Properties and that Recipients agree that all initial correspondence and agreements pertaining to the opportunities and subsequent purchase shall be submitted through Broker. Recipient shall not contact the Owner directly unless given written permission by Broker or act either directly, indirectly, through any third parties including affiliates, other clients or other brokers to circumvent the purpose of this Agreement.
The term of this Agreement is for two (2) years from the date below,
Upon the Owner or Broker’s request, Recipient will return or destroy (with certification of such destruction in writing) all Confidential Information except for copies of Confidential Information kept as part of archival records (including backup systems) that are kept in the ordinary course business as part records retention policies and which may be accessed only by legal or information technology professionals as part of their regular duties.
All ownership rights in the Confidential Information shall remain with the Owner. No right or license is granted hereby to Recipients in relation to the Confidential Information and/or any or all data contained therein, derived therefrom or relating thereto.
This Agreement is not an offer, an acceptance, or a contract to negotiate any other transaction, nor is it intended to require the parties to proceed with or continue such negotiations or transactions. Other than the duties of nondisclosure and confidentiality as provided herein, this Agreement shall not give rise to any obligation for either party to disclose any information, including the Confidential Information.
The parties understand and agree that no failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.
In any legal action instituted by either party to enforce the terms of this Agreement, the prevailing party will be entitled to its costs and expenses (including reasonable attorneys’ fees and costs to collect such damages) incurred in connection therewith. Notwithstanding anything in this Agreement to the contrary, in no event shall either party be liable for consequential, incidental, special, or exemplary damages of any kind or nature whatsoever.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to the conflict of laws principles thereof. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts in Angelina County, Texas for purposes of this Agreement.
By filling in your information you are accepting the terms of this agreement.
Corner Realty’s team provides full service real estate expertise to retailers and distributors, including asset dispositions, Net Lease sales, financing, and growth capital. Please see www.corner-realty.com. This is not a solicitation
nor offering of securities. 1
