The Applicant warrants that all the information provided by the Company is true and correct. The Applicant hereby authorise the Company or any of its nominated agents or partners to use, store, disseminate and/or process the information contained herein to process my application for registration as a “Super Technite”, “Technite”, “Super Salesnite” or “Salesnite”. In so doing, the Company, or any of its authorised agents or partners, may undertake any action that they deem reasonably necessary to validate any of the information provided by the Applicant. The Applicant acknowledge and agree further that, irrespective of the accuracy of the information that the Applicant have provided, the determination and acceptance of the Applicant’s application to be registered as a “Super Technite”, “Technite”, “Super Salesnite” and “Salesnite” shall be made by the Company in its sole discretion without the need to provide any reasons therefore.
(1) “Affiliate” means in relation to the Company, all subsidiaries of the Company or the holding company of the Company or any other subsidiaries of that holding company or all Entities Controlled by or under the direct or indirect Control the Company, its subsidiaries, its holding company or the subsidiaries of that holding company;
(2) “Applicant" means the entity or person identified in the registration form. The Applicant’s chosen domicilium shall be the address (physical and postal) stated in his / her / its application on www.technites.com;
(3) “Authorised Persons” means, in relation to the Applicant, to the extent that they need access to the Confidential Information for the purpose of rendering the Services only, the Applicant’s employees, officers, directors, agents, representatives, professional advisors, sub-contractors, consultants and / or any other individuals who have received the written consent of the Company to receive Confidential Information pursuant to the terms of this Undertaking;
(4) “Company" means Cumii International Limited, a company organized and existing under the laws of Mauritius with company registration number 131105 C2/GBL. The Company chooses its domicilium at 10th Floor Standard Chartered Towers, 19 Cybercity Ebene, Mauritius;
(5) “Confidential Information" shall include but is not limited to:
(a) the Company’s (or a member of the Company’s Group) business strategy and objectives, trade secrets, know- how, trademarks, patents, ideas, concepts, inventions, innovations, creations, discoveries, developments, improvements, methodologies, patterns, presentations, proposals, notes, memoranda, research reports and findings, summaries, plans, diagrams, drawings, designs and processes, formulae, technical information, data, business information, assembly drawings, specifications, computer programmes, business plans, financial information and financial projections, training and human resources policies and programmes, internal control systems, customer information, commercial information, proprietary intellectual property and the like;
(b) any information supplied by or on behalf of the Company (or a member of the Company’s Group) to the Applicant or his / her / its respective Authorised Persons, whether orally, in writing or otherwise (including fax and other forms of electronic submission) and whether before or after the date of this Undertaking;
(c) any information obtained by the Applicant or his / her / its Authorised Persons in writing or orally, through or following discussions with the management, employees, agents or advisors of the Company;
(d) any information that is acquired by observation or attendance by the Applicant or his / her / its Authorised Persons at the office or other premises of the Company (or a member of the Company’s Group);
(e) descriptions of the Company’s Group structure, shareholdings, distribution, franchise and licensing arrangements;
(f) any written information of the Company (or a member of the Company’s Group) which is labelled “confidential" or “proprietary" before it is disclosed to the Applicant or any of his / her / its Authorised Person;
(g) any material (in paper or electronic format) prepared or created by the Applicant or his/ her / its Authorised Persons, which contains or reflects, or is derived or generated in whole or in part from, any information referred to in sub-clause 5 (a) – (f) above.
(6) “Controlled” (or “Control”) means with respect to the relationship between two or more Entities, means the possession, directly or indirectly by equity ownership, contract or otherwise, of the power to direct the management or policies of the specified Entity;
(7) “Entity(ies)" means any person, association, business, close corporation, club, company, concern, enterprise, partnership, trust, undertaking, voluntary association or other similar entity, whether corporate or unincorporated;
(8) “Group” means, in relation to the Company, it and its Affiliates;
(9) “Services” means the services as set out more fully on the Company’s website, www.technites.com, in respect “Super Technite”, “Technite”, “Super Salesnite” and “Salesnite”. The Services may be amended from time to time by the Company by notice to the Applicant.
1.2 The Applicant acknowledges that it will be provided or has access to or knowledge of Confidential Information during the rendering of the Services, accordingly, the Applicant hereby irrevocably and unconditionally undertakes in favour of the Company (and each member of the Company’s Group):
(1) to use the Confidential Information solely for purposes of rendering the Service;
(2) not to disclose any Confidential Information to any Entity whatsoever other than to the Authorised Persons of the Applicant. Before disclosing such Confidential Information to the Authorised Persons, the Applicant shall (a) inform the Authorised Persons of the confidential nature of the information disclosed to them (b) require the Authorised Persons to undertake in writing that they will keep such information confidential in accordance with the obligations contained in this Undertaking and (c) ensure that the Authorised Persons may only use the Confidential Information disclosed to them for the purpose of rendering or advancing the Services;
(3) to limit the release of the Confidential Information only to those Authorised Persons who reasonably require to know the Confidential Information for the purposes stated in this Undertaking;
(4) that the Confidential Information will not be copied or reproduced by any means without the prior written approval of the Company, it being recorded that any copies shall be and remain the property of the Company;
(5) promptly upon written request to return, without keeping any copies or backups thereof, to the Company all Confidential Information (including copies or reproductions thereof) or if specifically requested by the Company to destroy or delete any Confidential Information in his / her / its possession or from any computer, word processor, system or other device. The person supervising the return or destruction or deletion of the Confidential Information shall submit a written statement to the Company confirming such return, destruction or deletion;
(6) not to disclose to any Entity the existence, nature or content of any discussions and negotiations with the Company in regard to the Services rendered;
(7) undertakes to protect the Confidential Information using the same standard of care that a reasonable and diligent person applies to safeguard his / her / its own proprietary, secret and confidential information and undertakes to store and handle the Confidential Information in such a way as to prevent any unauthorised disclosure thereof.
1.3 Notwithstanding anything to the contrary in this clause, the expression “Confidential Information” shall not include information:
(1) which at the time of its supply (or on behalf of) the Confidential Information is in, or subsequently comes into, the public domain, through no fault of the Applicant; or
(2) which is released by the Company in writing to third parties;
(3) which is already in the lawful possession of a the Applicant, prior to disclosure under this Undertaking (as can be demonstrated by the Applicant’s written records or otherwise reasonable evidence);
(4) which following disclosure under this Undertaking, lawfully into the possession of the Applicant, from a third party who does not owe the Company an obligation of confidentiality in relation to it (as can be demonstrated by the Applicant’s written records or other reasonable evidence);
(5) which are independently developed by the Applicant, without reference to the Confidential Information (as can be demonstrated by the Applicant’s written records or other reasonable evidence);
(6) which the Applicant is compelled to disclose by reason of any applicable law or order of the court, provided that the Applicant shall promptly notify the Company in writing that it is required to make such disclosure before releasing any Confidential Information to enable the Company to limit any such disclosures to the extent permissible in law, and shall assist the Company in this regard if required, at the sole cost of the Company.
1.4 The above exceptions shall not be interpreted by the Applicant, as justification to disregard the obligations of confidence set forth in this clause merely because individual portions of the Confidential Information may be found to be within the exceptions or because the Confidential Information is implied by, but not specifically disclosed, in information falling within the exceptions.
1.5 The confidential obligation of the Applicant contained herein shall endure indefinitely, even after the termination of this Undertaking, without limit in point of time except and until such confidential information enters the public domain as set out in paragraph 1.3 above.
1.6 If the Company or any member of the Company’s Group have disclosed any Confidential Information to the Applicant prior to the acceptance of this Undertaking by the Applicant, the confidentiality undertaking contained in this Undertaking shall apply retrospectively to those Confidential Information so disclosed by the Company or any member of the Company’s Group.
1.7 The disclosure or use of any Confidential Information shall not constitute nor be construed as evidence of any implied licence, or other transfer of rights in respect of that Confidential Information to the Applicant, and the Applicant acknowledges that it does not and shall not acquire any rights of whatsoever nature in any Confidential Information disclosed by the Company.
1.8 The Applicant acknowledges that irreparable damage would occur to the Company (or any member of its Group), if any of the confidentiality undertakings recorded in this Undertaking were not fully complied with or breached. The Applicant accordingly agrees that the Company will be entitled to apply for and be granted an order for specific performance or urgent interdict, in addition to any other remedy to which it may be entitled in law.
1.9 This Agreement shall be construed, and the legal relations between the parties determined, in accordance with the laws of England.
1.10 The Parties choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms hereof, at the address set out in paragraph 1.1 above.
1.11 No relaxation or indulgence that the Company may grant to the Applicant shall constitute a waiver of the rights of the Company and shall not preclude the Company from exercising any rights which may have arisen in the past or which might arise in future.
1.12 Any provision of this Undertaking that contemplates performance or observance subsequent to any termination or expiration of this Undertaking shall survive any termination or expiration of this Undertaking and continue in full force and effect.
1.13 If any provision of this Undertaking is held illegal, invalid or unenforceable such illegality, invalidity or unenforceability will not affect the other provisions of this Undertaking which shall remain in full force and effect.
1.14 Nothing contained or implied in this Undertaking creates a joint venture or partnership between the Parties or makes one Party the agent or legal representative of the other Party for any purpose.
1.15 The Applicant acknowledge that the Company have entered into this Agreement for its own benefit and for the benefit of each member of its Group (“Third Party Beneficiaries”), that each member of the Company’s Group obtains the benefit of the rights, acknowledgements, undertakings, warranties and indemnities granted to the Company under this Undertaking in accordance with the Contracts (Rights of Third Parties) Act 1999 and that this Undertaking is intended to be enforceable by each of the Third Party Beneficiaries as this Undertaking constitutes a stipulation alteri in favour of each member of the Company’s Group. The Company will be entitled to vary, terminate or rescind this Undertaking (on the terms set out in this Undertaking) without the consent of the Third Party Beneficiaries.