CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

BETWEEN

………………………………………

AND

……………………………………..

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 NON-DISCLOSURE AGREEMENT

THIS AGREEMENT is made the __________ day of _________ _________ 20…….

BETWEEN:

(1) …………………… an individual of ID/ Passport Number……………..… working and residing

in the Republic of Kenya and of Postal Address of P.O. Box Number ………….., Nairobi (“
hereinafter called “…………..”) which expression shall, where the context so admits, include its
successors in title and permitted assigns of the first part;
and
(2) …………………………… an individual of ID/ Passport Number…………….… working and
residing in the Republic of Kenya and of Postal Address of P.O. Box Number …………..,
Nairobi (“ hereinafter called “…………..”) which expression shall, where the context so admits,
include its successors in title and permitted assigns of the second part; and

WHEREAS

……………… and ………………….. (each of whom shall be hereinafter referred to as “Disclosing

Party” or “Receiving Party”, as appropriate) have declared an intention to enter discussions to
………………………………………………….. (the “Transaction”), it is envisaged that
…………………….. and ……………………….. may from time to time exchange Confidential
Information (as defined below) necessary for purposes of progressing and completing the contemplated
Transaction. In consideration of the mutual promises and covenants contained in this Agreement, and
the mutual disclosure of Confidential Information to each other, the parties hereto agree as follows:

IT IS HEREBY AGREED

1. Interpretation

1.1 In this Agreement: -

“Agents” means directors, officers, employees, agents, professional advisers, contractors or

sub-contractors, or any Group member;

“Confidential Information” means Information, in any form, including in soft (electronic

format) and hard (printed on paper) copy, relating to the Transaction and/or the business
carried on or proposed or intended to be carried on by the Disclosing Party and which is made
available for the purposes of the Transaction to the Receiving Party or its Agents by the
Disclosing Party or its Agents or recorded in agreed minutes following oral disclosure and any
other information otherwise made available by the Disclosing Party or its Agents to the
Receiving Party or its Agents, whether before, on or after the date of this Agreement, and
whether in writing or otherwise, including any information, analysis or specifications derived
from, containing or reflecting such information but excluding information which:-

(i) is publicly available at the time of its disclosure or becomes publicly available (other
than as result of disclosure by the Receiving Party or any of its Agents contrary to the
terms of this letter); or

(ii) was lawfully in the possession of the Receiving Party or its Agents (as can be
demonstrated by its written records or other reasonable evidence) free of any restriction
as to its use or disclosure prior to its being so disclosed; or

(iii) following such disclosure, becomes available to the Receiving Party or its Agents (as can
be demonstrated by its written records or other reasonable evidence) from a source other

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 than the Disclosing Party or its Agents, which source is not bound by any duty of
confidentiality owed, directly or indirectly, to the Disclosing Party in relation to such
information;

(iv) which is independently developed by the Receiving Party or its Agents (as evidenced by
documentation in the possession of the Receiving Party or itsAgents).

“Group” means (in respect to an entity) any subsidiary of that entity, any associate of that
entity, any holding company of the entity and any subsidiary of such holding company;

“Information” means all information in whatever form, including in soft (electronic format)
and hard (printed on paper) copy, including, without limitation, any information relating to
systems, operations, plans, intentions, market opportunities, know-how, trade secrets and
business affairs whether in writing, conveyed orally or by machine-readable medium.

“Effective Date” means the date upon which this undertaking is considered to govern the
disclosure of Confidential Information, which is the date of this Agreement.

2. Confidential Information

2.1 The Receiving Party will treat and keep all Confidential Information as secret and confidential
and will not, without the Disclosing Party’s prior written consent, directly or indirectly
communicate or disclose (whether in writing or orally or in any other manner) Confidential
Information to any other person other than in accordance with the terms of this Agreement.

2.2 The Receiving Party will only use the Confidential Information in relation to the Transaction
or for the subsequent performance of any contract between the parties in relation to the
Transaction.

2.3 Notwithstanding Clause 2.1, the Receiving Party may disclose Confidential Information:

(i) To those of its Agents who strictly need to know the Confidential Information for the sole
purpose set out in Clause 2.2 provided that the Receiving Party shall ensure that such
Agents are made aware of the contents of this Agreement, that the Confidential
Information is confidential and that they owe a duty of confidence to the Disclosing
Party. The Receiving Party shall at all times remain liable for any actions of such Agents
that would constitute a breach of this Agreement; or

(ii) to the extent required by law or the rules of any competent judicial, governmental,
supervisory or regulatory body or where required by the rules of any stock exchange on
which the shares or other securities of any Group member are listed or where required by
the laws or regulations of any country with jurisdiction over the affairs of any Group
member, subject to Clause 2.4 below.

2.4 In the event that the Receiving Party is required to disclose any Confidential Information in
accordance with Clause 2.3 (ii) above, it shall promptly notify the Disclosing Party in advance
of such disclosure and co-operate with the Disclosing Party regarding the form, nature,
content and purpose of such disclosure or any action which the Disclosing Party may
reasonably take to challenge the validity of such requirement.

2.5 In the event that any Confidential Information shall be copied, disclosed or used otherwise
than as permitted under this Agreement then, upon becoming aware of the same, without
prejudice to any rights or remedies of the Disclosing Party, the Receiving Party shall as soon
as practicable notify the Disclosing Party of such event and if requested take such steps

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 (including the institution of legal proceedings) as shall be necessary to remedy (if capable of
remedy) the default and/or to prevent further unauthorised copying, disclosure or use.

2.6 All Confidential Information shall remain the property of the Disclosing Party and its
disclosure shall not confer on the Receiving Party any rights, including intellectual property
rights, over the Confidential Information whatsoever beyond those contained in this
Agreement.

3. Records and return of Information

3.1 The Receiving Party agrees to ensure proper and secure storage of all Information and any
copies thereof to at least the same standard as the Receiving Party keeps its own Confidential
Information. The Receiving Party shall not make any copies or reproduce in any form any
Confidential Information except for the purpose of disclosure as permitted in accordance with
this Agreement.

3.2 The Receiving Party shall, within 7 days of receipt of a written demand from the Disclosing Party
or of its ceasing to be interested in the Transaction:

(i) return or destroy all written Confidential Information (including all copies) and
procure that any person to whom disclosure has been permitted under Clause 2.3(i)
above shall do the same; and

(ii) expunge or destroy any Confidential Information from any computer, word processor
or other device whatsoever into which it was copied, read or programmed by the
Receiving Party or on its behalf (including by any person to whom disclosure has
been made as permitted under Clause 2.3(i) above).

3.3 The Receiving Party shall on request supply a certificate signed by an authorised official of the
Receiving Party as to its full compliance with the requirements of Clause 3.2 (ii) above and
confirming that any person to whom disclosure has been made as permitted under Clause
2.3(i) above has done the same.

3.4 The provisions of this Clause 3 shall not apply in respect of Information which (i) the Receiving
Party must preserve in order to comply with applicable laws or regulations or any order of a
competent court or body having jurisdiction; and (ii) has been created pursuant to the Receiving
Party’sautomatic IT back-up procedures on systems not accessible with office equipment
available to individual users, provided that such Information will continue to be subject to the
terms of this Agreement.

4. Announcements

Neither party will make or permit to be made any announcement or disclosure of its
prospective interest in the Transaction to third parties without the prior written consent of the
other party.

Further, neither party shall make use of the other party’s name or any information acquired
through its dealings with the other party for publicity or marketing purposes without the prior
written consent of the other party.

5. Duration of Undertaking

The obligations of each party and its Agents to maintain confidentiality under this Agreement
shall be continuing and shall survive the expiration / termination of any discussions or
negotiations between the parties regarding the Transaction for a period of TWO (2) YEARS.

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6. Principal

Each party confirms that it is acting as principal and not as nominee, agent or broker for any
other person and that it will be responsible for any costs incurred by it or its advisers in
considering or pursuing the Transaction and in complying with the terms of this Agreement.

7. Representations

Each party agrees that any Information made available to the Receiving Party or its Agents for
the purpose of negotiations or discussions in relation to the Transaction will not form the basis
of, or any representation in relation to, any contract, nor constitute an offer or invitation by the
Disclosing Party.

Except in the case of fraudulent misrepresentation, the Disclosing Party accepts no

responsibility for nor makes any representation or warranty, express or implied, with respect
to the accuracy, reliability or completeness of any Information made available to the
Receiving Party or its Agents.

8. Adequacy of damages

Without prejudice to any other rights or remedies of the Disclosing Party, the Receiving Party
acknowledges and agrees that damages would not be an adequate remedy for any breach by it
of the provisions of this Agreement and that the Disclosing Party shall be entitled to seek the
remedies of injunction, specific performance and other equitable relief for any threatened or
actual breach of any such provision by the Receiving Party or its Agents, and no proof of
special damages shall be necessary for the enforcement of the rights under this Agreement.

Nothing contained in this Agreement shall be construed as prohibiting the Disclosing Party
from pursuing any other remedies available to it, either at law or in equity, for any such
threatened or actual breach of this Agreement including specific performance, recovery of
damages or any right to indemnity under the terms of this Agreement or otherwise.

9. Indemnity

The Receiving Party undertakes to fully indemnify the Disclosing Party against only direct
costs, claims, demands or liabilities arising directly or indirectly out of a breach of its
obligations under this Agreement.

10. Data Protection

The Receiving Party warrants that it and its Agents have the appropriate technical and
organisational measures in place against unauthorised or unlawful processing of personal data
and against accidental loss or destruction of, or damage to, personal data held or processed by
them and will ensure that any Confidential Information will be held in accordance with these
measures and will be treated as if it was such personal data.

11. Termination

a) This agreement can be terminated at any time by either party giving 30 days’ written notice of
termination without assigning any reason for such termination;

b) Further either party may terminate this Agreement in the event of a material breach by the
Defaulting Party, the aggrieved party shall give a 14 days’ notice to the defaulting party to

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 remedy the breach. In the event that the breach is not remedied within the above period, the
aggrieved party shall have a right to terminate this agreement immediately.

c) The fore going is without prejudice to such other rights as the aggrieved Party may have at
law.

d) The termination of negotiations to enter into the agreement shall not affect either Party’s
obligations in respect of its undertaking under this agreement.

GENERAL PROVISIONS

12. All rights in the confidential information and confidential records are and shall at all times remain
vested in the party providing the same. No license or transfer to the Receiving Party under any
patent, copy right, trade mark, service mark, or any other intellectual property right is either
granted or implied here by the disclosure of the information to the Receiving Party.

13. Neither party may assign the benefit of this Agreement or any interest hereunder except with the
prior written consent of the other and also provided that such entity agrees in writing to be
bound by the terms of this agreement.

14. No failure or delay in exercising any right, power or privilege under this Agreement will operate
as a waiver of it, nor will any single or partial exercise of it preclude any further exercise or
the exercise of any right, power or privilege under this Agreement or otherwise.

15. The provisions of this Agreement shall supersede the provisions that may be contained in the
annexure herein.

If any provision of this Agreement is held by a court of competent jurisdiction to be

invalid under any applicable statute or rule of law, it shall to that extent be deemed
omitted and the remaining provisions of this Agreement shall remain in full force and
effect.

16. This Agreement may only be modified by a written agreement duly signed by persons
authorised on behalf of each party.

17. Nothing in this Agreement shall constitute the creation of a partnership, joint venture or
agency between the parties.

18. This Agreement will be governed by, and construed in accordance with, the Laws of the
Republic of Kenya and the parties irrevocably submit to the exclusive jurisdiction of
Kenyan courts.

19. If a dispute arises out of or in connection with this Agreement, including any question as to
its existence, validity or termination, the parties shall seek to resolve such dispute
amicably. For any dispute, which cannot be mutually resolved by the parties within thirty
(30) days of the negotiations, the parties agree to submit the matter to a single arbitrator
to be appointed by the parties jointly and failing agreement by the Chairman, for the time
being, of the Chartered Institute of Arbitrators Kenya Chapter. Such arbitration shall be
conducted in Nairobi, Kenya in accordance with the Kenyan laws of Arbitration as
amended from time to time. The decision of the arbitrator shall be final and binding upon
the Parties.

Save for the arbitral award, each party shall bear its own cost of the proceedings.

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 For purposes of this Agreement the Parties respective addresses shall be:

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

AND:

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

(ii) Any notice given by one Party to the other ("the Addressee") which:

(a) Is delivered by hand during the normal business hours of the Addressee at the
Addressee's Domicilium for the time being shall be deemed, to have been
received by the Addressee at the time of delivery;

(b) If transmitted by facsimile to the facsimile number forming a part of the

Addressee's Domicilium, be deemed to have been received by the Addressee one
Business Day after the date of dispatch.

(c) If sent by registered post, Seven (7) business days from the date of posting.

20. The Effective Date of this undertaking is the date of this Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective duly authorised representatives.

SIGNED by the authorized representative of )

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Signature: )
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Witnessed by: )
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Signature: )

SIGNED by )
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Name: )
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Position: )
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Signature: )

Witnessed by: )
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Signature: )

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