Repudiation of a contract is also at times referred to as anticipatory breach and occurs when one party refuses or becomes unable to honour or abide by the terms and obligations of the contract. Repudiation happens when one of the contracting parties acts in a way that amply and definitely implies that he or she will not honour the terms of the agreement, whether by words or deeds.

An innocent party can obtain recourse in the form of an interdict or specific performance, depending on which recourse best suits their circumstance. One may note that to successfully plead their case they will have to satisfy the court of the following;

1. There must be conduct indicating a refusal to perform
2. There must not be any justification for refusal to perform;
3. The innocent party should accept repudiation

This is for general information purposes only.

A non-disclosure agreement (also referred to as an NDA) is a contract that is enforceable in terms of the law and creates a relationship between two or more parties. The relationship is characterized by confidentiality. A non-disclosure agreement may also be referred to as a confidentiality agreement amongst other names. The signatories agree that any sensitive information they may collect, discuss or share will not be divulged to any third parties.

This form of agreement can be applied to the protection of trade secrets. A trade secret is defined as information that is subject to reasonable attempts to maintain its secrecy, has value to others who cannot lawfully receive the knowledge and has either current or potential independent economic value[1]. As long as a business technique is kept private and secure, it can be protected as a trade secret. The trade secrets are protected through non-disclosure agreements that are signed between the employer and the employee amongst other parties. The employer can go further and place a covenant in restraint of trade to further protect their trade secret but that is a story for another day.

A non-disclosure agreement may be relied on by inventors that intend to exhibit their inventions to potential partners, distributors, agents or other parties so as to ensure that their invention is protected. Companies frequently use non-disclosure agreements when they get into negotiations with other companies or entities. Non-disclosure agreements afford the parties the freedom to exchange private (confidential) information without worrying that their rivals would obtain the information and exploit such to their advantage. The agreement can cater to both parties’ interests and in the event that this is the case, the agreement is referred to as a mutual non-disclosure agreement.

CONTENTS OF A NON-DISCLOSURE AGREEMENT

1. Details of the parties such as the name of individual, company or entity, identity particulars such as ID number or registration number and or place of residence or business,
2. The terms of the agreement. The agreement must highlight who is bound by the terms of confidentiality as outlined by the agreement (either one or all) together with the conduct expected of all parties concerned,
3. The parties that are permitted access to the confidential information and third parties that are not permitted access to the information,
4. The definition of “confidential information” in clear and concise terms together with a clause that defines what deems or constitutes confidential information,
5. Term or duration of the agreement,
6. Breach of the agreement (parties can have a clause that talks about what constitutes breach),
7. Dispute resolution (where and how disputes may be resolved some may choose the courts while others opt for arbitration amongst other factors and

INFORMATION THAT CANNOT BE HELD TO BE CONFIDENTIAL

1. Information that the other party/s(recipient) is already familiar with
2. Information that is known to the public.
3. Information disclosed to the other party/s (recipient) by a third party (that is not a party to the agreement and as such has no duty of confidentiality to the disclosing party).

Non-disclosure agreements encourage the doing of business as they provide companies, individuals and entities with the confidence to freely share information knowing that it shall be kept secret. For all your contracts please feel free to contact our team of attorneys that will assist you with such.

This is for general information purposes only.

[1] https://www.uspto.gov/ip-policy/trade-secret-policy

A marketing agreement may be defined as a legally binding agreement that defines the relationship between two parties – a business or sole traders and a party providing marketing services (marketer), which can be a marketing agency or an individual. Such an agreement is premised on the payment of a certain sum of money agreed upon by the parties in exchange of the promotion of the goods or services of the other party to the contract.

As we embrace technology and the digital world, most companies are shying away from the olden ways of marketing their products and resorting to using well known musicians, actors and socialites to advertise and market their products. Some of these celebrities refer to themselves as brand ambassadors and as such companies need to have agreements in place with such individuals.

The marketing contract regulates the conduct of the parties as well as states the expectations of both parties. Depending on the celebrity selected and the product being sold, companies tend to look for a face that clicks with their target market and has a decent social media presence, as the world is moving toward technology. The more social media followers (Facebook, Instagram and Twitter one has the more their chances of an endorsement to market one’s products.

One may note that such an agreement is legally enforceable where it is properly executed and abides with the principles of contract law as well as the provisions of the law in general.

ESSENTIALS OF A CONTRACT OF THIS NATURE

Most Marketing agreements tend to contain the following information:

1. Clearly identified parties (names, surnames, identity particulars and company registration numbers amongst other information).
2. The term (duration) of the contract – parties can highlight when the contract commences and when it ends.
3. The agreement must clearly state the services to be provided by the marketer – in the event that it is posts, short drama, song or anything else that promotes the business, it must be clearly stated and quantified.
4. Duties and obligations of all the parties to the agreement.
5. Fees payable to the marketer.
6. Warranties – clause where parties guarantee that they have the capacity and authority to enter into the agreement.
7. Indemnification
8. Confidentiality clause – in the event that some trade secrets are discovered by the marketer the other party should be assured that their trade secrets should remain unknown to their competitors. Breach clause – that will cater to what happens in the event that the parties do not uphold or adhere to their respective roles and functions.
9. Applicable law – In the event that intellectual property is created ownership must be established.
10. Jurisdiction – in the event of a dispute arises that cannot be resolved by the parties.

The items listed above are not exhaustive but are formulated to give the reader of the essence of a marketing agreement.

For all your contracts please feel free to contact our team that is ready to advise accordingly and assist with drafting your agreements.

 

This is for general information purposes only.