1.1      The Parties intend to provide each other with certain Confidential and/or Proprietary Information pertaining to their operations for the Purpose of Disclosure which Confidential and/or Proprietary Information shall be treated as confidential and/or proprietary as the case may be at all times. Whether or not the Parties conclude an agreement will not affect the validity of this Agreement.
1.2      The Parties wish to record the terms and conditions upon which each shall disclose Confidential and/or Proprietary Information to the other, which terms and conditions shall constitute a binding and enforceable agreement between the Parties and their agents.
1.3      This Agreement shall also bind the Parties, notwithstanding the date of signature hereof, in the event that either Party shall have disclosed any Confidential Information to the other Party prior to date of signature hereof.
1.4      For the purposes of this Agreement the Party which discloses Confidential information shall be referred to as the “Discloser” and the Party which receives the Confidential Information shall be referred to as the “Recipient.”

2.1      “Agreement” means this document, initialled and signed by the Parties;
2.2      “Confidential Information” means all Information which is confidential, whether proprietary or not or personal information of whatsoever nature or kind, including ‘personal information’ as defined in POPI;
2.3      “Discloser” means the Party that discloses Confidential and/or Proprietary Information, as the case may be;
2.4      “Effective Date” means irrespective of the date of signature hereof, the date of first disclosure;
2.5      “Information” means all present and future information, including but not limited to: technical, commercial or scientific information and/or financial concepts; know-how; processes; machinery; specifications; data; formulae; methodologies; copyrighted works, inventions, trade marks and designs, whether registered or not; memoranda; secrets; lists; reports; manuals; drawings and formulations; technical specifications; devices, all of which the Parties regard as proprietary and/or confidential, as the case may be, and intend to disclose to each other as provided in this Agreement, and all the details relating to negotiations between the Parties; 
2.6      “Parties” means VAS and agreeing company collectively and Party means either VAS or agreeing company depending on the context of the Agreement;
2.7      “POPI” means the Protection of Personal Information Act, No 4 of 2013, as amended or substituted from time to time;
2.8      “Proprietary Information” means all proprietary Information, whether confidential or not;
2.9      “Purpose of Disclosure” means for the purpose of inter alia facilitating discussions and negotiations pertaining to the conclusion of possible agreements between the Parties following the disclosure of the Confidential/Proprietary Information;
2.10 “Recipient” means a Party that receives Proprietary and/or Confidential Information, as the case may be

3.1      The Parties hereby agree:
3.1.1      to disclose to each other, certain Information for the Purposes of Disclosure; and
3.1.2      that all disclosures of such information from the Effective Date shall be subject to the provisions of this Agreement.

3.2      Each Party hereby represents and warrants to the Recipient that:
3.2.1      it owns, controls and/or lawfully possesses the Information;
3.2.2      has the right to disclose the Information in accordance with this Agreement; and
3.2.3      it complies with the provisions of POPI.
3.3 The Discloser shall only disclose the Information to the Recipient to the extent deemed necessary or desirable by the Discloser in its discretion.
3.4      In the absence of a written agreement to the contrary entered into and signed by the Parties, all Information disclosed to the Recipient shall be deemed to be confidential and valuable, and in the lawful possession of the Discloser.
3.5      The Recipient agrees that it will not, during or after the term of this Agreement as described in clause 12, disclose the Information to any third party for any reason or purpose whatsoever without the prior written consent of the Discloser, save in accordance with the provisions of this Agreement until such Information is in the public domain.  For avoidance of doubt, in this Agreement “third party” means any party other than the Parties (their holding and subsidiary companies or agents who shall be deemed to be bound by the provisions of this Agreement).
3.6      Without derogating from the generality of clause 3.5 above, the Recipient agrees to disclose within its own organisation Information received from the Discloser only to its employees or authorised contractors who are:
3.6.1      directly assigned to the Purpose of Disclosure by the Recipient;
3.6.2      have a bona fide need to receive such Information for the Purpose of Disclosure; and
3.6.3      have executed a confidentiality & non-circumvention agreement with the Recipient providing inter alia for, confidentiality, non-circumvention, return of information and improvements in accordance with this Agreement. 
3.7      Should the Recipient or any person or representative to which the Recipient has disclosed the Information, be legally compelled to disclose it, then the Recipient shall promptly notify the Discloser of this fact, to enable the Discloser to take such action as may be possible to prevent such disclosure and the Recipient undertakes to do all things reasonably necessary to enable the Discloser to proceed and to execute such documents as may be needed to permit the appropriate legal proceedings to be instituted and prosecuted by the Discloser, subject to the Discloser providing an acceptable indemnity to the Recipient in respect of costs arising from such proceedings.
3.8      The Recipient agrees:
3.8.1      not to utilise, exploit, publish or in any other manner whatsoever use the Information disclosed pursuant to the provisions of this Agreement for any purpose whatsoever without the prior written consent of the Discloser;
3.8.2 That the unauthorised disclosure of the Information to a third party may cause irreparable loss, harm and damage to the Discloser. Accordingly, the Recipient indemnifies and holds the Discloser harmless against any loss, claim, harm or damage, of whatever nature, suffered or sustained by the Discloser pursuant to a breach by the Recipient of the provisions of this Agreement.

4.1      The Receiving Party acknowledges and undertakes that, should it have access to and process (as such term is defined in POPI) personal information (as such term is defined in POPI) (“Personal Information”) of data subjects (as such term is defined in POPI) (“Data Subject/s”), the Receiving Party shall comply with all the relevant provisions of POPI in relation to all Personal Information received, and without prejudice to the generality of the foregoing, undertakes:
4.1.1      to use and process the Personal Information for the Purpose of Disclosure;
4.1.2      not to allow any unauthorised persons to access to the Personal Information;
4.1.3      not to do anything in relation to the Personal Information that requires the consent of, or notification to, a Data Subject without first acquiring such consent or providing such notification , as the case may be;
4.1.4      to comply immediately with all lawful and reasonable requests made by the Disclosing Party to ensure compliance with POPI;
4.1.5      to inform the Disclosing Party of all requests made by the Data Subjects in terms of POPI, and to comply with such requests (to the extent required by POPI) should the Disclosing Party authorise the Receiving Party to do so;
4.1.6      not to perform any act or omission that will cause the Disclosing Party to breach any of its obligations under POPI;
4.1.7      in addition to the undertakings under paragraph 3 above, to implement reasonable and appropriate technical and organisational security measures to prevent the loss of, damage to and/or unauthorised access or destruction of Personal Information, and take reasonable steps to ensure that all its representatives, employees, agents, partners and their party sub-contractors, if applicable, comply with all of the undertakings in this clause 4;
4.1.8      obtain prior written consent of the Disclosing Party should any Personal Information be transferred cross border in compliance with the provisions of POPI; and
      to notify the Disclosing Party immediately (or if not reasonably possible, as soon as reasonably possible) of any breach or anticipated breach of these undertakings or any of the provisions of POPI (including but not limited to any security breach or anticipated security breach, or unauthorised disclosure) in relation to the Personal Information, or any complaint (together with the full details of the complaint) received from a Data Subject.
4.1.10. The Receiving Party hereby indemnifies and defends the Disclosing Party against any loss, claims, costs (including legal costs on an attorney and own client scale) or damage which may be suffered or incurred by the Disclosing Party in consequence of any breach of any of the above undertakings in this clause 4, or of any provisions of POPI, by the Receiving Party.

5.1      All Information disclosed by the Disclose to the Recipient is acknowledged by the Recipient:
5.1.1      to be proprietary to the Discloser; and
5.1.2. not to confer any rights to the Recipient of whatever nature in the Information.

6.1      The Recipient undertakes not to use the Information for any purpose other than:
6.1.1      that for which it is disclosed; and
6.1.2. in accordance with the provisions of this Agreement.

7.1      In the absence of a written agreement to the contrary entered into and signed by the Parties, all Information disclosed to the Recipient shall be deemed to be valuable, and property of the Discloser.
7.2      The Recipient hereby unequivocally agrees to receive and hold all Information received from the Discloser on behalf of the Discloser.
7.3      The Recipient hereby undertakes not to use or exploit, or to assist any third party in using or exploiting the Discloser’s Information commercially or otherwise and in any manner whatsoever and for any purpose other than that expressly provided for herein, without the prior and express written consent of the Discloser.
7.4      The Parties agree that they will not use the Confidential and/or Proprietary Information to compete with the business of the Discloser

8.1      All improvements, developments, adaptations and/or modifications to a Discloser's Information, and all inventions, designs, trade marks, copyrighted works or other intellectual property, based on or relating to, including the improvement, development, adaptation and/or modification of, such Discloser's Information, shall be deemed to belong, and is hereby irrevocably assigned, to such Discloser.
8.2      The Recipient shall promptly disclose to the Discloser all such improvements, developments, adaptations and/or modifications, inventions, designs, trade marks, copyrighted works or other intellectual property that may fall into the possession of the Recipient.
8.3      The Recipient hereby undertakes to assist the Discloser in taking assignment of and applying for the registration, where relevant, of such inventions, designs, trade marks, copyrighted works or other intellectual property in the name of the Discloser only.
8.4      Should a Party develop a product, equipment or process which, in the reasonable opinion of a Discloser might have involved the use of any of the Discloser’s Information, the Party which has made the development shall, at the request of the Discloser, supply to it information reasonably necessary to establish that the Discloser’s Information has not been used or disclosed in such the development.

9.1     The Recipient agrees that it shall protect the Information disclosed pursuant to the provisions of this Agreement using a reasonable standard of care and at least the same standard of care that the Recipient applies to safeguard its own Proprietary Information, secret or Confidential Information and that the Information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.
9.2      Should the Recipient become aware of unauthorised copying, disclosure or use of the Discloser’s Information, it shall immediately notify the Discloser hereof in writing and without in any way detracting from the Disclosing Party’ rights and remedies in terms of this Agreement, take such steps as may be necessary to prevent reoccurrence  thereof.

10.1      The Discloser may, at any time, request the Recipient to return any material containing, pertaining to or relating to Information disclosed pursuant the Purpose of Disclosure and may, in addition request the Recipient to furnish a written statement to the effect that, upon such return, the Recipient has not retained in its possession, or under its control, either directly or indirectly, any such material.
10.2      As an alternative to the return of the material contemplated in 10.1 above, the Recipient shall, at the instance of the Discloser, destroy such material and furnish the Discloser with a written statement to the effect that all such material has been destroyed.
10.3      The Recipient shall comply with a request in terms of this clause 10, within 7 (Seven) days of receipt of such a request.

11.1      The obligations of the Recipient pursuant to the provisions of this Agreement shall not apply to any confidential information that:
11.1.1      is known to, or in the possession of the Recipient prior to disclosure thereof by the Discloser, the onus falling on the Recipient to notify the Discloser of such knowledge or possession immediately upon receipt and to prove such knowledge or possession in writing within 30 (Thirty) days upon receipt, in the absence of which all the Information disclosed shall be deemed to form part of the Confidential Information; or
11.1.2      is known to the industry concerned or becomes publicly known or, otherwise than as a result of a breach of this agreement by the Recipient;
11.1.3      is developed independently of the Discloser by the Recipient in circumstances that do not amount to a breach of the provisions of this Agreement;
11.1.4      is disclosed by the Recipient to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Recipient shall advise the Discloser to take whatever steps it deems necessary to protect its interests in this regard and provided further that the Recipient will disclose only that portion of the information which it is legally required to disclose and the Recipient will use its reasonable endeavours to protect the confidentiality of such information to the greatest extent possible in the circumstances;
11.1.5      is disclosed to the Recipient by a third party, unless the Recipient knows or has reason to know of an obligation of secrecy of the third party to the Discloser with respect to Information receipt; or
11.1.6      is disclosed to a third party pursuant to the prior written authorisation of the Discloser.
11.2      The Recipient further agrees, in determining what Information falls within the exceptions as set out in clauses 11.1.1 to 11.1.6 above, if any, that:
11.2.1      only the portion of the Information that falls within the scope of any of the exceptions shall be free from the confidentiality provisions of this Agreement;
11.2.2      Any Information that is specific shall not be considered as to fall within the scope of any of the exceptions merely because it is embraced by general information within the exceptions; and
11.2.3      A combination of features shall not be considered as to fall within the scope of any of the exceptions merely because individual features of the combination are within the exceptions, but only if the combination itself, its principles of operation and its value or advantages are within the exceptions.

This Agreement shall commence upon the Effective Date and shall endure for a period of 24 (Twenty Four) months thereafter, or for a period of 24 (Twenty Four) months from the date of the last disclosure of Confidential Information and or Proprietary Information to the Recipient, whichever is the longer period, whether or not the Parties continue to have any relationship for that period of time.  Notwithstanding this clause 12, neither Party will be entitled to use the other party’s Confidential or Proprietary Information to compete with them after the expiry of the 24(Twenty-Four) month period.

In the event that the Recipient should breach the provisions of this Agreement and fail to remedy such breach within 7 (Seven) days from date of a written notice to do so, then the Discloser shall be entitled to invoke all remedies available to it in law including the institution of urgent interim proceedings and/or an action for damages.

14.1      Any written notice in connection with this Agreement may be addressed to the Parties.
      A Party may change that Party's address, by prior notice in writing to the other Party. 
14.3      If any notice is to be sent by mail, it shall be sent by prepaid registered mail and shall then be deemed until and unless the contrary is proved, to have been received 10 (Ten) days after the date of posting.
14.4      If any notice is sent by telefax, it will be deemed, until and unless the contrary is proved, to have been received on the date recorded on the transmission slip.
14.5      If any notice is delivered by hand, it will be deemed to have been received on proof of the date of delivery.
14.6      If any notice is sent by email, it will be deemed to have been received on the same day it was sent.
14.7      The Parties record that whilst they may correspond via email during the currency of this Agreement or operational reasons, no formal notice required in terms of this Agreement, nor any amendment or variation to this Agreement may be given by or concluded via email.

15.1      No amendment, interpretation or waiver of any of the provisions of this Agreement shall be effective unless reduced in writing and signed by both Parties.
15.2      The failure by the Discloser to enforce or to require the performance at any time of any of the provisions of this Agreement shall not be construed to be a waiver of such provision, and shall not affect either the validity of this Agreement or any part hereof or the right of the Discloser to enforce the provisions of this Agreement.
15.3      The headings of the clauses of this agreement are used for convenience only and shall not affect the meaning or construction of the contents of this Agreement.
15.4      Each Party represents that it has authority to enter into this Agreement and to do all things necessary to procure the fulfilment of its obligations in terms of this Agreement.
15.5      This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements between the Parties, whether written or oral, with respect to the subject matter of this Agreement.
15.6      This Agreement and the relationship of the Parties in connection with the subject matter of this Agreement and each other shall be governed and determined in accordance with the laws of the Republic of South Africa.
15.7      In the event of any one or more of the provisions of this Agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this Agreement, and the Agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
15.8      Each Party to this Agreement shall execute and deliver such other documents and do such other acts and things as may be necessary or desirable to give effect to the terms and provisions of this Agreement.
15.9      The Recipient acknowledges that the Information received by the Discloser may be under development, or may be incomplete and that such Information may relate to products or services that are under development or planned for development and the Discloser makes no warranties regarding the accuracy of the confidential information.

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