HPS Non-Disclosure Agreement
Last Updated: 2026-01-30
This Non-Disclosure Agreement (this “Agreement”) is made by and among Health Performance Specialists, LLC, a Florida limited liability company (“HPS”), and the enrolling medical practice (“Practice”). Each of HPS and Practice are sometimes referred to herein as a “Party” and collectively, as the “Parties.”
A Party and/or its respective affiliates disclosing Confidential Information (as defined below) shall be referred to as a “Disclosing Party” and a Party and/or its respective affiliates receiving Confidential Information shall be referred to as a “Receiving Party.” Either Party may be a Disclosing Party, a Receiving Party, or both a Disclosing Party and a Receiving Party.
By submitting an order form, enrolling in membership, purchasing services, or otherwise accessing HPS services, Practice acknowledges that it has read, understands, and agrees to be bound by this Agreement.
1.0 DEFINITIONS
1.1 Confidential Information
To the extent that any such information, materials or documents are not otherwise excepted pursuant to Section 2.2 herein, “Confidential Information” means:
(i) all information, documents and material designated confidential or proprietary by a Disclosing Party, all documents and materials marked “Confidential” or “Proprietary” by a Disclosing Party, and all information, materials and documents that, based upon their content, would reasonably be deemed confidential or proprietary;
(ii) all product specifications, product data, drawings, samples, designs, inventions, improvements, know how, ideas, discoveries, source code, algorithms, business processes, formulas and formulations, documentation, techniques, samples, models, website designs, research and development data, processes and procedures, marketing techniques and materials, marketing plans and business plans, customer names, price lists and pricing policies, personnel information, supplier information, contractor information, financial statements, cost and expense data, and Trade Secrets (defined below) supplied by a Disclosing Party and/or employees to a Receiving Party; and
(iii) the following specifically listed documents, materials, and information, if any:
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1.2 Trade Secret
“Trade Secret” means any Confidential Information (or document, or material reflecting such information) that qualifies as a trade secret of a Disclosing Party under Florida and federal law at the time of its disclosure. If any document or other material is marked with “TRADE SECRET” (or a reasonably equivalent marking) by a Disclosing Party, the Receiving Party shall have five (5) days to dispute the designation in writing. Otherwise, the Parties agree that such document or other material shall be deemed to be a Trade Secret and so treated by the Receiving Party under this Agreement.
1.3 Need to Know Employee
“Need to Know Employee” means:
(i) an employee and/or an affiliate of the Receiving Party who, in the course of performing the Receiving Party’s assigned responsibilities must review or have access to Confidential Information of the Disclosing Party in order to fulfill such duties; or
(ii) a contractor, subcontractor, or agent engaged by a Receiving Party to this Agreement who, in the course of performing the Receiving Party’s assigned responsibilities must review or have access to Confidential Information of the Disclosing Party in order to fulfill such duties, provided, however, that prior to such disclosure, the Disclosing Party is notified that such individual is not an employee, the Disclosing Party consents to such disclosure.
For avoidance of doubt, the Parties’ accountants and attorneys may receive Confidential Information of the Disclosing Party, to the extent reasonably necessary, without the need for the Receiving Party to obtain the consent of the Disclosing Party or provide a written document protecting such information, executed by the individual.
The term “affiliates” means all entities controlling, controlled by or under common control with a party, as the case may be. The term “control” shall mean the ability to vote fifty percent (50%) or more of the voting securities of any entity or otherwise having the ability to influence and direct the policies and direction of an entity.
1.4 Responsibility for Disclosure
The Parties shall each be liable and responsible for any improper use or disclosure of Confidential Information by its employees and agents who receive such Confidential Information, directly or indirectly, from such Party.
2.0 LIMITATIONS ON DISCLOSURE AND USE
2.1 Permitted Use of Confidential Information
The Receiving Party may use the Confidential Information of the Disclosing Party solely and exclusively as follows:
In furtherance of the business relationship between HPS and the Practice.
Each Receiving Party agrees:
(i) the Receiving Party’s rights to use Confidential Information of the Disclosing Party as set forth in this Section 2.1 shall terminate immediately upon expiration or termination of this Agreement;
(ii) the Receiving Party (a) shall not disclose any such information to any person or entity other than a Need to Know Employee, and (b) shall not use any such information for any purpose(s) other than those set forth in this Section 2.1, unless the Receiving Party first obtains the prior written consent of the Disclosing Party;
(iii) disclosures of Confidential Information may not be made hereunder for a period of five (5) years after the Effective Date, or until the Agreement is terminated by either party upon written notice to the other party. Notwithstanding the above, all obligations under this Agreement will expire ten (10) years after the expiration or termination of this Agreement. With respect to Confidential Information that is a Trade Secret, the Receiving Party’s obligations of non-use and nondisclosure shall continue for the term of this Agreement and thereafter for the longer of ten (10) years after the termination or expiration of this Agreement, and the period of time during which such Confidential Information remains a Trade Secret;
(iv) the Receiving Party shall exercise no less than the same standard of care to avoid unauthorized use, disclosure, publication or dissemination of the Confidential Information of the Disclosing Party that it uses to protect its own confidential information of similar kind, but in no event less than reasonable care; and
(v) the Receiving Party (a) shall take appropriate action by way of instructions to, and written agreements with, all Need to Know Employees to advise such Need to Know Employees of, and require such Need to Know Employees to comply with, all obligations pertaining to the protection of the Confidential Information of the Disclosing Party required under this Agreement.
2.2 Exceptions
The Receiving Party shall not be liable for disclosure or use of Confidential Information of the Disclosing Party in a manner not permitted by Section 2.1 if the same:
(i) is available to the general public or becomes publicly known through no wrongful action or inaction by any person under an obligation of confidentiality with respect to such Confidential Information including, without limitation, the Receiving Party or any employee, agent, officer, member, or manager of the Receiving Party;
(ii) is independently developed by the Receiving Party without reference to, or use of, any Confidential Information of the Disclosing Party;
(iii) is required by law to be disclosed (provided that the Receiving Party has used reasonable efforts to make such disclosure subject to an appropriate protective order or confidentiality agreement and has given prior written notice to the Disclosing Party with sufficient time for the Disclosing Party to seek legal protection against such disclosure, where such notice is permitted by law);
(iv) was lawfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party; or
(v) is disclosed to the Receiving Party by a third party not under an obligation of confidence with respect to the Confidential Information.
3.0 COPIES
If, in order to utilize the Confidential Information, it becomes necessary for the Receiving Party to copy, in whole or in part, any of the Confidential Information, the Receiving Party may do so, but only for the purpose(s) described in this Agreement.
4.0 RETURN / DESTRUCTION
4.1 Return or Destruction Upon Completion or Termination
Upon achieving the purpose intended hereunder, or upon written request by the Disclosing Party or in the event of the termination of this Agreement by expiration or otherwise, whichever is earlier, the Receiving Party shall destroy or return to the Disclosing Party all copies of the Confidential Information of the Disclosing Party that are in the possession of, or subject to the control of, the Receiving Party, including all originals and all notes, summaries and partial and complete copies thereof.
4.2 Destruction with Certification
With the prior written consent of the Disclosing Party, the Receiving Party may, in lieu of returning the Confidential Information, destroy the Confidential Information of the Disclosing Party within its possession or control, including originals and all notes, summaries and partial and complete copies thereof, and provide the Disclosing Party with a written certification attesting to such destruction. Notwithstanding the foregoing, the Receiving Party may retain a copy of Confidential Information for the sole purpose of determining its obligations hereunder.
4.3 Immediate Return or Destruction
Notwithstanding any provision to the contrary, when, in the sole opinion of the Disclosing Party, the Disclosing Party’s interests in the Confidential Information are in jeopardy, the Disclosing Party may notify the Receiving Party and the Receiving Party shall immediately destroy or return the Confidential Information, including originals and all notes, summaries and partial and complete copies thereof to the Disclosing Party, even if such notice is given subsequent to the termination or expiration of this Agreement, and thereafter cease all use of such Confidential Information.
5.0 INJUNCTIVE RELIEF
The Receiving Party acknowledges:
(i) the Confidential Information disclosed to it by the Disclosing Party hereunder has commercial value and is not in the public domain;
(ii) unauthorized use or disclosure of Confidential Information is likely to cause irreparable injury not readily measurable in monetary damages; and
(iii) in the event of unauthorized disclosure or use, the Disclosing Party shall be entitled, without prejudice to any other rights, recourses or remedies it may have under this Agreement, at law or in equity, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
6.0 WARRANTIES
Each Party warrants and represents to the other Party that the Disclosing Party in each case has the right to disclose the Confidential Information to the Receiving Party, and that such disclosure and subsequent use by the Receiving Party for the purposes permitted herein shall not violate any law, regulation or agreement, or infringe or otherwise violate any right of any third party.
7.0 NO LICENSE
No license under any trademark, patent, copyright, mask work right, publicity right, or any other intellectual property right, is granted or implied by the disclosing of Confidential Information by a Disclosing Party. No disclosure or exchange of Confidential Information shall constitute a representation, warranty, assurance, guarantee, or inducement by either Party to the other of any kind, and in particular, with respect to the non-infringement of trademarks, patents, copyrights, or any intellectual property rights or other rights of third persons. Except as is set forth in Section 6.0 (Warranties and Indemnification) above, all Confidential Information is provided AS IS, with no warranties whatsoever.
8.0 NO FUTURE PROMISES
Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply a promise or intention to make any purchase of products or services by either Party or its affiliated companies, or any commitment by either Party or its affiliated companies with respect to the present or future agreements.
9.0 CONFIDENTIALITY OF DISCUSSIONS
The Parties agree not to announce or disclose to any third party their participation in discussions concerning the Confidential Information, or the nature of any such discussions, without first securing the prior written approval of the other Party.
10.0 ENTIRE AGREEMENT
The provisions, terms, and conditions of this Agreement represent the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements, understandings, documents, negotiations, and/or discussions (oral or written). No supplement, amendment, or modification to this Agreement shall be valid, enforceable, or binding upon the Parties unless made in a writing signed by authorized representatives of both Parties. The indemnification and defense obligations set forth herein may only be modified, limited or extinguished through a writing signed by authorized representatives of both parties and expressly referencing this Section 10.0 (Entire Agreement) and clearly stating the Parties’ intent to modify those obligations.
11.0 SEVERABILITY
The provisions of this Agreement are deemed to be severable and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions which shall continue in full force and effect.
12.0 COUNTERPARTS AND FACSIMILE EXECUTION
This Agreement may be signed in counterparts, which when signed by the Parties hereto shall be deemed to be one and the same instrument. This Agreement may also be executed by facsimile transmissions and electronic signatures.
13.0 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida irrespective of the principles of conflicts of laws.
