THIS AGREEMENT is made and entered into as of _______________, 20__ between RIGHTPATIENT, INC. with offices at 1050 Crown Pointe Pkwy., Suite 850, Atlanta, GA 30338 (“RightPatient”) and_____________________________, with offices at __________________________________________ (“Participant”).
WHEREAS the parties wish to explore a business opportunity of mutual interest and in connection with this opportunity, each party may disclose to the other party certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential (hereinafter referred to as the “Transaction”).
AND WHEREAS in order for the parties to fully assess and consider such Transaction, it may be necessary or desirable for either party to disclose to the other party information which is or may be considered confidential, and the parties require such information to be held in confidence in accordance with the terms hereof.
NOW THEREFORE in consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. As used herein:
(a) “Disclosing Party” means the party disclosing the Proprietary Information;
(b) “Personal Information” means information about an identifiable individual, including (without limitation) any information defined or deemed as such pursuant to any applicable laws or regulations related to privacy or data protection, including any information relating to the employees of either party, but does not include the name, title or business address or business telephone number(s) of any person;
(c) “Proprietary Information” means all information disclosed by the Disclosing Party (or its agents, representatives and employees), to the Receiving Party (or its agents, representatives and employees) in any discussions, and any documents or materials delivered by the Disclosing Party (or its agents, representatives and employees) to the Receiving Party (or its agents, representatives and employees), whether formal or informal and whether written, verbal, or in electronic form, including the contents of this Agreement, and includes, without limiting the generality of the foregoing, information:
(i) relating to the Disclosing Party’s business, including, without limitation, performance, technical, specifications, designs, testing, evaluation, construction and process information, computer programs, technical drawings and diagrams, algorithms, formulae, methodologies, know-how, processes, trade secrets, ideas, inventions whether patentable or not and whether reduced to practice or not, data including technical data, data architecture, data sets and/or data compilation(s), tangible objects including hardware and software, product development plans, and concepts, in any format or medium whether written or oral, and all such similar or related business and financial information including business, customer, product, sales, financial, cost and pricing, contractual, personnel, marketing information, forecasts and strategies and related information of either the Disclosing Party or to the extent disclosed by Disclosing Party to the Receiving Party. RightPatient’s Proprietary Information, in addition to the information listed above, includes without limitation technology related to identity matching and identity validation that aids or results in the improved integrity of identity record databases, the ability to retrieve identity records, or the ability to link identity records within; and
(ii) marked or otherwise identified as confidential, restricted, secret or proprietary; and
(iii) all Personal Information,
but does not include information which the Receiving Party can establish:
(iii) was or is in the public domain prior to disclosure by the Disclosing Party;
(iv) became part of the public domain through no breach of an obligation of the Receiving Party or its employees or third parties to whom it has disclosed same;
(v) was known by the Receiving Party prior to disclosure by the Disclosing Party; or
(vi) is substantially the same as that furnished to the Receiving Party by others or a third party who was or is not under an obligation of confidence to the Disclosing Party at the time of the disclosure to the Receiving Party;
(d) “Receiving Party” means the party receiving the Proprietary Information.
2. The Proprietary Information will be kept confidential and will not, without prior written consent, be disclosed by the Receiving Party, or by its agents, representatives, or employees, to any third party. The Proprietary Information shall only be used in connection with the Transaction and the evaluation thereof. The Receiving Party may reveal the Proprietary Information to its agents, representatives and employees who are reasonably required to know the Proprietary Information for the sole purpose of evaluating the Transaction, provided that the Receiving Party agrees to take all reasonable measures to minimize the risk of any such parties unlawfully disclosing the Proprietary Information, and prior to disclosing any such information to any such party, the Receiving Party advises such individual of the Receiving Party’s obligations hereunder and similarly binds such parties.
3. Upon the request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or provide confirmation of destruction of, all copies of the Proprietary Information, all Proprietary Information contained in any retrieval system or database, and any and all tangible materials relating to the Proprietary Information, including, but not limited to, all copies, computer disks, tapes and compact disks, whether such material was made or compiled by the Receiving Party or furnished by the Disclosing Party. The Receiving Party shall not copy, reproduce in any form or store in a retrieval system or database the Proprietary Information without the prior written consent of the Disclosing Party, except for such copies and storage as may be reasonably required internally by the Receiving Party for the Transaction. The Receiving Party shall ensure that any Proprietary Information is retained only for such amount of time as is required for the Transaction and is disposed of, destroyed or erased (as applicable) once no longer required for the Transaction in a manner appropriate to the sensitivity of the information. Notwithstanding the foregoing, the Receiving Party shall not be required to immediately destroy Proprietary Information which is or has been backed up or otherwise stored and/or commingled with data of other third parties in a fashion which does not practically allow for the convenient destruction of the Proprietary Information without destroying or otherwise affecting data of other parties, provided the Receiving Party destroys such Proprietary Information in the ordinary course of its data retention policies, and (for the avoidance of doubt), and continues to be bound by the obligations of this Non-Disclosure Agreement for so long as any such Proprietary Information remains in its possession.
4. The Receiving Party understands that the Disclosing Party has made reasonable efforts to include in the Proprietary Information only those materials which the Disclosing Party believes to be reliable and relevant for the purpose of the Receiving Party’s evaluation. The Receiving Party acknowledges that neither the Disclosing Party nor any of its agents, representatives or employees make any representation or warranty as to the accuracy or completeness of the Proprietary Information. Neither the Disclosing Party nor any of its agents, representatives or employees shall have any liability to the Receiving Party or any other party as a result of any errors or omissions in the Proprietary Information.
5. Participant agrees that it will not modify, reverse engineer, decompile, disassemble, decompose, or create other works from any part or parts of RightPatient’s Proprietary Information or, except as strictly permitted herein, copy the same.
7. In the event that the Receiving Party or anyone to whom the Receiving Party transmits Proprietary Information pursuant to the Agreement becomes legally compelled, pursuant to judicial order or other compulsion of law, to disclose any of the Proprietary Information, the Receiving Party will (unless prohibited by the terms of such legal requirement) notify the Disclosing Party immediately so as to afford the Disclosing Party the opportunity to challenge such legal disclosure requirement.
8. The Receiving Party acknowledges and agrees that any breach by it or by any of its agents, representatives or employees of the provisions hereof may cause irreparable harm to the Disclosing Party and that actual damages may be difficult to ascertain and in any event may be inadequate. Accordingly, in the event of such breach, the Disclosing Party shall be entitled to temporary and/or permanent injunctive relief against the Receiving Party and/or its agents, representatives and employees (in addition to such other legal or equitable remedies as may be available), without the necessity of proving irreparable harm or actual damage to the Disclosing Party.
9. This Agreement and all obligations hereunder shall remain in effect until it is terminated by agreement of the parties as evidenced by a separate written document, or as to each specific item of Proprietary Information, only, until the Proprietary Information is lawfully placed in the public domain by the Disclosing Party. In the event of such partial termination, this Agreement will remain in effect as to any Proprietary Information disclosed by the Disclosing Party which has not lawfully been placed in the public domain. However, if for any reason the term of this Agreement is deemed to be invalid, the term of this Agreement shall then become five (5) years or so much of five (5) years as is lawful under the circumstances.
10. This Agreement contains all the representations and agreements between the parties relating to the Proprietary Information, and no representation, promise, or condition concerning the same which is not contained herein or in a superseding written agreement referring to this Agreement shall be binding on either party hereto. This Agreement may not be amended or modified in any respect except by written instrument signed by both parties.
11. Except as set forth in this Agreement, neither party shall have any liability or obligation of any nature whatsoever to the other party, and without limiting the generality of the foregoing, neither party shall have any obligation to negotiate or enter into a further agreement in relation to the Transaction, nor refrain from negotiating any similar agreement with any third party.
12. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Georgia, USA and the federal laws applicable therein, and the parties hereby submit to the non-exclusive jurisdiction of the courts of the said location.
13. This Agreement may be signed in counterparts, including by way of facsimile transmission, with the same effect as if both parties hereto had signed the same document.
IN WITNESS WHEREOF this Agreement was made effective as of the date first set out above.
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