Seller side. For owners, listing brokers, wholesalers and intermediaries presenting assets to Optimax's buyers.
This Confidentiality and Non Circumvention Agreement (the "Agreement") is between Optimax LLC, doing business as Optimax Commercial ("Optimax") and the person or entity that signs it below (the "Seller Party"). The Seller Party signs for itself and on behalf of its Covered Persons, defined in section 2.
Optimax represents buyers. Optimax identifies, qualifies and introduces buyers, investors and their capital to sellers and to the brokers, wholesalers and intermediaries who represent sellers. Optimax is paid by the buyer side. This Agreement protects those buyer relationships and the fee that depends on them.
"Covered Persons" means every person and entity acting with or for the Seller Party in connection with any Transaction, whether or not named on the signing form, including: the Seller Party's owners, members, partners, officers, employees, agents and family members; its brokers, co brokers, salespersons, wholesalers, finders and other intermediaries; its affiliates and any entity under common ownership or control; and every principal, owner, seller, landlord or client that the Seller Party represents, acts for, markets for, or introduces (each a "Represented Party"). A person who becomes a Covered Person after the date of signing is covered from the moment that person acts with or for the Seller Party.
"Introduced Party" means any buyer, investor, lender, capital partner, operator or entity, together with its owners, affiliates, partners and representatives, that Optimax identifies to the Seller Party or any Covered Person, whether by name, by description, by document, through the Optimax portal, or by conveying that party's interest, question, tour request, offer or letter of intent. A party is an Introduced Party from the first time any Covered Person learns of it through Optimax, and remains one whether or not a Transaction with that party is completed.
"Transaction" means any sale, purchase, lease, master lease, option, financing, refinancing, joint venture, partnership, assignment of contract, management agreement or other disposition or acquisition of an interest in a business, real estate, or both, in whole or in part, directly or through any entity.
"Optimax Fee" means the fee that Optimax is entitled to receive from an Introduced Party under Optimax's agreement with that party, or where no such agreement has been reduced to writing, three percent (3%) of the total consideration paid or payable in the Transaction, with a minimum of twenty five thousand dollars ($25,000). Total consideration includes cash, assumed debt, seller financing, earn outs, and the value of any property or interest exchanged.
"Confidential Information" means the identity of every Introduced Party; its buying criteria, capital position, financing, structure and timing; every offer, letter of intent, question and communication that passes through Optimax; and Optimax's methods, sources, records and pricing.
"Restricted Period" means, for each Introduced Party, twenty four (24) months from the later of the date that party was first introduced and the date of the last communication about that party between Optimax and any Covered Person.
During the Restricted Period the Seller Party will not, and will ensure that no Covered Person will, directly or indirectly: (a) contact, solicit, negotiate with, contract with, or complete any Transaction with an Introduced Party or any of its owners, affiliates, partners or representatives, on any asset, whether or not that asset was presented through Optimax; (b) accept an offer, letter of intent, deposit or tour request from an Introduced Party; (c) provide information about any asset to an Introduced Party; or (d) do any of the above through, or by substituting, a different person, entity, broker, partner, family member, assignee or nominee. Each of these is permitted only through Optimax, or with Optimax's prior written consent given for that specific Transaction.
The Seller Party will not, and will ensure that no Covered Person will, induce, encourage or assist an Introduced Party to deal outside Optimax, to remove Optimax from a Transaction, to reduce or avoid the Optimax Fee, or to make any payment or concession conditional on Optimax's exclusion. Any Transaction with an Introduced Party that is structured, delayed, renamed or reassigned so as to avoid this Agreement is a breach of it.
If a Covered Person had a prior, documented and bona fide relationship with a party before Optimax introduced that party, the Seller Party must tell Optimax in writing within three (3) business days of the introduction, with the documents that prove it. If the Seller Party does not, the party is an Introduced Party for every purpose of this Agreement.
The Seller Party represents and warrants that it has the authority to bind every Represented Party and every partner it names on the signing form, and that it will obtain the agreement of every other Covered Person to these terms before disclosing any Confidential Information to that person. The Seller Party will give a copy of this Agreement to each Represented Party and partner within five (5) business days of signing.
The Seller Party is responsible for every Covered Person as if the Covered Person's act were the Seller Party's own act. Any breach of this Agreement by a Covered Person is a breach by the Seller Party, and the Seller Party is liable for it jointly and severally with that Covered Person. The Seller Party may not avoid this Agreement by saying that a partner, principal, affiliate, co broker or family member, rather than the Seller Party itself, dealt with the Introduced Party.
The Seller Party will keep the list of Represented Parties and partners on the signing form current, and will notify Optimax in writing within five (5) business days whenever a new partner, principal, co broker or affiliate begins to act with or for the Seller Party on any asset presented through Optimax. A failure to list or update a Covered Person does not remove that person from this Agreement.
The Seller Party will hold Confidential Information in strict confidence, will use it only to evaluate and complete Transactions through Optimax, and will not disclose it to anyone other than Covered Persons who need it for that purpose and who are bound by this Agreement. The Seller Party will not use the identity of an Introduced Party to market, list or shop any asset, and will not add an Introduced Party to any mailing list, database or buyer pool.
These obligations last for three (3) years from the date of signing, and for each Introduced Party for as long as the Restricted Period for that party runs, whichever is longer. They do not apply to information that the Seller Party can prove was public through no fault of any Covered Person.
If a Transaction closes with an Introduced Party in breach of section 3, at any time during or after the Restricted Period where the contact or negotiation began during it, the Seller Party will pay Optimax, within ten (10) days of closing, an amount equal to the Optimax Fee that Optimax would have earned had the Transaction been completed through Optimax. The parties agree that Optimax's actual loss would be difficult to calculate, that this amount is a reasonable estimate of it, and that it is liquidated damages and not a penalty. It is in addition to, and not instead of, any amount Optimax recovers from the Introduced Party.
The Seller Party agrees that a breach of sections 3, 4 or 5 would cause Optimax harm that money alone cannot repair, and that Optimax may obtain an injunction or other equitable relief against the Seller Party and any Covered Person without posting a bond and without proving actual damages, in addition to every other remedy. The prevailing party in any action to enforce this Agreement recovers its reasonable attorneys' fees and costs.
The Seller Party will, on request, give Optimax within five (5) business days a written statement of every contact any Covered Person has had with an Introduced Party, and will give Optimax reasonable access to records sufficient to verify compliance with this Agreement.
Optimax does not represent the Seller Party and owes it no duty of agency, loyalty or exclusivity. Optimax is not obligated to present any buyer, to pursue any Transaction, or to keep any asset confidential from its own buyers. The Seller Party is free to sell to anyone who is not an Introduced Party, through anyone who is not Optimax, and this Agreement takes nothing from any listing agreement the Seller Party holds, except that dealing with an Introduced Party goes through Optimax.
The Seller Party represents that it is the owner of the assets it presents, or is authorized by the owner to market them and to sign this Agreement, and that dealing with buyers through Optimax does not breach any agreement the Seller Party has with the owner or with anyone else. Nothing in this Agreement is a commitment by either party to any Transaction.
This Agreement takes effect when the Seller Party signs it electronically and applies to every Introduced Party from that moment, including any party introduced before signing whose identity the Seller Party learned from Optimax. It continues for as long as any Restricted Period or confidentiality obligation under it is running.
This Agreement is governed by the laws of the State of North Dakota, without regard to its conflict of laws rules. The parties submit to the exclusive jurisdiction of the state or federal courts sitting in Burleigh County, North Dakota for any dispute under it, and waive any objection to that venue. If any provision is held unenforceable, it will be enforced to the fullest extent permitted and the rest of the Agreement will stand.
The Seller Party agrees that typing its name below, checking the boxes, drawing a signature on the signing pad where one is provided, and pressing the sign button is its electronic signature, that it intends to be bound, and that this Agreement is a signed writing under the federal Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act as adopted. The record Optimax keeps of this signature, including the reference number, the date and time, the network address, any drawn signature and the version of this text, is the signed original, and a printout or copy of it is admissible as the original.
This is the entire agreement between the parties on its subject and replaces every prior understanding on that subject. It may be changed only in a writing signed by both parties. Optimax may assign it to a successor. Notices to Optimax go to the email address on its website; notices to the Seller Party go to the email address on the signing form.