Mutual Non-Disclosure Agreement (South Africa)

Mutual Non-Disclosure Agreement

This agreement is made between:

1. [First party name], registration number [First party registration number], of [First party address] (the "First Party"); and
2. [Second party name], registration number [Second party registration number], of [Second party address] (the "Second Party").

The First Party and the Second Party are each a "party" and together the "parties". This agreement starts on [Effective date] (the "effective date").

1. Background and purpose

1.1 The parties wish to share confidential information with each other for the following purpose (the "purpose"): [Purpose].

1.2 Each party may disclose confidential information to the other. In this agreement, the party that discloses is the "discloser" and the party that receives is the "recipient".

2. What is confidential information

2.1 "Confidential information" means all information, in any form, that the discloser makes available to the recipient in connection with the purpose and that is marked confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. It includes business plans, financial information, pricing, customer and supplier information, technical information, know-how, software, and any personal information.

2.2 Confidential information does not include information that the recipient can show:

• is or becomes public other than through a breach of this agreement;
• was lawfully known to the recipient before the discloser gave it to them;
• was lawfully received from a third party who was free to share it; or
• was developed independently by the recipient without using the discloser's confidential information.

3. Obligations of the recipient

3.1 The recipient must keep the discloser's confidential information confidential, use it only for the purpose, and not disclose it to anyone except as this agreement allows.

3.2 The recipient must protect the confidential information with at least the same care it uses for its own confidential information, and never with less than reasonable care.

3.3 The recipient may share confidential information only with its directors, employees, professional advisers and subcontractors who need to know it for the purpose and who are bound by confidentiality duties no less strict than this agreement. The recipient is responsible for any breach by those people.

3.4 The recipient must tell the discloser promptly if it becomes aware of any unauthorised use or disclosure of the confidential information, and must co-operate to limit the harm.

4. Disclosure required by law

4.1 The recipient may disclose confidential information to the extent a law, court order or regulator requires it. Where lawful, the recipient must tell the discloser first so that the discloser can try to protect the information, and must disclose only what is required.

5. Personal information

5.1 If the confidential information includes personal information (as defined in the Protection of Personal Information Act 4 of 2013), the recipient must process it only for the purpose, keep it secure, and comply with that Act. The parties will agree a separate operator agreement if one is needed.

6. Ownership and return of information

6.1 The confidential information stays the property of the discloser. Nothing in this agreement gives the recipient any licence or right in it, other than the right to use it for the purpose.

6.2 On written request, or when the purpose ends, the recipient must return or securely destroy the discloser's confidential information and confirm in writing that it has done so. The recipient may keep copies that it is required by law to keep, or that sit in routine electronic back-ups, and those copies stay subject to this agreement.

7. No other obligations

7.1 This agreement does not oblige either party to disclose any information, to enter into any further agreement, or to continue discussions. No warranty is given about the accuracy or completeness of any confidential information unless a separate written agreement says so.

8. Term

8.1 This agreement runs for 2 year(s) from the effective date, unless a party ends it earlier by giving the other 30 days' written notice.

8.2 The recipient's confidentiality obligations continue for 3 year(s) after this agreement ends. Obligations in respect of trade secrets and personal information continue for as long as that information remains confidential or the law requires protection.

9. Remedies

9.1 The parties agree that a breach of this agreement may cause harm that money alone cannot fix. The discloser may therefore ask a court for an interdict or other urgent relief, in addition to any other remedy it has, including a claim for damages.

10. General

10.1 This is the whole agreement between the parties about its subject matter.

10.2 No change to this agreement, and no waiver of any of its terms, is valid unless it is in writing and signed by both parties. This includes any change to this clause.

10.3 Neither party may transfer its rights or obligations under this agreement without the other party's written consent.

10.4 If a court finds any part of this agreement unenforceable, the rest remains in force.

10.5 Each party chooses the address given at the top of this agreement as the address where legal documents may be served on it (its domicilium citandi et executandi). A party may change its address by written notice to the other.

10.6 This agreement may be signed in counterparts and electronically.

11. Governing law and disputes

11.1 This agreement is governed by the law of the Republic of South Africa.

11.2 The parties agree to the non-exclusive jurisdiction of the [Court area]. This does not stop a party from asking another competent court for urgent relief.