MUTUAL NON-DISCLOSURE / NON-CIRCUMVENTION AGREEMENT
THE UNDERSIGNED
XIOT Pty Ltd, a private company incorporated under the laws of South Africa with registered seat at 129 Johannesburg Road, Lyndhurst, Johannesburg, RSA, 2192,
(hereinafter referred to as “XIOT“)
and
Company (*AS PER BELOW), a corporation under the laws of South Africa with registered seat at, (* AS PER BELOW)
(hereinafter referred to as ” COMPANY “)
WHEREAS:
- XIOT, possess and may provide to COMPANY certain confidential and proprietary information, contact information, product solutions, business plans and strategies, product literature and datasheets, device integration protocols, web and cloud services, software programs, installation and calibration methods and other intellectual property, in connection with the discussion and evaluation of a potential business relationship, partnership or acquisition of XIOT.
- COMPANY possess and provide to XIOT certain confidential and proprietary information in connection with the discussions and evaluation of a potential business relationship with XIOT.
- XIOT and COMPANY desire that any such information provided shall be kept confidential by the other party; and
- in consideration of the foregoing, each party is willing to keep the other party’s information confidential in accordance with the terms and conditions set forth in this agreement.
NOW, THEREFORE, XIOT and COMPANY hereby, on this day (the „Effective Date“) agree as follows:
- Confidentiality
(a) For purposes of this Agreement, „Confidential Information“ shall include all information in written, oral, or any other form which relates to the products and services of either party; administrative, financial or operational arrangements of either party; and any other information which is marked or expressly stated as confidential at or prior to the time of disclosure.
- Each party agrees that it will not disclose, publish, or reveal confidential information received from the other party to any third party whatsoever, expect with the specific prior written authorization of a duly authorized representative of the other party.
- Each party further agrees to use the same means it uses to protect its own confidential and proprietary information’s, but in any event not less than reasonable means, to prevent disclosure and to protect the confidentiality of confidential information received from the other party.
- Each party’s use of confidential information received from the other party is hereby restricted and limited to the business purpose. Each party further agrees not to disclosure confidential information to anyone than its own employees who have a need to know such confidential information in order to carry the business purpose.
- Information which (i) is in or becomes part of the public domain through no act or omission of the receiving party, (ii) is rightfully obtained by the receiving party from a third party, (iii) is independently developed by the receiving party without use of the other’s party’s confidential information, (iv) is required to be disclosed pursuant to a requirement of a governmental agency or law so long as the disclosing party provides the other party with notice of such requirement prior to any such disclosure; shall not constitute confidential information for the purposes of this agreement.
- Return of Confidential Information. Upon completion of the business purpose or upon written request of the party disclosing the confidential information, whichever occurs earlier, the receiving party shall return the confidential information and all copies of the confidential information to the disclosing party or certify in written that the confidential information and all copies of the confidential information have been destroyed.
- No Warranty. Each party makes no warranty, express or implied, with respect to its confidential information. Each party hereby expressly disclaims any implied warranties of merchantability and fitness for a particular purpose. Neither party shall be liable to the other party for amounts representing loss of profits, loss of business or indirect, consequential, or punitive damages in connection with the provision or use of confidential information in accordance with the terms of this agreement.
- Either party shall have the right to refuse to accept any information under this agreement and nothing herein, shall obligate either party to disclose to the other party any particular information.
- No Further Rights. Except as expressly set forth in this agreement, nothing stated herein shall be construed to grant or confer any rights, title, or ownership, including but not limited to intellectual property rights, in or to any confidential information disclosed hereunder. The parties expressly agree that the provision of confidential information hereunder and discussions held in connection with the business purpose shall not prevent either party from pursuing similar discussion with third parties or obligate either party to take, continue, or forego any action relating to the business purpose. Any estimates or forecasts provided to the other party shall not constitute commitments.
- Term of Agreement
- This Agreement shall be effective as of the effective date and shall automatically terminate three (3) years from the effective date. The rights and obligations accruing prior to termination shall, however, survive the termination as specified in section (b) of this clause 6.
- The receiving party’s obligations hereunder with respect to each item of information shall terminate five (5) years from the date of receipt thereof by the receiving party.
- Non-Circumvention
The Parties shall not circumvent any established relationship between client and supplier by directly approaching, or approaching through another agent or third party, the respective first party’s supplier / client without the first party’s prior written consent. Even in this case any communication between second and third parties shall be for purposes of exchanging pertinent information and not for purposes of establishing a trading relationship.
- General Provisions
- This agreement is construed in accordance with the laws of the Republic of South Africa under the sole jurisdiction of the South African Courts. The venue for any action or proceeding arising out of or in connection with this Agreement or the Relationship shall be in Johannesburg, South Africa. The Receiving Party hereby waives any objection it may have to such venue, including, without limitation, an objection based on the assertion that this venue is an inconvenient forum.
- If any provision of this agreement is held to be invalid, the parties agree that such invalidity will not affect the validity of the remaining provisions of this agreement and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.
- Neither party may assign or transfer any rights or obligations under this agreement without the prior written consent of the other party.
- 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.
- This agreement may be modified only in writing signed by authorized representatives of the parties.
- The waiver of any breach of this agreement will not operate or be interpreted as a waiver of any other or subsequent of this agreement.
Any notices required by this agreement shall be delivered by hand or sent by first class mail to the applicable address set forth below.