CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
COLIGO GROUP (PTY) LTD
Registration number: 2020/670963/07
(“Disclosing and Receiving Party”)
1.1 The Parties wish to conduct discussions and negotiations relating to possibly establishing a mutual business relationship (“Purpose”) and, for this purpose, each Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”) certain Confidential Information (as defined below).
1.2 Nothing contained in this Confidentiality Agreement (“Agreement”) obliges the Disclosing Party to disclose its Confidential Information to, or to enter into any arrangement or agreement with, the Receiving Party. Any such arrangement or agreement will only become effective on signature of a written agreement reflecting that arrangement or agreement.
2. DEFINITIONS AND INTERPRETATION
2.1 For the purposes of this Agreement:
(a) “Affiliate” means, in relation to the Receiving Party, any subsidiary or holding company of the Receiving Party (direct or indirect) or any other direct or indirect subsidiary of any such holding company;
(b) “Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party, including, without limitation:
(i) the details of any discussions or negotiations relating to the Purpose;
(ii) information concerning its and/or any of its Affiliate’s affairs, assets, business, clients, contracts, customers, financial condition, intellectual property (whether registered or unregistered), knowhow, liabilities, markets, operations, products, projections, prospects, research and development, services, strategies and trade secrets,
but does not include any information which:
(iii) is or becomes generally available to or known by the public through no action of the Receiving Party or any of its Representatives (as defined below);
(iv) is or becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a person other than the Disclosing Party or its Representatives;
(v) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or his Representatives; or
(vi) has been independently acquired or developed by the Receiving Party or any of its Representatives without violating any of its obligations under this Agreement;
(c) “Representative” means, in relation to a Party, the directors, employees, officers, members, partners, accountants, attorneys, financial advisers, consultants, contractors and agents of such Party (and its Affiliates); and
(d) “Signature Date” means the date of signature of this Agreement by the Party signing last.
2.2 In this Agreement:
(a) clause headings are for convenience and reference only and shall not be used in its interpretation;
(b) words importing any gender include the other genders, the singular includes the plural (and vice versa) and natural persons include artificial or juristic persons (corporate and unincorporated) (and vice versa).
3.1 The confidentiality obligations contained in this Agreement will commence on the Signature Date, or to the extent that any Confidential Information has been disclosed by a Party prior to the Signature Date, this Agreement shall be deemed to have commenced on the date on which that disclosure was made.
This Agreement shall endure indefinitely until terminated by the Parties in writing, but the confidentiality obligations expressed herein will remain binding and will survive the termination of the Agreement
4. CONFIDENTIALITY UNDERTAKINGS
4.1 In consideration of receiving the Confidential Information, the Receiving Party must, and must cause its Representatives to:
(a) maintain such Confidential Information in strict confidence by using the same degree of care it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care;
(b) use such Confidential Information only for the Purpose and not disclose the Confidential Information to any other person whatsoever or exploit or use (directly or indirectly) the Confidential Information for any other purpose;
(c) disclose such Confidential Information only to such of its Representatives who have a need to know such Confidential Information in connection with the Purpose;
(d) notify the Disclosing Party immediately upon becoming aware that any Confidential Information may be disclosed or has been disclosed to an unauthorised third party;
(e) immediately take all such steps as are necessary to prevent any suspected or threatened breach of confidentiality of the Confidential Information; and
(f) promptly, within 7 days of receipt of a written request from the Disclosing Party, return all such Confidential Information to the Disclosing Party or destroy all analyses, compilations, documents, records and other materials of whatsoever nature which contain any Confidential Information (such destruction to be confirmed in writing by the Receiving Party).
4.2 The Receiving Party will be responsible for any breach of this Agreement by its Representatives.
4.3 The Receiving Party may not analyse, decompile or reverse engineer or allow or cause a third party to analyse, decompile or reverse engineer any Confidential Information for any purpose.
5. FORCED DISCLOSURE
5.1 Notwithstanding anything to the contrary herein contained, the Receiving Party’s undertakings in clause 4 shall not apply to the extent that any disclosure of any Confidential Information is required by any law, regulation, court of competent jurisdiction, recognised stock exchange on which either of the Parties may be listed, government department or other regulatory authority to be disclosed.
5.2 In the event that the Receiving Party is compelled to make a disclosure pursuant to clause 5.1, the Receiving Party:
(a) shall timeously inform the Disclosing Party by written notice of the compulsion to make the disclosure and consult with the Disclosing Party so as to afford the Disclosing Party a reasonable opportunity (i) to assess the scope and contents of the proposed disclosure and (ii) to take such steps or cause such steps to be taken to seek to mitigate the effects of or to avoid or limit the requirement for any such disclosure;
(b) pursuant to the Disclosing Party’s analysis under clause 5.2(a), shall obtain the Disclosing Party’s written consent prior to the forced disclosure, which consent shall not be unreasonably withheld, for the manner and content of such disclosure;
(c) in making any forced disclosure, shall disclose only the minimum information it is required to disclose; and
(d) in making any forced disclosure, shall take whatever steps as are necessary to obtain reliable written assurances from the person(s) to whom the forced disclosure is to be made that any Confidential Information that is disclosed will be treated confidentially by the person receiving same.
6. TITLE AND REPRESENTATIONS
6.1 The Parties record and agree that all Confidential Information disclosed to the Receiving Party and/or its Representatives is special, valuable and a unique proprietary asset of the Disclosing Party, which is confidential in nature and will at all times remain the property of the Disclosing Party.
6.2 The Parties further record and agree that the disclosure of any Confidential Information does not confer on the Receiving Party and/or its Representatives any rights of any nature whatsoever (including, but not limited to, any intellectual property rights) over such Confidential Information, beyond those contained in this Agreement.
6.3 Neither the Disclosing Party nor any of its Representatives accept responsibility for or make any representation, express or implied, or give any warranty with respect to the accuracy or completeness of the Confidential Information (or any verbal communication in connection therewith) and each Party hereby waives in favour of the other Party any liability which it may incur by reason of its use of, or reliance upon, any of the Confidential Information.
7. BREACH AND REMEDY
7.1 The Parties acknowledge that monetary damages may be an inadequate remedy for breach or threatened breach of this Agreement because of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached.
Therefore, the Disclosing Party will be entitled to seek interdictory relief and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement by the Receiving Party or any of its Representatives, in addition to and without prejudice to any other remedies available at law.
7.2 Any legal costs incurred by the Disclosing Party in enforcing its rights in terms of this Agreement will be recoverable from the Receiving Party on the attorney and own client scale.
8.1 The Parties acknowledge that any unauthorised disclosure or use of the Confidential Information or any unauthorised public announcement by the Receiving Party or its Representatives may cause irreparable harm to the Disclosing Party.
8.2 That being so, the Receiving Party indemnifies and holds the Disclosing Party harmless against all losses, costs, liabilities and damages (including, without limitation, any indirect or consequential losses or damages, loss of profits or loss of business) arising directly or indirectly in connection with any breach by the Receiving Party or its Representatives of their obligations under this Agreement. Nothing contained in this clause shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to it for such breach, including specific performance and the recovery of monetary damages.
9. RESTRAINT AND NON-COMPETE
9.1 The Receiving Party agrees that for a period of 12 months from the date of signature of this Agreement it will not, and will procure that its Representatives will not, solicit (i) the employ of any of the Disclosing Party’s employees or (ii) the custom of any of the Disclosing Party’s clients and/or customers, nor compete with the Disclosing Party or any business conducted by it, in South Africa, and the Receiving Party will procure that no related person to it (as that phrase is defined in section 2 of the Companies Act, 71 of 2008) does so.
9.2 Each of the undertakings contained in this clause 9 constitutes a separate and independent undertaking severable from the rest and may be enforced in whole or in part.
10.1 For the purposes of this Agreement, including the giving of notices and the serving of legal process, the parties choose the following addresses at which documents in legal proceedings in connection with this Agreement may be served (ie their domicilium citandi et executandi) at:
(a) Coligo Group (Pty) Ltd:
physical: 9 Kingfisher Drive, Fourways, Johannesburg, 2191
10.2 A notice given as set out above shall be deemed to have been duly given:
(a) if delivered by hand, on the date of delivery; or
(b) if sent by email, on the day that the email is transmitted, except that any email transmitted after 17h00 shall be deemed to have been received on the following business day, unless the contrary is proved.
10.3 A notice or communication actually received by a Party shall be an adequate notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address recorded above.
11.1 This Agreement contains all the express provisions agreed on by the Parties regarding the subject matter of the Agreement and supersedes and novates in its entirety any previous understandings or agreements between the Parties in respect thereof, and the Parties waive the right to rely on any alleged provision not expressly contained in this Agreement.
11.2 No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
11.3 The grant of any indulgence, extension of time or relaxation of any provision by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor.
11.4 If 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.
11.5 No Party shall be entitled, without the prior written consent of the other Party, to cede any or all of its rights or delegate any or all of its obligations under the Agreement to any third party.
11.6 Each Party shall bear its own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing and implementation of this Agreement.
11.7 The Parties shall at all times act in good faith towards each other and shall not bring each other into disrepute.
11.8 Each of the Parties undertakes at all times to do all such things, perform all such acts and take all such steps, within its power and control, as may be open to it and necessary for and incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
11.9 This Agreement is to be governed, interpreted and implemented in accordance with the laws of South Africa, and Parties consent and submit to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg) in respect of any proceedings relating to this Agreement.
11.10 This Agreement may be executed in counterparts, each of which shall be deemed to be an original and which together shall constitute one and the same Agreement.