- Confidential Information will be disclosed to and received by the CA on the express condition that it will be used only for the Purpose, and that the CA will not otherwise use or attempt to use the Confidential Information or any part of it for the CA’s exclusive advantage or gain, or the advantage or gain of any other person, directly or indirectly.
- The CA will keep secret and confidential the Confidential Information and will not at any time, either during the continuance of its engagement with CONNECT-IT or after the termination of such engagement, without the prior written consent of CONNECT-IT:
- disclose, divulge, make known or in any way communicate to any person in any part of the world, other than to employees of the
- CA who have a need to know the Confidential Information for the Purpose, or to employees of CONNECT-IT who have a need to know the Confidential Information; or
- use or attempt to use in any manner which might cause or be calculated or likely to cause injury or loss to CONNECT-IT; (any of the Confidential Information which the CA has acquired or received or created or will acquire or receive or create while engaging with CONNECT-IT.)
- The CA shall at all times take or cause to be taken such reasonable precautions as may be necessary to maintain the secrecy and confidentiality of the Confidential Information and to prevent its disclosure including, without limitation, the following:
- The CA shall disclose the Confidential Information only to employees of the CA on a “need to know” basis;
- The CA shall ensure that it notifies employees to whom any of the Confidential Information has been disclosed, of the confidential nature of the information and the CA’s obligations under this Agreement;
- The CA shall not copy any material (whether on paper, microfilm, audio or video tape, cassette or disc, laser disc, computer software, magnetic tape, disc or cassette or any other medium of storing or recording information) or things (including tooling, patterns, moulds, dies, jigs, fixtures, and other aids to production) comprising or containing any of the Confidential Information, nor reproduce the Confidential Information in any manner, except as may be strictly necessary for the Purpose;
- The CA shall use all reasonable endeavours to ensure that the Confidential Information does not fall into the hands of an unauthorised third party;
- The CA will immediately upon demand by CONNECT-IT deliver to CONNECT-IT or if requested by CONNECT-IT destroy (and certify to CONNECT-IT the proper destruction of) all (or such parts as may be specified by CONNECT-IT) material (whether documents, microfilm, audio or video tape, cassette or disc, laser disc, computer software, magnetic tape, disc or cassette or any other medium of storing or recording information) and things (including tooling, patterns, moulds, dies, jigs, fixtures, and other aids to production) comprising or containing any of the Confidential Information, which are in its possession, power or control.
- Notwithstanding any other provision of this Agreement, the CA shall be authorised to disclose the Confidential Information to a third party where it is required by law to be disclosed by the CA, but only to the extent of such order and the CA shall inform CONNECT-IT of such requirement prior to making any such disclosure.
Should a Party be in breach of any of the terms or conditions hereof and fail to remedy such breach within 10 (ten) Business Days of the receipt of notice, then the aggrieved Party shall be entitled at such Party's option to institute proceedings immediately for enforcement of the terms of this Agreement or alternatively and without further notice to declare this Agreement cancelled all of which may be done without prejudice to any claim the aggrieved Party may have for damages arising from breach of contract or any other cause.
The CA shall indemnify and continue indemnifying CONNECT-IT from any and all direct, indirect and consequential loss, liability, damage, claim, cost and expense (including without limitation reasonable attorneys’ fees) arising from or in connection with any breach by the CA of any term or condition of this Agreement.
21. CESSION AND ASSIGNMENT
The rights and obligations of the Parties are personal and may not be ceded, assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of the other Party.
22. FORCE MAJEURE
- If one of the Parties is prevented by force majeure from performing any of its obligations under this Agreement, that Party will promptly inform the other Party in writing of the circumstances amounting to force majeure, and such non-performance will then be excused. The first-mentioned Party will keep the other Party informed in writing of developments which may affect the matter and will where reasonably possible remedy the non-performance promptly after that Party becomes able to do so.
- If conditions of force majeure persist for more than 2 (two) calendar months, the Party to which such performance was owed may terminate this Agreement with immediate effect on written notice to the other Party.
- Force majeure will for the purposes of this clause include acts of nature, statutes, ordinances, proclamations and decrees of national and regional governments and other civil or military authorities, and acts of third parties such as riots, strikes, arson, and malicious damage to property.
23. NO REPRESENTATION
No Party may rely on any representation which allegedly induced that Party to enter into this Agreement, unless the representation is recorded in this Agreement.
24. GOVERNING LAW
This Agreement shall be governed in all respects by the laws of the Republic of South Africa.
25. WHOLE AGREEMENT
- This document constitutes the whole of the agreement (to the exclusion of all else) between the Parties relating to the subject matter hereof.
- No amendment, alteration, addition, variation or consensual cancellation of this document will be valid unless in writing and signed by the Parties.
- No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the same and any such waiver will be effective only in the specific instance and for the purpose given.
- No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other of further exercise thereof or the exercise of any other right, power or privilege.
27. CHOSEN ADDRESS
Each Party chooses as its address for citation, service of legal processes, execution or any other purpose connected with this Agreement, his address set out here in which it shall be entitled to vary on notice provided that such address shall remain within the same magisterial district.
- CONNECT-IT choose as its addresses and contact numbers for all purposes in terms of this Agreement, the following addresses and contact numbers:
- Postal Address: Postnet Suite 11, Private Bag X8, Elarduspark, Gauteng, South Africa 0047;
- Physical Address: Block D Futurum Office Park, cnr Jean & Lenchen Avenues;
- Attention Person: Legal Head;
- E-mail Address: email@example.com;
- The CA chooses as its addresses and contact numbers for all purposes in terms of this Agreement, the addresses and contact numbers set out in the Agreement Particulars in Schedule 1 hereto.
- Any formal notice, request instruction or other document to be given hereunder, other than normal day to day correspondence between the Parties, shall be delivered or sent by registered post, facsimile transmission or e-mail address to the contacts set out hereunder as their chosen address. Any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) on the seventh (7th) Business Day following posting and (if sent by facsimile transmission or by e-mail) upon the expiration of 24 hours after dispatch.
In the event that any of the provisions of this Agreement are found to be invalid, unlawful or unenforceable, such terms shall be severable from the remaining terms, which shall continue to be valid and enforceable.
30. DISPUTE RESOLUTION
- A dispute concerning or arising out of this Agreement exists once a Party notifies the other Party in writing of the nature of the dispute and requires it to be resolved under this clause.
- In the first instance, the senior management of the Parties shall meet to attempt to resolve the dispute in an amicable way, failing which the Parties must refer any dispute to be resolved by:
- mediation; failing which
- Within 10 (ten) Business Days of notification of the dispute, the Parties must seek an amicable resolution to the dispute by referring it to designated and authorised representatives of each of the Parties to negotiate and resolve it by signing an agreement. If negotiation fails, the Parties must refer the dispute for resolution by mediation under the rules of the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead) (”AFSA“).
- If mediation fails, the Parties must refer the dispute within 10 (ten) Business Days for resolution by arbitration (including any appeal against the arbitrator’s decision) by one arbitrator (appointed by agreement between the Parties) as an expedited arbitration in Sandton under the then current rules for expedited arbitration of AFSA. The arbitrator shall be, if the matter in dispute is principally:
- a technical matter, an independent technical expert of not less than 10 (ten) years’ experience in the relevant technical area;
- an accounting matter, an impartial chartered accountant of not less than 10 (ten) years’ standing; or
- a legal matter, an impartial practicing advocate of not less than 10 (ten) years’ standing.
- If the Parties cannot agree on any arbitrator within a period of 10 (ten) Business Days after the referral, the arbitrator will be appointed by the Secretariat of AFSA. The periods for negotiation or mediation may be shortened or lengthened by written agreement between the Parties.
- This clause 30 will not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process, for which purpose the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.
- This clause 30 is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified, or cancelled for any reason or cause.
31. NO PARTNERSHIP
Nothing herein contained shall be construed so as to create or deem a partnership between the Parties hereto or to deem one Party as a representative of or employee of the other and neither Party shall be entitled to bind the other, whether in contract or otherwise.
Signed by the Parties hereto, in acknowledgement that they have read the terms and conditions of this Agreement; that they understand all such terms and conditions and that they agree to be bound thereby, the signatories warranting, by their signature hereto, that they are duly authorised to sign this Agreement: