THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made as of today’s date (“Effective Date”) by and between Xite Acquisitions Series, LLC, a Series of Xite Realty, LLC, a Texas Limited Liability Company, and its subsidiaries and affiliates with its headquarters located at 801 E. Campbell Road Suite 470, Richardson, Texas 75081 (collectively, the “Broker”), and the undersigned (“Potential Buyer” and with the “Broker,” the “Parties”).
WHEREAS, Broker represents one or more persons (each, a “Client”) who own and are interested in selling medical and/or dental practices (each, a “Practice”); and
WHEREAS, Potential Buyer has requested that Broker provide information to Potential Buyer in connection with the Client and/or Practice;
WHEREAS, as a condition to Broker’s agreement to provide information to Potential Buyer in connection with the Client and/or Practice, Broker has required that Potential Buyer enter in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Potential Buyer has requested that Broker disclose to Potential Buyer certain information relating to the Practice for the sole purpose of enabling Potential Buyer to evaluate the possibility of entering into an agreement for the purchase of the Practice (the “Purpose”). Broker has agreed to provide such information to Potential Buyer subject to and in accordance with the provisions of this Agreement. Potential Buyer understands and that by clicking on the box located at the bottom of this Agreement, Potential Buyer is entering into a binding agreement with Broker and is bound by all of the provisions of this Agreement.
“Confidential Information” as used herein means any data or information that is provided by Broker or Client to Potential Buyer in connection with the Practice, whether in tangible or intangible form, in whatever medium provided, whenever and however disclosed, including but not limited to: (a) any oral, visual, tangible, or intangible analyses or summaries, whether or not designated as confidential, and all notes, business analyses, summaries, and other materials provided to Potential Buyer in connection with Client or the Practice; (b) the name of the Client and any of the information concerning the practice including, but not limited to, income tax statements, profit and loss statements, financial documents, patient information of any kind (patient lists, contact information, dental records, etc.); and (c) any other written or oral information provided to Potential Buyer regarding a Client, Practice, or the patients of a Practice. Potential Buyer agrees to keep all Confidential Information in strict confidence, and shall not disclose the Confidential Information to any party other than its attorneys, tax advisors, business associates, lenders, equity providers and representatives (collectively, “Representatives”) who: (i) need to know such information in connection with Potential Buyer’s pursuit of the Purpose; and (ii) have been instructed (and agreed) prior to dissemination of any such information to keep all such information strictly confidential and to comply with and be bound by the provisions of this Agreement. Potential Buyer shall be responsible for any breach of the provisions of this Agreement by any of its Representatives. Furthermore, Potential Buyer agrees not to make copies of any Confidential Information, and, upon Broker’s request, to immediately return all Confidential Information to Broker.
3. Required Disclosure.
If required by law, Potential Buyer may disclose Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that (a) Potential Buyer shall immediately notify Broker and take all reasonable steps to assist the Broker and Broker’s Client in contesting such request, requirement, order, or otherwise protecting the Broker’s rights, solely at Broker’s cost and expense, and (b) Potential Buyer and Representatives shall limit the scope of such disclosure only to such portion of the Confidential Information that Potential Buyer is legally required to disclose.
4. Limitations on Use of Confidential Information.
Potential Buyer shall not use the Confidential Information for any other purpose other than the Purpose without Broker’s prior written consent.
Nothing contained in this Agreement herein shall be construed by Potential Buyer, either expressly or implicitly, to grant Potential Buyer any rights or license or otherwise in any Confidential Information to any copyright, trademark, patent, or any other intellectual property right related thereto.
6. Limited Role of Broker to Potential Buyer.
Potential Buyer acknowledges and agrees that Broker is an agent of Broker’s Client, does not represent Potential Buyer and owes Potential Buyer no duties or obligations. Broker may assist Potential Buyer but must place the interests of Broker’s Client first and foremost. Potential Buyer shall not disclose to Broker any information that Potential Buyer would not otherwise want to be disclosed to Broker’s Client as Broker must disclose any material information known to Broker to Broker’s Client. Any information presented to Potential Buyer has been obtained from sources believed reliable. However, Broker, makes no guarantees, warranties, or representations as to the completeness or accuracy thereof. Any information or advice presented to Potential Buyer by Broker is not intended to be legal advice and should not be relied upon as such. Potential Buyer is advised to consult with their own attorney, tax advisor/CPA and other professionals for information concerning their individual legal and tax situation.
Potential Buyer will fully and carefully investigate and satisfy himself/herself as to the condition of any presented practice opportunity. Potential Buyer understands that any information or statements presented or made by Broker do not constitute a warranty or guarantee to Potential Buyer with respect to the income, profitability, or ongoing nature of any practice opportunity. Broker shall have no liability whatsoever to Potential Buyer resulting from its use of Confidential Information. Potential Buyer acknowledges, understands, and agrees to make any and all inquiries about any presented practice opportunity exclusively through Broker. Potential Buyer shall not directly or indirectly (other than through Broker) contact Broker’s Client or any of its employees or principals. Any direct contact with Broker’s Client shall be done only with the express consent of Broker. Potential Buyer acknowledges, understands, and agrees that, should Broker refer Potential Buyer to a service provider (such as a lender, for example) or to Broker’s Client, Broker may receive compensation from the service provider or Broker’s Client for the referral. Potential Buyer agrees, represents and warrants that any purchase of any practice opportunity will be made as a result of Potential Buyer’s independent inspection and judgment of such opportunity and not as a result of any representations made to Potential Buyer by Broker.
8. No Obligations to Disclose or Negotiate; No Representatives or Warranties.
Broker has no obligation under this Agreement to (a) disclose any Confidential Information or (b) negotiate for, enter into, or otherwise pursue the collaboration between Broker and Potential Buyer. Broker provides all Confidential Information without any representation or warranty, expressed or implied, as to the accuracy or completeness thereof. Broker shall have no liability to Potential Buyer or any other person relating to Potential Buyer’s use of any of the Confidential Information or any errors therein or omissions therefrom.
9. Notice of Breach.
Potential Buyer shall notify the Broker immediately upon discovery or suspicion of: (1) any unauthorized use or disclosure of Confidential Information by Potential Buyer or its Representatives; or (2) any actions by Potential Buyer or Representatives inconsistent with their respective obligations under this Agreement. Potential Buyer shall cooperate with any and all efforts of the Broker to help the Broker retain control and possession of the Confidential Information and to prevent its further dissemination or unauthorized use.
10. Termination; Return of Confidential Information.
Either party may terminate this Agreement upon thirty (30) days prior written notice; provided, however that Potential Buyer’s and their Representatives non-disclosure and non-use obligations under this Agreement shall not expire until five (5) years from the last date of disclosure of any Confidential Information by the Broker. Non-circumvention shall survive two (2) years from the date of termination of this Agreement. Upon termination of this Agreement, or sooner upon Broker’s written request, Potential Buyer shall return to Broker all Confidential Information and return or destroy all copies, summaries, synopses, or abstracts of the Confidential Information whether in tangible, intangible, written, graphic, or machine-readable form to Buyer within ten (10) business days. However, with respect to Confidential Information that is a trade secret under the laws of any jurisdiction, such rights and obligations will serve such expiration until, if ever, such Confidential Information loses its trade secret protection other than due to an act of omission of Broker or its representatives.
11. Equitable Relief.
Potential Buyer understands and agrees that revealing or disclosing the Confidential Information or discussing such information with a third party, other than as allowed by this Agreement, will damage the Practice, Client and Broker. Potential Buyer acknowledges and agrees that any breach of the confidentiality obligations under this Agreement will cause injury to Broker and Broker’s Clients for which money damages would be an inadequate remedy and that, in addition to all remedies at law, Broker is entitled to equitable relief as a remedy for any such breach.
Potential Buyer hereby covenants and agrees that during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, except as permitted by this Agreement, it shall not directly or indirectly, either for itself or any other organization or person: (a) contact or negotiate with Broker’s Client for matters regarding any business transaction without Broker’s consent; or (b) attempt to usurp to Broker’s detriment the relationship between Broker and Client. The parties agree that such contact, negotiation or usurpation shall materially, substantially and irreparably cause damage and that the intent of this paragraph is to protect against such damage. If Potential Buyer, directly or indirectly, either for itself or any other organization or person, consummates a business or practice sales transaction with Client during such two (2) year period, then Potential Buyer shall compensate Broker ten (10%) percent of the amount of the sales price of the Practice.
13. Governing Law.
This Agreement shall be construed and interpreted in accordance with and shall be governed by the laws of the State of Texas. Potential Buyer agrees and consents to the exercise of personal jurisdiction over Potential Buyer by the state and federal courts of the State of Texas. Any legal action to enforce or interpret this Agreement or legal action related to this Agreement will be brought exclusively in the following federal or state courts in the following Texas counties: Bexar County, Travis County, Dallas County or Harris County, Texas and may not be removed by a party to any other jurisdiction for a claim of forum non-conveniens or other legal complaint.
All notices must be in writing and addressed to the relevant party. All notices must be personally delivered or sent prepaid by nationally recognized courier or certified or registered mail, return receipt requested, and are effective on actual receipt.
15. Binding Agreement.
The Parties affirm that the individuals executing this Agreement have the authority to bind the Parties to the terms in this Agreement. This Agreement shall be binding upon Potential Buyer and its Representatives and shall take effect to the benefit of Potential Buyer and its Representatives.
16. Exclusive Agreement.
This Agreement shall constitute the exclusive agreement of the parties hereto with respect to the subject matter hereof, and shall supersede all prior agreements, whether oral or written, or understandings of the parties hereto with respect thereto. This Agreement may only be modified or amended in writing signed by both Broker and Potential Buyer or an authorized representative of each party.
An electronic copy or PDF signature by a Party to this Agreement shall be valid as an original for all purposes and shall be legally binding.
(a) Any failure by Broker to enforce strict performance of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(b) The restrictions contained in this Agreement are considered by the parties to be reasonable for the purposes of protecting the Confidential Information. However, if any such restriction is found by a court of competent jurisdiction to be unenforceable or invalid, such provision will be rewritten, modified, or interpreted to include as much of its nature and scope as will render it enforceable. If the provision deemed unenforceable or invalid cannot be so modified, rewritten, or interpreted to be enforceable in any respect, it will not be given effect and the remainder of the Agreement will still be enforced as if the unenforceable provision was not included.
(c) This Agreement shall not be assigned or transferred by operation of law or otherwise without the prior written consent of the Broker, such consent will not be unreasonably withheld. All of the obligations of confidentiality contained in this Agreement shall extend and be binding upon the parties to this Agreement and their respective assigns, successors, representatives, and designees.
(d) Paragraph headings used in this Agreement are for reference only and shall not be used or relied on in the interpretation of this Agreement.
If there are any questions regarding this Agreement, please contact us using the information below.
Xite Practice Sales
801 E. Campbell Rd. Suite 470
Richardson, Texas 75081