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NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 1st day of March, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC,
bodies corporate having offices in the City of Calgary, in the Province
of Alberta, (hereafter collectively referred to as "Push"),
- and -
XXXXX XXXXXXX, residing at the City of Calgary, in the Province of
Alberta, and LAMBDA SOFTWARE CORPORATION, a body corporate having an
office in the City of Calgary, in the Province of Alberta, (hereafter
collectively referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("xxx Xxxxxxx").
Now THEREFORE, in consideration of disclosure of Confidential
Information by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to
the Consultant or which thereafter enters the public domain
through no fault of the Consultant (but only after it becomes
part of the public domain);
(b) is already known to the Consultant at the time of its
disclosure to the Consultant by Push and is not subject to
confidential restrictions as can be proven by contemporaneous
documentation;
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(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in
the prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general
terms not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted
by Push to enable use of the Confidential Information for the
Purpose.
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
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4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year
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first above written.
PUSH TECHNOLOGIES INC. LAMBDA SOFTWARE CORPORATION
Per: /s/ Xxxx Xxxxxxx Per: /s/ Xxxxx Xxxxxxx
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Name: Xxxx Xxxxxxx Name: Xxxxx Xxxxxxx
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Title: Vice President Title: President
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/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
PUSH ENTERTAINMENT INC.
Per: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Vice President
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