Fillable Printable Mutual Non-Disclosure Agreement

Mutual Non-Disclosure Agreement

This Non-Disclo sure Agreement is entered into on this ___ day of March, 2012 (“Effective Date”) by and

between the GOVERNORS OF THE UNIVERSITY OF CALGARY, a provincial corporation pursuant to

the Post-Secondary Learning Act, S.A. 2003, c.P-19.5 having its principal pla ce o f business at 2500

University Drive N.W., Calgary, Alberta, Canada T2N 1N4 (the “University”) and _________________, a

corporation incorpo rated u nder the laws of Canada, having its registered office at

__________________________________ (“Company”).

In consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as

follows:

1. Confidential Information

(a) “Confidential Information” means any proprietary information that is disclosed by Disclosing Party

(defined herein) to Receiving Party (defin ed herein) and identified as confidential or proprietary at the

time of disclosure, or, if disclosed orally, whi ch is identified as confidential or proprietary at the time of

disclosure and such designation is confirmed in writing no later than thirty (30) days after such

disclosure. Confidential inf ormation includes, without limitation, all proprietary information which

relates to Disclosing Party’s business (including without limitation, business plans, financi al data,

customer information, marketing plans, etc.), technology (including without limitation, technical

drawings, designs, schematics, algorithms, technical data, product plans, research pla ns, software,

etc.), products, services, trade secrets, know-how, formulas, processes, ideas, and inventions

(whether or n ot patentable) and which should be reasonably understood by Receiving Party as the

confidential or proprietary information of Disclosing Party.

(b) Confidential Information shall not include any information that Receiving Party can document:

(i) is or falls into the public do main without fault of Receiving Party;

(ii) Receiving Party can show by written documentation was in its possession witho ut any obligation

of confidentiality prior to re ceipt from Disclosing Party;

(iii) is independently developed by Receiving Party without reference to the Confid ential Information;

(iv) is obtained by Receiving Party from a third party without any obligation of confidentiality to

Disclosing Party.

2. Non-disclosure Obligations

(a) Confidential Information of each party (“Disclosing Party”) shall be used by the other party (“Receiving

Party”) solely for the purpose of evaluating whether or not the partie s wi sh to enter into a business

transaction regarding ____ ____________________________________________ ____________.

For a period of five (5) years following the Effective Date, Receiving Party shall take all rea so nable

measures to protect the Confidential Information of Disclosing Party from falling into the public

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domain or the possession of persons other than tho se persons authorized to have any such

Confidential Information, which measure shall include the degree of care that Receiving Party utilizes

to protect its own informati on of a similar nature.

(b) Nothing in this Agreement shall prohibit Re ceiving Party from disclosing Confidential Information of

Disclosing Party if legally required to do so by judicial or governmental order or in a judicial or

governmental proceeding (“Requi red Disclosure”); provided that Receiving Party shall

(i) give Disclosing Party reasonable notice of such Required Disclosure prior to disclosure;

(ii) co-operate with Disclosing Party in the event that it elects to contest su ch disclo sure or seek a

protective order with respect thereto, or

(iii) in any event only disclose the exact Confidential Information, or portion thereof, specifi cally

requested by the Required Disclosu re.

3. Custodians

The parties appoint the persons listed below as their custodians (“Custodians”) to receive and control,

on their respective behalf, all Confidential Information of the respective parties pursuant to this

Agreement. Either party may change its Custodian by giving written notice to the other Party of the

name and address of its newly appointed Custodian.

Company Custodian: University Custodian:

4. General Provisions

(a) All Confidential Information of Disclosing Party is and shall remain the property of Disclosing Party.

Nothing contained in this Agreement shall be construed as granting or conferring any rights by license

or otherwise, either express, implied or by estoppel, to any Confidential Informat ion of Disclosing

Party, or under any patent, copyright, trademark or trade se cret of Disclosing Party. Disclosin g Party

does not make any represe ntation or warranty with respect to the non-infringement of third party

patents, copyrights, tra demarks or trade secrets with respect to its respective Confidential

Information.

(b) ALL CONFID ENTIAL INFORMATION FUR NISHED UNDER THIS AGREEMENT IS PROVIDED BY

DISCLOSING PARTY “AS IS, WITH ALL FAULTS.” DISCLOSING PARTY DOES NOT MAKE ANY

WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE ACCURACY,

COMPLETENESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR USE, NON-

INFRINGEME NT OR OTHER ATTRIBUTES OF ITS CONFIDENTIAL INFORMATION.

renewed. This Agreement may be terminated earlier by either Party upon written notice that that party

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has decided not to enter into the business transaction or agreement contemplated by the parties

hereto.

(d) Immediately upon

(i) the decision in writing by ei ther party not to enter into the transaction or agreement contemplated

by the parties hereto, or

(ii) written request by Disclosing Party at any time, Receiving Party shall return to Disclosi ng Party all

copies or extracts of Disclosing Party’s Confid ential Information, in any medium, or certify, in

writing by an authori ze d officer of Receiving Party, the destruction of the same to Disclo sing

Party.

(d) Receiving Party shall not assign or transfer this Agreement or any of its rights he reunder or delegate

any of its obligations hereunder (except by merger, acquisitio n, or operation of law) without the prio r

written conse nt of the other party, which consent shall not be unreasonably withh eld. Subject to the

foregoing, this Agreement shall inure to the benefit of and be binding upon the pa rties, their p ermitted

successo rs and permitted assigns.

(e) Nothing in this Agreement shall be construed to require Disclosing Party to disclose a ny Confidential

Information to Receiving Party or to negotiate or enter into any business transaction with Re ceiving

Party.

(f) The parties are inde pendent contractors. Nothing in this Agreement or in the activities conte mplated

by the parties hereunder shall be deemed to create an agen cy, partnership, employment or joint

venture relationship between the parties. Neither party’s officers or employees, agents or contractors

shall be deemed officers, employees, agents or contractors of the other party for any purpose . Each

party shall be deemed to be acting solely on its own behalf and has no authority to incur obligations

or perform any acts or make any statem ents on behalf of the other party. Neither party shall represent

to any person or permit any person to act upon the belief that it has any such authority from the other

party.

(g) All notices related to the administration of this Agreement will be delivered (i) by registered or certified

mail, postage prepaid, (ii) by courier service, or (iii) by facsimile to the following addresses of the

respective parties:

For Company: For the University:

Senior Executive Director, Re search Services

University of Calgary

2500 University Dr., NW

Calgary, Alberta T2N 1N4

Fax: 403.289.0693

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Notices shall be effective on the fifth (5

) business day following th e date of mailing if mailed, upon

documented receipt if sent by courier service, or upon transmission if sent by electronic mail. A party

may change i t s address listed above by notice to the other party.

(h) This Agreement shall be construed and governed by the laws of the Province of Alberta, without

giving effect to its conflict of law principles. The parties hereby submit to the personal juri sdiction of,

and agree that any legal proceeding with respect to or arising under any action commenced by either

party shall be brought solely in, the courts of the Province of Alberta having subj ect matter

jurisdiction.

(i) Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s

Confidential Information, there may be n o adequate remedy at law for any breach of its obliga t ions

hereunder. Disclosi ng Party may be entitled to approp riate equita ble relief in addition to whatev er

remedies it might have at law. Receiving Party will notify Disclosing Party in writing immediately upon

the occurrence of any such unautho rized release or other breach of which it is aware.

(j) This Agreement constitutes the entire agreement between the parties with respect to the subject

matter hereof and supersedes a ny prior understanding and agreements between them respecting the

subject matter hereof. It shall not be modified except by a written agreement si gned by both parties.

No delay, failure or waive r of either pa rty’s exercise or partial exercise of any right or remedy under

this Agreement shall op erate to limit, impair, preclude, cancel, waive or otherwise affect such right or

remedy. No waiver of any provision of this Agreement shall constitute a waiver of any other

provision(s) or of the same provision on another occasion. If any provision of this Agreement shall be

held by a court of compete nt jurisdiction to be illegal, invalid or unenforceable, the remaining

provisions shall remain in full force and effect.

(k) More than one cou nterpart of this Agreem ent may be executed by the parties hereto, each of which

shall be deemed an o riginal, but all of which together shall constitute one and the same agreement.

IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized

representativ es of the parties hereto on the date first written above.

COMPANY

Per:

Name:

Title:

Date:

THE GOVERNORS OF THE UNIVERSITY OF

CALGARY

Per:

Name:

Title:

Date: