The EXA Way Supplement

Non-Disclosure Agreement (NDA)

Page 255


1          CONTENTS
2          PURPOSE
3          DEFINITIONS
4          PERIOD

2       PURPOSE

This Agreement, between <Company 1>, with a location of business at <Legal Mailing Address 1> (herein referred to as "ThePrime Contractor") and <Company 2> with a location of business at <LegalMailing Address 2>, herein referred to as “The Subcontractor”, describes and defines the provisions that protect information that may be exchanged with respect to collaborate to bid upon and carry out the resulting contract for the <described project>.


3.1       In this entire document, together with all its schedules and attachments thereto, unless the context otherwise requires: 

“This Agreement”                   means  all the provisions, in their entirety, set out in this entire document, together with all its schedules and attachments thereto, as signed and executed by The Subcontractor and The Prime Contractor;

“The Subcontractor”               means  <Company 2>, as defined in Section 2 of This Agreement;

 “The Prime Contractor”         means  The <Company 1>, as defined in Section 2 of This Agreement;

“The Discloser”                      means  the party of This Agreement that discloses Confidential Information to the other party, as defined in Section 7.2 of This Agreement;

“Effective Date”                     means  the date This Agreement comes into effect, as defined in Section 4 of This Agreement; 

“he”, “his”, “him”                   mean   “he”, “his”, “him”, or “she”, “hers”, “her”, or “they”, “theirs”, “them”, or “it”, “its”, “it”, respectively, as the context warrants;

 “Confidential Information”    means  designated information disclosed between The Prime Contractor and The Subcontractor, as defined in Section 7.1 of This Agreement; 

“The Recipient”                      means  the party of This Agreement that receives Confidential Information from the other party, as defined in Section 7.2 of This Agreement; and 

“Termination Date”                means  the date This Agreement naturally terminates, as defined in Section 4 of This Agreement.

3.2      A defined term shall be interpreted to have the applicable meaning when used in its plural form. 

4       PERIOD

4.1       This Agreement shall become effective on <Start Date>, herein referred to as the Effective Date, and, unless terminated for other reasons set out in Section 12 of This Agreement, This Agreement shall naturally terminate on <End Date>, herein referred to as the Termination Date. 


5.1      The parties’ representatives for This Agreement are 

For The Subcontractor:

<Name 2>

<Title 2>

<Company Name 2>





For The Prime Contractor:


<Name 1>

<Title 1>

<Company Name 1>






5.2      Any notice, demand, request, statement or other writing required or permitted by This Agreement to either party shall be in writing to the other party as set forth in subsection 5.1 above or at such other address as shall have been furnished in writing by a party to This Agreement to the other party hereto.  Notice hereunder shall be deemed given when personally delivered, mailed by certified or registered mail, or if in the case of email transmission when received.

5.3      When providing any notices or correspondence to The Prime Contractor concerning This Agreement, please include The Prime Contract or identifier for This Agreement, which is 1234‑NDA.


6.1      The Prime Contractor and The Subcontractor agree to protect and use each other’s Confidential Information, as set out in This Agreement, including but not limited to those provisions set out in Section 8 of This Agreement.


7.1      Confidential Information shall be any and all information that The Prime Contractor discloses to The Subcontractor, and that The Subcontractor discloses to The Prime Contractor:

a)        in tangible form, and marked Confidential Information to The Discloser at the time of disclosure;  

b)        orally, in discussions that are prefaced with an oral notice of intent to discuss Confidential Information; and

c)        unless otherwise informed by The Discloser, in tangible form that originates from one or more third parties, regardless of whether or not such documents bear legends designating them as proprietary, and in cases of such documents originating from third parties, the Confidential Information shall be considered proprietary to, and the property of the relevant third parties.

7.2      For the purposes of This Agreement, and on a case-by-case basis, the party disclosing the Confidential Information shall herein be referred to as The Discloser, and the party receiving the Confidential Information shall herein be referred to as The Recipient.  

7.3      In providing Confidential Information, The Discloser makes no representation, either expressed or implied, as to its adequacy, accuracy, sufficiency, or freedom from defect.  


Subject to the other provisions set out in This Agreement, for Confidential Information that The Prime Contractor and The Subcontractor disclose to each other, between the Effective Date and the Termination Date, inclusively, The Recipient shall protect and use The Discloser’s Confidential Information in accordance with the provisions in Section 9of This Agreement.


9.1       The Recipient shall protect The Discloser’s Confidential Information by using at least the same degree of care, but no less than reasonable care, to prevent unauthorized use, disclosure, or publication of the Confidential Information, as the Recipient uses to protect his own Confidential Information of like nature.   

9.2      The Recipient: 

a)    shall not disclose The Discloser’s Confidential Information to third parties without the written consent of The Discloser, and even with such consent, The Recipient shall only disclose The Discloser’s Confidential Information to third parties after The Recipient:

 i.       has clearly established that such third parties specifically need to know The Discloser’s Confidential Information;

 ii.      has established and executed a confidentiality agreement of substantially the same scope as, but no less restrictive than, This Agreement with each of the third parties, and furthermore, said confidentiality agreements between The Recipient and the third parties shall contain provisions prohibiting any use or disclosure of any Confidential Information other than for the purpose as set out in This Agreement; and

 iii.     ensures The Discloser’s Confidential Information retains the Discloser’s original restrictive legends, as applicable; 

b)   shall, for the purpose of the provisions set out in subsection 9.2.a, above, consider third parties to include, but not be limited to, all companies with a direct or indirect ownership stake in it, his affiliates, joint venture members, co-contractors, subcontractors, independent contractors, and suppliers;  

c)     shall bind all of his partners, officers, executives, managers, employees, servants, and agents to This Agreement;

d)    shall not use or reproduce any Confidential Information except as may reasonably be required for The Recipient’s use for the purpose set out in Section 2;

e)    shall not reverse engineer, decompile or disassemble any product (hardware or software) received from The Discloser; and 

f)    shall not remove, overprint or deface notices of copyright or ownership, trademark logo or legend, if any, from any information or material obtained from The Discloser.


10.1   This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which:

a)    was in The Recipient’s possession without restriction before receipt of the Confidential Information from The Discloser;

b)    is or becomes a matter of public knowledge through no fault of The Recipient;

c)     is rightfully received by The Recipient from a third party without a duty of confidentiality;

d)    is disclosed by The Discloser to a third party without a duty of confidentiality on the third party; 

e)     is independently developed by The Recipient; or

f)     is disclosed by The Recipient with The Discloser's prior written approval.

10.2   No party shall be liable for the inadvertent or accidental disclosure of Confidential Information if such disclosure occurs despite the exercise of the same degree of care as such party normally takes to preserve and safeguard The Recipient’s own Confidential Information, but in any event no less than a reasonable degree of care. When made aware of an inadvertent or accidental disclosure, The Recipient shall promptly notify The Discloser thereof. In addition, The Recipient shall take prompt measures to obtain deletion or recovery of the Confidential Information and, if such actions are not possible, seek to mitigate the impact of such disclosure.


11.1   In the event The Recipient is directed to disclose The Discloser’s Confidential Information pursuant to a valid order from a court of competent jurisdiction, such disclosure shall not be deemed to be a breach of This Agreement, provided The Recipient:

a)     provides timely notice of such order to The Discloser; and

b)    co-operates reasonably with The Discloser's efforts to contest or limit the scope of such order.


12.1   This Agreement shall terminate:

a)    upon the Termination Date; or

 b)    upon the bankruptcy, insolvency, winding-up or dissolution of The Prime Contractor or The Subcontractor, in which event This Agreement shall terminate immediately upon delivery of a notice to terminate to the party which is bankrupt, insolvent, winding-up or dissolving, as the case may be, by the other party.

12.2   Upon termination, each party to This Agreement shall then return or destroy, as directed by the other party to This Agreement, all tangible documents provided by the other party.


13.1       This Agreement may not be amended except by an instrument in writing and signed by The Prime Contractor and The Subcontractor.

13.2       This Agreement and the rights and obligations hereunder may not be transferred or assigned by one party without the prior consent in writing of the other party hereto.

13.3       This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other party hereto.

13.4       This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.  

13.5       If any provision set out in This Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a recognized court of competent jurisdiction in the province set out in Section 13.9 of This Agreement, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances.

13.6       The headings contained in This Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of This Agreement. 

13.7       Except where specifically stated to the contrary, references to sections in This Agreement shall refer to sections in the main document, and not to its schedules or attachments thereto.

13.8       The provisions set out in Sections 8,9,10, and 11 of This Agreement shall survive the termination of This Agreement until three years following the Termination Date.  

13.9       This Agreement shall be governed, construed and interpreted in accordance with the laws of the Province of Ontario, Canada, which shall be deemed to be the proper law of This Agreement.

13.10     This Agreement is not intended to constitute, nor does it create a joint venture, partnership, teaming agreement or similar enforceable arrangement. 

13.11    Each party shall bear its own costs incurred under or in connection with this agreement.

13.12    Nothing in this agreement shall grant to a party the right to make any commitments of any kind for, or on behalf of, the other party without the prior written consent of such party.

13.13    Nothing in this agreement shall be construed as an obligation by a party to enter into a separate contract, subcontract, or other business relationship with the other party hereto.

13.14 Any failure by a party to exercise any rights, power, or privilege under This Agreement shall not constitute a waiver hereunder, nor shall any single or partial exercise thereof preclude any further exercise of any right, power, or privilege.   

13.15     The parties have required that this agreement and all documents and notices related thereto and/or resulting therefrom be drawn up in English be drafted in the English language.

13.16 The parties to This Agreement agree they shall protect This Agreement as Confidential Information.  

For: The Subcontractor






For: The Prime Contractor






***Disclaimer: The information presented in this supplement is for information purposes only. It is not intended, and may not be used, as legal or business advice. The author makes no representations of warranty, accuracy, or fit for purpose of the information herein. Use at your own risk.