{"id":40766,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidentiality-agreement-provantage-health-services-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidentiality-agreement-provantage-health-services-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/confidentiality-agreement-provantage-health-services-inc-and.html","title":{"rendered":"Confidentiality Agreement &#8211; Provantage Health Services Inc. and Merck &#038; Co. Inc."},"content":{"rendered":"<pre>\n                           CONFIDENTIALITY AGREEMENT\n                           -------------------------\n\n\n     THIS CONFIDENTIALITY AGREEMENT (this 'Agreement') is made as of this 8th\nday of December, 1999 between PROVANTAGE HEALTH SERVICES, INC., a Delaware\ncorporation with its principal place of business at N19 W24130 Riverwood Drive,\nWaukesha, Wisconsin 53188, ('ProVantage') and MERCK &amp; CO., INC., and its\nAffiliates with offices at One Merck Drive, Whitehouse Station, New Jersey\n08889-0100 ('Company').\n\n     WHEREAS, Company has requested certain information about the business\nactivities of ProVantage in connection with the possibility of establishing a\nbusiness relationship between ProVantage and Company.  This information is being\ncollected from ProVantage for the sole purpose of evaluation of such a\ntransaction (the 'Permitted Use').  The information being requested may include,\nwithout limitation, descriptions of ProVantage's strategic and business plans,\nthe identity of one or more other parties with whom ProVantage does business,\ndescriptions of non-public transaction structure proposals, descriptions of\nProVantage's business operations, descriptions or demonstrations of ProVantage's\nproducts and services, financial performance figures, financial projections,\ndescriptions of ProVantage's computer systems and systems development,\ndistribution networks, strategies, operations, and billing and receivable\noperations, software, technical systems and product development methodologies\nand strategies, marketing and operational procedures and strategies, client\nlists and other similar information.  Any such information disclosed by\nProVantage to Company, whether provided before or after the date of this\nAgreement, either orally or in writing, is hereinafter referred to as the\n'Confidential Information'; and\n\n     WHEREAS, ProVantage has agreed to provide to Company, such Confidential\nInformation with respect to its current and future operations, but only upon the\nterms and conditions set forth herein; and\n\n     WHEREAS, the parties wish to set forth in this Agreement their agreements\nconcerning the use and protection of the Confidential Information.\n\n     NOW, THEREFORE, in consideration of the foregoing and of the mutual\ncovenants and promises set forth herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged,\nProVantage and Company hereby agree that:\n\n     1.  ACKNOWLEDGEMENT.  The Confidential Information is proprietary to\n         ---------------                                                 \nProVantage.  Any disclosure or unauthorized use thereof may cause irreparable\nharm and loss to ProVantage.\n\n     2.  USE OF THE CONFIDENTIAL INFORMATION. \n         ----------------------------------- \n\n \n          a.  Company will hold all of the Confidential Information in strict\nconfidence, and except as expressly set forth herein, will not disclose such\nConfidential Information to any third person(s) (which term as used in this\nAgreement will be broadly interpreted to include without limitation any\ncorporation, company, group, partnership, agency, or individual).\n\n          b.  Company shall:  (i) use the Confidential Information only in\nconnection with the Permitted Use; (ii) disclose the Confidential Information\nonly to its officers, directors, employees and advisors who need to know the\nConfidential Information to accomplish the Permitted Use; and (iii) safeguard\nthe Confidential Information with the same degree of care to avoid unauthorized\ndisclosure as Company uses to protect its own Confidential Information of a\nsimilar nature; but in no case less than reasonable care.  It is Company's\nresponsibility to ensure that any officers, directors, or employees to have\naccess to the Confidential Information will, prior to being provided with any or\nall of the Confidential Information, agree to be bound by the terms of this\nAgreement.  Company shall not use the Confidential Information in any respect to\ncompete with ProVantage at any time or provide such Information to a third party\nto compete with ProVantage.\n\n          c.  Immediately after Company's use of the Confidential Information\nfor the Permitted Use, or earlier upon written request by ProVantage, Company\nshall return to ProVantage all of the Confidential Information, together with\nsummaries of the Confidential Information or shall destroy such summaries;\nprovided, however, that the Company may retain one copy of all the Confidential\nInformation in its legal files in order to monitor compliance with this\nAgreement.\n\n          d.  ProVantage will use its best efforts to ensure the accuracy and\ncompleteness of the Confidential Information, but ProVantage does not make and\nwill not be deemed to have made any warranty as to the accuracy or completeness\nof any of the Confidential Information.  ProVantage will not be liable for any\ndamages arising out of the use of the Confidential Information disclosed\nhereunder.\n\n          e.  Company will assume the liability for all damages, losses, costs,\nor expenses which result from (i) the use of the Confidential Information by\nCompany for any purpose other than the Permitted Use; (ii) disclosure of the\nConfidential Information by Company to third parties or entities; or (iii) the\nuse of the Confidential Information by any person or entity other than Company,\ncaused by the unauthorized disclosure or dissemination of same by any employees,\nagents, or contractors of Company.\n\n          f.  The foregoing obligations of Company will not apply to the extent\nthat the Confidential Information: (i) which, at the time of its disclosure, is\nin the public domain\n\n                                       2\n\n \nor which, after disclosure, becomes part of the public domain by publication or\notherwise through no action or fault of Company; (ii) which Company can show was\nin its possession at the time of disclosure and was not acquired, directly or\nindirectly, from ProVantage; or (iii) which was received by Company from a third\nparty having a legal right to transmit the information.\n\n          g.  Subject to Section 4 below, the foregoing obligations of Company\nwill not apply to the extent that Company is required by law to provide the\nConfidential Information to a government agency or regulatory body.\n\n          h.  Company acknowledges its responsibilities under the federal\nsecurities law, including without limitation, Section 10(b) of the Securities\nExchange Act of 1934 and Rule 10b-5 thereunder, with respect to trading\nProVantage's securities while in possession of material non-public information.\n\n     3.   COMMUNICATION WITH SHOPKO AND PROVANTAGE EMPLOYEES. Company agrees\n          --------------------------------------------------                 \nthat unless specifically authorized to the contrary, all communications with\nProVantage shall be channeled only through designated ShopKo and ProVantage\nassociates at ShopKo and ProVantage's headquarters in Green Bay, Wisconsin.\n\n     4.   LRGALLY COMPELLED INFORMATION. In the event that Company or anyone to\n          -----------------------------                                         \nwhom it transmits any Confidential Information becomes legally compelled to\ndisclose any of the Confidential Information, Company will provide ProVantage\nwith prompt written notice before such Confidential Information is disclosed so\nthat ProVantage can seek a protective order or other appropriate remedy.  In the\nabsence of a protective order obtained by ProVantage or ProVantage's failure to\nquash the legal process requiring disclosure or other measure effectively\nremoving the legal compulsion, Company shall have no duty to resist the\nproduction of Confidential Information and the production thereof shall not\nconstitute a breach of this Agreement.\n\n     5.   REASONABLENESS; REMEDIES.  Company acknowledges that these covenants\n          ------------------------                                            \nare reasonable and necessary for the protection of the proprietary interests of\nProVantage and that irreparable injury will result to ProVantage and its\nbusiness if any provision of this Agreement is breached and agrees that if there\nshould be any breach or threatened breach thereof, ProVantage shall be entitled\nto an ex parte injunction prohibiting such conduct, and in the event final\njudgement is entered in favor of ProVantage, the Company will reimburse\nProVantage for all court costs and legal fees, including reasonable attorney's\nfees, incurred in enforcing this Agreement or obtaining relief hereunder other\nthan in connection with ProVantage exercising its rights under Section 4 hereof.\n\n                                       3\n\n \n     6.   OTHER COMMITMENTS.  Nothing contained in this Agreement or in any\n          -----------------                                                \ndiscussions undertaken or disclosures made pursuant hereto shall be deemed a\ncommitment by ProVantage to engage in any business relationship, contract or\nfuture dealing with Company.\n\n     7.   SOLICITATION OF EMPLOYEES.  Company agrees that, without ProVantage's\n          -------------------------                                            \nprior written consent, you will not for a period of two years from the date of\nthis Agreement directly or indirectly solicit for employment or employ any\nperson who is now employed by ProVantage or any of ProVantage's subsidiaries and\nwho the Company came in contact with as a result of your evaluation or otherwise\nin connection with the Permitted Use; provided, however, that you shall not be\nprohibited from employing any such person who contacts you on his or her own\ninitiative and without any direct solicitation by you.\n\n     8.   MISCELLANEOUS.\n          ------------- \n\n          a.      No patent, copyright, trademark or other proprietary right is\nlicensed, granted or otherwise transferred directly, or by implication, estoppel\nor otherwise, by this Agreement or any disclosure hereunder, except for the\nright to use such information in accordance with this Agreement. No warranties\nof any kind are given with respect to the Confidential Information disclosed\nunder this Agreement of any use thereof, except as may be otherwise agreed to in\nwriting.\n\n           b.     This Agreement shall be effective as of the date first written\nabove and shall continue for a period of 5 years.\n\n           c.     This Agreement may not be assigned by either party without the\nprior written consent of the other, except to any of its affiliates upon prior\nwritten notice. No permitted assignment shall relieve a party of its obligations\nhereunder with respect to Confidential Information disclosed to that party prior\nto the assignment. Any assignment in violation of this Section shall be void.\nThis Agreement shall be binding upon the parties and their respective successors\nand assigns.\n\n          d.      If any provision of this Agreement shall be held invalid or\nunenforceable, such provision shall be deemed deleted from this Agreement and\nreplaced by a valid and enforceable provision which so far as possible achieves\nthe parties' intent in agreeing to the original provision. The remaining\nprovisions of this Agreement shall continue in full force and effect.\n\n          e.      Each party warrants that it has the authority to enter\ninto this Agreement and to lawfully make the disclosures contemplated hereunder.\n\n                                       4\n\n \n          f.      This Agreement represents the entire understanding between the\nparties with respect to the subject matter hereof and supersedes all prior\ncommunications, agreements and understandings relating hereto. The provisions of\nthis Agreement may not be modified, amended or waived, except by a written\ninstrument duly executed by both parties. This Agreement shall be governed in\nall respects by the laws of the State of Wisconsin without regard for conflict\nof laws principles.\n\n          g.      The parties expressly agree that facsimile signatures are\nbinding on the parties.\n\n                                       5\n\n \n          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly\nexecuted as of the day and year first written above.\n\n\n                         PROVANTAGE HEALTH SERVICES, INC.\n\n                         a Delaware corporation\n\n\n\n                   By:\n                            ----------------------------------------\n                   Name:\n     \n                  and Title:\n                            ----------------------------------------\n \n\n\n                         MERCK &amp; CO., INC.\n\n\n\n                    By:     \/s\/ Barbara Yanni\n                            ----------------------------------------\n\n                    Name\n\n                  and Title: Executive Director, Corporate Development\n                            ------------------------------------------\n\n                                       6\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8190,8591],"corporate_contracts_industries":[9438,9407],"corporate_contracts_types":[9553,9558],"class_list":["post-40766","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-merck---co","corporate_contracts_companies-provantage-health-services-inc","corporate_contracts_industries-health__misc","corporate_contracts_industries-drugs__pharma","corporate_contracts_types-corporate","corporate_contracts_types-corporate__nondisclose"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40766","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40766"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40766"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40766"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40766"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}