This Confidentiality Agreement involves
Title: CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
Industry: Medical Equipment and Supplies Sector: Healthcare
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this “ Agreement ”) is made as of this 15 th day of December, 2015, by and between VIRTUALSCOPICS, INC. , a Delaware corporation with its principal office at 500 Linden Oaks, Rochester, NY 14625 (the “ Company ”), and RONALD WAY , an individual with a mailing address of 5127 North Road, Canandaigua, NY 14424 (“ Executive Officer ”).
R E C I T A L S:
WHEREAS, the Company is engaged in the business of providing of imaging solutions to accelerate drug and medical device development, including, but not limited to, developing and providing a software platform for analysis and modeling of both structural and functional medical images and image analysis tools used to, among other things, determine the efficacy of drugs, medical procedures and medical products and seeks to use its technology to improve treatment planning for patients with cancer and other diseases (collectively, the “ Business ”);
WHEREAS, the Company owns and continues to research and develop image analysis tools and other products and technologies used to determine the efficacy of drugs, medical procedures and medical products and for other purposes in connection with its Business;
WHEREAS, the Company and Executive Officer are parties to that certain Employment Agreement of even date herewith (the “ Employment Agreement ”), pursuant to which the Company has employed Executive Officer as the COO of the Company;
WHEREAS, the Company and Executive Officer recognize that in the course of performing services for the Company, Executive Officer will be exposed to and have access to certain confidential information and that there is a need for the Company to protect such confidential information from unauthorized use and disclosure; and
WHEREAS, Executive Officer intends that any and all patent, patent rights, copyright, trade secrets and trademarks relating to the work that Executive Officer will provide to the Company are to be owned and controlled by the Company.
P R O V I S I O N S :
NOW, THEREFORE , in consideration of the mutual covenants and promises herein contained, and for other good and valuable consideration the receipt and sufficiency of which are expressly acknowledged, the parties hereby agree as follows:
1. Confidential Information .
(a) Definition of Confidential Information . “ Confidential Information ” means any and all proprietary information existing as of the date of this Agreement, or thereafter developed, of the Company (and its affiliates or subsidiaries), not generally known in the industry, about its or their technical data, trade secrets, know-how, services and products, including information related to research, development, inventions and other intellectual property, finances, and marketing, including methods of distribution and customer information, whether communicated orally, electronically or in writing, or obtained by Executive Officer as a result of his employment, through observation or examination of Company’s Business or otherwise.
(b) Confidentiality Obligations . Executive Officer acknowledges that irreparable injury and damage will result from disclosure of the Confidential Information to third parties or its use for purposes other than those connected with Executive Officer’s employment. Executive Officer agrees, indefinitely:
(i) To hold the Confidential Information in strictest confidence.
(ii) Not to disclose Confidential Information to any third party except as specifically authorized herein or as specifically authorized by Company, and to use all precautions necessary to prevent the unauthorized disclosure of the Confidential Information, including without limitation, protection of documents from theft, unauthorized duplication and discovery of contents, and restrictions on access by other persons to the Confidential Information.
(iii) Not to make or use any copies, synopses or summaries of oral or written material made available by Company to Executive Officer, except as are necessary to carry out his duties and/or obligations as an employee of the Company.
(iv) In the event of disclosure in accordance with Section 1(b)(ii) above, to limit disclosure to persons with a bona fide need to know the Confidential Information, to communicate to all persons to whom such Confidential Information is made available the strictly confidential nature of such Confidential Information and to obtain from all such persons agreement in writing to be bound by the restrictions imposed by this Agreement.
(v) In the event Executive Officer is required by law to disclose such Confidential Information, to provide Company with prompt written notice of such requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement; in the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement in writing, to furnish only that portion of Confidential Information that is legally required and to use his best efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information to be disclosed.
(c) Return of Confidential Information . Upon Company’s request or upon any termination of Executive Officer’s employment with the Company for any reason, Executive Officer will promptly return to Company all written material and other documentation which includes any of the Confidential Information, and will, at Company’s request, provide Company with a written certification that they have done so.
(d) Unauthorized Disclosure of Confidential Information . If it appears that Executive Officer has disclosed, or has threatened to disclose, any Confidential Information in violation of Section 1 of this Agreement, Company shall be entitled to an injunction to restrain Executive Officer from disclosing, in whole or in part, such information as a result of Executive Officer’s violation of Section 1 of this Agreement. Company shall not be prohibited by this provision from pursuing other remedies available at law, including a claim for losses and damages.
2. Goodwill of Company and Fiduciary Duties . Executive Officer acknowledges that the Company is engaged in the Business, which is highly competitive, and that the Company has spent a great deal of time and resources to develop and maintain the Business and to otherwise create good-will. Executive Officer further acknowledges that the services that have been and will be provided by Executive Officer are an integral part of the total transaction and relationship between Company and its customers.
Executive Officer understands and acknowledges that the Confidential Information is not available to the general public and is not readily ascertainable through public sources, and is the Company’s proprietary trade secret and the Company’s unique and valuable asset. Therefore, Executive Officer acknowledges that the value of the Business would be seriously diminished if Executive Officer was to engage in certain conduct during a certain time period, as referenced below. Executive Officer further acknowledges that, but for his employment relationship with the Company, Executive Officer would not have access to the Confidential Information or other trade secrets and information of the Company.
Executive Officer further acknowledges that he owes a fiduciary duty to the Company because of the Confidential Information he will create or be exposed to. This duty encompasses a duty to act in good faith and to faithfully serve and be mindful of Company’s interests. It is also understood that Executive Officer upon any termination of his employment with the Company would be in an advantageous position, because of the Confidential Information and proprietary business information known to him, to obtain the business of and to serve the Company’s customers; it is further agreed that the use of such Confidential Information and other proprietary information to obtain the business of the Company’s customers would be a breach of Executive Officer’s fiduciary responsibilities to the Company and of this Agreement.
The parties further acknowledge that the financial hardship to the Company as a result of a breach of this Agreement may be difficult or impossible to measure in dollars and that no remedy at law may be adequate to compensate the Company for such violation.
3. Restrictive Covenants .
(a) Based on the information in Section 2 of this Agreement, and in consideration of the Company employing Executive Officer, it is agreed that during Executive Officer’s employment with the Company and for a period of twelve (12) months thereafter (the “ Restrictive Period ”), Executive Officer shall not, except on behalf of the Company, directly or indirectly, by himself, or through or on behalf of, or in conjunction with, any other person, persons, company, partnership or other entity which Executive Officer is directly or indirectly associated, own, operate, participate in the management or control of, be employed by, or act as a consultant to any enterprise in the United States or Europe engaged in the business of performing services or producing and/or selling produc