In connection with the potential acquisition by you (“You” or “Buyer”) of a listing presented by EPC, INC doing business as Deal Flow Brokerage, Inc. (“EPC”, “DFB” or “Us” or “We”), Deal Flow Brokerage will be furnishing you information regarding one or more listings (“Listings”, “Listing Company”, “Seller” or “Client”), their financial and traffic performance, operations and history (“Information”) as it was provided to Us by the Seller. In consideration of obtaining this proprietary information, You agree:
1. Confidential and Proprietary Information. All the Information provided regarding a Listing, will be considered proprietary and confidential, unless such information was demonstrably publicly available prior to the time it was shared with You.
2. Non-Disclosure. Unless We agree otherwise in writing, You will not disclose or reveal any information received, including but not limited to, the URL(s) or any other identifying information of the Listing Company, its financial information, marketing efforts, vendor relationships, keyword lists, traffic sources, source code or any other information received, for two years from the date of the information being provided to You. You agree not to share this information with any person(s) or entities, other than your employees or professionals who are directly participating in the evaluation of this information, and not for any purpose other than in connection with a proposed acquisition. You acknowledge You will be liable in the event that any person or entity You share the information with violates the terms of this agreement.
3. Fair Use of Information. The Information provided You is to be used solely to evaluate whether You wish to acquire the assets of the Listing Company. You agree to not use this information as a method to discover profitable niches, business ideas, vendor relationships, marketing methods, or other Information which may be used to start up a business or aid an existing business in competition with the Listing Company. If, at the time of requesting a marketing package from Deal Flow Brokerage, you believe that you are currently, or have definitive plans to be involved in a competitive business within two years of requesting Information from Deal Flow Brokerage, you are obligated to inform Us in writing or by email prior to requesting the Information. We will seek permission from the Seller to share Information with You. You acknowledge the Seller may choose not to allow Us to share the Information.
4. Agreement Term. This agreement will apply and be binding for any and all Listings and is not limited to any single Listing. Any timeline listed in this agreement is commenced upon Your initial receipt of information from Deal Flow Brokerage regarding the individual Listing in question.
5. Availability of Information. You agree that some Sellers require Us to verify proof of available funds before sharing information, and that if you cannot produce such proof, We will not be able to share information with You for those particular Listings. Furthermore, this agreement does not constitute a right to Information on all Deal Flow Brokerage Listings. Deal Flow Brokerage and Seller(s) maintain the right to refuse to provide the Information on any or all Listings at their complete and sole discretion.
6. Updates to Terms and Conditions. This agreement will remain on file with Us indefinitely. Should Deal Flow Brokerage deem it necessary to update the terms required to view Listings, You will be presented with a new agreement with the updated terms. You may choose not to agree to changes, but in such a situation You will no longer be allowed to view Listings, and this Agreement will continue to apply to information already shared. In such a situation, the terms of this agreement will remain in full force and effect for any Listings to which You have previously been provided Information.
7. Destruction of Information. If You decide that You do not wish to pursue the acquisition of any given Listing, or if that Listing sells to another Buyer, or if one hundred eighty (180) days pass from the time You requested Information and You have not made an offer which has been accepted by the Seller, then You will return to Us all hard copies of proprietary Information and/or destroy/delete any electronic Information
furnished to You, without keeping copies of it.
8. Non-Circumvention. You agree not to circumvent our relationship with the Listing Company in any way. You recognize that Deal Flow Brokerage has a signed agreement with the Listing Company that entitles Deal Flow Brokerage to a marketing fee should they consummate on the sale of their Listing. If You conduct a transaction with any of our Clients for any of the assets presented by Deal Flow Brokerage within two years of us presenting You with Information about the listing, and You do not inform Deal Flow Brokerage of such, You will be liable for our marketing fee if We are unable to collect it from the Seller.
9. Non-Warranty of Information. Although You understand that Seller has included in this proprietary Information certain Information considered relevant for the purpose of Your investigation, We do not make any representation or warranty as to its accuracy or completeness. You are responsible for performing Your own verification and due diligence on any Listings for which You request Information. You understand Deal Flow Brokerage passes the Information from Seller to You without offering any opinion on on its accuracy or completeness.
10. Pass Through Entity. You recognize and agree that Deal Flow Brokerage is an entity at which a Seller may list the assets of their online business for sale. Deal Flow Brokerage does not generate the Information nor verify the Information provided. All Information provided is solely the responsibility of the Listing Company. Furthermore, the decisions regarding the sale of the Listing Company’s assets are solely the responsibility of the Listing Company. Deal Flow Brokerage makes no representations outside of its status as an online marketplace.
11. Opt-In. You agree that You have voluntarily requested Deal Flow Brokerage to send You updates about new Listings (if you have signed up for Deal Flow Brokerage’s email list) as well as Information about specific Listings on which you inquire.
12. Deal Structure. You acknowledge that in all Listings We present, a Listing company has asked Us to assist in an asset sale. Should You and the Seller agree to any other form of deal other than an asset purchase/sale, You will indemnify and hold Deal Flow Brokerage, it’s advisers, contractors, employees, successors, heirs and affiliates harmless from any actions resulting in that decision. In addition, you will defend, indemnify and hold harmless Deal Flow Brokerage for any claims by successors, assigns, or interested parties to your participation in any transaction or proposed transaction contemplated by this Agreement.
13. Laws and Ordinances. You agree that for any transaction You undertake with the Listing Company for any Listings presented by Deal Flow Brokerage, that the deal will adhere to all local, state, national and international laws and ordinances and that You will indemnify and hold Deal Flow Brokerage, its advisers, contractors, employees, successors, heirs and affiliates harmless from any actions resulting from failure to adhere to one or more laws.
14. Licenship. You understand and acknowledge that Deal Flow Brokerage does not sell, or participate, in real estate transactions. If You require any real estate transfer in connection with a transaction contemplated by this Agreement, You must hire a properly licensed entity or person to do so. You understand that Deal Flow Brokerage and its employees are not financial advisers, accountants, attorneys or securities broker/dealers, You will not construe them as such and will hire any necessary professionals You feel necessary to protect your interests in any transactions contemplated by the this Agreement.
15. Arbitration. You agree that if you have a dispute with Deal Flow Brokerage, it will be settled by binding arbitration with the American Arbitration Association according to the laws of Wyoming. The sole venue for any claim related to this Agreement or any transaction or proposed transaction related to this agreement shall be the American Arbitration Association of Wyoming. You agree that any dispute will be brought solely against Deal Flow Brokerage and not against any of its brokers, advisers, employees, contractors, successors, heirs or affiliates as individuals.
16. Indemnification. You recognize and agree that Deal Flow Brokerage presents information that is provided to Deal Flow Brokerage by the Listing Company, and as such, You agree that Deal Flow Brokerage makes no representations or warranties as to the accuracy of any information presented and You agree to defend, indemnify and hold harmless Deal Flow Brokerage from any claims of misrepresentation.
17. Recovery. You agree that in no event will Deal Flow Brokerage be liable to You for any more than the amount of the marketing fee it collects in the process of a transaction involving You and the Seller.
18. Representation. You acknowledge that We represent the Seller in all transactions and that You are entitled to retain your own broker, lawyer, accountant, programmer, adviser or any other party whom You feel will help You arrive at an educated decision regarding a Listing. You further acknowledge that should You choose to hire anyone to help You with your decision and/or due diligence, You will bear all the cost related to that person’s services.
19. Escrow Services. You acknowledge that Deal Flow Brokerage is not a licensed escrow agent, but offers escrow services as a courtesy to our clients and Buyers. Any escrow services provided, excluding earnest deposits, shall be governed by a separate escrow agreement signed by all parties involved. You agree to hold harmless and indemnify Deal Flow Brokerage according to the terms of that separate escrow agreement.
20. Previous Agreements. This agreement does not nullify any previous confidentiality agreement signed between You and Deal Flow Brokerage. Should any conflict be discovered between previous agreements and this agreement, this agreement will supersede.
21. Recognition of Risk. The purchase of any Business or Business Assets is risky and the risk includes the potential loss of principle. You hereby acknowledge that you are aware of the risks of this type of transaction, and that you have chosen to proceed despite those risks. You further acknowledge that Deal Flow Brokerage does not perform due diligence on its listings and presents material information as it was presented by the seller. Buyers are responsible for conducting their own due diligence investigations and are advised to do so on all deals. Past performance is no guarantee of future performance.
22. Digital Signature. If I agree to this Confidentiality Agreement by using a digital signature instead of a hand-written signature, I understand that my digital signature is legally binding as if it were a hand-written signature. Any notices under this agreement may be sent to Your email listed below, and to Deal Flow Brokerage at email@example.com
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Document Name: NDA
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