THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) dated , 2021 between DENTAL BUYING NETWORK LTD. (“DBN”) and the Recipient.
A. DBN has agreed to disclose Confidential Information relating to its business for the purpose of the recipient considering membership in DBN (the "Purpose"); and
B. The Parties wish to protect the confidential and proprietary nature of such information which may be disclosed and have agreed to enter into this Agreement for the purpose of protecting the confidentiality of such information and governing its collection, disclosure, and use.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the disclosure of such confidential information and certain mutual covenants, promises and provisos, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. In and for the purpose of this Agreement:
(a) “Confidential Information” means and includes:
(i) all information relating to DBN, whether disclosed or received by conversation, written or documented form, object or sample form, or by observation and inspection, and whether or not such information is expressly marked as “confidential”, and regardless of the form or medium in which such information is contained;
(ii) all technical and non-technical information concerning DBN, including but not limited to, intellectual property, designs, drawings, and materials; and information concerning current and prospective research, development, products, marketing and selling, business plans, budgets, unpublished financial statements, licenses, prices and costs, suppliers and customers;
(iii)all agreements, contracts, financial data and information, business plans, summaries, reports, statements, analyses, compilations, forecasts, projections, studies, personal employee information, employee manuals, and documents relating to DBN; but the term "Confidential Information" does not include:
(iv) information that the Recipient can show was in the public domain at the time it was received by the Recipient; or which has entered the public domain after the receipt thereof by the Recipientotherwise than through any act or omission of the Recipient or of any person to whom the recipient has disclosed or otherwise made the Confidential Information available too;
(v) information that the Recipient can show, was, prior to receipt thereof, lawfully in the possession of the Recipient and not then subject to any obligation on the part of the Recipient to maintain confidentiality;
(vi)information which the Recipient can show was independently developed by Recipient without the use of or reference to the Confidential Information.
(vii) information that the Recipient can show is required by any government authority, statute, regulation, by-law or otherwise to be released or disclosed by the Recipient; or
(viii) information that the Recipient can demonstrate was received by the Recipient from a person who, to the knowledge of the Recipient after reasonable inquiry, was not under a duty of confidentiality to DBN at the time the Confidential Information was conveyed to the Recipient and was otherwise legally entitled to disclose such Confidential Information to the Recipient;
(b) “DBN” means DENTAL BUYING NETWORK LTD. and any of its affiliates and subsidiaries thatdisclose Confidential Information to a Recipient;
(c) “Losses” means, in respect of any matter, any and all liabilities, obligations, claims, charges, losses, damages, costs, and expense of whatever kind or nature and howsoever arising (including, without limitation, all legal fees on a solicitor/client full indemnity basis) arising directly or indirectly as a consequence of such matter; and
(d) “Recipient” means all those signing this Agreement who are not DBN.
ARTICLE 2 COVENANTS
2.1 Covenants Concerning Confidential Information. The Recipient hereby undertakes and agrees:
(a) not to use the Confidential Information for any purpose whatsoever, other than considering membership in DBN;
(b) not to disclose the Confidential Information to any other person, except to others who have signed non-disclosure agreements in favor of DBN in the form of this Agreement;
(c) to hold the Confidential Information in trust for DBN and to keep the Confidential Information in absolute and strictest confidence;
(d) to protect the Confidential Information from inadvertent or unauthorized disclosure, access or use in the same manner as the Recipient protects its own confidential information, provided that the recipient shall exercise no less than reasonable care;
(e) in the event that the Recipient does not become a member of DBN, to destroy all confidential information and copies thereof, regardless of the form it is reduced to, whether furnished by DBN or created by or on behalf of the Recipient; and
(f) that the Confidential Information is and shall remain at all times, the property of DBN.
2.2 Privacy Legislation Compliance. The Recipient agrees that to the extent that this Agreement provides protections of the disclosure, collection or use of the Confidential Information that are less restrictive than the provisions of any privacy legislation or other similar statute or law, the Recipient shall comply with and be bound by the more restrictive provisions of such legislation, notwithstanding any provision set out herein.
ARTICLE 3 INDEMNITY AND EQUITABLE RELIEF
3.1 Indemnity. The Recipient is and shall be liable for, and does hereby indemnify and save harmless DBN (which definition, for the purposes of this Section 3.1, shall include its directors, officers, shareholders, security holders, professional advisers, agents, and its affiliates) of, from and against any and all Losses, which DBN may suffer, sustain, incur, pay or be liable for, arising out of, relating to, in consequence of or in any way connected to a breach of the terms and conditions of this Agreement.
3.2 Equitable Relief. The Recipient acknowledges the confidential and proprietary nature of the Confidential Information and the importance thereof to the business and affairs of DBN. The Recipient further acknowledges and agrees that, in the event of a breach of the provisions of this Agreement, damages will be an inadequate remedy and that DBN shall be entitled to seek and obtain injunctive or other equitable relief in addition to any other remedies they may have.
ARTICLE 4 GENERAL TERMS
4.1 Notices: any notice required or permitted hereunder shall be given in writing and addressed to a party at the below addresses (or such other address as may be from time to time advised in writing) by registered mail, or facsimile or email transmission:
4.2 General Terms. This Agreement shall not be construed as granting any rights, express or implied, in respect of any intellectual property of DBN. The preamble is expressly incorporated into and forms part of this Agreement. If any term, covenant, or condition of this Agreement shall be invalid or unenforceable to any extent, the remainder of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law. This Agreement constitutes the entire agreement between the Parties hereto relating to the subject matter hereof and supersedes all prior and contemporaneous agreements. Each of the Parties covenants and agree to do such things and execute such further documents, agreements, and assurances as may be necessary or advisable from time to time, in order to carry out the terms and conditions of this Agreement. No remedy herein conferred upon any Party is intended to be exclusive of any other remedy available to that Party but each remedy shall be cumulative and shall be in addition to every other remedy given hereunder now, or hereafter existing by law or in equity or by statute. This Agreement may not be assigned by any Party without the prior written consent of the other Parties. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada, and the Parties hereto hereby submit to the jurisdiction of the Courts in the Province of Alberta, Canada. Time shall be the essence of this Agreement. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors, heirs, and permitted assigns. This Agreement may be signed or executed in counterparts and delivered by facsimile or by electronic transmission.
IN WITNESS WHEREOF this Agreement is dated as of the date and year first above written.