Reciprocal Confidentiality and Nondisclosure Agreement
This Reciprocal Confidentiality Agreement (the “Agreement”) is made and entered into as of the February 25, 2024 (the “Effective Date”), by and between Delve Health, Inc., a Minnesota corporation having its principal place of business at 8100 Wayzata Blvd, Golden Valley, MN 55426 USA (together with its direct and indirect wholly-owned subsidiaries, “Delve Health”) and , a having its principal place of business at (the “Company”). In consideration of the parties’ intended reciprocal disclosure of Confidential Information, in connection with the parties’ discussions, as further defined below, Delve Health and the Company agree to be bound by all of the following terms and conditions.
1.1 “Purpose” means the parties’ discussions wherein Confidential Information is exchanged toenable the parties to evaluate the Company’s needs for Delve Health’ products and related services and Delve Health’ capabilities in providing such products and related services.
1.2 “Discloser” means the party disclosing Confidential Information to the other party.
1.3 “Recipient” means the party receiving Confidential Information from the other party.
1.4 “Representative” means the employees, officers, directors, agents, affiliates, consultants, subcontractors or independent contractors of a party.
1.5 “Confidential Information” means any and all information and material which is confidential or proprietary to or is a trade secret of Discloser, or information the Discloser provides regarding third parties, whether or not marked or otherwise identified as “confidential” or “proprietary”, and which is disclosed to or obtained by Recipient or its Representatives in connection with this Agreement, whether in written, oral, magnetic, optical or other form. However, all the Confidential Information disclosed in an unwritten or intangible form (oral or visual or other forms) and considered by the disclosing party to be confidential must be identified at the time of disclosure as confidential and reduced to writing (dated and marked “confidential”) within thirty (30) days of the initial disclosure in order to be treated as confidential and to be subject to this Agreement. Confidential Information does not include any information which: (a) was in the lawful and unrestricted possession of Recipient prior to its disclosure by Discloser, and was not acquired directly or indirectly from the Discloser; (b) is generally available to the public prior to its disclosure under this Agreement, or becomes generally available to the public through no fault of Recipient or its Representatives after receiving it; (c) has been received lawfully and on a non-confidential basis, by Recipient from a third party who did not obtain it directly or indirectly from Discloser; or (d) is shown by contemporaneous written records and other acceptable evidence to have been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
2.1 Recipient shall hold the Confidential Information in complete confidence and shall not, without the express prior written consent of Discloser, disclose, produce, publish, permit access to, or reveal the Confidential Information disclosed hereunder to any third party other than Recipient’s Representatives who have a need to know such information for the Purpose and who are bound by obligations of confidentiality and non-use that are at least as restrictive as those set forth in this Agreement. Recipient shall use at least the same degree of care (but not less than a reasonable degree of care) to avoid unauthorized disclosure or use of the Confidential Information as Recipient employs with respect to its own information of like importance.
2.2 Recipient shall not alter, modify, dissemble, reverse engineer, or decompile any materials containing or constituting Confidential Information without the express prior written consent of Discloser. Upon written request by the Discloser, Recipient shall: (i) cease using the Confidential Information, (ii) exercise all reasonable efforts to return to the Discloser or destroy the Confidential Information and all copies, notes or extracts thereof to the Discloser; and (iii) upon request of the Discloser, confirm in writing that the Recipient has complied with the obligations set forth in this paragraph.
2.3 Disclosure of Confidential Information is not prohibited under this Agreement if such disclosure is pursuant to a valid order issued by a court or government agency, provided that the Recipient provides the Discloser: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or obtain a protective order.
2.4 Recipient shall use the Confidential Information solely for the Purpose. Recipient shall be responsible for any noncompliance with the terms of this Agreement by any of its Representatives.
Recipient understands and agrees that all such Confidential Information shall remain the property of Discloser, and neither this Agreement, nor the disclosure or physical transfer of materials and information (including Confidential Information) under this Agreement, grants or should be construed as granting any rights or licenses, express or implied, to the Recipient, including (a) a license under any patent, patent application, copyright or other intellectual property right, or (b) any right of ownership in such materials or information.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS. THE PARTIES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION. Nothing in this Agreement obligates either party to disclose any specific information to the other party, or to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement.
Each party understands and acknowledges that the Confidential Information has been developed or obtained by Discloser by the investment of significant time, effort and expense and provides Discloser with a significant competitive advantage in its business. If Recipient fails to comply with any obligations hereunder, Discloser may suffer immediate, irreparable harm for which monetary damages would provide inadequate compensation. Accordingly, the parties hereto agree that the Discloser may be entitled, in addition to any other remedies available to it, at law or in equity, to seek injunctive relief and to specifically enforce the terms of this Agreement, without proof of actual damages.
This Agreement will automatically expire two (2) years from the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party, provided, however, that this Agreement may be terminated immediately and the return of all Confidential Information may be demanded by the Discloser upon written notice in the event that Recipient breaches any material term of this Agreement. The Recipient’s obligations hereunder shall continue in full force and effect for three (3) years from the date of disclosure of any such Confidential Information. Thereafter, the parties’ obligations hereunder shall survive and continue in effect with respect to any Confidential Information that is a trade secret under applicable law.
7.1 Governing Law, Jurisdiction, Arbitration and Venue. The parties agree that this Agreement will be governed by and construed in accordance with the laws of the State of Minnesota without reference to its choice of law rules and as if wholly performed within the State of Minnesota. The parties further agree that any litigation regarding the interpretation, breach or enforcement of this Agreement will be filed in and heard only by the state or federal courts with exclusive jurisdiction to hear such disputes in Minnesota, and the parties hereby expressly submit to the exclusive jurisdiction of such courts. Any dispute, controversy or claim arising out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the Rules of Singapore International Arbitration Centre (SIAC) in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The seat, or legal place, of arbitration shall be Singapore. The language to be used in the arbitral proceedings shall be English.
7.2 Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings with respect to such subject matter. This Agreement may only be amended or modified by a writing signed in advance by the Company and Delve Health.
7.3 Severability. The parties agree that this Agreement is severable and that in the event any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions will not be affected or impaired. Additionally, the parties expressly grant to any court or other entity interpreting this Agreement the power and authority to modify the terms of this Agreement to the extent necessary to allow enforcement of this Agreement to the fullest extent allowed by law.
7.4 Successors and Assigns. This Agreement will bind and inure to the benefit of the parties and their respective successors and assigns. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may without the other party’s consent assign this Agreement to a successor of the assigning party’s business by reason of merger, sale of all or substantially all of its assets or other form of acquisition. Any purported assignment without the required consent will be void.
7.5 Authority. Each of the persons executing this Agreement represents that he/she is authorized to execute on behalf of, and to therefore bind, the entity, if any, indicated below.
7.6 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same document, binding on all parties notwithstanding that each of the parties may have signed different counterparts. The exchange of a fully executed Agreement, in counterparts or otherwise, by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.
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Signed by Wessam Sonbol
Signed On: September 5, 2023
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Document Name: Reciprocal Confidentiality and Nondisclosure Agreement
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