The undersigned Buyer, either individually or on behalf of any affiliated prospective buyer, acknowledges being first introduced to the business by ManageVisors and requests confidential information about the business, solely for the purpose of evaluating the potential purchase of all or part of the business. The term Buyer (“Buyer”) applies to the individual executing this agreement (“Agreement”) and any partner, entity or individual with whom the undersigned is affiliated. Buyer agrees as follows:
Non-Disclosure of Information: Buyer acknowledges the owner of the business (“Seller”) desires to maintain the confidentiality of this confidential information. Buyer agrees not to disclose, permit access to, or disseminate any confidential information, whether provided before or after execution of this Agreement, without the prior written consent of Seller, to anyone other than Buyer's legal counsel, accountants, lenders or other advisors to whom disclosure or access is necessary for Buyer to evaluate the Business (collectively “Buyer Contacts”). Disclosure of confidential information shall be made to the Buyer Contacts only in connection with the potential acquisition of the business, and then only if the Buyer Contacts agree to maintain that confidentiality. Buyer shall be responsible for any breach of this Agreement by the Buyer Contacts. Neither Buyer nor the Buyer Contacts shall use or permit the use of this confidential information in any manner whatsoever, except as may be required for Buyer to evaluate the Business.
Definition of Confidential information: The term "confidential information" shall mean, in the broadest possible sense, all confidential, proprietary and trade secret information including the fact that the business is for sale, all financial, production, marketing and pricing information, business methods, business manuals, manufacturing procedures, correspondence, know-how, inventions, technical information, procedures, computer programs and systems, techniques, marketing plans and strategies, product or service information, research and product development results, customer and supplier lists and information. Confidential information shall not include information that: (a) at the time of disclosure is in the public domain through no fault of, action or failure to act by Buyer; (b) becomes known to Buyer through a third-party source without violation of any obligation of confidentiality or any other wrongful act; (c) which Buyer can establish was independently known or developed by Buyer without use of any confidential information.
Buyer Responsibility & Disclaimer of Broker Liability: 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 discretionary cash flow statement. Buyer understands that brokers do not audit nor verify any information given to them 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. 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 and not that of brokers. Broker makes no representations as to the accuracy of the confidential information provided nor the legal validity of any provision of this form. A broker is not licensed, qualified nor entitled to provide legal, accounting or tax advice. Buyer is strongly urged to consult with appropriate attorneys, accountants and other competent professionals before entering into this agreement.
Non-Circumvention/No Contact: The Seller has agreed to pay the Broker a fee if, during the term of that agreement or up to twenty-four (24) months thereafter, the Business is transferred to a buyer introduced by the Seller’s broker or a buyer’s broker. Buyer shall conduct all inquiries and discussions solely through the broker identified above and shall not directly contact the Seller or the Seller's representatives without written authorization by the Seller’s broker. Should Buyer or any person or entity affiliated with Buyer purchase all or part of the Business, acquire any interest in, or become affiliated in any capacity with the Business, without the involvement of the Broker, or in any way interfere with Broker’s right to a fee, Buyer shall be liable to the listing broker and any cooperating broker for such fee, along with any other damages including reasonable attorney’s fees and costs. For a period of three years from the date below, Buyer will not contact the Seller, the Seller's employees, customers, landlords or suppliers, or otherwise observe the business, without the Seller's or Broker’s consent.
Enforcement: The venue for any action instituted to enforce any terms of this agreement shall be in the county in which the business is located. Buyer acknowledges it would be extremely difficult to measure the amount of damages to Seller arising from a breach or threatened breach of any provision of this Agreement and that money damages would be an inadequate remedy. Seller shall be entitled to temporary and permanent injunctive relief to restrain the Buyer from any such breach or threatened breach. If Buyer is a corporation, partnership or other such entity, the undersigned executes this Agreement on behalf of Buyer and warrants that he or she is duly authorized to do so. In the event of any litigation to enforce this Agreement, the prevailing party shall be entitled to recover all costs and expenses incurred, including reasonable attorneys' fees and court costs. This Agreement can only be modified in writing, signed by both Buyer and Seller or Seller’s broker. All parties waive their rights to a trial by jury regarding any claim arising from this Agreement.
Under California law, a Broker can be the agent of the Seller, Buyer, or both the Seller and Buyer acting as a dual agent. Unless otherwise specifically stated in writing, ManageVisors represents the Seller of the Business and does not maintain an agency relationship with the Buyer. The Broker may work with prospective buyers and sometimes prepare forms for a Buyer in order to make an offer to the Seller. In this role, Broker does not become an agent for the Buyer and does not represent the Buyer unless a signed agreement is executed stating such agency relationship. Broker is required to afford Buyer the duties of skill and care, honesty and fair dealing and good faith, as well as a duty to disclose known material facts as prescribed by law.
SELLER’S AGENT: Under California Civil Code 2079.16, a Seller’s Agent under a written agreement with the Seller acts as the agent for the Seller only. The Seller’s Agent or subagent 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 Seller: 1) Diligent exercise of reasonable skill and care in performance of the agent’s duties. 2) A duty of honest and fair dealing and good faith. 3) A duty to disclose all facts known to the agent which materially affects the value or desirability of the business or 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.
BUYER’S AGENT: 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: 1) Diligent exercise of reasonable skill and care in performance of the agent's duties. 2) A duty of honest and fair dealing and good faith. 3) 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 dual 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, Buyer and Seller will receive written notification of their relationships with the Broker.
In dual agency the agent has the following affirmative obligations to both the Seller and the Buyer: 1) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either the Seller or the Buyer. 2) 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. Broker strongly encourages and advises Buyer to consult a qualified attorney at law, as well as accountants and financial professionals with expertise in business transactions. Buyer agrees that Broker is acting only as a conduit of information from Seller and that Broker provides no legal, accounting, financial or tax advice.
COMPENSATION:: The payment of compensation or the obligation to pay compensation to an agent by the Seller or Buyer does NOT determine whether an agency relationship exists between an agent and a Seller or Buyer.
FULL DISCLOSURE: Under California law, the Buyer and 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. Whether acting as an agent for only one party, or as a dual agent, an agent must make the same such disclosures to the other party, or to the other party’s agent, and cannot withhold material information which such agent may know, or in the exercise of reasonable diligence, should discover. However, a broker acting as a dual agent will not disclose written valuations or appraisals prepared for the Seller (but upon request will disclose any comparable sales figures), nor the contents of any previous negotiations, contracts or offers between either the Buyer or Seller and any other parties.
Buyer acknowledges, as of this signing, he/she is not represented by a Buyer’s agent nor broker, nor any other third party professional. Buyer acknowledges no other broker nor agent was the procuring cause of any such resulting transaction and no one other than Broker shall be entitled to any commission, fee or compensation from Seller. I have carefully read and understand the matters discussed above. I agree with the above conditions and I have had the opportunity to ask questions and seek the advice of legal counsel prior to submitting this agreement.
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