NON DISCLOSURE AGREEMENT - REGISTRATION
This Agreement (the “Agreement”), is hereby entered into by the registered members of the membership area of this website (the “Receiving Party”) and Metropolitan Properties of NYC, LLC, a New York limited liability company (the “Disclosing Party”), and the Receiving Party hereby acknowledges and agrees that the entry into this agreement is a precondition for the Receiving Party’s access to the membership area of this website and to the Confidential Information herein.
WHEREAS, the Receiving Party wishes to access the information in the membership area of this website and to potentially enter into a transaction (the “Transaction”) with the Disclosing Party with respect to one or more of the properties (“the Properties”) disclosed on the membership area of this website, and wishes to access the membership area of this website to review certain information, data, documents, files, records and other information written, oral or electronic, regardless of whether identified as “confidential” (collectively, the "Confidential Information") relating to such possible transaction.
WHEREAS, the Confidential Information includes economic, commercial, marketing, operational, managerial and financial information that is provided to the Receiving Party by the Disclosing Party, its agents or representatives.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Receiving Party hereby represents, warrants and agrees with the Disclosing Party as follows:
The Receiving Party agrees to maintain the full and complete confidentiality of the Confidential Information and the Receiving Party agrees that no part of the Confidential Information shall be disclosed by the Receiving Party, except as otherwise expressly stated in this Agreement. The Receiving Party shall use the Confidential Information solely for the purpose of determining whether or not to proceed with the Transaction. The Receiving Party agrees that it will not use the Confidential Information in any way detrimental to the Disclosing Party. The Confidential Information also includes the fact that discussions or negotiations are taking place between the parties concerning a possible Transaction and any and all terms or conditions proposed or made a part of the Transaction. By executing this Agreement, the Receiving Party acknowledges that the Confidential Information provided is confidential and proprietary business information. Accordingly, one of the conditions to the Disclosing Party’s agreement to make the Confidential Information available to the Receiving Party is the execution and delivery of this Agreement by the Receiving Party for the benefit of the Disclosing Party.
The Receiving Party hereby further agrees that it will not, and will cause the Permitted Parties (hereinafter defined) to not, disclose such Confidential Information, directly or indirectly, to any third party, except to the following persons as may be necessary to assist the Receiving Party in evaluating any proposed Transaction: (a) the Receiving Party’s employees, officers and directors who need to know such information for the purpose of evaluating such possible Transaction; (b) the Receiving Party’s agents and representatives, including attorneys, accountants, financial advisors and other professional advisors and consultants who need to know such information for the purpose of evaluating such possible Transaction, specifically excluding any outside licensed real estate brokers and (c) applicable regulatory agencies having jurisdiction over the Receiving Party (a), (b), and (c) individually, a “Permitted Party” and collectively, the “Permitted Parties”). Prior to the disclosure of any Confidential Information to a Permitted Party, such Permitted Party shall execute an agreement identical to this Agreement in favor of the Disclosing Party. The Receiving Party will be responsible for any breach of this agreement by any Permitted Party and for any claims, losses, liabilities and damages resulting therefrom. The Receiving Party agrees to take, at its sole expense, all reasonable measures to restrain the Permitted Parties from unauthorized disclosure or use of the Confidential Information. The Receiving Party hereby agrees that it shall not introduce any other outside real estate broker to any transaction(s) contemplated hereunder.
The term “Confidential Information” as used herein shall not include information which (a) becomes generally available to the public not as a result of a disclosure by Disclosing Party and (b) was already known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party, as demonstrated by the Receiving Party and as indicated in its business records.
The Receiving Party shall, within ten (10) business days following written notice by the Disclosing Party (a) return the Confidential Information (along with all copies thereof) to the Disclosing Party, and (b) return or destroy all secondary documents (including such secondary documents existing in computer memory) developed by the Receiving Party or any Permitted Party (including all analysis, summaries, compilations and other materials prepared by Receiving Party or any permitted parties which contain or otherwise reflect or are generated from such information) in whole or in part on any of the Confidential Information.
In the event that the Receiving Party or its Permitted Parties receive a request or are required to disclose all or any part of the information contained in the Confidential Information pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory body or pursuant to a civil investigative demand or similar judicial process, the Receiving Party agrees to (i) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding such a request or requirement, (ii) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or requirement, and (iii) if disclosure of such information is required, disclose any such information which the Receiving Party is advised by legal counsel is legally required to be disclosed and exercise its reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information. Disclosure made pursuant to this paragraph 5 will not change the Receiving Party or the Permitted Parties' confidentiality obligations pursuant to this Agreement.
The Receiving Party agrees that, without the prior consent of the Disclosing Party, neither the Receiving Party nor any Permitted Party will, directly or indirectly, contact, solicit or enter into any discussions, agreement, contract, letter of intent, term sheet or negotiation with any principal, landlord, owner, broker, seller, tenant, employee, supplier, partner, investor, customer, lender, agent, broker or representative with respect to the Properties, the Confidential Information, the Transaction or any other matter related to any of the foregoing. It is also understood that all (a) communications regarding a possible Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures will be submitted or directed solely to the Disclosing Party. The Receiving Party agrees that the Receiving Party's representatives shall not be permitted to visit the Properties at any time (except to the extent the general public is permitted to visit the Properties, without the prior specific approval of the Disclosing Party.
The Receiving Party understands that the Disclosing Party is not making any representations, expressed or implied, as to the accuracy or completeness of the Confidential Information.
The Receiving Party further understands and agrees that the breach of this Agreement will result in irreparable harm to the Disclosing Party, that money damages would not be a sufficient remedy for any breach of this agreement by the Receiving Party or any Permitted Party and that the Disclosing Party will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this agreement but shall be in addition to all other remedies available at law or equity. In the event of a litigation or arbitration between the parties related to the subject matter of this Agreement, the non-prevailing party as determined by the court shall pay to the prevailing party all costs and reasonable attorneys’ fees incurred by the prevailing party including, but not limited to, those costs and fees related to any trial, arbitration or appellate, proceedings.
The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). The parties hereto irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the Southern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”), (ii) agree that all claims in respect of any Proceeding may be heard and determined in any such court, and (iii) waive, to the fullest extent permitted by law, any immunity Receiving Party has acquired, or hereafter may acquire, from jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient forum.
The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and of the indemnified parties hereunder and their successors and assigns and representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and assigns.
If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and (ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and may be modified or waived only by a separate letter executed by the Disclosing Party and the Receiving Party expressly so modifying or waiving such Agreement. This agreement shall be binding for a period of five (5) years following the date on which the Receiving Party last accesses the membership area of this website or the Confidential Information therein.