Confidentiality And Non-Disclosure Agreement

1.  INTERPRETATION
   
   1.1. In this agreement, unless inconsistent with or otherwise indicated by the context:
   
   1.1.1. “the/this agreement” means the agreement as set out herein;
   1.1.2.1. “confidential information” means information of a confidential or proprietary nature in whatever form, and without limiting the generality of the term, shall include:
   1.1.2.1. any of the following information and/or material disclosed or communicated (before or after the signature of this agreement) by the disclosing party to the receiving party in connection with or arising out of the project:
   1.1.2.1.1. technical, scientific, commercial, financial or market information or trade secrets;
   1.1.2.1.2. agreements to which the disclosing party is a party;
   1.1.3. “the disclosing party” means the party disclosing the confidential information;
   1.1.4. “the parties” means the parties to this agreement;
   1.1.5. “the project” means the capital raising project and/or potential acquisitions of interests in certain target companies to be discussed by the parties;
   1.1.6. “the receiving party” means the party receiving the confidential

   1.2. The clause headings in this agreement are for reference purposes only and shall not be used in the interpretation thereof.

   1.3. Unless the context clearly indicates a contrary intention:
   1.3.1. expressions which denote:
   1.3.1.1. any reference to a gender includes the other genders;
   1.3.1.2. any reference to natural persons includes legal persons and vice versa;
   1.3.1.3. any reference to the singular includes the plural and vice versa;
   1.3.1.4. references to a “person” shall be construed as including references to an individual, firm, company, corporation, partnership, association, unincorporated body of persons, trust, a State or any Governmental Authority or any other entity whether acting in an individual, financing or other capacity and to such person’s permitted successors;
   1.3.2. the expression “including” and its derivates (such as “include” and “includes”) means including, but without limitation;

   1.4. If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in the relevant definition, effect shall be given thereto as if such provision is in the body of the agreement.

   1.5. The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the party responsible for the drafting thereof, shall not apply in the interpretation of this agreement.

2. RESTRICTIONS ON DISCLOSURE AND USE OF THE INFORMATION
   
   

   2.1. Thereceiving party may disclose the confidential information only to their advisors, representatives, officers and employees and then only such advisors, representatives, officers and employees to whom such disclosure is reasonably necessary, provided that such advisors, representatives, officers and employees are either bound by general confidentiality undertakings (whether oral or implied by professional obligation or otherwise) no less stringent than that contained in this agreement or agree, in writing, to be bound by the terms and conditions of this agreement prior to such

   2.2. The receiving party agree:
   
   2.2.1. not to disclose the confidential information to any third party for any reason or purpose whatsoever without the prior written consent of the disclosing party, save in accordance with the provisions of this agreement or any other agreement between the relevant receiving party and relevant disclosing party;
   2.2.2. not to utilise, employ, exploit or in any other manner whatsoever use the confidential information disclosed pursuant to the provisions of this agreement for any purpose whatsoever other than strictly in relation to the project and not to copy, reproduce, circulate or publish same;
   2.2.3. that the unauthorised or unlawful use or disclosure of the confidential information may cause irreparable loss, harm and damage to the disclosing party.

   Accordingly, the receiving party severally indemnifies and holds the disclosing parties harmless against any loss, action, expense, claim, harm or damage, of whatsoever nature, suffered or sustained by the disclosing party pursuant to a breach by that receiving party and/or any of its advisors, representatives, officers or employees of the provisions of this agreement.  Furthermore, the receiving party acknowledges that monetary damages may not be a sufficient remedy for unauthorised or unlawful use or disclosure of the confidential information and that the disclosing party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. 

   2.3. Subject to clauses 1 and 2.2, the receiving parties shall procure that any persons who may have the opportunity of receiving or having access to any of the confidential information of the disclosing parties are aware of the provisions of this agreement and agree in writing to comply herewith as if they were a party to this agreement. 

   2.4. Subject to clause 2, the receiving party shall be responsible for any breach of the terms of this agreement by any persons (including its representatives, officers and employees) to whom it discloses confidential information of the disclosing party, and shall at the receiving party’s sole expense take all reasonable measures to restrain such persons from prohibited or unauthorised use or disclosure of the disclosing party’s confidential information.

3. TITLE

All confidential information that is disclosed by the disclosing party to the receiving party:

3.1. is proprietary to the disclosing party; and

3.2. does not confer any rights of whatsoever nature in such confidential information to the receiving party.

4. STANDARD OF CARE

The receiving party agree to protect the confidential information of the disclosing party by using the same standard of care used to safeguard their own information of a confidential nature (but no less than a reasonable standard of care) and taking all reasonable steps to prevent any unauthorised disclosure of such confidential information.

5. RETURN OF INFORMATION
   
   5.1. The disclosing party may, at any time by way of written notice to the receiving party, require the receiving party to return any material containing, pertaining to or relating to confidential information of the disclosing party and to expunge such confidential information from any word processor, computer or other similar device into which it was entered or programmed, and may, in addition, require the receiving party to furnish a written statement (certified as correct by a director of each receiving party) to the effect that, upon such return, the receiving party has not retained in their possession, or under their control, either directly or indirectly, any such material.
   
   

   5.2. As an alternative to the return of the material contemplated above, the receiving party shall, at the instance of the disclosing party and upon its written request, destroy such material and furnish the disclosing party with a written statement (certified as correct by a director of the receiving parties) to the effect that such material has been destroyed.

   5.3. The receiving party shall comply with all requirements in terms of this clause 5 within 7 (seven) days of receipt of written notice thereof and shall not retain any extracts from the confidential information.

   5.4. Each receiving party shall be responsible for the return or destruction in terms of this clause 5 of all material containing confidential information of the disclosing party which has been disclosed by the receiving party in question to any third party (including the representatives, advisors, officers and employees of the receiving party) in terms of this.

6. EXCLUDED INFORMATION
   
   6.1. The obligations of the receiving party pursuant to the provisions of this agreement shall not apply to any information that:
   
   

   6.1.1. is known to or in the possession of the receiving party prior to disclosure thereof by the disclosing party;
   6.1.2. is or becomes publicly known, otherwise than pursuant to a breach of this agreement by the receiving party;
   6.1.3. is developed independently by the receiving party in circumstances that do not amount to a breach of the provisions of this agreement and without reference to the confidential information of the disclosing party;
   6.1.4. was received by the receiving party from a third party who is entitled to disclose same free of restriction and without obligation (whether contractual, legal, fiduciary or otherwise) to the disclosing party;
   6.1.5. is disclosed by the receiving parties to satisfy an order of a court of competent jurisdiction or to comply with provisions of any law or regulations in force from time to time, provided that in these circumstances, the receiving party shall advise the disclosing parties in writing prior to such disclosure to enable the disclosing party to take whatever steps they deem necessary to protect their interest in this regard: Provided further that the receiving party will disclose only that portion of the information which they are legally required to disclose and the receiving party will use their best endeavors to protect the confidentiality of such information to the widest extent possible in the circumstances.

   6.2. The onus shall be on the receiving party to demonstrate that the provisions of this clause apply.

7. NON-CIRCUMVENTION

CLIENT hereby irrevocably and unconditionally undertakes in favour of FINANCE PORTAL that it shall not circumvent, avoid or bypass or obviate the terms and conditions contained in this Agreement, or attempt to do so for any purpose whatsoever.

8. GOVERNING LAW

This agreement shall be governed by and construed and interpreted in accordance with the laws of South Africa.

9. WHOLE AGREEMENT

This agreement constitutes the whole agreement between the parties as the subject-matter hereof and no agreements, representations or warranties between the parties other than those set out herein are binding on the parties.  

10. VARIATION

No addition to or variation, consensual cancellation or novation of this agreement (including this clause 9) shall be of any force or effect unless reduced to writing and signed by the parties and no waiver of any right of a party arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by the party granting such waiver.

11. RELAXATION

No latitude, extension of time or other indulgence which may be given or allowed by either party to the other in respect of the performance of any obligation hereunder or the enforcement of any right arising from this agreement and no single or partial exercise of any right by a party shall under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of, or otherwise affect any of that party’s rights in terms of or arising from this agreement or estop such party from enforcing, at any time without notice, strict and punctual compliance with each and every provision or term hereof.

12. SEVERABILITY

If any provision in this agreement is found by any court of competent jurisdiction to be invalid, unlawful or unenforceable, such provision shall not invalidate the remaining provisions of this agreement.

13. DISCLAIMER OF INFORMATION

Save as may be provided for in any other agreement, the disclosing party makes no representation nor gives any warranty relating to the accuracy of the confidential information disclosed.  Save as may be provided for in any other agreement, the disclosing party does not provide any warranty that the materials shall be fault free or that same shall not contain any defects of whatsoever nature.  Save as may be provided for in any other agreement, the receiving party shall have no claim, nor shall the disclosing party be liable to the receiving party for any damages and/or losses arising from the use of the disclosing party’s confidential information or any inaccuracies, faults or defects therein.

14. NON-OBLIGATION

Nothing contained in this agreement shall be construed as creating an obligation or expectation on the part of a party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party.  Nothing contained in this agreement shall be construed as creating a joint venture, partnership or employment relationship between the parties.  Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty (express, implied or otherwise) on behalf of any other party.

15. ASSIGNMENT

No party shall be entitled to assign or otherwise transfer the benefit or burden of all or any part of this agreement without the prior written consent of the other parties.

16. DURATION

This agreement shall be binding on parties from the date of signature of the last signing party hereto and share endure for a period of 24 months thereafter. 

17. COUNTERPARTS

This agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute the same agreement.