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Terms of Use

Welcome to www.EvergreenGold.net and www.EvergreenGold.com (“website” and “websites”, “site” and “sites”, singly and jointly), proprietary business listing websites owned and hosted by Timothy M. Cunha (TMC). Any use of the websites is subject to the following terms and conditions (“Terms of Use”). By submitting information to, or accessing information from, or using in any way the websites, you, the customer (“Customer” or “You” or “Buyer” or “Seller”) agree to the following Terms of Use. These Terms of Use include, without limitation, the Privacy Policy, and the Confidentiality (Non-Disclosure) Agreement, Registration, & Agency Disclosure Notice (“NDA”), that follow below. These Terms of Use are a legal agreement (“Agreement”) between you and TMC.

If you do not agree to these Terms of Use, do not submit information to, access information from, or use in any way the websites.

TMC may update these Terms of Use at any time and without notice. The latest version of the Terms of Use is available on the websites. All questions concerning this Agreement should be directed to: Timothy Cunha, J.D., 2225 East Bayshore, #200, Palo Alto, CA 94303.

Disclaimer: www.EvergreenGold.com & www.EvergreenGold.net are only venues

Our site acts as the venue to list businesses for sale and for buyers to express interest in and learn more about those businesses. Our listing of businesses for sale and expressions of interest from buyers are not, and shall not be deemed to be, an offer to sell or a solicitation of an offer to buy any securities. TMC is not a party to the actual transaction between buyers and sellers. For that reason, all buyers and sellers who utilize our site agree to be responsible for the legal and regulatory compliance of any transaction they enter into, and TMC makes no representation or assurance about such compliance. While this Agreement requires that buyers and sellers provide accurate and complete information about themselves and businesses they may list for sale or express interest in, TMC cannot and does not confirm the buyer’s and seller’s purported identity and makes no inquiries about the accuracy of business listings. As a result, we have no control over the accuracy of the listings, the ability of sellers to sell businesses listed, or the ability of buyers to buy businesses they express interest in.

Information

You hereby agree to provide complete and correct information to us, and to maintain and update that information as circumstances require. As a Customer, you are responsible for your own content and are responsible for the consequences of any content you provide. The information you provide shall not: be false, inaccurate or misleading; be fraudulent or involve the sale of counterfeit or non-owned items; infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; violate any law, statute, ordinance or regulation; be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; be obscene or contain a sexually explicit image; contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; create liability for us or cause us to lose the services of our ISPs or other suppliers; and link directly or indirectly to or include descriptions of goods or services that are prohibited hereunder or you do not have a right to link to or include. TMC reserves the right to edit, restrict or remove any content you provide for any reason at any time.

Trademarks

EvergreenGold®, BizFSBO™, and Bizpertise™ are trademarks and service marks owned by TMC. Nothing on this site should be construed to grant any license or right to use, implied or otherwise, any mark displayed on this site without the written permission of the third-party owner of the mark. Your use of the marks displayed on this site except as provided in this notice is strictly prohibited.

Copyright Policy

TMC reserves the right to remove any material that infringes or appears to infringe on intellectual property rights owned by others. TMC may immediately terminate your use of, or access to, the site at any time it decides that you have breached this agreement, any relevant law, rule or regulation or you have infringed or appear to have infringed the intellectual property rights of others.

Use of Site

This site or any portion of this site may not be reproduced, duplicated, or copied, or otherwise exploited for any commercial purpose that is not expressly permitted by TMC. TMC and affiliates reserve the right to refuse service and/or terminate relationships in their discretion, including, without limitation, if TMC believes that user’s conduct violates applicable law or is harmful to the interests of TMC and/or affiliates.

Links to Other Websites and Services

TMC is not responsible for the availability, content, or accuracy of any other pages or other sites linked via this website. To the extent that portions of this site contain links to outside products, services and resources, all relationships are between users and outside providers and do not involve TMC, and any concerns about such products, services, or resources should be directed to the particular outside provider. TMC does not guarantee or warrant the accuracy or completeness of the information or content included on other sites, nor the quality of products or services provided or sold.

Limitations of Liability

THIS SITE IS PROVIDED BY TMC ON AN “AS IS” BASIS. TMC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TMC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TMC OR ANY AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

In the event that you have a dispute with one or more users, you release TMC (and our officers, directors, agents, affiliates, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

Indemnity

You agree to indemnify and hold us and our affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the materials it incorporates by reference, or your violation of any law, regulation, order or other legal mandate, or the rights of a third party.

Arbitration

Any controversy or claim arising out of or relating to this Agreement or our products or services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted in San Jose, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.

General

This site is created and controlled by TMC in the State of California, USA. As such, the laws of the State of California will govern this Agreement, without giving effect to any principles of conflicts of laws. If any provision of the foregoing is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter therein. We reserve the right to make changes to our site, these Terms of Use and this Agreement at any time.

Privacy Policy

Our Commitment to Your Privacy

Your privacy is important to us. To better protect your privacy we provide this notice explaining our online information practices and the choices you can make about the way your information is used. To make this notice easy to find, it is found at the bottom of every page in our site.

The Information We Collect

This notice applies to all information collected or submitted on the websites. On some pages, you can order products, make requests, and register to receive materials. The types of personal information collected at these pages include, without limitation:

  • Name
  • Address
  • Email address
  • Phone number
  • Fax number
  • Cash available for investments
  • Business, career, and educational background
  • Financial background and resources

The Way We Use Information

We use the information you provide about yourself when inquiring about a business only to send to the listing broker of a business for sale or to the respective seller of a business listed for sale or to an affiliate or vendor who may provide a product or service requested by you. We do not share this information with outside parties except to the extent necessary to accomplish these above-stated purposes.

We use the information you provide about yourself when placing an order or request information only to complete that order or provide that information. We do not share this information with outside parties except to the extent necessary to complete that order or provide to you that information.

We use return email addresses to answer the email we receive. Such addresses are not used for any other purpose and are not shared with outside parties. You can register with our website if you would like to receive information as well as updates on our new services. Finally, we never use or share the personally identifiable information provided to us online in ways unrelated to the ones described above without also providing you an opportunity to opt-out or otherwise prohibit such unrelated uses.

Our Commitment to Data Security

To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, we have put in place physical, electronic, and managerial procedures to reasonably safeguard and secure the information we collect online.

How You Can Access or Correct Your Information

You can access all your personally identifiable information that we collect online and maintain by sending an email detailing your request to Email@EvergreenGold.com. We use this procedure to better safeguard your information.

You can correct factual errors in your personally identifiable information by sending us a request. To protect your privacy and security, we will also take reasonable steps to verify your identity before granting access or making corrections.

How to Contact Us

Should you have other questions or concerns about these privacy policies, please call us at +1.650.600.3751 or send us an e-mail at Email@EvergreenGold.com.

Confidentiality (Non-Disclosure) Agreement, Registration, & Agency Disclosure Notice (“NDA”)

You, the Customer using these Websites (“Buyer”) requests or may request Confidential Information (as defined below) about one (or more) Business(es) offered for sale by its respective Owner through the business brokerage services of Timothy M. Cunha, JD (CA BRE #01919755, hereinafter—“Broker”) OR through the EvergreenGold® BizFSBO™ Business for Sale by Owner Advertising Service of Timothy M. Cunha, through the www.EvergreenGold.com and/or the www.EvergreenGold.net website, other websites, advertising platforms, or media, and communications, including but not limited to digitally, orally, and in print.

Any such Business Owner is referred to herein as “Seller.” Term “Seller” refers to each and every Business Owner who provides Confidential Information to the Buyer, either directly or through a third party, and whether represented by Broker as an agent or selling the business on their own through the EvergreenGold® BizFSBO™ Business for Sale by Owner Advertising Service of Timothy M. Cunha without an agent or broker. The Seller will rely upon the promises and representations made herein by the Buyer; and, Buyer acknowledges that Buyer’s breach of the promises, representations, conditions, and terms contained herein may cause Seller severe and irreparable damages.

Term “Buyer” refers to You and the Customer as defined above and any entity on whose behalf You are acting in any fiduciary, employment, or agency capacity. Confidential Information shall be provided to Buyer for the sole purpose of evaluating the possible purchase by Buyer of all or part of the Business.

Term “Business” refers to any one or more business(es), company(ies), or similar commercial enterprise(s), offered for sale by its respective Owner through the business brokerage services of Timothy M. Cunha, JD (CA BRE #01919755, hereinafter—“Broker”) OR through the EvergreenGold® BizFSBO™ Business for Sale by Owner Advertising Service of Timothy M. Cunha (as the case may be), through the www.EvergreenGold.com and/or the www.EvergreenGold.net website, other websites, advertising platforms, or media, and communications, including but not limited to digitally, orally, and in print.

In consideration of receiving such Confidential Information from the Seller, Buyer agrees as follows:

  1. NON-DISCLOSURE OF INFORMATION: Buyer acknowledges that the Owner of the Business (the “Seller”) wants to maintain the confidentiality of the Confidential Information (as defined below). Buyer agrees not to disclose or permit access to (nor use to the detriment or disadvantage of the Seller) any Confidential Information, whether provided before or after execution of this Agreement, without the prior written consent of Seller, to anyone other than Buyer’s legal counsel, accountants, lenders, or other agents or advisors to whom disclosure or access is necessary for Buyer to evaluate the Business (hereinafter referred to as the “Buyer’s Associates”).  Disclosure of Confidential Information shall be made to the Buyer’s Associates only in connection with the potential acquisition of the Business and then only if such Buyer’s Associates understand and agree to maintain the confidentiality of such Confidential Information. Buyer shall be responsible for any breach of this Agreement by the Buyer’s Associates, and neither Buyer nor the Buyer’s Associates shall use or permit the use of Confidential Information in any manner, except as may be required for Buyer to evaluate the Business. If the Buyer does not purchase the Business, Buyer and any Buyer’s Associates, at the earlier of the close of negotiations or within five (5) business days, shall destroy or return to the Seller all information provided to Buyer and will not retain any copy, reproduction, or record thereof. Nevertheless, Buyer may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, or discovery request, provided that Buyer uses reasonable efforts to notify Seller sufficiently in advance so that Seller may seek to object thereto.
  2. CONFIDENTIAL INFORMATION: The term “Confidential Information” shall mean, in the broadest possible sense, all confidential, proprietary, and/or trade secret information, including, without limitation, the fact that the Business is for sale, all financial, production, marketing, and pricing information, business methods, business manuals, manufacturing/production/operations procedures, correspondence, know-how, inventions, technical information, procedures, computer programs and systems, techniques, marketing plans and strategies, product or service information, research and product development results, customer and supplier lists and information. Confidential Information shall not include information that: (a) at the time of disclosure is in the public domain through no fault of, or action or failure to act by Buyer; (b) becomes known to Buyer through a third-party source without violation of any obligation of confidentiality or any other wrongful act; or, (c) which Buyer can establish was independently known or developed by Buyer without use of any Confidential Information.
  3. BUYER RESPONSIBILITY: Buyer understands that no person or entity or broker has audited or verified any information given to them by the Seller and that no warranty or representation as to its accuracy or completeness is made by the Seller, the Broker, or any other person or entity. Nor does Seller, or Broker, or any other person or entity in any way guarantee future business performance. Buyer is solely responsible to examine and investigate the Business, its assets, liabilities, financial statements, tax returns and any other facts which might influence Buyer’s purchasing decision or the price Buyer is willing to pay. Any decision by Buyer to purchase the Business shall be based solely on Buyer’s own investigation and that of Buyer’s legal, tax, and other advisors. Should the Buyer seek any representation, warranty, or guarantee from the Seller or any other person or entity, that would need to be by a separate subsequent document agreed to and executed by any and all persons to be so bound.
  4. BUYER ACKNOWLEDGES NO RELIANCE ON ADVERTISING: The Buyer acknowledges that Buyer’s inquiry is a result of one or more advertisements or presentations seen by the Buyer regarding the Business being available for purchase. Buyer represents and acknowledges that Buyer is not relying upon any representations made in any such advertisements or presentations, but rather will rely solely upon information provided directly by Seller to Buyer subsequent to Buyer signing and submitting this NDA to Seller directly (or through a third party).
  5. IF APPLICABLE — ROLE & PARTICIPATION OF BROKER(S)—AGENCY DISCLOSURE. IF, and only if, the Business Seller is being represented by Broker as an agent, this Section (5) and Sections 6-14 apply. If the Business Seller is using the BizFSBO™ Business for Sale by Owner Advertising Service, then the Business Seller is NOT REPRESENTED BY THE BROKER (nor is the Buyer represented by the Broker) and this Section 5 and Sections 6-14 do NOT apply.
  6. All communications concerning the Business shall be conducted solely through Broker, and Buyer agrees not to approach or contact any Seller or its principals or visit the physical location of any Selling Business without an appointment arranged through Broker. Buyer is not to contact or approach any Seller’s employees, officials, agents, customers, suppliers, and/or competitors without the prior written consent of the respective Seller.
  7. Buyer shall not buy, lease, or otherwise obtain any part of or interest in a Business disclosed to Buyer by Broker, nor enter into any management, consulting, employment, or similar agreement with a Business disclosed to Buyer by Broker, for three (3) years following that disclosure, except through Broker, with Broker receiving Broker’s rightful compensation from the Seller.
  8. Any and all representations and warranties shall be made solely by and between the Seller and Buyer in signed documents. Broker makes no representations or warranties, expressed or implied, to Buyer with respect to any Business and/or Proprietary Information disclosed to Buyer. Buyer must conduct due diligence and independently verify all information received by Buyer; Buyer does not and shall not rely upon any information, written or oral, furnished by Broker. All information furnished to Buyer and/or received by Buyer is provided by Seller and not verified in any way by Broker or Broker’s agents; they and Buyer are relying upon the Seller for accuracy and completeness.
  9. Broker is an agent of the Seller only. As such, Broker is not an agent or representative of the Buyer.  Broker acts solely as an agent of and for the Seller.  As such, by law, Broker owes to the Seller “a fiduciary duty of utmost care, integrity, honesty, and loyalty….”   However, by law, Broker also owes to both the Seller and the Buyer: (a) Diligent exercise of reasonable skill and care in performance of the agent’s duties; (b) A duty of honest and fair dealing and good faith; (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties [California Civil Code 2079.16]. When Broker lists a business for sale, Broker becomes the agent representing the Seller.  In the course of selling the business, Broker will work with prospective buyers, and afford them the duties of skill and care, honesty and fair dealing and good faith, and to disclose known material facts, as prescribed by law. Broker, however, does not become the “agent” of or for the Buyer, and does not represent the Buyer. If Buyer inquires about any Business involving the Broker representing the Seller in the transfer of real estate, the Broker will first provide to Buyer a formal Real Estate Agency Disclosure Form with regard to that real property.
  10. On behalf of the Seller, Broker may provide and sometimes prepare forms for the Buyer to make an offer to the Seller; but, Broker advises the Buyer to consult with and seek the advice of an attorney at law with expertise in business transition negotiations and transactions.
  11. Under law, the Buyer and the Seller of a business are each required to fully and fairly disclose to the other any and all information which is known to that party, or reasonably should be known, and which may or will be “material” to the other party’s decision to enter into the transaction. A Seller’s agent must fully disclose all such material information known to the agent to the Seller and to the Buyer (or to the Buyer’s agent), and cannot withhold any material information which the Seller’s agent may know, or in the exercise of reasonable diligence, should discover.
  12. Unless disclosed to Broker at the time this NDA is signed, Buyer is not represented by a “buyer’s broker” or “buyer’s agent”, and no such broker or agent was the procuring cause of any resulting transaction and shall not be entitled to any “co-brokerage” commission, fee, or compensation from Broker or Seller.
  13. Buyer is advised to consult an attorney and/or certified public accountant for assistance in reviewing and verifying the legal, financial, and/or any other pertinent information concerning any Business. Buyer acknowledges and agrees that Broker is acting only as a conduit of information from Seller, and that Broker provides no legal, accounting, business, financial, or tax advice.
  14. The Broker will rely upon the promises and representations made herein by the Buyer; and, Buyer acknowledges that Buyer’s breach of the promises, representations, conditions, and terms contained herein may cause Broker severe and irreparable damages.
  15. FURTHER ASSURANCES: At their sole and absolute discretion, any Seller may require a Buyer to execute and sign an additional Confidentiality and Non-Disclosure Agreement specifically identifying the particular business and, possibly, with different terms and conditions; however, this Agreement shall remain in full force and effect, nevertheless.
  16. FURTHER TERMS: For a period of three years following the date hereof, Buyer shall not contact Seller’s employees, customers, landlords, or suppliers, or otherwise observe or monitor the Business, without Seller’s consent; nor shall Buyer directly or indirectly solicit for employment any employees of Seller. Seller and Seller’s successors, and Broker if applicable, are specifically intended to be beneficiaries of the duties and obligations of this Agreement and may prosecute any action at law or in equity necessary to enforce its terms and conditions as though a party hereto. This Agreement can only be modified in writing, signed by both Buyer and Seller.  Waiver of any breach of this Agreement shall not be a waiver of any subsequent breach. This Agreement supersedes all prior understandings or agreements between the parties with respect to its subject matter. This Agreement shall be construed under and governed by the laws of the State of the State of California. The venue for any action instituted to enforce any terms of the Agreement shall be in the County and State where Seller’s principal placed of business located. Buyer acknowledges that it would be extremely difficult to measure the amount of damages to Seller and/or Broker arising from a breach or threatened breach of any provision of this Agreement, and that money damages would be an inadequate remedy. Seller and/or Broker shall be entitled to temporary and permanent injunctive relief to restrain the Buyer from any such breach or threatened breach. This Agreement may be signed in counterparts and faxed or emailed, and electronic signatures may be considered as originals. If Buyer is a corporation, limited liability company, partnership, or other such entity, the undersigned executes this Agreement on behalf of Buyer and represents and warrants that he or she is duly authorized to do so. In the event of any litigation to enforce this Agreement, the prevailing party shall be entitled to recover all costs and expenses incurred, including reasonable attorneys’ fees and court costs, in addition to such other relief as may be awarded. Buyer acknowledges retention of a fully completed copy of this Agreement.

If the Owner (Seller) of any respective Business is selling such Business on their own through the EvergreenGold® BizFSBO™ Business for Sale by Owner Advertising Service of Timothy M. Cunha then they are doing so without an agent or broker and are not represented by an agent, broker, or intermediary, and no agent, broker, or intermediary is involved on behalf of Buyer, Seller, or any other party.

Our Sellers require that we obtain information from buyers, including evidence of financial ability, before disclosing the name & location of the business.

All content Copyright© 2019, by Timothy M. Cunha.