Non Disclosure and Confidentiality Agreement
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (this “Agreement”) is made as of the __ day of ______, 2019, between DVM Success, Inc. (“dvmSuccess”), and__________, (the “Hospital”).
The above named parties desire to conduct a hospital valuation (the “Hospital Valuation”). In connection with the generation of this report, the parties recognize that there is a need to disclose to each other certain confidential information to be used only for the Hospital Valuation and to protect such confidential information from unauthorized use and disclosure.
In consideration of the other party’s disclosure of such confidential information, each party agrees as follows:
1. For purposes of this Agreement, “Confidential Information” means any technical, business, or financial information disclosed by one party to the other party in written, electronic, or other format or media, including the following:
(a) any and all information, documents or other material provided by either party which is marked “confidential” or “proprietary” at the time of such disclosure;
(b) any and all information, documents or other material concerning the Hospital’s business systems, practices, policies or procedures, including, without limitation, financial information.
(c) the Hospital Valuation Optimization Report provided by dvmSuccess. The hospital agrees to not distribute or share the Hospital Valuation Optimization Report with anyone except as defined below in Section 2.
2. Each party agrees: (i) to maintain the other party’s Confidential Information in confidence; (ii) not to disclose such Confidential Information to any third parties except to its Representatives (defined below). Each party may disclose the Confidential Information of the other party to its employees, directors, officers, and affiliates (“Representatives”) who have a bona fide need to know such Confidential Information for the Business Purpose; provided that any such Representatives shall be under an obligation to maintain the confidentiality of the Confidential Information.
3. The receiving party’s obligations in Section 2 will not apply to the extent any Confidential Information:
(a) is now or hereafter becomes generally known or available to the public, other than as a result of a disclosure by the receiving party in breach of this Agreement;
(b) was known by the receiving party prior to receiving such information from the disclosing party;
(c) was in the receiving party’s possession prior to disclosure by the disclosing party;
(d) is acquired by the receiving party from a third party who, to the receiving party’s knowledge, provides it without any restriction as to use or disclosure owed to the disclosing party;
(e) is independently developed by the receiving party or its Representatives without use of the Confidential Information disclosed by the disclosing party; or
(f) is required or requested to be disclosed by applicable law, regulation, court order, subpoena, a regulatory authority, a governmental body, or other legal process.
(g) is deidentified by removing, or encoding the Hospital name and replacing the Hospital address or other location information with a Metropolitan Statistical Area, and combined with similar data from no fewer than five (5) other hospitals on an aggregated basis within a proprietary report compiled by dvmSuccess, or by a consultant who has signed a non-disclosure agreement with dvmSuccess.
4. Upon the disclosing party’s request, the receiving party will return to the disclosing party the disclosing party’s Confidential Information. Notwithstanding the foregoing, dvmSuccess and/or its Representatives shall not be obligated to return or destroy Confidential Information or any copies thereof maintained in accordance with their legal and regulatory compliance, record retention, security and/or disaster recovery procedures; provided further that they shall not be required to destroy any system back-up media such as copies of any computer records or files containing Confidential Information which have been created pursuant to automatic archiving or back-up procedures on storage servers and which cannot reasonably be deleted; it being understood that all such retained information will continue to be maintained in confidence in accordance with the terms of this Agreement.
5. All Confidential Information remains the sole and exclusive property of the disclosing party. Each party acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to the receiving party, by license or otherwise, in or to any Confidential Information of the disclosing party, or any patent, copyright or other intellectual property or proprietary rights of the disclosing party, except as specified in this Agreement.
6. The Hospital acknowledges that the unauthorized use or disclosure of dvmSuccess’ Hospital Valuation Optimization Report may cause dvmSuccess to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to seek equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
7. This Agreement, and the parties’ obligations hereunder, will commence on the date first set forth above and will remain in effect for two (2) years from the date hereof, at which time it will terminate.