Non-Disclosure Agreement (this “Agreement”) by and among: [Receiving Party] and all of its subsidiary entities (collectively, “Recipient”), and the FileHero.com Registered User and all of its subsidiary entities (collectively, the “Provider”). RECIPIENT and the PROVIDER may be referred to hereinafter each individually as a “Party” or collectively as the “Parties.”
WHEREAS, Recipient is in any and all lawful business; and
WHEREAS, the Provider is in the business of providing sensitive information to the Recipient; and
WHEREAS, each Party is prepared to furnish (“Furnishing Party”) to the other Party(ies) (“Recipient”) confidential information and documents pertaining to the business affairs of the Furnishing Party in order to assist each Recipient in evaluating a possible business transaction and/or relationship with the Furnishing Party (the “Transaction”); and
WHEREAS, each Furnishing Party wishes to ensure that confidential information furnished to each Recipient is not disclosed to persons who are not parties to this Agreement; and
WHEREAS, each Party wishes to ensure that the other will not offer to sell any substantial portion of their ownership interests or assets, or solicit such offers, from any persons not a party to this Agreement while the Parties are actively the Transaction; and
WHEREAS, each Furnishing Party wishes to ensure that its employees and agents shall not be directly or indirectly solicited for employment by the recipient or by the recipient on behalf of another party.
NOW, THEREFORE, for and in consideration of the mutual covenants exchanged in this Agreement, the Parties agree as follows:
1. Confidential Information
1.1 All written and oral disclosures of information provided to Recipient by or on behalf of the Furnishing Party (collectively referred to as “Confidential Information”) will be used solely by Recipient for the purpose of evaluating a possible Transaction between or among the Furnishing Party and the Recipient and shall not be used in any other way directly or indirectly detrimental to the Furnishing Party.
1.2 If and when the Parties enter into a mutually agreed-upon arrangement through which the Provider provides lead generation or other services to or for the benefit of RECIPIENT, the information that constitutes the leads shall not be considered “Confidential Information” within this Agreement even though disclosure of that information may be restricted and protected by a subsequent agreement between the Parties.
1.3 From the date of this Agreement and perpetually thereafter, all Confidential Information, as well as all analyses, compilations, studies or other documents prepared by the Recipient or the Recipient’s representatives, containing or based in whole or in part on the Confidential Information will be kept strictly confidential by Recipient will not be disclosed by Recipient and will not be disclosed, directly or indirectly, to any person or entity. Notwithstanding the foregoing, Recipient may disclose the Confidential Information or portions thereof to those of the Recipient’s members, managers, partners, directors, officers, employees, attorneys, advisors, agents, representatives, lenders, potential co-investors and Providers (the persons and entities to whom disclosure is permissible and who are known as “Representative(s)”) who need to know such information for the purpose of evaluating the Transaction if such Representative is informed of the confidential nature of this Agreement and agrees to maintain the confidentiality of such information. Recipient agrees to be responsible for any breach of this Agreement by Representatives of the Recipient.
1.4 If Recipient or its Representatives become legally compelled to disclose any of the Confidential Information, Recipient shall provide Furnishing Party with prompt written notice (to the extent legally permitted) so that Furnishing Party may seek a protective order or other appropriate remedy, or waive compliance with the terms of this Agreement. If such remedy is not obtained, or if the Furnishing Party waives compliance with the provisions of this Agreement, Recipient agrees that it or its Representatives shall furnish only that portion of the Confidential Information that is legally required to be furnished, and shall exercise good faith efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
1.5 The term “Confidential Information” does not include any information which (i) at the time of disclosure or thereafter is generally known to or available to the public (other than as result of a disclosure by Recipient or Representatives of the Recipient in violation hereof); or (ii) was or becomes available to Recipient or its Representatives from a source other than Furnishing Party, provided that such source was not known to Recipient to be bound by an obligation of confidentiality owed to Furnishing Party with respect to such information; or (iii) is independently developed by Recipient or its Representatives without use of the Confidential Information.
1.6 If Furnishing Party requests in writing for any reason, Recipient agrees to promptly return to Furnishing Party (or, at Recipient’s option, destroy) all originals and copies of the Confidential Information in Recipient’s possession or in the possession of Recipient’s Representatives, and Recipient will destroy all copies of any analyses, compilations, studies or other documents prepared by Recipient or for Recipient’s use or based in whole or in part on any Confidential Information. Notwithstanding the foregoing, Recipient and its Representatives (i) may each retain one copy of the Confidential Information for their respective legal files for compliance and regulatory purposes, and (ii) need not destroy electronic archives and backups made in the ordinary course of business where it would be commercially impracticable to do so; subject, in either case, to the obligations of confidentiality herein.
1.7 The Parties will not, and will direct and cause their Representatives not to disclose to any others persons or entities either the fact that any investigations, discussions or negotiations are taking place concerning the Transaction or that any Party to this Agreement has requested or received Confidential Information from any other Party to this Agreement as to any of the terms, conditions or other facts with respect to any such possible Transaction including the status of the Transaction, except those persons or entities which have already been informed of possible Transactions between Recipient and Furnishing Party. Each Party represents that the Party has not made any disclosures prior to the Effective Date. Each Party understands and acknowledges that, in connection with the Transaction, (i) all communications regarding this possible Transaction, (ii) requests for additional information and meetings and (iii) discussions or requests regarding procedures, will be submitted or directed to the Parties executing this Agreement or such other individual as may be designated in writing by such Party.
1.8 Each Party understands that the receiving Party may currently or in the future be developing information internally, or receiving information from other parties that may be similar to the furnishing Party’s information. Accordingly, nothing in this Agreement will be construed as a representation or inference that the receiving Party will not develop products, or have products developed for it, that, without violation of this Agreement, compete with the products or systems contemplated by the furnishing party’s Confidential Information.
2. No Warranty as to Accuracy of Information Furnished
2.1 Although each Furnishing Party will endeavor to include in the Confidential Information such information which the Furnishing Party believes may be relevant for purposes of each Recipient’s review, each Recipient understands and acknowledges that Furnishing Party makes no representation or warranty express or implied, as to the accuracy or completeness of the Confidential Information.
2.2 Neither Furnishing Party nor any of its Representatives will have any liability to Recipient or any other person resulting from Recipient’s use of the Confidential Information or resulting from any errors or omissions in the Confidential Information. Only those representations or warranties that are made to Recipient as part of a definitive agreement when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such agreement will have any legal effect.
3. Non-Solicitation of Employees.
Each Furnishing Party acknowledges and agrees that as a condition of the Recipient entering into this Agreement, and in order to protect the legitimate business interests of the Furnishing Party, including, but not limited to its interests in protecting its trade secrets, proprietary information, and business reputation, during the term of this Agreement, and for a period of two (2) years following the date of this Agreement, the Furnishing Party shall not, either directly or indirectly, solicit, assist, facilitate the solicitation or inducement by a third person, endeavor to entice away from the Recipient, or otherwise interfere with a relationship with Recipient, of any employee, officer or consultant of Recipient (whether or not such person would commit any breach of his Agreement of employment or engagement by reason of leaving the service of the Recipient) or employ, assist in or procure the employment by any other person, entity, association, organization, firm or body corporate of any such person.
4. Equitable Remedies Available to All Parties
4.1 Each Party acknowledges that remedies at law for any breach of such Party’s obligations under this Agreement are inadequate and that Furnishing Party shall be entitled to seek equitable relief including, but not limited to, injunction, specific performance and monetary compensation, in the event of any breach of the provisions of this Agreement.
4.2 It is further agreed that no failure or delay by any Party in exercising any right or privilege under this Agreement will operate to waive such right or privilege, nor will any single or partial exercise of such right or privilege preclude any other or further exercise of such right or privilege. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
5. HIPAA Requirements
Each Party agrees to comply with the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification Provisions of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C.A. § 1320d et seq. (“HIPAA”) and any current and future regulations promulgated under the HITECH Act or HIPAA, including without limitation the Federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the Federal security standards contained in 45 C.F.R. Parts 160, 162 and 164 (the “Federal Security Regulations”), and the Federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162 (the “Federal Electronic Transaction Regulations”), all as amended from time to time and collectively referred to herein as the “HIPAA Requirements.” Each Party agrees not to use or further disclose any “Protected Health Information,” including “Electronic Protected Health Information” (as such terms are defined in the HIPAA Requirements), other than as permitted by the HIPAA Requirements and the terms of this Agreement. Each Party will make its internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the HIPAA Requirements.
6.1 This Agreement is for the benefit of the Parties, their successors and assigns and will be governed by and construed in accordance with the substantive laws of the State of Florida.
6.2 Facsimile-copy and electronic-copy signatures, and hand signed, scanned and emailed copies of this Agreement shall have the same effect as original signatures.
6.3 Each Party to this Agreement shall be responsible for its own expenses directly incurred in obtaining or furnishing the Confidential Information.
6.4 This Agreement and all obligations hereunder shall expire two (2) years from the Effective Date; or may be terminated by either Party on thirty (30) days advanced written notice to the other Party.
In Witness Whereof, both parties digitally accept, and confirm.
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