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HomeMy WebLinkAbout2022-222A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK MUTUAL NON -DISCLOSURE AGREEMENT This NON -DISCLOSURE AGREEMENT (the "Agreement") effective as of 11/1/2022 (the "Effective Date") is between Everside Health, LLC, a Delaware limited liability company, with its principal place of business at 1400 Wewatta Street, Suite 350, Denver, Colorado 80202, and Indian River County Board of County Commissioners, with its principal place of business at 1801 27th St. Vero Beach FL 32960 (herein, collectively, the "Parties"). RECITALS WHEREAS, the Parties are interested in disclosing and receiving certain confidential information from one another to evaluate a potential business arrangement and/or transaction and the consummation of such potential business arrangement and/or transaction between both Parties (hereinafter "Business Purpose"); and WHEREAS, the Parties acknowledge that each Party may learn of the other Party's confidential information by disclosure, directly or indirectly; and conditional to the mutual release of respective Confidential Information to the other party, the Parties agree to treat all confidential information as confidential, and not to use such information other than in accordance with the Agreement; and WHEREAS, "Disclosing Party" shall mean the Party that provides Confidential Information to the other Party, and "Receiving Party" shall mean the Party that receives Confidential Information from the other Party; and both Parties shall act as "Disclosing Party" and "Receiving Party", as applicable to the Business Purpose, with the rights and duties in accordance with the terms of the Agreement. NOW THEREFORE, in consideration of these premises and for other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows: 1. Confidential Information. (a) For purposes of this Agreement, "Confidential Information" means any and all confidential, proprietary, trade secret or other information that Disclosing Party discloses to Receiving Party relative to the Business Purpose and the purposes of this Agreement, regardless of the medium in which such information is stored and whether disclosed in writing, orally, electronically or visually. Confidential Information may include, but is not limited to, ideas, innovations, accounting and financial information, information regarding products, services, pricing, business and operating methods, procedures, processes, policies, know-how, marketing, development, sales, costs, vendors and suppliers, inventions and intellectual property, business records, employee data, strategic plans, promotional data and business relationships. Confidential Information may be in the form of, without limitation, written documents, photographs, drawings, schematics, layouts, charts, graphs, samples, software, prototypes, CDs, A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK magnetic data, electronically stored information, displays, internet transmissions, inspections, presentations, recordings, interpretations, tangible objects, ideas and concepts. Confidential Information includes, without limitation, names, addresses and contact information of any Clients of the Disclosing Party; all commercial and sales information related to any Clients of the Disclosing Party, and any other information that may be of immediate or long-term value to a competitor of the Disclosing Party in a commercial position to be enriched from a knowledge advantage, in any and all forms. Confidential Information also includes, without limitation and regardless of the medium in which such information is maintained, any notes, reports, analyses, memoranda, summaries, compilations, descriptions or derivative works prepared by or under the direction of Receiving Party that contain, reflect or are based on, in whole or in part, any information disclosed by Disclosing Party pursuant to this Agreement. Confidential Information need not be designated or labeled as "Confidential Information" in order for it to be protected under this Agreement. Except as may be specifically stated otherwise in this Agreement, any and all information disclosed by Disclosing Party to Receiving Party hereunder shall be considered and construed as Confidential Information. (b) Receiving Party shall not disclose Confidential Information to any person other than directors, officers and employees ("representatives") of Receiving Party, its subsidiaries, and its affiliates who both (i) have an absolute need to know the Confidential Information, and (ii) are informed by Receiving Party of the confidential nature of the Confidential Information. Receiving Party agrees that where it discloses Confidential Information to any such Representative, Receiving Party shall do so in each case only to the minimum extent necessary for the effective performance by such person or their duties in connection with the Business Purpose. Receiving Party shall be liable for any breach of this Agreement by any of its Representatives, (including its Representatives who, subsequent to the first date of disclosure of Confidential Information hereunder, become former Representatives). Receiving Party agrees, at its sole expense, to use its best efforts, including, but not limited to engaging in legal proceedings to restrain any person to whom Confidential Information has been disclosed, whether intentionally or otherwise, from unauthorized disclosure or use of any Confidential Information. (c) The obligations of confidentiality shall not apply to any item of Confidential Information to the extent Receiving Party can establish by legally sufficient evidence that such item of Confidential Information: (i) is or became publicly available without Receiving Parry' s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party on a non - confidential basis prior to Disclosing Party's disclosure of such information to Receiving Party; (iii) became known to Receiving Party from a source other than Disclosing Party and other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) was independently and completely developed by Receiving Party prior to the Effective Date, or (v) is disclosed with the prior written approval of Disclosing Party. Receiving Party shall immediately inform Disclosing Party of any and all instances in which Receiving Party believes any Confidential Information is or may be subject to any of the exceptions described in this Section 1.(c) prior to KJ A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK disclosing or using such Confidential Information in any manner that would otherwise constitute a breach of this Agreement. 2. Restrictions; Covenants. (a) Receiving Party shall use the Confidential Information solely for the Business Purpose and for no other purpose whatsoever, whether for the benefit of Receiving Party, or for the benefit, directly or indirectly, of any other person or entity. (b) Confidential Information may be disclosed, used, reproduced, summarized or distributed only in pursuance of the Business Purpose, and only as specifically provided hereunder. (c) Receiving Party may not reverse engineer, decompile or disassemble any software or other Confidential Information disclosed to Receiving Party. (d) Receiving Party affirmatively covenants that it shall not under any circumstances, directly or indirectly, by itself or in conjunction with any person or entity other than Disclosing Party, pursue or implement a project or business practice that is based upon, similar to, or incorporates all or any reasonably significant component of the Business Purpose. (e) Each Party agrees that, while any discussions of and during the period of pursuance of the Business Purpose, and for two years thereafter, it will not, without the advance written consent of the other Party, directly or indirectly recruit, solicit for employment, or employ any employee, consultant, or independent contractor of the other Party or otherwise interfere with any such employee's, consultant's or independent contractor's employment relationship or status without the advance written approval of the other Party. 3. Riahts and Remedies. (a) Receiving Party shall notify Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement by Receiving Party, and will cooperate fully with Disclosing Party to assist Disclosing Party in regaining possession of the Confidential Information and preventing any further unauthorized use or disclosure of Confidential Information. (b) In the event either Party decides for any reason not to proceed further with the Business Purpose, such Party shall immediately provide written notice to the other Party and Receiving Party shall immediately return or destroy any and all Confidential Information to Disclosing Party, including, but not limited to, any copies, reproductions, summaries and extractions thereof, regardless of the medium in which such Confidential Information is stored or maintained. Section 3(b) of this Agreement specifically applies to any Confidential Information, regardless of the medium in which such information is maintained, that have been prepared or generated by Receiving Party that in any manner relates to the Business Purpose. A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK (c) The Parties agree and acknowledge that monetary damages would not be a sufficient remedy for any breach of this Agreement, and Disclosing Party would suffer immediate and/or irreparable harm as the result of such breach. Therefore, upon any actual breach of this Agreement, Receiving Party consents to the Disclosing Party seeking issuance, by any court of competent jurisdiction, of a temporary restraining order, preliminary and/or permanent injunction, without bond, restraining or enjoining such breach by Receiving Party or any person or entity that receives Confidential Information from Receiving Party, from utilizing said Confidential Information for any purpose other than as set forth in this Agreement. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to Disclosing Party. (d) In the event of a breach of this Agreement by Receiving Party, Receiving Party shall indemnify and hold Disclosing Party harmless from any damages, losses, costs and expenses (including reasonable attorney fees) of any kind without limitation, that Disclosing Party is able to demonstrate as the result of such breach. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to Disclosing Party. 4. Miscellaneous. (a) All Confidential Information shall remain the property of Disclosing Party. By disclosing information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under Disclosing Party's patents, copyrights, trademarks or other intellectual property, or trade secret information. (b) Receiving Party understands and acknowledges that Disclosing Party is not making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Confidential Information. Receiving Party agrees that neither Disclosing Party nor any of its affiliated, parent or subsidiary entities, or directors, shareholders, employees, agents, or representatives will have any liability to Receiving Party or any third parties relating to or resulting from any use of the Confidential Information. (c) This Agreement shall not be modified except by a written agreement dated subsequent to the Effective Date of this Agreement and signed by both Parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of Disclosing Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. (d) In the event Confidential Information is required by court order, Florida law, or government agency to be disclosed, Receiving Party may make such required disclosures; provided, however, Receiving Party shall provide advance, reasonable notice to the Disclosing Party, so that Disclosing Party may seek a protective order or such other protection as Disclosing Party, in its sole discretion, may elect, and Receiving Party shall reasonably cooperate, at Disclosing Party's expense, with Disclosing Party in its efforts to obtain such order or protection. 4 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK (e) Subject to any specific limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the Parties, their successors and assigns. (0 This Agreement may be terminated at any time by either Party upon written notice to the other Party. Notwithstanding any termination hereof, Receiving Party's obligations under this Agreement with respect to Confidential Information shall survive and continue indefinitely. (g) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. (h) All obligations created by this Agreement shall survive change or termination of the Parties' business relationship and shall specifically exist beyond such termination. (i) This Agreement constitutes the final, fully -integrated and entire agreement among the Parties with respect to the subject matter of this Agreement and will be governed in accordance with Florida law, excluding any choice of law provisions that require application of any other law, and any actions brought in connection with this Agreement must be brought in a court sitting in the State of Florida. The Parties consent to the jurisdiction of those courts. 0) Any notice, request, agreement, consent, demand or other communication required or permitted to be given by this Agreement must be in writing and must be: (i) personally delivered (which shall be deemed to have been delivered on the day it is personally delivered); or (ii) sent by nationally recognized overnight delivery service (which shall be deemed to have been delivered on the day it is delivered by such carrier), to the Parties at the addresses set forth in this Agreement. (k) This Agreement may be executed in multiple counterparts and signature pages may be exchanged by facsimile or other electronic means, each of which shall be deemed to be an original and all of which taken together shall constitute a single instrument. The Parties hereto agree and stipulate that the original of this Agreement, including the signature page, may be scanned and stored in a computer database or similar device, and that any printout or other output readable by sight, the reproduction of which reproduces the original of this Agreement, may be used for any purpose just as if it were the original, including proof of the content of the original writing. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement [Signature page to follow.] STATE OF FLORIDA INDIAN RIVER COUNTY THIS IS CERTIFY THAT THIS IS A TRUE AND CORRECT COP, F T E ORI8 1NAl O! ILE IN THIS OFFICE. JEFFREYR. ITH,E,RK I BYv D.C. DATE a �` Everside Health, LLC Indian River Board of County Commissioners By: By: Title: Title: Signature: Signatl Date: Date: =� 1: D"!ED tiS TO FORM i::til_ SUFFICIlnNC",, -AN rII=if'JG0I_0 FILE NO: DATE: AGENDA ITEM: /A D.