Non-disclosure agreement

Black and White Inc
Non-Disclosure Agreement
This Non-Disclosure Agreement (the “Agreement”) is made and entered into as of thelater of the two signature dates below by and between Donn Milton Edwards, tradingas “Black and White Inc”, (“Black and White Inc”), and ___________________________________________________ (“Company”).
IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTSCONTAINED IN THIS AGREEMENT AND THE MUTUAL DISCLOSURE OFCONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE ASFOLLOWS: 1.
Definition of Confidential Information and Exclusions.
“Confidential Information” means nonpublic information that a party to thisAgreement (“Disclosing Party”) designates as being confidential to the partythat receives such information (“Receiving Party”) or which, under thecircumstances surrounding disclosure ought to be treated as confidential by theReceiving Party.
“Confidential Information” includes, without limitation, information in tangibleor intangible form relating to and/or including released or unreleased DisclosingParty software or hardware products, the marketing or promotion of anyDisclosing Party product, Disclosing Party’s business policies or practices,Disclosing Party’s product pricing information, the terms and conditions of anyproposed (or actual) license agreement or other agreement concerningDisclosing Party’s products, license negotiations, and information received fromothers that Disclosing Party is obligated to treat as confidential.
In particular, the source code and libraries developed and/or maintained by“Black and White Inc” should be regarded as strictly confidential, even if it isfurther modified or improved by the Receiving Party.
Except as otherwise indicated in this Agreement, the term “Disclosing Party”also includes all Affiliates of the Disclosing Party and, except as otherwiseindicated, the term “Receiving Party” also includes all Affiliates of theReceiving Party. An “Affiliate” means any person, partnership, joint venture,corporation or other form of enterprise, domestic or foreign, including but notlimited to subsidiaries, that directly or indirectly, control, are controlled by, orare under common control with a party.
Where the Receiving Party uses Confidential Information to maintain or developsoftware for any person, partnership, joint venture, corporation or other form ofenterprise or customer, it shall take all necessary precautions to ensure that suchConfidential Information, particularly source code, is not disclosed to theseparties, unless specific written permission is obtained from “Black and WhiteInc” in advance.
Confidential Information shall not include any information, however designated,that:(i) is or subsequently becomes publicly available without Receiving Party’sbreach of any obligation owed Disclosing Party; became known to Receiving Party prior to Disclosing Party’s disclosure ofsuch information to Receiving Party pursuant to the terms of thisAgreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed toDisclosing Party; (iv) is independently developed by Receiving Party; or(v) constitutes Feedback (as defined in Section 5 of this Agreement).
2.
Obligations Regarding Confidential Information
Refrain from disclosing any Confidential Information of the DisclosingParty to third parties for ten (10) years following the date that DisclosingParty first discloses such Confidential Information to Receiving Party, forany reason whatsoever, except as expressly provided in Sections 2(b) and2(c) of this Agreement; Take reasonable security precautions, at least as great as the precautions ittakes to protect its own Confidential Information, but no less thanreasonable care, to keep confidential the Confidential Information of theDisclosing Party; (iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance ofReceiving Party’s business relationship with Disclosing Party, and only asotherwise provided hereunder; and (iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by DisclosingParty to Receiving Party under the terms of this Agreement, except asexpressly permitted by applicable law.
Receiving Party may disclose Confidential Information of Disclosing Party inaccordance with a judicial or other governmental order, provided that ReceivingParty either(i) gives the undersigned Disclosing Party reasonable notice prior to suchdisclosure to allow Disclosing Party a reasonable opportunity to seek aprotective order or equivalent, or obtains written assurance from the applicable judicial or governmentalentity that it will afford the Confidential Information the highest level ofprotection afforded under applicable law or regulation. Notwithstandingthe foregoing, the Receiving Party shall not disclose any computer sourcecode that contains Confidential Information of the Disclosing Party inaccordance with a judicial or other governmental order unless it complieswith the requirement set forth in sub-section (i) of this Section 2(b).
The undersigned Receiving Party may disclose Confidential Information only toReceiving Party’s employees and consultants on a need-to-know basis. Theundersigned Receiving Party will have executed or shall execute appropriatewritten agreements with its employees and consultants sufficient to enable it tocomply with all the provisions of this Agreement.
Receiving Party shall notify the undersigned Disclosing Party immediately upondiscovery of any unauthorized use or disclosure of Confidential Information orany other breach of this Agreement by Receiving Party and its employees andconsultants, and will cooperate with Disclosing Party in every reasonable way tohelp Disclosing Party regain possession of the Confidential Information andprevent its further unauthorized use or disclosure.
Receiving Party shall, at Disclosing Party’s request, return all originals, copies,reproductions and summaries of Confidential Information and all other tangiblematerials and devices provided to the Receiving Party as ConfidentialInformation, or at Disclosing Party’s option, certify destruction of the same.
3.
Rights and Remedies
Receiving Party shall notify the undersigned Disclosing Party immediately upondiscovery of any unauthorized use or disclosure of Confidential Information orany other breach of this Agreement by Receiving Party and its employees andconsultants, and will cooperate with Disclosing Party in every reasonable way tohelp Disclosing Party regain possession of the Confidential Information andprevent its further unauthorized use or disclosure.
Receiving Party shall, at Disclosing Party’s request, return all originals, copies,reproductions and summaries of Confidential Information and all other tangiblematerials and devices provided to the Receiving Party as ConfidentialInformation, or at Disclosing Party’s option, certify destruction of the same.
The parties acknowledge that monetary damages may not be a sufficient remedyfor unauthorized disclosure of Confidential Information and that DisclosingParty shall be entitled, without waiving any other rights or remedies, to suchinjunctive or equitable relief as may be deemed proper by a court of competentjurisdiction.
4.
Miscellaneous
All Confidential Information is and shall remain the property of DisclosingParty. By disclosing Confidential Information to Receiving Party, DisclosingParty does not grant any express or implied right to Receiving Party to or underany patents, copyrights, trademarks, or trade secret information except asotherwise provided herein. Disclosing Party reserves without prejudice theability to protect its rights under any such patents, copyrights, trademarks, ortrade secrets except as otherwise provided herein.
In the event that the Disclosing Party provides any computer software and/orhardware to the Receiving Party as Confidential Information under the terms ofthis Agreement, such computer software and/or hardware may only be used bythe Receiving Party for evaluation and providing Feedback (as defined inSection 5 of this Agreement) to the Disclosing Party. Unless otherwise agreedby the Disclosing Party and the Receiving Party, all such computer softwareand/or hardware is provided “AS IS” without warranty of any kind, andReceiving Party agrees that neither Disclosing Party nor its suppliers shall beliable for any damages whatsoever arising from or relating to Receiving Party’suse or inability to use such software and/or hardware.
The parties agree to comply with all applicable international and national lawsthat apply to(i) any product (or any part thereof), process or service that is the directproduct of the Confidential Information, as well as end-user, end-use anddestination restrictions issued by South African and other governments.
The terms of confidentiality under this Agreement shall not be construed to limiteither the Disclosing Party or the Receiving Party’s right to independentlydevelop or acquire products without use of the other party’s ConfidentialInformation. Further, the Receiving Party shall be free to use for any purposethe residuals resulting from access to or work with the Confidential Informationof the Disclosing Party, provided that the Receiving Party shall not disclose theConfidential Information except as expressly permitted pursuant to the terms ofthis Agreement. The term “residuals” means information in intangible form,which is retained in memory by persons who have had access to the ConfidentialInformation, including ideas, concepts, know-how or techniques containedtherein. The Receiving Party shall not have any obligation to limit or restrict theassignment of such persons or to pay royalties for any work resulting from theuse of residuals. However, this sub-paragraph shall not be deemed to grant tothe Receiving Party a license under the Disclosing Party’s copyrights or patents.
This Agreement constitutes the entire agreement between the parties withrespect to the subject matter hereof. It shall not be modified except by a writtenagreement dated subsequent to the date of this Agreement and signed by bothparties. None of the provisions of this Agreement shall be deemed to have beenwaived by any act or acquiescence on the part of Disclosing Party, the ReceivingParty, their agents, or employees, but only by an instrument in writing signed byan authorized employee of Disclosing Party and the Receiving Party. No waiverof any provision of this Agreement shall constitute a waiver of any otherprovision(s) or of the same provision on another occasion.
If either the Disclosing Party or the Receiving Party employs attorneys toenforce any rights arising out of or relating to this Agreement, the prevailingparty shall be entitled to recover reasonable attorneys’ fees.
This Agreement shall be binding upon and inure to the benefit of each party’srespective successors and lawful assigns; provided, however, that neither partymay assign this Agreement (whether by operation of law, sale of securities orassets, merger or otherwise), in whole or in part, without the prior writtenapproval of the other party.
If any provision of this Agreement shall be held by a court of competentjurisdiction to be illegal, invalid or unenforceable, the remaining provisionsshall remain in full force and effect.
If any Confidential Information is disclosed to any other party, both theDisclosing Party and the Receiving Party shall be deemed to be equallyresponsible for the consequences of such disclosure, including, but not restrictedto, liability for patent or copyright infringement of any other party’s code thusdisclosed, and/or failure to obtain the necessary permission to use the code orproprietary information contained therein.
Either party may terminate this Agreement with or without cause upon ninety(90) days prior written notice to the other party. All sections of this Agreementrelating to the rights and obligations of the parties concerning ConfidentialInformation disclosed during the term of the Agreement shall survive any suchtermination.
5.
Suggestions and Feedback
The Receiving Party may from time to time provide suggestions, comments or otherfeedback (“Feedback”) to the Disclosing Party with respect to ConfidentialInformation provided originally by the Disclosing Party. Both parties agree that allFeedback is and shall be given entirely voluntarily. Feedback, even if designated asconfidential by the Disclosing Party, shall not, absent a separate written agreement,create any confidentiality obligation for the Receiving Party. Furthermore, except asotherwise provided herein or in a separate subsequent written agreement between theparties, the Receiving Party shall be free to use, disclose, reproduce, license orotherwise distribute, and exploit the Feedback provided to it as it sees fit, entirelywithout obligation or restriction of any kind on account of intellectual property rightsor otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.

Source: http://www.openaccess.co.za/BlackAndWhiteInc/Non-Disclosure%20Agreement.pdf