1 Definitions
In this Agreement the following expressions shall have the following meanings:
(a) ʻPurposeʼ shall mean any discussions and negotiations between or within the parties
concerning or in connection with the establishment of a business relationship between the
parties;
(b) ʻConfidential Informationʼ shall mean all information or data disclosed (whether in writing,
orally or by any other means) to one party by the other party or by a third party on behalf of
the other party and shall include but not be limited to (A) any information ascertainable by the
inspection or analysis of samples, (B) the information described in the Schedule hereto as
having been disclosed prior to the date hereof and (C) any information relating to that partyʼs
business, operations, processes, plans, intentions, product information, know-how, design
rights, trade secrets, software, market opportunities, customers and business affairs, but
shall exclude any part of such disclosed information or data which:
(i) is or becomes public knowledge and public property in any way without breach of this
Agreement by the receiving party; or
(ii) the receiving party can show (A) was in its possession or known to it by being in its
use or being recorded in its files or computers or other recording media prior to receipt
from the disclosing party and was not previously acquired by the receiving party from
the disclosing party under an obligation of confidence; or (B) to have been developed
by or for the receiving party at any time independently of the information disclosed to it
by the disclosing party; or
(iii) is hereafter disclosed or made available to the receiving party from a source other
than the disclosing party without breach by the receiving party or such source of any
obligation of confidentiality or non-use towards the disclosing party; or
(iv) is hereafter [made generally available by the disclosing party or a third party or is]
disclosed by the disclosing party to a third party without restriction on disclosure or
use, including, without limitation, by way of the publication of a patent specification; or
(v) is disclosed orally unless it is identified as confidential at the time of disclosure and
confirmed as such in writing by the disclosing party within 15 days of disclosure; or
(vi) is disclosed by the receiving party with the prior written approval of the
disclosing party; or
(vii) in respect of which a period of 2 years has elapsed from the date of signature of
this agreement;
Provided however that the foregoing exceptions shall not apply to information relating to
any combination of features or any combination of items of information merely because
information relating to one or more of the relevant individual features or one or more of
the relevant items (but not the combination itself) falls within any one or more of such
exceptions.
2 Handling of confidential information
In consideration of the mutual exchange and disclosure of Confidential Information, each party
undertakes in relation to the other partyʼs Confidential Information:
(a) to maintain the same in confidence and to use it only for the Purpose and for no other
purpose and in particular, but without prejudice to the generality of the foregoing, (i) not
to make any commercial use thereof (ii) not to use the same for the benefit of itself or of
any third party other than pursuant to a further agreement with the other party and (iii)
not to use the same for the purpose of guiding or conducting a search of any
information, materials or sources, whether or not available to the public, for any purpose
whatsoever, including, without limitation, for the purpose of demonstrating that any
information falls within one of the exceptions in clause 1;
(b) not to copy reproduce or reduce to writing any part thereof except as may be
reasonably necessary for the Purpose and that any copies reproductions or reductions
to writing so made shall be the property of the disclosing party;
(c) not to disclose the same whether to its employees or to third parties except in
confidence to such of its employees or directors who need to know the same for the
Purpose and that (i) such employees and directors are obliged by their contracts of
employment or service not to disclose the same, and (ii) the receiving party shall
enforce such obligations at its expense and at the request of the disclosing party in so
far as breach thereof relates to the disclosing partyʼs Confidential Information;
(d) to be responsible for the performance of sub clauses (a), (b) and (c) above on the part
of its employees or directors to whom the same is disclosed pursuant to sub clause (c)
above; and
(e) to apply thereto no lesser security measures and degree of care than those which the
receiving party applies to its own confidential or proprietary information and which the
receiving party warrants as providing adequate protection of such information from
unauthorized disclosure, copying or use.
Notwithstanding the foregoing, the receiving party shall be entitled to make any disclosure
required by law of the other partyʼs Confidential Information, but shall give the other party not
less than two business daysʼ notice of such disclosure and shall consult with the disclosing
party prior to such disclosure with a view to avoiding such disclosure if reasonably practicable.
3 Return of confidential information
Each party shall:
(a) within one week of completion of the Purpose or receipt of a written request from the
other party, return to the other party all documents and materials (and all copies
thereof) containing the other partyʼs Confidential Information and certify in writing to the
other party that it has complied with the requirements of this sub clause; and
(b) notwithstanding completion of the Purpose or return of documents and materials as
aforesaid, continue to be bound by the undertakings set out in clause 2.
4 Disclaimer and warranty
(a) Each party reserves all rights in its Confidential Information and no rights or obligations
other than those expressly recited herein are granted or to be implied from this
Agreement. In particular, no license is hereby granted directly or indirectly under any
patent, invention, discovery, copyright or other industrial property right now or in the
future held, made, obtained or licensable by either party.
(b) Each party warrants its right to disclose its Confidential Information to the other party
and to authorize the other party to use the same for the Purpose.
5 Confidentiality
Each party agrees to keep the existence and nature of this Agreement confidential and not to
use the same or the name of the other party (or of any other company in the Group of
Companies of which the other party forms part) in any publicity, advertisement or other
disclosure with regard to this Agreement without the prior written consent of the other party.
6 Notices
All notices under this Agreement shall be in writing and shall be sent by email, facsimile or firstclass
registered or recorded delivery post to the party being served at its address specified
above or at such other address of which such party shall have given notice as aforesaid, and
marked for the attention of that partyʼs signatory of this Agreement. The date of service shall be
deemed to be the day following the day on which the notice was transmitted or posted as the
case may be.
7 Termination
This Agreement shall continue in force from the date hereof until terminated by mutual consent
or by either party by giving to the other not less than one weekʼs prior notice. The provisions of
clauses 1, 2 and 3 shall survive any such termination.
8 Non-assignment
This Agreement is personal to the parties and shall not be assigned or otherwise transferred in
whole or in part by either party without the prior written consent of the other party.
9 Entire agreement, governing law and jurisdiction
This Agreement constitutes the entire Agreement and understanding between the parties in
respect of Confidential Information and supersedes all previous agreements, understandings
and undertakings in such respect. This Agreement cannot be changed except by written
agreement between the parties. The interpretation construction and effect of this Agreement
shall be governed and construed in all respects in accordance with the laws of British Columbia
and the parties hereby submit to the non-exclusive jurisdiction of the courts of British Columbia.