MUTUAL NON-DISCLOSURE AGREEMENT TEMPLATE This Agreement is made as of the Effective Date, BETWEEN: [Name of Institution or Researcher, as the case may be], having an address at ___________________________________________ (“Institution/Researcher”) AND: AGGREGATE THERAPEUTICS, INC., a corporation incorporated under the laws of Canada and having its administrative offices at 451 Smyth Road, Room 3105, Ottawa, Ontario K1H 8M5 (the “Company”) BACKGROUND: A. Institution/Researcher and Company wish to enter discussions to explore a business opportunity of potential mutual interest, unless more specifically set out in Schedule “A” attached to this Agreement (the “Purpose”); B. Each party expects that such discussions will involve the written or verbal disclosure and communication by that party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential information; and C. Each party is willing to disclose its confidential information to the other party under the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the foregoing premises, the mutual covenants and obligations contained in this Agreement, and other good and valuable consideration, Institution/Researcher and Company agree as follows: Confidential Information. Disclosing Party undertakes at its discretion to provide the 1. Confidential Information (as defined below) to Receiving Party for the purpose of allowing Receiving Party to evaluate its interest in entering into a business relationship with Disclosing Party, subject to the terms and conditions set out in this Agreement. Nothing in this Agreement obligates Disclosing Party to disclose any particular data or information whether or not it is part of the Confidential Information. “Confidential Information” means any and all discoveries, inventions, processes, methods, techniques, know-how, trade secrets, and intellectual property and proprietary rights relating to the subject matter identified in Schedule “A” attached to this
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Agreement, expressed in whatever form and may, depending on the nature and scope of such subject matter, include technical information, procedures, formulae, protocols, software, specifications, flowcharts, instructions, research, financial or marketing data, business plans, patent applications, and other documents and materials, and all modifications, variations, updates, enhancements and improvements thereof, owned by Disclosing Party. Confidential Information may include unique combinations of separate items, which individually may or may not be confidential. To constitute Confidential Information of Disclosing Party as confidential, Disclosing Party must designate or otherwise indicate that the Confidential Information is confidential at the time of disclosure, and if such disclosure was made in writing or in other tangible form, it was marked “confidential”, and if made orally, it was or will be reduced to writing or in other tangible form and marked “confidential” within 30 days of the oral disclosure. However, Confidential Information of Disclosing Party does not include: (a) information that is in the public domain at the time it is received by Receiving Party; information that after receipt thereof by Receiving Party enters the public domain other than through a breach of this Agreement by Receiving Party; information that Receiving Party can show was, prior to receipt thereof from Disclosing Party, lawfully in the possession of Receiving Party and not then subject to any obligation on the part of Receiving Party to maintain the confidentiality thereof; information that Receiving Party can show was independently developed by employees, agents or consultants of Receiving Party without any knowledge or use of the information disclosed by Disclosing Party under this Agreement; or information that is approved in writing by Disclosing Party for disclosure, provided that such disclosure was made by Receiving Party in accordance with the terms of such approval.
(b)
(c)
(d)
(e)
Technical Representatives. The individual authorized by a party to disclose and/or 2. receive Confidential Information on its behalf is set out in Schedule “A” attached to this Agreement, unless another individual is subsequently designated by that party in written notice to the other party. Evaluation of Confidential Information. Each of the parties will evaluate the 3. Confidential Information (if any) provided by the other party for the Purpose for a period (the “Evaluation Period”) commencing on the Effective Date and ending on the date set out in Schedule “A” attached to this Agreement unless amended mutually by the parties in writing. During the Evaluation Period, Receiving Party will limit disclosure of Disclosing Party’s Confidential Information to those directors, officers, employees, agents, consultants and professional advisors of Receiving Party who need to know the Confidential Information of Disclosing Party in order to assist Receiving Party in carrying out the Purpose and will ensure that such directors, officers, employees, agents, consultants and professional advisors will agree to,
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and be bound by, the terms of this Agreement. Except as expressly permitted in this Agreement, Confidential Information of Disclosing Party will not be copied or otherwise reproduced by Receiving Party without the express written permission of Disclosing Party. All copies will, on reproduction by Receiving Party, contain the same Disclosing Party proprietary and confidential notices and legends which appear on the original Confidential Information, unless authorized otherwise by Disclosing Party in writing. Obligation of Confidentiality. During the Evaluation Period and for five (5) years 4. thereafter (together, the “Term”), Receiving Party will use reasonable efforts to keep Disclosing Party's Confidential Information confidential. Disclosure or use of the Confidential Information by Receiving Party in breach of this Agreement will be deemed to cause Disclosing Party irreparable harm for which damages are not an adequate remedy. Disclosure Required By Law. If Receiving Party is required by a judicial, 5. administrative or other legal process to disclose Disclosing Party’s Confidential Information, Receiving Party will promptly notify Disclosing Party and allow Disclosing Party reasonable time to oppose the process before disclosing the Confidential Information. Ownership. The Confidential Information, and all rights in and to the Confidential 6. Information, which has been or will be disclosed to Receiving Party, will remain the exclusive worldwide property of Disclosing Party or its nominee, and will be held in trust by Receiving Party for the benefit of Disclosing Party. No license under any patent and no copyright of Disclosing Party, or any right respecting the Confidential Information other than expressly set out herein, is granted to Receiving Party under this Agreement by implication or otherwise. Disclaimer of Warranties. This Agreement will not constitute any representation, 7. warranty or guarantee to Receiving Party by Disclosing Party with respect to the noninfringement of patents or other rights of third parties. Disclosing Party will not, to the extent that it disclosed the Confidential Information, be held liable for any errors or omissions in the Confidential Information and for the use and the results of the use of the Confidential Information by Receiving Party or its directors, officers, employees, agents, consultants of professional advisors. Return of Confidential Information. Receiving Party will, upon request of Disclosing 8. Party, return all Confidential Information and copies thereof (including notes and any other tangible forms containing any portion of the Confidential Information) to Disclosing Party, or will destroy such Confidential Information and copies as directed by Disclosing Party, except that Receiving Party may retain a copy of all Confidential Information as a record of its obligations under this Agreement. Notices. All reports and notices or other documents that a party is required or may 9. want to deliver to the other party will be in writing and delivered by (i) personal delivery or a nationally recognized courier service and deemed to have been received at the time of delivery, or (ii) registered or certified mail (with all postage and other charges prepaid) and deemed to have been received at the end of the fifth (5th) day after it is posted, except that in the event of a postal strike, such notice will be deemed to have been received upon actual receipt, to the address set out
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in Schedule “A” for each party or to such other address that such party may subsequently direct in writing. Governing Law. This Agreement is governed by, and will be construed in accordance 10. with the laws of the jurisdiction in which the Institution/Researcher is situated and the laws of Canada applicable therein, without regard to any choice or conflict of laws, rule or principle, that will result in the application of the laws of any other jurisdiction. Dispute Resolution. The parties agree that any and all disputes and controversies 11. arising from, connected with, or relating to this Agreement, including relating to the construction, meaning, performance or effect of this Agreement or any breach thereof (collectively “Disputes”) will be resolved by the courts sitting in the city in which the Institution/Researcher is situated regarding any Dispute, and each party irrevocably and unconditionally attorns to the exclusive jurisdiction of such courts, and all courts competent to hear appeals therefrom, for that purpose. Headings. The headings and subheadings in this Agreement are inserted for convenience 12. of reference only and will not be used in interpreting or construing the provisions of this Agreement. Independent Contractor. The relationship between the parties is that of independent 13. contractors and nothing in this Agreement will be construed as establishing an agency, partnership, joint venture, or employment relationship between the parties. No party has the authority to act on behalf of the other party, or to commit the other party in any manner at all or cause any other party's name to be used in any way not specifically authorized by this Agreement. Entire Agreement. The parties hereto acknowledge that this Agreement sets forth the entire 14. agreement and understanding of the parties hereto as to the subject matter hereof, and replaces and supersedes all prior discussions, agreements and writings in respect hereto, unless expressly set out in Schedule “A” attached to this Agreement. Amendment. No amendment or variation to this Agreement will operate to change or vary 15. the terms, obligations or conditions hereof except upon mutual agreement by both parties signed by an authorized representative of each party. Severability. In the event that any provisions of this Agreement are determined to be 16. invalid or unenforceable by a court of competent jurisdiction in any jurisdiction, the remainder of the Agreement will remain in full force and effect without said provision in said jurisdiction and such determination will not affect the validity or enforceability of such provision or the Agreement in any other jurisdiction. The parties will in good faith negotiate a substitute clause for any provision declared invalid or unenforceable, which will most nearly approximate the intent of the parties in entering this Agreement. Waiver. No condoning, excusing or overlooking by any party of any default, breach or 17. non-observance by any other party at any time(s) regarding any terms of this Agreement operates as a waiver of that party's rights under this Agreement. A waiver of any term or right under this Agreement will be in writing signed by the party entitled to the benefit of that term or right, and is effective only to the extent set out in the written waiver.
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18. Further Assurances. The parties will promptly do such acts and execute and deliver to each other such further instruments as may be required to give effect to the intent expressed in this Agreement. Enurement. This Agreement will enure to the benefit of and be binding upon the parties 19. hereto, and their respective administrators, successors, and permitted assigns. IN WITNESS WHEREOF, the duly authorized officers of the parties have executed this Agreement to be effective as of the Effective Date noted below. Effective Date: _______________ [If the Institution (as opposed to the Researcher) is the party, insert name of Institution, and delete the signatory block for Researcher below.] by its authorized signatory:
Per: ________________________ Name: ______________________ Title: _______________________ Date: _______________________ [If the Researcher (as opposed to the Institution) is the party, insert name of Researcher, and delete the signatory block for Institution above]:
Signature: ___________________ Title: _______________________ Date: _______________________
AGGREGATE THERAPEUTICS, INC. by its authorized signatory:
Per: ________________________ Name: ______________________ Title: _______________________ Date: _______________________
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SCHEDULE “A” 1. Purpose (if different from Recital A)
2.
Subject Matter The subject matter of the Confidential Information to be disclosed: (a) by Institution/Researcher is: __________________________________________ _________________________________________________________________;
and (b) by Company is: ____________________________________________________ _________________________________________________________________.
3.
Technical Representatives. The authorized technical representative: (a) (b) of Institution/Researcher is: [name, address, phone, fax and email of contact] of Company is: [name, address, phone, fax and email of contact]
4.
Evaluation Period The Evaluation Period will end on the close of business on ______________________.
5.
Notices If to Company: Aggregate Therapeutics, Inc. 451 Smyth Road, Room 3105 Ottawa, Ontario K1H 8M5 Attention: _________________ Fax: (___) ___-_____________ If to Institution/Researcher: [name of Institution/Researcher] [address of Institution/Researcher] Attention: __________________ Fax: (___) ___ - _____________ [END OF DOCUMENT]
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