Non-Disclosure Agreement
MUTUAL NONDISCLOSURE AGREEMENT and INTENT TO PROPOSE
MUTUAL NONDISCLOSURE AGREEMENT
THIS NONDISCLOSURE AGREEMENT (the “Agreement”) is made between the Proponent and CBRE Limited, a Canadian corporation having a principal place of business at 18 King Street East, Suite 1100, Toronto, Ontario, Canada M5C 1C4 (together with its affiliates and subsidiaries, “CBRE”).
1. Purpose. Proponent and CBRE wish to explore a potential business opportunity under which each may disclose its Confidential Information to the other.
2. Definition. “Confidential Information” means any information, data, or know-how, including, but not limited to, that which relates to market research, product plans, business plans, products, services, customers, markets, business processes and systems, operations, strategic information, forecasts, reports, records, employees, contractors, trade secrets, revenues, expenses or finances and financial data, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as being confidential or proprietary. Confidential Information does not include information, data or know-how which: (i) is in the possession of the receiving party at the time of disclosure and which can be shown to have so been by proper documentation and which is not otherwise subject to any obligation of confidentiality or non-disclosure; (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in violation of this Agreement; (iii) has been or is developed by the receiving party through its independent resources without reference to the disclosing party's Confidential Information or in violation of the terms of this Agreement; (iv) is disclosed to the receiving party by a third party without restriction and, to the knowledge of the receiving party after reasonable inquiry, without violation of any obligation of confidentiality; or (v) is approved for release by the disclosing party in writing.
3. Non-Disclosure of Confidential Information.
a. Each of Proponent and CBRE, as the party receiving Confidential Information of the other, agrees not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except to carry out discussions concerning, and the undertaking of, any business relationship between the parties. Neither party will disclose any Confidential Information of the other party to third parties except (a) disclosures to the receiving party’s directors, officers, employees, consultants, agents and advisors (including, without limitation, attorneys and accountants) (collectively “Representatives”) who are required to have the information in order to carry out the discussions of the contemplated business relationship. Each party will notify its Representatives to whom Confidential Information of the other party is disclosed or who have access to Confidential Information of the other party that they are bound by the obligations of this Agreement. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party which may come to its attention.
b. Neither party shall be liable for disclosure or use of any Confidential Information if: (i) it was in the public domain at the time it was disclosed or used through no fault of the receiving party; (ii) it becomes known to the receiving party from a source other than the disclosing party without a breach of this Agreement by the receiving party; (iii) it was independently developed by the receiving party without the benefit of the information received from the disclosing party; or (iv) it was disclosed under legal process or other legal requirement provided the receiving party agrees to cooperate in seeking reasonable protective arrangements requested by the disclosing party, and to promptly notify the disclosing party if receiving party receives any subpoena or other legal process seeking disclosure of Confidential Information.
3. Non-Disclosure Potential Transaction. Each party agrees that it will not make any public disclosure of the fact that discussions or negotiations are taking place between the parties or any terms, conditions or other facts with respect to the potential business opportunity, including the status thereof or that Confidential Information has been made available, without the prior written consent of the other party, except where such disclosure is, in the opinion of its counsel, required under applicable laws.
4. Mandatory Disclosure. In the event that either party or their respective Representatives are requested or required by legal or administrative process to disclose any of the Confidential Information of the other party, the party required to make such disclosure, if legally permitted, shall give prompt notice of the existence, terms and circumstances surrounding such request so that the other party may seek a protective order or other appropriate relief. In the event that such protective order is not sought or obtained, the party required to make such disclosure shall disclose only that portion of the Confidential Information which its counsel (which for the avoidance of doubt includes in-house counsel) advises that it is legally required to disclose.
5. Termination of Discussions; Return of Materials. Either party may at any time, for any reason, terminate discussions or negotiations between them. Unless and until a definitive written agreement between the parties is executed and delivered in relation to the proposed business relationship, neither party shall have any obligation to proceed further with pending discussions or the business relationship. Any materials or documents which have been furnished by one party to the other and any documents containing or reflecting Confidential Information (whether such documents and records were furnished to the receiving party or its Representatives or were prepared by the receiving party or its Representatives) and any copies, summaries, notes, analysis, compilations or extracts of such documentation (whether prepared by the disclosing party or by others) shall be promptly returned, or destroyed at the receiving party’s option, after the business relationship has been rejected upon the written request of the disclosing party. Any destruction of the Confidential Information shall be confirmed to the disclosing party in writing. Notwithstanding the foregoing, one copy of the Confidential Information or documents containing Confidential Information (in electronic or paper form) may be retained pursuant to a party’s normal and customary record retention policy, provided that such Confidential Information will be kept subject to the terms of this Agreement.
6. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.
7. No Representations. No party makes any express or implied representation or warranty as to the accuracy or completeness of any Confidential Information provided hereunder. Neither party shall have any liability to the other or its Representatives arising from, or related to, the other party’s or its Representatives’ use of Confidential Information provided hereunder.
8. Term. The foregoing commitments of either party in this agreement shall survive any termination of discussions between the parties, and shall continue relative to any Confidential Information disclosed hereunder for a period of two (2) years following the disclosure of such Confidential Information.
9. Miscellaneous.
a. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that Confidential Information and the rights and obligations of either party may not be assigned without the prior written consent of the disclosing party.
b. If applicable, this Agreement operates in addition to and concurrently with the Intent to Propose Declaration which sets out the process rules of any applicable Request for Proposal (RFP), including additional rules relating to the treatment of Proponent Confidential Information and its disclosure to CBRE employees, agents and advisors and its potential disclosure pursuant to requirements of law.
c. Failure to enforce any provision or exercise any right in this Agreement shall not constitute a waiver of any term hereof.
d. In the event that any provision of this Agreement shall be deemed invalid, unenforceable or illegal, all remaining provisions of this Agreement shall remain in full force and effect; provided, however, that if, in such event, the purpose hereof is materially affected and the parties’ intent is defeated, significantly compromised or frustrated, then the parties shall modify this Agreement, as appropriate to give effect to their intent.
10. Governing Law and Jurisdiction. This agreement shall be governed by and construed and enforced in accordance with the internal laws of Canada and the Province of Ontario, without regard to its conflict of laws principles.
11. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any actual or threatened breach by either party of any covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to seek injunctive or other equitable relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages, and each party agrees to waive any requirement for the securing or posting of any bond in connection with any such remedy.
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INTENT TO PROPOSE DECLARATION
WHEREAS the Proponent seeks to declare its intention to respond to the Request for Proposal (“the RFP”);
AND WHEREAS the procurement process rules in this Intent to Propose Declaration (“Declaration”) shall form an integral part of the RFP process;
NOW THEREFORE the Proponent hereby acknowledges and agrees as follows:
I. TERMS OF ENGAGEMENT
1. It is interested in participating in the RFP and as a precondition to submitting a proposal agrees with the procurement process rules as set out in this Declaration.
2. The RFP process is not intended to create and shall not create a formal legally binding bidding process and shall instead be governed by the law applicable to direct commercial negotiations. For greater certainty and without limitation: (a) the RFP shall not give rise to any “Contract A” based tendering law duties or any other legal obligations arising out of any process contract or collateral contract; and (b) neither the Proponent nor CBRE shall have the right to make any claims against the other with respect to the award of a contract, failure to award a contract or failure to honour a proposal. For greater certainty, the proponent hereby waives any claim for any compensation of any kind whatsoever, including claims for cost of preparation of the proposal, loss of profit or loss of opportunity by reason of CBRE’s decision to not accept the Proponent’s proposal, to award a contract to any other proponent or supplier, or to cancel the RFP process.
3. The RFP process is intended to identify prospective suppliers for the purposes of negotiating potential agreements. No legal relationship or obligation regarding the procurement of any good or service shall be created between the Proponent and CBRE by the RFP process until the successful negotiation and execution of a written agreement for the acquisition of such goods or services.
II. PRIOR TO SUBMISSION OF PROPOSALS
1. The RFP may be amended only by an addendum in accordance with this section. If CBRE, for any reason, determines that it is necessary to provide additional information relating to the RFP, such information will be communicated to all proponents by addenda. Each addendum forms an integral part of the RFP. Such addenda may contain important information, including significant changes to the RFP. Proponents are responsible for reviewing and taking into account all addenda issued by CBRE.
2. CBRE may, at its discretion, extend the submission deadline.
3. CBRE and its advisers make no representation, warranty or guarantee as to the accuracy of the information contained in the RFP or issued by way of addenda. Any quantities shown or data contained in the RFP or provided by way of addenda are estimates only and are for the sole purpose of indicating to proponents the general size of the work. It is the proponent’s responsibility to avail itself of all the necessary information to prepare a proposal in response to the RFP.
4. Proponents shall promptly examine all of the documents comprising the RFP, and: (a) shall report any errors, omissions or ambiguities; and (b) may direct questions or seek additional information in the prescribed format using the prescribed process before the proponent’s Deadline for Questions. All questions submitted by proponents shall be deemed to be received once the email has entered into the CBRE server. CBRE is under no obligation to provide additional information in response to such questions.
5. It is the responsibility of the proponent to seek clarification from the CBRE Contact on any matter it considers to be unclear. CBRE shall not be responsible for any misunderstanding on the part of the proponent concerning the RFP or its process.
III. POST SUBMISSION OF PROPOSALS
1. At any time throughout the RFP process, a proponent may withdraw a submitted proposal. To effect a withdrawal, a notice of withdrawal must be sent to the CBRE Contact and must be signed by an authorized representative. CBRE is under no obligation to return withdrawn proposals.
2. While the pricing information provided in proposals will be non-binding prior to the execution of a written agreement, such information will be assessed during the evaluation of proposals and ranking of the Proponent. Any inaccurate, misleading or incomplete information, including withdrawn or altered pricing, could adversely impact any such evaluation, ranking or contract award.
3. In the event that CBRE determines that it is necessary to provide proponents with additional information relating to the RFP following the submission deadline, such information will be communicated by addenda to all still eligible proponents. All such addenda will be prescriptive, and proponents will be expected to amend only those portions of their proposals as specifically instructed and to submit their amended proposals in the manner and within the timeframe specified. Any amendments that are not in accordance with the instructions accompanying the addenda will be set aside and will not be evaluated.
4. CBRE may disqualify the Proponent or rescind a contract subsequently entered if the Proponent’s proposal contains misrepresentations or any other inaccurate, misleading or incomplete information.
5. When evaluating proposals, CBRE may request further information from the Proponent or third parties in order to verify, clarify or supplement the information provided in the Proponent’s proposal. CBRE may revisit and re-evaluate the Proponent’s proposal or ranking on the basis of any such information.
6. CBRE will be under no obligation to disqualify or reject a proposal or Proponent that fails to comply with a stated rule or requirement and may allow the Proponent to rectify deficiencies in its proposal at any stage during the RFP process.
7. The Proponent and CBRE will each bear their own costs associated with or incurred though the RFP process, including any costs arising out of or incurred in: (a) the preparation and issuance of the RFP; (b) the preparation and submission of a proposal; and (c) the conduct of evaluations, interviews, demonstrations, discussions, negotiations or any other activities related to the procurement process.
8. CBRE will not return the proposal or any accompanying documentation submitted by a proponent.
9. CBRE’s evaluation may include information provided by the Proponent’s references and may also consider the Proponent’s past performance on previous contracts.
IV. NEGOTIATIONS, NOTIFICATION AND DEBRIEFING
1. The following negotiation protocols will apply to the RFP:
(a) The top-ranked proponent, as established under the evaluation rules, will receive a written invitation to enter into direct contract negotiations with CBRE.
(b) CBRE intends to conclude negotiations within thirty (30) days commencing from the date CBRE invites the top-ranked proponent to enter negotiations. A proponent invited to enter into direct contract negotiations should therefore be prepared to provide requested information in a timely fashion and to conduct its negotiations expeditiously.
(c) Any negotiations will be subject to the process rules contained within the Declaration and the RFP and will not constitute a legally binding offer to enter into a contract on the part of CBRE or the proponent. Negotiations may include requests by CBRE for supplementary information from the proponent to verify, clarify or supplement the information provided in its proposal or to confirm the conclusions reached in the evaluation, and may include requests by CBRE for improved pricing from the proponent.
(d) The terms and conditions found in the Service Agreement included with the RFP are to form the starting point for negotiations between CBRE and the selected proponent(s).
(e) If the parties cannot execute a contract within the above-noted timeframe, CBRE may invite the next-best-ranked proponent to enter into negotiations. In accordance with the process rules contained within the Declaration and the RFP, there will be no legally binding relationship created with any proponent prior to the execution of a written agreement. With a view to expediting contract formalization, at the midway point of the above-noted timeframe, CBRE may elect to initiate concurrent negotiations with the next-best-ranked proponent. Once the above-noted timeframe lapses, CBRE may discontinue further negotiations with that particular proponent. This process shall continue until a contract is formalized, until there are no more proponents remaining that are eligible for negotiations or until CBRE elects to cancel the RFP process.
2. Once a contract is executed between CBRE and a proponent, the other proponents will be notified in writing of the outcome of the procurement process and the award of the contract.
3. Proponents may request a debriefing after receipt of a notification of award. All requests must be in writing to the CBRE Contact and must be made within sixty (60) days of notification of award. The intent of the debriefing information session is to aid the proponent in presenting a better proposal in subsequent procurement opportunities. Any debriefing provided is not for the purpose of providing an opportunity to challenge the procurement process.
V. CONFLICT OF INTEREST AND CONFIDENTIALITY
1. Engaging in any Conflict of Interest activity or breaching the confidentiality provisions of the Non-Disclosure Agreement may result in the Proponent’s disqualification from the RFP process. For the purposes of this section, the term Conflict of Interest shall have the following meaning:
“Conflict of Interest” means that, in relation to the RFP process, the Proponent has an unfair advantage or engages in conduct, directly or indirectly, that may give it an unfair advantage, including but not limited to: (i) having or having access to confidential information of CBRE in the preparation of its proposal that is not available to other proponents; (ii) communicating with any person with a view to influencing preferred treatment in the RFP process (including but not limited to the lobbying of decision makers involved in the RFP process); or (iii) engaging in conduct that compromises or could be seen to compromise the integrity of the RFP process or render that process non-competitive. For greater certainty, incumbency shall not, in itself, constitute an unfair advantage.
2. All information provided by or obtained from CBRE in any form in connection with the RFP either before or after the issuance of the RFP: (a) is the sole property of CBRE and must be treated as confidential; (b) is not to be used for any purpose other than replying to the RFP and the performance of any subsequent Contract; (c) must not be disclosed without prior written authorization from CBRE; and (d) shall be returned by the proponents to CBRE immediately upon the request of CBRE.
3. The Proponent may not at any time directly or indirectly communicate with the media in relation to the RFP or any contract awarded pursuant to the RFP without first obtaining the written permission of CBRE.
4. A proponent should identify any information in its proposal or any accompanying documentation supplied in confidence for which confidentiality is to be maintained by CBRE. The confidentiality of such information will be maintained by CBRE, except as otherwise required by law or by order of a court or tribunal. Proponents are advised that their proposals will, as necessary, be disclosed on a confidential basis, to CBRE’s advisers retained for the purpose of evaluating or participating in the evaluation of their proposals. If a proponent has any questions about the collection and use of personal information pursuant to the RFP, questions are to be submitted to the CBRE Contact.
VI. GENERAL
1. CBRE may prohibit a supplier from participating in a procurement process based on past performance or based on inappropriate conduct in a prior procurement process, and such inappropriate conduct shall include but not be limited to the following: (a) the submission of quotations containing misrepresentations or any other inaccurate, misleading or incomplete information; (b) the refusal of the supplier to honour its pricing or other representations made in its proposal; or (c) any other conduct constituting a Conflict of Interest.
2. CBRE may cancel or amend the procurement process without liability at any time. This includes, but is not limited to: (a) cancellation in instances where all proposals are over budget; or (b) where an insufficient number of proposals have been submitted, calling into question the competitiveness of pricing or performance commitments received by CBRE.
3. All proposals are to be in English only.
4. The terms and conditions in this Declaration: (a) are included for greater certainty, are not intended to limit or otherwise fetter or inhibit CBRE in conducting the contemplated procurement process and are intended to be interpreted broadly and separately (with no particular provision intended to limit the scope of any other provision); (b) are non-exhaustive (and shall not be construed as intending to limit the pre-existing rights of the parties to engage in pre-contractual discussions in accordance with the common law governing direct commercial negotiations); and (c) are to be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein.
