Access to the confidential information, and acceptance of this Confidentiality Agreement, is available only for the limited purposes and uses set forth in our Terms and Conditions. Other uses are strictly prohibited.
This Confidentiality Agreement (this “Agreement”) is entered into by and among OakEx LLC (“OakEx”), the owner of the confidential materials (“Owner”), and the party seeking to access such information (“You,” “Your”), and is effective on the date executed and accepted by You.
OakEx, together with retained brokers and auctioneers, provides marketing and auction services to Owner as to certain of Ownerâ€TMs real property assets or commercial mortgage loans secured by real property (eac”hP, raoperty” and together the “Properties”), and in connection therewith makes available to You Confidential Materials (as defined below) related to the Property; You desire to access the Confidential Materials for a Property in connection with a possible purchase or desire to extend commercial financing for such Property (the “Transaction”), and, in consideration of the privileges granted to You in accessing such Confidential Materials, and for other good and valuable consideration, You agree as follows:
Confidential Materials. “Confidential Materials”means all technical information, the website and any and all content associated therewith, marketing information, financial statements, tenant information, appraisal and title reports, intellectual property, environmental statements and information, and/or any other business information, regardless of whether such information is marked as “confidential” or “proprietary,” and regardless of whether such information is in oral, written, electronic, or other form. This Agreement applies to all Confidential Materials provided to You by OakEx or Owner, irrespective of whether such Confidential Materials are provided before or subsequent to the date of this Agreement. Confidential Materials shall not include any information which: (a) You can demonstrate was in Your lawful and unrestricted possession prior to its disclosure by OakEx or Owner; (b) is generally available to the public by acts other than Yours; (c) is or has been received lawfully and in good faith from a third party (except where such third party is in a protected or confidential relationship with OAKEX or Owner), where You are not aware, after inquiry, that such third party is bound by any obligations of confidentiality relating to such information; or (d) has been independently developed by You or any third party (except where such third party is in a protected or confidential relationship with OAKEX or Owner), without any reliance on or reference to the Confidential Materials.
Use Limitations. You shall not, and shall not permit any third party to, copy, alter, modify, photocopy, or in any other way reproduce any product or materials containing or constituting information from the Confidential Materials, without the prior written consent of OAKEX and/or Owner. You acknowledge that You acquire no ownership, intellectual property, or other rights in the Confidential Materials. You may review the Confidential Materials for the sole purpose of evaluating whether to purchase or extend financing to the Property. Confidential Material may not be relied on by You or any third party for any purpose, including, but not limited to, securing financing necessary to purchase the Property. Access to, or use of the Confidential Materials, for other purposes is strictly prohibited. You agree that neither You, nor Your agents, shall communicate, or attempt to communicate with any preparer of the Confidential Materials, unless You obtain the prior written consent of both OAKEX and Owner. Disclosure Limitations.By using our website, You agree to hold the Confidential Materials in complete confidence, unless You obtain the express written consent of both OAKEX and Owner to do otherwise. You shall not permit any third party to disclose, produce, publish, permit access to, or reveal any Confidential Materials to a third party without the express written consent of both OAKEX and Owner, except that You may disclose such Confidential Materials to Your officers, directors, employees, advisors, and other representatives (collectively the “Representatives”), where the Representatives require knowledge of such information in connection with the Transaction. When You disclose the Confidential Materials to Your Representatives, You agree to inform the Recipients of the confidential nature of such Confidential Materials, and the Representatives shall similarly agree to be bound by the terms of this Agreement. You further agree that You will not communicate with any owner, investor, tenant, or other party having an interest, whether direct or indirect, in the Property or the Transaction, without the prior written consent of OAKEX and Owner. Maintenance of Confidential Materials. You shall take all reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of the Confidential Materials. Without limiting the foregoing, such measures shall include at least those that You take to protect Your own highly confidential information. Where You suspect or know of a misuse, unauthorized disclosure, or other release of the Confidential Materials, You agree to notify both OAKEX and Owner as soon as reasonably possible. Destruction of Confidential Materials. At the request of Owner or OAKEX, where such request occurs at any time during or after the term of this Agreement, You shall (a) cease use of all Confidential Materials; (b) destroy all Confidential Materials without retaining a copy of any such materials; (c) promptly deliver to OAKEX or Owner all other Confidential Materials, together with any copies thereof, in Your possession, custody or control, or alternatively, with the written consent of Owner or OAKEX, destroy all such Confidential Materials; and/or (d) certify all such destruction in writing to Owner or OAKEX. Notwithstanding the foregoing, You may retain a list that contains general descriptions of any Confidential Materials returned or destroyed in order to facilitate the resolution of any disputes after the Confidential Materials have been returned. Commercial Mortgage Loans. Where the Transaction is for, or involves, the purchase of a commercial mortgage, You shall not contact the borrower or its representatives or affiliates and You have waived all rights to access or inspect the collateral property. Disclosure Required by Law or Court Order. In the event that You or any of Your Representatives are requested or required to disclose any Confidential Materials, You will provide OAKEX and/or Owner with prompt written notification of such request or requirement and consult with OAKEX and/or Owner as to the advisability of taking legal steps to resist or narrow such request. You further agree that, after notifying and consulting with OAKEX and/or Owner, if it is determined that You are compelled to release any of the Confidential Materials, You shall disclose only such Confidential Information as is legally required. Failure to do so will result in Your being liable for any immediate or future harm or damages incurred by either OAKEX or Owner as a result of Your failure to comply with this provision. Your Liability. You agree and acknowledge that, in the event of a breach of this Agreement by You or Your Representatives, OAKEX and Owner shall be entitled to exercise any and all legal or equitable rights and/or remedies to which they are entitled. A delay or failure on the part of OAKEX or Owner in seeking such rights and/or remedies does not constitute a waiver of the same, nor does any specification in this Agreement of any particular remedy constitute a waiver or prohibition of any other remedies in the event of a breach of this Agreement. Indemnification. You and Your Representatives acknowledge and agree to indemnify OAKEX and Owner from all losses, claims, expenses and/or damages resulting from any breach of this Agreement. You also agree to release OAKEX and Owner of all claims arising from the Confidential Materials, or information that should have been contained therein. Legal and Regulatory Compliance. You acknowledge that You will comply with all applicable laws, regulations, and ordinances, whether they be federal, state, local or international, regarding Your use of the Confidential Materials. Governing Law; Venue. Applicable federal law and the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute that might arise between You and OAKEX and/or Owner. You agree that venue for any such disputes shall be located in the state and federal courts located in California. You waive any right to a claim that such forum is inconvenient. Disclaimers. OAKEX AND OWNER EXPRESSLY DISCLAIM ANY AND ALL EXPRESS WARRANTIES WITH REGARDS TO THE CONFIDENTIAL MATERIALS. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. OAKEX and Owner shall not incur any liability for costs, damages, or otherwise as a result of Your use and/or receipt of the Confidential Materials. OAKEX and Owner do not, prior to the execution of a definitive contract or purchase agreement, make any guarantees, promises, covenants, or otherwise regarding any Property. Term. In the event that You purchase, or extend commercial financing for, any Property, this Agreement shall terminate upon the execution of all documentation necessary to consummate the Transaction. If You do not consummate such Transaction, this Agreement shall terminate one (1) year from the current date. Termination. Notwithstanding the foregoing, this Agreement may be sooner terminated (a) for cause, upon the immediate destruction or return of the Confidential Materials to OAKEX or Owner or (b) without cause, upon 30 daysâ€TM written notice; provided, however, that this Agreement will be terminated immediately upon breach by You or Your Representatives. Upon the occurrence of such breach, OAKEX or Owner may demand the immediate return or destruction of the Confidential Materials. Assignment. OAKEX or Owner may assign this Agreement without notice to You of such assignment. You are prohibited from assigning Your obligations or duties under this Agreement, unless You obtain the prior written consent of OAKEX and Owner. This Agreement shall bind and inure to You and Your successors, assigns, personal representatives, heirs, and executors. Modification. This Agreement may only be modified by written agreement, signed by all of the parties. Entire Agreement; Severability. This Agreement constitutes the entire understanding between You, OAKEX and Owner, with respect to the subject matter hereof. Should any term of this Agreement be held invalid or unenforceable, that provision shall be struck, and the rest of the Agreement shall remain in effect. Entire Agreement. This Agreement constitutes the entire agreement on this matter, and supersedes all prior agreements and negotiations, whether oral or written, between the parties hereto. Electronic Acceptance: By clicking the “ACCEPT” button, You accept and agree to the terms of this Agreement. Such electronic acceptance shall be binding and enforceable pursuant to Electronic Signatures in Global and National Commerce Act (“E-Sign Act”), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act (“UETA”), and applicable state laws. Updated: January, 2019