This Non-Disclosure and Confidentiality Agreement (“Agreement”) is entered into by and between Innershell Solutions Corp. (“Provider”) and Client Name (“Client”), each individually referred to as the “Party” and, together, as the “Parties.”

WHEREAS, Provider has developed through substantial effort, research, time, and expense certain inventions, design concepts, methodologies, technical know-how, copyrightable material and trade secrets directed and related to Product Name (“Information”);

WHEREAS, Provider wishes to maintain the confidentiality of the Information and the protection of Provider’s intellectual property rights.

WHEREAS, one or both Parties wish to receive Confidential Information (as defined hereafter) from the other Party for the purpose of determining whether to enter a formal business relationship (the “Purpose”); and

WHEREAS, one or both Parties will disclose (each, a “Disclosing Party”) Confidential Information to the other Party (the “Receiving Party”), and the Parties agree that the release, use, and protection of any such Confidential Information disclosed is subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises herein set forth, the Parties agree on the following:

  1. Confidential Information. “Confidential Information” shall mean:
    1. All information disclosed relating to products, business, and operations including, but not limited to, financial documents and facilities, plans, personnel, customers, suppliers, manufacturing partners, marketing strategies, vendors, products, product development plans, ideas, research, development, dates, schedules, roadmap, technical product data, product samples, costs, sources, strategies, operations procedures, proprietary concepts, inventions, sales leads, sales data, customer lists, customer profiles, technical advice or knowledge, contractual agreements, price lists, supplier lists, sales estimates, product specifications, trade secrets, distribution methods, inventories, marketing strategies, source code, software, algorithms, data, drawings or schematics, blueprints, computer programs and systems and know-how or other intellectual property that may be at any time furnished, communicated, or delivered whether in oral, tangible, visual, electronic, or other form;
    2. The terms of any agreement, including this Agreement, and the discussions, negotiations, and proposal related to any agreement;
    3. Information acquired during any tours of facilities;
    4. All other non-public information provided by the Disclosing Party.
  2. Exclusions. The obligation of confidentiality with respect to Confidential Information will not apply to any information:
    1. If the information is or becomes publicly known and generally available other than as a result of prior unauthorized disclosure by Receiving Party;
    2. If the information is or was received by the Receiving Party from a third party source which, to the best knowledge of the Receiving Party, is or was not under a confidentiality obligation to the Disclosing Party with regard to such information;
    3. If the information is disclosed by the Receiving Party with the Disclosing Party’s prior written permission and approval;
    4. If the information is independently developed by the Receiving Party prior to disclosure by the Disclosing Party and without the use and benefit of any of the Disclosing Party’s Confidential Information;
    5. If the Receiving Party is legally compelled by applicable law, by any court, governmental agency or regulatory authority or by subpoena or discovery request in pending litigation but only if, to the extent lawful, the Receiving Party give prompt written notice of that fact to the Disclosing Party prior to disclosure so that the Disclosing Party may request a protective order or other remedy to prevent or limit such disclosure and in the absence of such protective order or other remedy, the Receiving Party may disclose only such portion of the Confidential Information which it is legally obligated to disclose.
  3. Non-Disclosure and Non-Use. With respect to Confidential Information:
    1. Receiving Party and its Representatives agree to retain the Confidential Information of the Disclosing Party in strict confidence, to protect the security, integrity and confidentiality of such information and to not permit unauthorized access to or unauthorized use, disclosure, publication or dissemination of Confidential Information except in conformity with this Agreement;
    2. Receiving Party shall adopt and/or maintain security processes and procedures to safeguard the confidentiality of all Confidential Information received by Disclosing Party using a reasonable degree of care, but not less than that degree of care used in safeguarding its own similar information or material;
    3. Without Disclosing Party’s prior written consent, Receiving Party shall not disclose to any other person, except to the extent of the provisions of the Exclusion paragraph;
    4. If there is an unauthorized disclosure or loss of any of the Confidential Information by Receiving Party, Receiving Party will promptly, at its own expense, notify Disclosing Party in writing and take all actions as may be necessary or reasonably requested by Disclosing Party to minimize any damage to the Disclosing Party or a third party as a result of the disclosure or loss;
  4. Governing Law. This Agreement, its interpretation, performance, and enforcement, and the rights and remedies of the Parties hereto shall be governed and construed according to the laws of the Province of Alberta, without regard to or application of choice-of-law rules or principles.
    1. The Parties consent to the personal jurisdiction of such courts and laws in any such proceeding. The parties hereto mutually acknowledge and agree that they shall not raise, in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with the forgoing.
    2. If a legal action or proceeding is commenced by either party in connection with the enforcement of this Agreement, the prevailing party shall be entitled to its costs and attorneys’ fees actually incurred in connection with such action or proceeding.
  5. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, and the remainder of this Agreement shall remain in full force and effect.
  6. Ownership. The Parties represent and warrant that they own their respective Confidential Information and are to disclose the same as contemplated herein. The Receiving Party shall not remove or alter any notice of copyright, trademark, logo, or legend or any other evidence of ownership, from any originals or copies of Confidential Information obtained from the Disclosing Party.
  7. No Warranty, Obligation. Neither Party makes any warranty or representation as to the performance, accuracy, completeness, or non-infringement of third-party rights, or its merchantability, or fitness for a particular purpose of any Confidential Information disclosed under this Agreement and both Parties acknowledge that all information is provided “AS IS.” Notwithstanding the preceding, the Parties represent and warrant that Confidential Information that it discloses shall not be knowingly false.
  8. Inventions and Intellectual Property. This Agreement does not constitute a license to any intellectual property disclosed hereunder. If any invention is conceived or developed during discussions entered into under this Agreement, the Parties agree that all rights, title, and interest in any such intellectual property which is based solely upon or arising solely from the Confidential Information of one Party shall belong to such Party. If intellectual property is developed that is based upon or arising from Confidential Information of both Parties, neither Party may use or disclose such intellectual property until the Parties have agreed upon a subsequent written agreement governing the ownership (and associated rights to use, disclose and/or have patented) of such intellectual property.
  9. Equitable Relief. Each party agrees that use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which:
    1. Money damages may not be a sufficient remedy for any breach of this Agreement by such party;
    2. The other party may be entitled to specific performance and injunction and other equitable relief with respect to any such breach;
    3. Such remedies will not be the exclusive remedies for any such breach, but will be in addition to all other remedies available at law or in equity;
    4. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final non-appealable order that Receiving Party, or any of its Representatives, has breached this Agreement, Receiving Party will be liable for reasonable legal fees and expenses incurred by Disclosing Party in connection with such litigation, including, but not limited to, any appeals.
  10. Return of Confidential Information. Upon the termination of this Agreement, the Receiving Party will ensure that all documents, memoranda, notes and other writings or electronic records prepared by it that include or reflect any Confidential Information are returned or destroyed as directed by the Disclosing Party.
  11. Amendment and Assignment. This Agreement shall not be modified or amended without the prior written consent by each of the Parties hereto. This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party. This Agreement shall apply to all successors in interest.
  12. Term. The Agreement shall terminate three years from the Effective Date of this Agreement. The opportunity to receive Confidential Information under this Agreement may be terminated at any time by either Party providing thirty (30) days prior written notice to the other party.
  13. Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, or return receipt requested. All notices shall be addressed to the party to be notified using the address that such party may designate upon reasonable notice to the other party.

This Agreement is effective as of the date by which both Parties sign below. In Witness Whereof, the Parties hereunto set their signatures by their respective authorized representatives.

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Authorized Representative Title
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