NDA

NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT

1. Confidential Information. For a period of two years from the date of this Agreement, Buyer will not directly or indirectly:
   1. Use Confidential Information, including Trade Secrets, for any purpose other than evaluating the feasibility of purchasing the Business; or
   2. Distribute, disclose or disseminate any Confidential Information, including Trade Secrets, to any third party, except to Buyer’s professional advisors (however, Buyer shall remain liable for any unauthorized use or disclosure of Confidential Information by such professional advisors).
   3. c. The term "Confidential Information" includes the financial statements of the Business and all data, documents, reports and materials provided to the Buyer by the Business or by the Broker in connection with evaluating the feasibility of purchasing the Business. Confidential Information shall not include any information that: (a) is or becomes generally available to the public other than as a result of Buyer’s or its professional advisors’ act or omission; (b) is obtained by Buyer or its professional advisors on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; (c) was in Buyer’s or its professional advisors’ possession, as established by Buyer through documentary evidence, before disclosure hereunder; or (d) was or is independently developed by Buyer or its professional advisors without using any Confidential Information.
2. Trade Secrets. For so long as information disclosed pursuant to this Agreement shall be deemed a trade secret under Tennessee law (such information, a "Trade Secret"), Buyer will not, either directly or indirectly:
1. Use the Trade Secrets for any purpose other than evaluating the feasibility of purchasing the Business; or
2. Distribute, disclose, or disseminate any Trade Secrets to any third party, except to Buyer’s professional advisors (in which event, Buyer shall remain liable for any unauthorized use or disclosure of Trade Secrets by such professional advisors).
3. Interference with Business. Buyer shall not directly or indirectly, disparage or otherwise interfere with the Business for a period of two years from the date of this Agreement.
4. Reasonability of Restrictions. Buyer expressly acknowledges and agrees that with respect to all restrictions on Buyer contained in the Agreement, (i) Buyer has read and understands the restrictions; (ii) the restrictions are reasonable to protect Seller’s Business; (iii) Buyer is bound by and will adhere to the restrictions; and (iv) failure of Buyer to adhere to these restrictions will result in damages to Seller for which Buyer will be liable.
5. Return of Confidential Information and Trade Secrets. Buyer shall return to Broker or destroy all Confidential Information, Trade Secrets, and all photocopies and electronic copies thereof within fourteen (14) days upon the earliest date of: (a) the date of notification from Broker to do so, and (b) the date on which the Buyer notifies the Business or the Broker that it does not intend to submit an indication of interest or similar document regarding a purchase and sale of the Business.
6. Communications. Buyer shall direct or submit all communications, correspondence, inquiries, negotiations and purchase offers relating to Seller and the Business through Broker. Buyer shall not, directly or indirectly, contact Seller, its agents, employees, suppliers, customers and representatives, except with express permission from the Broker or the Seller (as applicable). Buyer shall not visit the Business without the express permission of the Broker or the Seller (as applicable).
7. No Warranties by Brokers. Buyer acknowledges that the delivery of any information, including Confidential Information and Trade Secrets (collectively, the "Information"), relating to the Business has not been verified or audited by the Broker, and Broker makes no warranties or representations concerning the accuracy of the Information. Buyer acknowledges that Buyer has been advised to, and Buyer understands, that Buyer should exercise adequate due diligence, through its own independent investigation, before making any decisions relating to the Business. Buyer further acknowledges that it will not rely upon any statements or opinions of any kind of Broker, its respective agents, employees or representatives, in connection with the purchase and sale of the Business. Buyer releases Broker, its respective agents and representatives, of any and all claims arising from or relating to the accuracy or completeness of the Information.
8. Miscellaneous. Buyer acknowledges that the Seller and Broker are intended third party beneficiaries of this Agreement. Therefore, in the event of breach of this Agreement, Seller and Broker shall be entitled to collect their respective expenses of litigation, including reasonable attorneys’ fees, from the defaulting party or parties. Buyer agrees that this Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee and that venue for any such action shall be in the County in which the principal office of the Business is located. In addition to all remedies provided at law or in equity, Seller shall be entitled to seek a temporary restraining order and seek a temporary and permanent injunction to prevent a breach of this Agreement, without the requirement of posting a bond or other security. This Agreement contains the entire understanding of Buyer and Seller with respect to the subject matter hereof and supersedes all prior oral and written agreements and understandings of Buyer and Seller relating to the subject matter hereof. If Buyer is an entity, then the person signing on behalf of Buyer shall also be bound individually. For the purposes of this Agreement, Broker has listed the Business for sale and will introduce Buyer to the Business.
9. Severability. It is expressly agreed that any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof, or the validity or enforceability of the offending term or provision in any other situation or in any jurisdiction. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be excessively broad as to time, duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it so as to be enforceable to the fullest extent permitted under the applicable law.
10. Term; Survival. This Agreement does not obligate Buyer to purchase the Business or any of the assets of the Business; however, the terms of this Agreement shall survive for the time periods set forth in this Agreement. In the event Buyer purchases the Business, this Agreement shall survive the closing, and in the event of a conflict between this Agreement and the Purchase Agreement, the terms of the Purchase Agreement shall govern. This Agreement shall terminate and be of no further force or effect two (2) years from the date hereof. Notwithstanding the foregoing, with respect to any Confidential Information that constitutes a Trade Secret, the Buyer’s obligations under this Agreement shall survive for so long as such information remains a Trade Secret.
11. Counterparts. This Agreement may be executed in several counterparts, and all counterparts so executed shall constitute the agreement of the parties, notwithstanding that each is not a signatory to the same counterpart. A counterpart may be delivered via electronic signature, and the copy received will be deemed to be original. Each party that has a copy of this Agreement with an original signature shall retain such copy in safe keeping and shall produce it upon request.