WHEREAS the parties wish to enter into specific business arrangements and related issues with respect to a relationship involving marketing services for the duration of the enclosed contract.
AND WHEREAS in conducting and carrying out such investigations and evaluations, the parties have exchanged and will exchange information belonging to each of them or to their respective affiliates (hereinafter called “Information ”) including but not limited to processes,marketing and advertising techniques and strategies, products and services, financial and accounting information and other trade secrets and know-how;
AND WHEREAS the parties have agreed that the Information conveyed by one party (the“Disclosing Party ”) to the other party (the “Receiving Party ”) shall be held and used by the Receiving Party strictly in accordance with the terms of this Agreement;
NOW THEREFORE, this Agreement witnesses that in consideration and the mutual covenants hereinafter set out and other good and valuable consideration, the adequacy and receipt of which are acknowledged, the parties agree the one with the other as follows:
1.Information: The Information which is the subject of this Agreement is, for the purposes of the Agreement, defined to be any and all information in written, oral, printed, documentary, or electronic form that has been and is provided, directly or indirectly, by or through the Disclosing Party to the Receiving Party for the purpose and intention of the Receiving Party to investigate and evaluate specific business arrangements under discussion with respect to the Project, subject to the exceptions contained in this Agreement, and for greater clarity, but without limiting the generality of the foregoing, shall include the existence of and any information regarding the subject matter of this Agreement and of any agreement entered into
between the parties in connection with the Project.
2.Use of Information: Each party agrees to use the Information furnished to it by the other onlyas reasonably required for the purposes of investigation and evaluation of the Project and for no other purpose, whether directly or indirectly.
3.Non-Disclosure: Each party agrees to employ adequate safeguards to keep the Information strictly confidential and shall not disclose, directly or indirectly, the Information to any other person. Without limiting the generality of the foregoing, each party agrees that unless required by law, it will not disclose the Information in whole or in part to others without the prior written approval of the other party, with the exception, on a “need-to-know” basis only, of its affiliates, and their respective employees, agents and advisors (all such persons and entities referred to collectively as the “Permitted Recipients ”). Each party further agrees that it shall not, whether directly or indirectly:
a) copy, duplicate, reproduce, exploit or further develop the Information in any form in whole or in part, save and except as may be used for evaluation of the Project;
b) contract, incur or suffer to exist any claim, lien, charge or other encumbrance with respect to the Information without the approval of the other party in writing; or
c) use or disclose any or all of the Information contrary to the intention and spirit of this Agreement.
4.Exceptions: The obligations under this Agreement shall apply to any and all parts of the Information except that which the Receiving Party is able to clearly demonstrate:
a) is or becomes generally available to the public (other than through a breach of this Agreement);
b) is lawfully obtained by the Receiving Party from third parties which have the lawful right to disclose such Information;
c) is previously actually known to the Receiving Party or is independently developed by the Receiving Party without use of or reference to the Information, prior to the initial disclosure thereof by the Disclosing Party, which actual knowledge or independent development, as the case may be, can be established by evidence that would be acceptable to a Court of competent jurisdiction; or
d) the Receiving Party is required to disclose by law or judicial order, provided that prior to disclosing any Information, the Receiving Party shall notify the Disclosing Party and the Receiving Party shall cooperate with the Disclosing Party to lawfully limit and/or obtain appropriate protective orders with respect to such portion(s) of such data or information as is/are the subject of any such required disclosure.
5.Indemnity: Each party (the “Breaching Party ”) shall indemnify and hold the other party and its affiliates and their respective directors, officers, employees and agents (collectively, the “Non-Breaching Party ”) harmless from all loss, damage, injury or liability suffered by the onBreaching Party, including reasonable legal fees, arising from, directly or indirectly related to, employees or any of its Permitted Recipients.
6.Injunctive Relief: In the event of a breach or threatened breach of this Agreement by a Breaching Party, a Permitted Recipient, or persons acting on behalf of a Breaching Party, the parties agree that, in addition to any remedy at law that a Non-Breaching Party may have for damages, the Non-Breaching Party shall be entitled to temporary and permanent injunctive relief prohibiting any and all use and disclosure of the Information and such injunctive relief shall not limit any other remedies which the Non-Breaching Party may have as a result of a breach of the covenants contained herein.
7.Return of Information: The parties agree that each shall have the right to demand at any time the immediate return of its respective Information and any and all copies thereof, if any, in the possession of the other and such party shall forthwith return the same. In the event that either party determines that it does not wish to pursue any further evaluations or enter into further specific business arrangements with the other party in connection with the Project, each party shall immediately return to the other party all Information, including without limitation, Information that either party has provided to third parties, together with any and all copies thereof and will immediately destroy any and all memoranda, notes, reports, documents, and
software containing copies, extracts or reproductions thereof in its possession, power or control. Upon request, each party will certify the return and/or destruction of the Information by a certificate of one of its senior officers. The return of such documents shall in no event relieve either party of its obligations of confidentiality set out in this Agreement with respect to such returned Information.
8.Disclosure to Third Parties: The parties agree that neither shall disclose to any third party that the parties are evaluating the Information or considering the viability of entering into
further specific business arrangements unless the parties, prior to disclosure, agree that disclosure of such facts can be made to third parties.
9.Public Notices: The parties agree that if and when further specific business arrangements are entered into between them following their independent evaluation of the Information, all notices to third parties and all other publicity and public notices concerning the other party or any affiliated company’s name, trade mark or proprietary information shall be jointly planned, coordinated and issued and neither party shall act unilaterally in this regard without the prior written approval of the other party, such approval not to be unreasonably withheld. In the event the parties fail to reach an agreement following their evaluation of the Information, there will be no public announcement of any kind.
10.Liability: Each party acknowledges and understands that the other makes no representation or warranty in relation to this Agreement or any of the Information, its adequacy, accuracy, or
suitability for any purpose, and, except as expressly agreed in writing, each party shall not be liable to the other for any loss or damage arising from the use of the Information howsoever caused.
11.Ownership of Information: Each party acknowledges and agrees that the Disclosing Party or its affiliates, as applicable, shall own all Information of the Disclosing Party
12.Notices: Any notice or communication to be given hereunder may be effectively given by mailing the same to the parties at the addresses hereinafter set forth or by sending the same by email to the parties at such address. The addresses and email addresses of the parties for the purposes hereof shall respectively be:
(a) In the case of Ripe:
5700 – 100 King St W
Attention: Gavin Ripe
(a) In the case of:
Any party may from time to time notify the other party hereto in accordance with the rovisions
hereof of any change of its address or facsimile number which thereafter, until changed by like notice, shall be the address or facsimile number of such persons for all purposes of then Agreement.
Any notice forwarded by mail shall be deemed to have been received within five (5) business
days of the date of the notice and any notice sent by facsimile shall be deemed to have been received upon successful transmission.
13. Successors and Assigns: The provisions of this Agreement shall be binding upon the parties and their permitted successors and assigns.
14.Governing Laws: This Agreement shall be interpreted and governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The parties hereto hereby submit and attorn to the exclusive jurisdiction of the courts of the province of Ontario.
15.General Contractual Matters: This Agreement shall survive for a period of five (5) years regardless of whether or not the parties enter into any further business arrangements in connection with the Project or any agreement relating thereto and any termination of any such agreement.
16.Waiver: Failure by a party to insist upon strict adherence to any term of this Agreement on any occasion or the waiver of a breach of this Agreement in any instance shall not deprive theparty of the right there after to insist on strict adherence to that term or any other term in this Agreement or be construed as a waiver of any subsequent breach, whether or not similar
17.Validity: Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, such determination shall not affect the remaining provisions of this Agreement which shall remain in full force and effect.
18.Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter. No modification or change to this Agreement shall be valid unless made in writing and signed by both parties.
19.Counterparts: This Agreement may be executed in counterparts and/or by facsimile, each of which when so executed shall be deemed to be an original and all of which when taken together hall constitute one and the same Agreement.
20. Binding Commitment: The parties agree that the execution of this Agreement does not in any way constitute a binding commitment on the part of either party to enter into or complete negotiations or any transaction with the other party.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the date first written above.