FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
`NYSCEF DOC. NO.
`5
`
`INDEX NO. 604226/2023
`INDEX NO. 604226/2023
`RECEIVED NYSCEF: 03/21/2023
`RECEIVED NYSCEF: 03/21/2023
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
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`EXECUTION VERSION
`
`SETTLEMENT AGREEMENT AND RELEASE
`
`This SETTLEMENT AGREEMENT AND RELEASE (this “Settlement Agreement”) is
`made as of September 1, 2022 by and among: (i) Navien, Inc. (“Navien”), on the one hand; and
`(ii) Michael Diack (“Diack”), Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc. and its
`successor, Pipe Doctor Home Services, Inc. and any other entity or proprietorship, whether
`presently known or unknown (together, “Pipe Doctor”), and Pipe Doctor IP Holder, Inc. (“Pipe
`Doctor IP,” and collectively with Diack and Pipe Doctor, the “Pipe Doctor Parties”), on the
`other. Navien, Diack, Pipe Doctor, and Pipe Doctor IP are sometimes collectively referred to in
`this Settlement Agreement as “the Parties” or individually as a “Party.”
`
`WHEREAS, Navien, among other things, has established an installation, maintenance,
`and repair service network where independent contractors may apply to become members and
`serve as Navien Service Specialists (the “NSS Program”);
`
`WHEREAS, Diack is the owner of Pipe Doctor and Pipe Doctor IP;
`
`WHEREAS, in 2014, Diack registered himself and his company, Pipe Doctor, as a
`Navien Service Specialist;
`
`WHEREAS, in February 2017, Diack and Pipe Doctor registered to participate in the
`Navien Rewards Program (the “Navien Rewards Program”);
`
`WHEREAS, starting in early 2021 and continuing to the present, the Pipe Doctor Parties
`have posted a series of videos on various online social media platforms—including, but not
`limited to, YouTube (the “Social Media Posts”)—concerning Navien and its products, including
`tankless water heaters, boilers and the designs, systems, parts and accessories thereof
`(collectively, the “Navien Products”);
`
`WHEREAS, Navien has repeatedly advised the Pipe Doctor Parties that Navien
`considers the statements in the Social Media Posts to be false, defamatory, and injurious to
`Navien’s business and reputation, thereby damaging Navien; but the Pipe Doctor Parties denied
`Navien’s allegations;
`
`WHEREAS, in May 2021, Navien removed Diack and Pipe Doctor from the NSS
`Program;
`
`WHEREAS, on or about June 7, 2021, Diack sent Navien a letter claiming that certain of
`Navien’s tankless water heaters and boilers were defective, and asserting various legal claims on
`the basis of the alleged defect(s) (the “Letter”);
`
`WHEREAS, Navien denied the allegations set forth in the Letter;
`
`WHEREAS, on or about July 16, 2021, Navien served a demand for arbitration (the
`“Demand”), which initiated an arbitration now pending before JAMS, captioned Navien, Inc. vs.
`Michael Diack, et al., JAMS Ref No. 1200058686, in which Navien asserts various claims
`against Diack and Pipe Doctor, including (i) breach of contract, (ii) breach of the implied
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`covenant of good faith and fair dealing, (iii) defamation per se, (iv) trade libel, (v) tortious
`interference with prospective economic advantage, (vi) violation of California’s unfair
`competition law, (vii) misappropriation of proprietary Navien information, (viii) trademark
`infringement, and (ix) false advertising, arising out of the NSS Program, the Social Media Posts,
`and other conduct by Diack and/or Pipe Doctor (the “Arbitration”);
`
`WHEREAS, the Pipe Doctor Parties denied Navien’s arbitration allegations and disputed
`the jurisdiction of the arbitration to arbitrate Navien’s claims;
`
`WHEREAS, on or about December 14, 2021, Diack and Pipe Doctor filed an action in
`the New York Supreme Court, Nassau County, captioned as Michael Diack and Pipe Doctor
`Plumbing, Heating, and Air Conditioning, Inc. v. Navien, Inc., Index No. 615602/2021, which
`sought to stay the Arbitration permanently (the “Stay Action”);
`
`WHEREAS, on or about January 12, 2022, Navien removed the Stay Action to the
`United States District Court for the Eastern District of New York (the “District Court”);
`captioned as Michael Diack and Pipe Doctor Plumbing, Heating, and Air Conditioning, Inc. v.
`Navien, Inc., Case No. 2:22-CV-00164-GRB-JMW;
`
`WHEREAS, on or about April 6, 2022, Diack and Pipe Doctor voluntarily dismissed the
`Stay Action, without prejudice, which the District Court “So Ordered” on April 7, 2022;
`
`WHEREAS, the Arbitration then resumed, and the Arbitrator held an initial conference
`on May 5, 2022;
`
`WHEREAS, on or about May 6, 2022, the Pipe Doctor Parties served Navien with
`purported counterclaims against Navien in the Arbitration (the “Counterclaims”);
`
`WHEREAS, on or about May 11, 2022, the Arbitrator issued a Scheduling Order in the
`Arbitration, setting a trial date of September 14-15, 2022;
`
`WHEREAS, on or about May 20, 2022, Navien served its response to the
`Counterclaims, denying the allegations in the Counterclaims in full;
`
`WHEREAS, the Parties now desire to resolve their disputes, solely to avoid the burdens
`and expenses of litigation and arbitration;
`
`NOW, THEREFORE, in consideration of the mutual promises, covenants, and
`agreements set forth herein, and for other good and valuable consideration, the receipt and
`sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
`
`1.
`
`Settlement Payment.
`
`Within five (5) business days of the Deletion Date (as that term is defined in Paragraph
`5.1 below), in settlement of all outstanding claims and disputes between the Parties,
`Navien agrees to pay the Pipe Doctor Parties, subject to the terms of this Settlement
`Agreement, a settlement payment of $60,000.00 (Sixty Thousand United States Dollars)
`(the “Settlement Payment”). The Settlement Payment shall be remitted to the Pipe
`
`2
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
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`2.
`
`2.1
`
`2.2
`
`Doctor Parties by wire transfer into the account identified below (the date of receipt in
`accordance herewith, the “Settlement Payment Date”):
`
`Bank: Signature Bank
`Routing: 026013576
`Account Number: 1504334089
`Beneficiary: Pipe Doctor IP Holder, Inc.
`Address: 80 E Hawthorne Ave, Valley Stream, NY 11580
`
`Releases.
`
`Effective upon the Settlement Payment Date, and for good, valuable, and sufficient
`consideration, the receipt and adequacy of which is hereby acknowledged, Navien
`forever and fully discharges and releases each of the Pipe Doctor Parties and their
`respective present or former assignees, affiliates, administrators, executors, successors,
`subsidiaries, corporate parents, related companies, members, partners, and present and/or
`former officers, directors, shareholders, employees, agents, representatives, attorneys,
`accountants, auditors, experts, consultants and/or insurers (collectively, the “Pipe Doctor
`Releasees”), from any and all actions, causes of action, suits, lawsuits, arbitration(s),
`debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts,
`controversies, agreements, promises, damages,
`judgments, executions, claims or
`demands, and all other proceedings whatsoever, whether in law or in equity, known or
`unknown, foreseen or unforeseen, that arise out of, or are related in any way to, or are
`based upon facts, matters or occurrences, representations or omissions related to, the
`Social Media Posts, the NSS Program, the Navien Rewards Program, all Navien
`Products, the Letter, the Demand, the Counterclaims, and/or which were made or could
`have been made in the Stay Action, the Arbitration, or otherwise, and which Navien ever
`had, now has, or hereafter can, shall, or may have against the Pipe Doctor Releasees from
`the beginning of the world to the Settlement Payment Date; provided, however, that
`Navien does not release, and instead expressly preserves: (a) the debt acknowledged by
`each of Diack, Pipe Doctor, and Pipe Doctor IP in Paragraphs 6.1, 6.2, and 6.3 below;
`and (b) any and all claims that may arise against the Pipe Doctor Releasees relating to or
`involving a breach of this Settlement Agreement.
`
`Effective upon the Settlement Payment Date, and for good, valuable, and sufficient
`consideration, the receipt and adequacy of which is hereby acknowledged, Diack, on
`behalf of himself, and his respective present or former assignees, affiliates,
`administrators, executors, successors, related companies, members, partners, and present
`and/or former employees, agents, representatives, attorneys, accountants, auditors,
`experts, consultants and/or insurers (collectively, the “Diack Releasors”), forever and
`fully discharge and release Navien and its respective present or former assignees,
`affiliates, administrators, executors, successors, subsidiaries, corporate parents, related
`companies, members, partners, and present and/or
`former officers, directors,
`shareholders, employees, agents, representatives, attorneys, accountants, auditors,
`experts, consultants and/or insurers (collectively, the “Navien Releasees”), from any and
`all actions, causes of action, suits, lawsuits, arbitration(s), debts, dues, sums of money,
`
`3
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
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`2.3
`
`accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements,
`promises, damages, judgments, executions, claims or demands, and all other proceedings
`whatsoever, whether in law or in equity, known or unknown, foreseen or unforeseen, that
`arise out of, or are related in any way to, or are based upon facts, matters or occurrences,
`representations or omissions related to, the Social Media Posts, the NSS Program, the
`Navien Rewards Program, all Navien Products,
`the Letter,
`the Demand,
`the
`Counterclaims, and/or which were made or could have been made in the Stay Action, the
`Arbitration, or otherwise, and which any of the Diack Releasors ever had, now has, or
`hereafter can, shall, or may have against the Navien Releasees from the beginning of the
`world to the Settlement Payment Date; provided, however, that the Diack Releasors do
`not release, and instead expressly preserve, any and all claims that may arise against the
`Navien Releasees relating to or involving a breach of this Settlement Agreement.
`
`Effective upon the Settlement Payment Date, and for good, valuable, and sufficient
`consideration, the receipt and adequacy of which is hereby acknowledged, Pipe Doctor
`and Pipe Doctor IP, on behalf of themselves and their respective present or former
`assignees, affiliates, administrators, executors, successors, subsidiaries, corporate parents,
`related companies, members, partners, and present and/or former officers, directors,
`shareholders, employees, agents, representatives, attorneys, accountants, auditors,
`experts, consultants and/or insurers (collectively, the “Pipe Doctor Releasors”), forever
`and fully discharge and release the Navien Releasees from any and all actions, causes of
`action, suits, lawsuits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
`covenants, contracts, controversies, agreements, promises, damages,
`judgments,
`executions, claims or demands, and all other proceedings whatsoever, whether in law or
`in equity, known or unknown, foreseen or unforeseen, that arise out of, or are related in
`any way to, or are based upon facts, matters or occurrences, representations or omissions
`related to, the Social Media Posts, the NSS Program, the Navien Rewards Program, all
`Navien Products, the Letter, the Demand, the Counterclaims, and/or which were made or
`could have been made in the Stay Action, the Arbitration, or otherwise, and which any of
`the Pipe Doctor Releasors ever had, now has, or hereafter can, shall, or may have against
`the Navien Releasees from the beginning of the world to the Settlement Payment Date;
`provided, however, that the Pipe Doctor Releasors do not release, and instead expressly
`preserve, any and all claims that may arise against the Navien Releasees relating to or
`involving a breach of this Settlement Agreement.
`
`3.
`
`Dismissal of Arbitration.
`
`Within five (5) business days of the Settlement Payment Date, the Parties, through their
`respective counsel, if any, shall take whatever action necessary in the Arbitration to request that
`JAMS close its case file and dismiss the Arbitration with prejudice.
`
`4.
`
`Costs of Arbitration.
`
`The Parties understand and agree that they shall bear their own costs and attorneys’ fees
`incurred in connection with the Arbitration, the Stay Action, and/or any other proceedings,
`actions, disputes and/or transactions between them initiated before the Settlement Payment Date
`and that no Party is entitled to attorneys’ fees or costs from the other.
`
`4
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
`
`5.
`
`5.1
`
`Deletion and Cessation of Statements or Publications Regarding Navien
`
`Deletion of All Negative Social Media Posts: Within three (3) calendar days of the
`Effective Date (the “Deletion Date”), the Pipe Doctor Parties shall: (a) permanently and
`irrevocably delete any and all of the Social Media Posts including, but not limited to,
`those listed on Exhibit A to this Settlement Agreement—whether posted on YouTube,
`Instagram, Facebook, LinkedIn, Twitter, Snapchat, TikTok, Discord, WhatsApp, via text
`message or other digital direct messaging platform, and/or any other digital or social
`media platform, including any personal or community blogs—that in any way mention,
`refer, allude, name, relate to, reflect, discuss, or otherwise concern in any way, Navien or
`the Navien Products in any kind of negative or disparaging manner, as described further
`in Subsection 5.1.2 below, including, but not limited to, Navien’s tankless water heaters
`and boilers and any and all copyrights and trademarks related thereto; and (b) provide a
`written certification, in the form annexed hereto as Exhibit B to this Settlement
`Agreement, confirming that all such Social Media Posts have, in fact, been permanently
`and irrevocably deleted.
`
`5.1.1 For the avoidance of doubt, the Social Media Posts listed on Exhibit A to this
`Settlement Agreement must be deleted and removed from any platform (and not
`simply made private), and shall not be re-posted, re-published, shared, transferred,
`archived and/or otherwise reinstated online in any capacity, whether on the same
`platform or another platform, and whether by the Pipe Doctor Parties or any other
`party who the Pipe Doctor Parties aid, abet, consult, influence, suggest, support,
`or otherwise facilitate, at any time into perpetuity.
`
`5.1.2 For the further avoidance of doubt, the Parties agree that a Social Media Post is
`considered “negative” to Navien—and therefore required to be deleted under this
`Paragraph 5.1—if the Social Media Post would cause or tend to cause the
`audience of the Social Media Post to question or be concerned with the business
`condition, integrity, ethics, competence, good character, reputation, quality,
`marketability, or safety of: (i) Navien and/or its parent company, subsidiaries,
`affiliates, officers, directors, employees, representatives, and/or attorneys
`(collectively, the “Navien Parties”); (ii) any of the Navien Products; (iii) any of
`Navien’s programs, including the NSS Program and/or the Navien Rewards
`Program; or (iv) any other person, entity, goods, service or venture related to or
`affiliated with Navien.
`
`5.2
`
`Non-Disparagement: In addition to the confidentiality provisions of Paragraph 10 of this
`Settlement Agreement, each of the Pipe Doctor Parties further agrees that, after the
`Effective Date of this Settlement Agreement, they will not make—and shall take
`reasonable steps to instruct their employees, agents, representatives, and third parties
`upon whom the Pipe Doctor Parties maintain any control or influence not to make—any
`disparaging statements about the Navien Parties, any of Navien’s products or services,
`the NSS Program, the Navien Rewards Program, the Stay Action, the Arbitration, the
`Counterclaims, this Settlement Agreement, or the subject matter of any of the foregoing.
`For purposes of this Paragraph 5.2, a disparaging statement is any communication that, if
`publicized to another, would cause or tend to cause the recipient of the communication to
`
`5
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`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`5.3
`
`5.4
`
`6.
`
`6.1
`
`6.2
`
`6.3
`
`question the business condition, integrity, ethics, competence, good character, or safety of
`the person, entity, product, service, or program to which the communication relates.
`
`Covenant Not To Make Further Social Media Posts: Each of the Pipe Doctor Parties
`further agrees that, from the Effective Date of this Settlement Agreement until the end of
`the world, they shall permanently cease and desist from posting or otherwise publishing,
`either directly or indirectly, any statements, messages, text, images, audio, or video—in
`any form, in any language, and using any analog or digital delivery mechanism or
`platform, including, but not limited to, any social media, multimedia or communications
`platform such as YouTube, Instagram, Facebook, LinkedIn, Twitter, Snapchat, TikTok,
`Discord, or WhatsApp—that names, mentions, refers, alludes, relates to, reflects,
`discusses, or otherwise concerns in any way, any of the Navien Parties, any of the Navien
`Products, any of the Navien Parties’ intellectual property, the NSS Program, the Navien
`Rewards Program, the Stay Action, the Arbitration, the Counterclaims, or this Settlement
`Agreement, or the subject matter of any of the foregoing (“Posts About Navien”).
`Without limitation, the Pipe Doctor Parties shall not aid, abet, consult, influence, suggest,
`support, or otherwise facilitate any third party from engaging in any Posts About Navien.
`
`Remedies: Each of the Pipe Doctor Parties expressly acknowledges and agrees that any
`breach by any of them of Paragraphs 5.1, 5.2, or 5.3 of this Settlement Agreement shall
`entitle Navien to exercise, at its sole and exclusive discretion, any of the remedies
`provided in Paragraphs 7 or 8 of this Settlement Agreement.
`
`Acknowledgment of Debt to Navien.
`
`As part of this Settlement Agreement, each of the Pipe Doctor Parties acknowledges that
`Navien has lost business, and thereby been damaged, in an amount not less than $500,000
`(Five Hundred Thousand United States Dollars) as a result of the Social Media Posts.
`
`Notwithstanding anything to the contrary in this Settlement Agreement—including, but
`not limited to, the releases set forth in Paragraph 2.1 above—each of the Pipe Doctor
`Parties agrees that a compromise debt amount of $100,000.00 (One Hundred Thousand
`United States Dollars) is and remains due and owing from each of the Pipe Doctor
`Parties, jointly and severally, to Navien, and each of the Pipe Doctor Parties shall execute
`the Confession of Judgment specified in Paragraph 7 of this Settlement Agreement
`accordingly.
`
`Notwithstanding the foregoing Paragraph 6.2, Navien agrees to hold the debt that each of
`the Pipe Doctor Parties owes to Navien in forbearance and will not seek to enforce that
`debt in any way or at any time, provided that the Pipe Doctor Parties comply at all times
`with all provisions of this Settlement Agreement, including, but not limited to,
`Paragraphs 5.1, 5.2, and 5.3 herein. The Pipe Doctor Parties further acknowledge and
`agree, however, that, in the event of any Default (as that term is defined in Paragraph 8
`below), each of Diack, Pipe Doctor, and Pipe Doctor IP will be jointly and severally
`liable to Navien for $100,000.00 (One Hundred Thousand United States Dollars), plus
`interest (the “Default Amount”), the entire amount of which Navien shall be entitled to
`collect pursuant to the procedures outlined in Paragraphs 7 and 8 below.
`
`6
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
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`7.
`
`Confession of Judgment.
`
`Contemporaneously with the execution of this Settlement Agreement, each of Diack,
`Pipe Doctor, and Pipe Doctor IP agrees to execute and deliver to Navien a verified Affidavit of
`Confession of Judgment in the Default Amount (the “Confession of Judgment”), which
`Confession of Judgment shall be in the form attached as Exhibit C to this Settlement Agreement.
`The Judgment by Confession shall be in the form attached as Exhibit D to this Settlement
`Agreement. Each of the Pipe Doctor Parties further agrees to execute and deliver to Navien a
`subsequent Confession of Judgment on the third anniversary of the Effective Date of this
`Settlement Agreement, if such subsequent Confession of Judgment is requested by Navien. The
`Parties acknowledge and agree that Navien is entitled to file the Confession of Judgment with the
`Court, and to obtain the Judgment by Confession, only in the event of a Default by any of the
`Pipe Doctor Parties, as the term “Default” is defined in Paragraph 8 below.
`
`In the event that each of the Pipe Doctor Parties fully complies with its obligations under
`this Settlement Agreement, Navien agrees that it will forebear on the debt acknowledged in
`Paragraphs 6 and 7 of this Settlement Agreement, and that it will not file any Confession of
`Judgment with the Court.
`
`8.
`
`8.1
`
`8.2
`
`8.3
`
`Remedies in Event of Default
`
`The failure of any of Diack, Pipe Doctor, or Pipe Doctor IP to comply with any of the
`obligations set forth in this Settlement Agreement—including, but not limited to, the
`obligations and covenants set forth in Paragraphs 5.1, 5.2, 5.3, 7, 9, and 10 herein—
`constitutes a “Default” under this Settlement Agreement subject to the notice and cure
`procedure set forth in Paragraph 8.2.
`
`If any Party to this Agreement is in material breach of any representation, warranty,
`covenant or other obligation under this Agreement (including satisfaction of the
`conditions precedent), the other Party shall provide the breaching Party with written
`notice specifying in reasonable detail the nature of such breach or failure of condition.
`The Party alleged to be in breach shall have ten (10) calendar days from the date of
`receipt of such notice to cure the breach (if such breach is capable of being cured).
`
`In the event of a Default by any of the Pipe Doctor Parties that is not promptly cured
`pursuant to the notice and cure provisions in Paragraph 8.2 above, the entire Default
`Amount shall become immediately due and owing, and Navien shall be entitled to enter
`the Confession of Judgment without further notice to Diack, Pipe Doctor, or Pipe Doctor
`IP, other than such notice as may be required by law. In the event that any Party
`commences an action to enforce any provision of this Settlement Agreement, the
`prevailing party shall be entitled to recover its reasonable attorney’s fees and costs,
`including, but not limited to, any reasonable expert witness’ fees.
`
`8.4
`
`In recognition of the irreparable harm that Navien would suffer in the event of a violation
`by any of Diack, Pipe Doctor, or Pipe Doctor IP of any of the obligations or covenants
`contained in any of Paragraphs 5.1, 5.2, 5.3, 7, 9, or 10 of this Settlement Agreement,
`each of Diack, Pipe Doctor, and Pipe Doctor IP agrees that, in addition to any other relief
`
`7
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
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`9.
`
`9.1
`
`9.2
`
`9.3
`
`9.4
`
`afforded by law, an injunction against such violation or violations may be issued against
`any of Diack, Pipe Doctor, and/or Pipe Doctor IP, and every other person and entity
`concerned thereby. Each of Diack, Pipe Doctor, and Pipe Doctor IP expressly consents
`to the issuance of such injunctive relief without the posting of a bond or other security.
`
`Representations and Warranties.
`
`The Pipe Doctor Parties represent and warrant to Navien that, aside from Diack, Pipe
`Doctor, and Pipe Doctor IP, no other person or entity affiliated with the Pipe Doctor
`Parties has been involved with the publication of the Social Media Posts, and thus no
`other person or entity need be made a Party to this Settlement Agreement with Navien.
`
`Each of the Parties represents and warrants that: (i) it has been represented by
`independent legal counsel of its own choice throughout all of the negotiations that
`preceded the execution of this Settlement Agreement, or has knowingly waived its or his
`right to be represented by independent legal counsel of its or his own choice; (ii) each
`Party has read this Settlement Agreement and knows and understands its contents; (iii)
`this Settlement Agreement has been voluntarily and freely entered into by each Party; and
`(iv) in determining the value and the propriety of the settlement, each Party has
`independently exercised due diligence and has in no way relied on statements, if any,
`made by any other Party to this Settlement Agreement, their representatives, agents,
`employees, or counsel.
`
`Each of the Parties represents and warrants that it is the owner of all rights and claims
`being dismissed, discharged or released herein and that no portions of those rights have
`been assigned or transferred to any other person or entity, nor have the Parties purported
`to assign or transfer any claim, including any claim for legal fees and costs, or any matter
`herein released, disclaimed, discharged, or terminated. Each of the Parties also represents
`and warrants that it has no knowledge of any such assignment to any individual or entity
`not a Party to the Settlement Agreement. Each of the Parties hereto further warrants,
`acknowledges and represents that there are no liens or claims of lien or assignments at
`law, in equity, or otherwise, of or against any of the claims or matters released herein.
`
`Each of the Parties hereto further represents and warrants that it is not subject to any
`statutory or contractual obligation that may make unlawful the execution of this
`Settlement Agreement. Each of the Parties further agrees to indemnify and hold each
`other harmless, to the fullest extent permitted by law, from any rights, claims, or causes
`of action which have been assigned or transferred or are encumbered in any way contrary
`to the foregoing representations and warranties and from any and all loss, expense,
`judgment or settlement, and/or liability (including attorneys’ fees and any expert witness
`fees) arising directly or indirectly from the breach of any of the foregoing representations
`or warranties.
`
`10.
`
`Confidentiality and Non-Disclosure.
`
`10.1
`
`The Parties, their counsel (if any), and their representatives agree that both the general
`existence, and specific terms, of this Settlement Agreement are, and shall remain at all
`
`8
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 604226/2023
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`RECEIVED NYSCEF: 03/21/2023
`
`times, strictly confidential, and that they shall not disclose any such matters to any third
`party.
`
`10.2
`
`In response to an inquiry regarding any of the matters contained in this Settlement
`Agreement, the only response that any of Diack, Pipe Doctor, Pipe Doctor IP, or any
`other related party or entity, may appropriately provide without breaching Paragraph 10.1
`above shall be: “The matter has been consensually resolved.”
`
`10.3 Notwithstanding the foregoing, the information herein may be disclosed:
`
`a.
`
`b.
`
`c.
`
`To the Parties’ respective counsel as necessary for purposes of
`rendering legal advice, including but not limited to, enforcing
`or complying with this Settlement Agreement; or
`
`To the Parties’ accountants for purposes of compliance with
`any applicable tax laws; or
`
`To the extent disclosure is required by a government agency
`subpoena or by court order, subject to the entry of a protective
`order or if no protective order is in place, subject to immediate
`notice being given to the non-disclosing party of any
`anticipated disclosure reasonably in advance of such disclosure
`so that the non-disclosing party may take any legal steps it
`deems necessary to protect the confidential information.
`
`10.4
`
`In the event the Pipe Doctor Parties or their representatives violate the confidentiality
`requirements set forth in Paragraphs 10.1, 10.2, or 10.3, subject to the Notice requirement
`of Paragraph 8.2 above, the Parties agree that this shall constitute a Default under this
`Settlement Agreement, to which Navien shall be entitled to exercise, at its sole and
`exclusive discretion, any of the remedies provided in Paragraphs 7 or 8 of this Settlement
`Agreement. Notwithstanding the foregoing, the Parties further agree that any Party may
`seek equitable relief in the state or federal courts of New York, New York to prevent any
`further breaches of the confidentiality requirements set forth in Paragraphs 10.1, 10.2, or
`10.3.
`
`11.
`
`Notices.
`
`All notices, consents, waivers or other communications given under this Settlement
`Agreement shall be in writing, and shall be deemed duly given if delivered by hand or if sent by
`a nationally recognized courier service with guaranteed overnight, service charges prepaid, or by
`registered or certified mail, postage prepaid, return receipt requested to the below stated
`addresses. Notices shall be deemed to have been given as of the date received in the case of
`personal delivery, or on the date shown on the receipt or confirmation therefore in all other cases.
`Any of the Parties may change their address for the purpose of notice by giving like notice in
`accordance with this Paragraph. Any notice desired or required to be given hereunder shall be
`given as follows:
`
`9
`
`

`

`FILED: NASSAU COUNTY CLERK 03/21/2023 04:49 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 604226/2023
`
`RECEIVED NYSCEF: 03/21/2023
`
`
`To: Navien, Inc.
`
`c/o Brian D. Koosed
`K&L Gates LLP
`1601 K Street, N.W.
`Washington, D.C. 20006
`Telephone: (202) 778-9204
`Facsimile: (202) 778-9100
`E-mail: Brian.Koosed@klgates.com
`
`
`12.
`
`Applicable Law and Jurisdiction.
`
`To: The Pipe Doctor Parties
`
`c/o Michael Diack
`80 E. Hawthorne Ave.
`Valley Stream, NY 11580
`Telephone: (516) 348-6300, ext. 303
`E-mail: mike@pipedoc.net
`
`
`
`12.1
`
`12.2
`
`Each of the Parties agrees that any disputes arising out of or related to this Settlement
`Agreement shall be governed by, and construed and enforced in accordance with, the
`laws of the State of New York, without regard to choice of law principles.
`
`Each of the Parties agree that any dispute, claim or controversy arising out of or relating
`in any way to this Settlement Agreement or the breach, termination, enforcement,
`interpretation, or validity thereof, including the determination of the scope or
`applicability of this agreement to arbitrate in Paragraph 12.2, shall be determined by
`arbitration in Nassau County, New York, before a single arbitrator. The arbitration shall
`be administered by Judicial Arbitration and Mediation Services (JAMS) pursuant to its
`Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the Award
`may be entered in any court having jurisdiction. This clause shall not preclude the Parties
`from seeking provisional remedies in aid of arbitration or any other injunctive relief—
`including, but not limited to, injunctive relief for breach of the confidentiality provisions
`in Paragraph 10 of this Settlement Agreement—in a court of appropriate and competent
`jurisdiction.
`
`13.
`
`Heirs and Successors Bound.
`
`This Settlement Agreement shall be binding upon and inure to the benefit of the Parties
`hereto and their respective parent companies, shareholders, partners, owners, affiliates, heirs,
`successors and assigns, and any corporation, partnership or other entity into or with which any
`Party hereto may merge, consolidate or reorganize. Nothing in this Settlement Agreement is
`intended to benefit any third party, or create any third party beneficiary.
`
`14.
`
`Effective Date of Settlement Agreement.
`
`The “Effective Date” of this Settlement Agreement shall be the date on which this
`Settlement Agreement is executed by all Parties.
`
`15.
`
`Entire Agreement.
`
`This Settlement Agreement consti