CONFIDENTIALITY/NON-CIRCUMVENTION AGREEMENT

HSA ADMIN RESOURCES, LLC (“HSA”) and the undersigned party agree to the following terms governing the confidentiality of certain information HSA may disclose to the other party (“Recipient”).

1.       DEFINITIONS.  For purposes of this Confidentiality Agreement, “Confidential Information and/or Materials” means ALL information and/or materials relating to, transmitted or conveyed by HSA to Recipient, its’ agents or its affiliates, including without limitation all information concerning business methods; products; patents; service marks; trade marks; intellectual property; contracts; business plans; operations; marketing or promotional materials or plans; systems; suppliers, sources, contacts or agents; and/or the proposed sale, purchase or use of products or services, including but not limited to Health Savings Account management related tools, products or services as well as any other information and/or materials which HSA designates as Confidential in nature.

Confidential Information shall not include any information of HSA that has become generally available to the public, or was otherwise previously available on a non-confidential basis, other than as a result of an unlawful disclosure by Recipient, its’ agents or others.

2.       OWNERSHIP.  All Confidential Information in whatever form including, without limitation, information in hard form or held in electronic storage media, shall be and remain property of HSA.  All such Confidential Information shall be returned to HSA promptly upon written request and shall not be retained in any form by Recipient.

3.       NON-DISCLOSURE.  Except where otherwise authorized by HSA in writing, Recipient shall not disclose any Confidential Information to any person or entity except employees of Recipient and its affiliates who have a need to know and who are bound by this Confidentiality Agreement and have been informed of Recipient’s obligations under this Agreement.  Recipient shall use not less than the same degree of care to avoid disclosure of Confidential Information as Recipient uses for its own confidential information of like importance and, at a minimum, shall exercise reasonable care.

4.       NON-CIRCUMVENTION.  The parties agree that confidential information and/or materials disclosed under this Agreement shall not be used for direct or indirect enrichment by, to, or for the Recipient, its agents, its customers or its affiliates without the express written consent of HSA.  The parties further agree that Recipient shall not, during the term of this agreement and for a period of six (6) months thereafter, itself or through another, directly or indirectly sell, market, manufacture consult or transact business in any manner that is in direct or indirect Competition with HSA without prior written permission from HSA except to the extent Recipient was engaged in such business prior to entering into this agreement and such acts were disclosed in writing to HSA prior to entering into this Agreement.  

5.       REMEDIES.  The parties agree that, in the event of a breach or threatened breach of the terms of this Confidentiality and Non-Circumvention Agreement, HSA shall be entitled to an injunction in addition to and not in lieu of any other legal or equitable relief including money damages.  The parties acknowledge that Confidential Information is valuable and unique and that disclosure will result in irreparable injury to HSA.

6.       MISCELLANEOUS.  No failure or delay by the parties in exercising any right, power or privilege hereunder shall operate as a waiver thereof.  The laws of the state of Ohio thereof shall govern this Agreement and interpretation, and the courts of said state shall be exclusive and proper jurisdiction for any disputes arising hereunder.  Should a party be found to be in violation of this Agreement following due process, the violating party agrees to pay all costs and expenses, including attorney’s fees and disbursements incurred by the non-violating/other party in enforcing the terms of this Agreement.  If any part of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, then such provision(s) shall be automatically retracted and/or amended in the discretion of the Court to meet such legal standards with the unaffected portions hereof remaining in full force and effect.

7.       DISCLAIMER.  This Agreement and the disclosure and receipt of Confidential Information do not create or imply (i) any agreement with respect to the sale, purchase or pricing of any product or service, or (ii) any right conferred, by license or otherwise, in any Confidential Information or in any patent, trademark, service mark, copyright or other intellectual property.

8.       COMPLETE AGREEMENT.  This Agreement:  (i) is the complete agreement of the parties concerning this subject matter and supersedes any prior such agreements; (ii) may not be amended except in writing signed by both parties; and (iii) is effective as of the date of execution by both parties.  The parties agree that the confidentiality and non-circumvention provisions of this agreement and its ancillary enforcement provisions shall survive termination of this Agreement to the extent permitted by law.  The parties agree that facsimile signatures are binding and construed as original.