(“Effective Date”) by and between the undersigned (henceforth referred to as the “Potential Buyer”) and the owner of the real estate and business (“Seller”). Seller has retained C-Store Investments (“CSI”) as their advisor for the Purpose (as hereunder defined). Disclosure of the Seller name and property location will be provided upon signing this Agreement.
WHEREAS the Potential Buyer desires to receive, review and/or evaluate certain Proprietary Information (as such term hereinafter defined) for the purpose of evaluating a potential acquisition (the “Purpose”).
WHEREAS the Seller is willing to provide the Potential Buyer with access to the Proprietary Information on the terms and conditions set out in this Agreement.
NOW THEREFORE, in consideration of the potential disclosure of such Proprietary Information, the parties hereto agree as follows:
(a) “Proprietary Information” as used herein shall mean all intangible and tangible information regarding the Purpose provided by the Seller which is not generally known to the public, relating directly or indirectly to technical data, trade secrets, assets, operational methods, private or confidential information of the Seller concerning all financial information regarding the Seller disclosed to the Potential Buyer, all customer and pricing information, and further including marketing plans and/or proposals, all to the extent that (i) such information is not readily disclosed by inspection of the Seller’s products and (ii) Seller has expressly or impliedly protected such information from unrestricted use by others.
(b) “Potential Buyer” as used herein shall mean any and all employees, agents, representatives, assigns, or any other affiliates or related entities of any kind that may be exposed to Proprietary Information for the Purpose.
2. Non-Disclosure. The Potential Buyer agrees that it shall have the obligation to:
(a) not disclose to any third party any Proprietary Information of Seller and shall use such Proprietary Information only for the Purpose; provided, however, that the Potential Buyer may disclose Proprietary Information to its agents, advisors, and consultants in connection with the Purpose;
(b) take all necessary steps to protect the Proprietary Information from disclosure and implement internal procedures to guard against such disclosures;
(c) not disclose that Proprietary Information has been made available or that discussions and negotiations are taking place or have taken place in respect to the Purpose.
(d) no license, express or implied, is granted to the Potential Buyer other than to use the Proprietary Information in the manner and to the extent authorized by this Agreement.
(e) shall not duplicate any Proprietary Information, partially or wholly.
(f) All negotiations and transactions related to the Seller and the Purpose will be managed by C-Store Investments to protect the agents position to collect professional fees. If the Potential Buyer or any undersigned individuals disclose details of the sale and that informs another buyer, the company shall be liable for the brokerage commission, and hereby agrees to full payment on demand.
Seller acknowledges that Potential Buyer may be engaged in activities that may be in competition with the business of Seller. Nothing in this Agreement shall impose restrictions upon Potential Buyer’s activities so long as it does not use any of the Proprietary Information for its benefit.
3. Survival. The section above-mentioned shall survive and continue for a period of twelve (12) months after any expiration or termination of this Agreement and shall bind Potential Buyers, employees, agents, representatives, successors, heirs, and assigns.
4. Exceptions. Notwithstanding the foregoing, “Proprietary Information” shall not include:
(a) information which is or has subsequently become public knowledge without fault of the Potential Buyer;
(b) information which is known to the Potential Buyer at the time of disclosure as evidenced by prior written records and which is not subject to an obligation of confidence owed to the Seller and imposed in another agreement or relationship;
(c) information which is lawfully obtained from a third party entitled to disclose it;
(d) information independently derived by the Potential Buyer without use of or access to the Proprietary Information;
(e) information transmitted to the Potential Buyer after the Seller has received written notice from the Potential Buyer that the Potential Buyer does not desire to receive further Proprietary Information;
(f) in connection with any dispute, claim, or litigation involving this Agreement, the parties, the Purpose, but in each case, only for the purposes of prosecuting or defending any such dispute, claim or litigation; or
(g) information required to be disclosed in compliance with applicable law or regulations or by order of a court or other body of competent jurisdiction, provided Potential Buyer gives Seller prompt notice prior to such disclosure to the extent permitted by law.
5. Notice of Disclosure. The Potential Buyer shall notify the Seller immediately of any unauthorized disclosure, misuse or misappropriation of such Proprietary Information.
6. Remedies. The Potential Buyer agrees if this Agreement is breached the Seller may be irreparably damaged and may not be made whole by monetary damages. In the event of a breach of this Agreement the Seller shall be entitled to seek specific performance and injunctive relief, as well as all other rights and remedies that may be provided by the law.
7. Governance. This Agreement must be interpreted in accordance with the laws of the Commonwealth of Massachusetts as if it were signed in the Commonwealth of Massachusetts and all acts performed or to be performed hereunder were performed entirely within the Commonwealth of Massachusetts; not including, however, any conflicts with law rule of the Commonwealth of Massachusetts may direct, require or suggest application of the law of any other jurisdiction. Each party hereby waives its right to a jury of any dispute or action arising out of or relating to this Agreement.
8. Binding Effect. This Agreement shall be binding upon the parties hereto, and their respective successors and permitted assigns. This Agreement may not be assigned by the Potential Buyer without the advance written consent of the Seller.
(a) Nothing contained in this Agreement may be construed as an obligation on either party to enter into any further agreement relating to the Proprietary Information or the Purpose.
(b) This Agreement represents the entire agreement between the Seller and the Potential Buyer relating to the subject matter hereof, and supersedes all other agreements, whether written or oral, on the same subject matter. This Agreement may not be amended or modified except in a writing signed by the party against whom such amendment or modification is to be enforced. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held by a court of competent jurisdiction to be unenforceable in any respect, such holding shall not affect any other provisions of this Agreement, and the Agreement shall then be construed as if such unenforceable provisions are not part thereof.
(c) If the Potential Buyer elects to seek representation, any costs or commissions associated with such representation shall be the responsibility of the Buyer. The Potential Buyer hereby indemnifies C-Store Investments, its agents, and seller of any such liability.
10. Data Room Access. Access will be provided to a data room upon receipt of a signed copy of this Agreement and approval from the Seller. This data room contains Proprietary Information of the Seller. The Potential Buyer agrees to keep the user names and passwords confidential and will not share it with any other person, entity, or business. Additional users can be approved on an individual basis. In the event that this Agreement is breached by an employee, consultant or financial advisor of the Potential Buyer, the Potential Buyer will be liable for such breach hereunder. Access to the data room will be revoked and Seller may seek injunctive relief, as well as all other rights and remedies that may be provided by the law.
Limitations. Under no circumstances will the Seller or any of its affiliates have any recourse to or against any of the affiliates or the respective employees, directors, officers, or personnel of the Potential Buyer or any of its affiliates (or any of the respective spouses of any of the foregoing) under or otherwise in respect of, this Agreement, all such recourse being hereby unconditionally and absolutely forever waived and released by the Seller; nor will any such persons or any such assets be the subject of any proceeding(s), attachment(s), levy(ies), execution(s) and/or similar action(s) in connection with the foregoing, it being the intention of the parties, and the Seller hereby agreeing, that the recourse of the Seller shall only be against the assets of the Potential Buyer. Under no circumstances will any party be liable for consequential, incidental, indirect or punitive damages, including decline in market capitalization, increased cost of capital or borrowing, or lost revenues or profits, for any reason with respect to any matter arising out of or relating to this Agreement, whether based on statute, contract, tort, property or otherwise, and regardless of whether arising from the relevant person's sole, joint or concurrent negligence, strict liability or other fault, it being understood and agreed that the only damages to which a party will be entitled are actual damages for direct economic loss, with all rights to any other damages being unconditionally and absolutely forever waived.
11. Term. This Agreement will remain in full force and effect for a period of twelve months after the Effective Date.
12. Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed to be an original and all of which together constitute one and the same instrument. Signatures delivered by facsimile or electronic transmission in portable document format (.pdf) are deemed for all purposes to be original counterparts of this Agreement.
MASSACHUSETTS REAL ESTATE LICENSEE - CONSUMER RELATIONSHIP DISCLOSURE
All real estate licensees must present this form to you at the first personal meeting with you to discuss a specific property. In the event this relationship changes, an additional disclosure must be provided and completed at that time.
CONSUMER INFORMATION AND RESPONSIBILITY:
If you are a buyer or seller, you can engage a real estate licensee to provide advice, assistance, and representation to you as your agent. The real estate licensee can represent you as the seller (Seller's Agent) or represent you as the buyer (Buyer's Agent), or can assist you as a Facilitator.
All real estate licensees, regardless of the working relationship with a consumer must, by law, present properties honestly and accurately, and disclose known material defects in the real estate.
The duties of a real estate licensee do not relieve consumers of the responsibility to protect their own interests. If you need advice for legal, tax, insurance, zoning, permitted use, or land survey matters, it is your responsibility to consult a professional in those areas. Real estate licensees do not and cannot perform home, lead paint, or insect inspections, nor do they perform septic system, wetlands, or environmental evaluations.
Do not assume that a real estate licensee works solely for you unless you have an agreement for that relationship.
C-STORE INVESTMENTS, LLC AND ALL ITS AFFILIATED AGENTS REPRESENT THE SELLER IN THIS TRANSACTION.
AARON CUTLER, MASSACHUSETTS REAL ESTATE BROKER LICENSE #9061842
C-STORE INVESTMENTS, LLC, MASSACHUSETTS REAL ESTATE BUSINESS LICENSE #423433