Non Disclosure Agreement

NON DISCLOSURE AGREEMENT

In order to protect certain Confidential Information (as defined below):

(Registration number: ), having place of business at for itself and its subsidiaries and affiliates (“Discloser”);  and

(Registration number: ), having place of business at for itself and its subsidiaries and affiliates (“Participant”) in this Non-Disclosure Agreement (“Agreement”),

individually referred to as a (“party”) and collectively referred to as the (“parties”), agree that:

The Effective Date of this Non-Disclosure Agreement (“Agreement”) is  (“Effective Date”).

1 The parties disclosing Confidential Information (each, a “Discloser” or a "Disclosing Party") are (check all that apply): Discloser Participant.

2 The Confidential Information disclosed under this Agreement (“Confidential Information”) means any information or data which by its nature or content is identifiable as sensitive, confidential and/or proprietary to the Disclosing Party and/or any third party, or which is provided or disclosed in confidence and which the Disclosing Party or any person acting on its behalf may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. The Disclosing Party's Confidential Information shall include:

(i) information relating to strategic objectives and planning for both its existing and future needs;

(ii) information relating to either Party’s business activities, business relationships, products, services, clients and Staff;

(iii) technical, scientific, commercial, financial and market information and trade secrets; 

(iv) intellectual property that is proprietary to a Party or that is proprietary to a third party and in respect of which the Disclosing Party has rights of use or possession;

(v) Disclosing Party’s plans, designs, drawings, functional and technical requirements and specifications;

(vi) information concerning faults or defects in either Party’s systems, hardware and/or software or the incidence of such faults or defects;

(vii) agreements to which either Party is a party;

3 Confidential Information excludes information or data which

(a) is lawfully in the public domain or already in the possession of the Receiving Party from a source other than the Disclosing Party at the time of disclosure to the Receiving Party; or 

(b) subsequently becomes lawfully part of the public domain by publication or otherwise; or

(c) subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such Confidential Information; or

(d) is disclosed pursuant to a requirement or request by operation of law, regulation or court order; provided that the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions and provided further that the information disclosed in terms of this Agreement will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party's possession.

The determination of whether information is Confidential Information shall not be affected by whether such information is subject to, or protected by, common law or statute related to copyright, patent, trade or otherwise. This information includes information of Discloser.

4 This Agreement shall commence on the Effective Date and shall endure for calendar years.

5 Upon Discloser’s written request, except to the extent Confidential Information cannot be returned or destroyed (or deleted, in the case of information stored in computer hard drives or cloud solutions) or to the extent a Recipient is advised by legal counsel that complying with such request would be prohibited by applicable law, the Recipient will promptly return or destroy or delete all Confidential Information and all copies thereof. Any destruction of materials will be confirmed by the Recipient by means of a certificate executed by a duly authorized representative. 

6 Any Confidential Information that cannot be returned or destroyed or deleted will remain confidential for years, subject to the terms of this Agreement.

7 Each party shall not, directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass, or obviate the other party's interest with producers, sellers, buyers, brokers, dealers, distributors, financial institutions, technology owners, developers or any other party. This shall include but not be limited to discussions, correspondence, negotiations and written agreements whether in draft form or signed off between the parties.

8 A Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar information to protect the Confidential Information and to prevent:

(a) any use of Confidential Information not authorized in this Agreement;

(b) dissemination of Confidential Information to any employee or agent of Recipient without a need to know;

(c) communication of Confidential Information to any unauthorized third party; or

(d) publication of Confidential Information.

9 A Recipient will have a duty to protect Confidential Information:

(a) if it is marked or accompanied by documents clearly and conspicuously designating them as “confidential” or the equivalent; or

(b) if it is identified by the Discloser as confidential before, during or promptly after the presentation or communication.

10 Each Discloser warrants that it has the right to disclose its Confidential Information.

11 A Recipient will adhere to all applicable laws and regulations governing such party’s conduct in connection with this Agreement, including, without limitation, the Anti-Corruption Act 8 of 2003 and as amended by Anti-Corruption Amendment Act 10 of 2016, and any laws or regulations of the Republic of Namibia.

12 No party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set forth in this Agreement. Subject to the obligations of this Agreement, no party will be precluded from independently developing projects or pursuing business opportunities similar to those covered by this Agreement.  Each party retains sole discretion to assign or reassign the job responsibilities of its employees.

13 Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. The prevailing party in any action to enforce the provisions of this Agreement or to obtain injunctive relief shall be entitled to recovery of its reasonable attorneys' fees and costs, including any appellate fees and the costs, fees and expenses incurred.

14 The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such Confidential Information against any and all Recipients of such Confidential Information.

15 THIS AGREEMENT IS MADE UNDER, AND WILL BE CONSTRUED ACCORDING TO, THE LAWS OF NAMIBIA, WITHOUT APPLICATION OF CONFLICT OF LAWS PRINCIPLES.

16 This Agreement does not create any agency or partnership relationship. This Agreement will not be assignable or transferable without the prior written consent of the other party.  All additions or modifications to this Agreement must be made in writing and must be signed by all parties. The waiver of any breach of this Agreement will not operate or be interpreted as a waiver of any other subsequent breach of this Agreement.

17 This Agreement constitutes the entire agreement of the parties regarding the subject matter hereof, and supersedes any and all prior negotiations, understandings, and agreements between the parties relating thereto.