Terms and Conditions of this Enquiry Form:

Please note that the Franchisor of MissFit Boxing Studio’s reserves the right to either accept or decline this enquiry form. The completion of this form does not guarantee the acceptance of your intended Franchise.

Once the acceptance of the NDA and T’s & C’s, Our Dedicated Franchise Broker will be in contact with you withing the next 48-72 working hours with more information regarding our Franchise information.  Please allow for some additional time if your enquiry form is submitted over weekends or Public Holidays.

Non-Disclosure Agreement

Made and entered into by and between:

The Individual / Company accepting the check box of the Franchise Enquiry Form
(https://own-a-missfit.com/application-form/)

And

Urban Exclusive Holdings (Pty) Ltd t/a MissFit Boxing Studios

Registration Number: 2017/470934/07

Preamble:

A.   Company and MissFit, for their mutual benefit, may have exchanged and wish to further exchange certain Confidential Information; and

B.   Company and MissFit desire to protect such Confidential Information which may be disclosed by either of the Parties (hereinafter referred to as the “Disclosing Party”) to the other Party (hereinafter referred to as the “Receiving Party”) in the manner set out in this Agreement.

C.   MissFit possesses certain confidential information relating to its business.Missfit has agreed to disclose certain of this confidential information to the company/individual subject to the company/individual agreeing to the terms of confidentiality set out in this agreement

D.   The Company/Individual agrees that all rights, title and interest in and to the confidential information vests in Missfit and that it has no claim of any nature in and to the confidential information.

E.   Period of Confidentiality. The provisions of this agreement will remain in full force indefinitely.

Now, therefore, for and in consideration of the covenants and premises hereinafter recited, it is agreed and understood by Company and MissFit as follows:

1. Interpretation

In this Agreement, unless the context otherwise indicates –

1.1   The singular shall include the plural and vice versa;

1.2   Reference to the masculine gender shall include the feminine gender and vice versa;

1.3   Reference to natural persons shall include created entities (corporate or unincorporated) and vice versa; and

1.4   The headings in this Agreement are used for the sake of convenience and shall not govern the interpretation hereof.

2. Definitions

2.1    “Agreement” – shall mean the agreement contained in this document;

2.2    “Confidential Information” – shall mean any information, documentation or data relating to the Disclosing Party’s business or affairs (past, current or prospective) or that of any company in the Disclosing Party’s Group,  including, but not limited to, software and information ascertainable by the inspection or analysis of samples, know-how, trade secrets, processes, terms of agreements, strategic plans and investment opportunities, regardless of whether this information, documentation or data is supplied to the Receiving Party by the Disclosing Party or by one of the companies in the Disclosing Party’s Group, is disclosed in writing, orally or by any other means whatsoever and whether disclosed before or after the Signature Date;

2.3    “Control”- shall have the meaning assigned to it in section 12(2) of the Competition Act, No.89 of 1998;

2.4    “Group” – shall mean the person, company, partnership, trust or joint venture (whether incorporated or not) who directly or indirectly Controls the whole or part of the business of the Holding Company including all of the subsidiaries of that person, company, partnership, trust or joint venture (whether incorporated or not);

2.5    “Holding Company” – shall mean the person, company, partnership, trust or joint venture (whether incorporated or not) who has direct or indirect Control over the whole or part of the business of the Company and its subsidiaries or of MissFit and its subsidiaries, as the case may be;

2.6    “Parties” – shall mean MissFit and the Company and “Party” shall mean either one of them, as the context requires;

2.7    “Purpose” – shall mean any discussions and negotiations between or within the Parties concerning, or in connection with, the possible establishment of a business relationship between the Parties and/or between one or more of the companies within their respective Groups;

2.8    “Signature Date” – shall mean the signature of this Agreement by the Party signing last in time;

2.9    “subsidiary” or “subsidiaries” – shall have the meaning ascribed to it in Section 3 of the Companies Act, No. 71 of 2008;

2.10   “Term” –   Period of Confidentiality. The provisions of this agreement will remain in full force indefinitely.

2.11 “Commencement Date” – shall mean the last date of acceptance of this agreement.

3. Exchange and protection of Confidential Information

3.1   Subject to the provisions of 3.2 to 3.7 below, the Receiving Party hereby undertakes and agrees to maintain the Confidential Information in confidence and shall exercise in relation thereto the security measures and degree of care which it applies to its own confidential information, which security measures and degree of care the Receiving Party warrants as providing reasonable and adequate protection against unauthorized disclosure to a third party, copying, exploitation, use or disclosure in violation of this Agreement.

3.2   The Receiving Party shall ensure that disclosure of such Confidential Information is restricted to those employees, directors or representatives of the Receiving Party who reasonably need to know same for the Purpose, and the Receiving Party shall ensure that those employees, directors or representatives abide by the terms and conditions contained herein.  In the event of a breach, the Receiving Party’s employees, directors or representatives who receive the Confidential Information as envisaged in this clause 3.2 shall be deemed to be the Receiving Party’s authorised agents.

3.3   The Receiving Party shall not make copies or reproductions (whether by way of photocopies, photographs, electronic copies or any other means whatsoever) of the Confidential Information except to the extent reasonably necessary for the Purpose and all such copies and reproductions made shall be and remain the property of the Disclosing Party at all times.

3.4   All Confidential Information, and copies and reproductions thereof, shall be returned by the Receiving Party to the Disclosing Party within thirty (30) calendar days following the date of receipt of a written request from the Disclosing Party to do so. All costs and expenses incurred by the Receiving Party in returning such Confidential Information, including all copies and reproductions thereof, shall be the sole responsibility of and be borne exclusively by the Receiving Party.

3.5   As an alternative to the return of the Confidential Information, and all copies and reproductions thereof, contemplated in clause 3.4 above, the Receiving Party shall at the sole election of the Disclosing Party destroy and/or permanently delete, as the case may be, such Confidential Information.  The Receiving Party shall within thirty (30) calendar days following the date of receipt of a written request from the Disclosing Party to do so, furnish the Disclosing Party with a written statement to the effect that all such Confidential Information has been destroyed and/or permanently deleted, as the case may be.  All costs and expenses incurred by the Receiving Party in destroying and/or permanently deleting such Confidential Information, including all copies and reproductions thereof, and in preparing and submitting the written statement envisaged in this clause 3.5 shall be the sole responsibility of and be borne exclusively by the Receiving Party.

3.6   The Disclosing Party shall be entitled to disclose the Confidential Information requested by the Receiving Party in relation to the Purpose in its entirety or in part and in the format that the Disclosing Party deems necessary or desirable in its sole and absolute discretion, taking into account all relevant considerations, including without limitation, the provisions of the Competition Act, No. 89 of 1998 regarding the exchange of competitively sensitive information.

3.7   The undertakings contained in this Agreement do not apply to any Confidential Information which –

3.7.1        is lawfully known to or in the lawful possession of the Receiving Party prior to disclosure thereof by the Disclosing Party, as evidenced by amongst other things:

3.7.1.1    such Confidential Information being in use or recorded in the files or computers or other recording media of the Receiving Party prior to receipt thereof from the Disclosing Party and without any obligation to keep such Confidential Information confidential; or

3.7.1.2    such Confidential Information having been developed by or for the Receiving Party independently of and without relying on any Confidential Information disclosed to the Receiving Party by the Disclosing Party;

3.7.2        is or comes into the public domain other than as a result of a breach of any of the provisions of this Agreement;

3.7.3        is received by the Receiving Party from a third party other than the Disclosing Party without such third party breaching any obligation of confidentiality or non-use towards the Disclosing Party;

3.7.4        is disclosed by the Receiving Party to a third party pursuant to the prior written approval of the Disclosing Party; or

3.7.5        is disclosed by the Receiving Party pursuant to an order of Court or in order to comply with any law, provided that the Receiving Party shall inform the Disclosing Party in writing not less than 5 (five) calendar days prior to making any such disclosure and shall only disclose such Confidential Information to the extent which it is legally obliged to do so pursuant to that Court order or law and not for any other purpose.

3.7.6        The onus (burden of proof) of proving the facts necessary to sustain any one of the exceptions listed in sub-paragraphs 3.7.1 to 3.7.5 rests with Company / Individual.

3.8   The Company/Individual must take all steps that may be reasonably necessary to prevent the      confidential information falling into the hands of an unauthorised third party.

3.9   The Company/Individual must not use or disclose the confidential information for any purpose other than performing its contractual obligations to MissFit

3.10 The Company/Individual must not use or attempt to use the confidential information in any way which will cause or be likely to cause injury or loss to MissFit

4. Limitations and Warranty

4.1    The Receiving Party shall –

4.1.1        not divulge the Confidential Information, in whole or in part, to any third party whatsoever other than in accordance with the provisions of this Agreement;

4.1.2        use the Confidential Information only for the Purpose; and

4.1.3        not commercially use or exploit the Confidential Information, or any part thereof, without the prior written consent of the Disclosing Party.

4.2    The Disclosing Party warrants that it has the right to disclose its Confidential Information to the Receiving Party and to authorize the Receiving Party to use same for the Purpose.

5. Disclaimer

5.1    All rights, title to and interest in the Confidential Information shall accrue and remain that of the Disclosing Party and no rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.

5.2    In particular, no license or right of use is hereby granted to the Receiving Party, directly or indirectly, under any invention, discovery, patent, copyright or other industrial property right now or in the future held, made, obtained or licensable by the Disclosing Party.

5.3    Nothing in this Agreement or its operation shall preclude, impair or restrict either Party from continuing to engage in its business except to the extent that it does so in breach of the terms of this Agreement.

6. Breach

During the continuance of this Agreement, if the Receiving Party breaches any provision of this Agreement, then the Disclosing Party shall be entitled, at its election and without prejudice to all other remedies the Disclosing Party may be entitled to as a matter of law, to apply to a court of competent jurisdiction to restrain further disclosure of Confidential Information and to obtain any type of relief as may be appropriate.

7. Non-Assignment

This Agreement is personal to the Parties and shall not be assigned or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

8. Entire Agreement, Governing Law and Jurisdiction

This Agreement constitutes the entire Agreement and understanding between the Parties in respect of the Confidential Information, and supersedes all previous agreements, understandings and undertakings in such respect.  The interpretation, construction and effect of this Agreement shall be governed and construed in all respects in accordance with the Laws of the Republic of South Africa and the Parties hereby submit to the jurisdiction of the South African Courts.

9. Additions & Modifications

No agreement to vary, add to or cancel this Agreement will be of any force and effect unless reduced to writing and signed by the Parties to this Agreement.

10. Severability

Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.  Accordingly, this Agreement shall be construed as if such invalid provision was not part of this Agreement, and the remaining provisions of this Agreement shall be implemented in accordance with the original intent of the Parties to this Agreement.

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