Sibanda & Zantwijk

CONFIDENTIALITY AGREEMENT

 

 

(RECIPROCAL)

 

 

1.  INTERPRETATION AND DEFINITIONS

 

1.1  In this agreement, unless inconsistent with, or otherwise indicated by the context:

 

1.1.1  “CompanyA” is ………………………………………………………………;

 

1.1.2  CompanyA’s address is …………………………………………………….

 

           ………………………………………………………………………………..;

 

1.1.3  “CompanyB” is ………………………………………………………………;

 

1.1.4  CompanyB’s address is …………………………………………………….

 

           ………………………………………………………………………………..;

 

1.1.5  “the Parties” are CompanyA and CompanyB;

 

1.1.6  “the Project” means ………………………………………………………….

 

           …………………………………………………………………………………

 

           ………………………………………………………………………………..;

 

1.1.7  "Confidential Information" means confidential information generally relating to the Project including, without limiting the generality of the aforegoing, all technical and design information, manufacturing techniques and specifications, processes, information concerning materials, design, technical and concept drawings, technical, marketing and sourcing information, business information generally, and other related materials of whatever description in which the disclosing Party has an interest in being kept confidential;

 

1.1.8  "Commencement Date" means the date of last signature of this agreement by the Parties.

 

1.2  Words in the singular include the plural and vice versa.

 

1.3  Words importing, and references to any one gender include each of the other two genders.

 

 

2.  PREAMBLE

 

2.1  The Parties [and their affiliates] possess valuable Confidential Information and have agreed to exchange aspects of their respective Confidential Information for the purpose of the Project.

 

2.2  Any Confidential Information disclosed between the Parties by virtue of such interaction is subject to the terms and conditions set out in this agreement.

 

 

3.  NON-DISCLOSURE

 

3.1  Each of the Parties retains all right, title and interest in and to its Confidential Information and each party acknowledges that it has no claim of any nature in and to the Confidential Information that is proprietary to the other Party.

 

3.2  Each of the Parties undertakes to maintain the confidentiality of any Confidential Information of the other Party [or its affiliates] to which it may gain or have gained access whether before or after the Commencement Date, and whether intentionally disclosed or inadvertently made available or exposed to the receiving Party. The receiving Party may not divulge or permit to be divulged to any person any aspect of the Confidential Information of the disclosing Party, save as may be authorised in writing by the disclosing Party or as may have been contemplated by the Parties and is necessary for the purpose of the Project, in which events such disclosure are subject to the provisions of clause 4 of this agreement.

 

3.3  Each of the Parties will abide by all the rules and procedures of the other Party designed to protect such other Party’s Confidential Information and shall take all such steps as may reasonably be necessary to prevent the Confidential Information of the other Party falling into the hands of an unauthorised third party.

 

3.4  Any documents and/or material embodying Confidential Information of either of the Parties [or its affiliates] which comes into the possession of the other Party or that may be generated by the other Party in the performance of the Project will (unless the disclosing Party provides its written consent to the contrary):

 

3.4.1  not be copied, reproduced, published or circulated by the receiving Party other than for those purposes contemplated by the Parties and only insofar as it is necessary for the purpose of the Project; and

 

3.4.2  be surrendered to the disclosing Party on demand, and in any event on the termination of the Project.

 

 

4.  DISCLOSURE TO PERSONNEL

 

4.1  Notwithstanding anything contained in clause 3, the receiving Party is entitled to disclose such aspects of the Confidential Information of the disclosing Party as may be relevant to one or more technically qualified employees or consultants of the receiving Party, provided that the employee or consultant concerned:

 

4.1.1  has a legitimate interest therein, and then only to the extent necessary for the purpose of the Project; and

 

4.1.2  is informed by the receiving Party of the confidential nature of the Confidential Information and the obligations of confidentiality to which such disclosure is subject.

 

4.2  The receiving Party shall notify the disclosing Party of the name of each person or entity to whom any Confidential Information of the disclosing Party has been disclosed in terms of this clause 4 as soon as practicable after such disclosure.

 

4.3  The receiving Party will ensure that any person to whom it discloses Confidential Information of the disclosing Party will observe and perform all of the covenants the receiving Party has accepted in this agreement as if such person had signed this agreement.

 

4.4  The receiving Party is responsible for any breach of the provisions of this agreement by any persons to whom Confidential Information has been disclosed in terms of clause 4.1.

 

 

5.  USE

Neither of the Parties will use or attempt to use the Confidential Information of the other Party for any purpose other than for those purposes authorised in writing by the other Party or for such purposes as may have been contemplated by the Parties. In any event, any use of the other Party’s Confidential Information will be limited to such use as is necessary for the purpose of the Project.

 

 

6.  EXCEPTIONS

 

6.1  The obligations and restraints set out in this agreement do not apply to information which:

 

6.1.1  is in fact lawfully in the public domain at the Commencement Date or lawfully comes into the public domain after the Commencement Date otherwise than as a result of the conduct of the receiving Party;

 

6.1.2  is already in the possession of the receiving Party [or its affiliates] at the Commencement Date and was not disclosed to the receiving Party by the disclosing Party; or

 

6.1.3  becomes available to the receiving Party [or its affiliates] from a party (other than the disclosing Party) not being subject to any obligation of confidentiality or secrecy to the disclosing Party;

 

6.2  The onus of proving that any one of the exceptions listed in sub-clauses 6.1.1 to 6.1.3 rests with the receiving Party.

 

 

7.  OBLIGATIONS ON TERMINATION OF THE PROJECT

 

7.1  On termination of the Project, each Party shall deliver up to the other Party all documents and/or material containing Confidential Information of the other Party [or its affiliates] in its possession or control, including any such documents and/or material generated as a consequence of the Project.

 

7.2  The rights, obligations and restraints imposed on the Parties in terms of this agreement will survive termination of the Project.

 

8. TERMINATION

 

Subject to clause 6, the provisions of this agreement will terminate after a period of [5 years] from the Commencement Date.

 

 

9.  INTERIM RELIEF

 

The Parties acknowledge that a breach of any of the covenants or provisions contained herein would cause the disclosing Party [or its affiliates] to suffer loss which could not be adequately compensated for by damages and that the Parties [or their affiliates] may, in addition to any other remedy or relief, enforce the performance of this agreement by interim interdict or specific performance upon application to a court of competent jurisdiction without proof of actual or special damage and notwithstanding that in any particular case damages may be readily quantifiable, and the receiving Party will not plead sufficiency of damages as a defence in the proceeding for such interim relief.

 

 

10.  MISCELLANEOUS

 

No amendment, alteration, addition, variation or consensual cancellation of this agreement will be valid unless in writing and signed by the Parties.

 

 

11.  WAIVER

 

11.1  No waiver of any of the terms or conditions of this agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same and any such waiver will be effective only in the specific instance and for the purpose given.

 

11.2  No failure or delay on the part of a Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

 

12.  SEVERABILITY

 

In the event that any of the provisions of this agreement are found to be invalid, unlawful, or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

 

 

13.  JURISDICTION

 

This agreement is governed by South African law and the Parties hereby irrevocably agree to the jurisdiction of the High Courts of South Africa in respect of any dispute flowing from this agreement.

 

 

 

DATED AT _____________________ THIS ______ DAY OF ________________2008

 

 

 

_______________________________________

For:  CompanyA

Duly authorised

 

 

 

DATED AT _____________________ THIS ______ DAY OF ________________2008

 

 

 

_______________________________________

For:  CompanyB

Duly authorised

 

 

(c) Sibanda & Zantwijk IP Attorneys, 2007 

(Free template available from www.zaiplaw.co.za)

 

[See MyPatent's Patent Costs and Free Patent Tools]