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Confidentiality Agreement for Review of Assets
As part of the process by which User may make a decision regarding whether or not to purchase a particular Debt instrument or portfolio, the User is permitted to examine information that relates to the Debt. Because this information is confidential, which may result in damages if further disclosure is made, User agrees to the following:
THIS CONFIDENTIALITY AGREEMENT FOR REVIEW OF DEBT ("Article IV") is made and agreed to by User and Home Marketing Systems Inc. (HMS) for the benefit of certain owners of financial debt instruments (collectively "Sellers").
Section 2. Purpose. User agrees that its review and inspection of the Confidential Information shall be solely to conduct due diligence, on its own behalf, for the sole purpose of determining whether or not to submit a bid to purchase some or all of the Debt, and for no other purposes. User agrees that any credit or consumer report information contained in the Confidential Information will be used by User solely for the purpose of analyzing the credit transaction involved or the collect ability of such account.
Section 3. Non-Disclosure and Use of Confidential Information. User agrees that, except as set forth below, all Confidential Information shall be used by User solely for the purpose stated in Section 2 herein. User further agrees not to disclose any of the Confidential Information without the prior written consent of HMS to any third party other than to (i) its employees, officers, and directors (including those of its affiliates); (ii) its agents and representatives, including attorneys, accountants and financial advisors; or (iii) insurance and reinsurance firms; (collectively, the "Qualified Person"), each of whom shall (i) have a need to know the Confidential Information for the purpose stated in Section 2 herein, and (ii) have entered into an agreement with User substantially in the form of this Article IV. User shall inform each Qualified Person that receives any of the Confidential Information of the requirements of this Article IV and shall require each such Qualified Person to comply with such requirements.
Section 4. Duplication. No reproductions, other than handwritten summaries or notes and self-generated computer records, of any items of Confidential Information shall be made without the prior written consent of the HMS.
Section 5. Restrictions on Contact. Neither User nor its Qualified Persons shall communicate with any debtor, guarantor, debtor's or guarantor's accountant or attorney or any of Seller's employees, managers or attorneys relative to any Debt without the prior written consent of the HMS.
Section 6. Legal Requirements. User acknowledges that (i) the Confidential Information may contain customer information subject to the Right to Financial Privacy Act, and (ii) any similar state or federal privacy act or common law. User agrees not to perform any act which would violate such laws.
Section 7. Notices. All notices, waivers, demands, requests or other communications required or permitted by this Article IV (collectively "Notices"), to be effective, shall be in writing, properly addressed, and shall be given as follows by (a) personal delivery, (b) established overnight commercial courier with delivery charges prepaid or duly charged, or (c) registered or certified mail, return receipt requested, first class postage prepaid, as follows:
Home Marketing Systems, Inc./HMS
or to any other address or addressee as any party entitled to receive notice under this Article IV shall designate, from time to time, by Notice given to the others in the manner provided in this Section. Notices thus given by personal delivery shall be deemed to have been received upon tender to the respective natural person named above. Notices thus given by overnight courier shall be deemed to have been received the next business day after delivery to such overnight commercial courier. Notices thus given by mail shall be deemed to have been received on the second (2nd) day after deposit into the United States Postal System. All copies to the respective persons or entity(ies) listed above to receive copies shall be given in the same manner as the original Notice, and such giving shall be a prerequisite to the effectiveness of any Notice.
Section 8. Indemnification. By acceptance of the Agreement, User hereby agrees to indemnify, defend (through attorneys reasonably acceptable to HMS and Sellers and their successors and assigns) and hold HMS and Sellers and all officers, directors, employees, and agents of HMS and Sellers harmless from and against any and all claims, causes of action, damages, losses, costs (including reasonable and necessary attorney's fees) and liabilities of any nature, which may at any time be assessed against or suffered by HMS or Sellers directly or indirectly relating to or arising out of a breach of this Article IV by User or its Qualified Persons.
Section 9. Termination. The restrictions in this Article IV shall terminate as to any of the Debt acquired by User; provided, however, that any claim by HMS based on a breach of this Article IV occurring prior to such acquisition shall survive the acquisition unless waived by HMS in writing. In addition, the Purchase and Sale Contract executed between Sellers and User for Debt acquired may contain further Confidentiality requirements. The terms and conditions of this Article IV shall remain in full force and effect as to any Debt not acquired by User. User shall destroy or, at HMS’s request, deliver to HMS any compilations, studies, notes or other documents or records that contain or reflect Confidential Information relating to the Debt not acquired by User.
Section 10. No Representations or Warranties. User acknowledges and understands that the Confidential Information has been prepared by parties other than HMS and that HMS make no representations or warranties whatsoever, express or implied, with respect to the content, completeness or accuracy of the Confidential Information. User hereby releases HMS and their respective agents, officers, directors, attorneys, employees, contractors and representatives from all claims, causes of action, losses, damages, liabilities, judgments, costs and expenses (including, without limitation, attorney's fees, whether suit is instituted or not) asserted against or incurred by User by reason of the Confidential Information.
Section 11. Entire Agreement. This Article IV represents the entire agreement between User and HMS relating to the treatment of Confidential Information heretofore or hereafter reviewed or inspected by User. This Article IV supersedes all other agreements relating to such matters which have previously been executed by the User in favor of HMS. This Article IV does not create any implied contract right or any other interest in User to purchase any Debt of Sellers. No such right or interest shall exist except pursuant to a Purchase and Sale Contract executed by both User and Sellers..
Section 12. Remedies for Breach. In the event the Confidential Information
is used for any purpose other than evaluation of the portfolio in order
to submit a bid regarding the Debt, User, its employees, officers,
agents or subcontractors, will be in violation of this Article IV,
and HMS and Sellers shall be entitled to reasonable damages.
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