NON-DISCLOSURE AGREEMENT FOR NSERC IPS PROJECTS
Dated for reference enter date Agreement was drafted
BETWEEN:
Enter name/address of industry sponsor
(“Company”)
AND:
Enter name/address of student
(“Student”)
AND:
Enter name/address of UVic supervisor
(“UVic Supervisor”)
AND:
UNIVERSITY OF VICTORIA, a corporation continued under the University
Act of British Columbia and having offices at Administrative Services
Building Room B202, 3800 Finnerty Road, Victoria, British Columbia, V8P
5C2, Facsimile 250-721-8960 Att: Contracts
(“UVic”)
(Individually a “Party”, collectively the “Parties”)
WHEREAS:
A.
The Parties are engaged in a research project entitled ‘enter name of project’ (“Project”),
performed by Student with support under a Natural Sciences and Engineering Research Council
(“NSERC”) Industrial Postgraduate Scholarship (“IPS”).
B.
One Party wishes to provide its confidential information to one or more of the other Parties in
furtherance of performance of the Project.
NOW THEREFORE the Parties agree that the following terms and conditions shall form the basis upon
which confidential information shall be exchanged in relation to the Project:
1.
DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1
"Confidential Information" means all oral, written or machine readable information and data that:
a)
If disclosed in tangible form is clearly marked “CONFIDENTIAL” at the time of disclosure; or
b)
If disclosed orally, is identified as confidential or proprietary at the time of disclosure and which
is summarized in a tangible format which is clearly marked as “CONFIDENTIAL” and delivered to
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Receiver within fifteen (15) days of the original disclosure.
Confidential Information does not include information or data that:
a)
is disclosed by a third party, acting independently, who delivers such information without
obligation of confidentiality;
b)
is already in the possession of Receiver without restriction and prior to disclosure of that specific
information hereunder;
c)
is already in the public domain or, after disclosure, is published or otherwise becomes part of
the public domain through no fault of Receiver;
d)
is disclosed in accordance with the order of a court or regulatory body of competent jurisdiction
and, where lawfully permitted to do so, Receiver has provided Discloser with notice of the
required disclosure and has cooperated reasonably, at Discloser’s expense, in Discloser’s efforts
to prevent or limit such disclosure; or
e)
Is developed independently by Receiver as demonstrated by competent evidence.
1.2
“Discloser” means the Party that is disclosing its Confidential Information to another Party.
1.3
“Publication” means any publication or public presentation.
1.4
“Receiver” means the Party that is receiving Confidential Information from another Party.
2.
OWNERSHIP
2.1
Ownership of and all right, title and interest to the Confidential Information will at all times remain
exclusively vested in Discloser. Except as expressly set out herein, disclosure of the Confidential
Information by Discloser will not be construed as granting Receiver a license of any rights, including
without limitation any right to any copyright, trade-mark, patent or trade secret relating to the
Confidential Information in respect of which Discloser or any officer, director, employee, affiliate,
partner, successor or assign now has or may in the future have any right, title or interest to.
3.
CONFIDENTIALITY
3.1
Each Receiver undertakes:
3.1.1
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To treat all of Discloser’s Confidential Information as confidential and not to disclose
such Confidential Information to any third party excepting those of its employees
and advisors who need to know the Confidential Information for the purpose of
performing or administering the Project and who agree to abide and to be bound by
the terms of this Agreement;
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3.1.2
To safeguard Discloser’s Confidential Information in the same manner that Receiver
treats its own confidential information and trade secrets, with not less than a
reasonable degree of care; and
3.1.3
To use Discloser’s Confidential Information solely for the purpose of performing the
Project, unless Discloser agrees in writing that its Confidential Information may be
used for another purpose.
3.2
For clarity, Company acknowledges that any Confidential Information it provides to Student
may, without any notification to Company, be provided to UVic Supervisor or to other UVic
researchers, employees or advisors on a need-to-know basis and who have agreed to abide
and be bound by the terms of this Agreement.
4
PUBLICATION
4.1
The Parties acknowledge and agree that Student intends to make public accounts of the
Project, including but not limited to Project methods and results.
4.2
Confidential Information will not be included in any Publication unless the Parties otherwise
agree in writing or the following process is followed:
4.2.1
In the event that a Receiver intends to include Confidential Information in any
Publication, such proposed Publication will be provided to Discloser at least thirty
(30) days in advance of the proposed publication date.
4.2.2
Discloser may within fifteen (15) days following receipt of a copy of the proposed
Publication require by written notice to the Receiver that some or all of Discloser’s
Confidential Information be removed from such Publication.
4.2.3
Failing receipt of such notice in the time and in the manner provided, Receiver will
be at liberty to publish the proposed Publication without further notice to Discloser.
5
DISCRETION
5.1
Notwithstanding execution of this Agreement, each Party maintains the sole and absolute discretion
to determine what, if any, of its Confidential Information it will release to Receiver.
6
TERM AND TERMINATION
6.1
This Agreement shall come into effect on the date of last signature, and shall remain in force during
the term of the Project and for a period of two (2) years thereafter unless terminated earlier as set
out herein.
6.2
Any Party may for any reason terminate this Agreement upon notice of not less than ten (10)
business days, following which:
6.2.1
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Receiver will immediately cease all further inspection, assessment and evaluation of
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Discloser’s Confidential Information; and
6.2.2
on written demand by Discloser, Receiver shall, within 21 days following receipt of such
written demand, destroy or return all Discloser’s Confidential Information to Discloser,
uncopied and undistributed, whether or not Receiver has completed the purpose for which
the Confidential Information has been disclosed and delivered. For the avoidance of doubt,
any Confidential Information that is stored on routine back-up media solely for the purpose
of disaster recovery will be subject to destruction in due course, provided that Receiver is
precluded from accessing such Confidential information in the ordinary course of business
prior to destruction. Notwithstanding the foregoing, latent data such as deleted files, and
other non-logical data types, such as memory dumps, swap files, temporary files, printer
spool files, and metadata that can only be retrieved by computer forensics experts and is
generally consider inaccessible without the use of specialized tools and techniques will not be
within the requirements for return or destruction of Confidential Information as set forth by
this provision.
7
DISCLAIMER
7.1
Receiver acknowledges and agrees that Discloser makes no representation or warranty with respect
to Discloser’s Confidential Information, its adequacy, accuracy, or suitability for any purpose. Except
as expressly agreed in writing, Discloser will not be liable to Receiver for any loss or damage arising
directly or indirectly from any use of Discloser’s Confidential Information, howsoever caused.
Company will indemnify UVic, its officers, directors, agents, employees, and students from and
against any loss, cost or damage and any claim arising from any use of the Confidential
Information by Company, its employees, successors and assigns, including legal fees and
disbursements on a solicitor and own client basis.
8
GENERAL
8.1
Survival. Termination of this Agreement will not affect the non-disclosure and non-use obligations of
the Receiver, and such obligations will survive termination of this Agreement for a period of two (2)
years following termination.
8.2
Breach. It is understood that monetary damages may not be a sufficient remedy for any breach of
the Agreement, and it is agreed that each Party will be entitled to specific performance as a remedy
for any such breach by the other party, in addition to all other remedies available, at law or in equity.
8.3
Notice. Any notice, request, demand, consent or other communication provided or permitted by this
Agreement will be in writing and given by personal delivery or registered mail or transmitted by
facsimile, to the address first written above. Notice will be deemed to have been received on the
date on which it was delivered or transmitted by facsimile.
8.4
Governing Law. This Agreement will be construed in accordance with and governed by the laws of
the Province of British Columbia. The Parties irrevocably attorn to the courts of the jurisdiction of the
Province of British Columbia.
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8.5
No Waiver. No term, covenant or condition of this Agreement will be deemed waived by any Party
and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by
the involved Parties.
8.6
Amendment. This Agreement may be amended or otherwise modified only by the written
agreement of the Parties.
8.7
Relationship. Nothing in this Agreement will be construed so as to make any Party a partner of
any other Party.
8.8
Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and
supersedes all prior representations, understandings and agreements between the Parties with
respect to the Confidential Information.
8.9
Severability. In the event that any term, covenant or condition of this Agreement is declared
indefinite, invalid, illegal or unenforceable by a court having jurisdiction this Agreement with respect
to the enforceable terms, covenants or conditions will continue in force.
8.10 Further Assurances. Each party will execute and deliver to the other, on request, such further
assurances and documents, and do such further things, as may reasonably be required to give full
force and effect to this Agreement.
8.11 Enurement. This Agreement will enure to the benefit of and will bind the successors, heirs and
assigns of each Party.
8.12 Counterparts. This Agreement may be executed in counterparts either through original or facsimile
signatures, which together shall form an Agreement. An executed copy of the Agreement delivered
by facsimile shall constitute valid execution and delivery of this Agreement.
IN WITNESS WHEREOF the Parties have caused this Agreement to be executed.
[the next page is the signature page]
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COMPANY
STUDENT
_______
Name:
Title:
Date:
__________________________________
Name:
Date:
UVIC SUPERVISOR
UNIVERSITY OF VICTORIA
_______
Name:
Date:
__________________________________
Per: Dr. Rachael Scarth
Title: Associate VP Research-Operations
Date:
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