Mutual Nondisclosure Agreement (NDA)
This Mutual Nondisclosure Agreement (“Agreement”) is entered into by and between The Capent Group Inc., and the individual or company whose details appear on the webpage form filled on the website i.e. www.cansummit.ca .
1. Purpose. The parties wish to explore a potential business opportunity of mutual interest, and in connection with this opportunity either party (“Disclosing Party”), may disclose to the other party (“Receiving Party”), certain Confidential Information (defined below), which the Disclosing Party desires the Receiving Party to treat as confidential.
2. Confidential Information. “Confidential Information” means any information of a financial, legal, or business nature relating to the business of the Disclosing Party or its Affiliates of a confidential nature including, without limitation, information which should reasonably be interpreted to be confidential. Confidential Information may also include information disclosed to a Disclosing Party by third parties. However, Confidential Information shall not include information that: (i) was publicly known and generally available in the public domain prior to the time of disclosure by the Disclosing Party to the Receiving Party; (ii) becomes publicly known and generally available in the public domain after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) was independently developed by the Receiving Party without violating the terms of this Agreement, as shown by documents and other competent evidence in the Receiving Party’s possession; or (v) was received by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality. “Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control by the Disclosing Party. The term “control” means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. “Person” means an individual, corporation, partnership, limited liability company, co-operative, association, government body and any other legal or government entity.
3. Non-use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties. The Receiving Party shall not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the Disclosing Party’s Confidential Information. In addition, each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, contractors, and/or affiliates, except to those employees, contractors, and/or affiliates of the Receiving Party who (i) are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, and (ii) have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information (collectively, “Permitted Recipients”). The failure of a Permitted Recipient to use and/or not disclose Confidential Information in the same manner as required of the Receiving Party pursuant to this Agreement constitutes a breach of this Agreement by the Receiving Party.
4. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information, provided that in no event shall it take less than reasonable measures. In addition, a party may disclose Confidential Information if it is required by law to disclose the Confidential Information, provided that (i) the Receiving Party gives the Disclosing Party (a) prompt written notice of such requirement prior to such disclosure, and (b) reasonable assistance, at the Disclosing Party’s expense, in obtaining an order protecting the information from public disclosure, and (ii) such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Neither party shall make any copies of the Confidential Information of the other party except to Permitted Recipients, or unless the making of such copies is previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such permitted or approved copies, in the same manner such notices were set forth in or on the original.
5. Acknowledgment. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it products, services, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in such Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions or interactions contemplated by this Agreement concerning the business opportunity.
7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO ACCURACY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT OR OTHER VIOLATIONS OF ANY PROPRIETARY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.
8. Return of Materials. Upon the written request of the Disclosing Party, the Receiving Party shall promptly return all tangible items embodying Confidential Information of the Disclosing Party, including, without limitation, all written materials, photographs, models, compounds, compositions and the like made available or supplied by the Disclosing Party to the Receiving Party, together with all copies thereof. Notwithstanding the foregoing, the Receiving Party may retain one (1) archival copy of any written or photographic Confidential Information of the Disclosing Party provided hereunder, which copy shall be used only by the Receiving Party and its legal advisors in connection with review of its obligations hereunder.
9. No License. Except as expressly provided herein, nothing in this Agreement is intended to grant any rights to the Receiving Party under any patent, copyright, trademark, or other proprietary rights of the Disclosing Party, nor shall this Agreement grant to the Receiving Party any rights in or to Confidential Information except as expressly set forth herein.
10. Term. This Agreement shall become effective as of the Effective Date and the obligations hereunder shall survive, with respect to any particular Confidential Information, until the earlier of such time as all Confidential Information disclosed hereunder becomes publicly known or made generally available through no action or inaction of the Receiving Party.
11. Remedies. The Receiving Party acknowledges and agrees that any violation or threatened violation of this Agreement by the Receiving Party may cause the Disclosing Party irreparable injury. Accordingly, in addition to any remedies available to the Disclosing Party at law or equity, the Receiving Party agrees that the Disclosing Party will have the right to seek injunctive relief with respect to such violation or threatened violation.
12. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties permitted successors and assigns. The terms of this Agreement and any dispute relating thereto will be governed by the laws of the State of Delaware, without regard to conflict/choice of law principles. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings with respect thereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended or assigned, nor any obligation waived, except by a writing signed by both parties hereto. Executed counterparts shall each be deemed originals, whether exchanged via mail, facsimile, or electronically, and collectively constitute one instrument.
EFFECTIVE DATE: Date of electronic acceptance of this agreement on the CanSummit website (“Effective Date”)
AGREED TO AND ACCEPTED by both the parties.