A. The Company and Partner wish to commence discussions with respect to private label manufacturing, product distribution, brand promotion, packaging design, marketing, product formulations, product development, blending, processing (the "Purpose"). B. In connection with such discussions, each party (the "Disclosing Party") may disclose to the other party (the "Receiving Party"), for the Purpose, information that the Disclosing Party considers to be reasonably appropriate for the Purpose. C. The Company and Partner wish to enter into this Agreement to set out their respective rights and obligations in relation to such disclosed information. NOW THEREFORE, this Agreement witnesses that in consideration of the premises and the mutual covenants and agreements set forth in this Agreement, the parties agree as follows: Definition of Confidential Information: As used in this Agreement, the term "Confidential Information" shall mean all non-public, confidential or proprietary materials or information disclosed or made available directly or indirectly before, on or after the Effective Date, by either Party ( or any of its Affiliates or Representatives) to the other Party ( or any of its Affiliates or Representatives), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential", including without limitation: (a) Information learned by the Recipient through observation or examination of any documents, books, records, data, or products of the other Party; through observation or examination of its place of business, research and development facilities, plant and machinery production facilities, processes or procedures, or otherwise learned in any manner from or through the Disclosing Party; (b) all information concerning the Disclosing Party ( or its Affiliates), and their customers', suppliers' and other third-parties' past, present and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies; and (c) the Disclosing Party's (or its Affiliates) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, recipes, samples, unpublished patent applications and other confidential intellectual property. Confidential Information shall not include information or materials which: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Recipient; (b) at the time of disclosure is, or thereafter becomes, available to the Recipient on a nonconfidential basis from a person who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient; ( c) was lawfully known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Disclosing Party pursuant to this Agreement; or ( d) is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information. Definition of Affiliates: As used in this Agreement, the term "Affiliates" shall mean any subsidiary or holding company of either Party, any subsidiary of any of its holding companies and any partnership, company or undertaking (whether incorporated or unincorporated) in which it has the majority of the voting rights or economic interest. Definition of Representatives: As used in this Agreement, the term "Representatives" shall mean employees, agents, directors, officers, attorneys, accountants or advisers. I. Ownership. All Confidential Information disclosed to Receiving Party by the Disclosing Party is and shall continue to be the exclusive property of the Disclosing Party and of those persons who have licensed or otherwise provided such Confidential Information to the Disclosing Party. This Agreement is not intended to and does not grant, expressly or by implication, any right or license to any intellectual property right or similar proprietary right of any kind that may be possessed by the Disclosing Party and/or those persons who have licensed or otherwise provided Confidential Information to the Disclosing Party. 2. Restriction on Disclosure or Use. The Receiving Party shall not, directly or indirectly, copy, transmit, reproduce, summarize, quote, make available, sell or disclose any of the Confidential Information or the Receiving Party's recollections thereof to any third party without the express written consent of the Disclosing Party, provided however, the Receiving Party may disclose the Confidential information to its subsidiaries and service providers (the "Designated Third Parties") provided that any such disclosure is in connection with the Purpose. The Receiving Party shall not make any use whatsoever of Confidential Information except to the extent necessary for the Purpose. 3. Safeguard of Confidential Information. The Receiving Party agrees to exercise the highest degree of care in safeguarding Confidential Information against loss, theft, destruction or inadvertent disclosure. The Receiving Party shall limit disclosure of Confidential Information to those of its employees, directors, officers, counsel, consultants or Designated Third Parties who have a need to know it for the Purpose and who are bound by an obligation of confidentiality similar to that set forth in this Agreement. The Receiving Party shall be responsible and liable for any breach of this Agreement by such persons. 4. No Reverse Engineering. Except as required for the Purpose, Partner shall not modify, create derivative works from, reverse engineer, reverse assemble, decompile or reverse compile any Confidential Information or any products or equipment owned or managed by the Company and the Company shall not modify, create derivative works from, reverse engineer, reverse assemble, decompile or reverse compile any Confidential Information or any products or equipment owned or managed by Partner. 5" Return of Confidential Information. Upon completion of the Purpose or at such other time as the Disclosing Party may request, the Receiving Party shall promptly return and deliver to the Disclosing Party all originals and copies of Confidential Information disclosed to it, in whatever form, which the Receiving Party received and destroy all extracts, analyses, notes or other documents, including computer files, prepared by or for the Receiving Party including or based on Confidential Information disclosed to it and shall certify such return and delivery in writing to the Disclosing Party. 6. Injunction. The Receiving Party acknowledges and agrees that any breach of this Agreement by the Receiving Party shall cause irreparable harm to the Disclosing Party. If the Receiving Party fails to abide by the terms of this Agreement, the Disclosing Party shall be entitled to an injunction, specific performance or other equitable relief as well as an equitable accounting of all profits and benefits arising out of any breach of this Agreement and no bond or other security shall be required from the Disclosing Party in connection therewith. The rights and remedies specified in this Agreement are in addition to, and not in substitution for, any rights or remedies of the Disclosing Party at law or in equity. If the Disclosing Party is successful in obtaining an injunction or is otherwise successful in any other action arising out of a breach of this Agreement, the Receiving Party shall pay to the Disclosing Party the full amount of the legal fees and expenses incurred by the Disclosing Party in pursuing such action. 7. Term and Survival of Obligations. The term of this Agreement shall commence as of the date of execution of this Agreement by both parties and shall expire upon the earlier of (i) the mutual written agreement of the parties or (ii) the expiry of a period of five (5) years from the date of execution of the Agreement. The obligations of the Receiving Party respecting the use, disclosure and return of Confidential Information and the rights of the Disclosing Party provided herein to enforce such obligations shall survive the expiration or termination of this Agreement. 8" No Warranty. All Confidential Information disclosed by the Disclosing Party to the Receiving Party is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding its accuracy, completeness, performance, non-infringement, or fitness for particular purpose. In no event shall the Disclosing Party, or any other person who may have licensed or otherwise provided Confidential Information to the Disclosing Party (whether directly or indirectly) be liable to the Receiving Party, its representatives or any other person for any losses, costs, expense or damages of any kind whatsoever arising out of or resulting from the use of Confidential Information disclosed to the Receiving Party. 9. Non-Solicitation. Company and Partner both hereby agree that, for a period of two years from the date hereof, neither party nor any of its affiliates will, directly or indirectly, solicit or hire any of the officers or other employees of the other party or any of its subsidiaries or any persons who are independent contractors of the other party or any of its subsidiaries; provided, however, that the foregoing does not preclude either party from soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees or independent contractors of either party or any of its subsidiaries. The obligations of both Company and Partner under this section shall survive the expiration or termination of this Agreement. 10. Notices. Any notice, direction, request or other communication required or contemplated by any provision of this Agreement shall be given in writing and shall be given by delivering the same to the parties at the addresses set forth above. Any such notice, direction, request or other communication shall be deemed to have been given or made on the date on which it was delivered. Either party may change its address for service from time to time by written notice in accordance with this section. 11. Assignment. This Agreement is not assignable by either party in whole or in part without the prior written consent of the other party, which consent may not be unreasonably withheld, delayed or conditioned. Any attempt by either party to assign any of its rights or to the delegate any of its duties or obligations under this Agreement without such prior written consent is void. 12 Entire Agreement. This Agreement represents the entire agreement and understanding of the parties hereto with respect to the non-disclosure of Confidential Information described herein and supersedes all prior written or oral agreements and all negotiations, conversations or other communications or understandings of the parties hereto with respect to the subject matter described herein. 13. Severability. If any provision of this Agreement is determined to be invalid or unenforceable, a suitable provision shall be substituted therefore to carry out, insofar as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision. The validity and enforceability of the remaining provisions shall not be affected or impaired thereby. 14. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties hereby attorn to the exclusive jurisdiction of the courts of the Province of British Columbia with respect to disputes arising in connection with this Agreement. 15. Enurement. Subject to the restrictions on transfer contained in this Agreement, this Agreement shall enure to the benefit of and be binding on the parties and their respective successors and permitted assigns. 16. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All of these counterparts will constitute one agreement, binding on the parties, notwithstanding that all parties are not signatories to the same counterpart. A fax or electronic copy of this Agreement executed by a party in counterpart will constitute a properly executed, delivered and binding agreement or counterpart of the executing party.
A. The Company and Partner wish to commence discussions with respect to private label manufacturing, product distribution, brand promotion, packaging design, marketing, product formulations, product development, blending, processing (the "Purpose"). B. In connection with such discussions, each party (the "Disclosing Party") may disclose to the other party (the "Receiving Party"), for the Purpose, information that the Disclosing Party considers to be reasonably appropriate for the Purpose. C. The Company and Partner wish to enter into this Agreement to set out their respective rights and obligations in relation to such disclosed information. NOW THEREFORE, this Agreement witnesses that in consideration of the premises and the mutual covenants and agreements set forth in this Agreement, the parties agree as follows: Definition of Confidential Information: As used in this Agreement, the term "Confidential Information" shall mean all non-public, confidential or proprietary materials or information disclosed or made available directly or indirectly before, on or after the Effective Date, by either Party ( or any of its Affiliates or Representatives) to the other Party ( or any of its Affiliates or Representatives), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential", including without limitation: (a) Information learned by the Recipient through observation or examination of any documents, books, records, data, or products of the other Party; through observation or examination of its place of business, research and development facilities, plant and machinery production facilities, processes or procedures, or otherwise learned in any manner from or through the Disclosing Party; (b) all information concerning the Disclosing Party ( or its Affiliates), and their customers', suppliers' and other third-parties' past, present and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies; and (c) the Disclosing Party's (or its Affiliates) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, recipes, samples, unpublished patent applications and other confidential intellectual property. Confidential Information shall not include information or materials which: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Recipient; (b) at the time of disclosure is, or thereafter becomes, available to the Recipient on a nonconfidential basis from a person who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient; ( c) was lawfully known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Disclosing Party pursuant to this Agreement; or ( d) is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information. Definition of Affiliates: As used in this Agreement, the term "Affiliates" shall mean any subsidiary or holding company of either Party, any subsidiary of any of its holding companies and any partnership, company or undertaking (whether incorporated or unincorporated) in which it has the majority of the voting rights or economic interest. Definition of Representatives: As used in this Agreement, the term "Representatives" shall mean employees, agents, directors, officers, attorneys, accountants or advisers. I. Ownership. All Confidential Information disclosed to Receiving Party by the Disclosing Party is and shall continue to be the exclusive property of the Disclosing Party and of those persons who have licensed or otherwise provided such Confidential Information to the Disclosing Party. This Agreement is not intended to and does not grant, expressly or by implication, any right or license to any intellectual property right or similar proprietary right of any kind that may be possessed by the Disclosing Party and/or those persons who have licensed or otherwise provided Confidential Information to the Disclosing Party. 2. Restriction on Disclosure or Use. The Receiving Party shall not, directly or indirectly, copy, transmit, reproduce, summarize, quote, make available, sell or disclose any of the Confidential Information or the Receiving Party's recollections thereof to any third party without the express written consent of the Disclosing Party, provided however, the Receiving Party may disclose the Confidential information to its subsidiaries and service providers (the "Designated Third Parties") provided that any such disclosure is in connection with the Purpose. The Receiving Party shall not make any use whatsoever of Confidential Information except to the extent necessary for the Purpose. 3. Safeguard of Confidential Information. The Receiving Party agrees to exercise the highest degree of care in safeguarding Confidential Information against loss, theft, destruction or inadvertent disclosure. The Receiving Party shall limit disclosure of Confidential Information to those of its employees, directors, officers, counsel, consultants or Designated Third Parties who have a need to know it for the Purpose and who are bound by an obligation of confidentiality similar to that set forth in this Agreement. The Receiving Party shall be responsible and liable for any breach of this Agreement by such persons. 4. No Reverse Engineering. Except as required for the Purpose, Partner shall not modify, create derivative works from, reverse engineer, reverse assemble, decompile or reverse compile any Confidential Information or any products or equipment owned or managed by the Company and the Company shall not modify, create derivative works from, reverse engineer, reverse assemble, decompile or reverse compile any Confidential Information or any products or equipment owned or managed by Partner. 5" Return of Confidential Information. Upon completion of the Purpose or at such other time as the Disclosing Party may request, the Receiving Party shall promptly return and deliver to the Disclosing Party all originals and copies of Confidential Information disclosed to it, in whatever form, which the Receiving Party received and destroy all extracts, analyses, notes or other documents, including computer files, prepared by or for the Receiving Party including or based on Confidential Information disclosed to it and shall certify such return and delivery in writing to the Disclosing Party. 6. Injunction. The Receiving Party acknowledges and agrees that any breach of this Agreement by the Receiving Party shall cause irreparable harm to the Disclosing Party. If the Receiving Party fails to abide by the terms of this Agreement, the Disclosing Party shall be entitled to an injunction, specific performance or other equitable relief as well as an equitable accounting of all profits and benefits arising out of any breach of this Agreement and no bond or other security shall be required from the Disclosing Party in connection therewith. The rights and remedies specified in this Agreement are in addition to, and not in substitution for, any rights or remedies of the Disclosing Party at law or in equity. If the Disclosing Party is successful in obtaining an injunction or is otherwise successful in any other action arising out of a breach of this Agreement, the Receiving Party shall pay to the Disclosing Party the full amount of the legal fees and expenses incurred by the Disclosing Party in pursuing such action. 7. Term and Survival of Obligations. The term of this Agreement shall commence as of the date of execution of this Agreement by both parties and shall expire upon the earlier of (i) the mutual written agreement of the parties or (ii) the expiry of a period of five (5) years from the date of execution of the Agreement. The obligations of the Receiving Party respecting the use, disclosure and return of Confidential Information and the rights of the Disclosing Party provided herein to enforce such obligations shall survive the expiration or termination of this Agreement. 8" No Warranty. All Confidential Information disclosed by the Disclosing Party to the Receiving Party is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding its accuracy, completeness, performance, non-infringement, or fitness for particular purpose. In no event shall the Disclosing Party, or any other person who may have licensed or otherwise provided Confidential Information to the Disclosing Party (whether directly or indirectly) be liable to the Receiving Party, its representatives or any other person for any losses, costs, expense or damages of any kind whatsoever arising out of or resulting from the use of Confidential Information disclosed to the Receiving Party. 9. Non-Solicitation. Company and Partner both hereby agree that, for a period of two years from the date hereof, neither party nor any of its affiliates will, directly or indirectly, solicit or hire any of the officers or other employees of the other party or any of its subsidiaries or any persons who are independent contractors of the other party or any of its subsidiaries; provided, however, that the foregoing does not preclude either party from soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that are not targeted specifically at the employees or independent contractors of either party or any of its subsidiaries. The obligations of both Company and Partner under this section shall survive the expiration or termination of this Agreement. 10. Notices. Any notice, direction, request or other communication required or contemplated by any provision of this Agreement shall be given in writing and shall be given by delivering the same to the parties at the addresses set forth above. Any such notice, direction, request or other communication shall be deemed to have been given or made on the date on which it was delivered. Either party may change its address for service from time to time by written notice in accordance with this section. 11. Assignment. This Agreement is not assignable by either party in whole or in part without the prior written consent of the other party, which consent may not be unreasonably withheld, delayed or conditioned. Any attempt by either party to assign any of its rights or to the delegate any of its duties or obligations under this Agreement without such prior written consent is void. 12 Entire Agreement. This Agreement represents the entire agreement and understanding of the parties hereto with respect to the non-disclosure of Confidential Information described herein and supersedes all prior written or oral agreements and all negotiations, conversations or other communications or understandings of the parties hereto with respect to the subject matter described herein. 13. Severability. If any provision of this Agreement is determined to be invalid or unenforceable, a suitable provision shall be substituted therefore to carry out, insofar as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision. The validity and enforceability of the remaining provisions shall not be affected or impaired thereby. 14. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties hereby attorn to the exclusive jurisdiction of the courts of the Province of British Columbia with respect to disputes arising in connection with this Agreement. 15. Enurement. Subject to the restrictions on transfer contained in this Agreement, this Agreement shall enure to the benefit of and be binding on the parties and their respective successors and permitted assigns. 16. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All of these counterparts will constitute one agreement, binding on the parties, notwithstanding that all parties are not signatories to the same counterpart. A fax or electronic copy of this Agreement executed by a party in counterpart will constitute a properly executed, delivered and binding agreement or counterpart of the executing party.
