Template confidentiality – project collaboration (i.f.o discloser)

DEFINITIONS

1. “Discloser” is ;
2. Discloser’s physical address is ;
3. “Recipient” is ;
4. Recipient’s physical address is ;
5. “Parties” are the Discloser and Recipient;
6. “Project” is ;
7. “Confidential Information” means confidential information proprietary to the Discloser generally relating to the Project including, without limiting the generality of the aforegoing, all related secret knowledge, technical information and specifications, manufacturing techniques, systems, processes, methods of production, designs, circuit diagrams, blueprints, electronic artwork, samples, devices, formulae, know-how, information concerning materials and marketing and business information generally; and
8. “Commencement Date” means the date of signature of this undertaking by the Recipient.

PREAMBLE

9. The Discloser has in its possession certain Confidential Information that the Discloser may disclose to the Recipient, or that the Recipient may be exposed, or have access to, which Confidential Information will be used solely for the purposes of the Project and be subject to the terms and conditions in this undertaking.

NON-DISCLOSURE

10. The Recipient acknowledges that all right, title and interest in and to the Confidential Information vests in the Discloser and that the Recipient has no claim of any nature in and to the Confidential Information
11. The Recipient undertakes to maintain the confidentiality of any Confidential Information to which the Recipient may gain or have gained access whether before or after the Commencement Date, whether intentionally disclosed or inadvertently made available or exposed to the Recipient by the Discloser. The Recipient may not divulge or permit to be divulged to any person any aspect of the Confidential Information, save as may be authorised in writing by the Discloser or as may have been contemplated by the Parties and is necessary for the purpose of the Project, in which events such disclosure will be subject to the provisions of Disclosure to Personnel section.
12. The Recipient shall abide by all rules and procedures of the Discloser to protect the Confidential Information and take all reasonable steps to prevent the Confidential Information falling into the hands of an unauthorised third party.
13. Any documents and/or material including Confidential Information which comes into the possession of the Recipient or that may be generated by the Recipient during the Project will (unless the Discloser provides its written consent to the contrary):
• be deemed to form part of the Confidential Information and subject to the provisions of this undertaking;
• be deemed to be the property of the Discloser;
• not be copied, reproduced, published or circulated by the Recipient other than for those purposes as may have been contemplated by the Parties and are necessary for the purpose of the Project; and
• be surrendered to the Discloser on demand and, in any event, upon termination of the Project.

DISCLOSURE TO PERSONNEL

14. Notwithstanding anything contained in the Non-Disclosure section, the Recipient is entitled to disclose such aspects of the Confidential Information as may be relevant to one or more of its technically qualified employees or consultants, provided that the employee or consultant concerned:
• has a legitimate interest therein, and then only to the extent necessary for the purpose of the Project; and
• is informed by the Recipient of the confidential nature of the Confidential Information and the obligations of confidentiality to which such disclosure are subject.
15. The Recipient shall provide to the Discloser the name of each person or entity to whom any Confidential Information has been disclosed in terms of this Disclosure to Personnel section as soon as practicable after such disclosure.
16. The Recipient will procure that any person to whom it discloses any Confidential Information accepts all the obligations that that the Recipient has accepted in this undertaking as if such person had signed this undertaking.
17. The Recipient is responsible for any breach of confidentiality by any persons to whom Confidential Information has been disclosed in terms of this Disclosure to Personnel section, and indemnifies the Discloser in this regard.

USE

18. The Recipient will not use or attempt to use the Confidential Information for any purpose other than for those purposes authorised in writing by the Discloser or as may have been contemplated and is necessary for the purpose of the Project and, in any event, the Recipient will not use or attempt to use Confidential Information in any manner that will cause or be likely to cause injury or loss to the Discloser.

EXCEPTIONS

19. The obligations set out in this undertaking do not apply to information which:
• is in fact lawfully in the public domain at the Commencement Date or lawfully comes into the public domain after the Commencement Date otherwise than as a result of the conduct of the Recipient; or
• is already in the possession of the Recipient at the Commencement Date and did not emanate from the Discloser
20. The Recipient bears the onus of proving either of the above exceptions.

OBLIGATIONS ON TERMINATION OF THE PROJECT

21. On termination of the Project, the Recipient shall deliver to the Discloser all documents and/or material containing Confidential Information in its possession or control.

TERMINATION

22. Subject to the Exceptions section, the obligations accepted by the Recipient hereunder will remain in force indefinitely.

RELIANCE ON INFORMATION

23. Neither the Discloser nor any other person making any representation, warranty or undertaking, express or implied, as to the accuracy, completeness or reasonableness of the Confidential Information will (save in the event of fraud) incur any liability for the use of, or reliance upon the Confidential Information by the Recipient or any other person.

INTERIM RELIEF

24. The Recipient acknowledges that a breach of any of the provisions contained herein would cause the Discloser to suffer loss which could not adequately be compensated for by damages and that the Discloser may, in addition to any other remedy or relief, enforce the performance of this undertaking by interim interdict or specific performance upon application to a court of competent jurisdiction without proof of actual or special damages and notwithstanding that in any particular case damages may be readily quantifiable, and the Recipient will not plead sufficiency of damages as a defence in the proceeding for such interim relief.

VARIATION

25. No amendment, alteration, addition, variation or consensual cancellation of this undertaking will be valid unless in writing and signed by the Parties.

WAIVER

26. No waiver of any of the terms or conditions of this undertaking will be binding for any purpose unless expressed in writing and signed by the Discloser and any such waiver will be effective only in the specific instance and for the purpose given.
27. No failure or delay on the part of the Discloser in exercising any right, power or privilege will operate as a waiver, 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.

LAW

28. This agreement is governed by the law of .

SEVERABILITY

29. In the event that any of the provisions 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.

SIGNED AT___________________________THIS________DAY OF___________________20______




_______________________________________
For: Recipient
Duly authorised