RE: CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION UNDERTAKING
1. We acknowledge that, in connection with your interest in our disclosing to you certain confidential information, intellectual property, company secrets and technical knowhow which vests in us in regard to the Training, Web Design, Methodology, Structure, Sales and Marketing of BizHub Central and the Intellectual Property contained therein, which will be furnished to you after signature of this undertaking, (“the Intellectual Property”), you have requested or will request that we or our representatives furnish you or your representatives with certain information relating to the Intellectual Property.
2. All such information (whether written or oral) if furnished (whether before or after the date hereof) by us or our directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents for any transaction involving the use of the Intellectual Property (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in connection with your or their review of, or your interest in, the Intellectual Property which contain or reflect any such information is hereinafter referred to as the “Information”. The term “Information” will not, however, include information which –
2.1 is or becomes publicly available other than as a result of a disclosure by us or our Representatives, or
2.2 is or becomes available to you on a non-confidential basis from a source (other than us or our
Representatives) which, to your knowledge after due inquiry, is not prohibited from disclosing such information to you by a legal, contractual or fiduciary obligation to us.
3. Accordingly, before we can give you access to any Information we ask that you agree, by having your authorised Representative/s sign and return a copy of this letter to us, that –
3.1 You and your Representatives will keep the Information confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 3.4 below), without our prior written consent, disclose or use or allow any other party to use any Information in any manner whatsoever other than for the purpose of evaluating the Intellectual Property and if appropriate, implementing the Intellectual Property in conjunction with us, provided, however, that you may reveal the information to your Representatives –
3.1.1 who are identified to us by name as being the minimum persons who need to know the information for the purpose of evaluating the Intellectual Property with us,
3.1.2 who are informed by you of the confidential nature of the Information and,
3.1.3 who undertake to us in writing to act in accordance with the terms of this letter agreement, by their signatures in Annexure “A”.
3.2 You will cause your Representatives to observe the terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your Representatives.
3.3 You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 3.4 below) without our prior written consent, disclose to any person the fact that the Information exists or has been made available, that you are considering any other transaction involving the Intellectual Property, or that discussions or negotiations are taking or have taken place concerning the Intellectual Property or any term, condition or other fact relating to the information or such discussions or negotiations, including, without limitation, the status thereof.
3.4 In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a protective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that we waive compliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are advised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Information.
3.5 If you determine not to conclude any agreement with us for use of the Intellectual Property, you will promptly inform us of that decision and, in that case, and at any time upon our request or any of our Representatives, you will either –
3.5.1 promptly destroy all records of the written Information in your or your Representatives’ possession and confirm such destruction to us in writing, or
3.5.2 promptly deliver to us at your own expense all records of the written Information in your or your Representatives’ possession.
3.6 Any orally conveyed Information will continue to be subject to the terms of this letter agreement.
3.7 You acknowledge that neither we nor our Representatives, nor any of our or their respective officers, directors, employees or agents makes any express or implied representation or warranty as to the accuracy or completeness of the Information, and you agree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with us with respect to the use of the Intellectual Property, subject to such limitations and restrictions as may be contained therein.
3.8 You agree that, for a period of three years from the date of this letter agreement, you will not, directly or indirectly, solicit for employment or hire any employee of our company or any of its subsidiaries or other affiliates with whom you have had contact or who become known to you in connection with your consideration of the Intellectual Property.
3.9 You agree that all –
3.9.1 communications regarding the Intellectual Property,
3.9.2 requests for additional information, models or management meetings, and
3.9.3 discussions or questions regarding procedures with respect of the Intellectual Property,
will be first submitted to us and further, that the Intellectual property shall not be implemented by you in any manner whatsoever, unless in conjunction with us.
3.10 You acknowledge and agree that (a) we and our Representatives are free to deal with the Intellectual Property as we and our Representatives, in our sole discretion, determine, (b) we reserve the right, in our sole discretion, to change the procedures relating to our consideration of any possible use by you or any other party of the Intellectual Property at any time without prior notice to you or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the Intellectual Property, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Intellectual Property has been executed, neither we nor any of our Representatives will have any liability to you with respect to the Intellectual property, whether by virtue of this letter agreement, any other written or oral expression with respect to the Intellectual Property or otherwise.
3.11 You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach of this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies otherwise available to us, you agree to the granting of interdictory relief in our favour without proof of actual or potential damage. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, non-appealable order that this letter agreement has been breached by you or by your Representatives, then you will reimburse the Company for all its costs and expenses (including, without limitation, legal fees and expenses on the attorney and own client scale) incurred in connection with all such litigation.
3.12 You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information, and no amendments, novation or consensual cancellation of this letter agreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by each of you and us.
Please confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed herewith.
Name: Paul von Wildenrath
For: BizHub Central
Accepted and agreed:
Signed: ____________________________________________ Signed: ____________________________________________
Name: ____________________________________________ Name: ____________________________________________
For: _______________________________________________ For: _______________________________________________
Witness 1: ____________________________________________ Witness 2: ____________________________________________