Standard Confidentiality Non-Disclosure Agreement

WHEREAS, this Agreement is made and entered into by and between Marigold Resources (“Advisor”) and the “Prospect” or “Buyer”; collectively, the “Parties.” Prospect understands that the Advisor exclusively represents a certain business owner (hereinafter “Client”) who wishes to sell his/her business, and the Advisor has a sell-side agreement with such Client to be paid a fee based on any transaction with the Prospect. The Prospect agrees not to attempt to circumvent this Advisor-Client Agreement in any way.

WHEREAS, Advisor shall utilize the Prospect's provided information herein to research and ascertain Prospect's initial operational and fiscal qualifications as an acquirer of the Client's business. Advisor and Prospect desire to explore the possibility of the acquisition of client of the Advisor and, in the course of the Parties' discussions and due diligence investigations, Advisor will disclose confidential and proprietary information, both of a financial and business nature regarding its client.

WHEREAS, the confidential and proprietary information disclosed relates generally to marketing, sales, billing, pricing, accounting, and other operations of the client, as well as other proprietary information potentially including trade secrets of the client, all of which is designated “Subject Matter.” The nature and amount of subject matter disclosed shall be determined by Advisor based on Prospect's information below and/or otherwise provided.

In consideration of the mutual promises, terms, and conditions, the Parties agree as follows:

1. “Confidential Information” means the information provided by the Advisor which relates to the above-identified Subject Matter, including without limitation, financial information, business concepts, and business plans (whether or not they include intellectual property rights), confidential ideas, trade secrets, software, processes, data, marketing and sales information, customer names, customer contacts, accounting and pricing information, or other business and/or related technical information, or which, although not related to such Subject Matter, is nevertheless disclosed. Confidential Information may be disclosed either orally, visually, or intangible form, whether by document, electronic media, or other formats. Even though the Advisor or client may not mark, label, or identify any of the above-described information as proprietary or confidential for purposes of this Agreement, it shall not affect its status as part of the Confidential information protected by this Agreement.

2. It is agreed, however, that Buyer shall not be liable for wrongful disclosure of Confidential Information if the same: (a) is or becomes publicly known through no fault of the Buyer; (b) is known to the Buyer at the time of the transfer thereto; (c) is disclosed with the prior written approval of Client; (d) is independently developed by Buyer without the use of any Confidential Information (e) is required to be disclosed by law or regulation, legal or regulatory proceeding (including, without limitation, oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process.

3. Prospect shall hold and maintain the Confidential Information in strict confidence and shall use such Confidential Information only for the purpose of assisting it in the assessment, determination, investigation, and/or negotiation of terms mutually agreeable for the acquisition of the Advisor's client. Prospect shall not reproduce such Confidential Information, or disclose any of such Confidential Information to third parties, except direct support people who I will cause to be made part of this agreement, or other person or business entity of any kind without the prior written approval of the Advisor. Prospect shall not approach, write to, discuss or have contact with the Client's disclosed customers, vendors, employees, or other agents. However, other than item 4 below, nothing in this Agreement shall prohibit Prospect from contacting the Client's disclosed customers, vendors, employees, or other agents in the ordinary course of business through general solicitations not specifically directed at the Client's disclosed customers, vendors, employees, or agents.

4. In the instance that Prospect is currently employed by the Client as of signing this agreement, contact with said customers, vendors, employees or other agents in the ordinary course of business is permitted, so long as the contact is not related to the potential sale of the business.

5. Prospect agrees that it shall not use the Confidential Information in any manner in any way inconsistent with the use and purpose described in this Agreement.

6. All Confidential Information disclosed under this Agreement shall remain the exclusive property of the Advisor. All such information in tangible form shall be returned to the Advisor or destroyed the sooner of ten (10) days of the request, upon the termination of this Agreement for any reason, or as soon as Prospect no longer has an interest in the client. Notwithstanding the foregoing, the Prospect and its support people: (a) shall not be required to return or destroy any Confidential Information to the extent that it is otherwise required by law, regulation, rule, or practice governing the Prospect and its support people or its or their bona fide document retention policies; (b) will not be obligated to erase any Confidential Information that is contained in any archived computer system backup in accordance with its or their security and/or disaster recovery procedures; and (c) may retain copies of Confidential Information prepared for archival or record retention purposes, provided, in each case, the Prospect and its support people shall continue to be bound by its or their obligations of confidentiality and other obligations and agreements under this Agreement.

7. Prospect acknowledges and agrees that the Confidential Information is unique and valuable and that disclosure or use of Confidential Information in breach of this Agreement will result in irreparable injury for which monetary damages alone would be the adequate remedy. Therefore, Prospect agrees that in the event of a breach or threatened breach of confidentiality, Advisor shall be entitled to specific performance, injunctive or other equitable relief, including, but not limited to, reasonable attorney's fees. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

8. Prospect shall bear its own cost and expenses for conducting the due diligence investigation and negotiations undertaken herein, including but not limited to accounting, tax, and legal fees. The Parties shall not be liable to each other for any such costs and expenses in the event an acquisition is not consummated.

9. This Agreement will terminate upon the earlier to occur of (i) the entry of a definitive written agreement related to the proposed transaction and (ii) three years from the date hereof unless otherwise specified herein.

10. Prospect holds the Advisor harmless from any claims or obligations related to the transaction with one of the Advisor's client. The Prospect understands that the Advisor represents its client. The Prospect will not contact the client disclosed by the Advisor and will direct all negotiations, offers to purchase, letters of intent, or other communication with the client through the Advisor.

11. Prospect acknowledges that Advisor may require documentation of financial capabilities including, but not limited to a personal financial statement, personal tax return, or satisfactory letter from a lending institution in order to begin, proceed or continue with disclosure of Client's confidential information.

12. This Agreement constitutes the entire understanding between the Parties concerning the Subject Matter and Confidential Information and supersedes any prior discussion between them; (i) may not be amended or modified except by a written instrument signed by each of the Parties; (ii) shall be governed by the laws of the State of Iowa (and the Parties agree to personal jurisdiction and venue in the State of Iowa and the County of Scott County); (iii) both Parties waive rights to a jury trial in the event of a dispute or controversy that requires a judicial adjudication; (iv) both Parties agree that in the event of a judicial adjudication the losing party shall be liable for and pay all attorney fees incurred by the prevailing party; and (iii) may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

13. From time to time, the Prospect may be required to sign additional non-disclosure and/or confidentiality agreements. In the event of a conflict between such additional documents, this agreement shall prevail.

14. This Agreement applies to any information supplied or previously supplied by Marigold Resources verbally or in writing. Neither the client, its officers, directors, employees, nor Marigold shall have any liability as a result of furnishing me the material included in this Agreement. All information on the Business has been provided to Marigold by the client. Marigold makes no warranties or guarantees expressed or implied, regarding the information provided.

15. This also acknowledges that the undersigned has been advised that Marigold is an agent for the Client in this transaction. I agree that should I buy, lease or come into possession of the Business(es) during the listing term or within one year from the date below, I will not interfere with Marigold's right to its fee under Marigold's agreement with the Client.

16. The invalidity, illegality, or unenforceability of any obligation or provision of this Agreement shall not affect or impair the enforceability or legality of any remaining provision or obligation under this Agreement.

*As Prospect/Buyer I hereby affirm I have read and understand the terms and conditions above, and will be bound by same as of the date I submit this form with my electronic signature, below. 

*As Prospect/Buyer I hereby affirm I have read and understand the terms and conditions above, and will be bound by same as of the date I submit this form with my electronic signature, below.