Non-Disclosure Agreement (NDA)
Summit Advisory Inc (“Summit”) has been retained by our client (“Company”) as the exclusive representative to bring about the successful sale of their enterprise. Acting on our client’s behalf, Summit offers this Non-Disclosure Agreement (“Agreement”) to a prospective buyer (“Buyer”) who may have interest and ability to enter into a purchase transaction (“Transaction”).
This Agreement is made by and between: , "Buyer" and Summit Advisory Inc, "Summit" with offices at 1630 Manheim Pike, Suite 1, Lancaster, PA 17601.
This Agreement is made effective immediately upon the date of execution by the Buyer below.
I, , the undersigned, as a duly authorized representative of the Buyer agree, for myself, my company, and all of our affiliates and advisors agree to be bound by the terms of this Agreement for the benefit of Summit and the Company.
Buyer and Buyer’s affiliates and representatives will retain in strict confidence all information (whether oral or written) about the Company (the “Confidential Information”) conveyed or made available (without regard to the means of conveyance) to Buyer by Summit, the Company or the directors, officers, employees, members, agents, advisors, shareholders, and other representatives (collectively, “Representatives”) of the Company, unless such information:
(i) is publicly available (other than as a result of its disclosure directly or indirectly by Summit the Company or its Representatives),
(ii) was known to Buyer on a non0confidential basis prior to disclosure to Buyer by Summit, the Company or its Representatives,
(iii) can be shown by documentation or otherwise to have been independently developed by Buyer without reference to any of the Confidential Information, or is or becomes available to Buyer on a non-confidential basis from a source other than Summit, the Company or its Representatives, provided that such other source is not known by Buyer to be bound by a confidentiality agreement or obligation with respect to such information.
Buyer and Buyer’s Representatives shall hold Confidential Information in confidence by using the same effort and degree of care that Buyer takes to maintain in confidence Buyer’s own confidential and proprietary information of a similar nature, but in no event shall Buyer use less than reasonably commercial efforts to maintain the secrecy and confidentiality of the Confidential Information. The protections provided to a party as to its Confidential Information hereunder shall be in addition to, and not in limitation of, any other protection provided to the Company as to such information under applicable law or in equity to trade secrets, unfair competition, intellectual property or otherwise. Buyer acknowledges that all Confidential Information and all intellectual rights in and with respect thereto is and remains the property of the Company.
Buyer will use Confidential Information only in connection with Buyer’s consideration of the Transaction and will not otherwise use it in Buyer’s business or disclose it to others, except that Buyer shall have the right to communicate the Confidential Information to such of Buyer’s Representatives (if any) who need to know such information for the purpose of evaluating the Transaction, provided that each such person is informed that such information is strictly confidential and subject to this Agreement and agrees not to disclose or use such information except as provided herein. Buyer hereby agrees to be responsible for any breach of this Agreement by Buyer’s Representatives. In the event that Buyer or Buyer’s Representatives become compelled by deposition, subpoena, or other court, governmental or regulatory action to disclose any of the Confidential Information, Buyer shall provide the Company with prompt prior written notice to that effect, and Buyer will cooperate with the Company if it seeks to obtain a protective order concerning such Confidential Information. In the event that a protective order or similar remedy is not obtained, Buyer agrees to furnish, and to permit Buyer’s Representatives to furnish, only that portion of the Confidential Information which is required to be disclosed.
In order to provide an orderly environment for the Transaction, Buyer agrees not to initiate contact, or engage in discussions, with any officer, director, employee, customer, or supplier of the Company regarding the potential Transaction, the Company, or the Confidential Information, without the prior consent of Summit. Unless Buyer enters into a Transaction with the Company, Buyer agrees not to directly or indirectly solicit for employment any employees of the Company, without the prior written consent of the Company, for a period of two (2) years from the effective date of this Agreement; provided, however, that Buyer may make use of general advertisements for job openings in publications of general circulation and may respond to inquiries from such employees that were not directly or indirectly solicited by Buyer.
The Company retains the right to determine, in its discretion, whether to make any Confidential Information available to Buyer and, if the Company makes Confidential Information available to Buyer, the extent of the Confidential Information which the Company wishes to make available to Buyer. Buyer acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information or any other information regarding the Company and that neither Summit nor the Company or any of its Representatives shall have any liability to Buyer as a result of Buyer’s use of such information. Only those representations and warranties and covenants and agreements set forth in definitive documentation executed by the Company shall have any effect, legal or otherwise.
Buyer also agrees that, without prior written consent of the Company, Buyer will not disclose to any other person that Buyer has requested or received any Confidential Information, that Buyer is in discussions or negotiations with Summit and the Company as to a possible Transaction, that the Company is contemplating a possible Transaction, or the existence of this Agreement.
Buyer acknowledges and agrees that, unless and until a definitive agreement regarding a Transaction with the Company is executed, neither Summit nor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Agreement, except for the matters specifically agreed to herein, and Buyer shall not have any claim whatsoever against the Company arising out of or relating to the possible Transaction with the Company. Buyer further acknowledges and agrees that the Company reserves the right to reject any or all offers, to terminate discussions with Buyer, to conduct the process for a Transaction in any way it may determine, and to at any time abandon or postpone such process or change the procedures relating thereto. In the event that Buyer does not enter into a Transaction, Buyer agrees to promptly destroy or return to Summit, within a reasonable time of a request by or on behalf of the Company, all Confidential Information and destroy any memoranda, notes, or other writings prepared by Summit or Summit’s Representatives based on such Confidential Information, together with all copies of such information in Buyer’s possession or under Buyer’s control to which Buyer may have access and certify in writing to the Company as to such destruction. Notwithstanding the foregoing, Buyer and Buyer’s Representatives shall:
(i) be permitted to retain a copy of the Confidential Information to the extent required to comply with applicable law or regulatory authority or written and established internal document retention policies and
(ii) not be required to destroy, delete, or modify any backup tapes or other media pursuant to automated archival processes in our ordinary course of business, provided in each case (i) and (ii) herein, any such Confidential Information retained shall remain subject to the terms of this Agreement for so long as such Confidential Information is retained and notwithstanding the expiration of this Agreement.
Buyer agrees that neither the Company, any of its Representatives nor Summit shall be obligated to pay any fees on Buyer’s behalf to any brokers, finders, or other parties claiming to represent Buyer in this possible Transaction. Without limiting the generality of the non-disclosure agreements contained herein, it is further understood that Buyer is strictly prohibited by this Agreement from acting as a broker or an agent using any of the Confidential Information provided to Buyer.
Buyer hereby agrees to indemnify and hold harmless the Company from any damage, loss, cost or liability in connection with enforcing this Agreement, arising out of or resulting from any unauthorized use or disclosure by Buyer or Buyer’s Representatives of the Confidential Information or other breach of this Agreement. Buyer understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause the Company irreparable harm, the amount of which may be difficult to ascertain. Buyer agrees that the Company, in addition to any other remedies available to the Company, shall be entitled to seek equitable relief, including injunction, in the event of Buyer’s breach (either actual or threatened) of this Agreement without proof of actual damages and without the need to post any bond.
Buyer agrees that Buyer’s obligations under this Agreement shall expire two (2) years from the execution date hereof. In the event of a breach by Buyer of any of the covenants set forth in this Agreement, the term of such covenant will, as it pertains to Buyer, be extended by the period of the duration of such breach. Buyer also agrees that the Company, Summit and other Representatives of the Company are intended third-party beneficiaries to this Agreement. This Agreement shall be binding on Buyer’s successors and assigns; provided, however, that Buyer may not assign this Agreement without the prior written consent of the Company.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. Buyer agrees, on behalf of Buyer’s company and Buyer’s Representatives, to submit to the jurisdiction of any court of competent jurisdiction located in the State of Pennsylvania to resolve any dispute relating to this Agreement and waive any right to move to dismiss or transfer any such action brought in any such court on the basis of any objection to personal jurisdiction or venue.
In the event that any provision of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law. No provision of this Agreement may be waived or amended except by written consent of the parties hereto. It is understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall 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 other right, power or privilege hereunder. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and no modification of this Agreement shall be binding or effective unless it is in writing and signed by all parties. If, for the Buyer’s purposes, multiple individuals must approve this Agreement on behalf of the Buyer, this Agreement may be executed in counterparts and by scanned images, each of which shall be deemed to be an original, but all of which shall constitute the same Agreement. The fact of execution of this Agreement may be communicated by one party hereto to the other by facsimile, email or other electronic transmission of this executed Agreement.
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Document Name: Buyer NDA
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