Teracore NDA - Teracore

Teracore NDA

Confidentiality and Non-disclosure Agreement

Between

TERACORE Proprietary Limited

(Registration No: 2012/158948/07)

(hereafter referred to as the “the Company”)

and

Registration Number: ,

with its registered address at

Introduction

1.1 Teracore and have entered into discussions with each other in respect of the Permitted Purpose.

1.2 The Parties wish to ensure that Confidential Information revealed and/or generated in the course of discussing and/or undertaking the Permitted Purpose remains confidential and is not used for any purpose other than the Permitted Purpose.

Interpretation

2.1 For the purposes of this Agreement, the following words, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings:

2.1.1 "Agreement" this confidentiality and non-disclosure agreement;

2.1.2 "Affiliate" means, in relation to a Party, a subsidiary or a holding company of that Party, or any subsidiary of the holding company and all of its subsidiaries;

2.1.3 "Business Day" means a day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;

2.1.4 "Confidential Information" has the meaning as set out in clause 4;

2.1.5 "Disclose" in relation to any information, means the disclosure thereof in any manner whatsoever, including any direct or indirect disclosure, the provision, revealing or discussion thereof, or the granting of any access thereto, or the parting with possession thereof, or the announcement or communication thereof (wherever and in whatever form, format or medium, and whether orally or in writing or by any other medium whatsoever), and each of "Disclosed", "Disclosure" and "Disclosing" shall bear a corresponding meaning;

2.1.6 "Negotiations" means the discussions held by and between the Parties on a non-exclusive basis, which may result in a business relationship between the Parties;

2.1.7 "Parties" means the parties to this Agreement, being Teracore and and "Party" shall refer to either of the Parties as the context may require;

2.1.8 "Permitted Purpose" means the Negotiations held by and between the Parties on a non-exclusive basis, with the objective of establishing a business relationship between the Parties; and

2.1.9 "Signature Date" means, when this Agreement has been signed by each Party (whether or not in counterpart), the latest of the dates on which this Agreement (or any counterpart) was signed by any Party.

2.2 Where applicable, the provisions of clause 2.1 above shall impose substantive obligations on the Parties as provided in the provision concerned.

2.3 The clause headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation.

2.4 No provision herein shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.

Parties' Obligations

3.1 In return for the Parties making Confidential Information available to each other, each Party shall:

3.1.1 keep the other Party's Confidential Information confidential and shall not:

3.1.1.1 use such Confidential Information except for the Permitted Purpose; or

3.1.1.2 Disclose such Confidential Information in whole or in part to any third party except as expressly permitted in terms of this Agreement;

3.1.1.3 not directly or indirectly Disclose the Confidential Information (or allow it to be Disclosed), in whole or in part, to any person or make copies thereof unless permitted in terms of this Agreement;

3.1.2 use its best endeavours to ensure that no person gains access to Confidential Information unless such person is authorised or entitled to in terms of this Agreement to receive such Confidential Information;

3.1.3 take all such steps as are necessary or desirable to prevent any Confidential Information from being. Disclosed or used to the current or future actual or potential commercial, financial or competitive disadvantage or prejudice of a Party;

3.1.4 not disclose to any person the existence and status of the Negotiations and all the details related thereto, as well as the existence of this Agreement, or its terms, conditions and stipulations, or any operations carried out or to be carried out pursuant thereto;

3.1.5 not, without the other Party's prior written consent, issue and release any press statement or public announcement regarding the Negotiations; and

3.1.6 inform the other Party immediately on becoming aware, or suspecting, that an unauthorised person has become aware of or is in possession of the Confidential Information.

3.2 The Parties acknowledge and agree that all the undertakings given by it in terms of this clause 3 are fair and reasonable and are reasonably required by the Parties in order to protect their proprietary interests in the Confidential Information and that, but for the undertakings contained in this Agreement, the Parties would not disclose the Confidential Information to each other.

Confidential Information

4.1 Confidential Information means all information (however recorded or preserved) Disclosed by a Party or its Affiliates, directors, employees, officers, agents, contractors, representatives, consultants, accountants or advisors (together its "Representatives") to the other Party and/or that Party's Representatives in connection with the Permitted Purpose prior to or after the Signature Date, concerning:

4.1.1 the contemplation, discussion and negotiation of the Permitted Purpose;

4.1.2 the existence and terms of this Agreement;

4.1.3 any information relating to:

4.1.3.1 the business, affairs, customers, clients, suppliers, plans, intentions or market opportunities of a Party; and

4.1.3.2 the operations, processes, product information, know-how, designs, trade secrets or software of a Party; and

4.1.4 any information developed by the Parties in the course of undertaking the Permitted Purpose.

4.2 Confidential Information does not include any information that:

4.2.1 is or becomes generally available to the public (other than as a result of its Disclosure in breach of this Agreement); or

4.2.2 was available to a Party on a non-confidential basis prior to Disclosure by a Party; or

4.2.3 was, is or becomes available to that Party on a non-confidential basis from a person who, to that Party's knowledge, is not bound by a confidentiality agreement with a Party or otherwise prohibited from Disclosing the information to a Party; or

4.2.4 was known to a Party before the information was Disclosed to it by the other Party; or

4.2.5 the Parties agree in writing is not confidential or may be Disclosed.

Parties' Rights

5.1 A Party may Disclose the other Party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

5.1.1 it informs such Representatives of the confidential nature of the Confidential Information prior to Disclosure; and

5.1.2 at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this Agreement.

5.2 Each Party may make only such copies of any Confidential Information as are strictly necessary for the Permitted Purpose and shall:

5.2.1 clearly mark all copies as confidential;

5.2.2 ensure that all copies supplied to it or made by it can be separately identified from its own information; and

5.2.3 ensure that all copies within its control are protected against theft or unauthorised access and that no person discovers Confidential Information unless authorised.

5.3 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party's Confidential Information other than those expressly stated in this Agreement are granted to the Other Party, or to be implied from this Agreement.

5.4 The Parties agree that unless and until a definitive agreement with respect to a Permitted Purpose has been entered into between them, neither of them will be compelled to continue discussions relating to the Permitted Purpose or will be under any legal obligation of any kind whatsoever with respect to Permitted Purpose by virtue of this Agreement or any oral expression with respect to a Permitted Purpose by any of either Party’s Representatives except for the matters specifically agreed to in this Agreement.

5.5 This Agreement does not constitute the Parties as partners, joint ventures or agents of each other, and no Party may so represent itself.

Duties on Termination
On termination of this Agreement, each Party shall:

6.1 return to the other Party all documents and materials containing, reflecting, incorporating or based on the other Party's Confidential Information;

6.2 erase all the other Party's Confidential Information from its computer systems (to the extent possible);

and

6.3 certify in writing to the other Party that it has complied with the requirements of this clause.

A Party may retain documents and material containing, reflecting, incorporating or based on the other Party's Confidential Information to the extent reasonably required by law or any applicable governmental or regulatory authority provided that such Party notifies the other Party accordingly.

Duration

7.1 This Agreement shall commence on the Signature Date and shall endure indefinitely unless otherwise agreed to in writing by the Parties.

7.2 Any termination or lapse of this Agreement (in whole or in part) shall be without prejudice to any accrued rights or obligations under this Agreement arising prior to the time of such termination or lapse.

Breach

8.1 Each of the Parties respectively agrees, acknowledges and accepts that:

8.1.1 any breach of this Agreement, including but not limited to the Disclosure of any Confidential Information to any person in breach of this Agreement, could result in a current or future, actual or potential commercial, financial or competitive disadvantage and/or cause other injuries to either or both of the Parties; and

8.1.2 monetary damages might not be an adequate remedy.

8.2 In the event of any breach or threatened breach by any Party (the "Defaulting Party"), the other Party shall be entitled, without prejudice to and in addition to any other rights or remedies under this Agreement or at law, to enforce the performance of this Agreement by an interdict or specific performance upon application to a court of competent jurisdiction without proof of actual damage and notwithstanding that in any particular case damages may be readily quantifiable, and the Defaulting Party or its Representatives shall not be entitled to plead sufficiency of damages as a defence in any proceeding for injunctive relief.

General

9.1 This Agreement constitutes the sole record of the Agreement between the Parties in regard to the subject matter hereof.

9.2 No addition to, variation or consensual cancellation of this Agreement shall be of any force or effect unless done in writing and signed by or on behalf of all the Parties.

9.3 The grant of any indulgence, extension of time or relaxation of any provision by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor.

9.4 The Parties agree that no representation or warranty, express or implied, is made, and no responsibility or liability, express or implied, is any Confidential Information made available to the other Party or its accuracy, reliability or completeness, and each Party agrees to release the other from, and acknowledges that the other does not have any liability in respect of, the Confidential Information.

Governing law and dispute resolution

This Agreement and its interpretation shall be governed by and construed in accordance with the laws of the Republic of South Africa. All disputes arising out of or in connection with this Agreement shall be settled under the Rules of the Arbitration Foundation of Southern Africa by one or more arbitrators appointed in terms of such rules. The arbitration proceedings shall be conducted in Johannesburg, South Africa, in English.

Notices

11.1 The Parties choose domicilia citandi et executandi ("domicilium address") for all purposes arising from or pursuant to this Agreement, as set out in the heading to this Agreement.

11.2 Any Party shall be entitled from time to time, by written notice to the other(s), to vary their domicilium address to any other address which is not a post office box or poste restante.

11.3 All notices given in terms of this Agreement shall be in writing and any notice given by any Party to another ("the addressee") which:

11.3.1 is delivered is delivered by hand shall be deemed to have been received by the addressee on the first business day after the date of delivery or transmission, as the case may be;

11.3.2 is posted by a pre-paid registered post to the addressee's domicilium address shall be deemed to have been received by the addressee on the 14th (fourteenth) working day after the date of such posting.

11.4 Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one Party from the other, shall be adequate written notice or communication to such Party.

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Signed by Megan Casey
Signed On: March 15, 2021

Timestamp

Audit

April 29, 2020 4:30 pm SAST

Teracore NDA Uploaded by Megan Casey - meganc@teracore.co.za IP 155.93.178.113