THIS MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made by and between Practical Solutions , Inc., a Utah corporation (the “Company”), and the parties identified on the Registration Page as set forth below (“Third Party”).
BACKGROUND INFORMATION
The Company is in the business of designing, inventing, developing, implementing, refining and commercializing technology and processes related to (i) the optimization of dental practices through proprietary systems, protocols, processes, methodologies and programs, and (ii) the development of printed, online, and verbal communications that provide proprietary methodologies, training, and recommendations for the betterment of dental practices and practitioners (the “Business”).
Third Party has entered into a consultative relationship to receive consultation, advice, and access to proprietary methodologies, training, protocols, etc., (the “Relationship”). The process of executing the Relationship will require that each party grant the other party access to certain of its Confidential Information, as defined herein. For convenience, this Agreement refers to the party making disclosure of its Confidential Information as “Disclosing Party” and, with respect to Disclosing Party’s Confidential Information, refers to the other party as the “Recipient Party ”.
Both the Company and Third Party are willing to disclose its respective Confidential Information to the other. Accordingly, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:
OPERATIVE PROVISIONS
1. Confidential Information. For the purposes of this Agreement, the term "Confidential Information" refers to information, data, or materials provided by Disclosing Party to Recipient Party, regardless of whether provided in writing or verbally and regardless of whether marked as confidential or proprietary, related to the Business:
a. Financial or business information, data, analysis, valuations, records, reports and statements, accounting systems, policies, practices, principles, standards and procedures, business plans, contract proposals, marketing information, customer lists (including names and addresses and related information with respect to both established and prospective customers), employee, contacts, consultant or independent contractor information (including compensation information), results of operations, budgets, tax information, internal and cost controls, revenues, costs; and
b. Ideas, inventions, innovations, discoveries, designs, photographs, models, illustrations, drawings, prints, replacements, improvements, enhancements, modifications, or derivatives, whether or not patentable or copyrightable, with respect to any program, product, process, recipe, formula or apparatus, produced or used in or arising out of or in any way relating to the business of the party, including but not limited to, technical data, formulas, software programs, and applications.
For the purposes of this Agreement, and notwithstanding any other provisions of this Agreement, "Confidential Information" will not include:
c. Information which is generally developed and exploited by those engaged in the industry in which Disclosing Party conducts business, except such information as may become generally known or known to third parties through a breach of this Agreement; or
d. Confidential information that is legitimately obtained by Recipient Party from third parties who have independently developed such information.
2. Limited Use; No License. Each Recipient Party shall be, and hereby is, authorized to use the Confidential Information only for evaluation of a practice with Disclosing Party (the “Permitted Use”). Recipient Party shall not use the Confidential Information for any other purpose. Notwithstanding anything to the contrary in this Agreement, nothing contained herein shall be deemed, construed or interpreted as a grant, transfer or conveyance to any Recipient Party of any right, title or interest in, or license or right to use, any, all or any portions of Disclosing Party’s Confidential Information, inventions, patents, processes, procedures, technology and/or devices used in connection with or related to the Business.
3. Confidentiality. Recipient Party agrees that it will hold in confidence and not disclose any of Disclosing Party’s Confidential Information to any firm, individual, institution or person, except (a) as may be required by law (in which case Recipient Party shall so advise the Disclosing Party as soon as practicable and cooperate and assist the Disclosing Party, at the Disclosing Party’s cost and expense, if the Disclosing Party seeks a protective order or other relief from such disclosure requirements); and (b) to its officers, directors, employees, agents and professional consultants who agree in writing to be bound this Agreement.
4. Proprietary Right to Confidential Information. Recipient Party agrees that at all times during the consultation, and at all times thereafter, the Confidential Information shall remain the property of the Disclosing Party and Recipient Party agrees to:
a. Safeguard the Confidential Information with at least the highest degree of care taken to protect its own confidential or proprietary information;
b. Use at least reasonable means to preserve the proprietary trade secret nature of the Confidential Information;
c. Not use the Confidential Information for its own purposes (except the Permitted Use) and not use or disclose the Confidential Information for the use or benefit of any third party; and
d. Not take any action inconsistent with or detrimental to the Disclosing Party’s proprietary rights in and to the Confidential Information.
5 Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the officers, directors, employees, consultants, attorneys, affiliates and agents of each party.
6 Remedies. Recipient Party agrees and acknowledges that substantial and irreparable injury will result from, and money damages would not be a sufficient remedy for, any breach of this Agreement by Recipient Party or its agents and that in the event of any such breach of this Agreement, the Disclosing Party shall be entitled to injunctive relief, as well as any other remedies available at law or in equity (all of which shall be cumulative and not exclusive), without (and Recipient Party hereby waives) any requirement that the Disclosing Party prove actual damages, intentional, reckless or malicious conduct, or that the Disclosing Party post a bond or other security in connection therewith.
7 Redelivery; Destruction. Upon request of the Disclosing Party, Recipient Party will immediately deliver to the Disclosing Party any and all copies (whether on paper, electronic storage device or other media), and any and all internal notes, summaries or other memoranda, containing all, portions or summaries of any Confidential Information. Further, upon request of the Disclosing Party, Recipient Party shall delete, from all file servers, electronic mail accounts or registries, computer disks and all other storage devices or locations, all electronic, magnetic or digital copies or versions of the Confidential Information.
8 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, without regard for its conflicts of laws principles. Venue shall be deemed located exclusively in Salt Lake County, Utah.
9. Counterparts. The parties may execute this Agreement in counterparts. Each counterpart which has been executed shall constitute an original document and all counterparts shall constitute one and the same agreement. This Agreement will become effective against each party upon its execution and delivery of a counterpart to the other party. Copies delivered via facsimile shall constitute an original document.
10. Modifications. This Agreement may not be varied except by written agreement signed by OmniLytics, Inc. and Third Party.
11. Waivers. The failure of any party to enforce any provision of this Agreement shall not be construed to be a waiver of such provision or of that party's right thereafter to enforce such provision and no waiver of any breach shall be construed as an agreement to waive any subsequent breach or other provisions.
12. Severability. If at any time any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any respect to the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction shall in any way be affected or impaired thereby, and only with respect to the jurisdiction where any provision hereto is or becomes illegal, invalid or unenforceable, such provision shall be replaced by a legally enforceable provision which comes closest to the intents of the parties hereto underlying such replaced provision.
13. Affiliates. Recipient Party’s agreements and covenants hereunder shall apply with equal force to all of its parent, subsidiary or affiliated business entities and each of their officers and employees and the execution of this Agreement below is intended to be, and shall be, as fully binding on each of them as though they each had executed this Agreement on their own behalf.
14. Certifications. Upon written request of the Disclosing Party, an authorized officer of Recipient Party shall certify that each of the provisions of this Agreement has been complied with and provide such detail as may be reasonably requested.
15. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the alleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred by each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing documents or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.
16. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
End of Agreement.