WF348BA - WMCHealth - Dental and Vision Plan RFP - Attachment H - Confidentiality Agreement (NDA) - Fillable.docx

Attachment H

CONFIDENTIALITY AGREEMENT

CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into by and between Click or tap here to enter text., with principal offices located at Click or tap here to enter text. (“Vendor”), and Westchester Medical Center, having offices at 100 Woods Road, Valhalla, NY 10595 (“WMC”). Vendor and WMC are each referred to herein as a “Party” and collectively as the “Parties.”

W I T N E S S E T H:

WHEREAS, Vendor and WMC have commenced discussions regarding a possible business relationship between them (in any instance, a “Relationship”); and

WHEREAS, this discussion period will commence on the date upon which this Agreement has been signed by each Party and shall extend for a period of six (6) months from such date, and thereafter, the period may be extended by mutual written agreement of the Parties (in any instance, the “Discussion Period”). At the end of the Discussion Period, if the Parties have not entered into a permanent relationship, each Party shall either return or destroy any information they have received from the other to the extent such information is deemed confidential hereunder.

WHEREAS, in order to facilitate meaningful discussions regarding a potential Relationship, each Party has in the past provided or may in the future provide to the other certain confidential information relating to such Party in connection with the Relationship including without limitation its facilities, operating methods, operations, trade secrets, intellectual property, personnel, business plans, and finances (in each case, whether such information is provided in oral or printed form or stored in digital or analog form, whether on electronic or magnetic media, or pictures thereof stored on film, “Evaluation Material”); and

WHEREAS, the disclosure of Evaluation Material to third parties could result in substantial loss or damage to the Party to whom such Evaluation Material relates, and accordingly, each Party desires to ensure the confidentiality of the Evaluation Material;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained in this Agreement, the Parties hereby agree as follows:

1. All Evaluation Material previously or in the future furnished by a Party (the “Producing Party”) to the other Party (the “Receiving Party”), as well as the existence of the discussions between the Parties, shall be deemed confidential and shall be kept in strict confidence under appropriate safeguards. Notwithstanding the immediately preceding sentence, the term Evaluation Material shall not include or apply to any information that: (a) was lawfully in the Receiving Party’s possession prior to any disclosure by the Producing Party, provided that the source of such information was not prohibited from disclosing the information to the Receiving Party or its Representatives (as hereinafter defined) by a contractual, legal, fiduciary or other obligation known to the Receiving Party; or (b) is generally available to the public or within the industry other than as a result of disclosure by the Receiving Party, or its employees, agents, Representatives or others acting on its behalf.

2. Without the Producing Party’s prior written consent, the Receiving Party shall not, directly or indirectly, unless required by law: (a) disclose, reveal or provide copies of any Evaluation Material to any person, firm or entity except to a group limited to such Party’s directors, officers, employees, attorneys, contactors, and professional advisors who are actively and directly participating in the evaluation of a potential Relationship (collectively, “Representatives”), each of whom shall be informed of the confidential nature of the Evaluation Material, be provided with a copy of this Agreement, and agree to observe the terms and conditions set forth herein as if specifically named a party hereto; (b) use the Evaluation Material for any purpose other than in connection with the evaluation and/or consummation of a potential Relationship (and, without limitation of the foregoing, it is expressly acknowledged that no license is hereby granted in or under any trade secrets or intellectual property of either Party); or (c) disclose to any person or entity (other than Representatives) the terms, conditions or other facts with respect to any Relationship (including the existence and status thereof) or that Evaluation Material has been made available. In any event, each Party shall be responsible for any disclosure by its Representatives (other than pursuant to the terms and subject to the conditions of this Agreement) of the Evaluation Material or the existence, content or status of negotiations relating to a Relationship, and will take such action as is reasonably necessary to prevent any unauthorized disclosure thereof by any of its Representatives. All confidentiality requirements set forth in this Agreement shall apply during any Discussion Period and thereafter, and shall therefore survive termination or expiration of this Agreement.

3. To the extent the Evaluation Material includes Protected Health Information (“PHI”), the Parties shall comply in all respects with the provisions of the Health Insurance Portability and Accountability Act of 1996 “HIPAA” and all regulations promulgated thereunder. The Parties further agree to comply with the Standards for Privacy of Individually Identifiable Health Information, hereinafter “Privacy Regulations”, including the “Business Associate” provisions stated therein. Vendor shall maintain all patient-related information to which it has access in performing hereunder, including but not limited to medical records (collectively, “Confidential Patient Information”), in the strictest confidence in accordance with all applicable laws and regulations. Without limiting the foregoing, Vendor represents that its personnel have been trained in and will comply with the confidentiality and disclosure requirements set forth in Title 10 of N.Y.C.R.R., including those concerning HIV/AIDS related information; as well as HIPAA, including compliance with the requirements set forth in WMC’s Notice of Privacy Practices.

4. If a Party or anyone to whom it discloses Evaluation Material, the Agreement or the existence, content or status of negotiations relating to a Relationship, becomes legally compelled to disclose such materials or information, such Party shall provide the other Party with prompt notice so that such other Party, at its option and cost, may seek a protective order or other appropriate equitable remedy.

5. Each Party hereby acknowledges that the Producing Party is and shall be the sole owner of the Evaluation Material and that the Evaluation Material constitutes valuable property of the Producing Party. Upon written notice from the Producing Party: (a) the Receiving Party shall destroy or deliver promptly to the Producing Party, in whatever form, all of the Producing Party’s Evaluation Material and all other materials containing or reflecting any information contained in such Evaluation Material without retaining any copies, summaries, analyses or extracts thereof; including (b) all documents, memoranda, analyses, compilations, studies, notes and other writings prepared by the Receiving Party based on or containing any information contained in the Producing Party’s Evaluation Material. If requested, such destruction shall be certified in writing to the Producing Party by an authorized officer supervising such destruction.

6. Each Party acknowledges and agrees that in the event of any breach of this Agreement by it or its Representatives, and without prejudice to any other rights and remedies otherwise available to the other Party (including, without limitation, the right to recover any lost profits or other damages arising from any such breach), the other Party shall be entitled to: (a) equitable relief by way of injunction; and (b) compel specific performance without the need to prove actual damages. No failure or delay by a Party 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 hereunder.

7. Each Party understands and agrees that this Agreement does not oblige the Parties to agree to terms for any specific relationship, and that no contract or agreement shall be deemed to exist with respect to any Relationship unless and until a definitive agreement respecting such Relationship has been executed and delivered, and each Party hereby waives any claims (including, without limitation, breach of contract) in connection with a possible Relationship with the other Party unless and until the Parties shall have entered into a definitive agreement setting forth the terms of the Relationship. Each Party also agrees that unless and until any such definitive agreement has been executed and delivered, no Party has any legal obligation of any kind whatsoever with respect to any such Relationship by virtue of this Agreement or any other written or oral expression with respect to such Relationship except, in the case of this Agreement, for the matters specifically agreed to herein.

8. Any notice under this Agreement shall be given in writing by (i) certified or registered mail, postage paid, addressed as follows, or (ii) via reputable overnight courier, addressed as follows:

If to Vendor:

Click or tap here to enter text.

Click or tap here to enter text.

If to WMC:

Westchester Medical Center 100 Woods Road Valhalla, NY 10595 Attn: Office of Legal Affairs

Copies of notices to WMC shall be simultaneously sent to WMC’s Office of Legal Affairs, attn.: General Counsel, at WMCLegalNotices@ WMCHealth.org

Either Party may provide written notice to the other Party of a change of address or designation for the above, in the manner set forth in this section.

9. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by each Party and its successors and assigns, provided that any assignment hereof by a Party may only be made upon the prior written consent of the other Party.

10. The provisions of this Agreement shall be interpreted and construed in a manner so as to make such provisions valid, binding and enforceable. In the event that any provision of this Agreement is determined to be partially or wholly invalid, illegal or unenforceable, then such provision shall be deemed to be modified or restricted to the extent necessary to make such provision valid, binding and enforceable, or, if such provision cannot be modified or restricted in a manner so as to make such provision valid, binding and enforceable, then such provision shall be deemed to be excised from this Agreement and the validity, binding effect and enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any manner.

11. This Agreement constitutes the complete agreement, and supersedes any and all prior agreements, arrangements and understandings, oral or written, among the Parties concerning the subject matter of this Agreement. This Agreement may be waived, amended or modified only by an agreement in writing signed by the Party against which such waiver, amendment or modification is sought to be enforced. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

12. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

13. Each Party agrees that without the consent and knowledge of the other it will not publicly disclose or announce the possible relationship being discussed, or the fact that discussions are taking place, and no Party is authorized to use the name of any other or any of its respective affiliates without the consent of the Party whose name is used.

14. Freedom of Information Law. The Parties acknowledge that WMC is a public benefit corporation and an “agency” subject to the New York Freedom of Information Law (Public Officers Law Article 6) (“FOIL”) and the Open Meetings Law (Public Officers Law Article 7). Notwithstanding anything to the contrary in this Agreement, nothing herein shall prevent or delay WMC from disclosing any record, including this Agreement and any Evaluation Material, to the extent disclosure is required by FOIL or other applicable law, and any such disclosure shall not constitute a breach of this Agreement. WMC makes no representation or warranty that any Evaluation Material, or the existence or terms of this Agreement or of any discussions or Relationship between the Parties, will be exempt from disclosure under FOIL.

To enable WMC to assert an available statutory exemption, Vendor shall, at the time it submits any Evaluation Material to WMC, conspicuously identify in writing the specific portions it contends are trade secrets or are commercial information the disclosure of which would cause substantial competitive injury, and shall state the particularized factual basis for that contention. WMC will, where and to the extent permitted by law, notify Vendor of a FOIL request seeking material so designated and afford Vendor a reasonable opportunity to support the claimed exemption before WMC makes a determination; provided, however, that WMC retains sole authority and responsibility to determine its response and to comply with FOIL, and Vendor bears the burden of establishing entitlement to any exemption. WMC shall have no liability to Vendor for any disclosure made in good-faith compliance with FOIL.

15. The operative terms and definitions set forth in the recital portion of this Agreement are herein incorporated and made a binding part of this Agreement.

Westchester Medical Center Click or tap here to enter text.

By: ______________________________ By: ______________________________

Name: ______________________________ Name: ______________________________

Title: ______________________________ Title: ______________________________

Date: ______________________________ Date: ______________________________