CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement (“Agreement”) is made by ________________, a _____________ (“Recipient”) in favor of BRE DDR IVA MILLENIA FL LLC, a Delaware limited liability company, 3300 Enterprise Parkway, Beachwood, Ohio 44122 (“SITE”).
RECITALS:
A. SITE owns that certain property commonly referred to as Millenia Crossing located in the City of Orlando, and the State of Florida (the “Property”).
B. In order to evaluate, either for itself as principal or as a broker for others, the possibility of purchasing the Property and entering into a purchase agreement with SITE, Recipient has requested access to certain confidential and proprietary information, the unauthorized release of which could cause serious harm to SITE.
C. SITE is willing to provide such information to Recipient if it has adequate assurances that the information will not be disclosed and will be kept confidential.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Recipient agrees as follows:
1. Recipient acknowledges that the information and materials with respect to the Property (collectively, the “Confidential Information”) provided by SITE are confidential and proprietary to SITE. Recipient shall keep the information confidential and shall not disclose, summarize, or otherwise provide to anyone else any or all of the Confidential Information in any manner without the prior written authorization of SITE, except as otherwise set forth in this Agreement.
2. Recipient may use the Confidential Information only for the purpose of its analysis, either for itself as principal or as a broker for others, of the potential purchase of the Property. Recipient shall not use any of the Confidential Information for any other purpose.
3. Recipient may disclose, summarize or otherwise provide any portion of the Confidential Information (a) to the extent required pursuant to a court order, subpoena, or other legal process, and (b) solely for the purposes of assisting Recipient in evaluating the purchase of the Property, to its employees, attorneys, accountants, environmental consultants and any other consultants who need such information to assist in evaluating and documenting the purchase of the Property, in addition to, if Recipient is acting as a broker, any current or prospective clients (such persons actually receiving Confidential Information from or on behalf of Recipient, collectively, the “Related Parties”). Prior to disclosing or providing access to any Confidential Information to any of the Related Parties, Recipient shall (i) advise such Related Parties of this Agreement and Recipient’s obligations hereunder and (ii) require that such Related Parties treat the Confidential Information in accordance with the provisions of this Agreement. Recipient shall be responsible for any failure to abide by the terms of this Agreement by any Related Parties and Recipient further agrees, at its sole cost and expense, to take all reasonable measures (including but not limited to court proceedings) to restrain any Related Parties from prohibited or unauthorized disclosure or use of the Confidential Information.
4. Notwithstanding anything to the contrary contained in this Agreement, if Recipient is acting as a broker in connection with the potential purchase of the Property, Recipient agrees to, prior to disclosing any Confidential Information to an individual client: (i) provide SITE with written notice of the identity of such client (including the company name and name(s) of the individual recipient(s) at said company) with whom Recipient intends to share the Confidential Information, and (ii) require such client, as a condition to receiving any Confidential Information from Owner or Recipient, to execute, for the benefit of Owner, a Confidentiality and Non-Disclosure Agreement in the same form as this Agreement. In addition to the requirements set forth above, Recipient further agrees to retain copies of all such Confidentiality and Non-Disclosure Agreements executed by Recipient’s clients, and to promptly provide to SITE a copy of each such executed agreement following SITE’s request for same.
5. Notwithstanding anything herein to the contrary, SITE expressly acknowledges and agrees that the following information is not confidential and thus shall not be subject to the terms and conditions of this Agreement: (a) information that is presently in Recipient’s possession, provided that such information was not obtained by Recipient from SITE or any of its brokers or representatives; (b) information that is, or becomes, generally available to the public, provided such availability to the public does not result from any fault of Recipient or its Related Parties; or (c) information that is received by Recipient from a third party having no obligation to SITE to keep it confidential.
6. If Recipient determines that it is not interested in purchasing the Property or continuing to market the property to its clients (pursuant to the terms set forth above), or upon request of SITE, Recipient shall either promptly return to SITE or destroy all Confidential Information it received and shall not retain any copies of the Confidential Information, except to the extent as may be required by law or Recipient’s bona fide record retention policies. In the event any such Confidential Information is so retained, Recipient agrees that such retained Confidential Information shall be confidentially maintained and continue to be subject to the terms of this Agreement for the duration of the Agreement (as further detailed in Section 11 below).
7. SITE makes no representation or warranty about the accuracy or completeness of the Confidential Information. Recipient releases and holds SITE harmless from and against any loss or damage Recipient may sustain due to its reliance on the Confidential Information, except as expressly modified by any subsequent agreement entered into between Recipient and SITE. Except for this Agreement, there are no contracts or commitments with respect any potential purchase and sale of the Property. No such contract or commitment will exist unless and until a definitive written commitment or agreement is executed and delivered by SITE and Recipient with respect to any potential purchase and sale of the Property.
8. If any party believes that the unauthorized disclosure of any or all of the Confidential Information is likely to occur, Recipient shall take all measures to prevent such disclosure. If an unauthorized disclosure of any or all of the Confidential Information has occurred, Recipient shall not interfere with any effort by SITE to pursue legal and equitable remedies available in result of the unauthorized disclosure.
9. It is understood and acknowledged that unauthorized release of any or all of the Confidential Information would cause immediate and irreparable harm to SITE that could not be repaired and for which SITE could not be fully compensated by money damages. Recipient agrees that SITE may obtain injunctive relief to prevent or limit such an unauthorized disclosure, and may also pursue any other remedies available under law or equity as a result of a breach of this Agreement.
10. In requesting the Confidential Information, Recipient is acting solely for its own account as a principal, or if a broker, exclusively for a client’s account, and no brokerage commission, finder’s fees, or other payments shall be payable by SITE in connection with any transaction that may result following the Recipient’s review and/or further distribution (in accordance with the terms of this Agreement) of the Confidential Information.
11. Recipient shall not contact or communicate with any tenants, licensees or other users of the Property regarding their use of or right to use the Property without SITE’s prior written approval, which approval may be denied in SITE’s sole discretion. If SITE provides prior written consent to any such contact or communication, SITE shall have a right to participate in such contact or communication.
12. The Term of this Agreement shall commence on the date executed by the Recipient and shall expire on the earlier of (i) one (1) year thereafter, unless extended in writing by all of the parties hereto, or (ii) the date of execution of a definitive agreement between the parties regarding the sale of the Property whereupon all matters related to confidentiality of the transaction will be governed by such document.
13. This Agreement shall be governed by and construed in accordance with the laws of the state where the Property is located, without regard to principles of choice of law or conflicts of law. Recipient hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of such state, and of the United States District Courts located in said state for any lawsuits, actions or other proceedings arising out of or relating to this Agreement and agrees not to commence any such lawsuit, action or other proceeding except in such courts. RECIPIENT HEREBY WAIVES ANY RIGHT TO A JURY TRIAL, TO THE EXTENT PERMITTED BY LAW.
14. Recipient is prohibited from assigning its rights hereunder without the express written consent of SITE, which consent can be withheld in SITE’s sole and absolute discretion. If SITE consents to Recipient’s assignment of this Agreement to a third party (the “Assignee”), Assignee shall execute this Agreement and promptly deliver it to SITE.
15. This Agreement shall be binding upon Recipient’s successors and assigns, and shall inure to the benefit of Recipient’s successors and assigns. No delay or failure at any time on the part of SITE in exercising any right, power or privilege under this Agreement, or in enforcing any provision of this Agreement, shall impair any such right, power or privilege, or be construed as a waiver of such provision, or be construed as a waiver of any default or as any acquiescence therein, or shall affect the right of SITE thereafter to enforce each and every provision of this Agreement in accordance with its terms. This Agreement may only be modified or amended in a writing executed by SITE. This Agreement may be executed and delivered by facsimile or email (with a .pdf attachment), which facsimile or email transmission copy shall be considered an original and shall be binding on and enforceable against Recipient. The undersigned represents and warrants that he/she is authorized to execute this Agreement on behalf of Recipient and that this Agreement is the valid and binding agreement of Recipient.
SITE EXPRESSLY RESERVES THE RIGHT AT ITS SOLE DISCRETION TO REJECT ANY OR ALL PROPOSALS OR TERMINATE DISCUSSIONS WITH ANY PARTY AT ANY TIME WITH OR WITHOUT NOTICE.