WHEREAS the Beneficiary wishes to obtain information about the business of
WHEREAS WowMoms will communicate certain Confidential Information (as defined hereinafter) to the Beneficiary;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
The preamble of this Agreement forms an integral part hereof.
The following definitions apply to this Agreement unless express terms or the context are
contrary thereto: “Confidential Information” means any technical, financial, economic or commercial
information, including any patent, copyright, industrial secret, trade secret, proprietary information, technique, sketch, drawing, model, invention, know-how, process, device, equipment or instrument directly owned, algorithm, software, source document or formula related directly or indirectly to WowMoms, including but without limiting the generality of the foregoing, information concerning research, experimental work, marketing plans, development, design, specifications, engineering, financial information, client lists, procurement needs, business plans, legal structure, commercial agreements and arrangements, price lists, profit margins, costs and personal information. “Representatives” means the employees of the Beneficiary, as well as any other person, company, corporation, subsidiary or entity authorized or designated by the Beneficiary to obtain Confidential Information on its behalf, including its legal advisors, accountants and financial advisors. “Person” or “Third Party” is understood in a broad sense and includes, without limiting the generality of the foregoing, any corporation, company, association, trust, limited liability company, joint venture or partnership, or any individual.
3. ACKNOWLEDGEMENT OF CONFIDENTIAL INFORMATION
Documentary information, including the information sent electronically, shall be treated as Confidential Information hereunder. Information disclosed orally or observed visually shall also be treated as Confidential Information.
4. NON-DISCLOSURE AND RESTRICTIONS REGARDING USE
The Beneficiary agrees that neither the Beneficiary, nor its Representatives, may disclose to Third Parties Confidential Information relayed by WowMoms, nor use such Confidential Information for any purpose unless authorized in writing by WowMoms. The Beneficiary shall be responsible for any breach hereof by its Representatives and shall take all the necessary measures to prevent them from making any unauthorized use or disclosure of the Confidential Information and to keep the number of its Representatives having access to the Confidential Information to a strict minimum. The Beneficiary agrees that its Representatives and itself shall be required to treat all the Confidential Information of WowMoms with the same care as that exercised for its own Confidential Information, and the Beneficiary declares that it shall exercise due diligence to safeguard its own Confidential Information. The Beneficiary undertakes to notify WowMoms forthwith of any unauthorized use or disclosure of Confidential Information. Confidential Information that has been or will be disclosed to the Beneficiary or to its Representatives, as well as all rights with respect to Confidential Information, shall remain the exclusive property of WowMoms, worldwide. The Beneficiary acknowledges that its Representatives and itself cannot, directly or indirectly, deal in the said Confidential Information, or use, exploit or disclose it to anyone for any purposes other than those described herein, unless authorized in writing by WowMoms. The Beneficiary covenants to safeguard the confidentiality of this Agreement.
5. COPIES OF CONFIDENTIAL INFORMATION
The Beneficiary agrees that its Representatives and itself are not allowed to copy Confidential Information mechanically or electronically, or input it in a computer that can be accessed via an intranet, the Internet or any other similar network, or reproduce it in any manner whatsoever without the express authorization of WowMoms in writing. Any copy shall contain, when being reproduced by the Beneficiary or its Representatives, the same notices and captions concerning ownership and confidentiality as those appearing in the original Confidential Information, unless expressly authorized otherwise in writing by WowMoms. The Beneficiary shall return to WowMoms any Confidential Information that it may have in its possession, within three (3) business days following a written request therefor from WowMoms and shall not keep any copies, extracts or total or partial reproduction thereof, except for the portion comprising the analyses, compilations, forecasts, studies or other documents prepared by the Beneficiary or its Representatives. Such portion of Confidential Information comprising analyses, compilations, forecasts, studies or other documents prepared by the Beneficiary or its Representatives shall be destroyed at the request of WowMoms.
6. EXCEPTIONS TO NON-DISCLOSURE
The duty of confidentiality and the restrictions on use and disclosure stated herein shall not apply to the Confidential Information for which the Beneficiary can prove clearly and convincingly that: a) On the effective date of this Agreement, it was in the public domain at the time of disclosure or became public thereafter, through no fault of the Beneficiary, its Representatives, its employees or any of its parent companies, subsidiaries or other affiliates; b) The Beneficiary had acquired knowledge thereof legitimately at the time of disclosure by WowMoms; c) WowMoms agreed in writing to exempt it from the provisions of this Agreement; or d) Such information had to be disclosed under the law, in which case the Beneficiary shall advise and consult WowMoms immediately to take all reasonable measures required by WowMoms, and collaborate with WowMoms concerning the terms of such disclosure or any measure that WowMoms could contemplate to challenge the validity of such a legal requirement.
7. DAMAGES AND REMEDIES
Damages arising from the disclosure or use of Confidential Information or any disclosure contrary to this Agreement by the Beneficiary or its Representatives in breach of this Agreement shall be deemed to cause WowMoms significant loss and irreparable harm likely to never be assessed accurately. As a result, the Beneficiary acknowledges that in the event of a violation of this nondisclosure Agreement, WowMoms will be entitled to claim a penalty of FIFTY THOUSAND US DOLLARS (USD $50,000.00) for each violation from the Beneficiary, apart from any other remedy that it could have at law. The Beneficiary acknowledges that such penalty is reasonable and necessary in order to safeguard the legitimate interests of WowMoms, and hereby waives invoking the abusive nature thereof. WowMoms will also be entitled to take any action for an injunction to prevent the breach or anticipatory breach of any of the undertakings or obligations of the Beneficiary or its Representatives hereunder.
8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws applicable in the Province of Quebec and the laws of Canada applicable thereto. The parties agree that the courts of the Province of Quebec shall have exclusive jurisdiction over any and all issues and disputes under this Agreement and further agree to elect domicile in the judicial district of Montreal for the hearing of any claims arising hereunder.
This Agreement constitutes the sole and unique agreement between the parties pertaining to the subject matter of this Agreement and supersedes all other prior or contemporaneous agreements between the parties. This Agreement may be amended only by way of a written agreement duly signed by each of the parties. This Agreement may be executed in counterparts, each of which when delivered, either in original, executed electronically or not, or facsimile form, taken together, shall be deemed to constitute one and the same instrument. Failure by WowMoms to insist that any of the undertakings contained herein be completely fulfilled or to always exercise any of its rights hereunder shall not be considered to be a waiver of such right, fulfillment or undertaking in the future. Unless otherwise provided, the waiver by WowMoms of any of its rights shall not be effective unless evidenced in writing, and any such waiver shall apply only to the rights and circumstances expressly contemplated by the said waiver. If for any reason, any term or provision of this Agreement or its application is determined to be illegal, unenforceable or invalid with respect to any person or under any circumstances, such term or provision shall then be considered independent, separate and divisible from the remainder of the Agreement, and its invalidity, unenforceability or illegality shall not affect or invalidate the remainder of the Agreement, which shall remain enforceable between the parties. The parties declare that they have specifically requested and do hereby confirm their request that the present Agreement be drafted in the English language. Les parties déclarent avoir spécifiquement demandé que la présente Convention soit rédigée en langue anglaise et confirment par les présentes leurs dites demandes.