Confidential and Proprietary Information Agreement

pMDsoft, Inc. (the “Company”) and___________________ (“Contractor”) enter this agreement dated __________ (the"Agreement"). This Agreement sets forth the Contractor's obligations regarding the use and dissemination of the information, data and resources to which the Contractor will have access during his/her engagement with the Company, and to make clear that all work product Contractor generates or creates while working for the Company is the sole property of the Company. This Agreement is effective as of the first date of engagement by the Company ("Effective Date").

In consideration of Contractor’s engagement with the Company, the Company’s providing to Contractor access to its confidential and proprietary information, including but not limited to theCompany’s trade secrets, and other good and valuable consideration, receipt of which Contractor hereby acknowledges, Contractor and the Company agree as follows:

Confidential Information.

a)    Contractor acknowledges that in the course of his/her engagementContractor will have access to confidential and proprietary information,including information belonging to the Company or its customers. Hereafter referred to in this Agreement as "ConfidentialInformation” and shall include the following, whether in written documentation,electronic format, or orally disclosed/disseminated:  

1)    All information that has or could have commercial value or other utility in the business in which the Company or its customers engage or in which it/they contemplate(s) engaging;  

2)    Any compilation of information collected from various sources, book ideas or concepts, marketing strategy, or personnel data, that derives actual or potential independent economic value from not being generally known to the public and for which the Company undertakes reasonable efforts to limit its dissemination and maintain its secrecy;

3)    Any intellectual property, including without limitation, patents, copyrights, and trade secrets, technical information, research, development, procedures, algorithms, methods, formulations, processes, techniques, specifications, diagrams, samples, models, products, know-how, data, test results and evaluations, and other business, financial, and technical information;

4)    Information regarding customers and potential customers ofCompany, including customer lists, names, representatives, their needs or desires with respect to the types of products or services offered by Company, proposals, bids, contracts and their contents and parties, the type and quantity of products and services provided or sought to be provided to customers and potential customers of Company and other non-public information relating to customers and potential customers;

5)    Information regarding any of Company’s business partners and their services, including names, representatives, proposals, bids, contracts and their contents and parties, the type and quantity of products and services received by Company, and other non-public information relating to business partners; and

6)    Information regarding personnel, employee lists, compensation, and employee skills; provided, however, that nothing in this Agreement or any other agreement between Contractor and the Company will limit (i) Contractor’s right to discuss his/her role or report possible violations of any law to any federal or state agency, including but not limited to the Equal Employment OpportunityCommission, the California Department of Fair Employment & Housing, theCalifornia Labor Commissioner, the United States Department of Labor, theNational Labor Relations Board, the Securities and Exchange Commission, or any other federal, state or local agency, or (ii) to discuss the terms and conditions of engagement with others to the extent expressly permitted bySection 7 of the National Labor Relations Act, or to the extent that such disclosure is protected under the applicable provisions of law or regulation, including but not limited to “whistleblower” statutes or other similar provisions that protect such disclosure.

b)   The Confidential Information covered by this Agreement includes:

1)    Tangible information (such as written materials, models, and/or specimens) identified as being Confidential Information by an appropriate, conspicuous legend (such as “Confidential” or “Proprietary”);

2)    Information in oral or visual form identified as Confidential Information at the time of disclosure or confirmed in writing as Confidential Information within forty-five (45) days after the disclosure; and

3)    Information that, given the nature of the information or the circumstances surrounding its disclosure, a reasonable person would consider Confidential Information.

c)    Confidential Information does not include the following:

1)    Information publicly known or publicly available through no fault of Contractor;

2)    Information that Contractor learns about or receives from a third party not under an obligation of confidence to the Company and who has legitimate and lawful possession of the information;

3)    Information known to Contractor before receiving that information from the Company or in the course of Contractor’s engagement with the Company and for which written records exist proving the date(s) of such prior receiptor disclosure;

4)    Information independently developed by Contractor without using, relying on or in any way incorporating any Confidential Information as defined herein;

5)    Information for which the Company has removed or released all confidentiality restrictions in a writing signed by the Company’s President;

6)    Information that pursuant to applicable law an employer may notdeem confidential or of which applicable law prohibits an employer fromrestricting disclosure or dissemination.

Protection, Use and Non-Disclosure of Confidential Information.

a)    Contractor acknowledges that the Company and/or its customers would suffer potentially severe loss, damage or injury if Contractor used or disclosed Confidential Information for any purpose other than the Company's authorized business purposes. Contractor agrees to keep secret and retain in strictest confidence all Confidential Information. Contractor shall not at anytime during or after employment, except with the express prior written consent of the Company’s President, directly or indirectly disclose, communicate or divulge any Confidential Information to any person or entity, or use any Confidential Information, for the benefit of him/herself or any person or entity other than the Company and/or its customers.  Contractor agrees that these commitments and promise shall never expire.

b)   Contractor agrees not to remove from the Company’s premises any Confidential Information without prior written permission from the Company’sPresident.  Contractor agrees to return all such material in Contractor's possession to the Company immediately upon request, and in any event immediately upon termination of engagement.  Contractor further agrees that following the termination of his/her contractor relationship with the Company, Contractor will undertake a diligent search to locate all Confidential Information in his/her possession, including but not limited to the review of all files, folders, and emails on any device owned or used by Contractor during his/her engagement or stored or located in any personal account (for example, documents, files, or folders stored on any cloud based account or attached toor retained in any personal email account). Contractor will delete or destroy all Confidential Information that he/she locates and shall thereafter make no further use, either directly or indirectly, of any such Confidential Information.

c)    All works prepared, created or furnished by Contractor in the course of performing professional services for the Company pursuant to theConsulting Agreement executed by Contractor on ______________ (the “ConsultingServices”), or to which Contractor has contributed or contributes during the term of his/her retention that relate to the Consulting Services, shall constitute "works made for hire" within the meaning of the UnitedStates Copyright Law, and accordingly, all present and future right, title and interest in and to all such works throughout the world, in any and all media now known or hereafter developed, including but not limited to all copyrights(and all renewals and extensions thereof), shall vest in and belong solely to the Company.    

d)   Contractor agrees to sign and deliver to the Company (either during or after his/her engagement) such other documents as the Company considers necessary or desirable to evidence or effect the assignment of all rights of Contractor, if any, of all work product, designs or creations as set forth in this Agreement.

e)   Contractor will not disclose to the Company, or use, or induce the Company to use, any proprietary or confidential information or trade secrets of others.  Contractor represents and warrants that he/she has returned, deleted or destroyed all property and confidential information belonging to any prior employer or other third parties, and that all works prepared, created or furnished by Contractor, or to which Contractor will contribute during the term of his/her engagement with theCompany, will be original and do not and shall not infringe or violate the rights of any other person or entity under any laws, including but not limited to any copyright, trademark, trade secret and/or patent laws, anywhere in the world.

f)     Contractor shall, at his/her own expense, indemnify, defend and hold the Company, its employees, agents, representatives, and clients harmless from and against any and all losses, costs, expenses and fees (including attorneys' fees) arising from or in connection with any direct or third-party claim(s), action(s) or proceeding(s) which arise in connection withContractor’s performance of the Consulting Services or an actual or threatened breach of Contractor 's obligations, representations or covenants set forth in this Agreement. Without in any way limiting the foregoing, Contractor understands and agrees that the Company shall have the right, but not the obligation, to retain counsel of its own choice in connection with any such third-party claim(s), action(s) or proceeding(s), and any such retention will not in any way alter or limit Contractor’s obligations under this Paragraph, including his/her obligation to pay the attorneys’ fees and related costs theCompany incurs in connection with such representation.

TheCompany shall at its expense, indemnify, defend and hold Contractor harmless from and against any and all losses, costs, expenses and fees (including attorneys' fees) arising from or in connection with any direct or third-party claim(s), action(s) or proceeding(s) which arise in connection with an actual or threatened breach of the Company’s obligations, representations or covenants set forth in this Agreement. Without in any way limiting the foregoing, the Company understands and agrees that Contractor shall have the right, but not the obligation, to retain counsel of Contractor’s own choice in connection with any such third-party claim(s), action(s) or proceeding(s), and any such retention will not in any way alter or limit the Company’s obligations under this Paragraph, including its obligation to pay the attorneys’ fees and related costs Contractor incurs in connection with such representation.

Exceptions and Immunity for Disclosures.  Contractor understands and acknowledges that nothing in this Agreement prohibits or in anyway restricts Contractor’s right to report or disclose information about unlawful acts in the workplace or workplace conduct, including the right to report possible violations of law to a governmental agency or entity or to communicate with such agencies or entities, to respond to a subpoena, to testify truthfully under oath, or to participate in any action or proceeding initiated by any governmental agency or entity and Contractor may do so without providing notice to the Company. Contractor acknowledges that through this paragraph the Company has notified him/her of the following immunity that exists under the federal Defend Trade Secrets Act of 2016 as set forth at 18 U.S.C. section 1833: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A)is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”

Injunctive Relief.  Contractor agrees and understands that any breach by Contractor of this Agreement will result in irreparable harm to the Company, and that the damages flowing from such a breach cannot be adequately measured in monetary terms. Contractor further acknowledges that the remedy at law for any breach by Contractor of this Agreement will be inadequate. Accordingly, the Parties agree that the Company shall, among other remedies, have the right to immediate injunctive relief, including a temporary restraining order, preliminary injunction and permanent injunction for any such breach or threatened breach. In addition to this injunctive relief, a breach by Contractor of any covenant contained herein shall also give rise to all monetary damages available in law or equity.

No Transfer. This Agreement confers no license, right, interest, or title in or to Confidential Information other than as expressly set forth in this Agreement.  

Prior Commitments.  Contractor has no other agreements, relationships, or commitments to any other person or entity that conflict with Contractor's obligations to the Company under thisAgreement.

Severable Provisions.  The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or parts thereof shall nevertheless be binding and enforceable. In the event that a court or arbitrator deems any provision of this Agreement unenforceable, the Company and Contractor agree that the court or arbitrator shall reform such provision to the extent necessary to render it enforceable to the maximum extent permitted by law.  

Binding Agreement.  The rights and obligations of the Company and Contractor under this Agreement shall inure to the benefit of and shall bind the Company’s successors and assigns, and to the extent legally permissible, to and upon the heirs, legal representatives and assigns of Contractor.  

Waiver.  A Party's failure to enforce any provision(s)of this Agreement shall not in any way qualify as a waiver of any such provision, nor prevent that Party thereafter from enforcing any provision of this Agreement. The rights granted the Parties herein are cumulative and a Party’s waiver of any single remedy shall not constitute a waiver of such Party's right to assert any other legal remedies.

Governing Law.  The laws of the State of California shall govern this Agreement State of California without regard to conflict of law principles.

Entire Agreement.  This Agreement and the Consulting Agreement comprise the sole and entire agreement of the Parties with respect to the subject matters contained herein and in the Consulting Agreement. The Agreement and the Consulting Agreement supersede all prior understandings and agreements relating to the subject matter hereof. This Agreement may not be modified except in writing, signed by Employee and the Company’s President.

Consideration.  Contractor acknowledges that he/she has not been promised, and shall not claim, any additional or special payment not set forth specifically herein, for compliance with the covenants and agreements contained herein.

Attorneys’Fees.  In any action to enforce and rights or obligations under or relating to this Agreement, the prevailing party as determined by the court or arbitrator shall recover from the other Party, in addition to all other amount and remedies awarded, reasonable attorneys’ fees and costs incurred in connection with such action I have left in this document the very broad and all inclusive definitions and examples. Ideally, we can tailor this to fit your business by more specifically describing some of the information that you create, use, and maintain that you want to protect.

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