THIS CONFIDENTIALITY AGREEMENT is made the ____ day of ______, 2017, for theproperty located at 506 S. Main St, Las Cruces, New Mexico, 88001, by and between Las Cruces Tower, LLLP (the "Company"), NAI 1st Valley Realty, Inc.(the “Brokerage”) and ______(the “Recipient”).
WHEREAS, the Recipient desires to obtain and review certain confidential and proprietary information concerning the Company and its properties located inLas Cruces, New Mexico, for the sole purpose of evaluating the potential purchase of the properties(the "Information"); and
WHEREAS, the Company has agreed to provide the Information subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and conditions hereinafter set forth, the parties agree as follows:
1.CONFIDENTIALITY. As a condition to the Company furnishing the Information to the Recipient, the Recipient agrees to treat and handle confidentially the Information and any other Information which it obtains concerning the Company or its agents during the course of its review, whether furnished before or after the date of this Agreement. The Information does not include Information which (i) becomes generally available to the public, other than as a result of a disclosure by the Company or its agents; or (ii) becomes available to the Recipient on a non-confidential basis from a source other than the Company or its agents, provided that such source is not bound by a confidentiality agreement with the Company.
2.NO DETRIMENTAL USE. The Recipient agrees that the Information will be kept confidential by the Recipient; provided, however, that (a) any of the Information may be disclosed to the representatives of the Recipient who need to know such Information for the purpose of evaluating a possible transaction between the Recipient and the Company; (b) the Information can be disclosed by Recipient if is it legally required to do so, subject to the terms of Section 5 below; and, (c) any disclosure of the Information may otherwise be made, provided the Company consents in writing. The Recipient agrees that it will make use of the Information only for the purpose specified in this Agreement, and will not use the Information for the purpose of competing with the Company or otherwise for its benefit at any time in the future. The Recipient agrees that it will not knowingly permit or facilitate such use by any other person or entity without the prior written consent of the Company.
3.DISCLOSURE OF DISCUSSIONS. Without the prior written consent of the Company, the Recipient shall not, and will direct its representatives not to, disclose to any person or entity the fact that discussions or negotiations may take place or are taking place concerning a possible transaction between the Recipient and the Company or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof.
4.REPRESENTATIVE. For purposes of this Agreement, a representative means an officer or employee of the Recipient, or a law firm, public accounting firm, or other entity or person (and their employees) who, in the good faith judgment of the Recipient needs to have access to some or all of the Information for the purpose of evaluating any possible transaction. In the event that the Recipient elects to disclose, in good faith, any of the Information to a representative, such representative will be bound by the terms and conditions of this Agreement and the representative shall be jointly and severally liable with the Recipient to the Company for any breach thereof.
5.DISCLOSURES REQUIRED BY LAW. In the event that the Recipient is requested or required by law to disclose any of the Information, it is agreed that the Recipient will provide the Company with prompt prior notice of such request so that the Company may seek an appropriate protective order.
6.NO REPRESENTATION OR WARRANTY. Although the Company will endeavor to make sure that the Information is reliable, the Recipient understands and agrees that the Company does not make any representation or warranty as to the accuracy or completeness of the Information. The Recipient agrees that neither the Company nor its agents or shareholders shall have any liability hereunder to the Recipient or any of its representatives resulting from the use of the Information by the Recipient or such representatives.
7.RETURN OF MATERIALS. At the request of the Company, the Recipient shall promptly return to the Company all written material containing or reflecting any Information contained in the Information (whether prepared by the Company or otherwise). In addition, the Recipient and its representatives will not retain any copies, extracts or other reproductions, in whole or in part, of the Information. The Recipient shall thereafter destroy all documents, memoranda, notes or other writings prepared by the Recipient, or its representatives, which are based on the Information.
8.INJUNCTIVE RELIEF. The Recipient acknowledges that the remedy at law for any breach by it of the terms of this Agreement shall be inadequate and that the damages resulting from such breach are not readily susceptible to being measured in monetary terms. Accordingly, in the event of a breach or threatened breach by the Recipient of the terms of this Agreement, the Company shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedies available to the Company for such breach or threatened breach, including the recovery of damages from the Recipient. The Recipient further represents that it understands and agrees that the provisions of this Agreement shall be strictly enforced and construed against it. In the case of a dispute, the parties will interpret, construe, and apply this Agreement using the law of the State of New Mexico, excluding from such law the rules regarding choice of law.
9.NONWAIVER. It is further agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
10.TERM. This Agreement shall expire and terminate upon the date that is one (1) year after the date first set forth above. Notwithstanding the foregoing, the provisions of Paragraph 6 of this Agreement shall survive any termination hereof.
IN WITNESS WHEREOF, the parties have executed this Confidentiality Agreement the day and year first written above.
By:
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Name of Recipient
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Signature of Authorized Officer
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Printed Name and Title of Officer