(1) The Jack Ma Foundation (“Disclosing Party”) is the host and provider of the Africa Business Heroes (“ABH”).
(2) You have agreed to be a volunteer judge for the purposes of the selection process of the ABH (“Receiving Party”)and understand that this will involve the disclosure of and access to the confidential information belonging to the applicants participating in the ABH.
The parties therefore agree as follows:
1.1 The Disclosing Party may disclose certain of its confidential and proprietary information to the Receiving Party.
1.2 For the purposes of this agreement, the following terms and definitions shall apply:
1.2.1 “Confidential Information” means:
1.2.1.1 all information relating to ABH including financial statements, budgets and projections, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, information protected by intellectual property rights, and other confidential information, whether provided orally, in writing, or by any other media, or will be:
1.2.1.1.1 provided or shown to the Receiving Party by or on behalf of the Disclosing Party or otherwise made available to the Receiving Party; or
1.2.1.1.2 obtained by the Receiving Party from review of documents or property of, or communications with, the Disclosing Party; and
1.2.1.2 all notes, analyses, compilations, studies, summaries, and other material, whether provided orally, in writing, or by any other media, that contain or are based on the information described in subsection (a) (the “Derivative Materials”).
1.2.2 “Participant” means the individual(s) who has been selected by the Disclosing Party to take part in and/or to otherwise contribute and participate in ABH;
1.2.3 “Platform” means https://africabusinessheroes.org and includes the unique portal solely available to ABH judges.
1.2.4 “Purpose” means the review and evaluation of the applications received from individuals competing in the ABH by the Receiving Party.
1.2.5 “Release Date” means the first broadcast of the ABH show on satellite or digital terrestrial television services.
1.2.6 “Representative(s)” means in relation to the Disclosing Party:
1.2.6.1 its officers and employees that need to know the Confidential Information for the Purpose and/or the ABH;
1.2.6.2 its partners, professional advisers or consultants who are engaged to advise the Disclosing Party in connection with the Purpose and/or the ABH;
1.2.6.3 its contractors and sub-contractors engaged by that party in connection with the Purpose and/or the ABH; and
1.2.6.4 any other person to whom the other party agrees in writing that Confidential Information may be disclosed in connection with the Purpose and/or the ABH.
2.1 Confidentiality. The Receiving Party shall keep the Confidential Information confidential. Except as otherwise required by law, the Receiving Party undertakes to the Disclosing Party that it shall:
2.1.1 keep the Confidential Information secret and confidential;
2.1.2 not use or exploit the Confidential Information in any way except for the Purpose;
2.1.3 not directly or indirectly disclose any Confidential Information in whole or in part to any person or entity other than with the Disclosing Party’s prior written authorization;
2.1.4 not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose. Any such copies, reductions to writing and records shall be the property of the Disclosing Party; and/or
2.1.5 not use, reproduce, copy, transform or store the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means from the Platform outside its usual place of business;
2.2 No Reverse Engineering. The Receiving Party may not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody or otherwise form part of the Confidential Information and that are provided or otherwise made available to the Receiving Party under this agreement or otherwise in connection with the Purpose.
2.3 Term. The Receiving Party shall maintain the confidentiality and security of the Confidential Information until such time as all Confidential Information disclosed under this agreement becomes publicly known and is made generally available through no action or inaction of the Receiving Party. However, to the extent that the Disclosing Party has disclosed information to the Receiving Party that constitutes a trade secret under law, the Receiving Party shall protect that trade secret for as long as the information qualifies as a trade secret.
The obligations and restrictions of this agreement do not apply to that part of the Confidential Information that the Receiving Party demonstrates:
3.1 was or becomes generally publicly available other than as a result of a disclosure by the Receiving Party in violation of this agreement;
3.2 was or becomes available to the Receiving Party on a non-confidential basis before its disclosure to the Receiving Party by the Disclosing Party, but only if:
3.2.1 the source of such information is not bound by a confidentiality agreement with the Disclosing Party or is not otherwise prohibited from transmitting the information to the Receiving Party by a contractual, legal, fiduciary, or other obligation; and
3.2.2 the Receiving Party provides the Disclosing Party with written notice of such prior possession either (A) before the execution and delivery of this agreement or (B) if the Receiving Party later becomes aware (through disclosure to the Receiving Party) of any aspect of the Confidential Information as to which the Receiving Party had prior possession, promptly on the Receiving Party so becoming aware; or
3.3 is requested or legally compelled by an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction or is required by an authorised and interested regulatory body, to be disclosed. However, the Receiving Party shall to the extent permitted by law:
3.3.1 provide the Disclosing Party with prompt notice of any such request or requirement before disclosure so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy; and
3.3.2 provide reasonable assistance to the Disclosing Party in obtaining any such protective order.
If a protective order or other remedy is not obtained or the Disclosing Party grants a waiver under this agreement, then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that, in the written opinion of legal counsel is reasonably acceptable to the Disclosing Party and the Receiving Party is legally compelled or otherwise required to disclose. The Receiving Party shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed; or
3.4 was developed by the Receiving Party independently without breach of this agreement.
All documents and other tangible objects containing or representing Confidential Information that have been disclosed by the Disclosing Party or its Representatives, and all copies in the possession of the Receiving Party, are and will remain the property of the Disclosing Party. At the Disclosing Party’s request, the Receiving Party shall promptly:
4.1 return or destroy all of those documents or objects; and/or,
4.2 erase all of the Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form, including any Confidential Information stored on data storage services.
5.1 Each party acknowledges that the Confidential Information is and will be the Disclosing Party’s sole property, even if suggestions made by the Receiving Party are incorporated into the Confidential Information.
5.2 The Receiving Party does not obtain any rights, by license or otherwise, in the Confidential Information.
5.3 The Receiving Party does not and will not solicit any change in the other party’s organization, business practice, service, or products, and the disclosure of the Confidential Information may not be construed as evidencing any intent by a party to purchase any products or services of the other party or as an encouragement to expend funds in development or research efforts.
5.4 The Confidential Information may pertain to prospective or unannounced products or services. The Receiving Party may not use the Confidential Information as a basis on which to develop or have a third party develop a competing or similar plan or undertaking, whether directly or indirectly.
Nothing in this agreement obligates either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this agreement concerning the business opportunity, if any, and to cease further disclosures, communications, or other activities under this agreement on written notice to the other party. Any commitment to proceed with a transaction will be set forth in a separate agreement signed by the parties.
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF ANY SUCH INFORMATION.
8.1 Choice of Law. The laws of Hong Kong govern this agreement (without giving effect to its conflicts of law principles).
8.2 Image release:
8.2.1 The Receiving Party understands that the Disclosing Party may collect its social media account names and profile photos, posts and comments made by the Receiving Party on social media sites (to the extent that it has consented to the sharing of the information with the site), images and videos (“collected information”) of the Receiving Party’s participation with the ABH.
8.2.2 The Receiving Party hereby gives the Disclosing Party the absolute and irrevocable right and unrestricted permission with respect to the collected information to use, distribute, publish, exhibit or to put it to any other use for the benefit of the ABH. The Receiving Party hereby relinquishes all rights held by it with respect to the collected information and any royalties or other compensation arising or related to the use of the collected information.
8.2.3 The Receiving Party hereby release and discharges the Disclosing Party from all claims, demands and causes of action that may arise in any way, which the Receiving Party or its representatives, or any other persons acting on its behalf may have by reason of this waiver.
8.2.4 The Receiving Party understands that nothing in this clause 8.2 is intended to release claims for any liability that the law does not permit to be excluded by agreement.
8.3 Non solicitation:
8.3.1 The Receiving Party agrees that it shall not without the prior written consent of the Disclosing Party, at any time from the date of commencement of the ABH roll-out to the expiry of six (6) months after the Release Date in any part of the world:
8.3.1.1 solicit or entice away from the Disclosing Party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of either of the Disclosing Party; and/or,
8.3.1.2 solicit or entice away from ABH any Participant or attempt to entice or make an offer to any Participant so the Participant decides to withdraw from the ABH and pursue an investment or employment opportunity with the Receiving Party.
8.4 Equitable Relief. The parties acknowledge that a breach of this agreement will cause irreparable harm (direct and indirect) to the Disclosing Party and its Representatives and monetary damages may not be a sufficient remedy for an unauthorized disclosure of the Confidential Information. If the Receiving Party discloses the Confidential Information in violation of this agreement, the Disclosing Party may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance, or other equitable remedy to prevent competition or further disclosure, and may pursue other legal remedies.
8.5 Amendments. No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
8.6 No Assignment. Neither party may assign any of its rights or delegate any performance under this agreement, except with the prior written consent of the other party.
8.7 Severability. If any provision in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if the invalid, illegal, or unenforceable provisions had never been contained in this agreement, unless the deletion of those provisions would result in such a material change that would cause completion of the transactions contemplated by this agreement to be unreasonable.
8.8 Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
8.9 Entire Agreement. This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties’ agreement with respect to the subject matter of this agreement.
8.10 Effectiveness. This agreement will become effective when you submit your application through the Platform.
