Confidentiality Agreement
This Agreement is made and effective as of the date signed hereto, by and between Buyer and sweetFrog Enterprises, LLC and its subsidiaries, including the franchisor entity, SFF, LLC (individually and collectively the “Company”) regarding the potential purchase of the Identified Store (below), with the purchase being the “Transaction”. The parties desire to enter into this agreement to establish the Buyer’s obligation with respect to Confidential Information.
1. The Company proposes to disclose certain of its confidential and proprietary information (the “Confidential Information”) to Buyer. “Confidential Information” means all information that has been provided, or that will be provided, orally, visually or in writing to the Buyer, including, without limitation, all reports, information and data in whatever form, regarding the Company’s or Identified Shop’s finances or financial condition, sales, methods of production, customers, plans, designs, products, processes, equipment, technologies, materials, suppliers, costs, operations, trade secrets, strategies, prospects and disclosure of actual operating results as well as the potential franchise arrangement and the fact that the parties are discussing the potential franchise arrangement. Nothing herein shall require the Company to disclose any of its information.
2. The Company will disclose or otherwise make available to Buyer only such Confidential Information as it believes is appropriate to enable Buyer to evaluate and/or perform the potential Transaction regarding the Identified Shop.
Under no circumstance will the Company be required to disclose any Confidential Information the Company chooses not to disclose. The Buyer (i) shall hold the Confidential Information received from the Disclosing Party in strict confidence and shall not disclose, publish, sell or license such Confidential Information to any person or entity at any time and (ii) will use the Confidential Information solely for the purpose of the evaluation of the potential Transaction; provided, however, the Confidential Information may be disclosed only to those employees, officers,directors, representatives, and advisors of Buyer, or Buyer’s respective affiliates and their employees, officers, directors, representatives and advisors involved in the evaluation or performance of the Transaction (it being understood that such employees, officers, directors, representatives, and advisors, as the case may be, or their respective affiliates shall be informed of the provisions of this Agreement and the confidential nature of the Confidential Information and shall be instructed to abide by the terms hereof or execute similar covenants), and may not be disclosed to anyone else without the Company’s prior written permission.
3. Buyer shall have no obligation under this Agreement with respect to Confidential Information which: i) is at the time of disclosure, or becomes through no fault of Buyer, available in the public domain; ii) is rightfully received by Buyer without obligations of confidentiality; iii) can be shown by Buyer to have been legally in its possession prior to disclosure to it by the Company, iv) is furnished to others by the Company without restriction on disclosure; v) is independently developed by employees or agents of Buyer who have not had access to the Confidential Information; vi) is required to be disclosed pursuant to law or court order provided that Buyer gives the Company prior notice and sufficient time to assert any exclusions or privileges that may be available by law; or vii) is disclosed to a third party with the approval of the Company.
4. Buyer acknowledges that any information provided from the Company is related only to the Identified Store and not to the sale of a sweetFrog franchise, which can only be made in accordance with U.S. franchise law. Franchise sales can only be made by those employees of the Company who are registered to do so, and through the associated processes and procedures as required in each state as applicable. In connection with your potential purchase of the Identified Shop, you may at a certain point in the process have access to information regarding the actual operating results of the Identified Shop by virtue of the Financial Statements. The Financial Statements, if provided, will be provided to you only in connection with your proposed purchase of the Identified Shop and for no other reason.
a. You should consider the following material factors in reviewing any actual Financial Statements:
i. The Company makes no representation as to the accuracy of the information contained in the Financial Statements. Although the Financial Statements may have been prepared in accordance with consistently applied accounting principles, the Financial Statements are unaudited, and no certified public accountant has expressed any opinion with regard to their content or form. If we provide any additional financial statements, the material factors contained in this disclosure also will apply to all financial statements subsequently provided to you.
ii. The Financial Statements only reflect historical performance at the Identified Shop and should not be considered as the actual or potential sales, profits, income, expenses or costs you may realize if you purchase the Identified Shop, nor should they be considered as the actual or potential sales, profits, income, expenses or costs that may be realized in the operation of any other sweetFrog Shop.
iii. You should be aware that the Company and its affiliates have developed an accounting system that may differ from the accounting system that a franchisee or other operator may use. This accounting system may incorporate various bases and assumptions and if you have questions about those bases and assumptions, please let us know.
iv. You should review the Financial Statements with a financial advisor and conduct your own due diligence before you purchase the Identified Shop.
5. Nothing in this Agreement constitutes a representation or warranty by the Company as to the truth, accuracy or completeness of the Confidential Information. Any representations or warranties shall be made only in definitive documentation entered in respect of the potential Transaction, if any.
6. The parties acknowledge that their respective obligations under this Agreement are such that immediate and irreparable harm may result from any failure to perform their respective obligations hereunder or any breach of the terms hereof. Accordingly, in addition to any other remedies that may be available at law, the Company shall be entitled to injunctive relief with respect to the Buyer’s violation of the terms of this Agreement.
7. Buyer agrees to return, upon request by the Company, all tangible materials furnished hereunder, or to destroy the Confidential Information in lieu of return provided Buyer furnishes written confirmation of such destruction within ten days of request.
8. Buyer may not assign this Agreement or any interest herein without the Company’s written consent.
9. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given by personal delivery, certified mail, or recognized overnight delivery service.
10. No waiver by any party of any breach of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same provision or any other provision. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. If a court of competent jurisdiction deems any provision of this Agreement invalid, unreasonable or unenforceable, then the remaining provisions will not be affected, and the invalid provision may be enforced to the extent deemed reasonable by the court.
11. This Agreement imposes no duties or obligations on the Company or Buyer not specifically stated herein, and no contract of engagement, relationship of partnership or joint venture, or transaction is or shall be deemed to be created hereby. Each party reserves the right to reject any and all proposals made by the other party with regard to the potential Transaction and to terminate discussions and negotiations with the other party at any time. Without limiting the preceding sentence, nothing in this Confidentiality Agreement requires either party to enter into a binding agreement for the Transaction or to negotiate such Transaction for any specified period of time. Until a binding agreement is executed for the proposed Transaction, the Company can negotiate with other parties for sale of the Identified Shop.
12. This Agreement constitutes the entire agreement between the parties and supersedes all prior understandings or agreements. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia. The state and federal courts located where the Company maintains it principal offices at the time suit is filed shall have exclusive jurisdiction over any disputes that arise under this Agreement. The parties consent to jurisdiction and venue in those courts. THE PARTIES HEREBY EXPRESSELY WAIVE ANY RIGHT TO TRIAL BY JURY
13. This Agreement may be executed simultaneously in one or more counterparts, and by different parties hereto in separate counterparts, each of which when executed shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Copies (facsimile or original) of signatures to this Agreement shall be deemed to be originals and shall be binding to the same extent as original signatures.
14. This Agreement shall terminate two years from the date hereof, unless sooner terminated by notice in writing from the Company.
Prospective Buyer Information for Confidentiality Agreement