NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
DDR Dental (“we” or “our”) understand that the undersigned applicant (“you” or “your”) is seeking to potentially purchase a dental practice from one of the dentists that have listed their dental practice with, and is represented by, DDR Dental (the “Client”) (all together the “Parties”).
By your completion of this form and your electronic signature below, you are representing and agree that the information you are providing is true and correct and that you wish to be considered as a candidate in a practice sale transaction. You further agree that the information that we may provide to you concerning our methods and concerning our Clients is confidential and you further agree as follows:
- In connection with your evaluation as a potential Buyer of our Client’s dental practice (the “Purpose”), we (and our Client) may disclose to you certain confidential information concerning our Client, our Client’s dental practice or DDR Dental appraisal methods or reports (together the “Confidential Information”). The Confidential Information (whether in paper or electronic form), will include specifically but not limited to our Client’s name, the practice location, financial information, patient record information, financial forecasts, fee schedules, tax returns, payroll information, bank statements, collection reports, lease agreements, associate agreements, practice sale agreements, and the practice appraisal and practice appraisal methods (in draft or final form).
- You agree that you have a duty to protect that Confidential Information whether it is: (a) clearly marked as “confidential” or a similar designation; (b) identified as confidential before, during, or promptly after a communication; or (c) if it is disclosed in a manner in which the Recipient should reasonably have known under the circumstances that it should be treated as Confidential Information.
- You agree that you will keep all Confidential Information strictly confidential, and use the Confidential Information only for the Purpose stated herein. You agree to use the same degree of care as you would use with respect to your own information to protect against any violation of this Agreement or communication of Confidential Information to any unauthorized third parties. You agree that the Confidential Information may only be disclosed to your agents (such as your attorney, CPA or practice broker) who then need to know the Confidential Information for the exclusive purpose of rendering advice to you concerning the Purpose (i.e. your purchase of our Client’s Practice by you). You agree to assure that before your disclosure to them, that your agents are bound by the terms and conditions of this Confidentiality and Non-Disclosure Agreement.
- This Agreement shall remain in effect for two (2) years after the Effective Date. Provided further that the obligations of confidentiality contained in this Agreement shall survive termination and will remain in effect for a period of five (5) years from date of termination of this Agreement. This Agreement may be terminated by either Party without assigning any reason thereof by giving to the other Party no less than three (3) days prior written notice.
- Upon termination or upon the written request of a Party, you agree that you will promptly return all Confidential Information in their possession belonging to the Disclosing Party without retaining any copies or parts thereof in any format and destroy any and all electronic versions of the Confidential Information. The Receiving Party shall certify in writing that they have complied with the provisions of this clause.
- Nothing in this Agreement is intended to grant any rights under any patent, copyright, trademark, trade secret or other intellectual property right of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information other than the limited right to review such Confidential Information in connection with the Purpose. This Agreement is neither a joint venture nor other such business arrangement.
- You understand and acknowledge that neither DDR Dental nor the Client, nor its representatives, officers, directors, employees, agents or controlling persons makes any express or implied representation or warranty as to the completeness or accuracy of the Confidential Information. You shall not be entitled to rely on the completeness of any Confidential Information but may rely solely on representations regarding such completeness made in any definitive agreement relating to the Purpose.
- Each party agrees that its obligations provided in this Agreement are necessary and reasonable in order to protect the Disclosing Party. Each party expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of its covenants set forth in this Agreement. Accordingly, the parties agree and acknowledge that any such threatened or actual breach will cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available in law, equity or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against any threatened or actual breach of this Agreement without the necessity of a bond or proving actual damages.
- This Agreement shall be construed under the laws of the State of Texas (without giving effect to any rules or principals regarding conflict of laws). All disputes arising out or in connection with this Agreement shall be finally settled under the Rules of Arbitration (with the American Arbitration Association), by a single arbitrator appointed in accordance with these Rules, with the arbitration held in the jurisdiction of the defendant in that arbitration proceeding.
- This Agreement supersedes all prior understandings between the parties regarding Confidential Information and the Purpose. The rights and obligations imposed concerning confidentiality, governing law and remedies, shall survive the termination of this Agreement. No modification of this Agreement or waiver of its terms and conditions shall be binding upon either party unless approved in writing by each such party. This Agreement shall be binding upon and for the benefit of the undersigned Parties, their successors and assigns, provided that Confidential Information may not be assigned without the prior written consent of the disclosing Party. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. A facsimile or electronic signature is binding upon the parties as an original.