This Non-Disclosure Agreement and Non-Circumvention Agreement, (“Agreement”) below is entered into by and between the Prospective Buyer (name listed below) and Dental Recovery Solutions 360, LLC (“Asset Recovery Specialist”).
Whereas, Prospective Buyer requests to receive confidential information from Asset Recovery Specialist regarding practices for sale or other transition opportunities listed by Asset Recovery Specialist (“Practices” or “Practice”);
Whereas, Prospective Buyer recognizes that any confidential information provided to him/her by Asset Recovery Specialist or its representatives regarding Practices could, if disclosed, cause damage to the Practice, owner of the Practice, and Asset Recovery Specialist;
Therefore, the Prospective Buyer and Asset Recovery Specialist agree to the following terms.
1. Non-Disclosure of Confidential Information.
Prospective Buyer agrees that he/she will not divulge, communicate, or otherwise disclose any confidential information provided by Asset Recovery Specialist, its representatives, or clients of Asset Recovery Specialist, to anyone, including other doctors, staff of the Practice, patients of the Practice, any person or entity that has knowledge of the Practice, or individuals or entities that work within the industry, with the exception of Prospective Buyer’s spouse, lender, accountant, and legal counsel. Prospective Buyer further agrees and assumes full responsibility that his/her spouse, lender, accountant, and legal counsel will maintain the confidentiality of the material as well. Any breach of this Agreement by Prospective Buyer shall result in damages as set forth in Section 7.
2. Confidential Information Defined.
Confidential information means any nonpublic information provided to Prospective Buyer by Asset Recovery Specialist, its representatives, or clients and includes, but is not limited to, the following:
A. Intent to sell a practice, bring on a partner, or hire an associate.
B. Financial data which may include such items as:
– value of practice under consideration,
– income statement or balance sheets,
– tax returns, and
– practice reports.
C. Personal information which may include such items as:
– data regarding lawsuits,
– pending lawsuits,
– malpractice suits, or
– other items personally pertaining to the owners of the Practice.
D. Patient or client lists made known to Prospective Buyer.
Prospective Buyer agrees not to circumvent Asset Recovery Specialist in any way that may interfere, interrupt, or impact the operation of the Practice. Furthermore, Prospective Buyer agrees to the following:
A. Not to negotiate directly with Asset Recovery Specialist’s client without the written permission of the Asset Recovery Specialist.
B. Not to negotiate, submit an offer, or attempt to enter into a contractual agreement, with the landlord, lien holder, vendor, partner, patients, or staff of the Asset Recovery Specialist’s Practices without the written permission of the Asset Recovery Specialist.
4. Duties of Prospective Buyer.
Prospective Buyer agrees to the following:
A. Prospective Buyer shall only request Confidential Information for the purpose of evaluating the Practice for an acquisition, merger, partnership, or employment opportunity and not to gain a competitive advantage on the Practice. Requests by the Prospective Buyer for Confidential Information made for the purpose of gaining a competitive advantage over the Practice is a breach of this Agreement and is subject to the damages set forth in Section 7..
B. Prospective Buyer shall not contact any staff member of Practices disclosed by Asset Recovery Specialist without the express written permission of Asset Recovery Specialist.
C. Prospective Buyer shall not communicate directly with Practices without the express written permission of Asset Recovery Specialist. Prospective Buyer’s phone calls, visits, emails, faxes, mail, and other courier services sent to Practices may be intercepted by staff of Practices, therefore all communication by Prospective Buyer shall be sent to Asset Recovery Specialist. Any attempt by Prospective Buyer to communicate directly with Practices is a breach of this Agreement.
D. All Confidential Information disclosed shall remain the property of the providing party or its client. Prospective Buyer agrees to return any and all information provided by Asset Recovery Specialist immediately upon Asset Recovery Specialist’s request. Any information provided to Prospective Buyer digitally shall be permanently deleted upon the request of Asset Recovery Specialist.
E. Prospective Buyer acknowledges the following:
– Asset Recovery Specialist is a transactional agent, does not represent the Prospective Buyer as a client, and does not have any fiduciary duties to Prospective Buyer.
– Information provided by Asset Recovery Specialist is provided by the Practice and is not audited by Asset Recovery Specialist. Asset Recovery Specialist makes no claims as to the reliability of any such data.
– It is Prospective Buyer’s sole responsibility to conduct his/her own due diligence and confirm the accuracy of all information provided to Prospective Buyer by the Asset Recovery Specialist or Practice owner prior to any purchase or transaction.
– No responsibility is taken by Asset Recovery Specialist for changes in market conditions and/or the condition of the practice(s) and no obligation is assumed by Asset Recovery Specialist to revise or update data or reports to reflect events or conditions which occur subsequent to the dates such information is prepared.
– No warranty is made by Asset Recovery Specialist as to the future success of any Practice and it is understood that any changes in the operation of a Practice after a change of ownership occurs may negatively impact the successful performance and profitability of the Practice.
5. Indemnification of Asset Recovery Specialist.
Prospective Buyer indemnifies and holds Asset Recovery Specialist harmless for any claim, loss or damages including expense of defense arising from any transaction entered into by Prospective Buyer, including but not limited to court costs, reasonable attorneys’ fees, and investigation expenses which, in any manner, arise out of or result from any practice purchase, employment, or affiliation.
6. Notices to Prospective Buyer.
Prospective Buyer is advised to the following:
A. Prior to any purchase, Prospective Buyer is advised to review all financial and tax records of any Practice, as well as personally perform a patient chart audit (subject to HIPAA regulations), determine active patient count, and review insurance plans, HMO contracts, and any other information needed by Prospective Buyer.
B. Prospective Buyer acknowledges that Asset Recovery Specialist is not an accounting firm.
C. Prospective Buyer has been advised by Asset Recovery Specialist to retain the services of competent and experienced legal counsel to review all agreements and other documents to be executed in connection with the sale/affiliation. Advice or opinion on the advisability of entering into a transaction shall be provided by Prospective Buyer’s legal counsel and advisors.
D. Prospective Buyer has been advised to retain the services of an accountant to evaluate the data and the terms of the affiliation or sale including any tax consequences resulting from such sale/affiliation.
E. All information provided by Prospective Buyer to Asset Recovery Specialist is true and correct to the best of Prospective Buyer knowledge, and may be presented to the owner of any Practice under consideration for employment or acquisition by Prospective Buyer.
F. Upon completion of a transaction with Prospective Buyer, Asset Recovery Specialist shall be permitted to print and publish its usual and customary professional announcement of the transaction.
Prospective Buyer hereby acknowledges and agrees that any breach of this Agreement may cause permanent, irreparable damage for which no adequate remedy exists, and in the event of any such breach, the affected party shall have the right to petition any court of competent jurisdiction for injunctive or any other equitable relief and/or specific performance hereof. Prospective Buyer hereby waives, and covenants not to assert, any defenses against an action for any such relief with respect to such breach based on a claim that such relief is inappropriate.
The amount of damages, with respect to the breach of this Agreement by Prospective Buyer, may be difficult to ascertain, therefore the Prospective Buyer agrees to the assessment of liquidated damages. Prospective Buyer agrees that liquidated damages may be assessed and recovered by the Asset Recovery Specialist against Prospective Buyer and its Surety, in the event of violating this Agreement, without Asset Recovery Specialist being required to present any evidence of the amount of actual damages sustained by reason thereof. Prospective Buyer shall be liable to Asset Recovery Specialist for a minimum payment of liquidated damages in the amount of Ten Thousand Dollars ($10,000.00) for breach of this Agreement. The Asset Recovery Specialist may, upon its sole discretion, pursue in excess of liquidated damages for breach of this Agreement. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty.
The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement. In breach of Section 3 of this Agreement, Prospective Buyer agrees and guarantees to pay an amount equal to the commission or fee Asset Recovery Specialist should have realized in such transactions, by the person(s) or entity(ies) engaged in the circumvention for each occurrence.
Prospective Buyer may use the lender of his/her choice to fund the practice transition. Prospective Buyer authorizes Asset Recovery Specialist to cooperate with the respective lender to provide information requested for loan underwriting. Asset Recovery Specialist may refer Prospective Buyer to lenders with experience in financing practice acquisitions. Lenders may provide marketing funds to Asset Recovery Specialist and Dental Recovery Solutions 360, LLC for referrals.
9. Assignment of Agreement.
All of the terms of this Agreement may be assigned by Asset Recovery Specialist but not the Prospective Buyer. The Prospective Buyer agrees that the Asset Recovery Specialist may assign this Agreement to the Practice and/or the owner of the Practice whose confidential information was disclosed in breach of this Agreement. The assignment of this Agreement by Asset Recovery Specialist shall not in any way relieve Prospective Buyer of its obligations and liabilities under the terms of this Agreement. All terms of this Agreement shall be binding upon any and all successors and/or parties to whom this Agreement has been assigned.
10. Entire Agreement & Modifications.
This Agreement shall constitute the only agreement between Prospective Buyer and Asset Recovery Specialist with respect to the subject matter, and shall supersede all prior agreements or understandings. This Agreement may only be modified or amended in writing and signed by both parties.
11. Governing Law.
This Agreement shall be enforced in accordance with the laws of the state of Pennsylvania.
In Witness Whereof, the parties have caused this Agreement to be executed the day and year first above written.