APPENDIX B to the NCE NETWORK AGREEMENT
PDF Version
Confidentiality Agreement (Reciprocal Non-Disclosure)
This Agreement made as of the ______ day of ________, 200_.
BETWEEN:
________________________ ("Disclosing Party”)
AND:
__________________________ ("Receiving Party")
WHEREAS:
A. Each party (hereinafter referred to in its role as a provider of information
as the "Disclosing Party") to this Agreement has information
concerning a certain subject which is its confidential and proprietary
property; and
B. Each party (hereinafter referred to in its role as recipient of information
from the Disclosing Party as the "Receiving Party") to this
Agreement wishes the Disclosing Party to disclose its information to it
and the Disclosing Party is willing to disclose its information to the
Receiving Party provided that the confidentiality of all such information
so disclosed is maintained as hereinafter provided.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration
of the premises and of the mutual covenants herein set forth, the parties
hereto have covenanted and agreed as follows:
1. Information covered by this Agreement must be identified as Confidential
In this Agreement, "Information" shall mean any and all knowledge,
know how, information, and/or techniques disclosed by the Disclosing Party
to the Receiving Party relating to financial and/or commercial information,
and/or relating to research projects or technologies developed by members
of NCE Program ____________ or University ____________ or Company ____________
or any combination of NCE Program, University or Company ____________
inclusive of:
a) __________________________,
b) __________________________,
c) __________________________,
d) __________________________, and
e) __________________________,
all of the above which include, without limiting the generality of the
foregoing, all research, data, specifications, plans, drawings, prototypes,
models, documents, records, instructions, manuals, papers, or other materials
of any nature whatsoever, whether written or otherwise, relating to same,
as well as the existence of this Agreement and its terms and conditions.
In order to constitute "Information" for the purposes of this
Agreement, the Disclosing Party must clearly identify it in writing as
being confidential, or if the disclosure takes place orally or in some
other non tangible form, the Disclosing Party must summarize it in writing
within 15 days of making the disclosure.
2. Specified use of Confidential Information
The Receiving Party shall not, without the Disclosing Party's prior written
consent, use the Disclosing Party's Information, directly or indirectly,
for any purpose other than:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
Without limiting the generality of the foregoing, the Receiving Party
shall not use, manufacture, or sell the Disclosing Party's Information
or any device or means incorporating any of the Disclosing Party's Information,
and shall not use any of the Disclosing Party's Information as the basis
for the design or creation of any device or means.
3. Permitted exceptions to the obligation to keep information confidential
The Receiving Party shall keep and use all of the Disclosing Party's
Information in confidence and shall not, without the Disclosing Party's
prior written consent, disclose any part of the Disclosing Party's Information
to any person, firm, corporation, or other entity unless and until that
part of the Disclosing Party's Information:
- is made subject to an order by judicial or administrative process
requiring the Receiving Party to disclose any or all of the Disclosing
Party's Information, provided however that the Receiving Party shall
promptly notify the Disclosing Party and allow the Disclosing Party
reasonable time to oppose such process before disclosing any of the
Disclosing Party's Information;
- is published or becomes available to the general public other than
through a breach of this Agreement;
- is obtained by the Receiving Party from a third party with a valid
right to disclose it, provided that said third party is not under a
confidentiality obligation to the Disclosing Party;
- is independently developed by employees, agents or consultants of
the Receiving Party who had no knowledge of or access to the Disclosing
Party's Information as evidenced by the Receiving Party's business records;
or
- was possessed by the Receiving Party prior to receipt from the Disclosing
Party, other than through prior disclosure by the Disclosing Party,
as evidenced by the Receiving Party's business records.
4. Agreement does not create a license or contract
The Receiving Party acknowledges and agrees that any and all disclosures
of the Disclosing Party's Information pursuant to this Agreement are on
a non exclusive basis and that the Disclosing Party is free to make similar
or other disclosures to third parties. Nothing in this Agreement shall
create, or be construed to create, any license to the Receiving Party
or any obligation on either party to enter into a license or other agreement
with respect to the Information. Furthermore, nothing contained herein
shall be deemed or construed to create between the parties hereto an agency
relationship, partnership or joint venture. Neither party shall be liable
for any act, omission, representation, obligation, or debt of the other
party, even if informed of such act, omission, representation, obligation,
or debt.
5. No warranty given by Disclosing Party
The Disclosing Party makes no representations or warranties, either express
or implied, with respect to the merchantability or fitness for a particular
purpose of its Information. The Disclosing Party shall in no event be
liable for any loss of profits, be they direct, consequential, incidental,
or special or other similar or like damages arising from any defect, error
or failure to perform with respect to its Information, even if the Disclosing
Party has been advised of the possibility of such damages.
6. Receiving Party's indemnifies Disclosing Party
The Receiving Party hereby indemnifies, holds harmless and defends the
Disclosing Party, its Board of Governors, directors, officers, employees,
faculty, students, invitees, and agents against any and all claims (including
all legal fees and disbursements incurred in association therewith) arising
from or out of the receipt or use of the Disclosing Party's Information
by the Receiving Party including, without limiting the generality of the
foregoing, any damages or losses, consequential or otherwise, arising
from or out of the receipt or use of the Disclosing Party's Information
by the Receiving Party, howsoever the same may arise. In the event that
the Receiving Party is prohibited by law from granting the indemnity contemplated
herein, the Receiving Party shall carry insurance in an amount of no less
than $1,000,000 and which shall provide coverage to the Disclosing Party,
its Board of Governors, directors, officers, employees, faculty, students,
invitees, and agents against any and all claims (including all legal fees
and disbursements incurred in association therewith) arising from or out
of the receipt or use of the Disclosing Party's Information by the Receiving
Party including, without limiting the generality of the foregoing, any
damages or losses, consequential or otherwise, arising from or out of
the receipt or use of the Disclosing Party's Information by the Receiving
Party, howsoever the same may arise.
7. No transfer of rights and duties under this Agreement
Neither party shall assign, transfer, mortgage, charge or otherwise dispose
of any or all of its rights, duties or obligations granted to it under
this Agreement without the prior written consent of the other.
8. Term of this Agreement and return of all copies of information
This Agreement will be deemed to have come into force on the earlier
date of the first date above written or the date when Information was
transferred under this Agreement regardless of the date of execution,
and shall be read and construed accordingly. This Agreement shall terminate
on the expiration of a term of five (5) years after this Agreement comes
into force unless earlier terminated by the mutual agreement in writing
executed by duly authorized signatories of the parties. Forthwith upon
the termination of this Agreement, the Receiving Party shall cease to
use the Disclosing Party's Information in any manner whatsoever and upon
the written request of the Disclosing Party shall forthwith deliver up
to the Disclosing Party all of the Disclosing Party's Information, together
with all full or partial copies thereof as shall then be in the Receiving
Party's possession or control, except that the Receiving Party may retain
one complete record copy of said Information for archival purposes to
assure compliance with this Agreement. Notwithstanding any termination
or expiration of this Agreement, the obligations created in this Agreement
shall survive and continue to be binding upon the Receiving Party, its
successors and assigns for the full term set forth above.
9. Applicable laws
This Agreement shall be governed by and construed in accordance with
the laws of the « Province of the Participating
Institution » and the laws of Canada in force therein without
regard to its conflict of law rules.
10. Arbitration
In the event of any dispute arising between the parties concerning this
Agreement, its enforceability or the interpretation thereof, the same
shall be finally resolved by the provisions of Article 9 of the «
network » Network Agreement.
11. Notices
All notices or other documents that either of the parties hereto are
required or may desire to deliver to the other party hereto may be delivered
only by personal delivery, by courier, by telecopy, or by registered or
certified mail, all postage and other charges prepaid, at the address
for such party set forth above or at such other address as that party
may hereinafter designate in writing to the other.
12. Miscellaneous Provisions
No condoning, excusing or overlooking by either party of any default,
breach or non observance by the other party at any time or times in respect
of any covenants, provisos, or conditions of this Agreement shall operate
as a waiver of such party's rights under this Agreement in respect of
any continuing or subsequent default, breach or non observance so as to
defeat in any way the rights of such party in respect of any such continuing
or subsequent default or breach, and no waiver shall be inferred from
or implied by anything done or omitted by such party, save only an express
waiver in writing.
13.
This Agreement may be executed in counterpart, each such counterpart when
taken as a whole with the other executed counterparts, constituting an
original Agreement.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement
on the dates set forth below but effective as of the date first above
written.
Signed for and on behalf of «
» by its
duly authorized officer:
Signed: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
Signed for and on behalf of «
» by its
duly authorized officer:
Signed: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
I, « Network Investigator »,
« of the University » hereby acknowledge
that I have read and understood the provisions of this agreement.
Signed: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
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