Non-Disclosure Agreement

This Confidentiality and Non-Disclosure Agreement, dated effective as of the date of execution by the Recipient (the “Effective Date”), is by and between __________________________ and __________________________, each a British Columbia company having their respective registered and records office at __________________________ (collectively, the “Discloser” — entity details and address to be completed upon counter-signing), and the party identified in Step 1 above (collectively, the “Recipient” and together with the Discloser, the “Parties”, and each a “Party”).

WHEREAS, in connection with the Parties’ consideration of a potential purchase and sale transaction between them whereby the Recipient will acquire either the assets of or shares in the Discloser, the type and nature of such transaction to be determined (the “Proposed Business Transaction”), the Recipient desires or may obtain access to Confidential Information (as defined below) from the Discloser for the purposes of facilitating, discussing, exploring, and contemplating the consummation of the Proposed Business Transaction (the “Purpose”);

WHEREAS, the Discloser wishes to protect and preserve the confidentiality of the Confidential Information;

WHEREAS, the Discloser desires to disclose and permit access to such Confidential Information to the Recipient, solely to fulfill the Purpose and subject to the rights, obligations, conditions, and restrictions set out herein;

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions

In this Agreement, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“Agreement” means this agreement as it may be confirmed, amended, modified, supplemented or restated by written agreement between the Parties.

“Confidential Information” means all non-public technical, know-how, or business and financial information, data, documents, agreements, files and other materials regarding or concerning the Discloser or their respective affiliates, whether disclosed orally or disclosed or stored in written, electronic or other form or media, which is disclosed or otherwise furnished by the Discloser or their respective Representatives to the Recipient or its Representatives before, on or after the date hereof, including all analyses, financial reports, notes, compilations, reports, forecasts, studies, samples, statistics, summaries, interpretations and other documents prepared by or for the Recipient or its Representatives which contain or otherwise reflect or are generated from such information, data, documents, agreements, files or other materials, whether or not marked, designated or otherwise identified as “confidential” including, without limitation:

• information concerning the Discloser, and their respective affiliates’ and their customers’, suppliers’ and other third parties’, past, present and future business affairs including, without limitation, finances, supplier information, services, customer information, products, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies;
• unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, software programs, unpublished patent applications and other confidential intellectual property;
• designs, specifications, documentation, components, source code, object code, computer chips, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing;
• third-party confidential information (including, without limitation, any Personal Information as defined below) included with, or incorporated in, any information provided by the Discloser to the Recipient or its Representatives; and
• other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the Discloser’s business.

The term “Confidential Information” as used herein shall not include information that:

1. is or subsequently becomes generally available to and known by the public (other than as a result of its disclosure directly or indirectly by the Recipient or its Representatives in violation of this Agreement);
2. is or becomes available to the Recipient from a source other than the Discloser or its Representatives, provided that such source was not and is not bound by a confidentiality agreement regarding the Discloser or its affiliates, or otherwise prohibited from disclosing such information by a legal, contractual or fiduciary obligation;
3. was already known by or in the possession of the Recipient as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser or its Representatives pursuant to this Agreement;
4. has been independently developed by the Recipient as established by documentary evidence, without violating any of its obligations under this Agreement or use of or reference to, in whole or in part, the Confidential Information; or
5. is required or compelled to be disclosed by Recipient by law, provided that Recipient shall, reasonably practicable and permissible under law, take reasonable steps to give the Discloser prior notice to permit Discloser to contest or restrict such disclosure.

“Person” means any individual, partnership (whether general, limited, or limited liability), corporation, association, trust or other entity.

“Personal Information” means information that relates to an individual person and identifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.

“Representatives” means, as to any Person, such Person’s affiliates, and its and their respective directors, officers, employees, members, contractors, agents, advisors, general partners, or consultants (including lawyers, financial advisors and accountants).

2. No Obligation to Disclose

The Discloser may, in its sole discretion, provide any of the Confidential Information to the Recipient that the Discloser determines is required for the Purpose. Nothing in this Agreement obligates the Discloser to make any particular disclosure of Confidential Information. The Discloser may stop providing Confidential Information to the Recipient at any time.

3. Scope of Use

The Recipient shall only use the Confidential Information for the limited Purpose.

4. Recipient’s Obligations

The Recipient shall:

1. keep the Confidential Information strictly confidential and protect and safeguard the confidentiality of all such Confidential Information with the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
2. not use the Confidential Information, or permit it to be accessed or used, for any purpose other than the Purpose or any related transactions between the Discloser and the Recipient, or otherwise in any manner to the Discloser’s detriment, including without limitation, to reverse engineer, disassemble, decompile or design around the Discloser’s proprietary services, products and/or confidential intellectual property;
3. not disclose or permit its Representatives to disclose any Confidential Information to any Person except:
   1. if required by law or pursuant to any requirement or process of any legal authority, but only in accordance with Section 7, or
   2. to its Representatives, to the extent necessary to permit such Representatives who need to know the Confidential Information to assist the Recipient in relation to the Purpose and for no other purpose provided the Recipient shall:
      • inform the Recipient’s Representatives of the confidential nature of the Confidential Information;
      • cause its Representatives to be bound by the terms of this Agreement to the same extent as if they were parties hereto;
      • be responsible for any breach of this Agreement by any of its Representatives;
4. use reasonable controls to prevent unauthorized use or disclosure of the Confidential Information (but in any event no less than the degree of care and control that the Recipient uses to protect its own confidential information of similar importance);
5. promptly notify the Discloser of any unauthorized use or disclosure of the Confidential Information of which the Recipient has become aware; and
6. fully cooperate with the Discloser in any effort undertaken by the Discloser to enforce its rights related to any such unauthorized disclosure.

5. Further Confidentiality Obligations

Except for such disclosure as is necessary not to be in violation of any applicable law, or pursuant to any requirement or process of any legal authority (in which case the disclosure must be made in accordance with Section 7), the Recipient shall not, and shall not permit any of its Representatives to, without the prior written consent of the Discloser, disclose to any Person:

1. the fact that the Confidential Information has been made available to it or any of its Representatives or that it or any of its Representatives has received or inspected any portion of the Confidential Information;
2. the existence or contents of this Agreement;
3. the fact that investigations, discussions or negotiations are taking or have taken place concerning the Confidential Information or the Purpose, including the status thereof; or
4. any terms, conditions or other matters or arrangements relating to the Confidential Information or the Purpose

(collectively, the “Purpose Information”).

6. No Representation or Warranty by Discloser

The Recipient understands and agrees that neither the Discloser nor any of its Representatives:

1. has made or makes any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information; or
2. shall have any liability to the Recipient or its Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom.

Only those representations or warranties that are made in a Definitive Agreement (defined below) when, as and if executed will have any legal effect. The parties agree that unless and until a definitive written agreement between the Discloser and Recipient (or one or more of their respective affiliates) has been executed and delivered with respect to the Purpose (a “Definitive Agreement”), neither the Discloser nor any of its affiliates will be under any legal obligation of any kind whatsoever with respect to the Purpose, including any obligation to (i) consummate a transaction, (ii) conduct or continue discussions or negotiations or (iii) enter into or negotiate a Definitive Agreement. The Discloser reserves the right, in its sole discretion, to reject any and all proposals made by the Recipient or on its behalf with regard to the Purpose or a transaction, to terminate discussions and negotiations with the Recipient at any time and to enter into any agreement with any other Person without notice to the Recipient or any of its Representatives, at any time and for any reason or no reason.

7. Disclosure Required

If the Recipient or any of its Representatives is required to disclose any Confidential Information or Purpose Information, by law, or pursuant to any requirement of any legal authority, the Recipient shall:

1. to the extent legally permitted, give the Discloser prompt prior written notice of such requirement or process so that the Discloser may seek, at its sole cost and expense, an appropriate protective order or other remedy; and
2. cooperate with and provide reasonable assistance to the Discloser, at the Discloser’s sole cost and expense, in opposing such disclosure and to obtain such protective order or other remedy.

If, after providing such notice and cooperation as required herein, such protective order or other remedy is not obtained, the Recipient (or such Representative to whom such requirement is directed) will furnish only that portion of the Confidential Information or Purpose Information which, on the written advice of the Recipient’s counsel, is legally required to be disclosed and use its best efforts to preserve the privileged nature or confidentiality of the Confidential Information or Purpose Information and obtain assurances that confidential treatment will be accorded the Confidential Information or Purpose Information so disclosed.

8. Return or Destruction of Confidential Information

Upon the Discloser’s written request, the Recipient and its Representatives shall promptly, and in any event no later than five days after the request, return or use commercially reasonable efforts to destroy all Confidential Information (including all copies, reports, analyses, extracts, notes or other reproductions created using the Confidential Information) to the Discloser and if destroyed, certify in writing to the Discloser within such time frame that such Confidential Information has been destroyed. In the case of Confidential Information stored in electronic form, it will be permanently erased (provided such electronic information may be retained in an archived computer system or back up servers if not intentionally made available to any person and is deleted in accordance with the Recipient’s record keeping policies, security and/or disaster recovery procedures). Notwithstanding the foregoing, the Recipient and its Representatives shall be entitled to retain Information as required by applicable laws, regulatory requirements or stock exchange rules. Notwithstanding the return or destruction of the Confidential Information, the Recipient and its Representatives shall continue to be bound by their obligations of confidentiality and other obligations hereunder.

9. Remedies

The Recipient acknowledges and agrees that monetary damages may not be a sufficient remedy for any breach of this Agreement by the Recipient or its Representatives and that in addition to all other remedies it may be entitled to (which the Discloser does not waive by the exercise of any rights under this section), the Discloser shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or threatened breach without the requirement for the securing or posting of any bond or other security by the Discloser. The Recipient further agrees that it will not oppose the granting of such relief on the basis that the Discloser has an adequate remedy at law and that it will pay any costs, fees and expenses, including legal fees, that the Discloser may incur in enforcing this Agreement.

10. Term and Termination

This Agreement and all obligations under this Agreement may be terminated by either Party and this Agreement shall expire on the earlier occurrence of: (a) the date of closing or consummation of the Proposed Business Transaction; or (b) 1 year after the Effective Date.

11. No Transfer of Rights, Title or Interest

The Discloser hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, licence or other transfer of any such right, title or interest whatsoever to the Recipient or any of its Representatives. The Recipient specifically acknowledges and agrees that the Confidential Information is and shall remain the exclusive property of the Discloser and that it has no right, title or interest in or to the Confidential Information.

12. Relationship of the Parties

Nothing in this Agreement is to be construed as creating an agency or fiduciary relationship or joint venture, employer-employee relationship, partnership or any form of strategic alliance whatsoever between the Parties.

Nothing in this Agreement is to be construed as requiring either Party to disclose any Confidential Information to the other Party or to engage in any business relationship, contract or future dealing with the other Party.

13. Miscellaneous

1. This Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of British Columbia for any actions or proceedings arising out of or relating to the enforcement of this Agreement.
2. This Agreement sets forth the entire agreement between the Parties regarding the Confidential Information and all other subject matters set forth herein, and supersedes all prior and contemporaneous negotiations, understandings, representations and warranties and agreements between the Parties (both written and oral) with respect to such subject matters. No provision of this Agreement may be amended, modified, waived or changed unless made in writing and signed by the Parties.
3. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
4. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party without the prior written consent of the non-assigning Party. Any purported assignment without such consent shall be null and void and unenforceable. No assignment shall relieve the assigning Party of any of its obligations hereunder.
5. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different nature, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
6. This Agreement enures to the benefit of the Discloser and its affiliates, subsidiaries and parent companies and each of their respective successors and permitted assigns and is binding upon the Recipient and its respective successors and permitted assigns.
7. The section, subsection and paragraph headings herein are for reference purposes only and are not intended to be a part of or to have effect over the meaning or interpretation of this Agreement.
8. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment), if delivered by email to the address of the applicable party as indicated on the signature page to this Agreement below; or (c) on the third day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
9. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same instrument. The parties agree that this Agreement may be signed and/or transmitted by facsimile, e-mail of a .pdf document, or using electronic signature technology (e.g. via DocuSign or similar electronic signature technology), and that such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s hand-written signature. The parties further consent and agree that: (a) to the extent a party signs this Agreement using electronic signature technology, by clicking “Electronically Sign & Submit”, such party is signing this Agreement electronically; and (b) the electronic signatures appearing on this Agreement shall be treated, for purposes of validity, enforceability, and admissibility, the same as hand-written signatures.