NON-DISCLOSURE AGREEMENT
This Nondisclosure Agreement (“Agreement”) is made as of {todaysDate}, (the “Effective Date”) by and between the undersigned.
1. IDENTIFICATION OF THE PARTIES. This Agreement is made and entered into by and between Pure Path Compounding Pharmacy LLC, (“Disclosing Party”), and {prescriberFull} with {prescriberBusiness} (“Receiving Party”), for the purpose of preventing the unauthorized disclosure of Confidential Information, defined below. By signing below, the parties hereby agree to enter into a confidential relationship with respect to the disclosure of proprietary and Confidential Information as set out in this Agreement.
2. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Confidential Information” means any oral, written, graphic or machine-readable information including, but not limited to, but not limited to, any Evaluation Material or any information which relates to information, trade secrets, know-how, processes, ideas, inventions (whether patentable or not), product development plans, forecasts, strategies, business plans and strategies, agreements with third parties, services, customers, marketing or finances of the disclosing party. All reproductions, copies or embodiments, in whole or in part, of the Confidential Information shall carry a confidential, proprietary notice similar to that with which it was submitted to the receiving party. The receiving party shall not remove any proprietary rights legend from, and shall, upon the disclosing party’s reasonable request, add any proprietary rights legend to, materials disclosing or embodying Confidential Information. The term “Confidential Information” as used herein does not include information that: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure directly or indirectly by the Recipient or its Representatives in violation of this Agreement); (ii) was available to the Recipient from a source other than the Disclosing Party or its Representatives, provided that such source, to Recipient's knowledge after reasonable inquiry, is not and was not bound by a confidentiality agreement regarding either party; or (iii) has been independently acquired or developed by the Recipient without violating any of its obligations under this Agreement.
“Person” means any individual, partnership (whether general or limited), limited liability company, corporation, association, trust, members of joint venture entities or other entity.
“Representatives” means, as to any Person, such Person's affiliates, and its and their respective directors, officers, employees, managing members, general partners, agents and consultants (including attorneys, financial advisors and accountants).
Other terms not specifically defined in this Section 2 shall have the meanings given them elsewhere in this Agreement.
3. Nondisclosure of Confidential Information.
Disclosing Party agrees not to use any Confidential Information disclosed to it by the Receiving Party for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Transaction. Receiving Party shall disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to carry out the discussions regarding the Transaction. Each party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Each party agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing party which may come to the receiving party’s attention.
Notwithstanding the above, the Disclosing party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (i)was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; or (iv) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. If a particular portion or aspect of Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such Confidential Information shall remain subject to all of the provisions of this Agreement.
4. Return of Materials. Any materials or documents containing Confidential Information that have been furnished by one party to the other in connection with the Transaction shall be promptly returned or destroyed with confirmation provided to the other party, by the receiving party, accompanied by all copies of such documentation, within ten (10) days after (a) the Transaction has been rejected or concluded, (b) the written request of the disclosing party or (c) the termination or expiration of this Agreement. In addition, the receiving party will destroy all tangible media that contain Confidential Information during this ten (10) day period.
5. No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information other than the limited right to use the Confidential Information in connection with the Transaction. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
6. Acknowledgements. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights. Receiving Party acknowledge that Confidential Information received pursuant to this Agreement may still be under development, or may be incomplete, and that such Confidential Information may relate to products that are under development or are planned for development. THE DISCLOSING PARTY MAKES NO WARRANTIES EXPRESS OR IMPLIED, REGARDING THE ACCURACY OF THE CONFIDENTIAL INFORMATION. In addition, the disclosing party makes no representation or warranty, either express or implied, as to its adequacy, sufficiency or freedom from defect of any kinds, including freedom from any patent or trade secret infringement that may result from the receiving party’s use of such Confidential Information. The disclosing party accepts no responsibility for any expenses or losses incurred by the receiving party as a result of the receiving party’s receipt or use of Confidential Information. THE DISCLOSING PARTY MAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO THE CONFIDENTIAL INFORMATION.
7. Term and Termination. This Agreement shall have an initial term of one (1) year and may be renewed by the parties for additional one (1) year periods by written agreement notice to renew. This Agreement shall terminate upon the rejection or conclusion of the Transaction. In addition, either party may terminate this Agreement at any time, without cause, effective immediately upon written notice. The commitments made by each party pursuant to this Agreement shall survive any termination or expiration of this Agreement for a period of three (3) years following such termination or expiration.
8. Remedies. The parties agree that their respective obligations set forth in this Agreement are necessary and reasonable in order to protect the disclosing party and its business. The parties each expressly agree that due to the unique nature of the disclosing party’s Confidential Information, monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of its covenants and agreements set forth in this Agreement. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or of posting a bond.
9. Disputes. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Idaho, without giving effect to principles of conflicts of law. The prevailing party in any action sought to enforce or interpret this Agreement or any provision thereof shall be entitled to recover reasonable attorney’s fees and costs in conjunction with such legal proceeding.
10. General. The Transaction of the parties established by this Agreement is that of independent contractors, nothing shall be construed to allow either party to create or assume any financial or contractual obligation on behalf of the other party, and all financial obligations and taxes associated with a party’s business are the sole responsibility of such party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. This Agreement may not be assigned with the written consent of the other party; provided, however, that a party may assign this Agreement without consent in the event of a Transaction. Any notices hereunder shall be in writing (including electronic mail) and effective upon dispatch when sent by certified or registered mail, return receipt requested, confirmed email transmission, or by an internationally recognized overnight courier service to the parties’ respective addresses set forth on the signature page hereto. If any provision of this Agreement is deemed to be invalid, such provision shall be deemed modified to the extent necessary to make it valid, or if it cannot be so modified, then severed, and the remainder of the Agreement shall continue in full force and effect. This Agreement sets forth the entire agreement between the parties relating to the subject matter herein. No modification, amendment or waiver of to this Agreement will be effective unless in writing signed by both parties. This Agreement may be executed in counterparts, each of which shall be deemed an original and together constitute one instrument.