Motion to Determine Confidentiality of Court Records — Fountainhead v. Womply

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Filing # 134377755 E-Filed 09/10/2021 03:04:46 PM

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA

FOUNTAINHEAD SBF,
Plaintiff, CIVIL DIVISION

V.

OTO ANALYTICS, INC. d/b/a WOMPLY, CASE NO.: 2021-CA-002143

Defendant.

Nem Nee Nee Ne ee ee ee ee ee ee ee”

DEFENDANT’S MOTION TO DETERMINE CONFIDENTIALITY OF COURT
RECORDS

Defendant, OTO ANALYTICS, INC. d/b/a WOMPLY (“Defendant” or “Womply”), by
and through its undersigned counsel and pursuant to Rule 2.420(e) of the Florida Rules of Judicial
Administration, hereby moves this Court for the entry of an Order designating Exhibits 1 and 2 to
the Complaint filed by Plaintiff, FOUNTAINHEAD SBF (Plaintiff? or “Fountainhead”), as
confidential and exempt from public disclosure. In support thereof, Womply states as follows:

BACKGROUND

1. On August 27, 2021, Fountainhead filed its Complaint seeking specific
performance and injunctive relief based upon an alleged breach of the PPP Loan Referral
Agreement (the “Agreement”) entered into by and between Fountainhead and Womply. The
Agreement is attached as Exhibit 1 to Plaintiff's Complaint. A letter terminating the Agreement
(the “Notice of Termination”) is attached as Exhibit 2 to Plaintiff’s Complaint.

2. In recognition of Womply’s position that the Agreement and the Notice of
Termination contain competitively sensitive, confidential and proprietary information,
Fountainhead filed the Agreement and Notice of Termination in connection with a Notice of

Confidential Information Within Court Filing.

*#%* E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 09/10/2021 03:04:45 PM.****

3. On August 31, 2021, the Clerk of the Seminole County Circuit Court issued a
Memorandum stating that Exhibits 1 and 2 “will not be held confidential for more than 10 days
unless steps are taken according to the Florida Rules of Court, Judicial Administration Rule
2.420(d)(3).”

4. Accordingly, Womply brings this Motion requesting an Order deeming the
Agreement and Notice of Termination as confidential.

LEGAL ARGUMENT

5. Rule 2.420(c)(9)(A)(ii), Fla. R. Jud. Admin., provides that documents containing
confidential business information and trade secrets shall be considered confidential and exempt
from public disclosure when filed in the Court records, and that the Courts can order such
protection prior to filing. Here, Womply maintains confidential and proprietary business
information, the protection of which is mandated by the Florida Rules of Judicial Administration.
Specifically, Womply seeks to protect proprietary, confidential pricing information, which is set
forth in both the Agreement and the Notice of Termination.

6. It is Womply’s position the pricing information is confidential and proprietary to
Womply, pursuant to Section 2 of the Agreement and subject to all terms and conditions of the
Womply Master Developer Agreement (the “MDA”), a copy of which is attached to this Motion
as Exhibit A.

7. The MDA, which is incorporated by reference into the Agreement, provides in
pertinent part:

All materials and information provided by Womply to Client and identified at the

time of disclosure as “Confidential” or bearing a similar legend, and all other

information that Client reasonably should have known is the Confidential

Information of Womply, will be considered Confidential Information; for the

avoidance of doubt, the Service, API Package, all pricing information and terms
of this Agreement, are Confidential Information. Client will maintain the

confidentiality of the Confidential Information and will not disclose such
information to any third-party without the prior written consent of Womply.

Ex. A, § 4.

8. Further, Womply maintains that the Agreement, the Notice of Termination, and the
pricing information detailed therein contain competitively sensitive, confidential and proprietary
material—the disclosure of which would significantly harm Womply.

9. Given that the Agreement and Notice of Termination contain proprietary and non-
public information, confidentiality is required in order to protect Womply’s trade secrets and to
avoid unfair disadvantage to Womply in revealing to the public, competitors or other third parties,
the terms of the Agreement, Notice of Termination, and the pricing information detailed therein.

10. | Womply brings this Motion to comply with the deadline set forth in the Clerk’s
Memorandum and to protect its confidential and proprietary business information. Womply in no
way intends to waive, and this Motion should not be construed as a waiver of, its right to arbitrate
pursuant to the Agreement.

11. The undersigned counsel has conferred with counsel for Fountainhead, and
Fountainhead does not oppose the relief sought herein.

WHEREFORE, Womply moves the Court to designate the Agreement and Notice of
Termination as confidential, and direct that the Clerk allow the Agreement and Notice of
Termination, which are identified as Exhibits 1 and 2 to Plaintiff's Complaint and are attached to
Plaintiff's Notice of Confidential Information Within Court, to remain in the Court records as
confidential and exempt from public disclosure.

Rule 2.420(e) Certificate of Good Faith

The undersigned attorney certifies that this motion is made in good faith and is supported

by a sound factual and legal basis.

Dated this 10" day of September, 2021. /s/ Emily J. Lang
Kevin D. Fowler

Florida Bar No. 091110

Primary email: kfowler@foley.com
Secondary email: bshelley@foley.com
Emily J. Lang

Florida Bar No. 1011367

Primary: elang@foley.com
Secondary: dburgos@foley.com
FOLEY & LARDNER LLP

301 East Pine Street, Suite 1200
Orlando, FL 32801

Tel. 407.244.3235

Fax 407.648.1743

Attorneys for Defendant OTO Analytics Inc.
d/b/a Womply

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10 day of September, 2021, a true copy of the foregoing
was filed with the Clerk of Court via the Florida Court E-filing Portal which was directed to
electronically furnish a copy of the forgoing to all counsel/parties of record.

/s/ Emily J. Lang

Emily J. Lang
Florida Bar No.: 1011367

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA

FOUNTAINHEAD SBF,
Plaintiff, CIVIL DIVISION

V.

OTO ANALYTICS, INC. d/b/a WOMPLY, CASE NO.: 2021-CA-002143

Defendant.

Nem Nee Nee Ne ee ee ee ee ee ee ee”

EXHIBIT A

wswomply

SOLUTIONS PRICING RESOURCES

Terms of Service
Privacy Policy
Copyright Dispute Policy

Master Developer
Agreement

Referral Terms
Storefront Terms
Offers Terms
Bills Terms

Business Loan Assistance
Terms

PPP Loan Assistance
Terms

HIPAA Business Associate
Agreement

Affiliate Terms and
Conditions

Data Access Agreement

COMPANY APPS LOG IN

PPP FAST LANE
SIGN IN

Master Developer
Agreement

This Master Developer Agreement (the
“Agreement”) is entered into on the Order
Effective Date (the “Effective Date”) between
Oto Analytics, Inc. (‘Womply”) and the Account
listed on the Order Form (the “Client”).

The parties hereby agree as follows:

1. ACCESS RIGHTS; RESTRICTIONS

°

1.1. Access. Subject to the Client’s
compliance with the terms and
conditions of this Agreement,
Womply hereby agrees that during
the Term (as defined below) of this
Agreement, the Client has the non-
exclusive right to: (i) internally use
the package of application
programming interface materials
provided by Womply (the “API
Package”) solely as necessary to
make an application owned and
operated by the Client (the “Client
Application”) interoperate with the
Womply service described on
womply.com (collectively with the

API Package, the “Service’), (ii) use
the Service in the Client Application
provided to end users (consumers
or businesses) (the “End Users’),
and (iii) use the End User
information and data provided via
the Service (the “Output”) solely in
the Client Application or for your
internal business purposes. Client’s
use of the Service and Output shall
comply with the terms and
conditions of this Agreement,
Womply’s Privacy Policy, applicable
documentation, and all other
Womply-provided written
instructions.

1.2. Restrictions. Unless Womply
specifically agrees in writing, Client
will not, and will use commercially
reasonable efforts to make sure a
third party does not: (i) attempt to
reverse engineer (except as
permitted by law), decompile,
disassemble, or otherwise attempt
to discover the source code, object
code, or underlying structure, ideas,
or algorithms of the Service; (ii)
modify, translate, or create
derivative works based on the
Service; (iii) make the Service or
Output available to, or use the
Service or Output for the benefit of
anyone other than Client or End
Users; (iv) sell, resell, license,
sublicense, distribute, rent or lease
any Service or Output to any third
party, or include any Service or
Output in a service bureau, time-
sharing, or equivalent offering or (v)
attempt to create a substitute or
similar service through use of, or
access to, the Services or Output.

Client will use the Service and
Output only in compliance with (i)
the rights granted hereunder, (ii) any
agreements between Client and End
Users, and (iii) all applicable laws
and regulations.

© 1.3. Ownership. Except for the
rights expressly granted under this
Section 1, Womply reserves and
retains all right, title, and interest in
and to the Service which includes
but is not limited to the AP] Package
and any related Output, software,
products, works, and other
intellectual property created, used,
or provided by Womply for the
purposes of this Agreement. To the
extent the Client provides Womply
with any feedback relating to the
Service (including, without
limitation, feedback related to
usability, performance, interactivity,
bug reports and test results)
(“Feedback”), Womply will own all
right, title and interest in and to such
Feedback (and the Client hereby
makes all assignments necessary to
achieve such ownership).

o 1.4. Privacy and Authorization. The
Client represents that its privacy
policy shall, for the duration of this
Agreement, (a) be maintained in a
manner that is compliant with
applicable law and (b) obtain
sufficient consents and provide
sufficient notice for Womply to use
and process End User data in
accordance with Womply’s Privacy
Policy.

2. PAYMENTS
Client will pay Womply for the Service as
set forth in the Order Form provided to the

Client (the “Payments”). Payments must
be made within fifteen (15) days from the
date of Womply’s invoice. Unpaid invoices
are subject to a finance charge of 1.5%
per month or the maximum permitted by
law, whichever is lower, plus all expenses
of collection. The Client will be
responsible for all (i) taxes associated
with Service other than taxes based on
Womply’s net income and (ii) Womply’s
costs of collection in the event of the
Client’s delinquent payment. All Payments
made are non-refundable, non-
cancellable, and not subject to set-off.
3. TERM; TERMINATION
° 3.1. Term. This Agreement will have
a term that begins on the Effective
Date and continues through to the
API Access End Date on the Order
Form (the “Initial Term”). After the
Initial Term, this Agreement will
automatically renew for successive
one (1) year Terms (each, a
“Renewal Term”) unless either party
provides the other party sixty (60)
days advance written notice of non-
renewal prior to the end of the Initial
Term or then-current Renewal Term
(as applicable). Together, the Initial
Term and Renewal Terms will be
referred to as the “Term.” Womply
may revise its rates for the following
Renewal Term by providing Client
ninety (90) days written notice prior
to the end of the then-current Initial
Term or Renewal Term.
© 3.2. Termination. Either party may
terminate this Agreement in the
event the other party materially
breaches this Agreement and fails
to cure such breach within ten (10)
days from receipt of written notice

thereof. Womply may terminate this
Agreement at any time for any
reason or no reason by providing
five (5) days’ written notice to Client.
In addition, Womply may
immediately suspend the Services
in the event it determines or
believes that (i) there is
unauthorized access to the Service
via Client’s account, (ii) continued
provision of the Service may do
material harm to Womply or its
networks or systems or reputation
or subject Womply to liability or (iii)
Client materially breached Section 1
or 2 of this Agreement. Upon
termination of this Agreement, all
rights granted herein to Client will
terminate and Client will make no
further use of the Services or API
Package (copies of which will be
immediately returned to Womply or
destroyed). But for Section 1.1, all
provisions of this Agreement will
remain in force and effect in the
event of this Agreement’s
termination.
4. CONFIDENTIALITY
During the term of this Agreement,
Womply may provide Client with
confidential and/or proprietary materials
and information (“Confidential
Information”). All materials and
information provided by Womply to Client
and identified at the time of disclosure as
“Confidential” or bearing a similar legend,
and all other information that Client
reasonably should have known is the
Confidential Information of Womply, will
be considered Confidential Information;
for the avoidance of doubt, the Service,
API Package, all pricing information and

terms of this Agreement, are Confidential
Information. Client will maintain the
confidentiality of the Confidential
Information and will not disclose such
information to any third-party without the
prior written consent of Womply. Client
will only use the Confidential Information
internally for the purposes contemplated
hereunder. The obligations in this Section
4 will not apply to any information that: (i)
is made generally available to the public
without breach of this Agreement, (ii) is
developed by the Client independently
from the Confidential Information, (iii) is
disclosed to Client by a third-party without
restriction, or (iv) was in Client’s lawful
possession prior to the disclosure to
Client and was not obtained by Client
either directly or indirectly from Womply.
Client may disclose Confidential
Information as required by law or court
order; provided that, Client provides
Womply with prompt written notice
thereof and uses its best efforts to limit
disclosure. At any time, upon Womply’s
request, Client will return to Womply all
Confidential Information in its
possession, including, without limitation,
all copies and extracts thereof.
Notwithstanding the foregoing, Client may
disclose Confidential Information to any
third-party to the limited extent necessary
to exercise its rights, or perform its
obligations, under this Agreement;
provided that, all such third parties are
bound in writing by obligations of
confidentiality and non-use at least as
protective of the Confidential Information
as in this Agreement. With respect to data
provided by Client to Womply hereunder,
Womply will comply with the obligations
set forth in Womply’s Privacy Policy, and

Womply will not be obligated by any
previously executed nondisclosure
agreement between Womply and Client.
INDEMNITY

The Client will defend, indemnify and hold
Womply and its suppliers, agents,
representatives and affiliates harmless
from and against all third-party claims,
actions, proceedings, damages, losses,
judgments, settlements, costs and
expenses (including attorneys’ fees
arising from or in connection with (i)
Client breach of any laws or regulations
(including with respect to privacy), (ii)
Client’s use of the Services and Output, or
(iii) Client’s violation of any agreements it
has with any End User.

WARRANTY; DISCLAIMER

THE SERVICE AND ANYTHING ELSE
PROVIDED BY WOMPLY HEREUNDER |S
PROVIDED “AS IS.” TO THE FULLEST
EXTENT PERMITTED BY LAW, NEITHER
WOMPLY NOR ITS AFFILIATES,
SUPPLIERS, LICENSORS, OR
DISTRIBUTORS MAKE ANY WARRANTY
OF ANY KIND, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE,
NONINFRINGEMENT, OR ANY WARRANTY
THAT THE SERVICE IS FREE FROM
DEFECTS. WOMPLY DOES NOT MAKE
ANY WARRANTY AS TO THE OUTPUT
THAT MAY BE OBTAINED FROM USE OF
THE SERVICE.

LIMITATIONS OF LIABILITY

TO THE FULLEST EXTENT PERMITTED
BY LAW, NEITHER WOMPLY NORITS
AFFILIATES, SUPPLIERS, LICENSORS,
AND DISTRIBUTORS WILL BE LIABLE
UNDER THIS AGREEMENT FOR ANY: (A)

INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, OR
PUNITIVE DAMAGES, OR (B) LOSS,
ERROR, OR INTERRUPTION OF USE OR
DATA (IN EACH CASE, WHETHER DIRECT
OR INDIRECT), OR (C) COST OF COVER
OR LOSS OF BUSINESS, REVENUES, OR
PROFITS (IN EACH CASE WHETHER
DIRECT OR INDIRECT), IN EACH CASE
EVEN IF THE PARTY KNEW OR SHOULD
HAVE KNOWN THAT SUCH DAMAGES
WERE POSSIBLE AND EVEN IF A REMEDY
FAILS OF ITS ESSENTIAL PURPOSE. TO
THE FULLEST EXTENT PERMITTED BY
LAW, WOMPLY’S AGGREGATE LIABILITY
UNDER THIS AGREEMENT WILL NOT
EXCEED THE AMOUNT PAID OR PAYABLE
BY CLIENT TO WOMPLY DURING THE SIX
(6) MONTH PERIOD PRIOR TO THE
EVENT GIVING RISE TO LIABILITY
(PROVIDED THAT, IF NO FEES ARE PAID
OR PAYABLE, SUCH AMOUNTS WILL BE
LIMITED TO ONE HUNDRED DOLLARS
(US$100)).

MISCELLANEOUS

Womply reserves the right to amend this
Agreement at any time its sole discretion.
In the event of any such amendment,
Womply will notify you by email and/or
place a notice on Womply’s site located
at https://www.womply.com/legal/mda/.
If Client does not agree with such
changes, Client may stop using the
Service at any time. Client’s continued
use of the Service in any way means that
Client agrees to all of the changes to this
Agreement. Except for changes by
Womply as described in the foregoing, no
other amendment or modification of this
Agreement will be effective unless in
writing and signed by both Womply and
Client. If any provision of this Agreement

is found to be unenforceable or invalid,
that provision will be limited or eliminated
to the minimum extent necessary so that
this Agreement will otherwise remain in
full force and effect and enforceable. This
Agreement is not assignable or
transferable by a party except with the
other party’s prior written consent; but, a
party may transfer and assign its rights
and obligations under this Agreement
without consent to an affiliate or in
connection with a merger, acquisition,
corporate reorganization, or sale of all or
substantially all of its assets to which this
Agreement relates. If such a transfer or
assignment is made in favor of a direct
competitor with the other party, then the
other party may terminate this Agreement
upon written notice. This Agreement is
the complete and exclusive statement of
the mutual understanding of the parties
and supersedes and cancels all previous
written and oral agreements,
communications, and other
understandings relating to the subject
matter of this Agreement, and all waivers
and modifications must be in a writing
signed by both parties, except as
otherwise provided herein. No agency,
partnership, joint venture, or employment
is created as a result of this Agreement.
Any notices in connection with this
Agreement will be in writing and sent by
first class US mail, confirmed facsimile or
major commercial rapid delivery courier
service to the address specified below (or
such other address as may be properly
specified by written notice hereunder).
Email notice will be permitted by Womply
if sent to the applicable account email
address. This Agreement will be governed
by the laws of the State of California,

without regard to the conflict of law
provisions thereof. Except for claims for
injunctive or equitable relief or claims
regarding intellectual property rights
(which may be brought in any competent
court), any dispute arising under this
Agreement will be finally settled in
accordance with the Streamlined
Arbitration Rules of JAMS (formerly
operating as Judicial Arbitration and
Mediation Service, Inc.) by a single
arbitrator appointed in accordance with
such Rules. The arbitration will take place
in San Francisco, California, USA, in the
English language and the arbitral decision
may be enforced in any court. With
respect to all disputes arising in relation
to this Agreement, but subject to the
preceding arbitration provision, the
parties consent to exclusive jurisdiction
and venue in the state and Federal courts
located in San Francisco, California.

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