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39 Dartcom - Template Confidentiality and NDA Updated 19-10-2021
39 Dartcom - Template Confidentiality and NDA Updated 19-10-2021
And
BETWEEN
AND
Whereas Dartcom and EV Associated Services (Pty) Ltd intend to enter into
discussions for the purposes of exploring the feasibility and possibility of entering into a
strategic alliance in terms whereof the Parties will inter alia:
For the use of their services, to service their respective customers and to make
the Parties services available to enable either party to be in a position to provide
services in different countries (“the Purpose”).
During the deliberations, the Parties will disclose to each other certain
confidential and proprietary information (confidential information, as defined
below).
The Parties agree that it is entirely reasonable to enter into this Confidentiality
and Non-Disclosure Agreement, which agreement is intended to regulate the
safekeeping, dissemination and partial disclosure of the confidential information
on the terms and conditions set forth herein.
The Parties agree to treat their discussions with absolute confidence and not to
divulge the facts or content of such discussions, save to the limit and extent as
may be provided for in this Agreement.
Each Party agrees that it will not disclose nor use any Confidential Information,
disclosed to it by the other Party.
1. INTERPRETATION
In this Agreement –
1.1 Clause headings are for convenience and are not to be used in its interpretation;
1.3.2 “Data Subject” shall have the meaning ascribed to it in Chapter 1 of POPI;
1.3.3 “Personal Information” shall have the meaning ascribed to it in Chapter 1 of
POPI;
1.3.4 “POPI” means the Protection of Personal Information Act, No 4 of 2013, as
amended from time to time, including any regulations and/or code of conduct
made under the Act;
1.3.5 “Privacy and Data Protection Conditions” shall mean the 8 (EIGHT)
statutory prescribed conditions for the lawful Processing of Personal Information
which is entered into entered into a Record and such conditions are listed in
Section 4(1) of POPI and are dealt with in detail in Part A of Chapter 3 of POPI;
1.3.6 “Processing” shall have the meaning ascribed to it in Chapter 1 of POPI;
1.3.7 “Record” shall have the meaning ascribed to it in Chapter 1 of POPI;
1.3.8 “The disclosing party” means any party who discloses information to the
other party;
1.3.9 “The parties” means the parties to this Agreement;
1.3.10 “The receiving party” means any party who receives or acquires the
confidential information of any other party under any circumstances
whatsoever.
1.4 Words and expressions defined in any clause shall, for the purposes of that
clause, bear the meaning assigned to such words and expressions in such
clause.
2.1 The parties agree, insofar as any party may be the receiving party–
3. TITLE
All information disclosed by the disclosing party to the receiving party is acknowledged
by the receiving party:
4. STANDARD OF CARE
The receiving party shall protect the confidential information of the disclosing party in
the same manner and with the same endeavour, which a reasonable man would use to
protect his own confidential information. Should the receiving party become aware of
any unauthorized copying, disclosure or use of confidential information, it shall
immediately notify the disclosing party thereof in writing and, without in any way
detracting from the disclosing party’s rights and remedies in terms of this Agreement,
take such steps as may be necessary to prevent a recurrence thereof.
5.1 The disclosing party may at any time request the receiving party to return any
material containing, pertaining to, or relating to the confidential information and may,
in addition, request the receiving party to furnish a written statement to the effect that
upon such return, the receiving party has not retained in its possession, or under its
control, either directly or indirectly, any such material.
5.2 Alternatively to clause 5.1, the receiving party shall, at the instance of the
disclosing party, destroy such material and furnish the disclosing party with a written
statement to the effect that such material has been destroyed.
5.3 The receiving party shall comply with a request in terms of this clause 5 within 3
(three) days of receipt of such request.
6. NON-SOLICITATION
Neither party will, for the duration of the investigation or formalization of a possible
commercial relationship between them or for a period of 12 (twelve) months thereafter,
without the prior written consent of the other party, make any offer of employment,
employ or engage any of the other party’s consultants, officers or employees who are
directly involved in the investigation or formalization of a possible commercial
relationship between Parties.
7.1 The Parties acknowledge and declare that they have a common interest in
promoting the potential business engagement to the exclusion of other parties.
Consequently, the Parties undertake not to circumvent or bypass any party in
respect of any transaction which may emanate between the Parties hereto.
7.2 In all respects the Parties acknowledge and agree that the appropriate protocol is
for the parties to work through each other on a right of first refusal basis, failing
which express written consent must be provided by the Party declining their right.
7.3 Wherever possible, all communications between the Parties relating to the
execution and payment in terms of the potential business engagement shall be
copied to the other Party.
8. APPLICABLE LAW
This Agreement will be governed by and construed in accordance with the law of the
Republic of South Africa and all disputes, actions and other matters relating thereto will
be determined in accordance with such law.
9. ASSIGNMENT
Neither Party may assign or otherwise transfer any of its rights or obligations (in whole
or in part) in terms of this Agreement without the prior written consent of the other
Party.
10.1 The parties hereto select as their respective domicilia citandi et executandi the
following physical addresses, and for the purposes of giving or sending any notice
provided for or required hereunder, the following:
Dartcom SA (Pty) Ltd: Attention – Mr Brett Emlyn Nash
Twenty One Industrial Estate
6 Padstone Street
10.2 Any notice addressed to a party at its physical or postal address shall be sent by
prepaid registered post, or delivered by hand, or sent by telefax. Any notice shall
be deemed to have been given:
10.2.1 if posted by prepaid registered post, 10 (ten) days after the date
of posting thereof;
11. WAIVER
No waiver of any of the terms and conditions of this Agreement will be binding or
effectual 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. No failure or delay on the part of any party in exercising any right,
power or privilege hereunder will operate as a waiver thereof, 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. COSTS
Each party shall bear and pay its own costs of or incidental to the drafting, preparation
and execution of this Agreement.
13. VISITS
In the event of one party visiting any of the facilities of the other party, the visiting
party undertakes that any further information which may come to its knowledge as a
result of any such visit, and any information relating to plant and equipment which may
be seen at such facilities, in masses of operation thereof and the various applications
thereof, shall be kept strictly confidential and that no such information will be divulged
to any third party and will not be made use of in any way other than for the purposes
contemplated in this Agreement, without the other party’s prior written consent.
14. SEVERABILTIY
In the event that any of the terms 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.
Both Parties’ obligations in terms of this agreement will survive the completion or
termination of this agreement or any other agreement between the parties.
16.1 In the event of a breach or threatened breach by either party of any of the
provisions of this Agreement (the “breaching party”), the other party shall be
entitled to injunctive, protective or other appropriate relief in any court of
competent jurisdiction restraining the breaching party from breaching the terms
hereof or from disclosing any confidential information to any person.
16.2 Nothing contained herein shall be construed as prohibiting the other party from
pursuing any other remedies available to it, either at law or in equity, for such
breach or threatened breach, including recovery of liquidated damages.
17.1 The Parties to the Agreement shall fully comply with the statutory obligations
contained in POPI, with which the Parties warrant that they are fully conversant
with at Signature Date, when Processing Personal Information obtained by the
Responsible Party and such Personal Information is entered into a Record. Without
limiting the generality of the aforesaid the Responsible Party shall ensure that the
Privacy and Data Protection Conditions are strictly adhered to when Processing the
Data Subject’s Personal Information.
18.1 This Agreement constitutes the whole of the Agreement between the parties
relating to the subject matter hereof and save as otherwise provided herein no
amendment, alteration, addition, variation or consensual cancellation will be of any
force or effect unless reduced to writing and signed by the parties or their duly
authorized representatives.
18.2 Subject to clause 18.1, the parties agree that no other terms or conditions,
whether oral or written, and whether express or implied will apply hereto.
WITNESS:
________________________ __________________________
(Print name in block letters) (Signature)
WITNESS:
________________________ __________________________
(Print name in block letters) (Signature)
Signed at on this of 20
______________ __________________
Name Signature Designation
WITNESSES:
1. ________________________ __________________________
(Print name in block letters) (Signature)
2. ________________________ __________________________
(Print name in block letters) (Signature)