MaRS Discovery District
101 College Street
Suite 100
Toronto, Ontario
M5G 1L7
MUTUAL NON-DISCLOSURE AGREEMENT - COMPANIES
THIS AGREEMENT dated month day, year is between MaRS Discovery District (“MaRS”),
whose address is 101 College Street, Toronto, Ontario, M5G 1L7, and company (the
“Company”), whose address is street, city, province, postalcode.
WHEREAS the parties hereto may provide to each other certain confidential
information (the party receiving the information being referred to as the
“Receiving Party” and the party disclosing the information being referred to as the
“Disclosing Party”) in connection with the Company’s EXCITE Application for Medical
Technology Evaluation (the “Project”), and have agreed that any such information
shall be kept confidential by the Receiving Party in accordance with the terms of
this Agreement;
NOW THEREFORE in consideration of the mutual obligations contained herein and other
good and valuable consideration, the parties hereto agree as follows:
1.
Confidential Information.
In this Agreement, the term “Confidential
Information” means all information which may be disclosed verbally, in writing,
electronically or in any other form, or displayed visually or otherwise made
available by the Disclosing Party or any of its subsidiaries, affiliates or
Representatives (defined below) in connection with the Project before, on, or
after the date hereof, including, without limitation, the contents of an
innovation/idea, a proposal, a business plan, or a statement of work or other
pertinent document to be protected.
Confidential Information in written form
must be stamped “Confidential” or otherwise marked to indicate that it is
Confidential Information. If Confidential Information is disclosed verbally or
displayed visually, the Disclosing Party must inform the Receiving Party at the
time of disclosure or display, or promptly thereafter, that it is Confidential
Information. A failure to mark or identify Confidential Information as being
confidential may be remedied by the Disclosing Party delivering to the
Receiving Party written notice of such failure and identifying the information
that is to be considered Confidential Information.
2.
Confidentiality. Except as expressly provided in this Agreement, the
Party agrees to hold in confidence and not to disclose, divulge or
make any Confidential Information disclosed by the Disclosing Party
to any other person, firm, corporation or governmental body without
written consent of the Disclosing Party.
3.
Permitted Disclosure.
The Receiving Party may disclose the Confidential
Information to its directors, officers, employees, sub-contractors, suppliers,
agents, consultants and advisors, and in the case of MaRS to the MaRS EXCITE
Secretariat, the MaRS EXCITE Management Board, the Ontario Health Technology
Advisory Committee subcommittee of MaRS EXCITE, the applicable research ethics
board(s)
and
members
of
the
MaRS
EXCITE
Scientific
Collaboration
(“Representatives”)
on
a
“need
to
know”
basis,
provided
that
such
Representatives are legally required (through existing fiduciary, contractual
or other duty) to maintain the confidentiality of the Confidential Information
or, prior to making such disclosure, such Representatives become legally
required to maintain the confidentiality of the Confidential Information. The
Receiving Party shall ensure that all of its Representatives maintain the
MaRS Discovery District
Receiving
otherwise
available
the prior
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Mutual Non-Disclosure Agreement continued
confidentiality of the Confidential Information as if such Representatives were
parties hereto, and the Receiving Party shall be responsible for any breach of
confidentiality by its Representatives. The Receiving Party may also disclose
the Confidential Information of the Disclosing Party to any other person
approved in writing by the Disclosing Party. Without limiting the foregoing,
the Company acknowledges and agrees that MaRS may disclose the Confidential
Information of the Company to third parties (the “Advisors”) who may, from time
to time, provide advice to the Company.
4.
Disclosure Required by Law.
The Receiving Party may disclose Confidential
Information where required by law, including pursuant to an order of court,
administrative tribunal or other body having the power to compel the production
of Confidential Information. Such disclosure shall be made only to the extent
required by law. To the extent permitted by law, the party required by law to
disclose the Confidential Information shall promptly notify the Disclosing
Party of the obligation so that the Disclosing Party may intervene. The party
required to make the disclosure shall assist the Disclosing Party, at the
Disclosing Party’s expense, in any attempt to obtain any protective order or
other remedies to protect the confidentiality of the Confidential Information.
5.
Use. The Receiving Party may only use and copy the Confidential Information in
support of discussions, evaluations, proposals and business transactions
between the parties hereto pertaining to the Project. For greater certainty,
the Receiving Party may not use any of the Confidential Information disclosed
by the Disclosing Party for any commercial purpose.
6.
Exclusions.
Confidential Information does not include information which is:
(a) already known by the Receiving Party at the time of disclosure without an
obligation of confidentiality;
(b) publicly known or becomes publicly known through no unauthorized act of
the Receiving Party or any other person to whom the Receiving Party
discloses any of the Confidential Information;
(c) lawfully received by the Receiving Party from any third party without
restriction on disclosure; or
(d) independently developed by the Receiving Party without using Confidential
Information.
7.
Communication.
In the event that the parties hereto discuss the Project or
communicate regarding the Project using conference calls, e-mails or any other
method of communication where persons other than the Disclosing Party and the
Receiving Party participate at the request or initiation of, or with the
consent of, the Disclosing Party (directly, by copy or otherwise) it shall not
be a breach of this Agreement for the Receiving Party to disclose Confidential
Information through those communications to all persons participating in the
discussions or otherwise party to the communication, unless the Disclosing
Party specifically advises the Receiving Party that such disclosure should not
be made.
8.
Return of Information.
Subject to the provisions of any other written
agreement between the parties hereto, upon request of the Disclosing Party in
writing, the Receiving Party shall return (i) the original Confidential
Information received from the Disclosing Party, (ii) all copies of such
Confidential Information, and (iii) all other materials that contain, reflect,
review or are based in whole or in part upon such Confidential Information, to
the Disclosing Party or certify in writing that all such materials have been
destroyed. Notwithstanding the foregoing, the Receiving Party may retain one
copy of the Confidential Information for legal archive purposes. Moreover, to
the extent that the Receiving Party’s computer backup or archiving procedures
MaRS Discovery District
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Mutual Non-Disclosure Agreement continued
create copies of the Confidential Information, Receiving Party may retain such
copies for the period it normally archives backed-up computer records so long
as such copies are not readily accessible and are not used or consulted for any
purpose not permitted, which copies shall be subject to this Agreement until
destroyed or no longer deemed Confidential Information.
9.
No Further Rights Acquired. The Receiving Party acknowledges that all right,
title and interest in the Confidential Information is owned by the Disclosing
Party or the person from whom the Disclosing Party obtained the information,
and nothing contained in this Agreement shall be construed as granting or
conferring any ownership rights or interests to the Receiving Party in the
Confidential Information.
10. Disclaimer.
The Disclosing Party represents and warrants that it has all
necessary rights and authority to disclose the Confidential Information to the
Receiving Party. The Disclosing Party makes no other representation, warranty
or condition, whether express or implied, with respect to the Confidential
Information or its usefulness or reliability and hereby disclaims all liability
for any direct, indirect, special, incidental or consequential damages, however
caused, pertaining to the Confidential Information or the use or possession
thereof by the Receiving Party.
Nothing herein shall be deemed to require
either party hereto to enter into any other agreement or relationship with the
other party hereto or to carry out any of the transactions proposed in
connection with the Project.
11. Term of Confidentiality.
The obligation to keep Confidential Information
confidential shall continue for a period of five (5) years after the date of
disclosure of the specific Confidential Information. Each party hereto agrees
that the term of this Agreement shall survive termination of any relationship
between the parties hereto.
12. Assignment.
This Agreement shall ensure to the benefit of and be binding on
the parties hereto and their respective successors and permitted assigns. This
Agreement is not assignable by either party hereto, whether directly or
indirectly, provided that nothing herein shall prevent the assignment by either
party of its own Confidential Information or the benefits of this Agreement
pertaining thereto.
13. Privacy.
Each of the parties hereto will comply at all times with all
applicable privacy laws in connection with the collection and use of personal
information, including the Personal Information Protection and Electronic
Documents Act (Canada), the Freedom of Information and Protection of Privacy
Act (Ontario) and any similar law applicable in the circumstances.
14. Waiver. Each party hereto acknowledges and agrees that no failure or delay by
the other party hereto in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or future exercise of any right, power or
privilege hereunder.
15. Injunction.
The Receiving Party acknowledges and agrees that the Disclosing
Party may not have an adequate remedy at law and may be irreparably harmed in
the event that any of the provisions of this Agreement were not performed by
the Receiving Party in accordance with their specific terms or were otherwise
breached by the Receiving Party. Accordingly, the Receiving Party agrees that
the Disclosing Party shall be entitled to injunctive relief to prevent breaches
of this Agreement and specifically to enforce the terms and provisions hereof.
16. Severability.
If any provision of this Agreement as applied to any party in
any circumstance is adjudged by a court to be invalid or unenforceable, this
MaRS Discovery District
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Mutual Non-Disclosure Agreement continued
will in no way affect any other provision of this Agreement, the application of
such provision in any other circumstance, or the validity or enforceability of
this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
18. Counterparts. This Agreement may be executed in counterparts and each of such
counterparts shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument. This Agreement may be
executed and delivered by electronic means and each of the parties may rely on
such electronic execution as though it were an original hand-written signature.
MaRS Discovery District
By:
(Authorized Signature)
Name:
Title:
company
By:
(Authorized Signature)
Name: signature name
Title:
MaRS Discovery District
signature title
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