The Confidentiality Agreement For Sale Of Business is a crucial document used in South African business transactions when a company or business owner is considering selling their business and needs to share sensitive information with potential buyers. This agreement, also known as a Non-Disclosure Agreement (NDA), is essential before commencing due diligence processes and detailed sale negotiations. It ensures that confidential business information, including financial records, intellectual property, customer data, and operational details, remains protected under South African law. The agreement is particularly important for compliance with local regulations such as POPIA, the Companies Act, and Competition Act. It should be put in place before any substantial information is shared and typically remains effective even if the sale negotiations do not result in a transaction.
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1. Parties: Identification of the disclosing party (seller), receiving party (potential buyer), and their legal representatives
2. Background: Context of the proposed business sale and purpose of the confidentiality agreement
3. Definitions: Definitions of key terms including 'Confidential Information', 'Representatives', 'Permitted Purpose', and 'Business'
4. Scope of Confidentiality: Detailed description of what constitutes confidential information and the extent of protection
5. Permitted Disclosures: Circumstances under which confidential information may be disclosed and to whom
6. Protection Measures: Security measures required to protect confidential information
7. Duration of Obligations: Time period for which confidentiality obligations remain in force
8. Return or Destruction of Information: Requirements for handling confidential information after negotiations end
9. Non-Solicitation: Restrictions on soliciting employees, customers, or suppliers
10. Breach and Remedies: Consequences of breaching the agreement and available remedies
11. General Provisions: Standard clauses including governing law, jurisdiction, and entire agreement
1. Electronic Information Security: Specific provisions for protecting digital information, recommended when significant electronic data is involved
2. Third Party Information: Additional provisions for handling information owned by third parties, needed when third party data is involved
3. Competition Law Compliance: Specific provisions ensuring compliance with competition laws, essential when parties are competitors
4. POPIA Compliance: Detailed provisions for personal information protection, required when personal data is involved
5. Site Visits: Protocols for on-site due diligence visits, needed when physical access to premises is required
6. Exclusive Negotiations: Provisions for exclusive negotiation periods, optional when seller wants to restrict buyer from negotiating with others
7. Costs: Allocation of costs related to confidentiality measures, optional when significant costs are anticipated
1. Schedule 1: Confidential Information: Detailed list of categories and types of confidential information covered
2. Schedule 2: Authorized Representatives: List of individuals authorized to receive and handle confidential information
3. Schedule 3: Security Protocols: Specific security measures and protocols to be followed
4. Schedule 4: Excluded Information: Information specifically excluded from confidentiality obligations
5. Appendix A: Non-Disclosure Certificate: Template for representatives to acknowledge confidentiality obligations
6. Appendix B: Information Return/Destruction Certificate: Template for certifying return or destruction of confidential information
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