In this Agreement, “Givex” refers to Givex Canada Corp. and “Company” means the above-referenced Company, all of its locations, its affiliates, directors, officers, employees and agents, if any.

WHEREAS Givex and Company are considering entering into a commercial relationship and/or pursuing one or more commercial opportunities on a collaborative basis (the “Opportunity”); and

WHEREAS Givex possesses certain business and technical information acquired through Givex’s expenditure of time, effort and money, including trade secrets, intellectual property, know-how and other Confidential Information of Givex; and

WHEREAS Company possesses certain business and technical information acquired through Company’s expenditure of time, effort and money, including trade secrets, intellectual property, know-how and other Confidential Information of Company; and

WHEREAS the parties wish to set out their respective rights and obligations with respect to the Confidential Information;
NOW THEREFORE, in consideration of the promises and the covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is affirmed by the parties, the parties hereby agree as follows:

1. In this Agreement,
“Confidential Information” means all proprietary, confidential and non-publicly available information provided by or on behalf of each party in its capacity as a Disclosing Party to the other party in its capacity as a Receiving Party (whether before or after the Effective Date hereof) and extends to all confidential, proprietary and non publicly available information, whether in oral, written, graphic, schematic or electronic form, which may include but not be limited to technical, technological and operational information, financial data, business plans, Personal Information, drawings, samples, devices, demonstrations, trade secrets, computer systems and software, results of research and other data. Notwithstanding the foregoing, the obligations of the Receiving Party under this Agreement shall not apply to information:

(a) which at the time of disclosure is already published or available to the trade or the public through no fault or breach of this Agreement on the part of the Receiving Party;
(b) which the Receiving Party can establish, by suitable documentation or other sufficient evidence, was in its possession prior to the date of disclosure of such Confidential Information by Disclosing Party;
(c) which is independently developed by the Receiving Party without the use of any Confidential Information;
(d) which is lawfully and in good faith obtained by Receiving Party from an independent third party without breach of this Agreement, as shown by documentation sufficient to establish the third party as a source of the Confidential Information, and not obtained by the third party from the Disclosing Party; or
(e) which the Receiving Party is by law required to disclose.
“Disclosing Party” means the party disclosing the Confidential Information to the Receiving Party;
“Personal Information” means the type of information regulated by Privacy Laws and collected, used or disclosed by Givex or Company, including all information about an identifiable individual;
“Privacy Laws” means all applicable laws governing the collection, use, disclosure or storage of personal information, including the Personal Information Protection and Electronic Documents Act.
“Purpose” means the evaluation of the Confidential Information by the Receiving Party so that the Receiving Party can determine whether or not it wishes to pursue the Opportunity.
“Receiving Party” means the party receiving Confidential Information from the Disclosing Party.
“Work Product” means all data, notes, analyses, compilations, forecasts, studies, interpretations or other documents prepared by the Receiving Party or its directors, officers, employees or advisors based on Confidential Information provided to it by the Disclosing Party.

2. The Disclosing Party shall, at its discretion, provide such portions of the Confidential Information to Receiving Party as is required for the Purpose. Nothing in this Agreement obligates Disclosing Party to make any particular disclosure of Confidential Information.

3. All right, title and interest in and to the Confidential Information, including patents, trademarks, copyrights and trade secrets, shall remain the exclusive property of the Disclosing Party and the Confidential Information shall be held in trust and confidence by the Receiving Party for the Disclosing Party. No interest, license or any right respecting the Confidential Information, other than expressly set out herein, is granted to the Receiving Party under this Agreement by implication or otherwise.

4. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, or guarantee to the Receiving Party by the Disclosing Party with respect to the Confidential Information infringing any rights of third parties, or the accuracy or performance of the Confidential Information. The Disclosing Party will not be held liable for any damages arising out of the use of the Confidential Information.

5. The Receiving Party shall not use the Confidential Information in any manner except as reasonably required for the Purpose. Notwithstanding the foregoing, the Receiving Party shall not use the Confidential Information for purposes of unfair competition. The Receiving Party agrees that it will promptly disclose to the Disclosing Party any real or potential conflict of interest of the Receiving Party based on its participation in any commercial relationship or activity which would compete or is otherwise in conflict with the Opportunity.

6. The Receiving Party shall use all reasonable efforts to protect Disclosing Party's interest in the Confidential Information and the Confidential Information itself, using a standard of care no less than the degree of care that Receiving Party would be reasonably expected to employ for its own similar Confidential Information. In particular, the Receiving Party shall not, directly or indirectly, disclose, allow access to, transmit or transfer the Confidential Information to a third party without the Disclosing Party's prior written consent. The Receiving Party shall disclose the Confidential Information only to those of its employees or professional advisors who have a need to know the Confidential Information in connection with the Purpose. The Receiving Party shall, prior to disclosing the Confidential Information to such employees or advisors, issue appropriate instructions to them to satisfy its obligations herein and obtain their agreement to receive and use the Confidential Information in accordance with the same conditions as contained in this Agreement. When requested by the Disclosing Party, the Receiving Party will promptly provide a list containing the full name and address of any person having access to or copies of the Confidential Information and the reason such access is necessary.

7. The Confidential Information shall not be published, copied, reproduced in any form or stored in a retrieval system or database by the Receiving Party without the prior written consent of the Disclosing Party, except for such copies and storage as may reasonably be required internally by the Receiving Party for the Purpose.

8. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation, inference or agreement that the Receiving Party will not develop or have developed products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.

9. Upon written request of the Disclosing Party, the Receiving Party shall return promptly to the Disclosing Party all written materials and documents, as well as any computer software or other media, made available or supplied by the Disclosing Party to the Receiving Party that contains Confidential Information, together with any copies thereof. Notwithstanding the foregoing, the parties agree that, to the extent that electronic records containing Confidential Information or Work Product are retained by the Receiving Party as data or records for the purposes of backup, recovery, contingency planning or business continuity planning or are otherwise not accessible in the ordinary course of business, such data or records, to the extent not otherwise permanently deleted or overwritten in the ordinary course of business, shall not be accessed except as required for backup, recovery, contingency planning, or business continuity purposes and, if restored or otherwise becoming accessible, will be permanently deleted forthwith. If requested by the Disclosing Party, the Receiving Party shall provide the disclosing party with a certificate certifying as to the complete return, destruction or deletion of all Confidential Information and all copies and manifestations thereof in accordance with the term of this paragraph.

10. The Receiving Party agrees that the disclosure of Confidential Information without the express written consent of the Disclosing Party will cause irreparable harm to the Disclosing Party, and that any breach of this Agreement by the Receiving Party will entitle the Disclosing Party to injunctive relief, in addition to any other legal remedies available to it, in any court of competent jurisdiction.

11. Company represents and warrants to Givex that the collection, use and storage of Personal Information by Company complies with all applicable Privacy Laws. Givex agrees to comply with all applicable Privacy Laws relating to the use, disclosure and protection of any Personal Information furnished by Company to Givex.

12. The Receiving Party shall indemnify and save harmless the Disclosing Party from all damages, losses, expenses and costs whatsoever resulting from the breach of this Agreement by the Receiving Party.

13. All notices required to be given under this Agreement shall be made in writing and sent to:
(a) in the case of Givex: Givex Canada Corp., 134 Peter Street, Suite 1400, Toronto, Ontario, Canada M5V 2H2, Attention: President; and
(b) in the case of the Company to the address at the head of this Agreement.

14. The Receiving Party’s obligations under this Agreement as to Confidential Information shall survive termination of this Agreement.

15. No modification, addition to or waiver of any right, obligation or default shall be effective unless in writing and signed by the party against whom the same is sought to be enforced.

16. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.

17. If any provision contained herein shall be declared invalid, illegal or unenforceable by a court of competent jurisdiction, such invalid, illegal, or unenforceable provision shall be severed from this Agreement and be ineffective only to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof.

18. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations other than as specified herein.

19. The parties to this Agreement are independent contractors. The parties confirm that they are not carrying on business in partnership or as a joint venture and that no aspect of this Agreement is to be construed so as to constitute a partnership or joint venture. Neither party shall represent to a third party that they are carrying on business in partnership or as a joint venture with each other.

20. This Agreement shall be governed by and construed in accordance with the laws of the laws of the Province of Ontario, and the laws of Canada applicable therein. Any and all disputes or controversies relating to or arising out of this Agreement shall be settled by the courts in Toronto, Ontario, with the exclusion of any other, even if more privileged.

21. This Agreement and any Schedules referred to herein constitute the entire agreement between the parties relating to the subject matter herein and supersedes all prior written or oral agreements, representations and other communications between the parties.

22. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. The counterparts of the Agreement may be executed and delivered by facsimile or other electronic means, and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received.