This Non-disclosure Agreement (this "Agreement") is made effective as of between applicant and Properhealthcare Plus as of today.

 

The Properhealthcare Plus has requested and the Applicant agrees that the Applicant will protect the confidential material and information which may be disclosed between the Properhealthcare Plus and the Applicant. Therefore, the parties agree as follows:

 

I. CONFIDENTIAL INFORMATION. The term "Confidential Information" means any information or material which is proprietary to the Properhealthcare Plus, whether or not owned or developed by the Properhealthcare Plus, which is not generally known other than by the Properhealthcare Plus, and which the Applicant may obtain through any direct or indirect contact with the Properhealthcare Plus. Regardless of whether specifically identified as confidential or proprietary, Confidential Information shall include any information provided by the Properhealthcare Plus concerning the business, technology and information of the Properhealthcare Plus and any third party with which the Properhealthcare Plus deals, including, without limitation, business records and plans, trade secrets, technical data, product ideas, contracts, financial information, pricing structure, discounts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, and customer and client lists. The nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.

 

 

A. "Confidential Information" does not include:

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-matters of public knowledge that result from disclosure by Properhealthcare Plus;

-information rightfully received by the Applicant from a third party without a duty of confidentiality;

-information independently developed by the Applicant;

-information disclosed by operation of law;

-information disclosed by the Applicant with the prior written consent of the Properhealthcare Plus;

and any other information that both parties agree in writing is not confidential.

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II. PROTECTION OF CONFIDENTIAL INFORMATION. The Applicant understands and acknowledges that the Confidential Information has been developed or obtained by the Properhealthcare Plus by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of Properhealthcare Plus which provides Properhealthcare Plus with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt by the Applicant of the Confidential Information, the Applicant agrees as follows:

 

A. No Disclosure. The Applicant will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the Properhealthcare Plus.

 

B. No Copying/Modifying. The Applicant will not copy or modify any Confidential Information without the prior written consent of the Properhealthcare Plus.

 

C. Unauthorized Use. The Applicant shall promptly advise the Properhealthcare Plus if the Applicant becomes aware of any possible unauthorized disclosure or use of the Confidential Information.

 

D. Application to Employees. The Applicant shall not disclose any Confidential Information to any employees of the Applicant, except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of the Properhealthcare Plus.

 

III. UNAUTHORIZED DISCLOSURE OF INFORMATION - INJUNCTION. If it appears that the Applicant has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the Properhealthcare Plus shall be entitled to an injunction to restrain the Applicant from disclosing the Confidential Information in whole or in part. Properhealthcare Plus shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

 

IV. NON-CIRCUMVENTION. For a period of five (5) years after the end of the term of this Agreement, the Applicant will not attempt to do business with, or otherwise solicit any business contacts found or otherwise referred by Properhealthcare Plus to Applicant for the purpose of circumventing, the result of which shall be to prevent the Properhealthcare Plus from realizing or recognizing a profit, fees, or otherwise, without the specific written approval of the Properhealthcare Plus. If such circumvention shall occur the Properhealthcare Plus shall be entitled to any commissions due pursuant to this Agreement or relating to such transaction.

 

V. RETURN OF CONFIDENTIAL INFORMATION. Upon the written request of the Properhealthcare Plus, the Applicant shall return to the Properhealthcare Plus all written materials containing the Confidential Information. The Applicant shall also deliver to the Properhealthcare Plus written statements signed by the Applicant certifying that all materials have been returned within five (5) days of receipt of the request.

 

VI. RELATIONSHIP OF PARTIES. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the Confidential Information. This Agreement does not create any agency, partnership, or joint venture.

 

VII. NO WARRANTY. The Applicant acknowledges and agrees that the Confidential Information is provided on an "AS IS" basis. THE PROPERHEALTHCARE PLUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE PROPERHEALTHCARE PLUS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION. The Properhealthcare Plus does not represent or warrant that any product or business plans disclosed to the Applicant will be marketed or carried out as disclosed, or at all. Any actions taken by the Applicant in response to the disclosure of the Confidential Information shall be solely at the risk of the Applicant.

 

VIII. LIMITED LICENSE TO USE. The Applicant shall not acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. The Applicant acknowledges that, as between the Properhealthcare Plus and the Applicant, the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the Properhealthcare Plus, even if suggestions, comments, and/or ideas made by the Applicant are incorporated into the Confidential Information or related materials during the period of this Agreement.

 

IX. INDEMNITY. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney's fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.

 

X. ATTORNEY'S FEES. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs.

 

XI. TERM. The obligations of this Agreement shall survive until the Properhealthcare Plus sends the Applicant written notice releasing the Applicant from this Agreement. After that, the Applicant must continue to protect the Confidential Information that was received during the term of this Agreement from unauthorized use or disclosure indefinitely.

 

XII. GENERAL PROVISIONS. This Agreement sets forth the entire understanding of the parties regarding confidentiality. Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the Republic of Ireland. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect at all times in accordance with the term of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.

 

XIII. WHISTLEBLOWER PROTECTION. This Agreement is in compliance with the Defend Trade Secrets Act and provides civil or criminal immunity to any individual for the disclosure of trade secrets: (i) made in confidence to a federal, state, or local government official, or to an attorney when the disclosure is to report suspected violations of the law; or (ii) in a complaint or other document filed in a lawsuit if made under seal.

 

XIV. SIGNATORIES. This Agreement shall be executed by Properhealthcare Plus and applicant and delivered in the manner prescribed by law as of the date first written above.