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Definitions


(a) “Confidential Information” means all information, whether communicated in oral, written, graphic, electromagnetic, or any other form, that one Party to this agreement (the “Disclosing Party”) communicates to another party (the “Receiving Party”), and which:

(i) The Receiving Party does not already possess without any obligation of confidentiality;
(ii) If disclosed in tangible form, is clearly marked as confidential or is reasonably understood by the Receiving Party to be confidential; and
(iii) If disclosed orally or visually, the Disclosing Party designates as confidential at the time of disclosure or promptly thereafter or is reasonably understood by the Receiving Party to be confidential.

(b) “Party” means an entity that has executed this Agreement and any entity that controls, is controlled by, or is under common control with it.

Use and Disclosure

(a) The Receiving Party shall use Confidential Information solely for the purpose for which it is disclosed (the “Business Purpose”).

(b) Neither agreement nor any disclosure of information under it shall convey a license or right to any patent, copyright, trademark or other proprietary right, except for the right to use the information in accordance with agreement.

(c) The Receiving Party shall not disclose Confidential Information to anyone other than those of its employees, agents, and advisors who have a need to know the Confidential Information in connection with the Business Purpose.

(d) The Receiving Party shall make no more copies of the Confidential Information than are necessary to allow it to use the Confidential Information effectively for the Business Purpose and shall assure that the confidentiality legend remains clearly legible on all such copies.

(e) Neither Party shall disclose to the other any confidential information belonging to a third party without the express permission of the third party.

Safeguards

Each of the Parties warrants that it maintains reasonable safeguards against the unauthorized disclosure of confidential and proprietary information and agrees to protect Confidential Information received from the other Party in the same manner and to the same degree that it protects its own confidential and proprietary information. A Receiving Party will not give its employees, agents, or advisors access to Confidential Information received from a Disclosing Party until the Receiving Party has ensured that they are aware of agreement and are under an obligation to honour it.

Exceptions to Confidentiality Obligations

With respect to any item of Confidential Information, the obligations of Section 2 above shall cease to apply to Confidential Information that:

(a) Has become generally available to the public other than as a result of a breach of agreement;

(b) Has been lawfully disclosed to the Receiving Party by a person that is not subject to a restriction against disclosing it;

(c) Is required by law to be disclosed pursuant to the valid order or request of a court or governmental agency (and only to the extent of such required disclosure); provided that, before making such disclosure, the Receiving Party shall give the Disclosing Party prompt notice and an opportunity to interpose an objection, seek a protective order, or otherwise to take action to protect the Confidential Information;

(d) The Receiving Party can demonstrate by documentary evidence that it has independently developed without breach of agreement; or

(e) Is disclosed more than three years from the date of disclosure under agreement (unless such item of Confidential Information consists of computer software, in which case the Receiving Party shall not disclose it without the prior written consent of the Disclosing Party).

Confidentiality of Discussions

Except as may be required by law, each Party agrees not to disclose that discussions between the parties are taking place concerning a possible transaction or any of the terms, conditions, or other facts with respect to any such transaction, including the status thereof, without the prior written consent of the other Party.

Return or Destruction of Confidential Information

Upon request of a Disclosing Party, the Receiving Party shall, at the option and instruction of the Disclosing Party, promptly return or destroy all Confidential Information in its possession.

Equitable Relief

The Parties acknowledge that money damages may not be a sufficient remedy for any breach of agreement and that a Disclosing Party is entitled to seek injunctive or other equitable relief to remedy or prevent any breach or threatened breach agreement. Such relief shall not be the exclusive remedy for any breach of agreement, but shall be in addition to all other rights and remedies available at law or in equity

Prior Disclosures

Any Confidential Information supplied to a Receiving Party by a Disclosing Party prior to the date of agreement shall be subject to the same treatment as Confidential Information supplied after the date of agreement.


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