Equine Connection

Confidentiality Agreement


NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETE AGREEMENT

 

This Agreement effective this   shall govern the disclosure of information between

EQUINE CONNECTION – THE ACADEMY OF EQUINE ASSISTED LEARNING INC.,

A corporation duly incorporated pursuant to the laws of the Province of Alberta, Canada (“the Disclosing Party”)

 

and

Name:  

Phone:  

Address:  

Country:  

Business Name and Address (If applicable):

(collectively, the “Parties”).

In connection with the Disclosing Party’s provision of a course and/or any related printed materials, virtual or digital information/material or oral information entitled The Certified Equine Assisted Learning Course (and all additions, business materials, or any materials provided during the course.) to the Receiving Party (the “Project”), the Disclosing Party intends to disclose proprietary confidential information and trade secrets to the Receiving Party for certain limited purposes. THIS ALSO INCLUDES ONLINE or VIRTUAL TRAINING. VIRTUAL TRAINING CAN NOT BE RECORDED AND SHALL ONLY BE VIEWED BY THE REGISTERED PARTY.

This Agreement is intended to govern the conditions attached to that disclosure.

1. Definition of Confidential Information

  1. In this agreement, the term “Confidential Information” shall mean non-public information disclosed to the Receiving Party whether in writing, orally, electronically, by or on behalf of the Disclosing Party whether furnished before or after the date of this agreement, which the Disclosing Party designates as being confidential information, or which under the circumstances of disclosure, ought to be treated as confidential.
  2. Confidential Information shall include, but is not limited to: all copyright in the Disclosing Party’s materials and work, including but not limited to, the Certified EAL Building Block ™ Program Series, the EAL Program and Certification Course, “The Heart of EAL” by Tamara McKinnon, and any developments and improvements thereof and the Disclosing Party’s online/virtual materials including its website at www.equineconnection.ca, Facebook and other social media presence, the name, Equine Connection which is Trademarked in Australia, Canada and the USA, technical or non-technical data, know-how, inventions, research or experimental work, patentable products inventions or designs, patent applications, design details and specifications, formulae, patterns, compilations, programs, devices, methods, techniques, processes, equipment and apparatus, drawings, financial data or information, price lists and pricing and sales policies, customer lists and customer information including prospective clients, investors, business and supplier relationships, business forecasts, sales and merchandising information, training and other manuals, course materials, procurement requirements, and data, marketing plans, business opportunities and the existence or status of negotiations in connection with the Project and any other information in any form which is not public and which may give the Disclosing Party an advantage over its competitors who do not know or use it.
  3. Where the Confidential Information combines information within the public domain or information already in the possession of the Receiving Party, but the combination is not in the public domain, the Parties agree that the combination shall constitute Confidential Information.
  4. Confidential Information shall not include information that: (a) the Receiving Party can show at the time of disclosure is generally available to the public other than through a breach of this agreement; or (b) is required to be disclosed by a subpoena or by an order of a court of competent jurisdiction.
  5. In the event that the Receiving Party is required by law to disclose the Confidential Information it shall immediately provide written notice to the Disclosing Party and shall take all available measures to maintain the confidentiality of the Confidential Information, including by seeking a Protective Order.
  6. Where a receiving party is required to disclose the confidential information, whether by order of a court or as part of disclosure obligations in a lawsuit, the disclosing party shall be given reasonable notice by the Receiving Party so that it can ensure that such disclosure is made in a manner which continues to maintain the confidential nature of the information.

2. Ownership

The Receiving Party agrees and acknowledges that all Confidential Information is and shall remain the property or commercial interest of the Disclosing Party and the Receiving Party agrees to hold the Confidential Information in trust for the benefit of the Disclosing Party.

3. Measures to Maintain Confidentiality

The Receiving Party agrees to take all reasonable measures to maintain the confidentiality of the Confidential Information including: (a) limiting the disclosure of the Confidential Information to any third parties or employees on a need-to-know basis and ensuring that such third parties and employees undertake in writing to abide by the terms of this Agreement; (b) keeping the Confidential Information secured when not in use; (c) ensuring that the Confidential Information is not copied, altered or reproduced without the prior written consent of the Disclosing Party; and (d) restraining related persons or members of the Receiving Party from any disclosure or use of the Confidential Information other than those permitted under the terms of this Agreement.

4. Term of the Obligations Regarding Confidential Information

The obligations of confidence shall survive the termination of the Parties’ relationship and this Agreement and the Receiving Party agrees not to disclose or use the Confidential Information, save for the permitted uses, in perpetuity.

5. Permitted Uses

  1. The Receiving Party agrees that it shall use the Confidential Information solely for the purpose of participating in the Project and agrees not to disclose or use the Confidential Information for any other purpose without the prior written consent of the Disclosing Party.
  2. Where the Receiving Party undertakes the Project in order to certify as an EAL Facilitator Trainer or in any similar capacity where the further and ongoing transmission of the Confidential Information will be required as a reasonable outcome of the nature of the Project, then Receiving Party is hereby given consent to disclose the Confidential Information for the purposes of creating and building an ongoing business which uses horses to assist the learning process using the methods disclosed in the Confidential Information pursuant to this Agreement and any additional Certification Agreement executed by the Receiving Party and its Rules for Certification as amended from time to time, and undertakes to ensure that all their clients as enrolled in their courses will be bound in writing to substantially the same confidentiality obligations as contained herein prior to disclosing any Confidential Information to them. In the event of a breach of this clause, the Certification of the Receiving Party and the continued permission to use the Confidential Information may, at the Disclosing Party’s sole discretion, be formally withdrawn, and the damages set out in paragraph 11 hereto shall become applicable.

6. Return of Confidential Information

Within five business days of a request made by the Disclosing Party, the Receiving Party shall return all copies of the Confidential Information and shall confirm in writing that it has destroyed any documentation and other materials the Receiving Party may have created incorporating any of the Confidential Information.

7. Indemnity

The Receiving Party shall indemnify the Disclosing Party in respect of any third party claim arising from or in connection with any breach of the Receiving Party’s obligations under this Agreement.

8. No License Granted

Nothing in this Agreement shall be construed to constitute the grant of a license, copyright or any other right to the Receiving Party with respect to the Confidential Information, unless specifically stated otherwise.

9. Non-Solicitation

Receiving Party covenants and agrees that for the duration of this Agreement and for a period of 24 months after this Agreement comes to an end for any reason, Receiving Party shall not directly or indirectly solicit, approach or accept any approach from any of the Disclosing Party’s existing or past employees, or existing or past customers or clients with whom Receiving Party has or had business dealings or rendered services to, or any Prospective Customers or Clients whom Receiving Party knows or ought to know Disclosing Party has been soliciting for business as a Customer or Client, within the 12 months prior to the date of the termination of this Agreement.

Receiving Party further agrees not to interfere, in any way, with the Disclosing Party’s relationships with its clients and customers, employees or suppliers.

Receiving Party agrees that this non-solicitation obligation shall survive this agreement and the termination of this Agreement.

10. Non-Competition

Receiving Party acknowledges that as a result of Receiving Party’s position of trust with the Disclosing Party and Receiving Party’s access to Confidential Information during the course of this Agreement, Receiving Party will learn Confidential Information which would be of value to the Disclosing Party’s competitors. Therefore, Receiving Party covenants and agrees that for the duration of this Agreement and for a period of 24 months after this Agreement comes to an end for any reason, not to compete directly or indirectly with the Disclosing Party or to facilitate such competition by entering into any relationship with any competitor of the Disclosing Party in the Province of Alberta.

Receiving Party agrees that this non-competition obligation shall survive this Agreement and the termination of the Project.

11.  Agreed Remedies

  1. Pre-Assessed Damages for Solicitation of Employees and Customers and breach of Non- Competition Provisions (the “Fair Competition Clauses”) : In the event that Disclosing Party has prima facie proof of the breach by Receiving Party of the non-solicitation provisions of this Agreement, then Receiving Party agrees that Disclosing Party shall be entitled to pre-assessed, cumulative damages of $20,000.00 for each instance of such breach, or, in the alternative, such larger amount of damages as Disclosing Party is able to prove, at its sole election. Prima Facie proof of the breach of the Fair Competition Clauses shall include, but not be limited to:
    1. In the case of the non-solicitation of employees provisions, where any employee of Disclosing Party becomes an employee or independent contractor of Receiving Party, or otherwise becomes affiliated with Receiving Party or any person directly or indirectly related to Receiving Party in a business enterprise in competition with Disclosing Party in any one year; and
    2. In the case of the non-solicitation of customers or clients provisions, where more than two customers or clients of Disclosing Party in any one year become customers or clients of Receiving Party or any person directly or indirectly related to Receiving Party in a business enterprise in competition with Disclosing Party; and
    3. In the case of the non-competition provisions, where Receiving Party is found to be directly or indirectly to have appropriated or is appropriating, for Receiving Party’s benefit or the benefit of any other party, any opportunity to use or profit from, whether directly or indirectly, the Confidential Information to compete with Disclosing Party without obtaining the prior written consent of Disclosing Party.

11.2 Pre-Assessed Damages for Breach of Confidentiality:

In the event that Disclosing Party has prima facie proof of the breach of the confidentiality provisions of this Agreement, then Receiving Party agrees that Disclosing Party shall be entitled to pre-assessed damages of $20,000.00, for each instance of such breach, or, in the alternative, such larger amount of damages as Disclosing Party is able to prove, at its sole election.

  1. Receiving Party agrees that in the event of a breach or threatened breach of this Agreement, Disclosing Party shall be entitled to an injunction restraining Disclosing Party from breaching or further breaching the terms of this Agreement, without Disclosing Party having to first show or prove any actual damages sustained or incurred by Disclosing Party.
  2. Nothing in this Agreement shall in any way limit the rights or remedies available to Disclosing Party at law or in equity or under statute in the event of a breach or threatened breach of this Agreement.
  3. Disclosing Party shall be entitled to costs on a solicitor and client basis in the event that judgment is granted in its favour in respect of any breach by Receiving Party of this Agreement.
  4. Receiving Party acknowledges and agrees that any breach or threatened breach of this Agreement will cause irreparable harm to Disclosing Party and thus that the limits and restrictions contained in this Agreement are necessary to protect the legitimate business interests of Disclosing Party and to prevent the misuse and disclosure of Confidential Information. Furthermore, since damages caused to Disclosing Party through the misuse of the Confidential Information may be difficult if not impossible to properly quantify, Receiving Party agrees that the pre-assessed damages remedies listed herein are reasonable and necessary for the adequate protection of Disclosing Party’s legitimate business interests and an inherent part of the consideration for this Agreement. Receiving Party acknowledges that the opportunity to benefit from the Project with the Disclosing Party is sufficient compensation for the restrictive covenants made in this Agreement.

12. Severability

If any term of this agreement is held to be invalid or unenforceable, whether as a matter of law or public policy, including on the basis that a term is considered to be ambiguous or overly broad in scope, the Parties agree that all other terms shall nonetheless remain in full force and effect without regard to the invalid or unenforceable term(s). In this regard, the Parties acknowledge that the covenants contained in this agreement are necessary for the adequate protection of the Disclosing Party’s legitimate business interests and an inherent part of the consideration for the agreement. Accordingly, the Parties agree that a court or other trier-of-fact shall have the power to alter the terms of the covenants herein so as to render them capable of enforcement.

13. Governing Law and Attornment

This Agreement shall be interpreted exclusively in accordance with, and governed by the laws of the Province of Alberta and the laws of Canada applicable therein. The Receiving Party hereby irrevocably attorns to the jurisdiction of the courts of the judicial district of Calgary in the Province of Alberta, Canada.

14. Entire Agreement

This Agreement represents the entire agreement between the Parties and may not be amended except in writing signed by both Parties. The obligations contained herein shall be binding on the Parties successors and assigns.

15. Notices

  1. Any notice required to be given pursuant to this Agreement shall be given to the Parties hereto in writing at the following addresses or fax numbers, or such other addresses or fax numbers as the Parties may specify in writing from time to time and upon at least five business days’ notice prior to such change taking effect, save that notices of demand or commencement of any action or notices of any court application shall be made to the registered office of the corporation of the Disclosing or Receiving Party, as the case may be:
  2. To Disclosing Party at Box 149, Carseland AB. Canada T0J0M0,
    1. Attention: Kari Fulmek              Phone No: 403-519-6765           Email Address: kari@equineconnection.ca         
    2. To Receiving Party

      Name:  

      Phone:  

      Address:  

      Country:  

      Business Name and Address (If applicable):  

    3. Notices provided pursuant to this paragraph shall be effectively delivered on the day they are:
      1. delivered by hand to the parties at the above addresses;
      2. successfully transmitted to the Parties at the above fax numbers, or where a response by email to confirm the receipt of an email giving such notice is received from the Party to whom notice is given;
      3. if mailed by registered mail, on the 7th day after being deposited into a post box in Canada, provided that, if there should be at the time of mailing or between the time of mailing and the lapse of seven days, a postal strike, slow down or other labour dispute which may affect the delivery of such notice by mail, then such notice shall only be effective when actually received by that party.

16. Survival of Terms:

Termination of this Agreement shall not affect those provisions which by their nature are intended to survive such termination, including but not limited to any Confidentiality, Non-Competition and Non-Solicitation provisions contained in this Agreement.

 

IN WITNESS WHEREOF the parties have executed this agreement as of the

 

EQUINE CONNECTION

– THE ACADEMY OF EQUINE ASSISTED LEARNING INC.

Disclosing Party

 

Per:      KARI FULMEK 

Receiving Party Signature

 

 

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Signature Certificate
Document name: Confidentiality Agreement
lock iconUnique Document ID: bfab340f69c24efc7a05809c4e6ddb08a746a95c
Timestamp Audit
February 7, 2023 5:59 pm MSTConfidentiality Agreement Uploaded by Kari Fulmek - kari@equineconnection.ca IP 158.62.68.59
July 31, 2023 5:46 pm MSTKari - kari@equineconnection.ca added by Kari Fulmek - kari@equineconnection.ca as a CC'd Recipient Ip: 158.62.68.59