Confidentiality and Non Disclosure Agreement

Confidentiality and Non Disclosure Agreement

between

_________________________________________________

_________________________________________________

_________________________________________________

(“Receiving Party”)

And

______________________________

_________________________________________-

(“Disclosing Party”)

1. The Effective Date

Date of receiving the Confidential Information, or date of signature hereof, whichever is the earliest.

1. The Undertaking

The following annexures form part of this Undertaking:

• Annexure A –Terms and conditions of the Confidentiality Undertaking

• any other annexures attached hereto from time to time

1. Context of Undertaking

The Disclosing Party, in terms of an Agreement , undertook to pay certain commissions to The Receiving Party. Pursuant to such undertaking it is required that the Disclosing Party provide certain Confidential Information, as defined in Annexure A attached hereto, on a regular basis to the Receiving Party, which necessitates the signing of this separate Irrevocable Undertaking Regarding Confidentiality.

1. The Parties’ addresses and other contact details

The Receiving Party:

Physical address: ________________________

________________________

________________________

Postal address: PO Box _________________

________________________

Telephone number(s): ________________________

E-mail address: ________________________

The Disclosing Party:

Physical address: __________________________

__________________________

__________________________

__________________________

Postal address: P O Box ___________________

__________________________

Telephone number: ______________________

E-mail address: ______________________

Warranty

The signatories to this Undertaking warrant that they are duly authorised to sign the Undertaking:

Signature of or on behalf of the Receiving Party

Date

Place

Surname and first names of signatory

Capacity of signatory

Signature on behalf of the Disclosing Party

Date

Place

Surname and first names of signatory

Capacity of signatory

Annexure A

Terms and conditions of the Confidentiality Undertaking

1. Introduction

Whereas:

1.1 The Disclosing Party concluded a commission agreement with the Receiving party .

1.2 The Receiving Party will receive commission from the Disclosing Party, in terms of which it will be required that the Disclosing Party provide certain Confidential Information on a regular basis to the Receiving Party.

1.3 The Receiving Party has agreed to enter into this irrevocable Undertaking for the protection of the Disclosing Party’s interests.

1. Definitions

In this Undertaking, including any Annexures hereto, unless the context requires otherwise, the following expressions shall mean:

• “Agreement” the Commission Agreement entered into between the Disclosing Party and the Receiving Party;

2.2 “Confidential Information” all information, of whatever nature:

disclosed, revealed or otherwise made available by the Disclosing Party to the Receiving Party, and which pertains to, but is not limited to intellectual property rights, commercial and technical information, trade secrets, agreements (whether in writing or not) which exist at the time of revealing the content thereof to the Receiving Party, the content of all future agreements which the Disclosing Party intends to or may enter into with any other party (including any agreement with the Receiving Party), all knowledge obtained by way of research and development, irrespective of whether the aforementioned information that is revealed is applicable to technical, business or financial aspects of the Disclosing Party; and/or

which has been or may be obtained by the Receiving Party from the Disclosing Party, whether in writing or in electronic form or pursuant to discussions between the Receiving Party and the Disclosing Party, or which can be obtained by examination, testing, visual inspection or analysis, including without limitation, scientific, business or financial data (which includes but is not limited to data on Investments), know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas; and/or

analyses, concepts, compilations, studies and other material prepared by or in possession or control of the Disclosing Party which contain or otherwise reflect or are generated from any such information as is specified in this definition,

excluding information which is :

already in the possession or under the control of the Receiving Party otherwise than as a result of having been disclosed by the Disclosing Party to the Receiving Party,

generally available to the public by means other than as a result of a breach by the Receiving Party of any obligation contained herein, or

becomes available to the Parties on a non-confidential basis from a source which is not legally prohibited from disclosing it, or

is released from the provisions hereof in terms of a prior written consent provided by the Disclosing Party;

• “Disclosing Party” ___________________________;

• “Effective Date” the date recorded in the Undertaking as the effective date;

• “Parties” the Disclosing Party and the Receiving Party;

• “Receiving Party” the Receiving Party identified as such on the cover page of this Undertaking; and

• “Undertaking” this Irrevocable Undertaking regarding Confidentiality together with all written annexures, amendments, and / or exhibits attached to it from time to time.

1. The Parties agree as follows:

   • For the purposes of this Undertaking:

     • All references to the Disclosing Party shall be deemed to include the legal entities forming part of and/or associated with the Disclosing Party.

     • Any Confidential Information, which is disclosed to the Receiving Party in any manner, whether orally, visually, or in tangible form and whether directly or indirectly, and all copies thereof, shall remain confidential and may not be disclosed in any way to any person by the Receiving Party whether before or after the Effective Date.

• The Receiving Party undertakes that it:

  • shall hold, use and maintain the Confidential Information in the strictest confidence and in trust for the sole and exclusive benefit of performing the above mentioned activities;

  • shall not, without the prior written approval of the Disclosing Party, exploit, use for its own benefit, adapt, publish or otherwise disseminate to others, or permit the use by others for its benefit to the detriment of the Disclosing Party, any Confidential Information;

  • shall carefully restrict access to the Confidential Information to those of its employees who need such access for the purposes of performing its obligations under the Agreement or this Undertaking, and only to those employees who have been informed of and understand the contents of this Undertaking and undertake to abide by it;

  • shall advise each of the persons to whom it provides access to any of the Confidential Information that such persons are strictly prohibited from exploiting, making any use, publishing or otherwise disseminating to others, or permitting others to exploit, use for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information and that such person is bound by an undertaking in substantially the same form as this Undertaking and that the Receiving Party shall together with such person be jointly and severally liable to the Disclosing Party for any breach of confidentiality by such person;

  • other than to perform its obligations under the Agreement or this Undertaking, shall not make any copies of any materials containing Confidential Information for any purpose, including, without limitation, any purpose which is adverse to the interests of the Disclosing Party, without the Disclosing Party’s prior written approval. All copies will at all times remain the exclusive property of the Disclosing Party;

  • shall will not disclose any Confidential Information to any other person or entity without the prior written consent of the Disclosing Party, save as where such disclosure is required in terms of a court order, any statutory requirements or by any regulatory authority;

  • shall inform the Disclosing Party immediately of the termination of its relationship / agreement with the Client, and as a result the termination of the obligation to send the Confidential Information to the Disclosing Party;

  • shall on termination of any relationship with the Disclosing Party for any reason whatsoever, or whenever the Disclosing Party issues such a demand in writing, immediately cease to use such Confidential Information and shall return immediately to the Disclosing Party, or at the Disclosing Party’s option destroy all tangible materials and computer records and all copies and extracts thereof that contain or disclose such Confidential Information;

  • shall, in the event that the Receiving Party is ordered to disclose any of the Disclosing Party’s Confidential Information pursuant to a judicial or government request, requirement or order, promptly notify the Disclosing Party thereof and take any and all reasonable steps to assist the Disclosing Party in contesting such a request, requirement or order, or otherwise take all reasonable steps to protect the Disclosing Party’s rights prior to forced disclosure.

• In the event that the Receiving Party receives knowledge or at any time has any suspicion of any:

  • unauthorised disclosure (being disclosure other than permitted in terms of this Agreement);

  • misuse;

  • misappropriation;

  • loss;

  • security infringement involving the loss, breach or compromise; or

  • compromise in any way,

of the Confidential Information (regardless of the cause of disclosure and/or fault), the Receiving Party shall immediately notify the Disclosing Party in writing thereof, including by way of email to the address detailed in clause 4 above of the Agreement to which this Annexure is attached.

• If the Receiving Party is in doubt as to whether any information which has been disclosed to it, or to which it has gained access or possession, is Confidential Information, it undertakes to request in writing a ruling from the Disclosing Party, and agrees to abide by any reasonable ruling made in that regard by the Disclosing Party.

1. Commencement and Duration

This Undertaking shall commence on the Effective Date and shall endure indefinitely notwithstanding termination of any relationship between the parties for any reason whatsoever, subject to the terms and conditions set out hereunder.

1. Right to Relief

The Receiving Party recognizes that the unauthorised disclosure of Confidential Information may give rise to irreparable injury and acknowledges that the remedies other than injunctive relief may not be adequate. Accordingly, the Disclosing Party has the right to equitable injunctive relief to prevent the unauthorised disclosure of its Confidential Information as well as such damages or other relief as is occasioned by such unauthorised disclosure.

1. Notices

   • For all purposes of or arising out of this Undertaking including, without being limited to, the serving of any process, the Parties respectively choose domicilium citandi et executandi (“Address”) at the physical address set out in this Undertaking, provided that a Party may change its Address at any time to another address which is not a post office box or poste restante with written notice to the other Party.

   • Any notice that is required to be given in terms of this Undertaking may be given:

6.2.1 by hand during ordinary business hours at a Party’s Address in which case it shall, unless the contrary is proven, be deemed to have been received when so given;

6.2.2 by pre-paid registered priority mail to the Party’s postal address given in this Undertaking in which case, it shall, unless the contrary is proved, be deemed to have been received 5 (five) business days after it was so posted, provided that a written notice so posted which is simultaneously sent by telefax, or where appropriate by e-mail to a Party’s chosen telefax number or e-mail address shall, unless the contrary is proven, be deemed to have been received within three ordinary business hours after it was so telefaxed or e-mailed.

• Any written notice sent or transmitted in any other way and of which the addressee acknowledges receipt in any way whatsoever, shall nonetheless be a valid notice in terms of this Undertaking.

1. Governing Law

This Undertaking shall be governed by and construed in accordance with the laws of ____________________.

1. General

   • No alteration, cancellation or variation of, or addition to this Undertaking shall be of any force or effect unless reduced to writing and signed by the Parties or their fully authorised representatives.

   • Neither Party shall be bound by any undertakings or representations or warranties not recorded herein or in a subsequent written document signed by both Parties.

   • No indulgence or leniency or extension of time which either Party (“the grantor”) may grant or show the other (“the grantee”) shall in any way constitute a waiver of any of the rights of the grantor who shall not thereby be precluded from exercising any right against the grantee which may have arisen in the past or which might arise in the future.

   • This Undertaking shall be binding upon the Parties hereto, their successors hereto, their successors-in-title, administrators, executors and heirs.

   • The Receiving Party shall not be entitled to cede or assign any of its rights or obligations under this Undertaking without the prior written consent of the Disclosing Party.