BUYER ACCEPTANCE AND AGREEMENTS:
By clicking the box below and submitting this form, Buyer hereby agrees and acknowledges that this Confidentiality Agreement, Buyer Release and Agency Disclosure is entered into electronically, is valid and binding upon the Buyer, and Buyer further represents that he/she has read and accepts the terms of this Confidentiality Agreement, Buyer Release and Agency Disclosure.
Terms of Confidentiality Agreement, Hold Harmless, Agency Disclosure and Buyer Data Release
The undersigned Buyer, individually and behalf of any affiliated prospective buyer, acknowledges being first introduced to the business of interest by Broker or its agent CHASE GROUP BUSINESS BROKERS, INC. and requests Confidential information about the Business. Such Confidential Information shall be provided to Buyer for the sole purpose of evaluating the possible purchase by Buyer of all or part of the stock or assets of the Business. As used in this agreement ("Agreement"), the term Buyer ("Buyer") applies to the undersigned and any partnership, corporation individual or other entity with which the undersigned is affiliated. Buyer agrees as follows:
• NON-DISCLOSURE OF INFORMATION: Buyer acknowledges that the owner of the business (Seller) desires to maintain the confidentiality of the information disclosed. Buyer agrees not to disclose or permit access to any Confidential Information without the prior written consent of Seller, to anyone other than Buyer's legal counsel, accountants, lenders or other agents or advisors to whom disclosure or access is necessary for Buyer to evaluate the Business. Disclosure of Confidential Information shall be made to these parties only in connection with the potential acquisition of the Business, and then only if these parties understand and agree to maintain the confidentiality of such Confidential Information. Buyer shall be responsible for any breach of this Agreement by these parties, and neither Buyer nor these parties shall use or permit the use of Confidential Information in any manner whatsoever, except as may be required for Buyer to evaluate the business or as may be required for legal process. If the Buyer does not purchase the Business, Buyer, at the close of negotiations, will destroy or return to Broker (at Seller's discretion) all information provided to Buyer and will not retain any copy, reproduction, facsimile or record thereof.
• DEFINITION OF "CONFIDENTIAL INFORMATION": The term "Confidential Information" shall mean all information including the fact that the business is for sale, all financial, marketing, production and pricing information, business methods, business manuals, manufacturing procedures, correspondence, processes, data, contracts, customer lists, employee lists, and any other information whether written, oral, or otherwise made known to Buyer: (a) from any inspection, examination, or other review of the books, records, assets, liabilities, processes or production methods; (b) from communication with the Seller or Seller's broker, directors, officers, employees, agents, suppliers, vendors, customers or representatives; (c) during visits to the Seller's premises; or (d) through disclosure or discovery in any other manner. Confidential Information, however, does not include any information that is readily available and known to the public.
• BUYER'S RESPONSIBILITY AND DISCLAIMER OF BROKER'S LIABILITY: The Brokers have received information about the Business from the Seller which may include, but is not limited to, tax returns, financial statements, equipment lists, and facility leases. Based on information provided by sellers, brokers often prepare a summary description of the business which may include a cash flow projection, an adjusted income statement, or a seller's discretionary cash-flow statement. Buyer understands that the Broker does not audit or verify any information given to the Broker or make any warranty or representation as to its accuracy or completeness, nor in any way guarantee future business performance. Buyer is solely responsible to examine and investigate the Business, its assets, liabilities, financial statements, tax returns, and any other facts which might influence Buyer's purchase decision or the price Buyer is willing to pay. Any decision by Buyer to purchase the Business shall be based solely on Buyer's own investigation and that of Buyer's legal, tax, and other advisors, but not that of Broker.
• NON-CIRCUMVENTION AGREEMENT: The Seller has entered into an agreement providing that Seller shall pay a fee to the listing broker if, during the term of that agreement or up to twenty-four months thereafter, the Business Assets or Stock are transferred to a buyer introduced by the broker or a cooperating broker. Buyer shall conduct all inquiries into and discussions about the Business solely through Broker and shall not directly contact the Seller or the Seller's representatives. Should Buyer purchase all or part of the stock or assets of the Business, acquire any interest in, or become affiliated in any capacity with the Business without Broker's participation, or in any way interferes with Broker's right to a fee, Buyer shall be liable to the listing broker and the cooperating broker for such fee and for any other damages including reasonable attorney's fees and costs.
• FURTHER TERMS: Neither Buyer nor Buyer's agents will contact Seller's employees, customers, landlords, or suppliers, nor linger, or otherwise observe the Business, without Seller's written consent. For three years, Buyer shall not directly or indirectly solicit for employment any employees of Seller. Broker may act as dual agent representing both Buyer and Seller. Seller and Seller's successors are specifically intended to be beneficiaries of the duties and obligations of this Agreement and may prosecute any action at law or in equity necessary to enforce its terms and conditions as though a party hereto. This Agreement can only be modified in writing, signed by both the Broker and Buyer. Waiver of any breach of this Agreement shall not be a waiver of any subsequent breach. This Agreement supersedes all prior understandings or agreements between the parties with respect to its subject matter. This Agreement shall be construed under and governed by the laws of the State of California. The venue for any action instituted to enforce any terms of this Agreement shall be the County in which the Business is located. This Agreement may be signed in counterparts and faxed and electronic signatures may be considered as original. If Buyer is a corporation, partnership, or other such entity, the undersigned executes this Agreement on behalf of Buyer and warrants that he/she is duly authorized to do so. Buyer may be liable for Broker's fee for breach of any term herein. Buyer acknowledges receipt of a fully completed copy of this Agreement.
• BUYER RELEASE AND HOLD HARMLESS AGREEMENT: The Buyer / Registrant, individually and behalf of any affiliated prospective buyer(s), acknowledges being first introduced to the following business (“Business”) by Broker or its agent of Chase Group (“Broker”), and receiving public and/or private, confidential information pertaining to and belonging to the business.
Buyer agrees as follows:
1. “AS IS” BULK ASSET OR CORPORATE STOCK SALE: Buyer acknowledges that the business (Seller) is selling without warranty or representation of financial performance, and that no claims of sales or profits are being made by Seller. This sale is for a bulk sale of the business assets or a corporate stock sale, and as such the items for sale may include the Furniture, Fixtures & Equipment (FF&E), and may include other intangible assets not related to any financial performance claims.
A. Any future profits or sales are not represented or guaranteed by Broker.
B. The undersigned may cancel the agreement to purchase the Business at any time prior to releasing contingencies as stated in any Purchase Agreement during escrow.
C. Buyer agrees that there is no reliance upon any representations, warranties or guarantees made by Broker, and, further, that Buyer is solely and exclusively relying on Buyer’s own independent assessment, knowledge and investigation of facts and information related to the Business in reaching Buyer’s decision to acquire the Business.
2. INDEMNIFY AND HOLD HARMLESS: The Undersigned, jointly and severally, (a) agree to indemnify and hold harmless, and (b) forever release and discharge Broker and its respective officers, directors, stockholders, successors and assigns, and all persons acting by, through, under or in concert with them, from, against and with respect to any and all actual or threatened liabilities, claims, actions, causes of action, judgments, orders, damages (including all foreseeable and unforeseeable damages), costs, expenses, fines, penalties and losses (including sums paid in settlement of claims and all consultant, expert and legal fees and expenses of Broker’s counsel) (collectively “claims”) arising, directly or indirectly, out of or in connection with Buyer’s purchase of the above Business.
3. WAIVER OF RIGHTS: The Buyer hereby waives all rights under section 1542 of the Civil Code of the State of California which presently provides as follows: A. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
4. ACKNOWLEDGEMENT: The Buyer expressly acknowledges that Buyer may hereafter discover claims presently unknown or unsuspected by Buyer, or facts in addition to or different from those which Buyer knows or believes to be true as to the matters addressed herein. Nevertheless, it is Buyer’s intention through this Agreement to fully, finally, and forever release all such matters notwithstanding the discovery or existence of any such additional facts or claims.
5. FURTHER TERMS: Buyer represents and acknowledges that in executing this Agreement that Buyer does not rely and has not relied on any representation or statement made by Broker, its agents, attorneys, assigns or representatives with regard to the subject matter, basis or effect of this Agreement or otherwise other than those specifically stated within this written Agreement. Buyer represents that Buyer is duly authorized to sign, enter and bind Buyer and Buyer’s affiliates under the terms of this Agreement. Buyer acknowledges receipt of a copy of this Agreement.
• AGENCY DISCLOSURE: Agency and Dual Agency: The following is a portion of California Civil Code section 2079.16, which requires disclosure of some concepts and definitions concerning the relationship between a principal and an agent in the sale of certain residential real estate. While the listing and sale of a business is not a transaction requiring the use of the form prescribed by that Code section, the information provided is completely applicable to the business sale context as well, and you are requested to read it carefully and acknowledge that you have been advised of its contents.
When a broker lists a business for sale, the broker becomes an “agent” representing the seller. The same broker also often works with prospective buyers, and by the nature of that relationship, becomes a buyer’s agent as well; this is called “dual agency.” Although a buyerand seller are sometimes represented by different agents of the same brokerage firm, this is also a dual agency, because the broker who employs each of the agents is really the agent for both parties. Full Disclosure: Under California law, the buyer and the seller of a business are each required to fully and fairly disclose to the other, any and all information which is known to that party, or reasonably should be known, and which may or will be “material” to the other party’s decision to enter into the transaction. An agent must fully disclose all relevant information known to the agent to the party or parties that the agent represents. An agent, whether acting only for one party, or as a dual agent, must make the same such disclosures to the other party, or to the other party’s agent, and cannot withhold any material information which such agent may know, or in the exercise of reasonable diligence, should discover.
Price and Valuation: There is an exception to the rule that a dual agent must disclose all information in his or her possession. In representing both seller and buyer, the agent shall not, without the express permission of the respective party, disclose to the other party that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price offered, even though there otherwise might be a duty to do so. Likewise, a broker acting as a dual agent will not disclose valuations or appraisals prepared by the broker for the seller (but must disclose any comparable sales figures which may have been a major factor in such evaluation), nor the contents of any previous negotiations, contracts or offers between either the buyer or seller and any other parties. This is the only way negotiations can be conducted when the broker represents both the buyer and the seller.
Acknowledgment of Disclosure and Agreement to Dual Agency: Each party, by signing below, acknowledges and agrees that:
1. The party has carefully read and fully understands the matters discussed above, as well as the language of the statute quoted on the reverse of this form, and has had the opportunity to ask questions and/or to seek the advice of legal counsel prior to signing below.
2. The Seller consents and agrees that the Broker representing said party may, in his discretion, act as an agent for any buyer or prospective buyer as well as for the Seller, as explained above and on the reverse hereof, and agrees to the conditions stated above.
3. The Buyer consents and agrees that the Broker representing the Seller will continue to do so even though said Broker will also represent the Buyer as a dual agent, understands all of the information stated above and on the reverse hereof and consents to such dual agency.
Excerpt from CALIFORNIA CIVIL CODE § 2079.16
SELLER'S AGENT: When you enter into a discussion with a real estate agent regarding a real estate transaction, you should from the outset understand what type of agency relationship or representation you wish to have with the agent in the transaction. A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or a subagent of that agent has the following affirmative obligations:
To the Seller: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.
BUYER'S AGENT: An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above. A selling agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not the Seller's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller. An agent acting only for a Buyer has the following affirmative obligations:
To the Buyer: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer.
To the Buyer and the Seller:
(a) Diligent exercise of reasonable skill and care in performance of the agent's duties.
(b) A duty of honest and fair dealing and good faith.
(c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties. An agent is not obligated to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.
AGENT REPRESENTING BOTH SELLER AND BUYER: A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer. In a dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer:
(a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Seller or the Buyer.
(b) Other duties to the Seller and the Buyer as stated above in their respective sections.
In representing both Seller and Buyer, the agent may not, without the express permission of the respective party, disclose to the other party that the Seller will accept a price less than the listing price or that the Buyer will pay a price greater than the price offered. The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect his or her own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional.
BUYER agrees, understands and accepts the conditions of the agreement and disclosure as they apply to any business disclosed.
