CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made by the party(s) who has or have electronically signed this Agreement (individually and collectively, the “Confidant”) for the benefit of Alex Cooper Auctioneers, Inc., a Maryland corporation (“Auctioneer”) and the owners of real property offered for sale on Auctioneer’s website(s) ( individually and collectively, the “Owner”).
1.Definitions. For purposes of this Agreement:
1.1.Information. , “Information” shall mean all information provided to Confidant by Owner or Auctioneers which relates to (a) any real property for which the Confidant will be receiving confidential information (the “Property”), (b) the possible acquisition of the Property, and (c) all data relating to the Property provided to Confidant.
1.2.Materials. “Materials” shall mean all financial data, leases, rent rolls, records, reports, drawings or other documents, including all copies, extracts, and summaries thereof, containing any information provided to Confidant, and expressly includes without limitation all Materials in electronic format.
1.3.Authorized Use. “Authorized Use” of the Information and Materials shall mean use by Confidant in the course of determining whether to acquire the Property.
2.Limited Use. Confidant acknowledges that Confident is to be given access to the Information and Materials solely for purposes of the Authorized Use and that execution of this Agreement is a material condition precedent to Owner and Auctioneer to induce Owner and Auctioneer to disclose such Information and Materials. Confidant agrees that Confidant (1) will not use the Information and/or Materials for any purpose other than the Authorized Use, (2) will keep the Information and Materials confidential at all times, and (3) will not copy or modify the Information or Materials, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized in writing by Owner. Confidant shall limit its disclosure of the Information and Materials to employees within its own organization and outside consultants (accountants, lawyers and engineers) (collectively, its “Representatives”) who (A) have a legitimate need to receive such Information and Materials in order to accomplish the Authorized Use, and (B) have agreed to maintain keep such Information and Materials confidential at all time. Confidant shall be responsible for any breach by any of Confidant’s Representatives of the terms of this Agreement. Confidant agrees to use the same degree of care to protect the Information and Materials that it would use to protect its own similar information, but in no event less than reasonable and prudent care. If Confidant is required to disclose the Information and/or Materials pursuant to court order or otherwise in connection with any legal proceeding, it will first so advise Owner and Auctioneer in writing at least one week prior to the required date of disclosure (or immediately if Confidant is required to disclose upon notice of less than one week).
3.Proprietary Protection. Owner shall have sole and exclusive ownership of all right, title and interest in and to the Information and Materials, including all copies made thereof, subject only to the rights and privileges expressly granted by Owner herein.
4.Disclaimer. Except as may otherwise be set forth in a signed, written agreement between the parties, neither Owner nor Auctioneer makes any representation or warranty as to accuracy, completeness, condition, suitability or performance of the Information or Materials. Owner and Auctioneer shall have no liability whatsoever to Confidant resulting from Confidant’s use of the Information and Materials. Confidant understands and agrees that all Property will be sold "WHERE IS" and in "AS IS" condition without any warranty as to condition, express or implied, and without any representation or warranty as to the accuracy of the Information and Materials, unless otherwise set forth in a signed, written agreement. Confident represents that Confident and its Representatives, without reliance on the Information and Materials, have the expertise and experience to evaluate the issues and risks in purchasing the Property.
5.Non-Interference. Without the prior written consent of Owner and Auctioneer, Confidant shall not have any contact with any person or entity identified in the Information or Materials for any purposes related to the Information, Materials or Property. Without limitation, Confident shall be liable for all actual and consequential damages arising out of, and shall hold harmless Owner and Auctioneer from, any breach of this provision or any other provision of this agreement.
6.Term and Termination. Upon the earlier of Owner’s request or the completion of the Authorized Use, Confidant shall promptly return or destroy (at Owner’s option) all Information and Materials and discontinue all further use thereof. Upon Owner’s request, Confidant shall promptly certify that such action has been taken.
7.Attorneys Fees. In the event of any controversy or dispute arising out of this Agreement, the substantially prevailing party/ies shall be entitled to recover from the non-substantially prevailing party/ies its/their reasonable expenses, including, but not limited to, its/their reasonable attorneys fees and other costs.
8.Waiver of Defenses. Confidant confirms that the restrictions on its use of the Information and Materials are reasonable, and hereby waives any defenses to the strict enforcement thereof. Confidant agrees that money damages would not be a sufficient remedy for Confidant’s breach of this agreement, and in the event of a breach or threatened breach by Confidant or any of Confidant’s Representatives of any of the provisions of this agreement, Owner and Auctioneer, in addition to any other remedies available to them under law or in equity, shall be entitled to seek an injunction restraining Confidant and any of its Representatives from the furtherance of acts which constitute a breach of this agreement (without the necessity of exhausting any other remedies for any such breach or threatened breach).
9.General. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of Maryland, as it applies to a contract executed, delivered and performed solely in such state. Confidant may not sell, transfer, assign, sublicense or subcontract any right or obligation hereunder without the prior written consent of Owner. This Agreement may not be modified or waived, in whole or in part, except by a written agreement signed by Confident, Owner and Auctioneer. This Agreement is binding upon the parties hereto, Confidant’s Representatives, and their respective personal representatives, heirs successors and assigns.
10. Electronic Signature Agreement. By selecting the webpage button to accept the terms and conditions of this Agreement, Confidant is signing this Agreement electronically, and agrees that Confidant’s electronic signature is the legal equivalent of a manual signature on this Agreement. Confidant agrees and consents to be legally bound by this Agreement's terms and conditions. Confidant also agrees that no certification authority or other third party verification is necessary to validate Confidant’s electronic signature and that the lack of such certification or third party verification will not in any way affect the enforceability of this Agreement. Confidant also represents that Confidant is authorized to enter into this Agreement. Further, this form of acceptance by Confidant shall be binding and enforceable pursuant to the Electronic Signatures in Global and National Commerce Act, 15 USC §§7001 et seq., the Maryland Uniform Electronic Transactions Act, Title 21 of the Commercial Law Article of the Maryland Code, and other applicable laws, rules, regulations and/or guidance relating to the use of electronic signatures.
V1 04/20/2017
