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CONFIDENTIALITY AND REGISTRATION AGREEMENT
The undersigned "Registered Potential Purchaser" is interested in obtaining information regarding the subject property located in the State of California (the "Property") in order to evaluate the possible acquisition (the "Proposed Transaction") of the Property by Registered Potential Purchaser. Owners have indicated that all inquiries and communications with respect to the contemplated sale of such Property be directed to Province West (the "Listing Broker"). By digitally accepting the terms of this Agreement electronically, Registered Potential Purchaser hereby agrees as follows and acknowledges and agrees that Owners are relying upon this Agreement in making or allowing access to the Property's online due diligence vault ("Vault") and any disclosure of Confidential Information (as defined below) to Registered Potential Purchaser in connection with the Proposed Transaction.
1. Confidentiality. The term "Confidential Information" as used in this Agreement means (i) all information with respect to the Property provided or made available in any form to either Registered Potential Purchaser or any of its Representatives (defined below) by Owners and/or Listing Broker and/or any of their respective affiliates, consultants, agents, attorneys, accountants or employees (collectively, the "Owners Parties"), (ii) all analyses, studies, reports, compilations, notes, summaries, extracts and other documents and materials prepared by or for or at the direction of either Registered Potential Purchaser or any of its Representatives which contain, reflect, reference or are based upon any portion of the information described in the foregoing clause (i), and (iii) the fact that any portion of the Confidential Information has been provided or made available to either Registered Potential Purchaser or any of its Representatives, that either Registered Potential Purchaser or any of its Representatives has reviewed or inspected any portion of the Confidential Information or the Property or the business, operations, affairs or condition (financial or otherwise) thereof, that an evaluation of a Proposed Transaction or the Property or any discussions or negotiations with Owners are taking place, and any other facts concerning such evaluation, inspection, discussions or negotiations or the results, content or status thereof. However, the term "Confidential Information" shall not include any information that becomes generally known to the public other than as a result of a disclosure by either Registered Potential Purchaser or any of its Representatives. All Confidential Information will be used solely for the purpose of evaluating the possible acquisition of the Property by the Registered Potential Purchaser and will not be used or duplicated for any other purpose. Registered Potential Purchaser shall keep all Confidential Information strictly confidential; provided, however, that such Confidential Information may be disclosed to Registered Potential Purchaser's directors, officers, employees, consultants, attorneys, accountants and potential equity and debt sources who because of their involvement with the Proposed Transaction need to know such information for the purpose of giving advice with respect to, or consummating, the Proposed Transaction (all of whom are collectively referred to as "Representatives"); provided, however, that any such Representatives shall be informed by Registered Potential Purchaser of the confidential nature of such information and shall be directed by Registered Potential Purchaser (and Registered Potential Purchaser shall cause such Representatives) to keep all such information in the strictest confidence and to use such information only in connection with the Proposed Transaction and in accordance with the terms of this Agreement. Registered Potential Purchaser shall keep an inventory of all copies and distributions of Confidential Information and provide a copy of the inventory to Owners upon Owners' request. In no event shall any Confidential Information be used by Registered Potential Purchaser or any of its Representatives to the detriment of, or to circumvent Owners' economic or business interests in, and with respect to the Property.
2. Registered Potential Purchaser Broker Representation. Registered Potential Purchaser hereby represents, warrants and covenants that it is not represented by a broker in connection with the purchase of the Property; or in the event Registered Potential Purchaser intends to be represented by a broker in connection with the purchase of the Property, Registered Potential Purchaser's broker representative has contacted the Listing Broker to determine whether or not a cooperating brokerage fee is being offered on this transaction. In the event that no cooperating brokerage fee is being offered, Registered Potential Purchaser will be wholly responsible for any compensation due to its broker representative and specifically indemnifies and holds Listing Broker harmless from any claim brought by its broker representative.
3. Compelled Disclosure. In the event that either Registered Potential Purchaser or any of its Representatives become legally compelled to disclose all or any part of the Confidential Information, Registered Potential Purchaser will provide Owners with prompt written notice so that Owners may seek a protective order or other appropriate remedy and/or, in Owners' sole discretion, waive compliance with the provisions of this Agreement. Registered Potential Purchaser acknowledges that damages may be inadequate to protect against breach of these provisions and therefore agrees in advance to the granting of injunctive relief as described above in Owners' favor without proof of actual damages or the posting of any bond or other security, in addition to any other remedies available to Owners at law or in equity. In the event that such protective order or other remedy is not obtained, or if Owners waives compliance with the provisions of this Agreement, Registered Potential Purchaser will disclose only that portion of the Confidential Information which in the opinion of counsel is legally required to be furnished and will exercise best efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
4. No Representations by Owners Parties. The information provided to Registered Potential Purchaser and included within the Vault was obtained from third parties and has not been independently verified by Listing Broker. None of Owners Parties makes any representation or warranty as to the accuracy or completeness of the Vault and/or Confidential Information, or that actual results will conform to any projections contained therein. The Owners Parties expressly disclaim any and all liability for representations or warranties, express or implied, contained in the Confidential Information, or in any other written, oral or other communications transmitted or made available to either Registered Potential Purchaser or any of its Representatives, including, without limitation, computer disks containing files with financial data or projections. Registered Potential Purchaser acknowledges that Listing Broker shall have no right, power or authority to enter into any agreement with any prospective purchaser, real estate broker or any other person in the name of, on behalf of, or otherwise binding upon Owners, nor may Listing Broker make any representation or warranty on behalf of Owners or create any other obligation or liability binding on Owners.
5. No Obligation. Registered Potential Purchaser acknowledges and agrees that Owners reserves the right, in its sole discretion, to terminate discussions or negotiations with Registered Potential Purchaser at any time for any reason or no reason, and that nothing in this Agreement or any other written or oral expression shall be deemed or construed to impose any obligation or commitment on the part of Owners to consummate a Proposed Transaction or to enter into any definitive agreement for a Proposed Transaction or to discuss or negotiate a Proposed Transaction for any particular period of time. Registered Potential Purchaser hereby fully and forever waives, in advance, any claims (including, without limitation, any claim for breach of contract) against Owners Parties in respect of any Proposed Transaction with Owners, unless and until Registered Potential Purchaser and Owners shall have executed and delivered a definitive agreement for such a Proposed Transaction.
6. No Contact with Governmental Entities. REGISTERED POTENTIAL PURCHASER AND ITS REPRESENTATIVES AGREE THAT THEY WILL NOT CONTACT OR CONDUCT ANY DISCUSSIONS WITH ANY REDEVELOPMENT AGENCY OR ANY OTHER GOVERNMENTAL OR MUNICIPAL BODY WITH RESPECT TO THE PROPERTY OR THE PROPOSED TRANSACTION WITHOUT PRIOR WRITTEN APPROVAL FROM OWNER.
7. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State in which the Property is located which is applicable to contracts made and to be performed wholly within such State.
8. Attorneys' Fees. In the event of any legal action or other proceeding between the parties regarding this Agreement, the prevailing party shall be entitled to the payment by the non-prevailing party of the prevailing party's reasonable attorneys' fees, court costs and litigation expenses, as determined by the court.
9. Submission to Jurisdiction. Registered Potential Purchaser hereby submits to the personal jurisdiction of the courts of the State of California for the County of Orange and the federal courts of the United States for the Central or Southern Districts of California (and any appellate court to which an appeal would lie from any such state or federal court) for purposes of all suits, actions or other legal proceedings based upon, arising out of or relating to this Agreement, the subject matter hereof or the interpretation or enforcement of any provision hereof. Each of Registered Potential Purchaser, Owners and Listing Broker hereby irrevocably and, unconditionally waives, to the fullest extent permitted by law, (i) any objection that it may now or hereafter have to the laying of venue of any such suit, action or other legal proceeding in the foregoing courts, (ii) any defense that it may now or hereafter have that such suit, action or other legal proceeding has been brought or is maintained in an inconvenient forum, and (iii) trial by jury in any such suit, action or other legal proceeding.
10. Severability. If any provision of this Agreement is held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be deemed modified in such manner as to render such provision valid, legal and enforceable to the fullest extent permitted by law in such jurisdiction. The remaining provisions of this Agreement shall not be affected thereby, and shall continue in full force and effect.
11. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns, and shall inure to the benefit of Owners.
12. Miscellaneous. This Agreement can only be amended by an amendment in writing signed by Registered Potential Purchaser and Owners, and any term herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. 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 of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or at law or in equity. This Agreement is intended to be the final expression of the parties' agreement and supersedes any and all prior promises, representations, warranties, agreements, understandings and undertakings between the parties with respect to the within subject matter. There are no promises, representations, warranties, agreements, understandings or undertakings with respect to such subject matter other than those set forth or referred to herein.
13. Termination. This agreement will be in effect for the lesser of twelve (12) months after its digital acceptance, or a change in ownership of the Property. Please acknowledge your acceptance of this Confidentiality Agreement by the selecting the "Yes" option provided to the right of these terms.
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