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This Agreement is entered into by Ecozyme Enzymes CC and The Person and Legal Entity Accessing the Public Server Link
1. INTERPRETATION AND DEFINITIONS
In this agreement:-
1.1. unless the context indicates a contrary intention an expression which denotes:-
1.1.1. any gender includes the other genders;
1.1.2. a natural person includes a juristic person and vice versa;
1.1.3. the singular includes the plural and vice versa;
1.1.4. the headings in this agreement are used for the sake of convenience and shall not govern the interpretation hereof;
1.1.5. words and expressions defined in any clause, unless it is clear from the clause in question that the word or expression so defined has limited application to the relevant clause, shall bear the same meanings ascribed to them for all purposes in terms of this agreement;
1.1.6. where a number of days are prescribed in this agreement it shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Sunday or public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day, which is not a Sunday or public holiday;
1.1.7. in the event that the day for performance of any obligation to be performed in terms of this agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;
1.1.8. the use of the word "including" or "includes" followed by a specified example or instance shall not be construed as limiting the meaning of the general wording succeeding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific examples;
1.1.9. the rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the agreement, shall not apply; and
1.1.10. the interpretation, construction and effect of this agreement and the rights and obligations of the Party hereto shall be governed by the laws of the Republic of South Africa.
1.2. "Business Day" means any day other than a Saturday, Sunday or public holiday officially proclaimed as such in the Republic of South Africa;
1.3. "Confidential Information" means:-
1.3.1. information relating to either Party's existing and future strategic objectives and planning;
1.3.2. information relating to either Party's business activities, business relationships, products, formulas, services, competitors, suppliers, customers, and clients;
1.3.3. existing products, planned new products, existing patents, planned new patents, cost and selling price lists, pricing policies and financial and business information;
1.3.4. information relating to the customers of either Party, which such Party is obliged to keep confidential by virtue of its relationship with its customers;
1.3.5. information contained in either Party's software and associated material documentation;
1.3.6. technical, scientific, commercial, financial and market information, know-how and trade secrets;
1.3.7. data concerning business relationships, demonstrations and processes;
1.3.8. plans, designs, drawings, functional and technical requirements and specifications;
1.3.9. information concerning either Party's systems, hardware and/or software, defects occurring in such systems, hardware and/or software, or the incidence of such faults or defects;
1.3.10. information concerned with discoveries, research, developments, methods, processes, procedures, improvements, "know-how" and compilations; and
1.3.11. market research, marketing techniques and plans conducted or drawn up by either Party;
1.4. "Disclosing Party" means the Party disclosing the Confidential Information;
1.5. The Disclosing Party means a company duly registered in terms of the company laws of the Republic of South Africa, that representative having been duly authorized thereto by way of resolution;
1.6. The Receiving Party means a company duly registered in terms of the company laws of the Republic of South Africa, that representative having been duly authorized thereto by way of resolution;
1.7. "Parties" mean The Disclosing Party as well as the Receiving Party, and "Party" shall mean either one of them as the context indicates;
1.8. "Receiving Party" means the Party receiving the Confidential Information, and any of its subsidiaries, holding companies, manufacturing companies, trade partners, manufacturing and product development partners, or agents or suppliers based within or anywhere outside of the borders of the Republic of South Africa.
2. SUPPLY AND USE OF INFORMATION
2.1 The Parties intend to disclose their Confidential Information to each other for either the purposes of a potential business transaction involving a new product or an existing business transaction or agreement;
2.2 Both Parties therefore agree:
2.1.1 to keep each other's Confidential Information confidential;
2.1.2 not to use each other's Confidential Information except for the purpose for which such disclosure was intended;
2.1.3 not to disclose each other's Confidential Information to any third party and to use reasonable efforts to prevent any such disclosure except as expressly permitted by this agreement;
2.1.4 that the entering into of this agreement and the furnishing of the Confidential Information will not constitute an offer or request of any nature whatsoever by any Party, nor form the basis of any contract and no Party is obliged by virtue of entering into this agreement or disclosing the Confidential Information to continue discussions or negotiate towards any agreement relating to the purpose or to refrain from pursuing any other transactions of a similar nature; and
2.1.5 the conclusion of the appropriate definitive agreements pertaining to the purpose, if any at all, will be covered in an additional and separate agreement between the relevant parties to such a transaction and agreement.
3.1 The Parties acknowledge that each other's Confidential Information is valuable, special and a unique proprietary asset to each of them.
3.2 Both Parties shall protect each other's Confidential Information through the exercise of the precautions set
out in this agreement and shall use no less protection and care than they customarily use in preserving and safeguarding their own Confidential Information, which shall be at least a reasonable standard of care.
3.3 Both Parties shall keep each other's Confidential Information in a secure environment, and not copy or use each other's Confidential Information except as is reasonably necessary in connection with furthering the purpose set out above.
3.4 The Parties agree to advise each other immediately if they are aware or reasonably suspect that the security of each other's Confidential Information has or may be compromised in any way.
3.5 The Parties shall not utilize, exploit, reproduce, sell, copy, disclose, disseminate or transfer to any third party in whole or in part any of each other's Confidential Information except:
3.5.1 with the prior written consent of the Disclosing Party;
3.5.2 to those of its directors, contractors, advisers and employees as are or are likely to be directly concerned with furthering the purpose or incidental matters and who need to know the Confidential Information (or any part of it) for the purpose of furthering the purpose;
3.5.3 to those of its professional advisers engaged to advise in respect of the purpose and who need to know the Confidential Information (or any part of it) in order to advise the Receiving Party, provided that the Receiving Party shall procure that each of those directors, contractors, employees and professional advisers to whom the Confidential Information is to be disclosed is made aware of and shall undertake to adhere to the terms of this agreement as if he/she were a party to it; or
3.5.4 to the extent such disclosure is required by any court of competent jurisdiction or required or requested by a governmental or regulatory authority or where there is a legal right, duty or requirement to disclose or where disclosure is required to comply with the provisions of any law or regulation in force from time to time, provided that (and without breaching any legal or regulatory requirement) where reasonably practicable the Parties give each other not less than 2 business days' notice in writing of the requirement to make such disclosure.
3.6 Neither Party shall, without the prior written consent of the other Party, permit any third party to have access to the other Party's Confidential Information where the Receiving Party is notified, or ought reasonably to know, that such third party is, or is employed by, a direct competitor of the Disclosing Party.
3.7 Neither Party shall use the other Party's Confidential Information in any way that is directly or indirectly detrimental to the other Party, or deliberately alter its trading terms to the financial benefit of any market competitor of the other Party, or commence trading directly with any client or supplier of the other Party, or so as to procure any commercial advantage over the other Party.
3.8 The Parties agree that the unauthorized disclosure of the other Party's Confidential Information to a third party may cause irreparable loss, harm and damage to the other Party. Accordingly, the Receiving Party indemnifies and holds the Disclosing Party harmless against any loss, claim, harm or damage, of whatever nature, suffered or sustained by the disclosing party pursuant to a breach by the receiving party of the provisions of this agreement.
Notwithstanding anything to the contrary elsewhere contained, the Parties shall be bound by the terms of this agreement for a period of 36 (thirty six) months from the date The Public Server Link Document was emailed to the Recipient. In the case of an existing direct or indirect client and supplier relationship, the Parties shall be bound by this agreement for a period of 36 (thirty six) months from the last transaction date between the associated Parties.
5. OWNERSHIP AND RETURN OF CONFIDENTIAL INFORMATION
5.1. Notwithstanding anything to the contrary herein, each Party's Confidential Information shall remain the property of that Party, and neither Party shall acquire the right to use, or rights of ownership in, the other Party's Confidential Information except as expressly set out in this agreement.
5.2. The Disclosing Party may, at any time, request the Receiving Party to return any material containing, pertaining to or relating to Confidential Information disclosed pursuant to the terms of this agreement and may,
in addition request the Receiving Party to furnish a written statement to the effect that, upon such return, the Receiving Party has not retained in its possession, or under its control, either directly or indirectly, any such material.
5.3. As an alternative to the return of the Confidential Information contemplated in clause 5.2 above, the Receiving Party shall, at the written instance of the Disclosing Party, destroy such material and furnish the Disclosing Party with a written statement to the effect that all such material has been destroyed.
5.4. The Receiving Party shall comply with a request in terms of this clause, within 7 (seven) days of receipt of such a request.
The Disclosing Party irrevocably and unconditionally warrants and represents to the Receiving Party, that to best of its knowledge the Confidential Information is true and correctly reflects what it sets out to be.
7. NOTICES AND DOMICILIUM
7.1. The Parties select as their domicilia citandi et executandi for all purposes as stipulated in clause 9 below.
7.2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
7.3. Either Party may by notice to the other Party change the physical address chosen or email address as its domicilium citandi et executandi to another address and such change shall become effective on the 21st day from the deemed receipt of the notice by the other Party.
7.4. Any notice to a Party delivered by hand to and singed-off by a responsible person during ordinary business hours at the physical address stipulated in clause 7.1 shall be deemed to have been received on the day of delivery.
7.5. Notwithstanding anything to the contrary contained herein, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
8.1 This agreement constitutes the entire agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in this agreement.
8.2 Neither Party may cede, assign, transfer or attempt to assign or transfer its rights or obligations under this agreement without the prior written consent of the other Party. Any attempt to cede, assign or transfer rights or obligations under this agreement in violation of this clause will be void and of no force and effect.
8.3 Nothing in this agreement shall be construed as a waiver or limitation of the rights of a Party to enforce any common law or statutory right, which it may have in regard to the subject matter of this agreement.
8.4 No variation or consensual cancellation of this agreement and no addition to this agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorized representatives.
8.5 No waiver of any of the terms and conditions of this agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto 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 hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
8.6 Should any of the terms and conditions of this agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions, which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of being amended to render it valid, the Parties agree to negotiate an amendment to remove the cause of such invalidity.
8.7 The Parties hereby consent and submit, to the extent legally permissible, to the non-exclusive jurisdiction of the South Gauteng High Court, Johannesburg, in any dispute arising from or in connection with this agreement.
8.8 Notwithstanding termination of this agreement, any clause, which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.
8.9 This agreement may be executed in counterparts and by each Party in a separate counterpart, each of which so executed shall be an original, but all of which shall together constitute one and the same instrument.