WHEREAS the University and its advisors, consultants and other third parties that are involved
in the Market Consultation (the “University Parties”) propose to disclose or provide access to
Confidential Information (defined herein) to the Recipient for the purposes of the Recipient participating
in the Market Consultation.
THEREFORE in consideration of the mutual covenants and agreements of the parties
hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by the parties, the Recipient agrees as follows:
1. Confidential Information. For the purposes of this Agreement, “Confidential Information”
means all technical and financial information disclosed or submitted, orally, in writing, or by any other
media to the Recipient by the University or a University Party, for the purposes of the Market
Consultation, but shall exclude the information referred to in Section 6. For clarity, nothing in this
Agreement shall require the University to disclose any of their information.
2. Recipient’s Obligations. The Recipient acknowledges and agrees that,
(a) the Recipient may disclose any of the Confidential Information only to its advisors,
consultants and employees of the Recipient involved in the Market Consultation (the
“Recipient Parties”) who need to know such Confidential Information for the purpose of
participating in the Market Consultation. The Recipient shall inform any Recipient Party
to whom it discloses Confidential Information of the confidential nature of such
Confidential Information and cause each of the Recipient Parties to treat such
Confidential Information confidentially in accordance with this Agreement and not
disclose such Confidential Information except as permitted herein;
(b) the Confidential Information shall be considered confidential and proprietary to the
University and the Recipient Parties shall hold the same in confidence and shall not use
the Confidential Information other than for the purposes of the Recipient’s participating
in the Market Consultation;
(c) neither the Recipient nor any Recipient Parties shall disclose, publish, sell, assign,
transfer or otherwise reveal any of the Confidential Information received from the
University Parties, or any information or materials derived therefrom, to any other person
whatsoever except with the specific prior written authorization of University;
(d) the Recipient shall employ at least the same standard of care to protect the secrecy and
confidentiality of the Confidential Information as it uses to protect its own confidential
and proprietary information and materials, but in no event shall the Recipient employ less
than reasonable care in protecting the secrecy and confidentiality of the Confidential
Information. In particular, the Recipient shall keep all Confidential Information in a
secure environment and protected from unauthorized use, reproduction, access and
damage or destruction. In the event the Recipient become aware of any unauthorized
access to the Confidential Information, it shall immediately notify the University in
writing as to the nature and scope of the unauthorized access as well as any unauthorized
use or disclosure of such Confidential Information;
(e) the Recipient shall be responsible for any breach of this Agreement by any of the
Recipient Parties. The Recipient shall take all reasonable measures, including, without
limitation, court proceedings, at the Recipient's sole expense, to restrain the Recipient
Parties from making unauthorized disclosure or use of the Confidential Information;
(f) the Recipient Parties shall not remove any copyright, trademark or other proprietary
rights legend from any form of Confidential Information;
(g) title to all Confidential Information and any copies thereof shall remain in the University;
(h) Confidential Information furnished in tangible form shall not be duplicated by the
Recipient except in accordance with this Agreement. Within ten business days of any
written request of the University to the Recipient for the Recipient to return or destroy all
Confidential Information in the Recipient or a Respondent Party’s possession, the
Recipient will take all reasonable measures to collect and return to the University,
without retaining copies thereof, all tangible embodiments of the Confidential
Information, in whatever form furnished by the University under this Agreement, and
will immediately take all reasonable measures to ensure the return or destruction of all
notes, summaries, work papers or analyses containing or incorporating the Confidential
Information to the extent and as permitted by applicable laws, regulations and the
professional standards of the Recipient’s accountants, provided that the Recipient may
retain Recipient’s internal memoranda as required by its internal policies. The parties
agree that it shall be at the University’s discretion whether to return or destroy documents
in accordance with this Section 2(h). Following such return or destruction, the Recipient
shall provide the University with a written certification signed by the Recipient that such
return or destruction, as the case may be, has taken place in accordance with this Section
2(h). The Recipient agrees that any internal memoranda retained by the Recipient
pursuant to this Section 2(h) will remain subject to the confidentiality obligations
contained in this Agreement for the full term of this Agreement;
(i) if disclosure by the Recipient or a Recipient Party of Confidential Information is required
pursuant to a legal requirement imposed by any court of competent jurisdiction or by any
administrative body having jurisdiction, unless prohibited by law, prior to any such
disclosure, the Recipient or Recipient Party, as applicable, shall first provide the
University prompt written notice of any such proposed disclosure so that the University
has an opportunity to,
(i) seek an appropriate protection order, appear before any such court or
administrative body to oppose such disclosure, or pursue such other action,
remedy or assurance necessary to preserve the confidentiality of the
Confidential Information; and/or
(ii) waive compliance with any of the provisions in this Agreement.
The Recipient and each Recipient Party shall fully co-operate with and shall not oppose
the University in respect of the matters set out in this Section 2(i). If, in the absence of
either a protective order or a waiver by the University, the Recipient or the Recipient
Party, in the reasonable opinion of reputable legal counsel, is required by law to disclose
any Confidential Information, or to stand liable for contempt or to suffer other censure or
penalty on any failure to so disclose, the Recipient or the Recipient Party may, without
liability hereunder, disclose that portion, and only that portion, of the Confidential
Information that the Recipient or Recipient Party is required by law to disclose; and
(j) in the event of a breach of any of the provisions set out in this Agreement, the harm
suffered by the University would not be compensable by monetary damages alone and
accordingly, that the University shall, in addition to other available legal remedies, be
entitled to interim or injunctive relief against such breach.
3. No Representations or Warranties. The Recipient acknowledges and agrees that the University
does not make any representations or warranties with respect to the accuracy of the Confidential
Information and the Recipient accepts all responsibility for verifying the accuracy and completeness of
any Confidential Information supplied by the University, and accepts all responsibility associated with the
misuse, misinterpretation or misapplication of the Confidential Information, or any part thereof.
4. Term. The obligations of the Recipient herein shall be effective from the date of this Agreement
and for two years from the date the University last discloses any Confidential Information to the Recipient
or a Recipient Party pursuant to this Agreement.
5. Further Assurances. The Recipient acknowledges that further confidentiality covenants
satisfactory to the University may be required from the Recipient prior to the provision of further
Confidential Information and the Recipient agrees to consider such covenants in good faith but makes no
commitment to be bound by any such covenants and any such commitment will be included in a further
written agreement to that effect. For greater clarity, should the Recipient not agree to be bound by further
confidentiality covenants requested by the University, the University will not be required to disclose to
the Recipient any further Confidential Information.
6. Other Information. The Recipient shall have no obligation under this Agreement with respect
to,
(a) information which is or becomes publicly available without breach of this Agreement by
the Recipient or a Recipient Party;
(b) is rightfully received by the Recipient without obligations of confidentiality; or
(c) is independently developed by the Recipient without breach of this Agreement, provided
that the Recipient can show that such development was accomplished without the use of
or any reference to the Confidential Information.
7. No License. Nothing contained herein shall be construed as granting or conferring any rights by
license or otherwise in any Confidential Information.
8. No Publicity. Subject to Section 2, the Recipient agrees not to disclose its participation in the
Market Consultation, the existence or terms and conditions of the Agreement, or the fact that discussions
are being held with the University, without the specific prior written authorization of the University.
9. Access to Information. No information, records or documents containing personal information
will be provided to the Recipient pursuant to this Agreement. The Recipient acknowledges that the
University is bound by the Freedom of Information and Protection of Privacy Act (Ontario) (“FIPPA”).
If a request is made under FIPPA for access to information or records provided by the University to the
Recipient, the Recipient shall cooperate with the University in identifying records responsive to the
request and responding to it in a timely manner. For greater clarity, the University, in its sole discretion,
shall determine the financial, commercial, scientific or technical confidential information which is to be
redacted from the records that are to be disclosed under the applicable privacy legislation.
10. Governing Law. This Agreement shall be governed and construed in accordance with the laws of
Ontario and the laws of Canada applicable therein. Both parties consent to the exclusive jurisdiction of
the Ontario courts for any dispute arising out of this Agreement. Both parties agree that in the event of
any breach or threatened breach by the other party it may obtain, in addition to any other legal remedies
which may be available, such interim or injunctive relief as may be necessary to protect it against any
such breach or threatened breach.
11. Entire Agreement. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and terminates and supersedes all prior agreements, understandings
or agreements on the subject matter hereof.
12. Amendment. This Agreement may only be modified or amended by written agreement of both
parties.
13. Non-Assignment. The Recipient may not assign this Agreement or any interest herein without
the University’s express prior written consent.
14. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions of this Agreement, and this Agreement, including all of the
remaining terms, will remain in full force and effect as if such invalid, illegal or unenforceable term had
never been included.
15. No Implied Waiver. No term or condition of this Agreement may be waived, except by written
consent of both parties. Either party’s failure or delay to exercise any right, power or privilege hereunder
shall not be construed as a waiver of any continuing or subsequent failure to perform or the delay in the
performance of any term hereunder.
16. Cumulative Remedies. The rights, powers and remedies of each party set forth in this
Agreement are cumulative and are in addition to and without prejudice to any other right, power or
remedy that may be available to such party under this Agreement or as provided at law or in equity.
17. Counterparts.
(a) This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which taken together shall be deemed to constitute
one and the same instrument.
(b) The parties hereto may execute the counterparts in original, faxed or electronic form and
the parties adopt any signatures received by a receiving fax machine or other form of
electronic transmission as original signatures of the parties but any party providing its
signature by fax or other form of electronic transmission shall promptly forward to the
other party an original of the signed copy of this Agreement.
