List of active policies
By accepting the following policy, you agree to:
each Party acknowledges that, if a Party receiving Confidential Information (“the Receiving Party”), from the Party disclosing such information (“the Disclosing Party”), and the receiving party uses for its own benefit or disseminates the Confidential Information to third parties, the Disclosing Party probably will suffer considerable economic prejudice or irreparable harm, including, but not limited to, loss of custom, goodwill, and future profits;
The parties hereby agree to be bound by this agreement and undertake not to circumvent the other in any manner in respect of the proposed joint venture, nor to use any confidential and/or proprietary information so disclosed for its own gain whether such gain, is of a financial nature or not.
It is hereby recorded as follows:
1.1. the Parties are engaged (or are about to engage) in discussions in contemplation of entering into a possible business transactions with each another;
1.2. in the course of the contemplated discussions, each Party may have access to or have disclosed to it certain Confidential Information (as hereinafter defined) of the other;
1.3. each Party acknowledges that, if a Party receiving Confidential Information (“the Receiving Party”), from the Party disclosing such information (“the Disclosing Party”), and the receiving party uses for its own benefit or disseminates the Confidential Information to third parties, the Disclosing Party probably will suffer considerable economic prejudice or irreparable harm, including, but not limited to, loss of custom, goodwill and future profits;
1.4. the Disclosing Party considers it essential to protect its Confidential Information, and the Receiving Party agrees to an undertaking in its favour as contemplated in this Agreement;
1.5. Accordingly, the Parties contract with each other as set out in this Agreement.
2. CONFIDENTIAL INFORMATION
2.1. As used herein, Confidential Information shall mean any information and data of a confidential or proprietary nature which is disclosed by the Disclosing Party to the Receiving Party that is reasonably regarded as confidential, including, all information, but not limited to customer information, financial, personnel, marketing, pricing, sales and/or commercial information and other related information which are disclosed pursuant to this Agreement or any other information of any kind whatsoever disclosed or transmitted to the Receiving Party or its agent or employees, whether disclosed orally, in writing or otherwise and which derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use.
2.2. Notwithstanding the provisions of clauses 2.1 above, it is recorded, for the sake of clarity and avoidance of doubt, that a Party shall be entitled to disclose such Confidential Information to any competent or regulatory authority or to its advisers, agents, bankers or any other related party as envisaged in clause 6.3 below as shall reasonably be required to give effect to any duty imposed by law or by any competent or regulatory authority.
3.1. The purpose of the disclosure of Confidential Information is to enable the Parties to advance their efforts pertaining to a potential business engagement involving the Parties. The Receiving Party shall use the confidential information for this purpose only.
3.2. Any Party may be a Receiving Party and/or a Disclosing Party under the terms hereof.
4.1. The Disclosing Party retains all right and title to and interest in the Confidential Information.
4.2. The Confidential Information shall be considered valuable trade secrets, owned by the Disclosing Party.
4.3. No license to the Receiving Party, under any trademark, patent or copyright, or applications for same which are now or may thereafter be obtained by such Receiving Party, is either granted or implied by the conveying of Confidential Information to the Receiving Party.
5. NO WARRANTIES
5.1. The Disclosing Party assumes no responsibility for any loss or damages to the Receiving Party, its customers or any third parties caused by or arising from the Confidential Information.
5.2. The Disclosing Party makes no warranties of any kind, whether expressed or implied, as to the accuracy or completeness of the Confidential Information. Only those representations or warranties which are made in or pursuant to one or more final agreement/s regarding a transaction involving the Parties will have any legal effect.
6.1. Each Party undertakes in favour of the other that it shall, use all the other’s Confidential Information so disclosed to it exclusively for the purposes stated in clause 3 above.
6.2. The Receiving Party recognises and agrees that this Agreement imposes an affirmative duty to hold such information in confidence and protect it from dissemination to and use by unauthorised persons. In the absence of the Disclosing Party’s prior written consent, the Receiving Party shall not reproduce nor directly or indirectly divulge or disclose any of the Confidential Information to any third party.
6.3. The Receiving Party agrees to use the same degree of care to protect the confidentiality of the Confidential Information as it would exercise to protect its own trade secrets, but in no case less than a reasonable degree of care. The Receiving Party will grant access to the Confidential Information only to its directors, officers, employees, affiliates, agents, advisers and consultants (“related parties”) who have a clear need to know for purposes of this Agreement, and shall advise those related parties of the existence and terms of this Agreement and of the obligations of confidentiality herein.
6.4. The Receiving Party will be responsible for the observance of the terms of this Agreement by its related parties, and shall not divulge or disclose any of the Confidential Information to the related parties other than for the purpose of this Agreement.
6.5. The Receiving Party, acting as the duly authorised agent for any of the related parties, hereby agrees that each of the related parties shall observe the restrictions contained in this Agreement as if each of the related parties had been included in the description of the Disclosing Party.
6.6. Each Party acknowledges and agrees that it will be liable to the other Party for any breach of this Agreement by its related parties, and indemnifies the other against all and any loss, liability, damage or expense whatsoever, which shall include all legal costs on an attorney and own client scale, which the Disclosing Party may directly or indirectly suffer or incur as a result of or which may be attributable to:
6.6.1. an intentional or negligent disclosure of the Confidential Information to any unauthorised party whomsoever or whatsoever by the Receiving Party, and/or its related parties; or
6.6.2. any unauthorised use of the Confidential Information by the Receiving Party, and/or its related parties, or any authorised or unauthorised party who acquired the Confidential Information through the Receiving Party, and/or its related parties.
6.7. The Receiving Party will, on written demand by the Disclosing Party, deliver to the Disclosing Party, or certify in writing to the Disclosing Party as to the destruction of (without retaining any copy), all Confidential Information (and copies and extracts thereof) furnished to or created by or on behalf of the Receiving Party. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party will continue to be bound by its obligations of confidentiality and other obligations hereunder.
6.8. Notwithstanding the aforegoing, no information shall be considered Confidential Information if such information:
6.8.1 was in the Receiving Party’s possession before execution of this Agreement, provided that the source of such information, to the knowledge of the Receiving Party after due inquiry, was not bound by an obligation of confidentiality to the Disclosing Party with respect to such information;
6.8.2 is or becomes generally available to the public through no fault of, or without breach of any duty of confidentiality of the Receiving Party; or
6.8.3 is received by the Receiving Party from a third party without, to the knowledge of the Receiving Party after due inquiry, breach of a duty of confidentiality to the Disclosing Party;
6.8.4 was required to be made public:
188.8.131.52 by law or regulation;
184.108.40.206 in response to a valid order of a court with competent jurisdiction;
220.127.116.11 by an authorised agency of government or in terms of legal process; or
18.104.22.168 by any competent or regulatory authority,
provided that prior written notice first be given to the Disclosing Party so that a protective order or other relief, if appropriate, may be sought by the Disclosing Party.
6.9. The Parties recognise and acknowledge that Confidential Information may be of a special, unique and extraordinary character to the Disclosing Party and that disclosure, misappropriation or unauthorised use of such Confidential Information by the Receiving Party may not be fully compensated and that, further, any such disclosure, misappropriation or unauthorised use of the Confidential Information may cause irreparable injury to the Disclosing Party. The Receiving Party expressly agrees, therefore, that the Disclosing Party, without prejudice to any other rights and remedies it may have under this Agreement or at law, shall be entitled to enforce the confidentiality by means of an interdict, specific performance or other equitable relief.
7.1 The parties hereby agree to be bound by this agreement and undertake not to circumvent the other in any manner in respect of the proposed joint venture, nor to use any confidential and/or proprietary information so disclosed for its own gain whether such gain, is of a financial nature or not.
7.2 The parties agree that in the event of either party circumventing this agreement, the other shall suffer irreparable financial harm and that in such event such party shall be entitled to obtain the appropriated immediate protection from any Court of Law and in such event be entitled to punitive order as to cost, as between the attorney and own client scale. Furthermore, both parties agree that in the event of a breach, of this clause that it shall be liable for all losses so sustained by the other, as a direct result thereof.
7.3 The parties hereby agree and undertake not to circumvent the other in any manner in respect of the customer where the other party has the contractual relationship with the customer, nor to engage any of the customers holding companies, subsidiaries, successors, licensees and common shareholding, either by itself or as an agent of anyone else, whether directly or indirectly, persuade, induce, or solicit for its own gain whether such gain, is of a financial nature or not.
8.1 Each party agrees that during the term and for TWELVE months after the end of the term it shall not directly or indirectly solicit with a view to offering employment, an engagement on behalf of itself or any other person or organization without the other party's prior agreement in writing.
8.2 Further, each party agrees that during this agreement or in the furtherance of any subsequent future negotiation or agreement, each party agrees not to directly or indirectly solicit with a view to offering employment to any of the staff complement of either party.
8.3 If such unlawful, deliberate and/or intentional solicitation does occur, and is successfully put to the proof thereof, it shall be actionable in terms of the requisite laws.
9.1 Subject to the provisions of clause 6.7 above, the Receiving Party shall maintain the Confidential Information in confidence in accordance with the terms of this Agreement indefinitely from the date of receipt of the Confidential Information. Duties of non-disclosure as set forth in clause 6 of this Agreement shall survive any termination of the Agreement.
9.2 No licence to the Receiving Party, under any trademark, patent or copyright, or applications for same which are now or may thereafter be obtained by such Receiving Party, is either granted or implied by the conveying of Confidential Information to the Receiving Party.
9.3 Unless and until a final agreement with respect to a business engagement involving the Parties has been executed and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such an engagement by virtue of this Agreement except for the matters expressly agreed to herein.
9.4 Each of the Parties represents and warrants that its actions with respect to this Agreement do not conflict with any prior obligations to any third party.
9.5 The Parties further agree not to disclose or to use on behalf of the other Party any Confidential Information belonging to any third party, unless sufficient written authorisation from the third party is provided.
9.6 This Agreement shall be binding upon, and endure for the benefit of the Parties and their successors and assigns.
9.7 The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. No waiver by any Party of any right under this Agreement shall be effective unless reduced to writing and signed by or on behalf of such Party.
9.8 No indulgence granted by a Party shall constitute a waiver or abandonment of any of that Party’s rights under this Agreement; accordingly, that Party shall not be precluded, as a consequence of having granted that indulgence, from exercising any rights against the other Party which may have arisen in the past or which may arise in the future.
9.9 No Party may cede any of that Party’s rights and/or delegate any of that Party’s obligations in terms of this Agreement without the prior written consent of the other Party.
9.10 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, it shall be enforced to the extent legally permissible and as necessary to reflect the intent of the Parties and shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect.
9.11 No contract varying, adding to, deleting from or cancelling this Agreement, and no suspension of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
9.12 This Agreement is binding upon each Party and their respective affiliates, subsidiaries or associated companies.
9.13 This Agreement contains all the express provisions agreed on by the Parties with regard to the subject matter of the Agreement and the Parties waive the right to rely on any alleged express provision not contained in the Agreement.
9.14 This Memorandum shall be governed and constructed in accordance with the laws of South Africa.
10 DOMICILIUM CITANDI ET EXECUTANDI
10.1 The Parties choose domicilium citandi et executandi for all purposes of giving any notice, the payment of any sum, the serving of any process and for any other purpose arising from this Agreement, at the addresses referred to next to the Parties’ respective names.
10.2 Each of the Parties shall be entitled from time to time, by written notice to the other, to vary its domicilium citandi et executandi to any other physical address within the Republic of South Africa.
10.3 Any notice and any payment made by any party to any other which is delivered by hand to a responsible person of such party, during normal business hours of the addressee at the addressee’s domicilium citandi et executandi for the time being, shall, unless the contrary is proven, be presumed to have been received by the addressee at the time of delivery.