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EVALUATION AND NONDISCLOSURE AGREEMENT

This Agreement is made between Smith & Nephew, Inc., 1450 Brooks Road, Memphis, TN 38116, or affiliates (hereafter referred to as “Smith & Nephew”) and ___________________, (hereafter referred to as “Recipient”).

WHEREAS, it is the desire of Smith & Nephew and Recipient to enter into a relationship wherein Smith & Nephew (and employees of its affiliated companies) will disclose to Recipient certain CAD data and other proprietary information regarding its implants for trauma procedures or hip or knee arthroplasty (hereafter “Confidential Information”) which Smith & Nephew deems highly confidential and proprietary; and

WHEREAS, it is the intent of this Agreement to protect the confidentiality of such Information as Smith & Nephew deems confidential and allow Recipient to use the Information in such a manner as to further the business relationship between Smith & Nephew and Recipient, specifically, to allow Recipient to create 2-dimensional digital templates of Smith & Nephew's trauma or hip and/or knee arthroplasty implants in Recipient's pre-operative planning systems (hereafter the “Authorized Purpose”).

NOW, THEREFORE, in consideration of the above and the disclosure of such Confidential Information, the parties agree as follows:

Information, including know-how or knowledge, will be disclosed by Smith & Nephew, (and/or its affiliates) to Recipient to the extent determined by Smith & Nephew in its sole discretion for the Authorized Purpose. Without in any way limiting its generality, Confidential Information may take the form of electronic data, photographs, samples, specifications, drawings, documents and the like.
All Confidential Information disclosed shall remain the sole and absolute property of Smith & Nephew.
Recipient shall not, without the prior written authorization from Smith & Nephew, use the Confidential Information disclosed by Smith & Nephew pursuant to Paragraph 1 20181115_NDA - Digital Templating Page 2 (including information created or obtained through testing or other evaluation precipitated by the receipt of Information) for any purpose other than for the Authorized Purpose. Further, Recipient shall protect such Confidential Information against disclosure to third parties. Recipient agrees to limit disclosure of Confidential Information to only those employees (including employees of affiliated companies), and representatives of Recipient who require such information in order to achieve the Authorized Purpose, each of whom Recipient shall cause to be bound by the terms hereof by written Agreement as though they are parties hereto.
The parties agree that Confidential Information shall not include any information which:
1. is or becomes part of the public domain without violation of this Agreement;
2. is known to and on record with Recipient prior to disclosure by Smith & Nephew as evidenced by contemporaneous records in Recipient’s possession;
3. is lawfully obtained by Recipient from a third party not obligated to keep such information confidential;
4. is ascertainable from a commercially available product the production of which is not in violation of the rights of Smith & Nephew.
The exceptions of this Paragraph 4 shall not apply to any specific information merely because it is included in more general nonconfidential information, nor to any specific combination of information, merely because individual elements, but not the combination, are included in nonconfidential information
Upon the conclusion of Smith & Nephew’s relationship with Recipient, or upon request of Smith & Nephew at any time, the Confidential Information so disclosed (including that created or obtained), as well as all copies and memoranda made therefrom, shall be returned to Smith & Nephew to ensure that inadvertent disclosure to others does not take place. Recipient agrees to delete all aspects of Confidential Information from Recipient’s software and hardware systems.
Nothing herein contained shall be construed as a grant by implication, estoppel or otherwise, of a license from Smith & Nephew to make, have made, use or sell any product using Confidential Information or as a licensee, under any patent, patent application, utility model, copyright, mask work right, or any other industrial or intellectual property right covering same.
The parties hereby agree that each party shall be entitled to injunctive relief against any actual or threatened breach of this Agreement by the other party, without prejudice to any other available remedies, provided, however, that each party hereby waives the right to a jury trial.
This Agreement is solely for the purpose of governing the disclosure of Confidential Information as defined herein in the context of the Authorized Purpose. In the event that the parties enter into a subsequent written agreement, the provisions of such agreement concerning Confidential Information shall supersede and prevail over any conflicting provisions of this Agreement.
The parties hereby agree that a breach of this Agreement may cause irreparable damage that cannot be addressed adequately by money damages. In addition to any other remedies that may be available, Smith & Nephew is therefore entitled to seek injunctive relief to prevent or restrain a breach of this section, without having to post bond or other security.
This Agreement shall be governed and construed in accordance with the laws of Tennessee.

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