Confidentiality Agreement for Review of Assets

Confidentiality Agreement for Review of Assets

Your privacy is important to us. We will not sell or disclose your information to any third party sources. If you are uncomfortable providing all of the requested information just complete the required fields in red only.

As part of the process by which User may make a decision regarding whether or not to purchase a particular portfolio, the User is permitted to examine information that relates to the Portfolio. Because this information is confidential, which may result in damages if further disclosure is made, User agrees to the following:

THIS CONFIDENTIALITY AGREEMENT FOR REVIEW OF real estate portfolios is made and agreed to by User and HMS for the benefit of certain owners of the portfolio (collectively "Sellers").

Section 1. Confidential Information. Confidential Information as used in this shall include: (a) all documents, reports, and other information relating to or in any way pertaining to the portfolio; (b) all information written or oral provided in response to any request from User; (c) all electronically produced information in any form; or (d) information made available through the HMS internet web site. The term "Confidential Information" shall not include information which: (a) is already known to User from sources not known by the User to be subject to any confidentiality obligations to the Sellers or HMS; (b) is or becomes generally available to the public other than as a result of a disclosure by User or any of its Qualified Persons (as defined below); or (c) is required to be disclosed by law or by regulatory or judicial process.

Section 2. Purpose. User agrees that its review and inspection of the Confidential Information shall be solely to conduct due diligence, on its own behalf, for the sole purpose of determining whether or not to submit a bid to purchase some or all of the Portfolio, and for no other purposes.

Section 3. Non-Disclosure and Use of Confidential Information. User agrees that, except as set forth below, all Confidential Information shall be used by User solely for the purpose stated in Section 2 herein. User further agrees not to disclose any of the Confidential Information without the prior written consent of HMS to any third party other than to (i) its employees, officers, and directors (including those of its affiliates); (ii) its agents and representatives, including attorneys, accountants and financial advisors; or (iii) insurance and reinsurance firms; (collectively, the "Qualified Person"), each of whom shall (i) have a need to know the Confidential Information for the purpose stated in Section 2 herein, and (ii) have entered into an agreement with User substantially in the form of this agreement. User shall inform each Qualified Person that receives any of the Confidential Information of the requirements of this agreement and shall require each such Qualified Person to comply with such requirements.

Section 4. Duplication. No reproductions, other than handwritten summaries or notes and self-generated computer records, of any items of Confidential Information shall be made without the prior written consent of the HMS.

Section 5. Restrictions on Contact. Neither User nor its Qualified Persons shall communicate with any portfolio owner, owner’s accountant or attorney or any of Owner’s employees, or managers relative to any property in the Portfolio without the prior written consent of the HMS.

Section 6. Legal Requirements. User acknowledges that (i) the Confidential Information may contain customer information subject to the Right to Financial Privacy Act, and (ii) any similar state or federal privacy act or common law. User agrees not to perform any act which would violate such laws.

Section 7. Notices. All notices, waivers, demands, requests or other communications required or permitted by this agreement (collectively "Notices"), to be effective, shall be in writing, properly addressed, and shall be given as follows by (a) personal delivery, (b) established overnight commercial courier with delivery charges prepaid or duly charged, or (c) registered or certified mail, return receipt requested, first class postage prepaid, as follows:

Home Marketing Systems, Inc./HMS
935 John St. Kalamazoo, MI 49001
Attn: Michael Fleckenstein

or to any other address or addressee as any party entitled to receive notice under this agreement shall designate, from time to time, by Notice given to the others in the manner provided in this Section. Notices thus given by personal delivery shall be deemed to have been received upon tender to the respective natural person named above. Notices thus given by overnight courier shall be deemed to have been received the next business day after delivery to such overnight commercial courier. Notices thus given by mail shall be deemed to have been received on the second (2nd) day after deposit into the United States Postal System. All copies to the respective persons or entity(ies) listed above to receive copies shall be given in the same manner as the original Notice, and such giving shall be a prerequisite to the effectiveness of any Notice.

Section 8. Indemnification. By acceptance of the Agreement, User hereby agrees to indemnify, defend (through attorneys reasonably acceptable to HMS and Sellers and their successors and assigns) and hold HMS and Sellers and all officers, directors, employees, and agents of HMS and Sellers harmless from and against any and all claims, causes of action, damages, losses, costs (including reasonable and necessary attorney's fees) and liabilities of any nature, which may at any time be assessed against or suffered by HMS or Sellers directly or indirectly relating to or arising out of a breach of this agreement by User or its Qualified Persons.

Section 9. Termination. The restrictions in this agreement shall terminate as to any of the Portfolio acquired by User; provided, however, that any claim by HMS based on a breach of this occurring prior to such acquisition shall survive the acquisition unless waived by HMS in writing. In addition, the Purchase and Sale Contract executed between Sellers and purchasers for Property acquired may contain further Confidentiality requirements. The terms and conditions of this Agreement shall remain in full force and effect as to any Property not acquired by User. User shall destroy or, at HMS’s request, deliver to HMS any compilations, studies, notes or other documents or records that contain or reflect Confidential Information relating to the Property not acquired by User.

Section 10. No Representations or Warranties. User acknowledges and understands that the Confidential Information has been prepared by parties other than HMS and that HMS make no representations or warranties whatsoever, express or implied, with respect to the content, completeness or accuracy of the Confidential Information. User hereby releases HMS and their respective agents, officers, directors, attorneys, employees, contractors and representatives from all claims, causes of action, losses, damages, liabilities, judgments, costs and expenses (including, without limitation, attorney's fees, whether suit is instituted or not) asserted against or incurred by User by reason of the Confidential Information.

Section 11. Entire Agreement. This Agreement represents the entire agreement between User and HMS relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by User. This Agreement supersedes all other agreements relating to such matters which have previously been executed by the User in favor of HMS. This Agreement does not create any implied contract right or any other interest in User to purchase any Portfolio of Sellers. No such right or interest shall exist except pursuant to a Purchase and Sale Contract executed by both User and Sellers.

Section 12. Remedies for Breach. In the event the Confidential Information is used for any purpose other than evaluation of the portfolio in order to submit a bid regarding the Property, User, its employees, officers, agents or subcontractors, will be in violation of this Agreement, and HMS and Sellers shall be entitled to reasonable damages.