Upon receipt of any email, whatsapp, phone conversation or physical mail conserning a project proposition with Zubre Creative, or any of its staff or agents, you, the Authorised Signatory/Contact Person/Agent/Client/Customer for the project are bound by this Non-Disclosure Agreement.
Dear Client/Customer/Authorised Agent, herein after refered to as YOU,
We understand that YOU, are interested in retaining the services of Zubre Creative Enterprises (hereinafter referred to as ‘The Parties’). In order to perform its duties efficiently, Zubre Creative Enterprises goes through certain processes that includes:
1)Meeting with client to discuss concepts and designs
2)Deliver creative concepts and or ideas in electronic or printed form
3)Deliver concepts or properties in electronic form such as websites, logos, posters, banners, billboards, letterheads, apparel, and other such designed materials
4)Provide Digital Design Concepts for social media for 3 months after this agreement comes into effect.
In order to facilitate further engagement between The Parties and the provision of Confidential Information (as herein after defined) to you so as to enable The Parties to agree on definite terms of the Proposed Service delivery, The Parties agree that Confidential Information in terms of concepts, ideas, artworks, still photos, motion pictures and logos presented to you shall be provided to you strictly on the terms and conditions herein provided.
- DEFINITIONS AND INTERPRETATION
1.1 In this letter (except where the context requires otherwise):
“Confidential Information” means:
(a) all and any information in whatever form (including in oral, written, electronic and visual form) relating to the concepts, ideas, logos, branded materials and artworks which is disclosed by or acquired from us and/or from any other member of Zubre Creative Enterprises and/or from any person acting on our behalf;
(b) Concepts, Ideas, logos, artworks, branded materials, still photos, motion pictures or other documents prepared by you or by any Permitted Disclosee which contain or otherwise reflect or are generated from any of the information specified in subparagraph (a) above; and (c) the existence and contents of this letter and of communications, discussions and negotiations between you and us and our respective Representatives relating to the Proposed Transaction; and all references to Confidential Information in this letter shall be to the full or any part or parts of such Confidential Information as the context permits;
“Permitted Disclosees” means:
(a) those of your Representatives who are directly concerned and involved with the Proposed Transaction/service; and
(b) any person to whom you disclose Confidential Information with our prior written consent;
and “Permitted Disclosee” means any one of them; “Permitted Purpose” means the consideration, evaluation and negotiation of the Proposed Transaction/service;
“Representatives” means, in relation to either party, its directors, officers, employees and professional advisers engaged in providing services directly to either party; and, any such person or entity which has been previously approved in writing by us;
In this letter (unless the context requires otherwise):
1.1.1 references to “you” and “your” shall be deemed to include Kyenyu Tunes Africa LTD and each of its Representatives and references to “we”, “us” and “our” shall be deemed to include Zubre Creative Enterprises and any of its representatives.
1.1.2 the words “subsidiary undertaking” and “parent undertaking” have the meanings set out in section 3 of the Companies Act No. 17 of 2015 of the Laws of Kenya;
1.1.3 “including”, “includes” or “in particular” means including, includes or in particular without limitation;
1.1.4 “written” or “writing” includes email;
1.1.5 references to persons includes bodies corporate, unincorporated associations and partnerships (whether or not any of them have a separate legal personality); and
1.1.6 the singular includes the plural and vice versa.
In consideration of Zubre Creative Enterprises agreeing to make available and making available to you and/or your Representatives, Confidential Information as part of discussions or negotiations regarding the Service Delivery, YOU undertake to Zubre Creative Enterprises on behalf of itself and as agent for its Representatives that it will comply with the terms of this letter.
3.1 Subject to paragraphs 4 and 6, you will treat and keep all Confidential Information as secret
and confidential and will not, without our prior written consent:
3.1.1 disclose or permit the disclosure of or use of Confidential Information to any other person; or
3.1.2 copy or permit the copying of any Confidential Information.
3.2 You will not use or permit the use of the Confidential Information for any purpose other than the Permitted Purpose. In particular, you will not use or permit the use of the Confidential Information to obtain a commercial, trading, investment, financial or other advantage over Zubre Creative Enterprises and/or any member of Zubre Creative Enterprises or otherwise use it to the detriment of Zubre Creative Enterprises or its representatives.
3.3 You will keep all Confidential Information safely and securely and you will use your best endeavours to protect it against theft, damage, loss and unauthorised access (including access by electronic means).
- PERMITTED DISCLOSEES
4.1 You may disclose the Confidential Information only to Permitted Disclosees, and then only to the extent that such disclosure is necessary for the Permitted Purpose.
4.2 You will procure that, before any Confidential Information is disclosed to any Permitted Disclosee:
4.2.1 such Permitted Disclosee is informed of the confidential nature of the Confidential Information and of your obligations under this letter; and
4.2.2 such Permitted Disclosee enters into a confidentiality agreement with us in substantially the same form as this letter or is otherwise bound by confidentiality obligations not to disclose or use the Confidential Information otherwise than as permitted hereunder.
4.3 You will procure that each Permitted Disclosee complies with the terms of this letter as if they were you. You will therefore be responsible for any breach of the terms of this letter by any Permitted Disclosee.
- RETURN OF CONFIDENTIAL INFORMATION
5.1 You will promptly on written demand from us and in any event within seven (7) days of the date of such demand:
5.1.1 return to us or destroy, or use your best endeavours to procure the return to us or destruction of all Confidential Information (including all copies of it) held by you or by a Permitted Disclosee;
5.1.2 delete or use your best endeavours to procure the deletion of all Confidential Information from any computer, word processor or other device in your or any Permitted Disclosee’s possession or control; and
5.1.3 confirm in writing to us that, to the best of your knowledge, information and belief having made all reasonable enquiries from all Permitted Disclosees, have complied with the provisions of paragraphs 5.1.1 and 5.1.2.
- FORCED DISCLOSURE
6.1 If you or any of your Permitted Disclosees are required to disclose Confidential Information
or make any public announcement relating the Service delivery:
6.1.1 by law or by any applicable rule or requirement of any regulatory or governmental authority or of any stock exchange on which your securities are traded; or
6.1.2 by any order of any court of competent jurisdiction;
then, subject to compliance with paragraph 6.2, you may disclose such Confidential Information or make such an announcement to the minimum extent required to satisfy such requirement.
6.2 Before disclosing any Confidential Information or making any announcement in accordance with paragraph 6.1, you shall to the extent permitted by law use your best endeavours to:
6.2.1 inform us in writing of the full circumstances of the disclosure or announcement and the information required to be disclosed or announced;
6.2.2 consult with us as to possible steps to avoid or limit such disclosure or announcement and take those steps where they would not result in significant adverse consequences to you; and
6.2.3 comply with our reasonable requests as to the content and timing of such disclosure or announcement.
6.3 You shall notify us of the recipient of, and the form and extent of, any disclosure or announcement made in accordance with paragraph 6.1 immediately after it is made.
- AUTHORISED CONTACTS
7.1 All communications from you or any Permitted Disclosee regarding the Proposed Transaction/Service or requests for Confidential Information shall be submitted or directed to Zubre Creative Enterprises by way of email to firstname.lastname@example.org unless otherwise expressly agreed by us.
7.2 Save for communications permitted by paragraph 7.1, neither you nor your Permitted Disclosees will initiate, accept or engage in any contact of any kind with any Representatives, suppliers or customers of Zubre Creative Enterprises.
7.3 Nothing in this paragraph 7 shall prevent you from contacting any Representatives, suppliers or customers of the Zubre Creative Enterprises or of any other member of the Zubre Creative Enterprises in the ordinary course of your and/or their business for purposes unrelated to the Proposed Transaction.
8.1 You will not for a period of five (5) years after the date of acceptance of this letter use any Confidential Information to:
8.1.1 solicit or entice away or endeavour to solicit or entice away any person who is at any time during the course of such discussions employed by or provides his or her services to Zubre Creative Enterprises or will commit a breach of any contractual arrangement as a result, provided that the restrictions in this paragraph 8.1.1 shall not apply to the placing of any general non-targeted advertisement for the purposes of recruitment;
8.1.2 solicit or entice away or endeavour to solicit or entice away any distributor, agent, customer or supplier of Zubre Creative Enterprises ; or
8.1.3 encourage, procure or assist any distributor, agent, customer or supplier of Zubre Creative Enterprises , to restrict, vary or cease that relationship.
8.2 The undertakings in this paragraph 8 apply to actions carried out by you in any capacity and whether directly or indirectly, on your behalf, on behalf of any other person or jointly with any other person.
8.3 You agree and acknowledge that the restrictions contained in this paragraph 8 are fair and reasonable and necessary to assure to Zubre Creative Enterprises the protection, full value and benefit of the Confidential Information.
9.1 The termination of negotiations and the return of Confidential Information in accordance with the terms of this letter will not release you from your continuing obligations under this letter.
9.2 Save where the contrary is stated, the obligations in this letter will subsist indefinitely from the date of your acceptance of the terms of this letter. Termination of the obligations in this letter will not release any party from liability for breach before such termination.
- NO REPRESENTATIONS OR WARRANTIES
10.1.1 You acknowledge that neither Zubre Creative Enterprises nor any of its Representatives: accepts any responsibility or liability for the use of the Confidential Information by you or your Permitted Disclosees; and
10.1.2 is under any obligation to update or correct any inaccuracies which may become apparent in any of the Confidential Information.
- RIGHT OF REJECTION/TERMINATION
11.1 No Confidential Information or other information, communication or document made available or supplied to you by Zubre Creative Enterprises or by its representatives shall constitute an offer or invitation to you, nor will any such information, communication or document form the basis of any contract.
11.2 You agree that we are not obliged to accept any offer or proposal which may be made by you and that, save as may be expressly agreed between us, we may terminate negotiations with you at any time without giving any reason and without incurring any liability to you.
11.3 You are responsible for any costs incurred by you or any of your Representatives in considering or pursuing the Proposed Transaction/service and in complying with the terms of this letter.
12.1 You acknowledge that all Confidential Information shall remain our property and no rights or licence in the Confidential Information shall be conferred on you except as set out in this letter.
12.2 You confirm that you are acting as principal on your own account and not as agent or broker for any other person.
13.1 If you become aware of any announcement or any disclosure of Confidential Information which is or is reasonably likely to constitute a breach of any provision of this letter, you shall notify us immediately in writing and, without prejudice to any of our rights and remedies, you shall take such steps as we may reasonably require in order to remedy or mitigate the effects of such actual or threatened breach.
13.2 You acknowledge and agree that damages alone may not be an adequate remedy for any breach or threatened breach of the obligations set out in this letter and that we and each other member of Zubre Creative Enterprises shall be entitled to seek the remedies of injunction, specific performance and other equitable relief to the maximum extent available under any applicable law.
13.3 Without prejudice to paragraph 13.2, you accept full liability for the maintenance of the confidentiality of the Confidential Information and will therefore indemnify us and each other member of Zubre Creative Enterprises against any and all loss, damages, liabilities, costs and expenses suffered or incurred by us or by any other member of Zubre Creative Enterprises including without limitation legal fees and costs reasonably and properly incurred as a result of:
13.3.1 the breach or threatened breach of any of the obligations undertaken by you in this letter; and
13.3.2 any Permitted Disclosee failing to keep the Confidential Information confidential.
This letter is governed by and construed in accordance with Kenyan law. Please confirm your agreement to the terms of this letter by arranging for the enclosed copy to be signed on your behalf by a duly authorised signatory, dated and returned to Zubre Creative Enterprises at Off Exit 10 – Thika Road, Nairobi by no later than 3rd July 2018. The agreement constituted by this letter will come into effect on the date on which we receive your signed and dated letter. Signed
ACKNOWLEDGEMENT AND ACCEPTANCE
You have read and understood the contents of this letter and hereby confirm that YOU and YOUR Representatives and/or Permitted Disclosee’s accept to be bound by the terms stated herein.