BI-LATERAL NON-DISCLOSURE AGREEMENT

A.Keystone Electronic Solutions CC, registered in terms of the laws of the Republic of South Africa, with registration number 2007/091802/23, of 469 Julius Jeppe Street, Waterkloof, Pretoria, South Africa (“KSES”); and

B.[INSERT COMPANY NAME], registered in terms of the laws of South Africa [AMEND APPROPRIATELY IF PARTY INCORPORATED IN ANOTHER COUNTRY], with registration number [INSERT REGISTRATION NUMBER] of [INSERT ADDRESS], including its holding company and subsidiaries as well as subsidiaries of its holding company from time to time (as such terms are defined in the Companies Act, 1973) (“the Counterpart”).

alternatively (delete whatever is not applicable)

  1. [INSERT CLOSE CORPOATION NAME], a close corporation with limited liability, registered in terms of the laws of South Africa [AMEND APPROPRIATELY IF PARTY INCORPORATED IN ANOTHER COUNTRY], with registration number [INSERT REGISTRATION NUMBER] of [INSERT ADDRESS], including its subsidiaries from time to time (as such terms are defined in the Close Corporations Act, 1984) (“the Counterpart”).

alternatively (delete whatever is not applicable)

  1. [INSERT INSTITUTION NAME], a university or institution of higher learning, duly incorporated in terms of the applicable law of that particular institution of [INSERT ADDRESS], including its employees, researchers or funders from time to time (“the Counterpart”).
  1. INTRODUCTION

1.1. The Parties record that they wish to enter into negotiations regarding a mutual business interest concerning [INSERT FULL DESCRIPTION OF PROPOSED BUSINESS VENTURE].

1.2. In the course of such negotiations, the Parties will disclose their respective Confidential Information to each other.Such disclosures shall be dealt with in accordance with this Agreement. Furthermore, each of the Parties acknowledges and agrees that each has a proprietary interest in that Party’s own Confidential Information and is entitled to protect and preserve the Confidential Information by means of the terms provided for in this Agreement.

  1. DEFINITIONS

In this Agreement, unless the context otherwise indicates:

2.1. “BUSINESS DAY” means any day other than a Saturday, Sunday or any official public holiday within the Republic of South Africa;

2.2. “CONFIDENTIAL INFORMATION” means all information, without limitation, of whatsoever nature:

2.2.1. not readily available in the ordinary course of business to the competitors of the Disclosing Party;

2.2.2. relating to the Disclosing Party’s business, operations, processes, drawings, sketches, plans, models, product information, know-how, design rights, trade secrets, software programs, formulae, software source documents, source codes, market opportunities, customers and business affairs;

2.2.3. relating to the relationship of the Disclosing Party with its customers and suppliers;

2.2.4. relating to the contents of this Agreement and any other information received pursuant to this Agreement; or

2.2.5. any information ascertainable by the inspection or analysis of samples.

Confidential Information does not include information that:

2.2.6. is required to be disclosed under any law or regulation, or by any governmental or competent authority – provided that the Receiving Party shall first consult the Disclosing Party on the proposed form, timing, nature and purpose of the disclosure; or

2.2.7. is in the public domain or enters into the public domain in any way – provided that the entry of such information into the public domain does not entail a breach of this Agreement by the Receiving Party; or

2.2.8. which the Receiving Party can show was within its possession or knowledge – such information being in its use or having been recorded in its files, computers or other recording media prior to receipt from the Disclosing Party, and which information was not previously acquired by the Receiving Party under any obligations of confidence or unlawfully; or

2.2.9. which is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or

2.2.10. which is hereafter disclosed by the Disclosing Party to a third party without restriction on disclosure or use, including without limitation, by way of a patent specification; or

2.2.11. which is hereafter disclosed or made available to the Receiving Party from a source other than the Disclosing Party, without breach by the Receiving Party or by such source of any obligation of confidentiality or non-use owed to the Disclosing Party; or

2.2.12. which is developed independently by the Receiving Party;

2.3. “DISCLOSING PARTY” means the Party to this Agreement disclosing Confidential Information to the Receiving Party;

2.4. “EFFECTIVE DATE” means [PLEASE INSERT DATE HERE];

2.5. “PARTY/IES” means a party/the parties to this Agreement, namely Keystone Electronic Solutions and the Counterpart, as the case may be;

2.6. “PURPOSE” means any discussions and negotiations between the Parties concerning or in connection with the establishment of a business relationship between the Parties as contemplated in clause ; and

2.7. “RECEIVING PARTY” means the Party to this Agreement receiving Confidential Information from the Disclosing Party.

  1. DURATION
  2. This Agreement will, irrespective of the Effective Date:
  3. be deemed to have commenced on the date upon which any part or element of the Confidential Information was disclosed to any Party or became known to a Party; and
  4. continue indefinitely until the Confidential Information loses its confidential nature by becoming generally known in the industry within which the mutual business interest as contemplated in clause arose.
  5. The Parties agree that the provision in clause is reasonable and necessary to protect their respective Confidential Information. However, the Parties may terminate the Agreement at a time sooner than that contemplated in , provided that the both agree in writing.
  6. UNDERTAKINGS BY THE PARTIES

4.1.1. The Confidential Information disclosed by either Party is disclosed on condition that the Receiving Party shall:

4.1.2. from the moment this Agreement has commenced in terms of clause , not use or disclose any of the Confidential Information to any third party;

4.1.3. treat as strictly confidential all the Disclosing Party’s Confidential Information;

4.1.4. use the Confidential Information solely for the purpose contemplated in clause ;

4.1.5. not make any use of the Confidential Information, other than in connection with this Agreement or any subsequent agreement which may be entered into between the Parties, and thereafter the Party in possession of such Confidential Information shall make no further use, of any nature whatsoever, of the Confidential Information;

4.1.6. not use the Confidential Information in any manner prejudicial to the Disclosing Party;

4.1.7. not use the Confidential Information for the benefit of itself, directly or indirectly, or any third party except with the Disclosing Party’s prior, express written consent;

4.1.8. use its best efforts to protect such Confidential Information by applying thereto no lesser security measures and a degree of care than those which the Receiving Party applies to its own Confidential Information; and

4.1.9. not disclose or use any such Confidential Information without the express written permission of the Disclosing Party (except that a Party may disclose Confidential Information to its employees, agents, professional advisers, consultants, business partners, sub-contractors and/or associates only to the extent required for the Purpose and subject to clause – provided that the Receiving Party shall be liable for any breach of the undertakings contained in this Agreement by any of its employees, agents, professional advisers, consultants, business partners sub-contractors or associates).

4.2. The Receiving Party may not, in respect of any Confidential Information disclosed to the Receiving Party by the Disclosing Party:

4.2.1. reverse-engineer, decompile, disassemble or copy the Confidential Information (except that copies may be made for back-up purposes);

4.2.2. duplicate performance characteristics of the Confidential Information;

4.2.3. create a derivative work (including without limitation, a translation into another computer language) from any Confidential Information; or

4.2.4. make media translations of the Confidential Information.

4.3. The Receiving Party is aware that the duplication, copying or reproduction, in any form, of the whole or any part of the Confidential Information is expressly forbidden – except in each instance:

4.3.1. with the prior written consent of the Disclosing Party; and

4.3.2. provided that any copies or reproductions so made or reduced to writing shall, as with the Confidential Information, be the property of the Disclosing Party.

4.4. Records

4.4.1. The Receiving Party shall keep accurate and up-to-date records of:

4.4.1.1. the Confidential Information furnished to it;

4.4.1.2. any copies made thereof; and

4.4.1.3. the location of such Confidential Information.

4.5. In the event that:

4.5.1. the Parties cease the negotiations contemplated in clause or agree not to pursue the mutual business interest or conclude any further agreement; or

4.5.2. the Disclosing Party so requests in writing;

4.5.3. the Receiving Party shall immediately deliver to the Disclosing Party all documents, electronic data (whether on CD-Rom, diskette or otherwise), copies and other records relating to the Confidential Information which has been disclosed to it and (insofar as it is not possible to deliver any such data or records, for example data contained on the Receiving Party’s computer hard drive) the Receiving Party shall destroy or delete such data or records.

4.6. Remedies

4.6.1. The Parties hereby acknowledge that the disclosure of any Confidential Information in violation of the terms of this Agreement may cause irreparable harm to the Disclosing Party which cannot be fully compensated by a monetary award.

4.6.2. Without prejudice to the rights and remedies otherwise available, the Disclosing Party is entitled to seek urgent interim relief in a court of competent jurisdiction pending the outcome of the negotiations, mediation or decision of the arbitrator in clause (as the case may be from time to time) if the Receiving Party or any of its employees, agents, consultants, professional advisers, business partners, sub-contractors or associates breaches any provision of this Agreement.

4.7. Classified or restricted information

4.7.1. This Agreement may involve the exchange of classified or restricted information (which may or may not be Confidential Information), the handling of which shall be treated by the Parties according to the security procedures prescribed by the appropriate government.

4.8. Relationship between Parties

4.8.1. Except for the obligations of use and confidentiality in this Agreement, no other obligation of any kind is assumed or implied against either Party by virtue of the Parties’ meetings or conversations with respect to the Confidential Information exchanged. Each Party further acknowledges that this Agreement and any meetings and communications of the Parties relating to the same subject matter shall not:

4.8.1.1. constitute an offer, request, commitment, agreement or contract with the other to engage in any research, development or other work;

4.8.1.2. create a buyer-seller, sales representative, distribution, agency, joint venture, teaming or partnership relationship between the Parties; or

4.8.1.3. impair or restrict a Party’s right to make, procure or market any products, software or services, now or in the future, which may be competitive with those offered by the Disclosing Party, or which are the subject matter of this Agreement.

4.8.2. The Parties hereto agree that the restraints contained in this Agreement are fair and reasonable restraints in the circumstances of the negotiations between them.

4.9. Employees

4.9.1. A Party shall only disclose the Confidential Information to those of its employees, agents, professional advisers, consultants, business partners, sub-contractors or associates to whom it is essential to disclose such information, and a Party shall provide the other Parties with a list of such employees, agents, professional advisers, consultants, business partners, sub-contractors or associates prior to disclosing the Confidential Information to them.

4.9.2. Each Party hereby undertakes to inform those of its employees contemplated in of the existence of this Agreement and to obtain equivalent undertakings from each of them. Each Party shall use its best endeavours to ensure that its employees comply with this undertaking.

  1. GENERAL
  2. Each Party acknowledges that it does not enter into this Agreement on the basis of and does not rely on any representation, warranty or other provision, whether express or implied, except as expressly provided in this Agreement. All conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by the law of the Republic of South Africa.
  3. Each of the undertakings set out in this Agreement shall be deemed to be a separate and independent undertaking from each of the other undertakings and shall be separately enforceable, notwithstanding that it may appear with any other undertaking or is expressed conjunctively or disjunctively from or alternatively to any other undertaking. If the whole or any part of the undertaking in this Agreement is invalid or unenforceable for any reason, the validity of the rest of the undertakings shall not be affected.
  4. The provisions of the Agreement shall supersede and prevail over any other arrangement, either oral or written, as to the Confidential Information. This Agreement is intended by the Parties to be a final expression of their Agreement and a complete and exclusive statement of the terms thereof. This Agreement may not be amended except in writing, signed by the Parties hereto or their duly authorized representative.
  5. Each Party reserves all rights in its Confidential Information and no rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement. In particular no license is hereby granted either directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right now or in the future held, made, obtained or licensable by either Party.
  6. Any waiver by the Disclosing Party of a breach of any provision of this Agreement by the Receiving Party shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.
  7. Subject to the operation of clause , this Agreement is personal to the Parties and shall not be assigned, ceded or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.
  8. This Agreement shall be binding on and enforceable by the trustees, permitted assigns, liquidators or other legal successors of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s trustees, permitted assigns, liquidators, or other legal successors, as the case may be.
  9. This Agreement may be signed in two or more counterparts, one or more of which may be delivered via telefax, and the signed counterparts, taken together, shall constitute a binding agreement between the Parties.
  10. Each Party warrants that it is acting as principal and not as agent for any other person, whether disclosed or otherwise.
  11. Neither Party shall be liable for any errors, omissions, misjudgments or decisions made by the other Party in using or relying on any Confidential Information disclosed under this Agreement.
  12. Neither Party makes or gives, whether express or implied, any representations, warranties or undertakings as to the accuracy or completeness of any Confidential Information disclosed under this Agreement.
  13. GOVERNING LAW & DISPUTE RESOLUTION
  14. In the event of any dispute arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, then any Party may give written notice to the other Party to initiate the procedure set out below.
  15. The Parties shall first endeavor to settle the dispute by mediation.
  16. The Parties may agree on the mediation procedure and on the mediator and, failing agreement within five (5) days of the notice referred to in clause , the mediation shall take place in accordance with the United Nations Commission on International Trade Law (“UNCITRAL”) Model Conciliation Rules and the mediator shall be appointed by Tokiso Dispute Settlement (Proprietary) Limited (“Tokiso”).
  17. If for any reason, including lack of co-operation by the Parties, a dispute is not settled by mediation within thirty (30) days of the notice referred to in clause or such longer period of time as the Parties may agree to in writing, the dispute shall be settled by arbitration.
  18. The Parties may agree on the arbitration procedure and on the arbitrator and, failing agreement within five (5) days of the exhaustion of the period referred to in clause , the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute.
  19. The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa).
  20. Unless agreed otherwise, the mediation and the arbitration shall be administered by the Parties.
  21. The number of mediators shall be one (1) and the number of arbitrators shall be one (1).
  22. The place of the mediation and the arbitration shall be Cape Town, South Africa. [PLEASE NOTE THAT IF THE PARTIES ARE IN DIFFERENT COUNTRIES, A ‘NEUTRAL’ COUNTRY TO RESOLVE THE DISPUTE MAY BE SELECTED, BUT FROM A COST POINT OF VIEW WE CONSIDER CAPE TOWN BEST.]
  23. The governing law of the contract shall be the law of South Africa. [PLEASE NOTE THAT IF THE PARTIES ARE IN DIFFERENT COUNTRIES, THE LAW OF A ‘NEUTRAL’ COUNTRY MAY BE SELECTED.]
  24. The Parties irrevocably agree that the decision in the arbitration proceedings:
  25. shall be final and binding on the Parties;
  26. shall be carried into effect; and
  27. may be made an order of any court of competent jurisdiction.
  28. LIMITATION
  29. Notwithstanding anything to the contrary contained herein, any claim by the Disclosing Party against the Receiving Party howsoever arising shall in the aggregate be limited to USD100,000.00 (one hundred thousand USD). In any event, the Receiving Party will not be liable to the Disclosing Party for indirect, special or consequential damages, howsoever arising, whether or not caused by its employees, agents, consultants, professional advisers, business partners, sub-contractors and/or associates and regardless of form or cause of action. The provisions of this clause are also stipulated for the benefit of the employees, agents, consultants, professional advisers, business partners, sub-contractors and/or associates of the Receiving Party.
  30. COSTS
  31. Each Party shall bear its own costs (if any) in relation to the drafting of this Agreement and attendances incidental thereto.
  32. ADDRESSES
  33. Each party chooses the address set out opposite its name below as its address at which all notices, legal processes and other communications must be delivered for the purposes of this Agreement:

Keystone Electronic Solutions cc