This Non-Disclosure Agreement (“Agreement”) is entered into as of today (“Effective Date”) by and between Xpira Pharmaceuticals Inc., an Ontario corporation, on behalf of itself and its affiliates (collectively, the “Disclosing Party”), and you, the individual accessing the Confidential Information, defined below, and any single legal entity on behalf of which you are acting (the “Receiving Party”) (collectively with the “Disclosing Party”, the “Parties” and each may be referred to individually as a “Party”). The Disclosing Party wishes to protect and preserve the confidential and/or proprietary nature of information and materials that may be disclosed or made available to you in connection with the Disclosing Party’s business (the “Purpose”); and therefore, subject to the terms and conditions hereof, the parties hereby agree as follows:
1. The term “Confidential Information” means trade secrets, proprietary information, and other information of the Disclosing Party that (i) is marked or labeled as “confidential” or “proprietary” or is indicated at the time of disclosure as confidential or proprietary, (ii) based on its nature or the nature of its disclosure, a reasonable person would recognize as confidential, (iii) or is otherwise disclosed on this website. Confidential Information includes without limitation, (x) information, data and materials concerning processes, techniques, know-how, inventions, research and development, software, hardware, products, product development, samples, designs, drawings, specifications, apparatus, formulations, equipment, materials, production quantities, costs, accounting, pricing, marketing, sales, selling techniques, strategies, suppliers, customers, prospects, agreements, operations, financial information and projections, together with copies and derivatives thereof, and (y) all notes, analyses, compilations, studies, summaries, and other material prepared by the Receiving Party containing, reflecting, derived from, or based on, in whole or in part, any Confidential Information of the Disclosing Party. Without limiting the foregoing, “Confidential Information” shall also include the following: (i) that discussions, investigations, or negotiations are proposed or taking place between the Parties, (ii) the proposed or actual terms, conditions, status and other information regarding any transaction or relationship between the Parties, and (iii) that Confidential Information is made available by the Disclosing Party to the Receiving Party. Confidential Information may be provided in written, oral, visual or electronic form.
(a) The Receiving Party agrees to keep Confidential Information in strict confidence, not to use Confidential Information for any purpose other than the Purpose, and not to disclose or make Confidential Information available to any third party, except as permitted in this Agreement. The Receiving Party shall use at least the same standard of care in maintaining the confidentiality of the Confidential Information of the Disclosing Party as it uses for its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
(b) Confidential Information of the Disclosing Party may only be disclosed to those Representatives of the Receiving Party who (i) reasonably require access to such information for the Purpose, (ii) have been informed of the confidential nature of the Confidential Information, and (iii) agree to be bound by the terms and conditions of this Agreement. The Receiving Party shall cause its Representatives to comply with the terms of this Agreement and shall be responsible for any breach of this Agreement by its Representatives. For purposes of this Agreement, “Representatives” shall mean a Party’s Affiliates together with such Party’s and its Affiliates’ officers, directors, employees, legal counsel, advisors, potential financing parties or partners, accountants, contractors, consultants and other agents. “Affiliate” means, with respect to a party to this Agreement, any other legally recognizable entity directly or indirectly managing or managed by, controlling, controlled by, or under common control with such party. The term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
(c) Notwithstanding the foregoing, nothing herein shall limit the use or disclosure of Confidential Information which, as evidenced by contemporaneous written documentation,
(i) is legally in the possession of the Receiving Party or its Representatives, without any restrictions on use or disclosure, prior to receipt thereof from the Disclosing Party;
(ii) enters into the public domain through no fault of the Receiving Party or its Representatives;
(iii) is disclosed to the Receiving Party without any restrictions on use or disclosure by a third party not known by the Receiving Party to be bound by a confidentiality agreement or other obligation of confidentiality relating to such Confidential Information; or
(iv) is independently developed by or for the Receiving Party without use of or reference to any Confidential Information.
(d) In the event that the Receiving Party is requested or required by deposition, interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar process or as otherwise required by law, rule, regulation, judicial, administrative, or governmental order to disclose any Confidential Information, the Receiving Party shall provide prompt written notice to and reasonably cooperate with the Disclosing Party (at the Disclosing Party’s expense) so that legal protection for the Confidential Information may be sought.
(e) Upon a written request from the Disclosing Party or upon the termination of this Agreement, the Receiving Party shall immediately return to the Disclosing Party, or destroy, all tangible forms of the Confidential Information and all copies thereof, including but not limited to, equipment, notebooks, documents, memoranda, reports, files, samples, books, correspondence, lists, computer disks and databases, computer programs and reports, computer software, and all other written, graphic, electromagnetic, and computer generated or stored records relating to the Confidential Information. All said items shall be and remain the sole and exclusive property of the Party who disclosed or provided such items. Any destruction of items containing the Confidential Information shall be certified by a duly authorized officer of the Receiving Party in writing. The Receiving Party may retain one (1) archival copy (i) as and if required by applicable legal/regulatory requirements or Receiving Party’s internal procedures relating to records retention or (ii) to evidence compliance hereunder, subject to Receiving Party’s ongoing obligations hereunder.
2. The Parties make no representations or warranties hereunder as to the accuracy or completeness of any of the Confidential Information. The Receiving Party is responsible for performing its own due diligence investigation in regard to the Confidential Information. Except as otherwise agreed in writing pursuant to the terms and conditions of a separate definitive written agreement between the Parties, either Party shall have no liability resulting from the Receiving Party’s use of the Confidential Information.
3. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter indicated herein, and its terms may not be changed or amended unless agreed to in writing by the Parties. No rights or obligations other than those expressly stated herein shall be implied from this Agreement. In particular, no license or other right is hereby granted, either express or implied, to the Receiving Party. This Agreement does not establish a partnership, agency, broker relationship, joint venture or similar relationship, nor does it obligate any Party to enter into such a relationship.
4. The Receiving Party acknowledges that a breach of this Agreement will cause irreparable harm to the Disclosing Party and that money damages would not be an adequate remedy, and agrees that the Disclosing Party shall be entitled to injunctive relief and specific performance, in addition to other available remedies, for any breach or threatened breach of this Agreement without the necessity of proving actual damages or posting a bond or other security.
5. Should any provision of this Agreement be held illegal or unenforceable, such holding shall not affect the validity of the remainder of this Agreement. It is the intent of the Parties that, to the fullest extent permitted by law, any invalid, void or unenforceable provisions shall be replaced by provisions as similar as possible thereto but which are valid and enforceable.
6. This Agreement shall be interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties agree to submit to the jurisdiction of the Federal Court in respect of this Agreement, or if the Federal Court lacks jurisdiction, to the Ontario courts.
7. The Parties’ obligations with respect to any Confidential Information shall remain in effect until such time as one of the exceptions set forth in Subparagraph 1 (c) is applicable to such Confidential Information or the expiration of five (5) years from the Effective Date, whichever occurs first. Notwithstanding the foregoing, the obligation of the Receiving Party with respect to the protection of trade secrets that were clearly identified as such by the Disclosing Party shall survive the termination or expiration of this Agreement until such time as any disclosed trade secrets are no longer protectable under applicable law as trade secrets.
8. This Agreement and the obligations set forth herein shall be binding upon and inure to the benefit of the Parties hereto, and their respective successors and assigns. It is further understood that no failure or delay by either Party in exercising any right, power, or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise or the exercise of any right, power or privilege hereunder.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “SUBMIT” BUTTON LOCATED ON THIS PAGE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK THE "NEXT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CONFIDENTIAL INFORMATION.