One-Way Non-Disclosure Agreement

This One-way Non-Disclosure Agreement (the “Agreement”) is entered into between Masimo Corporation (“Disclosing Party”) and the party receiving Confidential Information (“Receiving Party”). Disclosing Party is granting access to it’s Technology Suite in order to provide information relating to it’s innovation initiatives and the future of patient monitoring (the “Purpose”). In connection with the Purpose, Receiving Party agrees as follows:

  • 1. Confidential Information.   “Confidential Information” means (a) the existence and content of this Agreement; and (b) all non-public, confidential, proprietary information, including scientific, technical, financial or business information, in whatever form (written, oral or visual) disclosed by the Disclosing Party or its affiliates to the Receiving Party during the Term.
  • 2. Marking Requirements.  The Disclosing Party will use reasonable efforts to mark all Confidential Information as “Confidential” or “Proprietary”. With respect to oral disclosures, the Disclosing Party shall use reasonable efforts to summarize such information in writing and designate it as confidential within thirty (30) days of disclosure. Failure to mark such Confidential Information shall not affect its confidential status if it would reasonably be understood to be confidential given its nature or the circumstances of disclosure.
  • 3. Exclusions.  Confidential Information does not include information that (a) is, or later becomes, generally available to the public other than as a result of a breach of this Agreement by the Receiving Party; (b) at the time of its disclosure under this Agreement, already was lawfully possessed by the Receiving Party; or (c) is independently and verifiably developed by a Representative of the Receiving Party without use of the Confidential Information.
  • 4. Compulsory Disclosure.  If the Receiving Party becomes legally required to disclose any such Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information which is legally required to be furnished in the opinion of the Receiving Party’s counsel. Disclosure pursuant to Section 4 shall not be deemed an exclusion under Section 3 of this Agreement or a breach of this Agreement.
  • 5. Receiving Party Obligations.  The Receiving Party shall (a) hold all Confidential Information in strictest confidence, using at least the same level of care to prohibit disclosure and/or unauthorized use of Confidential Information as the Receiving Party uses to protect its own confidential information of similar nature or value, and, in any event, at least reasonable care; (b) not export or re-export any Confidential Information except in compliance with all applicable export laws and regulations; (c) use and reproduce Confidential Information only in connection with the Purpose; (d) not reverse engineer, disassemble, or decompile any Confidential Information; and (e) limit access to Confidential Information to only those of its directors, officers, and employees (“Representatives”) who need to know Confidential Information to fulfil the Purpose and are legally or contractually obligated to maintain confidentiality. Any failure by a Representative to fulfil the Receiving Party’s obligations under this Section 5 shall constitute a breach of this Agreement by the Receiving Party.
  • 6. Return of Confidential Information.  The Receiving Party shall return or destroy all Confidential Information received under this Agreement upon the written request of the Disclosing Party. The Receiving Party (a) may retain a copy of the Confidential Information to monitor compliance with this Agreement; and (b) shall not be required to expunge the Confidential Information from standard archival or computer back-up systems. Any information so retained shall remain subject to this Agreement.
  • 7. General.
    1. Term and Termination.  This Agreement shall become effective upon signature by the Receiving Party and continue until terminated. Either party may terminate this Agreement at any time upon thirty (30) days’ prior written notice to the other party. Except as otherwise provided herein, the obligations of confidentiality and non-use hereunder will remain in full force and effect for a period of five (5) years following the expiration of termination of this Agreement.
    2. Governing Law.  This Agreement will be governed by the laws of the state of California, without regard to its choice of law principles.
    3. Independent Parties; No Obligation.  Nothing in this Agreement creates (a) a joint venture, partnership, employment relationship or agency relationship between the parties, or (b) an obligation on either party to enter into any further business relationship. Neither party has the authority to bind or create any obligations for the other party.
    4. No Intellectual Property Rights.  This Agreement does not grant any right, title, or interest in or to any patent, patent application, trademark, utility model, copyright, trade secret, license, or other intellectual property right.
    5. Warranties.  All Confidential Information is provided “as is”, without any warranty of any kind.
    6. Equitable Relief.  A breach of this Agreement by a party (or any of its Representatives) may cause the Disclosing Party irreparable harm not adequately remedied by money. The Disclosing Party may seek specific performance or injunctive relief, without proving actual damages, and without limiting any of its other rights at law or in equity.
    7. Waiver.  Any failure by either party to enforce any provision of this Agreement will not be deemed a waiver of its right to enforce such provision or any other provision of this Agreement.
    8. Assignment.  Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party. For purposes of this Agreement, any change of control of a party shall be deemed an assignment. Any assignment in violation of this Section 7(h) is null and void.
    9. Entire Agreement; Amendment.  This Agreement embodies the entire agreement between the parties relating to the subject matter herein and may only be amended in writing signed by the party against whom enforcement is sought.
    10. Counterparts.  This Agreement may be executed and delivered by electronic transmission or other transmission method, and shalll constitute one and the same Agreement.
    11. Notices.  All notices and other communications under this Agreement shall be in writing, in English, and shall be deemed to have been duly given on the date delivered by hand or upon confirmation of delivery by a courier service to the addresses listed above with “Attention: General Counsel/Legal Department” in the address.

PLCO-008322/PLMM-12834A-0926