CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This Nondisclosure Agreement (this "Agreement") is entered into by and between Peak Business Advising, LLC and the undersigned potential buyer(s) (“Potential Buyer”) or (Potential Seller(s) for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter a confidential relationship with respect to the disclosure of certain proprietary and confidential information ("Confidential Information").
1. For purposes of this Agreement, "Confidential Information" NDA shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged. If Confidential Information is in written form, the Disclosing Party shall label or stamp the materials with the word "Confidential" or some similar warning. If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide a writing indicating that such oral communication constitutes Confidential Information.
2. Confidential Information. For purposes of this NDA, “Confidential Information” includes any confidential, non-public, or proprietary information concerning the Client, including, but not limited to, the Client’s identity and the fact that the Client is considering a potential transaction (collectively, “Confidential Information”). Confidential Information does not include information that: (a) was known to Potential Buyer prior to disclosure by Peak Business Advising, LLC; (b) has become publicly known through no fault of Potential Buyer; (c) was disclosed to Potential Buyer by a third party having no known restriction, after reasonable inquiry, on use or disclosure; (d) was independently developed by Potential Buyer without use of Confidential Information; or (e) Potential Buyer is required by law to disclose, so long as Potential Buyer gives Peak Business Advising, LLC and the Client prompt written notice of such request.
3 Exclusions from Confidential Information: Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or (d) is disclosed by Receiving Party with Disclosing Party's prior written approval.
4. Obligations of Receiving Party: Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Confidential Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving Party shall not, without prior written approval of Disclosing Party, use for Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing Party requests, it in writing. The Receiving Party is prohibited from speaking or otherwise engaging with any employee or vendor of Disclosing Party.
5. Time Periods: The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.
6. Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
7. Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
8. Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
9. Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
Protection and Use. Potential Buyer acknowledges that disclosure of any Confidential Information may cause the Client irreparable harm and significant injury. Potential Buyer and its Representatives shall keep the Confidential Information confidential, and not disclose, reproduce, or otherwise discuss or make available all or any part of the Confidential Information in any form to any person or entity without written consent from the Client. Potential Buyer shall use the Confidential Information solely for the purpose of evaluating a potential acquisition of the Client (the “Acquisition”) and shall not use any Confidential Information in a way that is detrimental to Peak Business Advising, LLC or the Client. Potential Buyer agrees that it will not use Confidential Information to solicit any of Client’s employees, customers, or suppliers; provided, that any such solicitation in the ordinary course of business without the use of Confidential Information is not precluded by this NDA. Any Representatives that receive Confidential Information shall assume the same obligations as Potential Buyer under this Agreement, and Potential Buyer hereby assumes full responsibility for any breach of this NDA by its Representatives. Confidential Information shall not be reproduced in any form except for internal use by Potential Buyer and its Representatives. Potential Client also agrees to not circumvent Peak Business Advising, LLC by contacting the Client directly without consent of Peak Business Advising, LLC.
Resolution Process. This NDA shall be construed in accordance with the laws of the State of Tennessee without regard to any conflict of laws principles. The parties agree that any controversy or claim relating to this NDA shall be subject to binding arbitration under the Federal Arbitration Act, administered under the applicable rules of the American Arbitration Association, and held in Williamson County, TN. The prevailing party, as determined by the arbiter’s award, shall receive reimbursement from the non-prevailing party for all expenses and attorneys’ fees incurred in enforcing any rights herein. The parties agree not to initiate any complaint, review, post, claim, or accusation(s) in any format whatsoever, including verbally and online, without first complying with the requirements. Notwithstanding the foregoing, in the event of Potential Buyer’s breach or threatened breach of this NDA, Client shall be entitled, without posting any bond or security, to seek injunctive or other equitable relief in a court of competent jurisdiction. The provisions of this Section shall survive termination or expiration of this Agreement and shall be binding upon the successors and assigns of Potential Buyer.
This Agreement and each party's obligations shall be binding on the representatives, assigns and successors of such party. Each party has signed this Agreement through its authorized representative.
