This non-disclosure / confidentiality agreement (the “Agreement”) is made between the Disclosing Party and the Receiving Party. The parties agree as follows:
1. The Transaction
The Agreement is intended to prevent the unauthorized disclosure of Confidential Information (as defined below) in contemplation of a business transaction between the parties (the “Transaction”).
2. Confidential Information
“Confidential Information” is proprietary information relating to the Transaction including but not limited to: financial institution records, tax records, sales revenues, forecasts, accounting records, investment holdings, wages or income information, or any other financial information that, if disclosed, could affect the Transaction. Confidential information also includes related information that may be disclosed in connection with financial information, including but not limited to identification and account numbers, PINs, passwords, the identity or financial status of investors or partners, or other information conveyed in writing or in discussion that is indicated to be confidential.
3. Non-Disclosure
Without Disclosing Party’s prior written consent, Receiving Party will not: (a) disclose Confidential Information to any third party unless required to do so by law; (b) make or permit to be made copies or other reproductions of Confidential Information; or (c) make any commercial use of Confidential Information. Receiving Party will carefully restrict access to Confidential Information to those of its officers, directors and employees who are subject to non-disclosure restrictions at least as protective as those set forth in this Agreement and who clearly need such access to participate on Receiving Party’s behalf in the analysis and negotiation of a business relationship or any contract or agreement with Disclosing Party.
4. Return of Confidential Material
Upon Disclosing Party’s request, Receiving Party shall within thirty days return all original materials provided by Disclosing Party and any copies, notes or other documents in Receiving Party’s possession pertaining to Confidential Information.
5. Exclusions
This agreement does not apply to any information that: (a) was in Receiving Party’s possession or was known to Receiving Party, without an obligation to keep it confidential, before such information was disclosed to Receiving Party by Disclosing Party; (b) is or becomes public knowledge through a source other than Receiving Party and through no fault of Receiving Party; (c) is or becomes lawfully available to Receiving Party from a source other than Disclosing Party; or (d) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
6. Term
This Agreement and Receiving Party’s duty to hold Confidential Information in confidence shall remain in effect until or until whichever of the following occurs first: (a) Disclosing Party sends Receiving Party written notice releasing it from this Agreement, or (b) Confidential Information disclosed under this Agreement ceases to be confidential.
7. General Provisions
(a) Relationships. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
(b) Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
(c) Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
(d) Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
(e) Injunctive Relief. Any misappropriation of Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm, the amount of which may be difficult to ascertain, and therefore Receiving Party agrees that Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order enjoining any such further misappropriation and for such other relief as Disclosing Party deems appropriate. This right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Party.
(f) Attorney Fees and Expenses. In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
(g) Governing Law. This Agreement shall be governed in accordance with the laws of the province of Manitoba.
(h) Jurisdiction. The parties consent to the exclusive jurisdiction and venue of the federal and provincial courts located in Manitoba in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.
(i) Successors & Assigns. This Agreement shall bind each party’s heirs, successors and assigns. Receiving Party may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Disclosing Party. However, no consent is required for an assignment or transfer that occurs: (a) to an entity in which Receiving Party owns more than fifty percent of the assets; or (b) as part of a transfer of all or substantially all of the assets of Receiving Party to any party. Any assignment or transfer in violation of this section shall be void.
This Agreement states the entire agreement between the parties concerning the disclosure and confidentiality of Confidential Information. Any addition or modification to this Agreement must be made in writing and signed by the parties.
The parties acknowledge that they have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein.