Watergate II or The Borg?:Public Funds Being Used to Create Private Wealth? per NC Medicaid Waiver as Western Highlands Network is Bullied by pbH LME
The document below almost caused me to weep for the citizens of NC.
Here's the outline of what I think is taking place:
Piedmont Behavioral Health (pbH, as they so cutely call themselves), which is an LME, or public mental health agency under NC DHHS---just like Western Highlands Network LME or Smoky Mountain Center LME-----covering all of western NC re:Medicaid and state funded mental health services----is twisting,big time, the arm of WHN LME. Who cares,you say?
Well, pbH is funded by tax-payers as is WHN and SMC. pbH wants to own WHN LME, hook, line, and sinker. If you don't believe that, simply read the public document below.
And from WHN LME, they will simply move on to their next conquest w/ a similar arm-twisting 'Non-Disclosure Agreement.' I assume that SMC LME is next.
Unless I am badly mistaken, sitting behind pbH is Daymark Recovery, a private, for profit company in eastern NC (I do have one client in western NC, whom receives psychiatric services from a Daymark Recovery psychiatrist via a modality here which I will not describe as I do not want to be sued, and I wrote him/ her a letter re: his medication which caused her to go to jail; that psychiatrist, duh, denied that). So much trouble ensued, that the client and talked about the possibility of suing that psychiatrist.
Maybe some activist has the information linking Daymark Recovery to pbH?
Daymark Recovery insures 38,000 lives in terms of mental health services. I'm betting that they are the largest private mental health company in this state.
Yesterday, the Executive Board of WHN LME met and one of the public documents given to anyone that was there was the pbH 'Non-Disclosure Agreement' (see below; I copied the entire thing and nothing is changed except for underlining and bolding some of the headers: this is what the WHN LME looked at and voted down yesterday----God bless those brave people).
pbH was able to 'offer' this 'Non-Disclosure Agreement' as they (pat on the back, boyo) have been in the Medicaid Waiver business a la NC DHHS/ NC Medicaid since 2005. Therefore, they are now acting like they can very exactingly tell everyone else what to do, how to do it, and how long they are going to do it.
Its a very , very scary contract which is being hoisted onto the backs of NC citizens in order that public monies be used to line private pocket. (there will be no justice in the land until medical care is non-profit)
If this isn't Jean Luc Picard's (see Star Trek) Borg experience, I don't know what is. I'm looking around to see if I should be meeting someone in a garage a la Watergate but hey, folks: this is a public document. I simply copied it.
Its as if an alien, for profit, out only for themselves------ empire swooped down on a public entity and said sign this or we throw you off the train with an 85 pound bag of concrete tied to you-----and this is exactly what the WHN LME attorney said would happen if the Board did not approve this 'Non-Disclosure Agreement.'
When I digitalize the film given to me by Jerry Rice, simply a private man who states that his 'ministry' is to record every single Buncombe County public meeting since 1999----for no pay, he states-----it will be seen what took place yesterday during that WHN LME meeting.
Read it in its entirety below. Even Jean Luc Picard weeped when he was overtaken by the Borg (but he got his identity back-----eventually) . The section on "Moral Rights", in particular, made me shudder. But then, even that shudder was offset by the knife that I personally felt in my own back re: the 'we've signed this voluntarily.'
______________________________________________________________
pbH
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (“Agreement”) is effective as of May 2, 2011 (“Effective Date”) by and between PBH, a Managed Behavioral Healthcare Organization, having its principal place of business at 245 LePhillip Court, Concord, North Carolina 28025 (“PBH”)) and Western Highlands Network a Local Management Entity, having its principal place of business at 356 Biltmore Avenue, Asheville, NC 28802 (“WHN”)
In consideration of the mutual covenants and agreements hereafter set forth, the parties agree as follows:
Relationship of the Parties. WHN desires to operate North Carolina’s 1915 (b) and 1915(c) Medicaid waivers and to contract with the North Carolina Division of Medical Assistance to manage behavioral health benefits for Medicaid consumers. PBH has operated the 1915(b) and 1915(c) waivers since 2005. PBH has agreed to share with WHN Proprietary Information which PBH has developed during its five years of operating the waivers. WHN will contract with various contractors who may have access to and utilize PBH’s Proprietary Information as part of the business relationship ship between WHN and its contractors. This agreement addresses the desire that Proprietary Information shared with WHN will be used exclusively to prepare WHN to operate the waivers and for no other purpose. Specifically, PBH and WHN desire that Proprietary Information which is shared may not be used, sold, licensed, or any way offered for the benefit of any party other than WHN. WHN agrees to require any contractor who may have access to the Proprietary Information to be bound by the terms of this Agreement.
Term/ Termination. This Agreement will commence on the Effective Date and continue, unless terminated earlier pursuant to this Section 2, until 5( five ) years thereafter. This Agreement may be terminated by either party at any time by giving written notice of termination to the other party. In the events of such termination, WHN will be obligated to return to PBH all Proprietary Information and to destroy any copies of the Proprietary Information, whether it is in hard copy, electronic, or any other form, whether in the possession of WHN or a WHN contractor, with 7 (seven) days of the date of the written notice of termination.
Confidentiality
a. Proprietary Information. WHN understands that PBH possesses and will possess Proprietary Information that is important to its business. For purpose of this Agreement, “Proprietary Information” is all information that is disclosed to WHN by, or on behalf of PBH, and that is developed at PBH’s facilities or with use of PBH’s equipment and/or personnel. Proprietary Information includes, but is not limited to, information (and all tangible items in any form incorporating, embodying or containing information) relating to (a) all client, customer, vendor, and contractor lists and all lists or other compilations containing client, customer, vendor, or contractor information; (b) information about products, proposed products, research, product development, know-how, techniques, processes, costs, markets, marketing plans, strategies, forecasts, sales, and unpublished information relating to technological and scientific developments; (c) plans or ideas for future development and new produict concepts; (d) all techniques or processes,documents, books, papers, drawings, schematics, models, sketches, computer programs, data bases, and other data of any kind and descriptions including electronic data recorded or retrieved by any means; (e) the compensation, performance and terms of employment of PBH employees; (f) software in various stages of development, and any designs, drawings, schematics, specifications, techniques, models, data, source code, algorithms, object code, documentation, diagrams, flow charts, research and development, processes and procedures relating to any software; and (g) all other information that has been or will be given to WHN in confidence by PBH (or any affiliate) concerning PBH’s actual or anticipated business, research or development or that is received in confidence by or for PBH from any other person or entity. Proprietary Information does not include information that WHN demonstrates, by written documentation created in the ordinary course of business, (i) is in the public domain through lawful means that do not directly or indirectly result from any act or omission of WHN in breach of its obligations hereunder; (ii) was already rightfully known or available to disclosure to WHN; (iii) is independently developed by WHN; (iv) is disclosed under operation of Law, provided WHN has promptly notified PBH of any legal process requiring production of Proprietary Information prior to compliance and has taken all reasonable precautions to ensure confidential treatment of any information so disclosed; (v) is disclosed by WHN with PBH’s prior written approval.
Non-DisClosure. WHN understands that this Agreement creates a relationship of confident and trust between WHN and PBH with regard to Proprietary Information. WHN will at all times, both during and after the term of the Agreement, keep the Proprietary Information securely in confidence and trust. WHN will not without the prior written consent of an authorized representative of PBH (i) copy, use of disclose any Proprietary Information, (ii) remove any Proprietary Information from the business premises of WHN, or (iii) deliver any Proprietary Information to any person or entity outside WHN. Notwithstanding the foregoing, WHN may use the Proprietary Information (and disclose and deliver same to WHN’s contractors, if applicable, who have a need to know, provided such contractors have previously entered into written agreements protecting third-party proprietary information received by WHN and containing provisions at least as restrictive as those set form in the Section 4) as may be necessary and appropriate for WHN to operate North Carolina’s 1915(b) and 1925(c) Medicaid waivers and to contract with the North Carolina Division of Medical Assistance to manage behavioral health benefits for Medicaid consumers.
Ownership and License.
a. Assignment of Proprietary Information. All Proprietary Information covered by this Agreement and proprietary rights of any kind that pertain to the Proprietary Information, which currently exist or may exist in the future (collectively, the “Rights”), shall be the sole property of PBH. WHN hereby irrevocably assigns and agrees to assign to PBH, without further consideration, any and all Rights that WHN may have or acquire in the Proprietary Information, except as is otherwise agreed to in writing by the parties.
b. Cooperation. WHN agrees to perform, during and after the term of this Agreement, all acts deemed necessary or desirable by PBH to permit and assist it, at WHN’s expense, in evidencing, perfecting, obtaining, maintaining, defending and enforcing Rights and/ or WHN’s assignments herein. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings. If WHN is unable or unwilling to perform the acts required by this provision, WHN hereby irrevocably designates and appoints PBH and its duly authorized officers and agents, as WHN’s agents and attorneys-in-fact, with full power of substitution, to act for and in behalf and instead of WHN, to execute and file any documents and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by WHN.
c. Moral Rights. Any assignment of copyrights hereunder (and any ownership of a copyrights as a work made for hire) includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively, “Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the laws in the various countries where Moral Rights exit, WHN hereby ratified and consents to any action of PBH that would violate such Moral Rights in the absence of such ratification/ consent. WHN will confirm any such ratifications and consents from time to time as requested by PBH.
d. Interference With PBH Business. WHN agrees that for the term of this Agreement as described in Section 2 and for a period of six (6) months following any termination of the Agreement, WHN shall not, for itself or any third party, directly or indirectly divert or attempt to divert from PBH (or any affiliate of it that might be formed) any business of any kind in which PB H is engaged including, without limitation, the solicitation of or interference with any of its customers, clients or vendors. WHN understands that none of the foregoing activities will be prohibited if WHN can prove that the action was taken without the use in any way of Proprietary Information.
e. Privacy. WHN recognizes and agrees that it has no expectation of privacy with respect to PBH’s telecommuncations, networking, or information processing systems (including, without limitation, stored computer files, e mail messages and voice messages( and WHN’s activity, and any files or messages, on any of those systems may be monitored at any time without notice.
Independent Entities. The Parties shall act as independent entities and not as an employees or authorized agents of each other. The Parties have no authority to enter into contracts or binding commitments in the name or on behalf of the other. The Parties will not use each other’s logos or marks without prior written approval, and then such use shall be only for the benefit of the other Party and the at the direction of the other Party. The Parties shall not be, nor represent themselves as being, authorized to bind the other Party.
Representations and Warranties. Each Party represents and warrants that, as of the Effective Date and at all ties during the term of this Agreement: (i) this Agreement will not breach any agreement that either Party has with any other party including, without limitation, any agreement to keep in confidence proprietary information acquired in confidence or trust prior to the executive of this Agreement; (ii) neither Party is, nor will be bound by any agreement, nor will they assume any obligation, which would in any way be inconsistent with this Agreement; (iii) neither Party will disclose to, or induce the other Party to use, any confidential or proprietary information of any person or entity other than themselves; and (iv) each Party’s employees and contractors, as applicable, have executed written non-disclosure, assignment of rights, and other appropriate agreements sufficient to protect the confidentiality of the Proprietary Information, and sufficient to allow the Parties to grant the assignments and licenses as provided herein.
Indemnity. Each Party agrees to defend, indemnify and hold the other Party and their affiliates (and their respective employees, directors and representatives( harmless against any and all losses, liabilities, damages, claims, demands and suits and related costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs (arising or resulting, directly or indirectly, from (i) any act or omission or breach of any representation, warranty or covenant of this Agreement of the indemnifying Party, or (ii) infringement of any third-party intellectual property rights by the indemnifying Party.
Limit of Liability. NOTWITHSANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THE FOREGOING LIMITATION DOESNOT APPLY TO EITHER PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 3, ASSIGNMENT AND DISCLOSURE UNDER SECTION 4, OR INDEMNITY UNDER SECTION 7.
Miscellaneous.
a. Governing Law. WHN agrees that any dispute in the meaning effect or validity of this Agreement shall be resolved in accordance with the laws of the State of North Carolina without regard to the conflict of laws provisions thereof. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or excluded from this Agreement to the minimum extent required, and the balance of the Agreement shall be interpreted as if such provision was so limited or excluded and shall be enforceable in accordance with its terms.
b. Assignment. This Agreement (together with all attached exhibits) shall be binding upon WHN, and inure to the benefit of the parties hereto and their respective heirs, successors, assigns, and personal representatives; provided, however, that WHN shall not assign any of its rights or delegate any of its duties hereunder without PBH’s prior written consent and any attempted assignment or delegation will be void.
c. Entire Agreement/ Modifications. This Agreement (together with all executed Work Statements and attached exhibits( contains the entire understanding of the parties regarding its subject matter. This Agreement may only be modified by a subsequent written agreement executed by authorized representative of both parties.
d. Notice. All notices required or given under this Agreement shall be deemed given upon receipt or upon deposit in the US mail, postage pre-paid; by facsimile; or by commercial overnight delivery service with tracking capabilities.
e. Remedies. WHN recognizes that nothing in this Agreement is intended to limit any remedy of PBH under the Uniform Trade Secrets Act and other trade secre laws and that WHN could face p0ossible criminal and civil actions, resulting in substantial monetary liability if WHN misappropriates PBH’s trade secrets. In addition, WHN recognizes that a violation of this Agreement could cause PBH irreparable harm, the amo0unt of may be extremely difficult to estimate, thus making any remedy at law inadequate. Therefore, WHN agrees that PBH shall have the right to apply to any court of competent jurisdiction for an order restraining any breach of threatened breach of this Agreement and for any other relief PBH deems appropriate without being required to post any bond or other security. This right shall be in addition to any other remedy available to PBH in law or eq1uity.
f. Survival. The provisions of this Agreement that may be reasonably interpreted as surviving its termination shall continue in effect after termination of this Agreement. PBH is entitled to communicate WHN’s obligations under this Agreement to any customers, clients, vendors, or contractors of WHN.
g. Time. TIME IS OF THE ESSENCE INTHIS AGREEMENT, AND THE TERMS HEREOF SHALL BE SO CONSTRUED.
WHN HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS WHICH IT IMPOSES UPON WHN WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADETO WHN TO INDUCE WHN TO SIGN THIS AGREEMENT. WHN SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY.
In witness whereof , THE PARTIES HERETO HAVE EXECUTIED THIS Agreement as of the first day above written,
For PBH
By: __________________________________
Daniel R. Coughlin
CEO
For Western Highlands Network
By: ___________________________________
Arthur D. Carder, Jr.
CEO
Here's the outline of what I think is taking place:
Piedmont Behavioral Health (pbH, as they so cutely call themselves), which is an LME, or public mental health agency under NC DHHS---just like Western Highlands Network LME or Smoky Mountain Center LME-----covering all of western NC re:Medicaid and state funded mental health services----is twisting,big time, the arm of WHN LME. Who cares,you say?
Well, pbH is funded by tax-payers as is WHN and SMC. pbH wants to own WHN LME, hook, line, and sinker. If you don't believe that, simply read the public document below.
And from WHN LME, they will simply move on to their next conquest w/ a similar arm-twisting 'Non-Disclosure Agreement.' I assume that SMC LME is next.
Unless I am badly mistaken, sitting behind pbH is Daymark Recovery, a private, for profit company in eastern NC (I do have one client in western NC, whom receives psychiatric services from a Daymark Recovery psychiatrist via a modality here which I will not describe as I do not want to be sued, and I wrote him/ her a letter re: his medication which caused her to go to jail; that psychiatrist, duh, denied that). So much trouble ensued, that the client and talked about the possibility of suing that psychiatrist.
Maybe some activist has the information linking Daymark Recovery to pbH?
Daymark Recovery insures 38,000 lives in terms of mental health services. I'm betting that they are the largest private mental health company in this state.
Yesterday, the Executive Board of WHN LME met and one of the public documents given to anyone that was there was the pbH 'Non-Disclosure Agreement' (see below; I copied the entire thing and nothing is changed except for underlining and bolding some of the headers: this is what the WHN LME looked at and voted down yesterday----God bless those brave people).
pbH was able to 'offer' this 'Non-Disclosure Agreement' as they (pat on the back, boyo) have been in the Medicaid Waiver business a la NC DHHS/ NC Medicaid since 2005. Therefore, they are now acting like they can very exactingly tell everyone else what to do, how to do it, and how long they are going to do it.
Its a very , very scary contract which is being hoisted onto the backs of NC citizens in order that public monies be used to line private pocket. (there will be no justice in the land until medical care is non-profit)
If this isn't Jean Luc Picard's (see Star Trek) Borg experience, I don't know what is. I'm looking around to see if I should be meeting someone in a garage a la Watergate but hey, folks: this is a public document. I simply copied it.
Its as if an alien, for profit, out only for themselves------ empire swooped down on a public entity and said sign this or we throw you off the train with an 85 pound bag of concrete tied to you-----and this is exactly what the WHN LME attorney said would happen if the Board did not approve this 'Non-Disclosure Agreement.'
When I digitalize the film given to me by Jerry Rice, simply a private man who states that his 'ministry' is to record every single Buncombe County public meeting since 1999----for no pay, he states-----it will be seen what took place yesterday during that WHN LME meeting.
Read it in its entirety below. Even Jean Luc Picard weeped when he was overtaken by the Borg (but he got his identity back-----eventually) . The section on "Moral Rights", in particular, made me shudder. But then, even that shudder was offset by the knife that I personally felt in my own back re: the 'we've signed this voluntarily.'
______________________________________________________________
pbH
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (“Agreement”) is effective as of May 2, 2011 (“Effective Date”) by and between PBH, a Managed Behavioral Healthcare Organization, having its principal place of business at 245 LePhillip Court, Concord, North Carolina 28025 (“PBH”)) and Western Highlands Network a Local Management Entity, having its principal place of business at 356 Biltmore Avenue, Asheville, NC 28802 (“WHN”)
In consideration of the mutual covenants and agreements hereafter set forth, the parties agree as follows:
Relationship of the Parties. WHN desires to operate North Carolina’s 1915 (b) and 1915(c) Medicaid waivers and to contract with the North Carolina Division of Medical Assistance to manage behavioral health benefits for Medicaid consumers. PBH has operated the 1915(b) and 1915(c) waivers since 2005. PBH has agreed to share with WHN Proprietary Information which PBH has developed during its five years of operating the waivers. WHN will contract with various contractors who may have access to and utilize PBH’s Proprietary Information as part of the business relationship ship between WHN and its contractors. This agreement addresses the desire that Proprietary Information shared with WHN will be used exclusively to prepare WHN to operate the waivers and for no other purpose. Specifically, PBH and WHN desire that Proprietary Information which is shared may not be used, sold, licensed, or any way offered for the benefit of any party other than WHN. WHN agrees to require any contractor who may have access to the Proprietary Information to be bound by the terms of this Agreement.
Term/ Termination. This Agreement will commence on the Effective Date and continue, unless terminated earlier pursuant to this Section 2, until 5( five ) years thereafter. This Agreement may be terminated by either party at any time by giving written notice of termination to the other party. In the events of such termination, WHN will be obligated to return to PBH all Proprietary Information and to destroy any copies of the Proprietary Information, whether it is in hard copy, electronic, or any other form, whether in the possession of WHN or a WHN contractor, with 7 (seven) days of the date of the written notice of termination.
Confidentiality
a. Proprietary Information. WHN understands that PBH possesses and will possess Proprietary Information that is important to its business. For purpose of this Agreement, “Proprietary Information” is all information that is disclosed to WHN by, or on behalf of PBH, and that is developed at PBH’s facilities or with use of PBH’s equipment and/or personnel. Proprietary Information includes, but is not limited to, information (and all tangible items in any form incorporating, embodying or containing information) relating to (a) all client, customer, vendor, and contractor lists and all lists or other compilations containing client, customer, vendor, or contractor information; (b) information about products, proposed products, research, product development, know-how, techniques, processes, costs, markets, marketing plans, strategies, forecasts, sales, and unpublished information relating to technological and scientific developments; (c) plans or ideas for future development and new produict concepts; (d) all techniques or processes,documents, books, papers, drawings, schematics, models, sketches, computer programs, data bases, and other data of any kind and descriptions including electronic data recorded or retrieved by any means; (e) the compensation, performance and terms of employment of PBH employees; (f) software in various stages of development, and any designs, drawings, schematics, specifications, techniques, models, data, source code, algorithms, object code, documentation, diagrams, flow charts, research and development, processes and procedures relating to any software; and (g) all other information that has been or will be given to WHN in confidence by PBH (or any affiliate) concerning PBH’s actual or anticipated business, research or development or that is received in confidence by or for PBH from any other person or entity. Proprietary Information does not include information that WHN demonstrates, by written documentation created in the ordinary course of business, (i) is in the public domain through lawful means that do not directly or indirectly result from any act or omission of WHN in breach of its obligations hereunder; (ii) was already rightfully known or available to disclosure to WHN; (iii) is independently developed by WHN; (iv) is disclosed under operation of Law, provided WHN has promptly notified PBH of any legal process requiring production of Proprietary Information prior to compliance and has taken all reasonable precautions to ensure confidential treatment of any information so disclosed; (v) is disclosed by WHN with PBH’s prior written approval.
Non-DisClosure. WHN understands that this Agreement creates a relationship of confident and trust between WHN and PBH with regard to Proprietary Information. WHN will at all times, both during and after the term of the Agreement, keep the Proprietary Information securely in confidence and trust. WHN will not without the prior written consent of an authorized representative of PBH (i) copy, use of disclose any Proprietary Information, (ii) remove any Proprietary Information from the business premises of WHN, or (iii) deliver any Proprietary Information to any person or entity outside WHN. Notwithstanding the foregoing, WHN may use the Proprietary Information (and disclose and deliver same to WHN’s contractors, if applicable, who have a need to know, provided such contractors have previously entered into written agreements protecting third-party proprietary information received by WHN and containing provisions at least as restrictive as those set form in the Section 4) as may be necessary and appropriate for WHN to operate North Carolina’s 1915(b) and 1925(c) Medicaid waivers and to contract with the North Carolina Division of Medical Assistance to manage behavioral health benefits for Medicaid consumers.
Ownership and License.
a. Assignment of Proprietary Information. All Proprietary Information covered by this Agreement and proprietary rights of any kind that pertain to the Proprietary Information, which currently exist or may exist in the future (collectively, the “Rights”), shall be the sole property of PBH. WHN hereby irrevocably assigns and agrees to assign to PBH, without further consideration, any and all Rights that WHN may have or acquire in the Proprietary Information, except as is otherwise agreed to in writing by the parties.
b. Cooperation. WHN agrees to perform, during and after the term of this Agreement, all acts deemed necessary or desirable by PBH to permit and assist it, at WHN’s expense, in evidencing, perfecting, obtaining, maintaining, defending and enforcing Rights and/ or WHN’s assignments herein. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings. If WHN is unable or unwilling to perform the acts required by this provision, WHN hereby irrevocably designates and appoints PBH and its duly authorized officers and agents, as WHN’s agents and attorneys-in-fact, with full power of substitution, to act for and in behalf and instead of WHN, to execute and file any documents and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by WHN.
c. Moral Rights. Any assignment of copyrights hereunder (and any ownership of a copyrights as a work made for hire) includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively, “Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the laws in the various countries where Moral Rights exit, WHN hereby ratified and consents to any action of PBH that would violate such Moral Rights in the absence of such ratification/ consent. WHN will confirm any such ratifications and consents from time to time as requested by PBH.
d. Interference With PBH Business. WHN agrees that for the term of this Agreement as described in Section 2 and for a period of six (6) months following any termination of the Agreement, WHN shall not, for itself or any third party, directly or indirectly divert or attempt to divert from PBH (or any affiliate of it that might be formed) any business of any kind in which PB H is engaged including, without limitation, the solicitation of or interference with any of its customers, clients or vendors. WHN understands that none of the foregoing activities will be prohibited if WHN can prove that the action was taken without the use in any way of Proprietary Information.
e. Privacy. WHN recognizes and agrees that it has no expectation of privacy with respect to PBH’s telecommuncations, networking, or information processing systems (including, without limitation, stored computer files, e mail messages and voice messages( and WHN’s activity, and any files or messages, on any of those systems may be monitored at any time without notice.
Independent Entities. The Parties shall act as independent entities and not as an employees or authorized agents of each other. The Parties have no authority to enter into contracts or binding commitments in the name or on behalf of the other. The Parties will not use each other’s logos or marks without prior written approval, and then such use shall be only for the benefit of the other Party and the at the direction of the other Party. The Parties shall not be, nor represent themselves as being, authorized to bind the other Party.
Representations and Warranties. Each Party represents and warrants that, as of the Effective Date and at all ties during the term of this Agreement: (i) this Agreement will not breach any agreement that either Party has with any other party including, without limitation, any agreement to keep in confidence proprietary information acquired in confidence or trust prior to the executive of this Agreement; (ii) neither Party is, nor will be bound by any agreement, nor will they assume any obligation, which would in any way be inconsistent with this Agreement; (iii) neither Party will disclose to, or induce the other Party to use, any confidential or proprietary information of any person or entity other than themselves; and (iv) each Party’s employees and contractors, as applicable, have executed written non-disclosure, assignment of rights, and other appropriate agreements sufficient to protect the confidentiality of the Proprietary Information, and sufficient to allow the Parties to grant the assignments and licenses as provided herein.
Indemnity. Each Party agrees to defend, indemnify and hold the other Party and their affiliates (and their respective employees, directors and representatives( harmless against any and all losses, liabilities, damages, claims, demands and suits and related costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs (arising or resulting, directly or indirectly, from (i) any act or omission or breach of any representation, warranty or covenant of this Agreement of the indemnifying Party, or (ii) infringement of any third-party intellectual property rights by the indemnifying Party.
Limit of Liability. NOTWITHSANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THE FOREGOING LIMITATION DOESNOT APPLY TO EITHER PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 3, ASSIGNMENT AND DISCLOSURE UNDER SECTION 4, OR INDEMNITY UNDER SECTION 7.
Miscellaneous.
a. Governing Law. WHN agrees that any dispute in the meaning effect or validity of this Agreement shall be resolved in accordance with the laws of the State of North Carolina without regard to the conflict of laws provisions thereof. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or excluded from this Agreement to the minimum extent required, and the balance of the Agreement shall be interpreted as if such provision was so limited or excluded and shall be enforceable in accordance with its terms.
b. Assignment. This Agreement (together with all attached exhibits) shall be binding upon WHN, and inure to the benefit of the parties hereto and their respective heirs, successors, assigns, and personal representatives; provided, however, that WHN shall not assign any of its rights or delegate any of its duties hereunder without PBH’s prior written consent and any attempted assignment or delegation will be void.
c. Entire Agreement/ Modifications. This Agreement (together with all executed Work Statements and attached exhibits( contains the entire understanding of the parties regarding its subject matter. This Agreement may only be modified by a subsequent written agreement executed by authorized representative of both parties.
d. Notice. All notices required or given under this Agreement shall be deemed given upon receipt or upon deposit in the US mail, postage pre-paid; by facsimile; or by commercial overnight delivery service with tracking capabilities.
e. Remedies. WHN recognizes that nothing in this Agreement is intended to limit any remedy of PBH under the Uniform Trade Secrets Act and other trade secre laws and that WHN could face p0ossible criminal and civil actions, resulting in substantial monetary liability if WHN misappropriates PBH’s trade secrets. In addition, WHN recognizes that a violation of this Agreement could cause PBH irreparable harm, the amo0unt of may be extremely difficult to estimate, thus making any remedy at law inadequate. Therefore, WHN agrees that PBH shall have the right to apply to any court of competent jurisdiction for an order restraining any breach of threatened breach of this Agreement and for any other relief PBH deems appropriate without being required to post any bond or other security. This right shall be in addition to any other remedy available to PBH in law or eq1uity.
f. Survival. The provisions of this Agreement that may be reasonably interpreted as surviving its termination shall continue in effect after termination of this Agreement. PBH is entitled to communicate WHN’s obligations under this Agreement to any customers, clients, vendors, or contractors of WHN.
g. Time. TIME IS OF THE ESSENCE INTHIS AGREEMENT, AND THE TERMS HEREOF SHALL BE SO CONSTRUED.
WHN HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS WHICH IT IMPOSES UPON WHN WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADETO WHN TO INDUCE WHN TO SIGN THIS AGREEMENT. WHN SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY.
In witness whereof , THE PARTIES HERETO HAVE EXECUTIED THIS Agreement as of the first day above written,
For PBH
By: __________________________________
Daniel R. Coughlin
CEO
For Western Highlands Network
By: ___________________________________
Arthur D. Carder, Jr.
CEO
posted by Marsha V. Hammond, PhD at 4:57 PM
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