The above-named Buyer has expressed an interest in evaluating the potential acquisition, investment in, franchise of, partnership with, or other transaction involving the above Business (the “Business Opportunity”), which is being presented by The Global Group and/or its applicable affiliated or licensed brokerage entity (collectively, “Global”).
In consideration of Global providing the Buyer with confidential and proprietary information concerning the Business Opportunity, the Buyer agrees as follows:
1. CONFIDENTIAL INFORMATION
Global may provide the Buyer with confidential or proprietary information concerning the Business, its owners and related parties, including information provided in oral, written, electronic, digital, graphic, machine-readable or other form.
“Confidential Information” includes, without limitation, Confidential Information Memoranda and business profiles, financial statements, tax information and financial projections, customer, supplier and vendor information, pricing, margins and business practices, products, services and intellectual property, employee and management information, contracts, leases and operating agreements, business plans, strategies and growth plans, marketing and sales information, technology, systems and processes and photographs, videos and other media. It also applies to all information contained within Global’s Virtual Data Room or other electronic platforms, information regarding the Seller’s identity where that identity has not otherwise been publicly disclosed, information regarding proposed transaction terms or structures, and any analyses, notes, summaries, models or other materials prepared by or for the Buyer that contain or reflect Confidential Information.
All Confidential Information shall remain the property of the Seller or the applicable owner of such information and shall be used solely for the purposes permitted under this Agreement.
2. PERMITTED PURPOSE
The Buyer may use Confidential Information solely to evaluate and, if appropriate, pursue the potential Business Opportunity. The Buyer shall not use Confidential Information for any other purpose, including to compete with the Business, solicit the Business’s customers or employees, develop competing products or services, or obtain any commercial advantage unrelated to the potential transaction.
3. CONFIDENTIALITY
The Buyer shall maintain the Confidential Information in strict confidence and shall not disclose it to any person except as expressly permitted under this Agreement. The Buyer may disclose Confidential Information to its directors, officers, employees, professional advisors, lawyers, accountants, financial advisors, lenders, financing sources, investors or other representatives who have a legitimate need to review the information for the purpose of evaluating the Business Opportunity, provided that such persons are informed of the confidential nature of the information and are subject to confidentiality obligations.
The Buyer shall remain responsible for any breach of this Agreement by any person to whom the Buyer provides Confidential Information.
4. EXCLUSIONS
Confidential Information does not include information that the Buyer can demonstrate:
is or becomes publicly available through no breach of this Agreement;
was lawfully known to the Buyer before it was provided by Global or the Seller;
is lawfully received from a third party that was not, to the Buyer’s knowledge, subject to a confidentiality obligation; or
was independently developed by the Buyer without use of or reference to the Confidential Information.
If the Buyer is required by law, court order or regulatory authority to disclose Confidential Information, the Buyer shall, to the extent legally permitted, provide Global with prompt notice and disclose only the portion legally required.
5. NO UNAUTHORIZED CONTACT
The Buyer acknowledges that Global is managing the Business Opportunity on behalf of the Seller. Without Global’s prior written consent, the Buyer shall not directly or indirectly contact or communicate with the Seller, the Business’s employees or management, customers or clients, suppliers or vendors, landlords or property owners, franchisors or licensors, lenders or financing partners introduced through Global, or other stakeholders identified through the Business Opportunity, for the purpose of pursuing, investigating or negotiating a transaction involving the Business.
All communications concerning the Business Opportunity shall be coordinated through Global unless Global expressly authorizes otherwise.
6. NON-CIRCUMVENTION
The Buyer agrees not to circumvent Global in connection with the Business Opportunity.
The Buyer shall not, directly or indirectly, enter into or attempt to enter into any sale, purchase, investment, financing, lease, management agreement, partnership, franchise arrangement, joint venture or other transaction concerning the Business with the Seller or any related party introduced or identified through Global, except through or with the knowledge and involvement of Global.
This obligation applies whether the transaction is completed directly, indirectly, through an affiliate, related entity, nominee, partner, investor or other third party. The Buyer acknowledges that Global has invested time, resources and expertise in developing, preparing and presenting the Business Opportunity and that the purpose of this provision is to protect Global’s legitimate business relationship and compensation rights.
7. BROKERAGE / TRANSACTION RELATIONSHIP
The Buyer acknowledges that Global is acting as the business broker and/or transaction representative for the Business Opportunity in accordance with its agreement with the Seller. The Buyer agrees that all transaction negotiations and communications will be conducted through Global unless otherwise authorized in writing.
Nothing in this Agreement obligates Global, the Seller or the Buyer to complete a transaction. Any commission or other compensation payable to Global shall be governed by the applicable agreement between Global and the Seller and/or any separate written agreement with the Buyer.
8. INFORMATION PROVIDED WITHOUT WARRANTY
The Buyer acknowledges that Confidential Information may have been prepared or provided by the Seller, management or other third parties. Global does not independently verify all information provided in connection with the Business Opportunity and makes no representation or warranty, express or implied, regarding the accuracy or completeness of information unless expressly stated otherwise in a definitive written agreement.
The Buyer is responsible for conducting its own independent investigation and due diligence. The Buyer acknowledges that it has been advised to obtain independent legal, accounting, tax, financing, valuation and other professional advice before entering into any transaction.
9. NO RELIANCE ON PRELIMINARY INFORMATION
The Buyer acknowledges that preliminary information, projections, forecasts, valuations and other materials provided during the evaluation process are for discussion and evaluation purposes only.
Any final transaction will be governed solely by the definitive agreements executed by the applicable parties. No information provided through the Global Room, CIM, correspondence, discussions or other preliminary materials shall constitute a representation or warranty except to the extent expressly incorporated into a definitive written agreement.
10. RETURN OR DESTRUCTION OF INFORMATION
If the Buyer decides not to pursue the Business Opportunity, or if Global requests the return or destruction of Confidential Information, the Buyer shall promptly:
cease using the Confidential Information;
return or destroy documents and other materials containing Confidential Information; and
delete electronic copies within the Buyer’s reasonable control.
The Buyer may retain copies where required by law, regulation, professional standards or bona fide internal record-retention policies, provided that such retained information remains subject to this Agreement.
11. VIRTUAL DATA ROOM
Where Confidential Information is provided through a Global Virtual Data Room or other electronic platform, the Buyer agrees to use only its authorized login credentials, not to share credentials with unauthorized persons, not to permit unauthorized access, not to download, reproduce or distribute information except as reasonably required for the permitted purpose, and to comply with any additional terms or access restrictions established by Global.
Global may suspend or terminate access to the Virtual Data Room at any time.
12. COMPETITOR / REPRESENTATION DISCLOSURE
The Buyer represents that:
the Buyer is evaluating the Business Opportunity for a legitimate business purpose;
the Buyer is not acting primarily on behalf of an undisclosed competitor;
the Buyer will disclose to Global if the Buyer is directly or indirectly affiliated with, employed by or acting on behalf of a competitor of the Business; and
the Buyer will not use Confidential Information for competitive intelligence or any purpose other than evaluating the Business Opportunity.
13. TERM OF CONFIDENTIALITY
The confidentiality and non-use obligations contained in this Agreement shall continue for three (3) years from the date of disclosure. Notwithstanding the foregoing, information that constitutes a trade secret shall remain protected for so long as it remains a trade secret under applicable law.
The provisions concerning non-circumvention and Global’s compensation rights shall survive for the period specified in any applicable brokerage or transaction agreement and, where no period is specified, for twenty-four (24) months following the Buyer’s last receipt of Confidential Information concerning the Business Opportunity.
14. REMEDIES
The Buyer acknowledges that unauthorized disclosure or use of Confidential Information, or circumvention of Global, may cause harm for which monetary damages alone may be an inadequate remedy.
Global and/or the Seller may seek any remedies available at law or in equity, including damages, injunctive relief and other appropriate relief, subject to applicable law. The Buyer shall be responsible for breaches of this Agreement caused by the Buyer or by any person to whom the Buyer provides Confidential Information.
15. INDEMNIFICATION
The Buyer agrees to indemnify and hold harmless Global and its affiliates, directors, officers, employees, agents, representatives and advisors from losses, claims, damages, liabilities, costs and reasonable legal expenses arising directly from the Buyer’s material breach of this Agreement or the unauthorized use or disclosure of Confidential Information by the Buyer or its representatives.
16. NO OBLIGATION TO COMPLETE A TRANSACTION
Nothing in this Agreement obligates Global, the Seller or the Buyer to proceed with or complete any transaction. Global and the Seller reserve the right to discontinue discussions, modify the proposed transaction, negotiate with other parties or withdraw the Business Opportunity from the market at any time.
17. NO AGENCY OR PARTNERSHIP
This Agreement does not create a partnership, joint venture, agency, fiduciary relationship or other business relationship between Global and the Buyer. Global’s role is limited to the services expressly agreed to between Global and the applicable parties.
18. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and the applicable laws of Canada. The parties submit to the jurisdiction of the courts of British Columbia with respect to disputes arising from or relating to this Agreement, subject to any mandatory applicable law.
19. LEGAL COSTS
To the extent permitted by applicable law, the party that substantially prevails in an action arising from a material breach of this Agreement may seek recovery of its reasonable legal fees and costs.
20. SELLER AS THIRD-PARTY BENEFICIARY
The Seller is an intended third-party beneficiary of the provisions of this Agreement that specifically protect the Seller’s Confidential Information and may enforce those provisions directly against the Buyer.
21. ELECTRONIC SIGNATURES AND COUNTERPARTS
This Agreement may be executed electronically and in counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement. Electronic signatures and electronic copies of this Agreement shall have the same effect as original signatures and copies to the extent permitted by applicable law.
22. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Buyer and Global concerning the confidentiality and permitted use of information provided in connection with the Business Opportunity and supersedes prior discussions concerning those matters.
Any amendment to this Agreement must be in writing and accepted by the parties. If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
BUYER ACKNOWLEDGEMENT
By signing below, the Buyer acknowledges that:
1. The Buyer has read and understood this Agreement.
2. The Buyer agrees to comply with its terms.
3. The Buyer understands that the information provided is confidential.
4. The Buyer will conduct its own independent due diligence.
5. The Buyer has been advised to obtain independent professional advice.
6. The Buyer understands that Global is representing the Business Opportunity in its capacity as a business broker and/or transaction representative.
7. The Buyer agrees that all communications concerning the Business Opportunity will be coordinated through Global unless otherwise authorized in writing.
The Buyer agrees not to circumvent Global or use Confidential Information for any unauthorized purpose.