This Confidentiality and Non-Disclosure Agreement (the “AGREEMENT”) is made as of ___________, (the “EFFECTIVE DATE”), by and between FLEX SURVEYS a wholly owned subsidiary of STRATYX CORPORATION, a Canadian corporation with its principal place of business located at 372 Richmond Street West, Suite 301 , Toronto, Ontario M5V 1X6 and ______________________ (hereinafter referred to as “CLIENT”), a _____________________ corporation with its principal place of business at: __________________________________ .
WHEREAS FLEX and CLIENT (referred to in this AGREEMENT collectively as “PARTIES” or individually as “PARTY”) have a mutual desire to engage in the exchange of information and discussions regarding the implementing of an Employee Engagement Survey amongst the employees and independent contractors of CLIENT (the “BUSINESS RELATIONSHIP”). In consideration of the PARTIES’ mutual disclosure of CONFIDENTIAL INFORMATION (as defined below) to each of the others, which each PARTY acknowledges to be good and valuable consideration for its obligations hereunder, the PARTIES hereby agree as follows:
1. “CONFIDENTIAL INFORMATION” as used in this AGREEMENT shall mean any information or material which is proprietary to the disclosing PARTY or designated as CONFIDENTIAL INFORMATION by the disclosing PARTY, whether or not owned or developed by the disclosing PARTY, which is not generally known other than by the disclosing PARTY, and which the receiving PARTY may obtain knowledge of through or as a result of the relationship established hereunder with the disclosing PARTY, access to the disclosing PARTY’s premises, or communication with the disclosing PARTY’s employees or independent contractors. CONFIDENTIAL INFORMATION also includes any information which the disclosing PARTY obtains from any third PARTY which the disclosing PARTY treats as proprietary or designates as CONFIDENTIAL INFORMATION.
Without limiting the generality of the forgoing, CONFIDENTIAL INFORMATION includes, but is not limited to, the following types of information, (whether or not reduced to writing or still in development); business plans, financial information, concepts, drawings, market research, advertising information, marketing techniques, marketing plans, timetables, strategies, development plans, client names, report designs and layouts, statistical calculations and other information related to clients, suppliers or competitors.
CONFIDENTIAL INFORMATION shall not include information that (i) is now or later becomes (except as set forth in Section 5 below) generally known to the public (other than as a result of a breach of this AGREEMENT); (ii) is independently developed by the receiving PARTY; (iii) the receiving PARTY lawfully obtains from any third PARTY who has lawfully obtained such information; or (iv) is later published or generally disclosed to the public by the disclosing PARTY. The receiving PARTY shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials.
2. Each PARTY agrees that it and its REPRESENTATIVES, except as required by law or unless consented to in writing by the other PARTY, will not disclose to any other PERSON (other than as specifically permitted under Section 3 or 4 hereof) the fact that the CONFIDENTIAL INFORMATION has been made available, that discussions or negotiations are taking place concerning a possible BUSINESS RELATIONSHIP or any of the terms and conditions or other facts with respect thereto (including the status thereof). As used in this AGREEMENT, the term “PERSON” shall be broadly interpreted to include any form of public media and any individual, corporation, partnership, company, association, group or other entity. As used in this AGREEMENT, the term “REPRESENTATIVES” with respect to any PARTY shall mean its affiliates, directors, officers, employees, control persons, advisors, agents or representatives, including legal counsel, accountants and financial advisors of such PARTY.
3. In the event that any PARTY or its REPRESENTATIVES (a) is requested or required (by applicable law, regulation, legal process, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigation demand or other similar process) to disclose any of the CONFIDENTIAL INFORMATION concerning any other PARTY, or (b) is required in order to establish the rights of any PARTY under this AGREEMENT to disclose any of the CONFIDENTIAL INFORMATION concerning another PARTY, such PARTY shall immediately notify the other PARTY of any such request or requirement so that such other PARTY may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this AGREEMENT. If, in the absence of a protective order or other remedy or the receipt of a waiver by the other PARTY, any PARTY or its respective REPRESENTATIVES is nonetheless, in the opinion of counsel, legally compelled to disclose CONFIDENTIAL INFORMATION concerning another PARTY, such PARTY or its REPRESENTATIVES may, without liability hereunder, disclose only that portion of the CONFIDENTIAL INFORMATION concerning the other PARTY which is legally required to be disclosed. The PARTY required to disclose such information shall exercise its best efforts to preserve the confidentiality of the CONFIDENTIAL INFORMATION concerning the other PARTY, including without limitation by cooperating with the other PARTY to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the CONFIDENTIAL INFORMATION to the fullest possible extent.
4. Each PARTY agrees to hold in confidence and to not disclose or reveal to any person or entity the CONFIDENTIAL INFORMATION received hereunder without the clear and express prior written consent of a duly authorized representative of the disclosing PARTY. Each PARTY agrees not to use or disclose any of the CONFIDENTIAL INFORMATION received hereunder for any purpose at any time, other than for the limited purpose(s) of this confidence. Without limiting the generality of the foregoing, a receiving PARTY shall not disclose any CONFIDENTIAL INFORMATION to any of such receiving PARTY’s employees except those employees who are required to have such CONFIDENTIAL INFORMATION in order to perform their functions in connection with the limited purpose of this AGREEMENT. Each permitted employee to whom CONFIDENTIAL INFORMATION is disclosed shall agree to be bound by the terms of this AGREEMENT to the same extent as if they were PARTIES hereto.
5. Each PARTY understands and acknowledges that such CONFIDENTIAL INFORMATION has been developed or obtained by the other PARTY by the investment of significant time, effort, and expense, and that such CONFIDENTIAL INFORMATION provides each PARTY with a significant competitive advantage in its business
6. Each PARTY agrees to attempt to limit its disclosures made to the other PARTY to those which are reasonably necessary to serve the limited purposes of this AGREEMENT.
7. Without limiting the generality of any of the provisions of this AGREEMENT, the PARTIES specifically agree that any reports concerning CONFIDENTIAL INFORMATION which are not made or authorized by the disclosing PARTY and which appear in any publication prior to the disclosing PARTY’s official disclosure of such CONFIDENTIAL INFORMATION shall not release the receiving PARTY from its obligations hereunder with respect to such CONFIDENTIAL INFORMATION. Each PARTY agrees that it shall not publish any review, notice or other report concerning any of the other PARTY’s CONFIDENTIAL INFORMATION prior to the disclosing PARTY’s intentional disclosure, upon which intentional disclosure it will no longer be CONFIDENTIAL INFORMATION (but only to the extent that is actually disclosed). Any review, notice or other report shall be limited to information which is not CONFIDENTIAL INFORMATION.
8. It is understood that the PARTIES may furnish to each of the others certain materials, either in writing or otherwise fixed in tangible form. The PARTIES agree that any and all of these materials shall be furnished in confidence and all of the terms and conditions of this AGREEMENT shall apply to the disclosure or furnishing of these materials. The receiving PARTY will not copy, alter, modify, disassemble, reverse engineer or decompile any of these materials without the prior written consent of the disclosing PARTY. Each PARTY agrees to return to the disclosing PARTY any and all of these materials, together with any copies (including, but not limited to, complete or partial copies incorporated into other materials) that may have been made, promptly upon the request of the disclosing PARTY or, if not requested earlier, promptly after the purposes(s) for which they were furnished have been accomplished or abandoned.
9. Each PARTY represents that it has not provided or communicated any of the other PARTY’s CONFIDENTIAL INFORMATION to any third PARTY, and will not do so in the future without the prior written consent of the disclosing PARTY.
10. This AGREEMENT shall not be assignable by any PARTY, and none of the PARTIES hereto may delegate its duties hereunder, without the prior written consent of the other. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the PARTIES hereto and their respective affiliates, heirs, successors and permitted assigns.
11. Nothing in this AGREEMENT shall be construed as creating any obligation on the part of the disclosing PARTY to disclose any CONFIDENTIAL INFORMATION whatsoever. Nothing in this AGREEMENT shall be construed as granting any license or any other rights with respect to the disclosing PARTY’s proprietary rights or CONFIDENTIAL INFORMATION.
12. Nothing contained in this AGREEMENT shall be construed as creating any obligation for an expectation on the part of any PARTY to enter into a BUSINESS RELATIONSHIP with another PARTY, or an obligation to refrain from entering into a BUSINESS RELATIONSHIP with any third PARTY. Nothing contained in this AGREEMENT shall be construed as creating a joint venture, partnership or employment relationship between the PARTIES, it being understood that the PARTIES are independent contractors vis-a-vis one another. Except as specified herein, no PARTY shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of any other PARTY hereto.
13. This AGREEMENT sets forth the entire understanding and agreement of the PARTIES with respect to the subject matter hereof and supersedes all other oral or written representations and understandings. The formation, interpretation and performance of this contract shall be governed by the laws of Ontario and the PARTIES agree to the jurisdiction of the courts of Ontario for the interpretation and enforcement hereof. This AGREEMENT may only be amended or modified in writing signed in advance by authorized representatives of each of the PARTIES.
14. Each of the PARTIES warrants and represents that it has carefully read and understood this AGREEMENT, and acknowledges receipt of a copy thereof. Each person executing this AGREEMENT warrants and represents that he or she has the authority to enter into this AGREEMENT on behalf of the person, firm or corporation, if any, set forth above his or her signature below.
15. This AGREEMENT shall be in full force and effect from the execution hereof and shall continue for a period of two (2) years from such date.
16. This AGREEMENT may be executed in counterparts and such counterparts shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned, duly authorized representatives of the PARTIES have executed this AGREEMENT as to the dates set forth below.