MUTUAL NON-DISCLOSURE AGREEMENT
Proprietary Information
Effective, March 1, 2015, this is an agreement (“Agreement”) between Katz, Sapper & Miller, LLP
(together with its subsidiaries and affiliates, hereinafter referred to as “KSM”), and
_________________________, (hereinafter referred to as “COMPANY”).
It is recognized that it may be desirable for the Company to provide information to KSM for the purpose
of the Company participating in the KSM/McLeod Benchmark Survey (“Benchmark Survey”). In the
course of these discussions, the parties may exchange information and data which is confidential and
proprietary, and therefore with respect to such information exchanged between the parties prior to, on
or subsequent to this date, the parties agree as follows:
1. “Proprietary Information” shall include, but not be limited to, operating, performance and/or
financial, information, which has been or is furnished by the disclosing party or any of its affiliates or
subsidiaries or Representatives to the receiving party prior to, on or subsequent to the date of this
Agreement. As used herein, “Representatives” of any person or entity means such person’s or
entity’s affiliates, subsidiaries, parent companies, directors, officers, members, managers,
employees, advisors, attorneys or agents. In exchange for the Company participating in the
Benchmark Survey, it is anticipated that KSM will provide the Company with a copy of the
benchmark report resulting from the Benchmark Survey, which will include the high, low, median
and average values for each benchmark category, as well as the group qualification parameters to
allow for comparison of the Company’s results on each benchmark to those of their actual peer
group, provided KSM receives enough participation in the Benchmark Survey, and by each
Company’s peer group. KSM and McLeod Software will also be publishing the benchmark report
subsequent to sharing a copy of the benchmark report with each Company who participated in the
Benchmark Survey.
2. Each party covenants and agrees that it will (i) keep the Proprietary Information which is furnished
by the other party or any of such other party’s Representatives strictly confidential and (ii) prevent
the disclosure of such Proprietary Information to any person or entity; provided however, that a
receiving party shall not be liable for disclosure of any such Proprietary Information if the same:
a. Is in the public domain at the time it is received from the disclosing party (other than as a
result of disclosure by the receiving party or any of its Representatives); or
b. Becomes part of the public domain after the time it is received from the disclosing party
(other than as a result of disclosure by the receiving party or any of its Representatives); or
c. Was known to the party receiving it immediately prior to the time of disclosure, provided
i. such knowledge was lawfully obtained from a source other than the currently
disclosing party who is not bound by a confidentiality agreement or duty with such
disclosing party or its Representatives, and
ii. at the time such knowledge was obtained, such receiving party could not reasonably
be expected to know of the currently disclosing party's proprietary claims; or
d. Is disclosed with the prior written approval of the other party; or
e. Was independently developed by the receiving party, provided the receiving party can
show that such development was accomplished by or on behalf of receiving party without
the use of or any reference to Proprietary Information; or
f.
Is disclosed to its Representatives who need to know such Proprietary Information for
purposes of compiling the Benchmark Survey contemplated by this Agreement (it being
understood that (i) prior to such disclosure, such Representatives will be informed of the
confidential nature of the Proprietary Information and (ii) each party hereto hereby agrees
to be responsible for any failure of its Representatives to protect the confidential and
proprietary nature of the other party’s Proprietary Information).
As between the parties hereto, the provisions of this paragraph 2 shall supersede the provisions of any
inconsistent legend that may be affixed to said Proprietary Information by the disclosing party, and the
inconsistent provisions of any such legend shall be without any force or effect.
Any Proprietary Information provided by the Company shall be used only for participation in the
Benchmark Survey, and shall be, upon request at any time, returned to the disclosing party or
destroyed. Any destruction of Proprietary Information by either party will be certified in writing by an
officer or other authorized representative of such party who supervised the destruction. If either party
loses or makes unauthorized disclosure of the other party’s Proprietary Information, it shall notify such
other party immediately and take all steps necessary to retrieve the lost or improperly disclosed
Proprietary Information.
Neither party shall disclose to any third-party (other than its Representatives who need to know in
connection with compiling the Benchmark Survey), that the Company is participating in the Benchmark
Survey.
3. The standard of care for protecting Proprietary Information imposed on the party receiving such
Proprietary Information will be that degree of care the receiving party uses to prevent disclosure,
publication or dissemination of its own Proprietary Information. In no case will the standard of care
used be less than reasonable care.
4.
In the event that either party is requested or required pursuant to written or oral question or
request for information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand or similar process to disclose any Proprietary Information of the other party,
such party will notify the other party promptly of the request or requirement so that the other party
has reasonable time to seek an appropriate protective order. If, in the absence of a protective order,
such party is, on the written advice of counsel, compelled to disclose any such Proprietary
Information to any tribunal or else stand liable for contempt, such party may disclose such
Proprietary Information to the tribunal; provided, however, that such party shall, at its sole cost
and expense, use its reasonable best efforts to obtain, at the request of the other party, an order or
other assurance that confidential treatment will be accorded to such portion of the Proprietary
Information required to be disclosed as such other party shall designate.
5.
In providing any information or data hereunder, each disclosing party makes no representations
either expressed or implied, as to its accuracy, completeness, adequacy, sufficiency, or freedom
from defect of any kind.
6.
This Agreement contains the entire agreement relative to the protection of Proprietary Information
exchanged in connection with the confidential information shared as contemplated by this
Agreement and supersedes any prior or contemporaneous oral or written understandings or
agreements among the parties regarding the subject matter hereof. This Agreement shall not be
modified or amended, except in a written instrument executed by the parties.
7.
Nothing contained in this Agreement shall, by express grant, implication, estoppel or otherwise,
create in either party any right to any Proprietary Information of the other party or its’ affiliates .
8. Nothing contained in this Agreement is intended to or shall grant to any party the right to make
commitments of any kind for or on behalf of any other party without the prior written consent of
that other party. This Agreement shall not constitute, create, give effect to, or otherwise imply a
joint venture, pooling arrangement, partnership, or formal business organization or arrangement of
any kind.
9. Receiving party shall not remove any proprietary, copyright or other legend ("Proprietary Rights
Legend") from any form of Proprietary Information. Receiving party, when reasonably possible and
at disclosing party's expense, will add to Proprietary Information any Proprietary Rights Legend (or
modify same) disclosing party deems necessary to protect its copyright and requests in writing to be
so added or modified.
10. The laws of the State of Indiana will govern this Agreement.
11. Each party acknowledges that the failure by it or its Representatives to comply with any of the terms
of this Agreement may cause irreparable harm to the other party, and that such injured party will
not have an adequate remedy at law in the event of such non-compliance. Therefore, the parties
acknowledge and agree that any injured party shall be entitled to obtain a court order in any court
of competent jurisdiction against acts of non-compliance with this Agreement, without the posting
of bond or other security, in addition to whatever other remedies it may have. All remedies available
to any party for any breach or threatened breach of this Agreement, whether under this Agreement,
at law or in equity, are cumulative and may be exercised separately or concurrently. No failure or
delay by any party to exercise 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 of the exercise of any other right, power or privilege hereunder.
12. This Agreement may not be assigned or otherwise transferred by either party in whole or in part
without the express prior written consent of the other party, which consent shall not be
unreasonably withheld. This consent requirement shall not apply in the event either party shall
change its corporate name or merge with or otherwise engage in a transaction of a similar nature
(including but not limited to a purchase or a sale) with another corporation or other entity of any
kind. This Agreement shall benefit and be binding upon the successors and assigns of the parties
hereto. This Agreement may be executed in two (2) counterparts, each such counterpart shall be
deemed to be an original instrument and all such counterparts taken together shall constitute one
and the same agreement.
13. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision or the enforcement of such
provision in any other jurisdiction, and such invalid, void or otherwise unenforceable provisions shall
be null and void. It is the intent of the parties, however, that to the fullest extent permitted by law
any invalid, void or otherwise unenforceable provisions by automatically replaced by other
provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable
provisions but are valid and enforceable.
As evidence of mutual agreement to the foregoing terms and conditions by the parties hereto, the duly
authorized representatives of the parties have executed this Agreement on the date(s) shown herein
Below:
FOR KSM:
FOR COMPANY:
By: _________________________
By: _________________________
Name: Timothy W. Almack, Partner
Name: _________________________
Date:
March 12, 2015
_________________________
Date: _________________________