Quotegrage, Inc.
Non-Disclosure and Non-Circumvention Agreement
On this EFFECTIVE DATE of {4/19/2021}, {Broker/s} and {Buyer/s} thereafter be known as the BUYER agrees to enter into the following agreement for the asset known as {asset address or attached LOI}
(1) PURPOSE: Buyer has employed the services of Broker to assist the buyer in purchasing this specific asset, as more particularly described in Paragraph 2 below. Broker services shall include consulting with the buyer, regarding the desirability of this particular asset and the availability of financing; formatting acquisition and exit strategies; and negotiating purchase agreements. Buyer acknowledges that the Broker is not acting as an attorney, tax advisor, surveyor, appraiser, environmental expert, or structural or mechanical engineer, and that client should contact professionals on these matters.
(2) PROPERTY: See Attached Exhibit A, if applicable, which is hereby incorporated by reference and made a part hereof. The asset identified on this attached Exhibit A shall hereinafter be referred to as the “Desired Asset”.
(3) EXCLUSIVE AGENT: Buyer agrees that during the term of this agreement, all negotiations on behalf of said buyer relating to the acquisition of this specific desired asset shall be negotiated and handled by and through the Broker on an exclusive basis.
(4) TERM/CANCELLATION: This Agreement is entered into on the EFFECTIVE Date {4/19/2021}. This Agreement has a term of twelve (12) months from the EFFECTIVE Date {4/19/2021}. Except as otherwise set forth herein, this agreement may be canceled only by the mutual consent of the parties in writing.
(5) COMPENSATION OF THE BROKER(S): In consideration of the services to be performed by Broker, the buyer agrees to pay Broker/consultant a fee calculated as follows: Buyer agrees to pay a {3%} (Three Percent) broker fee based off of the final purchase price of {$} Should the buyer choose to have the broker fee paid by the seller off of the seller’s side of the settlement statement, the price will be {$} A successful transaction is contingent upon a delivered and closed as described in Exhibit A below which is to include all fees. A successful transaction is a contingent upon a delivered and closed as described in Exhibit A below which is to include all fees. The fee is due and payable to said Broker(s) upon the closing of the purchase. The fee shall apply to the specific asset/s or note/s listed in writing in this Master Fee Agreement.
Broker to designate and distribute per Fee Addendum A to be paid in escrow.
Notwithstanding anything set forth herein to the contrary, if the closing of the purchase of one or more of the desired assets is not consummated as a result of a breach or default by the buyer of this agreement, the purchase agreement, or any other related agreement, obligation, or performance, the fee shall become immediately due and payable by Buyer to Broker.
(6) NON-DISCLOSURE: In connection with its respective evaluation of the Transaction, each party, their respective affiliates and their respective directors, officers, employees, agents or advisors (collectively, “Representatives”) may provide or gain access to certain confidential and proprietary information. A party disclosing its Confidential Information to the other party is hereafter referred to as a “Disclosing Party.” A party receiving the Confidential Information of a Disclosing Party is hereafter referred to as a “Receiving Party.”
. “Confidential Information” shall mean (i) all information relating to Disclosing Party’s products, business and operations including, but not limited to, financial documents and plans, customers, suppliers, manufacturing partners, marketing strategies, vendors, products, product development plans, technical product data, product samples, costs, sources, strategies, operations procedures, proprietary concepts, inventions, sales leads, sales data, customer lists, customer profiles, technical advice or knowledge, contractual agreements, price lists, supplier lists, sales estimates, product specifications, trade secrets, distribution methods, inventories, marketing strategies, source code, software, algorithms, data, drawings or schematics, blueprints, computer programs and systems and know-how or other intellectual property of Disclosing Party and its affiliates that may be at any time furnished, communicated or delivered by Disclosing Party to Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of Disclosing Party’s facilities; and (iv) all other non-public information provided by Disclosing Party whosoever. All Confidential Information shall remain the property of Disclosing Party.
“Confidential Information,” exchanged by the parties and entitled to protection hereunder, shall be identified or marked as such by an appropriate stamp or marking on each document exchanged designating the information as confidential or proprietary.
The term “Confidential Information” as used in this Agreement shall mean any data or information that is competitively sensitive material and not generally known to the public, including, but not limited to, information relating to any of the following, which Disclosing Party considers confidential:
- ‘Accounting Information’ which includes all books, tax returns, financial information, financial forecasts, pricing lists, purchasing lists and memos, pricing forecasts, purchase order information, supplier costs and discounts, or related financial or purchasing information.
- ‘Business Operations’ which includes all processes, proprietary information or data, ideas or the like, either in existence or contemplated related to Disclosing Party’s daily and long-term plans for conducting Disclosing Party’s business.
- ‘Customer Information’ which includes the names of entities or individuals, including their affiliates and representatives, that Disclosing Party provides and sells its services or goods to, as well as any associated information, including but not limited to, leads, contact lists, sales plans and notes, shared and learned sales information such as pricing sheets, projections or plans, agreements, or such other data.
- ‘Intellectual Property’ which includes patents, trademarks, service marks, logos, trade names, internet or website domain names, rights in designs and schematics, copyrights (including rights in computer software), moral rights, database rights, in each case whether registered or unregistered and including applications for registration, in all rights or forms anywhere in the world.
- ‘Marketing and Sales Information’ which includes all customer leads, sales targets, sales markets, advertising materials, sales territories, sales goals and projections, sales and marketing processes or practices, training manuals or other documentation and materials related to the sales, marketing and promotional activities of the Disclosing Party and its products or services.
- ‘Proprietary Rights’ which includes any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, trade names, domain names, logos, trademarks, service marks, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, whether protected under contract or otherwise under law, and other similar rights or interests in intellectual property.
- ‘Procedures and Specifications’ which includes all procedures and other specifications, criteria, standards, methods, instructions, plans or other directions prescribed by Disclosing Party for the manufacture, preparation, packaging and labelling, and sale of its products or services.
- ‘Product Information’ which includes Disclosing Party’s products which are being contemplated for sale, manufactured, marketed, listed, or sold, including any fixes, revisions, upgrades, or versions, of which consists of all data, software and documentation related thereto.
- ‘Service Information’ which means the services provided by Disclosing Party, including the method, details, means, skills and training, which consists of all data, software and documentation related thereto.
The obligation of confidentiality with respect to Confidential Information will not apply to any information:
a. If the information is or becomes publicly known and available other than as a result of prior unauthorized disclosure by Receiving Party or any of its Representatives;
b. If the information is or was received by Receiving Party from a third party source which, to the best knowledge of Receiving Party or its Representatives, is or was not under a confidentiality obligation to Disclosing Party with regard to such information;
c. If the information is disclosed by Receiving Party with the Disclosing Party’s prior written permission and approval;
d. If the information is independently developed by Receiving Party prior to disclosure by Disclosing Party and without the use and benefit of any of the Disclosing Party’s Confidential Information; or
e. If Receiving Party or any of its Representatives is legally compelled by applicable law, by any court, governmental agency or regulatory authority or by subpoena or discovery request in pending litigation but only if, to the extent lawful, Receiving Party or its Representatives give prompt written notice of that fact to Disclosing Party prior to disclosure so that Disclosing Party may request a protective order or other remedy to prevent or limit such disclosure and in the absence of such protective order or other remedy, Receiving Party or its Representatives may disclose only such portion of the Confidential Information which it is legally obligated to disclose.
With respect to Confidential Information:
- Receiving Party and its Representatives agree to retain the Confidential Information of the Disclosing Party in strict confidence, to protect the security, integrity and confidentiality of such information and to not permit unauthorized access to or unauthorized use, disclosure, publication or dissemination of Confidential Information except in conformity with this Agreement;
- Receiving Party and its Representatives shall adopt and/or maintain security processes and procedures to safeguard the confidentiality of all Confidential Information received by Disclosing Party using a reasonable degree of care, but not less than that degree of care used in safeguarding its own similar information or material;
- Upon the termination of this Agreement, Receiving Party will ensure that all documents, memoranda, notes and other writings or electronic records prepared by it that include or reflect any Confidential Information are returned or destroyed as directed by Disclosing Party;
- If there is an unauthorized disclosure or loss of any of the Confidential Information by Receiving Party or any of its Representatives, Receiving Party will promptly, at its own expense, notify Disclosing Party in writing and take all actions as may be necessary or reasonably requested by Disclosing Party to minimize any damage to the Disclosing Party or a third party as a result of the disclosure or loss; and
- The obligation not to disclose Confidential Information shall survive the termination of this Agreement, and at no time will Receiving Party or any of its Representatives be permitted to disclose Confidential Information, except to the extent that such Confidential Information is excluded from the obligations of confidentiality under this Agreement.
Without Disclosing Party’s prior written consent, neither Receiving Party nor its Representatives shall disclose to any other person, except to the extent, the provisions of Paragraph 2 apply: (a) the fact that Confidential Information has been made available to it or that it has inspected any portion of the Confidential Information; (b) the fact that Disclosing Party and Receiving Party are having discussions or negotiation concerning the Transaction; or (c) any of the terms, conditions or other facts with respect to the Transaction.
(6) NON-CIRCUMVENTION: Each party herein recognizes that the identity and capacity of the clients and business associates of the other party constitute valuable proprietary business information and is the property of the disclosing party. The parties recognize that the transactions contemplated will require the disclosure of such information. Therefore, each party covenants and agrees that it will not do any act or thing to circumvent the other party’s participation in the above-described transactions, and the receipt of compensation hereunder. At any time, when so requested by consultants, the buyer shall provide (or cause a third party to provide) to consultants true, correct, and complete copies of any purchase or escrow documents relating to the subject matter of this agreement promptly.
(7) LIABILITY AND RELATIONSHIP OF THE PARTIES: Except for the obligations expressly set forth herein, neither party shall be liable to the other party for (or shall be deemed to have provided any warranty to the other party concerning) any representation, occurrence, event, claim or loss arising out of or in any manner related to the transaction contemplated herein. This exclusion applies to, without limitation, liability arising out of reliance. Each party is engaged by the other party as an independent contractor solely for the provision of consulting services and shall not be considered because of this agreement or otherwise as being an agent or employee of the other Party or any of its subsidiaries or affiliates. Each party shall have the full power and authority to select the means, manner, and method of performing services hereunder.
(8) GOVERNING LAW, AUTHORITY, ATTORNEY’S FEES: This agreement shall be governed by the laws of the State of Kentucky, notwithstanding its choice of law provisions, and notwithstanding that the property may be in another state. Each party warrants that it has the right, power, and capacity to enter this agreement. If any action is brought to enforce any provision of this agreement, the prevailing party therein shall be entitled to recover its reasonable attorneys’ fees.
(9) DISCLOSURE OF BROKER’S ROLE: Broker shall inform all prospective sellers and/or buyers (and their agents) of this specific desired asset(s) that the Broker is acting on behalf of their said client. In the event the Broker/consultant has previously worked with a buyer and/or a seller of a particular piece of property as a sub-agent, the Broker will preserve the confidentiality of any information obtained during that prior agency relationship and will not use such confidential information to the detriment of the seller. The buyer acknowledges and agrees that the preservation of this confidential information shall not constitute a breach of any fiduciary duty owed by the Broker to the client.
(10) CONFLICT OF INTEREST: Buyer acknowledges that Broker may represent other clients desirous of purchasing this desired asset. The buyer acknowledges and agrees that the Broker may show more than one client the same desired asset and may prepare offers on the same desired asset for more than one client. Broker shall preserve any confidential information disclosed by any client, and shall not disclose the existence of, or the terms of, any offer prepared on behalf of one client to another client. In the event said Broker works for two competing clients in connection with the acquisition of this specific desired asset(s), said Broker will be working equally for both clients and without the full range of fiduciary duties owed by a buyer’s agent to a buyer. In this situation, the competing clients are giving up their rights to undivided loyalty and will be owed only limited duties of disclosure, obedience, and confidentiality.
(11) COST OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES: Said Broker(s) will not obtain or order products or services from outside sources (e.g. surveys, soil tests, title reports, inspections) without the prior written consent of the buyer. Buyer agrees to pay for all costs for products or services so approved and obtained, should they approve the order in writing to the Broker/consultant.
(12) INDEMNIFICATION OF THE BROKER: Buyer agrees to indemnify Broker and to hold Broker harmless from and against any costs (including, but not limited to, court costs and reasonable attorney fees), losses, liabilities, or damages arising out of, or in connection with, Broker performance and obligations under this agreement; provided, however, this provision shall not apply to the wanton misconduct or gross negligence of Broker in performing its obligations hereunder.
(13) NON-DISCRIMINATION: It is agreed by Broker and the buyer, parties to this agreement, that as required by law, discrimination because of religion, race, color, national origin, age, sex, disability, familial status, marital status, height or weight by said parties in respect to the purchase of the desired assets is prohibited.
(14) DISCLAIMER: Broker is not guaranteeing the suitability of any desired asset for the buyer’s purposes. The buyer is not relying on the Broker to determine the environmental or other physical condition of the desired assets. Broker shall not be liable for the inaccuracy of any information or data provided by third parties in connection with the desired assets.
(15) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties. This agreement may only be modified in writing.
(16) BINDING EFFECT, GOVERNING LAW. This agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective legal representatives, successors, and assigns. This agreement shall be governed in all respects, including validity, performance, interpretation, and effect by the laws of the State of Kentucky.
(17) MASTER FEE AGREEMENT TO BE ACCOMPANIED BY A SUB FEE
AGREEMENT. Upon presentation of the buyer signed Master Fee Agreement, herein known as the MFA, to title and escrow, a Sub Fee Agreement, herein known as an SFA, may additionally be introduced at the same time. Escrow and title will be given written instructions to pay the person(s) that is/are listed in the SFA and have signed their name and have provided their complete contact information in the SFA.
(18) DISPUTE RESOLUTION. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the State of Kentucky or another location mutually agreeable by the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses and reasonable attorney fees. An award of arbitration may be confirmed in a court of competent jurisdiction.
(19) RECEIPT: Buyer & seller have read the agreement and acknowledges receipt of a completed copy of this Agreement.
Buyer:
Signature:
Print:
Title:
Company:
Address:
City:
State:
Zip:
Tel:
Fax:
Email:
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Seller:
Signature:
Printed Name:
Title:
Company:
Address:
City:
State:
Zip:
Tel:
Email:
MASTER FEE AGREEMENT ADDENDUM A
Fees shall be split between the parties listed herein in reference to Exhibit A, as facilitated by {Quotegrage, Inc.}.
The following document dated {}, {Year} serves as the Master Fee Agreement for the transaction specific to an Asset portfolio purchase by Buyer. Buyer agrees to pay a 3% (Three Percent) commission fee based off of the final purchase price of {$}. Should the buyer choose to have the real estate commission paid by the seller off of the seller’s side of the settlement statement, the price will be {$} A successful transaction is contingent upon a delivered and closed as described in Exhibit A below which is to include all fees. All the parties listed in this Fee Agreement agree to split the total fee based off of the final purchase price in the following manner:
Buyer’s Side {Broker- Shaunn Jones, Designated Broker of Quotegrage, Inc.}, or assignee(s), to receive 1.5% (One & ½ Percent) broker fee total, which will be based off of the final purchase price.
Seller’s Side {Broker- Sabur DeMary, Designated Broker of DeMary Funding Co.}, or assignee(s), to receive 1.5% (One & ½ Percent) broker fee total, which will be based off of the final purchase price.
All listed parties further agree that this document is the final “Master” Fee Agreement and by signing this agreement they are accepting the terms defined above. In addition, parties understand that they will have no further claim to any fee’s pertaining to this first and specific Asset portfolio package once they have signed this agreement.
Furthermore, ALL PARTIES hereto agree not to circumvent, avoid or bypass the other, or to contact either directly or indirectly, transact business with, or otherwise enter into any agreement with any corporations, partnerships, proprietorships, trusts, individuals or other entities introduced by ANY PARTY to ANY OTHER PARTY with the intent of avoiding compensating the PARTY THAT MADE THE INTRODUCTION.
Lastly, the parties above are responsible for working out any internal fee agreement for their referring parties and will need to draft and agree upon any such agreement. Once escrow has been opened the parties listed above will need to be responsible for getting their wiring or pay instructions to the appropriate parties when the transaction has closed and funded.
IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality and Non-Circumvention Agreement to be executed by their authorized officers on the date or dates below as indicated, effective as of the date first set forth above.
FEE ADDENDUM A (Cont’d)
Seller’s Side Broker:
Signature:
Print: Sabur DeMary
Title: Designated Broker of DeMary Funding Co.
Company: DeMary Funding Co.
Address:
City:
State:
Zip:
Tel: (757) 510-0042
E-Mail: info@demaryfunding.com
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Buyer’s Side Broker:
Signature:
Print: Shaunn Jones
Title: Quotegrage, Inc. Designated Broker
Company: Quotegrage, Inc
Address: 1902 Wright Place, Ste. 200
City: Carlsbad
State: CA
Zip: 92008
Tel: (760) 642-7070
E-mail: Shaunn@Quotegrage.com
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