NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This PlanSurity Non-Disclosure and Confidentiality Agreement (this “NDA”) is made Monday, January 28, 2019 by and among PlanSurity Dental Designs LLC and PlanSurity Directories, LLC, each a Delaware limited liability company (together, “PlanSurity”), on the one hand, and you, as prospective customer or other business associate of one or more of the entities comprising PlanSurity (“You”), on the other, in order to ensure the protection and preservation of Confidential Information (as defined below). PlanSurity and You may be collectively referred to herein as the “Parties.”RECITALS
WHEREAS, PlanSurity desires to share or cause to be shared Confidential Information with You in connection with the assessment and evaluation by You of a future business transaction or series of transactions between one or more of the entities comprising PlanSurity or their affiliates and You or your affiliates (a “Transaction”); and WHEREAS, PlanSurity is willing to share or cause to be shared Confidential Information subject to the execution, delivery and performance by You of this NDA. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:- All information furnished, or made available to You, your affiliates or representatives by PlanSurity, its affiliates or representatives, whether before or after the date hereof, whether in oral, electronic, paper or any other form, including via www.plansurity.com or any portal therein (the “PlanSurity Website”), whether relating to one or more of the entities comprising PlanSurity, their affiliates or any other person or matter, is referred to in this NDA as “Confidential Information.” By way of example, for purposes of this NDA, Confidential Information includes, but is not limited to, dental plan design information, formulas, algorithms or projections, dental directory information, including the identities, number and location of listed providers therein and subscribers thereto, information that may be deemed to be within the attorney-client privilege or relating to regulatory compliance, non-public financial information, business and marketing history, methodologies, concepts, plans, strategies, projections and policies, information concerning current or future products, services, costs, markets, pricing and rates, sales and profit data and forecasts, current and potential client and customer lists, research projects, market and consumer insights and research, intellectual property, works in process, unpublished website design, artwork and content, information on proposed domain names, trademarks, service marks, designs, trade dress, and logos, software and software tools, know-how, technical data, processes and training materials, any information with respect to past, present or future business partners, suppliers, affiliates, employees, independent contractors, subcontractors, brokers, agents, vendors or distributors, information on actual and potential capitalization and financing sources and methods, information used in business that is sufficiently valuable and secret and that could afford a person with actual or potential economic advantage, trade secrets and proprietary information, governing and organizational documents or information, all analyses, compilations, data, studies, notes, translations, memoranda, and other documents prepared by a person or on its behalf containing or based in whole or in part on any such information, as well as confidential work products prepared in connection with the review of any of the foregoing, information that is subject to trade secret or similar regulation under any state or federal statute or regulation, and information labeled “confidential”, “proprietary”, or otherwise marked with a restriction on disclosure when delivered, or made accessible via the use of passcodes or upon registration.
- Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by You, your affiliates or your representatives in violation of this NDA, (ii) was or becomes available to You, your affiliates or your representatives on a non-confidential basis from a person who is not otherwise, to your knowledge after due inquiry, under an obligation not to disclose the information at the time of the disclosure, (iii) as evidenced by contemporary documentation, was known to You, your affiliates or your representatives prior to its receipt, or (iv) is developed by You, your affiliates or your representatives independently of any disclosures made by PlanSurity, its affiliates or its representatives.
- You will use, and will cause your affiliates and representatives to use, Confidential Information for the sole purpose of engaging in exploratory discussions with PlanSurity regarding a Transaction and, except in connection with such permitted purpose, You will not disclose or make any Confidential Information available (and You will cause your affiliates and representatives not to disclose or make Confidential Information available) to any person, except as indicated in Section 6 below, without the prior written consent of PlanSurity, which may be in the form of electronic or hard copy communication. Anyone who discloses Confidential Information with PlanSurity’s consent shall be legally obligated to comply with the terms of this NDA to the same extent as if they were You. You shall be responsible for any breach of the terms of this NDA by any person to whom such disclosure is made.
- Confidential Information supplied shall not be reproduced in any form except for internal use or with the prior written authorization of PlanSurity. Each such reproduction shall include any ownership and confidentiality legends included in the original.
- If Confidential Information is required to be disclosed by You by order of a court of competent jurisdiction, administrative agency or governmental body, by any law, rule, regulation, subpoena, or any other administrative or legal process, by applicable regulatory or professional standard or in connection with any judicial or other proceeding involving either Party, then You shall notify PlanSurity which, at its option, may file a motion for protective order or other administrative or legal vehicle for the continued protection of such Confidential Information. If such protective order or other remedy is not obtained, You agree to disclose only that portion of the information or facts regarding the applicable matter that is legally required to be disclosed and to take all reasonable steps to preserve the confidentiality of such Confidential Information and the matters described herein. In addition, You will not oppose any action (and will, if and to the extent requested by PlanSurity, reasonably cooperate with, assist and join with PlanSurity, at PlanSurity’s expense, in any reasonable action) by PlanSurity to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information and the matters described herein.
- You shall use all reasonable efforts to protect all Confidential Information with the same degree of care used to protect your own confidential information from unauthorized use or disclosure by your members, managers, agents, officers, directors, employees, or representatives. Confidential Information may be used or disclosed to any such of your members, managers, agents, officers, directors, employees, or representatives as may be reasonably required to evaluate a Transaction, provided that they have agreed to abide by the terms of this NDA.
- To the extent any Confidential Information includes materials subject to the attorney-client, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileges”), it is PlanSurity’s desire, intention, and mutual understanding that, to the extent permitted by law, the sharing of such information be (and is) not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under Privileges.
- Nothing herein is intended to or shall be construed as conveying any rights or interest in the Confidential Information to You, your affiliates or representatives. All Confidential Information, unless otherwise specified in writing, shall remain the property of PlanSurity. Upon request by PlanSurity or the termination of this NDA, You shall return to PlanSurity all Confidential Information pursuant to this NDA, and shall destroy all analyses, digests, notes, memorandum, or other writings prepared by or on your behalf which is based thereon, such destruction to be certified in writing by You. Notwithstanding the obligation to return or destroy Confidential Information, You may keep copies for archival purposes to the extent reasonably necessary. The provisions of this NDA regarding you obligations to maintain the confidence of Confidential Information shall survive the termination of this Agreement and will apply to any such back-up and archival copies retained by the You.
- If any provision of this NDA is held to be unenforceable, that provision shall be severed and the remaining provisions shall continue to be binding and enforceable. This NDA shall be governed and construed under the laws of the State of Delaware, without giving effect to any choice of law provisions, and any dispute arising out of this NDA shall be brought in a state or federal court having jurisdiction and sitting in New Castle County, State of Delaware or Cook County, State of Illinois. You consent to the personal jurisdiction of such courts for the purpose of adjudicating any disputes under or relating to this NDA.
- You are in compliance with your responsibilities and obligations under the Gramm-Leach-Bliley Act of 1999 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and Privacy Rules (45 CFR, Parts 160-164) and the applicable federal and state laws implementing them. You will only use non-public personal information as permitted by law.
- NEITHER PLANSURITY, ITS AFFILIATES NOR THEIR REPRESENTATIVES MAKES ANY REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION (WHETHER WRITTEN OR ORAL) TRANSMITTED IN THE COURSE OF THE EVALUATION OF THE TRANSACTION, INCLUDING CONFIDENTIAL INFORMATION, AND PLANSURITY, ITS AFFILIATES AND THEIR REPRESENTATIVES SPECIFICALLY DISCLAIM ALL LIABILITY WITH RESPECT THERETO. YOU SHOULD CONDUCT YOUR OWN INDEPENDENT ANALYSIS OF ANY INFORMATION PROVIDED TO YOU, YOUR AFFILIATES OR YOUR REPRESENTATIVES IN CONNECTION WITH YOUR EVALUATION OF A TRANSACTION.
- If so requested by PlanSurity, all Confidential Information shall be returned to PlanSurity, or destroyed as provided in the notice given by PlanSurity. If Confidential Information is requested to be destroyed, You shall provide an appropriate verification of such destruction.
- You hereby indemnify PlanSurity, its affiliates and representatives for any damages, losses or expenses incurred by any of them as a result of your breach of your obligations under this NDA. You acknowledge that any breach of this NDA could cause irreparable harm, and that this NDA shall be enforceable by specific performance, including temporary restraining orders and preliminary and permanent injunctions, in addition to other remedies available at law or in equity. In any action to enforce any right under this NDA, the prevailing Party shall be entitled to an award of all its costs incurred (including reasonable attorney’s fees).
- You agree not to disclose to any person, other than those persons referred to in Section 3 and 6 with a need to know and in compliance with those sections: (a) the fact that discussions or negotiations are taking place concerning a Transaction between the Parties, (b) that You have requested or received Confidential Information, or (c) any of the terms, conditions or other facts with respect to any such Transaction, including the status thereof.
- Any notices required by this NDA shall be given in hand, or electronically delivered to the email address provided below with proof of delivery:
If to PlanSurity:
PlanSurity Dental Designs, LLC PlanSurity Directories, LLC
Attn: Qadeer Ahmed Chief Executive Officer
E-mail: qadeer.ahmed@equalizerproservices.com
With a copy to: Duggan Bertsch, LLC
303 West Madison Street, Suite 1000
Chicago, IL 60606
Attn: Gregory L. Bertsch E-mail: gbertsch@dugganbetsch.com
If to You: At the email address provided to PlanSurity via the PlanSurity Website on file. - There are no understandings, agreements, or representations, expressed or implied, not specified herein. The recitals to this NDA are hereby incorporated by reference to this NDA.
- No provision of this NDA may be waived, or amended except by a writing executed by PlanSurity. You shall not have the right to assign this NDA without PlanSurity’s prior written consent. PlanSurity shall have the right, without the obligation to obtain your consent, to assign this NDA or all or any part of its rights or obligations hereunder to any one of its affiliates, or to the purchaser of all or substantially all of its assets or capital stock, or to an entity into which it is merged. All obligations contained in this NDA shall extend to and be binding upon the Parties to this NDA and their respective successors and permitted assigns.