Confidentiality Agreement Template

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CONFIDENTIALITY AGREEMENT
(including exclusivity)
THIS AGREEMENT, dated _______________________, 20___, is entered into by and
between ______________________________, a __________ non-profit public benefit corporation
(“System”), and ______________________________, a __________ nonprofit public benefit
corporation (“Hospital”).
WHEREAS, System and Hospital desire to explore the possibilities for potential
contractual and organizational relationships and to engage in a dialogue and strategic plan process
regarding potential collaborative relationships between them.
WHEREAS, in connection with exploring possible arrangements, each party will share
with the other certain confidential information relating to its existing operations; and
WHEREAS, each party desires to protect the confidentiality of these discussions and of the
proprietary non-public information disclosed by each party to the other.
NOW, THEREFORE, in consideration of the foregoing and the agreements contained
herein, and as a material inducement to each party to engage in these discussions and to deliver
requested confidential information, the parties agree as follows:
1.
Period of Discussions. In consideration of the time, effort and expense to be
incurred by System in the course of these discussions, Hospital agrees to work exclusively with
System for a period of __________________(____) days commencing on the day after the date of
this Agreement regarding potential arrangements between System and Hospital. Accordingly,
during this ____-day period of exclusive discussions, Hospital will not offer, solicit offers, or enter
into discussions or negotiations with any party other than System regarding ownership,
management, leasing and/or operation of Hospital or substantial assets or business of Hospital.
The parties each authorize their respective representatives to participate in these discussions and in
the exchange of information pursuant to this Agreement. Each party will require its representatives
to observe and comply with the terms, covenants and conditions of this Agreement.
2.
Exchange of Information; Use. To the extent permitted under the applicable
federal and state anti-trust laws, each party (a “Disclosing Party”) shall furnish to the other (a
“Receiving Party”) certain organizational, operational, financial, utilization, legal, real estate,
relationship and other information which the parties mutually determine is relevant to these
discussions. At the conclusion of the examination of the furnished information, or sooner if the
Disclosing Party so requests, all Disclosing Party information and all copies thereof shall be
promptly returned or destroyed by the Receiving Party. Disclosures to legal counsel, accountants
and/or consultants retained by a Receiving Party to evaluate: (a) the merits of the Receiving Party’s
participation in relationships under discussion with the Disclosing Party; or (b) information
received from the Disclosing Party or its representatives, will not be considered a breach of any
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CONFIDENTIALITY AGREEMENT
(including exclusivity)
THIS AGREEMENT, dated _______________________, 20___, is entered into by and
between ______________________________, a __________ non-profit public benefit corporation
(“System”), and ______________________________, a __________ nonprofit public benefit
corporation (“Hospital”).
WHEREAS, System and Hospital desire to explore the possibilities for potential
contractual and organizational relationships and to engage in a dialogue and strategic plan process
regarding potential collaborative relationships between them.
WHEREAS, in connection with exploring possible arrangements, each party will share
with the other certain confidential information relating to its existing operations; and
WHEREAS, each party desires to protect the confidentiality of these discussions and of the
proprietary non-public information disclosed by each party to the other.
NOW, THEREFORE, in consideration of the foregoing and the agreements contained
herein, and as a material inducement to each party to engage in these discussions and to deliver
requested confidential information, the parties agree as follows:
1.
Period of Discussions. In consideration of the time, effort and expense to be
incurred by System in the course of these discussions, Hospital agrees to work exclusively with
System for a period of __________________(____) days commencing on the day after the date of
this Agreement regarding potential arrangements between System and Hospital. Accordingly,
during this ____-day period of exclusive discussions, Hospital will not offer, solicit offers, or enter
into discussions or negotiations with any party other than System regarding ownership,
management, leasing and/or operation of Hospital or substantial assets or business of Hospital.
The parties each authorize their respective representatives to participate in these discussions and in
the exchange of information pursuant to this Agreement. Each party will require its representatives
to observe and comply with the terms, covenants and conditions of this Agreement.
2.
Exchange of Information; Use. To the extent permitted under the applicable
federal and state anti-trust laws, each party (a “Disclosing Party”) shall furnish to the other (a
“Receiving Party”) certain organizational, operational, financial, utilization, legal, real estate,
relationship and other information which the parties mutually determine is relevant to these
discussions. At the conclusion of the examination of the furnished information, or sooner if the
Disclosing Party so requests, all Disclosing Party information and all copies thereof shall be
promptly returned or destroyed by the Receiving Party. Disclosures to legal counsel, accountants
and/or consultants retained by a Receiving Party to evaluate: (a) the merits of the Receiving Party’s
participation in relationships under discussion with the Disclosing Party; or (b) information
received from the Disclosing Party or its representatives, will not be considered a breach of any
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provision of this Agreement, so long as the legal counsel, accountants and/or consultants agree to
comply with the confidentiality restrictions set forth herein. The Receiving Party agrees to use the
information provided by the Disclosing Party solely in connection with evaluation of the
relationships under discussion and to engage in a joint planning process toward determining
whether to proceed with any relationship with the Disclosing Party.
3.
Confidentiality. The Receiving Party agrees to not disclose in any manner, except
as required by law, to any outside party (other than its attorneys, accountants and/or consultants)
any information provided by the Disclosing Party or its representatives either orally or in writing
(the "Information"). This duty of confidentiality shall not apply to Information which is
ascertainable from public or published sources or which was known prior to disclosure or which is
obtained from other persons not known to the Receiving Party to be bound by an obligation of
confidentiality.
The Information will be utilized solely for the purposes set forth in this
Agreement. This duty of confidentiality shall survive expiration of the period of discussions
established hereunder and continue for a period of five (5) years thereafter. In the event a
Receiving Party is required by deposition, subpoena, or similar legal process to disclose any
Information exchanged pursuant to this Agreement, it shall immediately notify the Disclosing
Party so that appropriate action may be taken to attempt to prevent disclosure of the Information.
In the event that a protective order or other remedy is not obtained, or the Disclosing Party waives
compliance with the provisions of this Agreement, the Receiving Party may furnish that portion of
the Information which it is advised by counsel is legally required.
4.
Ownership. Each party hereby acknowledges that all of the Information disclosed
to the other party or learned from either party is and shall continue to be the exclusive proprietary
property of the Disclosing Party, whether or not such Information was intentionally disclosed to or
entrusted to the custody of the Receiving Party. Each Receiving Party further hereby acknowledges
that all Disclosing Party Information to which it shall hereafter have access or which it shall
hereafter learn, shall have been disclosed to it solely by virtue of the discussions contemplated by
this Agreement.
5.
Disclosure. It is agreed that confidentiality is both appropriate and necessary to
achieve the intent of the parties. If it is determined that the existence of this Agreement, its
contents, and/or the content of the discussions need to be made public, a short statement or outline
will be agreed upon by the parties. All inquiries regarding this Agreement and the discussions will
be referred to _____________________ on behalf of Hospital and to _____________________ on
behalf of System.
6.
No Waiver; Injunctive Relief; Governing Law. It is understood and agreed that
no failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power and privilege hereunder. It is further understood and
agreed that money damages would not be a sufficient remedy for any breach of this Agreement by
a party or by its representatives or employees and that each party shall be entitled to specific
performance and injunctive relief as remedies for any breach by the other party. Such remedies
shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in
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addition to all other remedies available at law or equity. This Agreement shall be governed and
construed in accordance with the laws of the State of ______________applicable to agreements
entered into and to be performed within such state.
7.
Costs and Expenses. Each of the parties will be responsible for and bear all of
its own costs and expenses (including any broker’s or finder’s fees and the expenses of its
representatives) incurred at any time in connection with this Agreement or pursuing or
consummating any relationship or transaction arising from the discussions engaged in pursuant
to this Agreement.
8.
No Further Obligation. This Agreement does not obligate any of the parties to
enter into any further agreement or to enter into or consummate any transaction or relationship.
9.
Entire Agreement; Amendment; Assignment. This Agreement represents the
entire understanding and agreement of the parties and supersedes all prior communications,
agreements, and understandings relating to the subject matter hereof. The provisions of this
Agreement may not be modified, amended, or waived, except by a written instrument duly
executed by the party against whom enforcement of such modification, amendment, or waiver is
sought. This Agreement may not be assigned by any party without the prior written consent of
the other party.
10.
Authority.
Each party warrants that it has the authority to enter into this
Agreement for itself and its corporate affiliates and subsidiaries.
11.
Severability.
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by applicable law.
12.
Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement, and all of which, when
taken together, shall be deemed to constitute one and the same agreement.
[The rest of this page has been intentionally left blank. Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
“Hospital”:
“System”:
[NAME OF HOSPITAL]
[NAME OF SYSTEM]
By:________________________________
By:________________________________
________________, President and CEO
________________, President and CEO
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