This Mutual Non-Disclosure Agreement (the "Agreement") is made effective as of ____________ (the "Effective Date indicated electronically below") by and between:
WellPrept, a Delaware corporation with a principal place of business at 24 Carriage Dr, Lexington, MA 02420 (hereinafter referred to as "WellPrept"),
and
_________ ("Name, as indicated electronically below"), with an address at ________________________ (hereinafter referred to as "Company, as indicated below").
WellPrept and Company may each be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, the Parties wish to explore a potential business relationship related to WellPrept's proprietary platform and services (the "Purpose");
WHEREAS, in connection with the Purpose, each Party may disclose to the other certain confidential and proprietary information;
WHEREAS, the Parties wish to protect such confidential and proprietary information from unauthorized use and disclosure;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. "Confidential Information" means any and all non-public, proprietary, or sensitive information disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether disclosed orally, in writing, by electronic transmission, by observation, or by any other means, and whether or not marked or otherwise designated as "Confidential" or "Proprietary," including but not limited to:
(a) Educational content, workflows, treatment protocols, and patient-facing materials;
(b) Software, architecture, algorithms, source code, object code, platforms, databases, or tools;
(c) Business strategies, business plans, financial data, operations details, pricing models, revenue models, and profit margins;
(d) Client and customer lists, usage data, analytics, internal documentation, and market research;
(e) Patents, patent applications, trade secrets, research and development information, inventions, know-how, formulas, compositions, manufacturing processes, designs, drawings, and specifications;
(f) Marketing plans, sales strategies, vendor relationships, and partnership opportunities; and
(g) All other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the circumstances of disclosure.
1.2. If Confidential Information is disclosed orally, the Disclosing Party shall identify such information as confidential at the time of disclosure and confirm its confidential nature in writing within thirty (30) days of such disclosure.
2.1. Confidential Information shall not include information that the Receiving Party can demonstrate by clear and convincing documentary evidence created contemporaneously with the relevant facts:
(a) Was lawfully in the Receiving Party's possession prior to disclosure by the Disclosing Party, without any obligation of confidentiality, and such prior possession can be documented by written records predating the disclosure;
(b) Is or becomes generally known to the public through no breach of this Agreement and no fault, action, inaction, or breach of confidentiality by the Receiving Party or any third party under an obligation of confidentiality;
(c) Is lawfully and independently obtained by the Receiving Party from a third party who (i) has the legal right to disclose such information to the Receiving Party, (ii) is not under any obligation of confidentiality to the Disclosing Party or any other party with respect to such information, and (iii) did not acquire the information directly or indirectly from the Disclosing Party;
(d) Is independently developed by employees or contractors of the Receiving Party who had no access to or knowledge of the Disclosing Party's Confidential Information, and such independent development can be documented by contemporaneous written records; or
(e) Is expressly released from confidential treatment by the Disclosing Party's specific prior written consent that explicitly identifies the information being released.
2.2. Each of the above exclusions shall be narrowly construed, and the burden of proving any exclusion rests solely with the Receiving Party claiming such exclusion. If only a portion of any Confidential Information falls within one of the exceptions above, only that portion shall be excluded from the obligations of this Agreement.
3.1. Each Receiving Party shall:
(a) Use the Confidential Information solely for the Purpose and for no other purpose whatsoever;
(b) Hold all Confidential Information in strict confidence and take all reasonable precautions to protect such Confidential Information (including, at a minimum, all precautions that the Receiving Party employs with respect to its own confidential materials, but in no case less than reasonable care);
(c) Not disclose any Confidential Information to any person or entity other than the Receiving Party's employees, directors, officers, attorneys, accountants, financial advisors, and contractors who (i) need to know such information for the Purpose, (ii) have been informed of the confidential nature of the information, and (iii) are bound by written confidentiality obligations no less restrictive than those set forth in this Agreement;
(d) Be responsible for any breach of this Agreement by its employees, directors, officers, attorneys, accountants, financial advisors, and contractors;
(e) Not copy, reproduce, summarize, or otherwise disclose the Confidential Information except as necessary to fulfill the Purpose;
(f) Not reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive the composition or underlying information, structure, or ideas of any Confidential Information, except as permitted by applicable law; and
(g) Promptly notify the Disclosing Party in writing of any actual or suspected unauthorized use or disclosure of the Disclosing Party's Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.
4.1. If the Receiving Party is required by law, regulation, court order, or subpoena to disclose any Confidential Information, the Receiving Party shall:
(a) Promptly notify the Disclosing Party in writing prior to such disclosure, if legally permissible, to allow the Disclosing Party to seek a protective order or other appropriate remedy;
(b) Cooperate with the Disclosing Party's efforts to secure confidential treatment of the Confidential Information;
(c) Disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose as advised by its legal counsel; and
(d) Continue to maintain the confidentiality of such Confidential Information for all other purposes under this Agreement.
5.1. All Confidential Information shall remain the exclusive property of the Disclosing Party.
5.2. Nothing in this Agreement shall be construed as granting the Receiving Party any rights, express or implied, by license, estoppel, or otherwise, to any Confidential Information, or to any invention, patent, copyright, trademark, trade secret, or other intellectual property rights now or hereafter owned or controlled by the Disclosing Party.
5.3. The Receiving Party shall not file any patent application containing or based on any Confidential Information of the Disclosing Party.
6.1. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO ITS ACCURACY OR COMPLETENESS.
6.2. Neither Party makes any representation or warranty concerning the Confidential Information or its use, accuracy, completeness, or performance.
7.1. Upon the earlier of (i) the completion or termination of the Purpose, (ii) the termination of this Agreement, or (iii) the written request of the Disclosing Party, the Receiving Party shall:
(a) Promptly return to the Disclosing Party all tangible items and embodiments containing or consisting of the Disclosing Party's Confidential Information and all copies thereof, or
(b) If instructed by the Disclosing Party, destroy all such materials and provide the Disclosing Party with written certification of such destruction signed by an officer of the Receiving Party within fifteen (15) days of such request.
7.2. Notwithstanding the foregoing, the Receiving Party may retain one (1) copy of the Confidential Information in the files of its legal department or outside counsel solely for archival purposes to ensure compliance with the terms of this Agreement and applicable law, provided that such retained information remains subject to the confidentiality obligations set forth herein.
8.1. This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of five (5) years, unless earlier terminated by mutual written agreement of the Parties or by either Party upon thirty (30) days' written notice to the other Party.
8.2. The obligations of confidentiality and non-use set forth in this Agreement shall survive the expiration or termination of this Agreement for a period of seven (7) years from the date of expiration or termination; provided, however, that Confidential Information that constitutes a trade secret under applicable law shall be maintained as confidential for as long as such information remains a trade secret under applicable law.
9.1. Each Party acknowledges that any breach of its obligations under this Agreement may cause irreparable harm to the other Party for which monetary damages would be inadequate.
9.2. In the event of any breach or threatened breach of this Agreement, the non-breaching Party shall be entitled to seek immediate injunctive relief (temporary, preliminary, and permanent) in addition to all other remedies available at law or in equity, without the necessity of posting a bond or other security.
9.3. The Receiving Party agrees to indemnify and hold harmless the Disclosing Party from and against any and all damages, liabilities, costs, expenses, and losses (including reasonable attorneys' fees and costs) arising out of or resulting from any unauthorized use or disclosure of the Disclosing Party's Confidential Information or other breach of this Agreement by the Receiving Party or its Representatives.
10.1. Nothing in this Agreement shall obligate either Party to proceed with any transaction, relationship, or agreement between them.
10.2. Each Party reserves the right to terminate discussions and negotiations with the other Party at any time, for any reason or no reason, without liability.
10.3. Any estimates, forecasts, or projections provided as part of the Confidential Information are not guarantees of future performance.
11.1. Neither Party shall issue any press release, make any public announcement, or otherwise disclose to any third party the existence or content of this Agreement or the discussions between the Parties without the prior written consent of the other Party.
12.1. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law provisions.
12.2. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts located in Middlesex County, Massachusetts for the resolution of any disputes arising out of or relating to this Agreement.
12.3. Each Party hereby waives all rights to trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement.
13.1. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written.
13.2. This Agreement may not be amended, modified, or supplemented except by a written instrument executed by both Parties.
13.3. Neither Party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party. Any attempted assignment in violation of this provision shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
13.4. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable law.
13.5. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
13.6. All notices required or permitted under this Agreement shall be in writing and shall be delivered personally, sent by certified mail (return receipt requested), or sent by reputable overnight courier service, to the addresses set forth in the preamble of this Agreement or to such other address as either Party may specify in writing. Notices shall be deemed effective upon receipt.
13.7. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Electronic signatures and signatures transmitted via PDF shall be deemed original signatures.
13.8. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The word "or" is not exclusive. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against either Party.
13.9. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the Parties. Neither Party has the authority to bind the other Party to any third party.
13.10. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.11. Each Party represents and warrants that it has full power and authority to enter into and perform this Agreement and that the person signing this Agreement on behalf of each Party has been properly authorized and empowered to enter into this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
