This Proprietary Rights Agreement sets forth the rights and limitations of the undersigned (“Student”) with respect to information disclosed at educational training courses provided to the undersigned by Dr. Arnaud Versluys and the Institute of Classics in East Asian Medicine (collectively “ICEAM”). ICEAM and Student desire to enter into a confidentiality agreement with regard to use by Student of certain proprietary information owned by ICEAM (the “Permitted Purpose”) defined as follows: for use in clinical practice only. In connection with the Permitted Purpose, Student will receive certain proprietary information (the “Proprietary Information”).
IN CONSIDERATION OF and as a condition of ICEAM providing the Proprietary Information to Student in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:
Definitions
1. “Proprietary Information” shall mean all information provided by ICEAM during any of its continuing education training series courses in Canonical Chinese Medicine and including, specifically, the Tian pulse diagnostic system.
2. “Permitted Purpose” shall mean use of the Proprietary Information only in Student’s own clinical practice work.
3. “Unauthorized Purposes” shall mean any use of the Proprietary Information outside of the bounds of the Permitted
Purpose, whereupon Student agrees they shall not, inter alia, copy, transmit, teach, reproduce, summarize, quote, or make any commercial use whatsoever of the Proprietary Information, with or without financial gain, without the express written consent of ICEAM.
Proprietary Information
4. All written and oral information and materials disclosed or provided by ICEAM to Student under this Agreement constitute Proprietary Information regardless of whether such information was provided before or after the date of this Agreement or how it was provided to Student.
5. “Proprietary Information” additionally means all data and information relating to ICEAM, including but not limited to, the following:
a. Intellectual Property which includes information relating to ICEAM’s proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, test data and test results, simulation results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights, and trade secrets);
b. Service Information which includes all data and information relating to the services provided by ICEAM, including but not limited to, plans, schedules, manpower, inspection, and training information; and
c. Confidential Information will also include any information that has been disclosed by a third party to ICEAM and is protected by a non-disclosure agreement entered into between the third-party and ICEAM.
Confidential Obligations
6. Except as otherwise provided in this Agreement, Student must keep the Proprietary Information confidential.
7. Except as otherwise provided in this Agreement, the Proprietary Information will remain the exclusive property of ICEAM and will only be used by Student for the Permitted Purpose. Student will not use the Proprietary Information for any purpose hat might be directly or indirectly detrimental to ICEAM or any associated affiliates or subsidiaries.
8. The obligations to ensure and protect the confidentiality of the Proprietary Information imposed on Student in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and those obligations will last indefinitely.
9. Student may disclose any of the Proprietary Information to third parties only with the express written consent of ICEAM and upon execution by that third party of a Proprietary Rights Agreement, or to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body.
10. Student agrees to retain all Proprietary Information at their usual place of business and to store all Proprietary Information separate from other information and documents held in the same location. Further, the Proprietary information may not be used, reproduced, transformed, or stored on a computer or device that is accessible to persons to whom disclosure may not be made, as set out in this Agreement.
Non-Competition
11. Other than with the express written consent of ICEAM, Student will not be directly or indirectly involved with a business which uses the Proprietary Information in direct competition with the educational business of ICEAM and that are the subject of this Agreement.
12. From the date of this Agreement, Student will not divert or attempt to divert from ICEAM any business ICEAM had enjoyed, solicited, or attempted to solicit, from their customers, at the time the parties entered into this Agreement.
Ownership and Title
13. Nothing contained in this Agreement will grant to or create in Student, either expressly or impliedly, any right, title, interest or license in or to the intellectual property of ICEAM.
Remedies
14. Student agrees and acknowledges that the Proprietary Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Proprietary Information in breach of this Agreement, and, in particular, use of the Proprietary Information for Unauthorized Purposes, cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to ICEAM. Accordingly, Student agrees that ICEAM is entitled to, in addition to all other rights and remedies available to them at law or in equity, an injunction restraining the Recipient and any agents of the Recipient, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Proprietary Information.
Return of Proprietary Information
15. Student will keep track of all Proprietary Information provided to them and the location of such information, whether in written or electronic form. ICEAM may at any time request the return of all Proprietary Information from Student. Upon the request ICEAM, or in the event that Student ceases to require use of the Proprietary Information, or upon the expiration or termination of this Agreement, Student will:
a. Return all Proprietary Information to ICEAM and will not retain any copies of this information;
b. Destroy or have destroyed all memoranda, notes, repots, and other works based on or derived from the Student’s review of the Proprietary Information; and
c. Provide a certificate to ICEAM that such materials have been destroyed or returned, as the case may be.
Notices
16. In the event that Student is required in a civil, criminal or regulatory proceeding to disclose any part of the Proprietary Information, Student will give to ICEAM prompt written notice of such request so that ICEAM may seek an appropriate remedy or alternatively to waive Student’s compliance with the provisions of this Agreement in regards to the request.
17. If Student loses or fails to maintain the confidentiality of any of the Proprietary Information in breach of this Agreement, Student will immediately notify ICEAM and take all reasonable steps necessary to retrieve the lost or improperly disclosed Proprietary Information.
Representations
18. In providing the Proprietary Information, ICEAM makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may results from the use of such information.
Assignment
19. Except where a party has changed its corporate name or merged with another corporation, this Agreement is personal and may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.
Amendments
20. This Agreement may only be amended or modified by a written instrument executed by both ICEAM and Student.
Governing Law
21. This Agreement will be construed in accordance with and governed by the laws of the State of Oregon.
General Provisions
22. Time is of the essence in this Agreement.
23. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
24. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
25. Student is liable for all costs, expenses, and expenditures including, and without limitation, the complete legal costs incurred by ICEAM in enforcing this Agreement as a result of any default of this Agreement by Student.
26. ICEAM and Student acknowledge that this Agreement is reasonable, valid, and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of ICEAM and Student that such provisions be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of Student to give ICEAM the broadest possible protection to maintain the confidentiality of the Proprietary Information.
27. No failure or delay by ICEAM in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
28. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of ICEAM and Student.
29. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.