DSGSEMI is engaged in non-profit work. The Recipient is engaged in the form of Board and/or Committee Member. Information will be disclosed to Recipient to assist DSGSEMI in achieving its mission and vision for individuals with Down syndrome. The Owner has requested and the Recipient agrees that the Recipient will protect the confidential material and information which may be disclosed between the Owner and the Recipient. Therefore, the parties agree as follows:
I. CONFIDENTIAL INFORMATION. The term “Confidential Information” means any information or material which is proprietary to DSGSEMI , whether or not owned or developed by DSGSEMI , which is not generally known other than by DSGSEMI , and which Recipient may obtain through any direct or indirect contact with DSGSEMI .
A. Confidential Information includes without limitation:
a. Business records and plans
b. Financial statements
c. Customer/membership/donor lists and records
d. Trade secrets
e. Technical information
f. Pricing structure
i. Computer programs and listings
j. Source code and/or object code
k. Copyrights and other intellectual property
l. Other proprietary information
B. Confidential Information does not include:
a. Matters of public knowledge that result from disclosure by DSGSEMI
b. Information rightfully received by Recipient from a third party without a duty of confidentiality
c. Information independently developed by Recipient
d. Information disclosed by operation of law
e. Information disclosed by Recipient with the prior written consent of DSGSEMI
f. Any other information that both parties agree in writing is not confidential
II. PROTECTION OF CONFIDENTIAL INFORMATION. Recipient understands and acknowledges that the Confidential Information has been developed or obtained by DSGSEMI by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of DSGSEMI which provides DSGSEMI with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the disclosure of the Confidential Information, Recipient agrees to hold in confidence and to not disclose the Confidential Information to any person or entity without the prior written consent of DSGSEMI . In addition, Recipient agrees that:
A. No copying/modifying. Recipient will not copy or modify any Confidential Information without the prior written consent of DSGSEMI .
B. Application to Employees. Further, Recipient shall not disclose any Confidential Information to any employees of Recipient , except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of DSGSEMI .
C. Unauthorized Disclosure of Information. If it appears that Recipient has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, DSGSEMI shall be entitled to an injunction to restrain Recipient from disclosing, in whole or in part, the Confidential Information. DSGSEMI shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
III. BUSINESS ASSOCIATES AGREEMENT
(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;
(c) Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware
(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;
(e) Make available protected health information in a designated record set to the [Choose either “covered entity” or “individual or the individual’s designee”] as necessary to satisfy covered entity’s obligations under 45 CFR 164.524;
(f) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;
(h) To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and
(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
IV. RETURN OF CONFIDENTIAL INFORMATION. Upon the written request of DSGSEMI , Recipient shall return to DSGSEMI all written materials containing the Confidential Information. Recipient shall also deliver to DSGSEMI written statements signed by Recipient certifying that all materials have been returned within five (5) days of receipt of the request.
V. RELATIONSHIP OF PARTIES. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the Confidential Information. This Agreement does not create any agency, partnership, or joint venture.
VI. NO WARRANTY. Recipient acknowledges and agrees that the Confidential Information is provided on an AS IS basis. DSGSEMI makes no warranties, express or implied, with respect to the Confidential Information and hereby expressly disclaims any and all implied warranties or merchantability and fitness for a particular purpose. In no event shall DSGSEMI be liable for any direct, indirect, special, or consequential damages in connection with or arising out of the performance or use of any portion of the Confidential Information. DSGSEMI does not represent or warrant that any product or business plans disclosed to Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by Recipient in response to the disclosure of the Confidential Information shall be solely at the risk of Recipient .
VII. LIMITED LICENSE TO USE. Recipient shall not acquire any intellectual property rights under this Agreement except the limited right to use set out above. Recipient acknowledges that, as between DSGSEMI and Recipient , the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of DSGSEMI, even if suggestions, comments, and/or ideas made by Recipient are incorporated into the Confidential Information or related materials during the period of this Agreement.
VIII. GENERAL PROVISIONS. This Agreement sets forth the entire understanding of the parties regarding confidentiality. The obligations of confidentiality shall survive 12 month(s) from the date of disclosure of the Confidential Information. Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the State of Michigan. This Agreement shall not be assignable by either party, and neither party may delegate its duties under this Agreement, without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect after the effective date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered in the manner prescribed by law as of the date first written above.
By: Gary N. Koutsoubos