ACCEPTANCE

These terms and conditions create a contract between you and Black Mountain Home Solutions. Please read the Agreement carefully. To confirm your understanding and acceptance of the Agreement, click “Agree.”

CONFIDENTIALITY AND NON-SOLICITATION

This CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT (“Agreement”) is made between Black Mountain Home Solutions and its parent companies, subsidiaries, affiliates, successors, and assigns (collectively, “Black Mountain Home Solutions”), on the one hand, and you and your parent companies, subsidiaries, affiliates, successors, and assigns (collectively, “Potential Purchaser”), on the other hand.

RECITALS

WHEREAS, Black Mountain Home Solutions is now or will be under contract to purchase certain real properties and improvements thereon (collectively, “Property”).

WHEREAS, Potential Purchaser is in the business of purchasing real estate, and has expressed an interest in purchasing from Black Mountain Home Solutions an assignment of Black Mountain Home Solutions’s rights and duties as the contract purchaser of the Property.

WHEREAS, to induce Black Mountain Home Solutions to provide more information about the Property, Potential Purchaser agrees to enter into this Agreement with Black Mountain Home Solutions.

TERMS

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby mutually covenant and agree as follows:

1. The foregoing recitals are incorporated herein by reference.
2. Potential Purchaser shall have no contact or communication with the owner of the Property (“Owner”) or that Owner’s agents with respect to (a) Black Mountain Home Solutions’s purchase of the Property and/or (b) Black Mountain Home Solutions’s marketing of the sales contract between Black Mountain Home Solutions and Owner (“Sales Contract”) to other potential purchasers.
3. Potential Purchaser shall not induce or encourage Owner or Owner’s agents to breach the Sales Contract.
4. If the Sales Contract is terminated for any reason, Potential Purchaser shall have no contact or communication with Owner or Owner’s agents with respect to Potential Purchaser’s purchase of the Property for a period of two (2) years following such termination.
5. As used herein, “Confidential Information” shall mean any and all non-public information disclosed to Potential Purchaser by Black Mountain Home Solutions about (a) Owner or Owner’s agents, (b) the Property, (c) the Sales Contract, and/or (d) Black Mountain Home Solutions’s trade secrets, business model, customers, and/or customer prospects. Potential Purchaser shall treat any and all Confidential Information as strictly confidential and private, and shall not disclose such Confidential Information to third-parties without the express written consent of Black Mountain Home Solutions.
6. Potential Purchaser recognizes that a breach of ¶¶ 2-5 will cause irreparable damage to Black Mountain Home Solutions’s business and that such damage will be difficult or impossible to measure. Potential Purchaser agrees that in the event of any such breach, Black Mountain Home Solutions, in addition to such other rights and remedies as it may have, will be entitled to an order granting injunctive relief, WITHOUT BOND, from any court of competent jurisdiction against any act which would violate any such provision, and Potential Purchaser waives any defense to an application for such order, except that the violation did not occur. Potential Purchaser agrees that Black Mountain Home Solutions will be entitled to an award of reasonable attorney’s fees and costs in the event that it is successful in an application for injunctive relief or in an action based upon breach of the foregoing provisions.
7. Potential Purchaser recognizes that a breach of ¶¶ 2-5 will cause irreparable damage to Black Mountain Home Solutions’s business and that such damage will be difficult or impossible to measure. Potential Purchaser agrees that in the event of any such breach, Black Mountain Home Solutions, in addition to such other rights and remedies as it may have, will be entitled to LIQUIDATED DAMAGES of $50,000.00 per breach. The parties agree that the amount of LIQUIDATED DAMAGES is fair and reasonable and would not act as a penalty to Potential Purchaser.
8. Potential Purchaser shall indemnify, defend, and hold harmless Black Mountain Home Solutions from any and all claims, liabilities, damages, costs and expenses (including attorneys’ fees and costs) resulting from Potential Purchaser’s breach of this Agreement.
9. Should any portion, or portions, of this Agreement be found or declared unenforceable or void by any court or competent tribunal for any reason, the remaining portions shall be severable, and fully enforceable as if no such finding of unenforceability had issued.
10. The parties declare that they fully understand the facts and all of their respective legal rights and liabilities; that they have been afforded the opportunity to review this Agreement with counsel of their choice; that they believe the Agreement to be fair, just, and reasonable; and that they sign the Agreement freely and voluntarily.
11. The waiver by any party of any breach of any provision of this Agreement shall not constitute or operate as a waiver of any other breach of such provision or of any other provision hereof, nor shall any failure to enforce any provision hereof operate as a waiver at such time or at any future time of such provision or of any other provision hereof.
12. This Agreement shall be governed by, and construed in accordance with, the law of the Commonwealth of Virginia and shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors, assigns, heirs, agents, and representatives.
13. This Agreement contains the entire understanding of the parties with respect to the subject matter of this Agreement, and there are no other agreements or understandings among the parties. There have been no representations or warranties, expressed or implied, as to the subject matter of this Agreement.
14. The parties shall sign such further and other documents, do and perform, and cause to be done and performed, such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every part thereof.
15. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing the Agreement to be drafted.
16. Should Black Mountain Home Solutions seek to enforce this Agreement and prevail in whole or in part, Black Mountain Home Solutions shall be entitled to recover from Potential Purchaser the reasonable attorneys’ fees and costs incurred in seeking to enforce this Agreement.
17. This Agreement may be executed in counterparts.
18. Digital acceptance of this Agreement shall be enforceable.