Non-Disclosure Agreement (NDA) - Template, Sample Form Pro · EN-CA-law

UNILATERAL NON-DISCLOSURE AGREEMENT
(Province of ________)

THIS NON-DISCLOSURE AGREEMENT (the "Agreement") is dated and made effective as of ________ (the "Effective Date"), and is entered into

BETWEEN:

________, a corporation incorporated under the laws of ________, having its registered office at:

________

(hereinafter the "Discloser");

AND:

________, a corporation incorporated under the laws of ________, having its registered office at:

________

(hereinafter the "Recipient");

(each of the Discloser and the Recipient being a "Party", and collectively, the "Parties").

RECITALS

WHEREAS the Discloser possesses certain confidential and proprietary information that it is willing to disclose to the Recipient for the limited purpose described herein;

AND WHEREAS the Parties acknowledge that such confidential information is important to the continued success of the Discloser's business affairs and must remain confidential;

AND WHEREAS this Agreement shall govern the disclosure by the Discloser to the Recipient of certain confidential and proprietary information solely for the purpose of ________ (the "Purpose");

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Confidential Information" means all non-public information, whether constituting a Trade Secret or not, disclosed by or on behalf of the Discloser to the Recipient in oral, written, electronic, visual or other form, or otherwise learned by the Recipient under this Agreement, together with all copies, notes, analyses, summaries and other materials prepared by the Recipient that contain, reflect or are derived from such information. Confidential Information includes, without limitation, inventions, manufacturing and engineering information, creations, designs, research and development records, patents (whether pending, abandoned or otherwise), applications, processes, chemical analyses, blueprints and drawings, reports, business plans, customers and customer lists, supplier information, pricing, and financial information.

1.2 "Trade Secret" means any information, including a technique, process, tool, mechanism, compound, formula, pattern, device or compilation of information, that is used in the Discloser's business, that is not generally known or readily ascertainable by proper means, that derives independent economic value from not being generally known, and in respect of which the Discloser has taken reasonable steps to maintain its secrecy.

1.3 "Representatives" means, in respect of a Party, its directors, officers, employees, agents, professional advisors and consultants who have a bona fide need to know the Confidential Information for the Purpose.

2. TERM

2.1 For Confidential Information that is not a Trade Secret, the Recipient's obligations under this Agreement shall expire ________ from the Effective Date.

2.2 For Confidential Information that constitutes a Trade Secret, the Recipient's obligations under this Agreement shall continue for so long as such information remains a Trade Secret.

3. OBLIGATIONS OF THE RECIPIENT

With respect to the Confidential Information of the Discloser, the Recipient agrees to:

(a) use such Confidential Information solely for the Purpose and for no other purpose whatsoever;

(b) hold such Confidential Information in strict confidence and not disclose it to any third party, except to its Representatives who require the Confidential Information in order to carry out the Purpose and who are bound by written obligations of confidentiality and restricted use at least as protective as those set out in this Agreement, the Recipient remaining liable for any breach by its Representatives;

(c) protect the confidentiality of such Confidential Information using at least the same degree of care that it uses to protect its own confidential information of like importance, and in no event less than a commercially reasonable degree of care; and

(d) notify the Discloser as soon as practicable upon becoming aware of any unauthorized use or disclosure of such Confidential Information, and reasonably cooperate with the Discloser to remedy the same.

4. EXCLUSIONS

The obligations under Section 3 shall not apply to any Confidential Information that the Recipient can demonstrate by competent evidence:

(a) was known to the Recipient before it was disclosed under this Agreement, without any obligation of confidentiality and not by wrongful appropriation;

(b) is or becomes publicly available or known to the public, other than as a result of an act or omission of the Recipient or its Representatives in breach of this Agreement;

(c) is rightfully disclosed to the Recipient by a third party without any confidentiality obligation; or

(d) is independently developed by the Recipient without use of, or reference to, the Discloser's Confidential Information.

5. DISCLOSURE REQUIRED BY LAW

The Recipient may disclose the Discloser's Confidential Information to the extent, and to the persons or entities, required under applicable law, rule, regulation, court order, subpoena or other legal or regulatory process, provided that the Recipient: (i) where legally permitted, first gives prompt written notice of such disclosure requirement to the Discloser so as to enable the Discloser to seek a protective order or other appropriate remedy or to waive compliance with this Agreement; (ii) discloses only that portion of the Confidential Information that it is legally compelled to disclose; and (iii) reasonably cooperates, at the Discloser's request and expense, in any efforts by the Discloser to obtain confidential treatment of the Confidential Information.

6. FEEDBACK AND IMPROVEMENTS

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7. RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION

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8. NO LICENCE OR OTHER RIGHTS

Nothing in this Agreement shall be construed as granting to the Recipient, by implication, estoppel or otherwise, any licence or right under any patent, copyright, trademark, trade secret or other intellectual property right now or hereafter owned or controlled by the Discloser. All Confidential Information shall remain the sole and exclusive property of the Discloser, and the disclosure of such Confidential Information to the Recipient shall not confer upon the Recipient any rights of ownership or any other rights therein, except the limited right to use such Confidential Information solely for the Purpose in accordance with the terms of this Agreement.

9. NO WARRANTY

All Confidential Information is provided "as is". The Discloser makes no representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and shall have no liability to the Recipient resulting from the Recipient's use of the Confidential Information, except as may be expressly agreed in a definitive written agreement between the Parties.

10. NO OBLIGATION; TERMINATION OF DISCUSSIONS

Nothing in this Agreement obligates either Party to proceed with any transaction or relationship, and either Party may terminate any discussions or negotiations at any time. Notwithstanding any such termination, the confidentiality and other obligations set out in this Agreement shall survive in accordance with Section 2.

11. ASSIGNMENT AND ENUREMENT

Neither Party may assign or delegate this Agreement, in whole or in part, without the prior written consent of the other Party, and any purported assignment or delegation without such consent shall be void. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

12. REMEDIES; BREACH OF AGREEMENT

The Recipient acknowledges that any actual or threatened breach of this Agreement will cause the Discloser immediate and irreparable harm for which monetary damages would be an inadequate remedy, and agrees that the Discloser shall be entitled to seek injunctive relief and specific performance for any actual or threatened breach of this Agreement, without the necessity of posting a bond or proving actual damages, in addition to any other remedies available at law or in equity.

13. ENTIRE AGREEMENT; AMENDMENT; WAIVER

This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, agreements, representations and communications, whether written or oral. No amendment to this Agreement shall be effective unless in writing and signed by both Parties. No waiver of any provision shall be effective unless in writing, and no failure or delay by a Party in exercising any right shall operate as a waiver thereof.

14. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed and the remaining provisions shall continue in full force and effect, and the invalid provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable while giving effect to the original intent of the Parties.

15. NOTICES

Any notice required or permitted under this Agreement shall be in writing and delivered personally, sent by recognized courier, or sent by email with confirmation of receipt, to the address of the relevant Party set out above or to such other address as a Party may designate by notice. Notice shall be deemed received upon personal delivery, upon confirmed courier delivery, or upon confirmed transmission by email on a business day.

16. COUNTERPARTS

This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery by facsimile or by electronic transmission in portable document format (PDF) of an executed counterpart of this Agreement shall be as effective as delivery of an originally executed counterpart.

17. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed exclusively in accordance with the laws of the Province of ________ and the federal laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of ________, and to any court having jurisdiction over a Party solely for the purpose of enforcing a judgment of such courts. Neither Party shall seek to enforce an order originating in any court other than the courts of the Province of ________.

18. LANGUAGE

The Parties declare that they have requested and do hereby confirm their request that this Agreement and all related documents be drawn up in the English language. Les parties déclarent qu'elles ont exigé que la présente convention et tous les documents s'y rapportant soient rédigés en langue anglaise.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

DISCLOSER:

________

Signature: ___________________________

Name: ________
Title: ________
Date: ________

RECIPIENT:

________

Signature: ___________________________

Name: ________
Title: ________
Date: ________