CONFIDENTIALITY AND NON‑DISCLOSURE AGREEMENT (this "Agreement"), made as of 2021-01-16 (the "Effective Date"), by and between Reliant Health Services, LLC, a Delaware Limited Liability Company (the "Company"), and , together and severally with , it’s members, officers, employees and assigns. ("Recipient").
WHEREAS, Recipient wishes to have access to proprietary and confidential information of Company and open discussions for cooperatively providing additional diagnostic services outside of the current business relationship, a condition to such access is the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Recipient agree as follows:
SECTION 1 - DEFINITIONS
"Affiliates" means (a) in the case of an individual, any relative of such Person, (b) any officer, director, trustee, partner, manager, employee or holder of ten percent (10%) or more of any class of the voting securities of or equity interest in such Person; (c) any corporation, partnership, limited liability company, trust or other entity controlling, controlled by or under common control with such Person; or (d) any officer, director, trustee, partner, manager, employee or holder of ten percent (10%) or more of the outstanding voting securities of any corporation, partnership, limited liability company, trust or other entity controlling, controlled by or under common control with such Person.
"Confidential Information" means data and information relating to the business of the Company regardless of whether the data or information constitutes a Trade Secret that is disclosed to Recipient or of which Recipient became aware of as a consequence of his or its relationship with the Company having value to the Company and is not generally known to competitors of the Company and which includes, without limitation, Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, route books, personnel data, and similar information. Confidential Information does not include data or information: (A) which has been voluntarily disclosed to the public by the Company, except where such public disclosure has been made by Recipient without authorization from the Company; (B) which has been independently developed and disclosed by others; or (C) which has otherwise entered the public domain through lawful means.
"Person" means any natural person, firm, general or limited partnership, corporation, association, limited liability company or other entity, as the context may require.
"Trade Secrets" means Company's trade secrets (as defined in O.C.G.A.§ 10-1-761) and includes information in whatever form, including electronic media, of Company, from which Company derives economic value, actual or potential, from not being generally known to other Persons, and is the subject of Company's efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality, such information including, but not limited to: know-how; information about existing, new or envisioned Company products, services, processes and their development and performance; any scientific, engineering, or technical information; computer software and firmware; business and financial information; unpublished lists of names; and information relating to manufacturing, purchasing, inventories, data processing, personnel, marketing, sales, prices and pricing policies, costs and quotations; technical or nontechnical data; compilations; programs; devices; methods; techniques; drawings; reports; lists of actual or potential customers or suppliers, product or service specifications and designs and marketing plans.
SECTION 2 – CONFIDENTIALITY AND NON-DISCLOSURE
2.1 Confidential Information and Trade Secrets. Recipient agrees that all (i) Confidential Information, (ii) Trade Secrets, and (iii) all physical or electronic embodiments of the foregoing that are received or obtained by Recipient from Company during this Agreement are confidential and are and will remain the sole and exclusive property of Company. Recipient hereby expressly covenants and agrees that Recipient will not, for or on behalf of Recipient or any Person, directly or indirectly, copy, use for Recipient's own benefit or the benefit of any Person other than Company or disclose to any Person, any Confidential Information or Trade Secrets. Upon termination of the Agreement for any reason, Recipient shall return (or at Company's written request, destroy) to Company all things and documents containing Confidential Information or Trade Secrets (including physical or electronic copies of the foregoing) in Recipient's possession, whether made by Recipient or others, will be left with or returned to Company. The parties agree that all right, title and interest in any improvements or developments to the Confidential Information or Trade Secrets, whether made by Company, the Recipient, or jointly made by Company and the Recipient, arising out of any disclosure of the Confidential Information or Trade Secrets by Company to the Recipient is and shall remain solely the property of Company. All "Confidential Information" subject to the provisions of this Section 2 must be either clearly marked as such or reasonably understood from the nature of its disclosure to be confidential. For purposes of the restrictions in this Section 2.1, (i) "Recipient" means Recipient, its Affiliates, and its and their respective directors, officers, employees, agents, attorneys and representatives, and (ii) Recipient shall cause all of the foregoing to be bound by the provisions hereof.
2.2 Remedies. Recipient understands and agrees that Company shall suffer irreparable harm in the event Recipient breaches any of its obligations pursuant to Section 2.1 and that monetary damages will be inadequate to compensate Company for such breach. Recipient agrees that, in the event of a breach or threatened breach of Section 2.1, Company, in addition to any other rights, remedies or damages available to Company at law, shall be entitled to a temporary restraining order, preliminary injunction or permanent injunction in order to prevent or to restrain any such breach by Recipient, its officers, employees, agents, attorneys and representatives or by any of Recipient's Affiliates and such Affiliates officers, employees, agents, attorneys and representatives, or any other Person who receives Confidential Information and/or Trade Secrets from the Recipient (and to cover all costs (including reasonable attorneys' fees) in doing so).
2.3 Notice of Prohibited Disclosure or Misappropriation. Recipient shall advise Company, immediately upon becoming aware and in accordance with the notice provisions hereinafter prescribed, of any violation of Section 2.1 or of any misappropriation of Trade Secrets or any unauthorized disclosure of Confidential Information.
2.4 Survival. The rights and obligations contained in this Section 2 shall continue to bind Recipient during the term of the Agreement and (i) with respect to all Trade Secrets, at all times hereafter so long as such Trade Secrets constitute trade secrets under applicable law, and (ii) with respect to all Confidential Information, at all times hereafter so long as such Information constitutes Confidential Information under applicable law.
SECTION 3 – NON CIRCUMVENTION
3.1 At any time prior to the expiration of three years from the date of this agreement, it is expressly agreed that the identities of any individual or entity and any other third parties (including, without limitation, suppliers, customers, financial sources, manufacturers and consultants) discussed and made available by the Disclosing Party in respect of the Purpose and any related business opportunity shall constitute Confidential Information and the Recipient or any Group company or associated entity or individual shall not (without the prior written consent of, or having entered into a commission agreement with, the Disclosing Party):
(a) directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any such third party identified or introduced by the Disclosing Party; or
(b) seek to by-pass, compete, avoid or circumvent the Disclosing Party from any business opportunity that relates to the Purpose by utilizing any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
3.2 The Recipient covenants that any financial gain made by it, or any associated party, from a breach of clause 3.1 shall be held on trust for the benefit of the Disclosing Party and then be transferred to a nominated account of the Disclosing Party, until which time such outstanding amount shall incur interest at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Recipient shall pay the interest together with the overdue amount.
3.3 Clause 3.2 does not effect the Disclosing Party’s ability to also sue for damages should the covenants in clause 3.1 be violated in any way.
SECTION 4 – MISCELLANEOUS
4.1 Notices. All communications or notices required or permitted by this Agreement shall be in writing and shall be deemed to have been given (i) on the date of personal delivery to an officer of or personally to the other party, or (ii) when sent by facsimile to the number shown below on the date of such confirmed facsimile provided a copy is also sent via overnight delivery pursuant to Section 3.1(iii), or (iii) the day following deposit when properly deposited for overnight delivery with a nationally‑recognized commercial overnight delivery service, prepaid, and addressed as follows, unless and until either of such parties notifies the other in accordance with this Section of a change of address or change of facsimile number:
To Company: Reliant Health Services, LLC Email: email@example.com
4.2 Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, among the parties with respect to the subject matter of this Agreement. The parties agree that this Agreement may be replaced by a subsequent agreement between the parties containing confidentiality covenants substantially identical to those set forth herein and, upon the execution of such subsequent agreement, this agreement will be deemed automatically superseded thereby and will be of no further force and effect.
4.3 Binding Effect; Assignment; Amendment and Waiver. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Except as otherwise specifically provided herein, no Person shall take any act which would allow any right hereunder to be assigned or held by any other person without the written consent of the other party hereto. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, unless otherwise expressly provided.
4.4 Counterparts; Headings. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same Agreement. This Agreement may be executed and delivered in counterpart signature pages executed and delivered via facsimile transmission, and any such counterpart executed and delivered via facsimile transmission shall be deemed an original for all intents and purposes. Headings used in this Agreement are for reference purposes only.
4.5 Severability. If any provision, clause or part of this Agreement or the application thereof under certain circumstances is held invalid or unenforceable, the remainder of this Agreement, or the application of such provision, clause or part under other circumstances, shall not be affected thereby.
4.6 Governing Law. This Agreement shall be construed and interpreted according to the laws of the State of Georgia, without regard to the conflict of law principles thereof. The Company and Recipient hereby irrevocably submits to the jurisdiction of the courts in Fulton County, State of Georgia. The Company and Recipient hereby waive, to the full extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action in such court and any claim that any such action, suit or proceeding has been brought in an inconvenient forum.
4.7 Judicial Interpretation. Should any provision of this Agreement require judicial interpretation, the parties hereto agree that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party which itself or through its agent prepared the same, it being agreed that the agents of each party have participated in the preparation hereof.
4.8 Use of Terms. Pronouns used in the Agreement are to be construed as masculine, feminine, or neuter, and both singular and plural, as the context may require. The word "include" and derivations thereof are not to be construed as terms of limitation.
IN WITNESS WHEREOF, the parties have executed this Confidentiality and Non-Disclosure Agreement as of the date first above written.
FOR RECIPIENT FOR COMPANY
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Document Name: Non-Disclosure Agreement
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