EBM HCS

MUTUAL NONDISCLOSURE AGREEMENT

THIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of (the “Effective Date”), by and between: EBM HCS, LLC & Associated Companies 5639 Myrtlewood Drive Nashville, TN 37211 and the listed name above.

WHEREAS, the parties hereto desire to discuss and pursue one or more business transactions (the “Subject Matter”);

WHEREAS, each party (“Disclosing Party”) is in possession of Confidential Information (as hereinafter defined), including its Confidential Information and certain Confidential Information of its customers, that will be disclosed to the other party (“Receiving Party”) to enable the parties to consider and implement the Subject Matter;

WHEREAS the parties recognize the value of the Confidential Information and the need to maintain and protect the confidential, proprietary, and secret nature of the Confidential Information;

WHEREAS the parties forth recognize that the Disclosing Party is legally required to maintain and protect the confidential, proprietary, and secret nature of its customers’ Confidential Information and to obtain similar legal obligations from the Receiving Party when such Confidential Information is disclosed to the Receiving Party.

NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, the receipt and sufficiency of which is hereby acknowledged, each party agrees as follows:

1. Confidential Information. “Confidential Information” means all information or materials relating to Disclosing Party’s business that Receiving Party knows, or reasonably should know, is confidential, whether such Confidential Information is delivered in written, oral, electronic or other form. Confidential Information includes, but is not limited to, all:

a. know-how, inventions, technical procedures, manufacturing processes, methodologies, formulations, experimental results;

b. drawings, specifications, designs, models, prototypes, samples;

c. products, product plans, marketing plans, names and all information regarding customers, vendors, and suppliers;

d. analyses, compilations, studies;

e. any information provided in written form which has been marked with the word “confidential” and any information that is otherwise transmitted which is contemporaneously identified in writing to be “confidential” ;

f. any information identified as a “trade secret” under the Uniform Trade Secrets Act (“Trade Secrets”).

The Disclosing Party’s Confidential Information also includes any Confidential Information of the Disclosing Party’s customers and any documents, analyses, compilations, work product, studies and other data or materials prepared by or in possession of Receiving Party which contain, include, refer to, reflect, or are generated from Disclosing Party’s Confidential Information.

2. Exclusion from Confidential Information. Confidential Information shall not include any information which the Receiving Party can document:

a. was known and in the possession of Receiving Party, through no wrongful act of Receiving Party, before being disclosed by Disclosing Party as demonstrated by written evidence predating the Effective Date;

b. is or becomes publicly known, through no improper action or inaction by the Receiving Party;

c. was rightfully disclosed to Receiving Party by third parties who are not subject to restrictions on the disclosure of such information; or

d. is excluded from Confidential Information by Disclosing Party in writing.

3. Obligations of Receiving Party. Receiving Party shall:

a. hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of Disclosing Party;

b. use the Confidential Information solely in furtherance of the Subject Matter and not for the benefit of the Receiving Party or any party other than Disclosing Party;

c. restrict access to the Confidential Information to Receiving Party’s employees, contractors and third parties as is reasonably required to further the Subject Matter;

d. not to copy or reverse engineer any such Confidential Information; and

e. require all individuals and entities receiving such Confidential Information from Receiving Party (each an “Additional Recipient”) to sign a nondisclosure agreement at least as protective as the restrictive provisions in the Agreement. Receiving Party Shall use, at a minimum, the same degree of care to avoid impermissible disclosure or use of Disclosing Party’s Confidential Information as it employs with respect to its own Confidential Information, but in each case not less than reasonable care.

4. Disclosures Required by Law. If Receiving Party is requested or demanded by a government or court order, or similar process, to disclose any Confidential Information, Receiving Party shall provide Disclosing Party with prompt notice of such request or demand which is sufficient to provide Disclosing Party with a reasonable opportunity to seek an appropriate protective order and/or waive Receiving Party’s compliance with the provisions of this Agreement.

5. Return of Confidential Information. All Confidential Information of Disclosing Party shall remain the property of Disclosing Party. Immediately upon Disclosing Party’s written request, Receiving Party shall return to Disclosing Party or destroy, as demonstrated to Disclosing Party’s reasonable satisfaction, any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to the Confidential Information, whether or not such information was delivered by Disclosing Party or prepared by Receiving Party.

6. No Requirement to Disclose or Proceed. The Receiving Party understands that nothing herein (i) requires the disclosure of Confidential Information; or (ii) requires the Disclosing Party to proceed with any transaction or relationship.

7. Remedies.



a. Receiving Party shall indemnify Disclosing Party and hold Disclosing Party harmless from any damage, loss, penalty, cost or expense incurred by Disclosing Party as a result of or in connection with the use to disclosure of Confidential Information by Receiving Party or any additional Recipient, in violation of this Agreement.

b. Receiving Party agrees that any use or disclosure of Confidential Information in violation of this Agreement will cause Disclosing Party irreparable harm, which will not be sufficiently remedied by the payment of monetary damages. Therefore, Disclosing Party shall be entitled to injunctive and equitable relief as deemed proper by a court of competent jurisdiction. Such remedies shall not be the exclusive remedy for any of the breach of this Agreement but shall be in addition to all other remedies available at law or in equity.

c. If either party employs attorneys to enforce its rights or defend itself under this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and expenses incurred in furtherance of such effort from the other party.

d. If the Receiving Party breaches this Agreement, any inventions, improvements, or other intellectual property resulting from such impermissible use will be the property of the Disclosing Party. The Receiving Party hereby assigns to the Disclosing Party all rights, title and interest in such new intellectual property at the time of its creation without a requirement of additional consideration. The Receiving Party agrees to execute a written assignment of such new intellectual property to the Disclosing Party upon the Disclosing Party’s request.

8. Survival. Receiving Party’s obligations under this Agreement shall survive until two (2) years after the Disclosing Party and the Receiving Party have terminated their business relationship and all activities relating to the Subject Matter and all of Disclosing Party’s Confidential Information has been returned to Disclosing Party or destroyed as demonstrated to Disclosing Party’s reasonable satisfaction. Notwithstanding the foregoing, Receiving Party’s obligations under this Agreement with respect to Trade Secrets shall survive until the information no longer constitutes a Trade Secret.

9. Relationship: Nothing contained in this Agreement shall be deemed to constitute either party as a partner, joint venture or employee of the other party for any purpose.

10. Severability. If a court of competent jurisdiction makes a final determination that any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement shall not be affected by such determination and shall be interpreted so as best to affect the intent of the parties.

11. Waiver. The failure to exercise any right provided in this Agreement at any time for any period shall not be a waiver of such rights.

12. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to principles of conflict or choice of law. Each party consents to the venue and exclusive jurisdiction in and by the state and federal courts sitting in Tennessee.

13. Counterparts. This Agreement may be executed in one or more counterparts, each such counterpart shall be deemed to be an original and all counterparts together shall constitute one and the same instrument.

14. Entire Agreement. This Agreement and each party’s obligations shall be binding on the representatives, assigns and successors of such party. This Agreement expresses the complete understanding of the parties with respect to the subject matter hereof and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.

IN WITNESS THEREOF, the parties hereto have caused their authorized representatives execute this Agreement as of the Effective Date.

EBM HCS