This agreement (this “Agreement”) is made and entered into as of the Effective Date set forth below by and between Benchmark International Company Sales Specialist, LLC, a Florida limited liability company ("Benchmark") and the entity or individual set forth in the signature block below ("Recipient").
R E C I T A L S
A. Recipient desires to obtain certain confidential and proprietary information of various clients of Benchmark for the sole purpose of examining the information and determining the feasibility of the acquisition of one or more of such clients (the “Purpose”) and such clients will provide such confidential and proprietary information to Recipient for the Purpose and under the terms and conditions set forth in this Agreement.
B. In consideration of the disclosure to Recipient of Confidential Information, Recipient agrees to receive and to treat Confidential Information on a confidential and restricted basis and agrees as follows:
1. A G R E E M E N T
“Authorized Representative” means any (i) of Recipient's officers, directors, employees having a bona fide need related to the Purpose to view Confidential Information, (ii) Recipient’s affiliates and professional advisers acting on Recipient’s behalf in connection with the Purpose; (iii) financial institutions (or other financial sources routinely engaged in providing financing to transactions similar to the Purpose) from whom Recipient is seeking financing relating to the Purpose; or (iv) any other person approved in writing in advance by Benchmark. For the avoidance of doubt, in the event Recipient is itself an advisor or otherwise not a party contemplating the acquisition of the relevant Target on its own behalf or on behalf of an affiliate, entities such as Recipient’s clients shall not be deemed Authorized Representatives unless and until Recipient has obtained the written consent of Benchmark to classify such party as an Authorized Representative.
b. “Confidential Information” means Any and all information, including without limitation the identity of any Target (or affiliate or owner of any Target) as an entity or individual that has come to market, in whatever form or medium, that is provided by any client of Benchmark, or Benchmark, in connection with this Agreement except information which: (1) is made freely available by such Target to its customers or is published or otherwise made publically available through sources entitled to disclose the same; (2) is or becomes publicly available through no breach of this Agreement by Recipient or any of its Authorized Representatives; (3) is or becomes known to Recipient or any of its Authorized Representatives prior to its receipt under this Agreement, as shown by Recipient’s written records; (4) is or becomes known to Recipient or its Authorized Representatives through disclosures by a third party not known by Recipient or its Authorized Representatives, after due inquiry, to be prohibited from disclosing such information by a contractual, fiduciary, or other legal obligation; or (5) is developed by or for Recipient or any of its Authorized Representatives independently of any disclosure under this Agreement.
c. “Target” means any client of Benchmark whose identity has been disclosed to Recipient and about whom any Confidential Information has been shared with Recipient following the Effective Date.
d. “Term” means the period Commencing on the Effective Date and continuing for a period of 2 years therefrom.
2. Use and Disclosure.
a. Obligation. Recipient shall hold all Confidential Information in strict confidence and prevent its unauthorized disclosure. Recipient shall use the Confidential Information only to the extent reasonably required to fulfill the Purpose. In addition, Recipient will not disclose to any third party other than an Authorized Representative that discussions relating to any Target are taking place or have taken place, or any of the terms and conditions thereof.
b. No License/Conveyance. All Confidential Information disclosed shall remain the property of the applicable Target and no license or conveyance of any rights is granted or implied by the disclosure of Confidential Information by such Target or Benchmark. Neither Recipient nor any of it Authorized Representatives shall modify, reverse engineer, decompile, create other works from, or disassemble any program, service or product and/or any software programs that constitute Confidential Information.
c. Intent. Recipient hereby represents and warrants that it is entering into this Agreement for no purpose other than the potential (partial or full) acquisition of one or more of the Targets by itself or one or more of its affiliates, or by a client that has been approved as an Authorized Representative, in writing, by Benchmark, and not on behalf of any other non-affiliated third party.
d. Advisors. Recipient may provide access to Confidential Information to an Authorized Representative provided that Recipient is vicariously liable for the failure of any such Authorized Representative to comply with Recipient’s obligations hereunder.
e. Legally Required Disclosure. Recipient may also disclose Confidential Information without liability therefore if, and only to the extent, such disclosure is required by law, provided that Recipient gives Benchmark and the applicable Target sufficient notice, if legally permissible, to enable Benchmark or such Target to seek an order limiting or precluding such disclosure. Notwithstanding the foregoing, Recipient and its Authorized Representatives who make disclosures without notice to any regulatory or self-regulatory authority may do so without providing notice to Benchmark or the applicable Target to the extent such disclosure is reasonably required pursuant to routine investigations, inspections, examinations or regulatory or self-regulatory inquiries not specifically targeted at the Target or the Purpose.
f. Contacts. Recipient and its Authorized Representatives will not, without the applicable Target’s prior knowledge and written consent, make contact or approaches of any kind to the staff, customers, or suppliers of such Target, unless both (1) such contact or approaches are proven to have been made independently of the Purpose and without detriment to the Purpose and (2) no Confidential Information is disclosed by Recipient or any of its Authorized Representative. Notwithstanding the foregoing, nothing in this Section 1(f) shall prohibit the Recipient from (i) making general solicitations for employment (including the use of third party search firms) not specifically targeting any Target’s employees, (ii) soliciting individuals who have terminated their employment with the applicable Target prior to the initiation of any such solicitation, or (iii) hiring individuals who initiate contact with Recipient on their own initiative or who respond to any of the aforementioned solicitations. This restriction shall commence for any specific Target upon Benchmark’s disclosure of such Target’s name to Recipient and shall continue for a period of two (2) years following the date of such disclosure.
g. Interference. Recipient will not conduct negotiations with any Target in such a way or manner as to interfere with such Target’s contractual relationship with Benchmark including, but not limited to, fees payable to Benchmark.
h. Notification. Recipient shall notify Benchmark promptly upon becoming aware of any breach of this Agreement by Recipient or any of its Authorized Representatives including, without limitation any unauthorized disclosure, copying, use, or loss of all, or any part of, Confidential Information.
a. Trade Secrets. Any Confidential Information constituting a “trade secret” under applicable statutes and/or common law shall be protected to the full extent allowable thereunder, and such protection shall not be limited in any way by the terms of this Agreement.
b. Irreparable Harm. Recipient acknowledges that the Confidential Information is proprietary and valuable to Targets and that any disclosure or unauthorized use of the information may cause irreparable harm and loss.
c. No Obligation. Recipient acknowledges that nothing herein contained shall require Benchmark to provide information relating to any Target. Benchmark at its sole discretion may decline to supply any or all information.
d. No Representations. Recipient acknowledges that Benchmark makes no representation, warranty, or guarantee whatsoever about Confidential Information. Any and all information including, but not limited to, budgets, forecasts, and projections do not, and shall not be deemed to, constitute any representation or expression of opinion or warranty on behalf of Benchmark.
e. No Agency. Recipient acknowledges that Benchmark is not acting pursuant to this Agreement as the agent of Recipient and accordingly agrees to hold Benchmark harmless in all matters relating to Targets. Recipient further acknowledges that Benchmark is not responsible for vetting the accuracy or completeness of information provided by any Target and accordingly agrees that Benchmark will not be liable for any loss or damage relating to the disclosure of information to Recipient; in particular, but without limitation, as a result of any errors or inaccuracies of the information.
f. No Reliance. Recipient has not and will not enter into any agreement in reliance upon any representation or warranty, written or oral, made by Benchmark. Recipient acknowledges the need to do its own investigation and consult independent professional advisors including, but not limited to attorneys and financial analysts. Recipient further acknowledges that should Recipient consummate a transaction with any Target, the enforceable representations and warranties of such Target are likely to be limited to those set forth in the definitive agreements for such transaction.
a. Survival. All provisions of this Agreement that may reasonably be construed as surviving the expiration, termination, or cancellation of this Agreement shall survive such event and continue to bind the parties, their successors, and assigns.
b. Governing Law, Venue, and Jurisdiction. This Agreement and all disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of Florida applicable to contracts to be fully performed therein, without giving effect to any choice of law rule therein that would require the application of the law of any other jurisdiction. Any action or proceeding relating in any way to this Agreement may be brought and enforced in the courts of the United States for the Middle District of Florida, or those of the State of Florida located in Hillsborough County, Florida, and each party hereto irrevocably consents to the jurisdiction of each such court in respect of any such action or proceeding.
c. Severability. If a court of competent jurisdiction determines that provisions of this Agreement are illegal or excessively broad then such provisions shall be construed so that the remaining provisions of this Agreement shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad provisions shall be deemed, without further action on the part of any person or entity, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in the applicable jurisdiction.
d. Beneficiary. Any Target disclosed by name to Recipient by Benchmark during the Term of this Agreement is an intended third party beneficiary of this Agreement and will have the right to enforce this Agreement against Customer. Benchmark may disclose the existence and terms of this Agreement to any Target.
e. Damages. Recipient understands and agrees that (i) money damages may not be a sufficient remedy for any breach of this Agreement, (ii) in the event of a breach or threatened breach of this Agreement by Recipient, Benchmark and Targets shall be entitled, and have the right, to seek specific performance and injunctive and other equitable relief to ensure compliance with this Agreement, and (iii) any such equitable remedy shall not be deemed to be an exclusive remedy for breach of this Agreement, but may be in addition to all other remedies available at law or equity.
f. No Impact on Other Investments. Benchmark acknowledges that Recipient, and its affiliates and Authorized Representatives may now and in the future (i) operate in in the same industry as a Target (and/or any of Target’s affiliates) and/or (ii) investigate other potential acquisition and investment targets including those in the same industry as a Target (and/or any of such Target’s affiliates) and may subsequently effect acquisitions of and/or investments in such targets. Nothing in this Agreement shall prevent Recipient, or its affiliates or Authorized Representatives, from pursuing such opportunities.
g. No Impact on Uninvolved Affiliates. Notwithstanding anything to the contrary contained in this Agreement, this Agreement and the obligations herein shall not apply to the Recipient’s affiliates, subsidiaries or affiliated or associated business entities (or persons therein) that both (i) are not acting on Recipient’s behalf with regard to the Purpose and (ii) have not been provided with Confidential Information.
h. Attorney’s Fees. In the event that suit is brought to enforce this Agreement, or for damages relating to a breach of this Agreement, the prevailing party shall be entitled to recover from the other, in addition to its damages or other remedy, all costs and reasonable attorney’s fees, both at trial and at the appellate level.
i. Amendment, Waiver. Except as set forth in Section 3 of the Agreement, any provision may be amended and the observance thereof may be amended or waived (either generally or in a particular instance and either retroactively or prospectively), only by the written consent of Recipient and Benchmark.
j. Entire Agreement. This Agreement supersedes any prior discussions, correspondence, understandings, agreements, or communication between the parties of any nature relating to the subject matter of this Agreement.