In order to protect certain confidential information that may be disclosed between them, THIS AGREEMENT made with an effective date of
Contract Community Inc.
WHEREAS each party recognizes they are either the “Owner” or “Recipient” of certain confidential information.
AND WHEREAS the Ownerowns, uses, possesses or controls certain designs, documentation, trade-marks, consultant/resource data bases, copyright, inventions, industrial designs, concepts, ideas, models, trade secrets, samples, drawings, data, techniques, studies, records, knowledge, systems, know-how, source codes, object codes, manuals and other tangible or intangible valuable confidential information relating to the Owner’s trade and commercial affairs, whether in oral, written, graphic, machine readable, physical or any other form whatsoever, as modified or improved from time to time (hereinafter collectively referred to as the “Confidential Information”);
AND WHEREAS the Owner is willing to disclose to the Recipient the Confidential Information for the sole purpose (hereinafter referred to as the “Purpose”) of and in connection with evaluating a possible business transaction or venture with the Recipient (and, for the purposes of this Agreement, the term “Recipient” shall include any directors, officers, employees, agents, associates or affiliates of the Recipient);
NOW THEREFORE in consideration of the mutual covenants and agreements hereinafter contained and any other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the parties hereby agree as follows:
1.The Owner shall provide such Confidential Information to the Recipient as the Owner shall, in its sole and absolute discretion, determine is strictly required for the Purpose.The expression “Confidential Information” as used in this Agreement shall not include the following:
(a)information which is in the public domain at the time ofthe Recipient’s receipt thereof from the Owner or which, after the Recipient’s receipt thereof from the Owner, becomes part of the public domain through no act of the Recipient;
(b)information which the Recipient can show was lawfully in its possession prior to the receipt thereof from the Owner or which the Recipient has acquired through its own independent research and design;
(c)information which at the time it was received in good faith by the Recipient from a third party was lawfully in possession of such third party without restriction or disclosure;
(d)information which is released from the provisions of this Agreement by the written authorization of the Owner; and
(e)information which the Recipient is required by law to disclose provided that the Recipient will provide to the Owner prompt notice of such requirement so that Owner may seek a protective order or other appropriate remedy.
2. The Recipient acknowledges that the Confidential Information is confidential and a valuable asset of the Owner and all right, title and interest in and to the Confidential Information is and at all times shall remain the exclusive property of the Owner.The Recipient further acknowledges that the Owner makes no representation or warranty as to the accuracy or completeness of the Confidential Information and disclaims all liability that may be based on the Confidential Information, errors therein or omissions therefrom.
3. The Recipient, without the prior written consent of the Owner, shall not directly or indirectly provide any other party with access to the Confidential Information.Without limiting the generality of the foregoing, “providing access” includes disclosure, sale, dissemination, publishing, broadcasting or reproduction by any means whatsoever.For greater certainty, the Recipient further agrees that it shall not: (a)use, manipulate or exploit any Confidential Information, except in strict accordance with the Purpose and the terms hereof, or except with the prior written consent of the Owner, which consent may be unreasonably withheld;
(b)disclose any Confidential Information to any person who does not strictly require the Confidential Information for the Purpose, and then, except where the Owner otherwise agrees, only to such employees, agents, independent contractors, officers, directors or representatives of Recipient as the Owner may authorize and designate, prior to any such disclosure;
(c)tamper with, amend, revise, refine, customize, interfere with, reverse engineer or reverse compile in any way whatsoever all of any part of the Confidential Information without the Owner’s prior written consent; or
(d)reproduce in any form or store in any retrieval system or data base any Confidential Information without the prior written consent of the Owner.
4. Recipient hereby covenants and agrees:
(a)to use the Confidential Information only for the Purpose and to use its best efforts to protect the Owner’s commercial interest in the Confidential Information and to keep all Confidential Information disclosed to it confidential, using a standard of care no less than the degree of care that a careful and prudent person would be expected to employ for its own similar business and confidential information;
(b)to keep all Confidential Information disclosed or delivered to it, whether electronically stored or in a tangible form, in a safe and secure environment and to protect and keep safe all Confidential Information disclosed from any unauthorized use or duplication whatsoever;
(c)to return to the Owner all Confidential Information disclosed or delivered to it, and all copies and tangible manifestations thereof, in any form whatsoever, and to delete all Confidential Information from all retrieval systems and data bases or to destroy the same, immediately upon the direction of the Owner, and to furnish to the Owner, as soon as reasonably practicable after a request therefore, with a certificate of an officer of Recipient attesting to such return, deletion or destruction, as the case may be;
(d)to be directly liable to the Owner for compliance with the terms and conditions of this Agreement by those employees, agents, independent contractors, officers, directors and other representatives of Recipient to whom any Confidential Information is disclosed or delivered; and
(e)to be solely responsible for any and all harm, loss, theft, and damage whatsoever, however caused, to the Owner and any person in connection with any breach hereof.
5.If after reviewing and considering the Confidential Information the Recipient wishes to acquire, develop, manufacture, sell, distribute and/or use any of the Confidential Information, the parties agree to commence negotiating an agreement which shall contain provisions that the parties agree upon and other customary terms settled upon by the parties or their respective counsel.Except as set forth in this Agreement, the parties agree that by entering into negotiations the parties will be assuming no obligations each with the other until an agreement to acquire, develop, manufacture, sell, distribute and/or use the Confidential Information is signed between the Recipient and the Owner.
6.Due to the commercially valuable and proprietary nature of the Confidential Information to the Owner and the relationship of the Confidential Information to the nature of the Owner’s business operations and potential commercial opportunities, the obligations assumed by Recipient hereunder shall be unlimited in territory and shall survive any termination hereof for a period of five (5) years.Recipient acknowledges and agrees that the scope of limitation on Recipient’s confidentiality obligations are entirely reasonable and necessary in order to protect the legitimate commercial and technical interests of the Owner.
7.If any provision of this Agreement is held to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall nevertheless be valid, binding and subsisting.If it is held by a court of competent jurisdiction that the extent of the obligations assumed by Recipient pursuant to section 6 hereof is illegal, invalid or unenforceable, such obligations shall apply for such period of time and in such territories as a court of competent jurisdiction may determine in the reasonable commercial and technical interests of the Owner.
8.It is understood that a breach of any covenants contained herein would cause the Owner to suffer loss which could not be adequately compensated for by damages and that, in addition to claiming damages in respect of any breach hereof, the Owner shall be entitles as a matter of right to seek an injunction and such right shall be cumulative and in addition to any other remedies which may be available to the Owner as a result of such breach.
9.This Agreement shall endure to the benefit of, and be binding upon, the respective successors, permitted assigns, heirs, executors, administrators and legal and personal representatives of the parties hereto.This Agreement may not be assigned by Recipient without the prior written consent of the Owner, except to an assignee which is the successor to or assignee of all or substantially all of the undertaking, business and assets of Recipient.This Agreement may be assigned by the Owner upon notice to Recipient.
10.The parties shall with reasonable diligence do all such things and provide all such further and other assurances as may reasonably be required in order to give effect to the purposes and intent of this Agreement and to carry out the provisions hereof.
11.This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior undertakings, written or oral.No waiver of any provision hereof shall be deemed to or shall constitute a waiver of any other provision, nor shall any such waiver constitute a continuing waiver, unless otherwise agreed to in writing.No amendment or termination hereof shall be binding unless agreed to in writing by both parties.
12.This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the courts of Ontario shall have jurisdiction to entertain any action arising hereunder.
13.Notwithstanding the Recipient’s obligation to protect Confidential Information as provided in Article 6, this Agreement shall terminate on termination of relation.
14.NON-SOLICITATION: The client agrees not to solicit or to engage in any employment or contract offers or discussions with any CCI personnel identified, and supplied by CCI under this Agreement for twelve (12) months following the termination of this agreement, whether or not initiated by the cleint without the express consent of CCI, and subject to such financial or other arrangements as may be reasonably negotiated by the parties.
WHEREAS the parties have executed this agreement on