Bid Event id number: evt0001028 KanCare Medicaid and chip capitated Managed Care Services Preface: High Priority Events and Items

This Agreement is effective as of the ____ day of _______________, ________ by and between the Kansas Department of Health and Environment, Division of Health Care Finance, the single State Medicaid Agency (hereinafter “KDHE-DHCF”) having offices at Topeka, Kansas, and ________________________________, a

_________________________, having offices at ______________________(hereinafter)“________________”.

WHEREAS, KDHE-DHCF and _______________ (hereinafter the “Parties”), contemplate that they may exchange research, technical, financial and/or business information (documentation and/or hardware) relating to a program to assess _______________________________(hereinafter the “Program”; and

WHEREAS, ________________________represents that the technical information is personal property, and that _______________ is the sole owner of any and all proprietary rights in the technical information, which may or may not be patentable or constitute the basis of patentable inventions, and may be treated as Proprietary Information and/or as Confidential Information;

NOW THEREFORE, in consideration thereof, the Parties agree as follows:

1. Definitions

A. “Disclosing Party” means the Party disclosing information to the other in furtherance of the Program.

B. “Receiving Party” means the Party receiving information from the other in furtherance of the Program.

C. “Proprietary Information” is any information, knowledge or data received by the Receiving Party from the Disclosing Party in furtherance of or pursuant to the Program that is clearly marked with proprietary legends by the Disclosing Party at the time of disclosure and, if the information is orally or visually disclosed, that it is identified as proprietary at the time of said first disclosure and is clearly marked with proprietary legends and/or is reduced to writing within thirty (30) days of oral disclosure.

2. Covenants

A. KDHE-DHCF agrees, subject to the provisions of the Kansas Open Records Act, K.S.A. 45-201 et seq., as amended, that all documents received from and marked by ____________ as Proprietary Information will be treated by KDHE-DHCF with the same degree of care with which KDHE-DHCF treats and protects all Proprietary Information.

B. __________________ agrees that all documents received from and marked by KDHE-DHCF as Proprietary Information will be treated by _____________________ with the same degree of care with which ____________________ treats and protects its own Proprietary Information.

C. The Receiving Party shall use such Proprietary Information only for the mutual benefit of the Parties and in furtherance of the Program. The Receiving Party shall not use such Proprietary information for any other purpose, such as competing with the Disclosing Party.

D. In the event that the Disclosing Party furnishes sample products or other equipment or material ("Items") to the Receiving Party, which are suitably marked to identify them as encompassing Proprietary Property of the Disclosing Party, the Items so received shall be used and the Proprietary Information derived from said Items shall be treated as Proprietary Information transferred pursuant to this Agreement. The Receiving Party agrees not to cause or permit the reverse engineering, reverse assembly, or reverse compilation of the Items.

E. All Proprietary Information items shall remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party or destroyed upon written request. The requested action will be at the expense of the Disclosing Party.

F. The obligations under this Agreement as to any Proprietary Information shall continue for five (5) years from the date of first disclosure of such Proprietary Information to the Receiving Party, notwithstanding any earlier expiration or termination of this Agreement.

G. No breach of this Agreement shall occur if any Proprietary Information is disclosed and any one of the following occurs or has occurred:

(i) such information is in the public domain at the time of initial disclosure to the Receiving Party by the Disclosing Party, or subsequently becomes publicly known through no wrongful act of the Receiving Party;

(ii) such information is known to the Receiving Party prior to the time of initial disclosure, as evidenced by competent and contemporaneous written documentation;

(iii) such information is furnished to a third party by the Disclosing Party without confidentiality restrictions substantially similar to those herein;

(iv) such information is rightfully received by the Receiving Party, without restriction as to further disclosure, from a third party who had the lawful right to disclose such information;

(v) such information is independently developed by the Receiving Party without the use of or reference to Proprietary Information; or

(vi) such information is required to be disclosed pursuant to proper governmental or judicial process, provided that notice of such process is in such process to contest such disclosure.

The identification of any of the occurrences, (i) - (vi) above, will be promptly communicated between the parties to this Agreement.

H. The Parties hereto represents and warrants that they have the full right and authority to enter into this Agreement and to exchange Proprietary Information pursuant to the terms and covenants of this Agreement.

3. Disclaimers

A. All Proprietary Information disclosed under this Agreement shall remain the exclusive property of the Disclosing Party and nothing contained herein shall be construed as a grant, express or implied or by estoppels, of a transfer, assignment, license, lease of any right, title or interest in the Proprietary Information.

B. Neither party makes any warranty or representation as to the accuracy or completeness of any Proprietary Information disclosed under this Agreement.

4. No Other Business Relationship

This Agreement does not represent or imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the parties or authorize a party to use the other party’s name or trademarks. Neither party is precluded from independently pursuing any activities similar to or in competition with the Program contemplated herein. Neither party will be liable to the other for any of the costs associated with the other’s efforts in connection with this Agreement.

5. Term

This Agreement shall expire five (5) years after the effective date hereof unless terminated earlier upon the end of a thirty (30) day period after receipt of a written notice by one party from the other. Such termination shall not affect the Receiving Party's obligations relative to Proprietary Information received prior to the effective date of such termination, as defined in Paragraph 2.F above.

This Agreement and the rights and duties hereunder may not be assigned or otherwise transferred by either of the Parties without the prior written consent of the other. If this Agreement is so assigned or otherwise transferred, it shall be binding on all successors and assigns.

7. Governing Law

This Agreement shall be governed and construed in accordance with the internal laws of the State of Kansas, without giving effect to the choice of law or conflicts of law principles of such state. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Shawnee County, Kansas.

8. Severability

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

9. Waiver

The failure of either part to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought.

10. Entire Agreement/No Amendment

This Agreement constitutes the entire understanding between the Parties and supersedes all previous understandings, agreements, communications, and representations, whether written or oral, concerning the treatment of Proprietary Information.

11. Authorized Signature

This Agreement is valid only when signed by an employee with authority to bind that party.

12. Miscellaneous

A. The following individuals are designated as the persons to receive Proprietary Information from the Disclosing Party:

_______________________________

_______________________________

_______________________________

_______________________________

Kansas Department of Health and Environment/Division of Healthcare Finance

900 SW Jackson Ste 900N

Topeka, KS 66612

Either Party can change the individual designated by written notice to the other. Receipt of Proprietary Information by any individual other than the designated receiver shall not affect the obligations of the Receiving Party.

B. This Agreement may not be superseded, amended or modified except by written agreement between the Parties, and signed by a duly authorized official of each of the Parties.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and/or authorized same to be executed by their duly authorized representatives as of the date shown below the respective signatures, said Agreement to be effective as of the later date.

(Vendor)

Name: ______________________ Name: _________________________