WHEREAS, Company has invested and continues to invest capital, time, and effort in establishing a
proprietary position with respect to its business knowledge and affairs, related systems,
offerings, products and services, and has developed confidential and proprietary information
relating thereto; and
WHEREAS, Vendor wishes to establish a business association with Company whereby Vendor shall
have access to Company’s confidential financial and accounting information (the “Business
Association”), and in the course of the Business Association, Vendor will have access to certain
or all of the aforesaid information; and
WHEREAS, Company is willing to establish the Business Association with Vendor, provided Vendor
complies with each and every provision of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and
the establishment of the Business Association, the parties hereto agree as follows:
1. Confidential Information. Vendor hereby acknowledges and agrees that in the furtherance of the
Business Association it shall be, and may already have been, exposed to and made aware of
Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean,
by way of illustration and without limitation, Company’s facts, opinions, conclusions,
projections, data, information, business plans, test procedures and processes, the identities and
other information of customers, employees, independent contractors, suppliers, licensors,
licensees, partners, investors, and affiliates, trade or business secrets, know-how, research and
development, works in process, engineering, manufacturing, production, processing, marketing,
financial, accounting and personnel matters, present or future products, software, firmware,
computer programs, elements of design and hardware and other technology and technological
development and implementation, design, drawings, schematics, and formulae, sales, planned
markets and business locales, accounts, pricing, reimbursement practices, training methods and
materials, inventions, or any confidential or proprietary information of any third party provided
to Vendor in the course of its association with Company, whether communicated orally or in
writing or obtained by Vendor through observation or examination of the Company’s facilities,
clean rooms, offices, records, writings or operation or procedures.
2. No Representations as to Accuracy. Company represents that it has rights to make the disclosure
of Confidential Information contemplated by this Agreement. In providing the Confidential
Information under this Agreement, Company makes no representation or warranty, either express or
implied, as to its accuracy, completeness, adequacy, sufficiency, or freedom from defect of any
kind, and Company, nor its parent companies, subsidiaries, affiliates, shareholders, owners,
investors, directors, officers, agents, employees or other representatives shall have any
liability to Vendor resulting from the use of or by reason Confidential Information.
3. Obligation of Non-Disclosure and Confidentiality. Vendor shall only use the Confidential
Information for the direct furtherance of the Business Association and shall hold any Confidential
Information in the strictest confidence. Vendor may provide access to the Confidential Information
to its authorized directors, officers, employees, affiliated entities and other representatives
who need to know such information for the furtherance of the Business Association (the “Authorized
Representatives”) (it being understood that such Authorized Representatives shall be informed by
Vendor of the protective restrictions and limitations placed upon the use and disclosure of the
Confidential Information and such Authorized Representatives shall agree with Vendor be bound in
accordance with the terms set forth herein). Except to its Authorized Representatives, no
disclosure of such information may be made by Vendor or its Authorized Representatives to any
other person or entity without the prior written consent of the Company. Vendor shall not make or
use any copies, synopses or summaries of oral or written Confidential Information, except as such
are absolutely necessary for Vendor’s direct furtherance of the Business Association. Wherever
Vendor is required to act or refrain from acting in any manner pursuant to the terms of this
Agreement. Vendor shall institute all reasonable procedures and take all reasonable actions to
cause Vendor’s Authorized Representatives to Act or refrain from acting in the same manner.
4. Permitted and Required Disclosure.
(a) Notwithstanding the foregoing, the Confidential Information may be disclosed by Vendor when (i)
Vendor can demonstrate by documentation that the Confidential Information was public information
or generally available to the public prior to Vendor’s receipt of such Confidential Information
from Company, and was not made such by or through any unauthorized act or omission of Vendor or
its Authorized Representatives; (ii) Vendor can demonstrate by documentation that the Confidential
Information was in Vendor’s possession prior to receipt thereof from Company, provided that such
information is reflected in Vendor’s written records and is not known to Vendor by any
unauthorized act or omission of Vendor or its Authorized Representatives or known to Vendor
subject to another confidentiality agreement with or other obligation of secrecy to the Company or
another party; or (iii) the Confidential Information becomes part of the public information or
generally available to the public, such as by publication or otherwise, not due to any
unauthorized act or omission on Vendor’s or its Authorized Representatives’ part.
(b) In the event Vendor is required by applicable law (by oral questions, interrogations, requests
for information or documents, subpoena, civil investigative demand or similar process or as
otherwise required by law or court order) to disclose any Confidential Information, Vendor shall
use reasonable efforts to limit the disclosure by means of a protective order or a request for
confidential treatment and shall promptly provide the Company a reasonable opportunity to review
the disclosure before it is made and to interpose its own objection to the disclosure and timely
seek an appropriate protective order.
5. Copies and Abstracts. Vendor shall not make or use any copies, synopses or summaries of oral or
written Confidential Information, except as such are necessary for Vendor’s direct furtherance of
the Business Association. All such copies and abstracts must themselves be marked as confidential
and Vendor shall maintain a written record of the distribution of all such copies and abstracts.
6. Return of Confidential Information. Upon the expiration or earlier termination of this
Agreement, or at any time upon Company’s request, Vendor shall promptly deliver and/or return to
the Company all written Confidential Information, and shall destroy all copies, extracts, notes,
abstracts, reproductions, memoranda and other documents and writings that contain Confidential
Information, and will provide the Company a written certification by Vendor that the same has been
completed.
7. No Creation of Ownership Rights. Nothing in this Agreement or any action taken by Vendor or
Company shall be construed to convey to Vendor any right, title or interest in the Confidential
Information or any license to use, sell, exploit copy or further develop in any way any
Confidential Information. No license is hereby granted or implied under any patent, copyright or
trademark, any application for any of the foregoing, or any trade name, trade secret or other
proprietary information, in which the Company has any right, title or interest. The entire work
product, if any, generated by Vendor and/or Company through the furtherance of the Business
Association (“Work Product”) shall be and remain the property of Company. For the purpose of this
Agreement, Work Product shall include, but not be limited to, all technology, know-how, programs,
processes, procedures, trade secrets and inventions; whether patentable or otherwise. Vendor
agrees to take all necessary action, including the execution of all required or necessary
documents, in order to vest title of all Work Products in Company’s name. Company retains all
rights and remedies with respect to the Confidential Information afforded it under any applicable
federal, state and local respect to the Confidential Information afforded it under any applicable
federal, state, and local laws, codes and regulations, both during and after the term of this
Agreement, including without laws, codes and regulations, both during and after the term of this
Agreement, including without limitation any trade secret or other laws designed to protect
proprietary or confidential information.
8. Public Announcement. Any and all public announcements or other statements to third parties
related to this Agreement or the Business Association by Vendor shall be subject to the prior
written consent and approval by Company, which consent, in the sole discretion of Company, may be
arbitrarily withheld, conditioned and/or delayed.
9. Survival. The covenants, obligation, terms and conditions provided hereunder, shall survive the
cessation of any discussions between the parties with regard to the Business Association or any
other business relationship, and the expiration or termination of this Agreement, and shall remain
in full force and effect indefinitely.
10. No Other Obligation Created. Vendor and Company hereby acknowledge and agree that, unless and
until a definitive agreement by and between the parties hereto with respect to the Business
Association has been executed and delivered, neither party shall be under any obligation with
respect to the Business Association by virtue of this Agreement, except for the matters
specifically agreed to herein.
11. Irreparable Harm. Vendor hereby acknowledges and agrees that the disclosure or utilization of
Confidential Information for purposes other than those expressly permitted hereunder, or any other
breach or threatened breach of this Agreement, would be wrongful and cause substantial, continuing
and irreparable harm, injury and damage to Company which would materially adversely affect Company
and its business affairs. Therefore, in addition to all remedies of law or equity, in the event of
any breach or threatened breach of any of the terms of this Agreement, Company shall be entitled,
as a matter of right, and without proving damages, to immediate injunctive or other equitable
relief enjoining and restraining Vendor and each and every other person or entity concerned
therewith or thereby from continuing to act (or failing to act) in violation of the terms hereof.
12. Notice. Any notice, communication, offer, acceptance, request, consent, reply, or advice
(collectively referred to here as “Notice”), provided or permitted to be given, served, made, or
accepted by any party or person to any other party or parties, person or persons, hereunder must
be in writing, addressed to the party to be notified at the address set forth below such party’s
name on the signature page of this Agreement, or such other address of which one party has
notified the other in writing pursuant to the terms of this Section 12, and must be served: (a) by
facsimile or other similar electronic method with a hard copy of such notice sent no later than
the next business day as specified under (b) below; (b) by depositing the same in the United
States mail, certified or registered mail, return receipt requested and postage paid; or (c) by
personal delivery. Notice shall be effective: (i) twenty-four (24) hours after being transmitted
by facsimile or other similar electronic method, provided a hard copy is sent as specified in (a)
above; (ii) seventy-two (72) hours following being properly mailed; or, (iii) immediately upon
personal delivery. Notice otherwise given is effective only if and when received.
13. Interpretation. The parties hereto acknowledge and agree that: (i) each party and its counsel
has reviewed the terms and provisions of this Agreement; (ii) the rule of construction to the
effect that any ambiguities are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this Agreement shall be
construed fairly as to all parties hereto and not in favor of or against any party, regardless of
which party was generally responsible for the preparation of this Agreement.
14. Governing Law, Jurisdiction and Venue. The laws of the State of New York applicable to
contracts made and to be performed therein shall govern this Agreement. The parties hereto consent
to the jurisdiction and venue of the courts of the State of New York, Onondaga County, and the
United States District Court for the Northern District of New York, as well as the jurisdiction of
all courts from which an appeal may be taken from such courts, for the purpose of any suit, action
or other proceeding relating to this Agreement, and expressly waive any and all of the objections
the parties hereto may have as to the venue of such courts to settle or adjudicate any claim or
controversy arising hereunder.
15. Entire Agreement, Amendments, Prior Discussions, Waiver. This Agreement constitutes the final,
exclusive and complete statement and understanding of the party’s agreement respecting the subject
matter addressed herein. This Agreement may not subsequently be amended or modified except by a
writing signed by both parties hereto. Vendor hereby acknowledges and agrees that any information
disclosed to it by Company, or any discussions held between the parties, prior to the date of this
Agreement, shall be subject to the terms of this Agreement. Any waiver by Company of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach hereof.
16. Successors and Assigns. The Company shall have the rights to assign this Agreement to its
successors and assigns, and all covenants and agreements hereunder shall inure to the benefit of
and be enforceable by said successors or assigns. Vendor may not assign the Agreement or any of
its rights and obligations hereunder without the express written consent of Company.
17. Severability. The parties intend this Agreement to be enforced as written. However, in the
event any portion or provision of this Agreement shall to any extent be declared illegal or
unenforceable by a duly authorized court having jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same instrument.
19. Costs and Attorney’s Fees. In the event any suit or other action is commenced to construe or
enforce any provision of this Agreement, the prevailing party, in addition to all other costs and
disbursements amounts incurred, such party shall be entitled to receive from and be paid by the
other party, a reasonable sum for attorney’s fees and costs.
20. Captions, Gender and Number. The captions of the sections of this Agreement are for convenience
of reference only and in no way define, limit or affect the scope or substance of any section of
this Agreement. Whenever herein the singular number is used the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders.
COMPANY:
SIGNAL HEALTH GROUP FRANCHISE INC
