J&S Emerald Coast, LLC, a Florida limited liability company, dba Emerald Coast Business Intermediaries (“ECBI”), has entered into an agreement to confidentially market a business (the “Business”) owned by a seller (“Seller”) which requires ECBI to obtain (a) a Non Disclosure and Noncompetition Agreement (“Agreement”) with and (b) evidence of financial ability from every potential purchaser or lessee of the Business before disclosing the name and location of the Business and Seller.
IN CONSIDERATION of the disclosure of confidential information related to Seller and the Business and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned potential purchaser (hereinafter “We”, “Our” or “Us”) agree to be bound by the following terms: WE ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. Information provided on the Business by ECBI is sensitive and confidential and is the proprietary property of Seller and its disclosure to others would be damaging to the Business, to Seller and to ECBI's fiduciary relationship with Seller;
2. We will not disclose any Information regarding the Business or Seller to any other person who has not also signed and dated this Agreement, except to secure their advice and counsel, in which case We agree to first obtain their consent to maintain such confidentiality. "Information" shall include the fact that the Business is for sale and also includes, but is not limited to, other data pertinent to the Business and the potential sale thereof. The term Information does not include any information that is, or becomes, generally available to the public or is already in Our possession;
3. All Information provided to Us will be returned to ECBI upon request and We will retain no copies, summaries, analyses or extracts thereof;
4. We will not contact or attempt to contact Seller, Seller’s employees, suppliers, or customers, directly or indirectly, except through ECBI. We will not use the Information to establish a competitive advantage over Seller or the Business, to compete with the Business, and We agree not to circumvent or disclose to any person or entity the contents of this Agreement, nor to contact any business source (whether a lender, agent, broker, associate, business affiliated with the Business, parallel company or other person or entity affiliated in any manner with the Business) for any reason, and to maintain complete confidentiality of the mechanics of any transactions conducted during the term of this Agreement;
5. All Information is provided by Seller and is not verified in any way by ECBI. ECBI is relying upon Seller for the accuracy and completeness of the Information, has no knowledge of the accuracy of the Information and makes no warranty, express or implied, regarding the Information. Prior to finalizing an agreement to purchase the Business, We agree to be solely responsible for making an independent verification of all Information. We further agree to indemnify and hold ECBI and its representatives harmless from any claims or damages resulting from use Our use of the Information, and will look only to Seller and to our own investigation of the Information;
6. ECBI does not give tax, accounting, or legal advice;
7. If We enter into an agreement to purchase the Business and in the event we request financing by Seller, We grant to Seller the right to obtain, through standard reporting agencies, financial and other credit information concerning Us or any entities We represent, and We understand that this information will be kept confidential by Seller and ECBI and will only be used to determine the feasibility of any transaction between Us and Seller. In the event We pay an earnest money deposit and cannot consummate the purchase of the Business through no fault of Our own, the earnest money deposit will be refunded in full LESS any amounts expended for an appraisal, credit report, U.C.C. filing search, legal fees, or other expenses incurred and agreed to, or for services from which We derive a benefit. We further agree that if We should refuse to or delay completion of this transaction through no fault of Seller, the earnest money deposit will be forfeited;
8. All correspondence, inquiries, offers to purchase, and negotiations relating to the purchase or lease of the Business will be conducted exclusively through ECBI.
9. All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application or enforcement of this Agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration. Any dispute, claim, controversy, protest or disagreement arising out of any aspect of this Agreement, or any issue concerning any oral contract, or any issue concerning the arbitrability of this Agreement, upon the request of either party, shall be referred to a single arbiter agreed to by the parties or selected in accordance with the rules of the American Arbitration Association. The cost of arbitration shall be split equally between the parties and judgment upon the award shall be final and binding upon the parties and may be entered in any court having jurisdiction thereof.
10. Should the parties mutually agree in writing to forgo arbitration, We agree to submit to judicial process in any court located only in Okaloosa County, Florida.
11. We specifically agree that Seller has a vital interest in the provisions of this Agreement, and that Seller, as a third party beneficiary of this Agreement, has the right to enforce this Agreement according to its terms. This Agreement shall survive until the earlier of two (2) years or to the date of closing of Our purchase of the Business.
