NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT THIS AGREEMENT is made and entered into this 5th day of May, 2008, by and between: _________________________________________________________________, a _________________________________________________________________, (hereinafter called “Contractor”), having its registered address at ______________________________________________________________ and Superstrike Investments 68 (Pty) Limited T/A QPower (hereinafter called QPower), a Private Company, having its registered address at P.O. Box 55860 Northlands 2116. CONDITIONS OF NON-DISCLOSURE: The parties have concluded that the following understanding should establish the conditions under which the Proprietary Information of the parties can be disclosed or exchanged. 1. The Proprietary Information may include, for example, business plans, data reports, methods of doing business, customer lists, price lists, studies, findings and ideas, but is not limited to these items. 2. The parties intend to maintain the trade secret status of its QPower’s Proprietary Information. 3. QPower shall designate or mark the proprietary nature of its Proprietary Information as "Confidential or in some other appropriate manner, so that the Contractor is aware that its receipt is governed by the terms of this Agreement. In the event of verbal disclosures, QPower shall promptly inform the Contractor if such disclosure is confidential. In addition, all program materials and vendor names are considered Proprietary Information. 4. It also includes collectively, all of the intellectual property in respect of or relating to or resulting from or derived from or attaching to the know-how, QPower’s signage, the trade marks and/or the trade name, it being recorded that the QPower is the proprietor of the intellectual property. For the purposes of this agreement, know how shall be deemed to include but is not be limited to: the QPower’s distinctive styles, systems, knowledge, operational expertise, experience, goodwill, copyrights, trade marks, trade secrets, information, management control systems, procedures for inventory, store design and lay-out. Know-how includes all confidential technical and commercial information relating to the operation of the business system existing from time to time, including, without limitation, information contained in the operating manual or other documents together with unrecorded information known to individuals who
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are office bearers or employees or QPower. Technical information includes inter alia all specifications, methods of production or manufacture, coordinating and/or accumulating various components, ingredients, accessories and formulae developed or utilised by QPower 5. The Proprietary Information relates to the supply and commissioning of Sustainable Power and Energy Solutions, and includes the business of setting up of any franchise outlet of the QPower, which offers Green and alternative Power Solution and Power saving products and packages for sale. Included in the method of operation is the establishing and operating as a supplier to parties that will trade as an energy solution franchise (the business) wherein QPower supplies goods or specifies the supplier of goods, co-ordinates and/or accumulates various components, accessories, methodologies and business practices and facilitates in setting up the operation of the business in a specified format, so devised and originated by QPower and recorded in its operating manual, and includes any improvements or variations made to the business system and who is the owner of certain intellectual property rights used in conjunction with the business system; 6. The Contractor acknowledges that he has no knowledge and has not participated in the development of the know-how or intellectual property other than that acquired from QPower in terms of the agreement; 7. The Contractor agrees that the know-how and intellectual property, brand names etc. are the property of QPower and that it constitutes confidential information in which QPower has made a substantial investment and that it has a legitimate right to protect itself against unlawful or unauthorised disclosure; 8. The Contractor shall not, during the subsistence of this agreement or at any time after its termination, disclose, exhibit or reproduce to any person whatsoever, other than those persons in its employment to whom disclosure must be made to enable the business to be conducted, any aspect of the know-how; 9. The Contractor undertakes that, save as provided herein, it shall not during the subsistence of this agreement nor at any time after its termination for any cause whatsoever, for its own benefit or on behalf of any other person, directly or indirectly, make use of, avail itself of or derive any profit, benefit, or advantage from the Franchisor confidential information, which includes but is not limited to the know-how; 10. During the period of this agreement nor after the termination for whatsoever reason, for his own benefit, make use of, or derive any profit from, nor benefit from any other information that is the property of QPower; 11. The Contractor acknowledges that the intellectual property and know-how, that has been developed and are being developed, remain the property of QPower, and the Contractor has no right in respect thereof, unless as is provided for in this agreement.
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12. The parties’ representatives for disclosing and receiving Proprietary Information are designated below. Said representative shall make all arrangements and be informed of all communications relating to this Agreement. 13. Each party shall exercise reasonable care to prevent disclosure of the party’s Propriety Information to any third party, except as may be authorized in writing by the other party. Internal dissemination of Propriety Information shall be limited to those employees whose duties justify their need to know such information and then only on the basis of a clear understanding by these employees of their obligation to maintain the trade secret status of such information and to restrict the us of such information solely to the use granted to the other party under this agreement. 14. The parties shall not use the Proprietary Information disclosed by the other party under this Agreement for any purpose except for evaluation of the possibility of entering into a business venture, or other some form of commercial arrangement between the parties. Upon request by either party, the other shall return all Proprietary Information. 15. Nothing hereinabove contained shall deprive either party of the right to use or disclose any information:
which is, at the time of disclosure, generally known to the trade or the public; which becomes at a later date generally known to the trade or the public through no fault of either party and then only after said later date; which is possessed by either party or is subsequently independently developed by either party, as can be demonstrated by written or other tangible evidence; or which is disclosed to either party in good faith by a third party who has an independent right to such information.
CONDITIONS OF NON-CIRCUMVENTION: 1. This is to reaffirm that each of the named parties as individuals and as duly authorized officers of the named corporations, separately and individually, hereby agree to keep confidential the names, telephone information of the banks, trusts, lenders or borrowers, lending institutions, corporations, buyers, sellers, groups and individuals introduced by any of the named parties or of their associates. Such information is considered the property of the introducing party/company, and shall remain so for the term of this Agreement. 2. The parties of this Agreement acknowledge that no effort shall be made to circumvent its terms in an attempt to gain commissions, fees, remunerations, or considerations to the benefit of any of the parties of this Agreement, while excluding equal or agreed to benefits to any of the other parties.
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3. It is also understood that a party(s) cannot be adjudged to be in violation is involuntary due to situations beyond their control. In the case of prior knowledge or possession of information regarding a specific source(s), the reintroduction of said source(s) shall only apply to the stipulations of this Agreement for the current transaction. GENERAL CONDITIONS: 1. This Agreement shall be governed and construed in accordance with the laws of South Africa. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, and which is not settled between the parties and the South African Arbitration department, with hearings to take place in Johannesburg, South Africa, or another mutually agreed upon location. Judgment upon the award rendered by the arbitrator, may be entered in any court having jurisdiction thereof, plus any and all court costs, attorney fees and any other costs or charges reasonably necessary to adjudicate the controversy. 2. This agreement shall be for 2 years from the date affixed above and shall apply to any and all transactions entertained by the parties hereto, including subsequent follow-up, repeat, extended or renegotiated transactions, as well as to the original transaction, regardless of the success of the project. 3. This Agreement is not valid unless signed and exchanged by the respective parties of this transaction. 4. This document shall in no way be construed as being an Agreement of partnership in such a way that any of the individual parties to this Agreement shall have any claim against any separate dealings, ventures, or assets of any other party, nor shall any party be liable for any other party's commitments or liabilities in business or personal dealings or situations. Essentially, the spirit behind the Agreement is one of mutual trust and confidence and of the reliance upon each other to do what is fair and equitable. This Agreement shall be effective on the date first shown above and constitutes upon execution by the parties a legally binding CONFIDENTIAL AND NONCIRCUMVENTION RELATIONSHIP AGREEMENT. THE PARTIES AGREE THAT FACSIMILE COPIES OF THIS AGREEMENT WILL BE CONSIDERED THE SAME AS ORIGINALS. DATED this 5th day of May 2008 For: QPower By: Mr. A Vorster Signature: For: _________________________________ _________________________________
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By: Mr. Signature:
_________________________________ _________________________________
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