NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is made this ____ day of _________, 2025, by and between [PROSPECTIVE PURCHASER], the undersigned recipient of confidential evaluation material (the “Recipient”) and [OWNER’S BROKER] (the “Disclosing Party”), on behalf of certain Owner(s) of the Property(ies) (as defined below). Recipient and Disclosing Party are sometimes referred to herein individually as a “Party”, and collectively as the “Parties”.
WHEREAS, as of the date hereof, Disclosing Party is the exclusive agent of Owner(s), engaged for the purpose of marketing the potential sale of the Property(ies) and related services; and
WEHREAS, for the purpose of evaluating the potential sale of [INSERT PROPERTY ADDRESS(ES)] (the “Property(ies)”) to be offered for sale by [INSERT PROPERTY OWNER(S)] (the “Owner(s)”) (the “Proposed Transaction”), Disclosing Party has agreed to provide, and the Recipient has agreed to maintain, the confidentiality of certain confidential information that is non-public, confidential or proprietary in nature, as more particularly described below (the “Confidential Information”).
NOW, THEREFORE, as a condition of Recipient receiving Confidential Information from Disclosing Party, and in consideration of the mutual promises and covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
“Confidential Information” means all communications, materials or data, in any form, including without limitation oral, written, graphic or digital form delivered by or through Disclosing Party to Recipient about or in connection with the Property, including without limitation, the Proposed Transaction itself and any property expense or income information or data, projections, forecasts, development projections, development analysis, engineering studies or other reports, reports of consultants and similar items; client or customer lists or identities; property management, operations and business know-how, processes, techniques and strategies. The Parties shall use their best efforts to minimize any verbal or graphic disclosure of Confidential Information, and to identify such Information as Confidential Information prior to its disclosure. “Confidential Information” shall not include communications, materials or data or information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of Recipient; (b) discovered or created by the Recipient before disclosure by Disclosing Party; (c) learned by the Recipient through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
Recipient shall neither disclose, duplicate, transmit, disseminate, publish, divulge, nor otherwise reveal in any way, any and all Confidential Information received from Disclosing Party, except to Recipient’s Representatives (as defined in Section 4 below). Furthermore, Recipient shall neither use nor permit the use of, or the public or private disclosure of, any and all Confidential Information provided by Disclosing Party for any purpose other than the performance of its obligations to Disclosing Party hereunder or under any other agreement executed by and between both Parties.
It is agreed that any Confidential Information provided by Disclosing Party to Recipient prior to the date of this Agreement with respect to the business relationship referenced above shall be deemed confidential and subject to this Agreement.
Recipient will advise any and all of its employees, officers, directors, agents, advisors, partners, members and investors, including, without limitation, attorneys, accountants, consultants, bankers and financial advisors and other representatives (collectively “Representatives”) to whom the Confidential Information is disclosed, of the obligations herein set forth and Recipient agrees that it will provide Confidential Information to those Representatives only on a “need to know” basis and only to those Representatives who have been so advised. The Parties agree that any Representative receiving Confidential Information or being exposed to Confidential Information shall adhere to the terms of this Agreement.
Recipient shall treat the Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information but with no less than a reasonable degree of care.
Recipient acknowledges and agrees that the Confidential Information may only be used for the sole purpose of evaluating and/or engaging in the Proposed Transaction. Recipient will not retain any rights to any of Disclosing Party’s Confidential Information. Any and all materials and media containing Confidential Information regarding Disclosing Party shall remain the property of Disclosing Party and shall be returned to Disclosing Party (or destroyed as provided hereinbelow) promptly at its request. All documents, memoranda, notes and other writings whatsoever prepared by Recipient or its Representatives based on Confidential Information provided by Disclosing Party (collectively “Derivative Information”), and any and all copies thereof, shall be returned to Disclosing Party promptly at its request. Recipient shall develop, implement and maintain, as part of its existing information security program, appropriate measures to properly dispose of Confidential Information regarding customers and/or consumers of Disclosing Party in order to address the risks associated with identity theft, among other purposes. Recipient agrees to utilize document destruction and disposal practices that are reasonable and appropriate to prevent the unauthorized access to, or use of, the Confidential Information. Such measures may include burning, pulverizing or shredding paper documents and erasing or destroying electronic and media records to ensure Confidential Information cannot be read or reconstructed. If Recipient is not able to destroy the Confidential Information, Recipient shall return the Confidential Information to Disclosing Party after it has been used for the purposes specified in this Agreement. That destruction/deletion (or return/delivery) will be confirmed in writing to Disclosing Party. Any such Confidential Information not so returned/delivered (or destroyed/deleted) and any oral Confidential Information shall remain subject to this Agreement.
Notwithstanding anything to the contrary set forth in this Agreement and without the prior written consent of Disclosing Party, the Recipient and its Representatives shall not call, write, meet with, or have any other contact with any person or entity identified in the Confidential Information (including, without limitation, any clients, customers, owners, property management companies, leasing agents, tenants or any of their respective employees, contractors or agents, or their respective legal counsel) regarding or in any way relating to the Property.
If Recipient or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, Recipient will promptly notify Disclosing Party of such request or requirement so that Disclosing Party may seek to avoid or minimize the required disclosure and/or to obtain an appropriate protective order or other appropriate relief to ensure that any Confidential Information so disclosed is maintained in confidence to the maximum extent possible by the agency or other person receiving the disclosure, or, in the discretion of Disclosing Party, to waive compliance with the provisions of this Agreement. In any such case, Recipient will use its reasonable efforts, in cooperation with Disclosing Party or otherwise, to avoid or minimize the required disclosure and/or to obtain such protective order or other relief. If, in the absence of a protective order or the receipt of a waiver hereunder, Recipient or its Representatives are compelled to disclose the Confidential Information or else stand liable for contempt or suffer other censure or penalty, Recipient will disclose only so much of the Confidential Information to the person compelling disclosure as it believes in good faith on the basis of advice of counsel is required by law. Recipient shall give Disclosing Party prior notice of the Confidential Information it believes it is required to disclose.
The conditions in this Agreement and the Confidential Information disclosed pursuant to this Agreement are of a special, unique, and extraordinary character, and Disclosing Party would be harmed by any disclosure of the Confidential Information in violation of this Agreement. The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and Disclosing Party shall be entitled, in addition to any money damages that may be available, to specific performance and injunctive relief and any other appropriate equitable remedies for any such breach to prevent further use and/or disclosure, without proof of actual injury. Recipient agrees that it will not oppose the granting of such relief and that it will not seek, and agrees to waive any requirement for, the posting of any bond in connection therewith. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Recipient or its Representatives but shall be in addition to all other remedies available at law or in equity to Disclosing Party and its affiliates and subsidiaries. The Parties agree that failure or delay by Disclosing Party in exercising any right, power or privilege hereunder shall not operate as a waiver thereof and that any single or partial exercise thereof shall not preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Notwithstanding the foregoing, no Confidential Information shall be subject to the restrictions imposed by this Agreement and the obligations of Recipient set forth herein shall terminate with respect to any particular portion of the Confidential Information if:
it was in the public domain at the time of the communication thereof to Recipient;
it entered the public domain through no fault of Recipient and/or of its Representatives subsequent to the time of Disclosing Party’s communication thereof; or
it was developed by Representatives of Recipient independently of and without reference to any of Disclosing Party’s Confidential Information, as shown by documentation sufficient to establish that the Confidential Information was established independently and without reference to Disclosing Party’s information.
Disclosing Party does not provide any representations, assurances or warranties with respect to the accuracy and veracity or completeness of the Confidential Information and will not be liable by any means for any use that Recipient may give to the Confidential Information provided by Disclosing Party.
The Parties agree that the disclosure of Confidential Information by Disclosing Party to the Recipient in connection with the business relationship between the Parties shall be governed by this Agreement. The Parties further agree that each Owner is an intended third party beneficiary of the terms and provisions of this Agreement and shall have the right either individually or jointly with other Owners to enforce such terms and provisions to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Owners hereunder.
All notices shall be in writing and sent by (1) U.S. Mail, Registered or Certified, return receipt requested, (2) commercial overnight carrier, or (3) hand delivery to the addresses below for such Party. Notices shall be deemed effective upon actual receipt (or refusal of delivery).
If to Recipient:
Attention:
Telephone:
E-mail:
If to Disclosing Party:
Attention:
Telephone:
E-mail:
Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia, regardless of the domicile of any party or principles of conflicts of laws, and will be deemed for such purposes to have been made, executed and performed in the District of Columbia. All claims, disputes and other matters in question arising out of or relating to this Agreement or the breach thereof, will be decided by proceedings instituted and litigated in a court of competent jurisdiction in the District of Columbia. This choice of venue is intended by the Parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the Parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect.
The termination of this Agreement, or of any other agreement or business relationship between, or involving both Parties, shall not relieve Recipient of its obligations with respect to Confidential Information disclosed pursuant to the terms of this Agreement or pursuant to the terms of any other agreement executed by and between both Parties. Neither this Agreement nor any rights or obligations under this Agreement may be assigned by the Recipient without the prior written consent of Disclosing Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective heirs, successors, and assigns.
No Joint Venture. The Parties hereto agree that this Agreement is for the purposes of protecting the Confidential Information only. This Agreement is not a joint venture or other such business arrangement.
Third Party Beneficiary. Owner(s) is a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same Agreement. An electronic mail transmission by one Party to the other Party of an executed Agreement (the signature page duly signed and the rest of the pages duly initiated) shall be deemed to be equivalent to delivery of an original Agreement, and the transmitting Party shall forward the original Agreement upon request of the receiving Party.
Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements or understandings. This Agreement shall not be modified except in writing signed by both Parties.
The Parties acknowledge that each Party and each Party’s counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreements or any amendments thereof.
Electronic Records and Signature. It is agreed by the Parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other words of similar import, the Parties intend that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
The undersigned persons have the authority to execute on behalf of, and to bind their respective Party to, this Agreement.
[signatures appear on next page]
IN WITNESS WHEREOF, the Parties hereto have executed this Non-Disclosure and Confidentiality Agreement as of the day and year first set forth above.
Recipient :
[ , a ]
By:
Name:
Title:
Disclosing Party :
[ , a ]
By:
Name:
Title:
