This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, by placing an order with Quantum State (Pty) Ltd. you confirm that you have read and that you are in agreement with and bound by the terms and conditions below...
1. Definitions and Rules of Interpretation :
Rules of Interpretation. In this Agreement, unless the context indicates otherwise:
- Clause headings are for convenience and are not to be used in its interpretation;
Unless the context indicates a contrary intention an expression which denotes:
- Any gender includes the other genders;
- A natural person includes a juristic person and vice versa;
- The singular includes the plural and vice versa;
- References to clauses, schedules, parts, annexes and sections are, unless otherwise provided, references to clauses, schedules, parts, annexes and sections of this Agreement;
- When any number of days is prescribed, the number of days shall be calculated on the basis that the first day is excluded and the last day is included unless the last day is not a Business Day in which event the last day shall be the next day which is a Business Day;
- The rule of construction that an agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply;
- A reference to applicable law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any statute, regulation or subordinate legislation in force in South Africa and the common law, as applicable from time to time, as well as any applicable South African industry codes of conduct and where none apply, international industry codes of conduct;
- Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
- Terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in the information and communication technology industry will be interpreted in accordance with their generally accepted meanings;
- Any substantive provision, notwithstanding that it is only in this clause 1, conferring rights or imposing obligations on a Party, shall be given effect to as if it were a substantive provision in the body of the Agreement;
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
- Any reference to "days" shall be construed as being a reference to calendar days;
- A reference to a Party shall include the permitted successors and assigns of that Party;
- Any consent, approval and/or authorisation required to be obtained by one Party from the other Party shall not be unreasonably withheld or delayed. Signature of this Agreement or any Schedule thereto or any amendment or variation thereof or the like, as well as sign off of any service or project, shall, be in writing and signed by duly authorised persons on behalf of each Party. Any other consent or approval or instruction shall be in writing but in such instances email from the authorised person will be acceptable unless otherwise agreed; and
this Agreement shall be interpreted so that all the provisions are given as full an effect as possible. In the event of a conflict between any
provision of the various parts, schedules or sections to this Agreement, the order of precedence shall be, (unless otherwise stipulated):
- These Main Terms and conditions;
- The Transaction Document;
- Any Service Schedule attached.
Meanings of Expressions and Words. In this Agreement the following expressions and words have the meanings assigned to them and derivative expressions and words will have a corresponding meaning:
"Agreement" means collectively:
- These signed Main Terms and conditions; and
- The Transaction Document;
- Any Service Schedules or annexures to this Agreement;
- "Business Day" means any day, other than a Saturday, Sunday or an official public holiday in the Republic of South Africa;
- "Costs" means the aggregate of all Monthly Costs, Once Off Costs, Pass Through Expenses, any other fees, charges, expenses, and the like relating to the Service/s provided in terms of this Agreement, as may be applicable from time to time and payable by the Customer to the Service Provider in the manner detailed herein as amplified in the Transaction Document and/or Service Schedule/s;
- "Customer" means the party described as such in the Transaction Document;
- "Customer IP" means the Intellectual Property Rights which (a) vested in the Customer prior to the Effective Date; and (b) is developed specifically for the Customer in particular as part of the delivery of the Service/s, including computer software, the source codes, and all developments, modifications, enhancements, improvements, replacements and alterations made thereto (other than the Service Provider IP or Third Party IP not provided by the Customer) but excludes intellectual property or software or Service Provider Technology developed in general by the Service Provider in provisioning of the Services and which does not pertain specifically to the Customer in particular;
- "Deposit" means an upfront payment, if required, to be paid by the Customer to cover the Service Provider for Pass Through Expenses and other Costs when commencing with the Services;
- "Effective Date" means the Effective Date of these main Terms, which Date are the Signature Date, unless otherwise indicated in the Transaction Document;
- "Expenses" means any expenses incurred by the Service Provider in order to perform the Services to the Customer, including Pass Though Expenses.
- "Intellectual Property Rights" (or IP Rights) includes, any copyright (whether or not registered), design rights, inventions (whether or not patented), logos, business names, service marks and trademarks (whether or not registered), internet domain names, moral rights, rights in databases, data, Service Provider Technology, software, source codes, reports, drawings, specifications, know how, business methods and trade secrets; applications for registration, and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection; existing anywhere in the world;
- "Monthly Costs" means any retainer, costs or other monthly fee payable by the Customer to the Service Provider in consideration for the provision of the Service/s;
- "Once Off Costs" means any once off or initial costs charged to the Customer as set out in any Service Schedule, for any set up and/or installation of the software, equipment and/or Services;
- "Party" means any one of the parties to this Agreement; and the term "Parties" shall have a corresponding meaning;
- "Pass-Through Expenses" means, in respect of each of the Services, the actual invoiced amounts (excluding any Service Provider profit, administrative fee or overhead charges) charged to the Service Provider by Third Parties for which the Customer has agreed in writing to reimburse the Service Provider;
- "Personal Information" shall have the meaning ascribed thereto in terms of the Protection of Personal Information Act No. 4 of 2013;
- "Personnel" means any director, employee, agent, consultant, sub-contractor or other representative of a Party or the like;
- "Premises" means the premises at which the Services are being provided as more fully stipulated in the Transaction Document;
- "Process" and "Processing" means any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including its collection, receipt, recording, organisation, collation, storage, updating or modification, merging, linking, blocking, degradation, erasure or destruction, retrieval, alteration, consultation, testing or use, dissemination or distribution by any means;
- "Service/s" means the service/s, or any part thereof, to be provided by the Service Provider to the Customer in terms of this Agreement, as specified in the Transaction Document;
- "Service Agreement/Schedule" means a Service Schedule signed by the Customer and the Service Provider and any Transaction Document or schedule or annexure forming part thereof;
- "Service Agreement Effective Date" means the date stipulated in a Service Agreement as being the date on which the Services stipulated in that Service Agreement are to become effective;
- "Service Agreement Term" means the period stipulated in a Service Agreement as the period for which that Service Agreement is to endure, including any renewal period thereof, it being recorded that there may be a different term for each different category of Services which may be subject to a Service Agreement;
"Service Provider" means Quantum State (Pty) Ltd, Reg No. 2017/074984/07
address: 49 Olinia Crescent, Kuilsrivier, 7580
- "Service Provider IP" means the Intellectual Property Rights owned by or licensed to the Service Provider and which vested in the Service Provider prior to the Effective Date as well as Service Provider Technology, including all developments, modifications, enhancements, improvements, replacements and alterations made thereto and excludes intellectual property developed specifically for the Customer in particular as part of the delivery of the Service/s and excludes Third Party IP not licensed to the Service Provider;
- "Service Provider Technology" means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, software tools, utilities and routines either developed in general or used in general for the provision of the Services, or any changes or additions thereto which the Service Provider has created, acquired or otherwise has rights in prior to the Effective Date of this Agreement, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, including any intellectual property developed in general and which may be developed in general in providing the Services over a period of time and used by the Service Provider;
- "Signature Date" means the date the Agreement is signed by either of the Parties last in time;
- "Software" means any computer program or software installed or provided or created by the Service Provider for the purposes of using or providing the Services and may include licensed Third Party Software;
- "Third Party IP" means Intellectual Property Rights owned or licensed by a Third Party. Depending on the context Third Party IP licensed to the Customer may form part of the Customer IP and Third Party IP licensed to the Service Provider may form part of the Service Provider IP;
- "Transaction Document" means the document attached hereto or attached to any Service Agreement/Schedule describing the Cost/s and Services, and where relevant any annexures or schedules attached thereto;
- "VAT" means Value Added Tax imposed in terms of section 7 of the Value Added Tax Act, 1991 (Act No 89 of 1991) , if applicable, including any similar tax which may be imposed in place thereof from time to time.
2. Appointment :
- The Customer hereby appoints the Service Provider to provide the Service/s to the Customer for the duration of this Agreement, which appointment the Service Provider accepts, on the terms and conditions contained in this Agreement.
- For the Service Provider to properly and timeously carry out the Services in terms of the Agreement there rests a reciprocal obligation on the part of the Customer to carry out its obligations, as detailed in the Agreement. The Parties recognise the reciprocal nature of this Agreement and thus in furtherance thereof they shall consciously and in good faith undertake to act accordingly.
3. Duration and Exclusivity :
- This Main Agreement shall commence as of the Effective Date and shall endure indefinitely for so long as any Service Agreement remains in effect or until such time as this Main Agreement is terminated by either Party in accordance with any right of termination stipulated in this Agreement.
- The Customer shall enter into a separate Transaction Document/s and/or Service Schedules for any one or more or all of the Services and may from time to time contract for other Services under this Main Agreement which terms shall apply to all Services unless expressly amended by such Service Schedule and its Transaction Document.
- The duration period of each of the Services shall be for the Service Agreement Term as specified in each of the relevant Transaction Document and/or Service Schedules.
- For the duration of any Service Schedule the Service Provider shall be the exclusive provider of the Services unless the Service Provider, in writing, consents to the provision of services by a third party. It will be reasonable for the Service Provider not to provide such consent if its Services or performance requirements could be compromised in any way by such third party or if the Service Provider could suffer financial loss due thereto. The Service Provider will not be liable in any way for loss or damages caused by the Customer or any third party in provisioning or interfering with the Services and the Customer hereby indemnifies the Service Provider against any loss or damages of whatsoever nature caused by the Customer or any third party interfering or provisioning the Services, also in such instances where the Service Provider consented thereto.
4. Performance Requirements :
- The Service Provider shall, in the provision of the Services, comply with the performance requirements (if any) detailed in the Transaction Document and/or any schedules or annexures attached to this Agreement.
5. Costs, Pass Through Expenses, Payment and Invoicing :
Unless otherwise provided in a Service Schedule:
- Costs and Payment: In consideration of the Services provided to the Customer by the Service Provider, the Customer will pay the Service Provider the agreed Costs indicated in any Service Agreement. The Costs or any part thereof shall not be subject to any manner of set-off or deduction.
The Service Provider shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase its agreed Monthly
Costs relating to a Service Schedule, provided that the Service Provider:
- shall not be entitled to increase the Monthly Costs during the first 12 (twelve) months of the said Service Schedule; and
- shall not increase the Monthly Costs on more than one occasion in any subsequent 12 (twelve) month period of the particular Service Schedule Agreement,
- Provided that notwithstanding anything to the contrary herein, the Service Provider shall be entitled to increase the Monthly Costs (or any Costs) with any actual increase in Pass Through Expenses,( unless such increase is due to the Service Provider's material negligence). The Service Provider will provide the Customer with notice in writing of such increase in Costs as soon as reasonably possible after being informed of such increase.
- Any Services performed by the Service Provider, falling outside of the scope of any Service Schedule, shall be billed on a time and material basis and shall thus be primarily based on the time spent and the value added by the Service Provider.
- Consulting Services and/or travel time is calculated based on the Service Provider's corresponding rate per hour exclusive for work done during office hours. For billing purposes time and a half applies to Saturdays, and double time applies to Sundays and Public holidays;
- Expenses: Where the Service Provider incurs any Expenses on behalf of the Customer, the Customer shall, where such expenditure has been approved by the Customer in writing in advance, pay a Deposit to cover the Expenses or re-imburse the Service Provider on presentation of an invoice from the Service Provider detailing the nature and extent of such expenses. Where applicable, out of town travel and accommodation expenses incurred by the Service Provider's Personnel in providing the Services will be invoiced to the Customer;
- Travel mileage at the applicable rate per kilometer from time to time, will be applicable and will be billed as a return trip between the Service Provider's Head office in Cape Town and the Customer's Premises.
Invoicing: Unless otherwise agreed thereto in writing, signed by both Parties, payment in respect of each Service shall be due and payable as follows:
- Invoices are payable on delivery date. Invoices will be emailed to the Customer's designated email address (for billing purposes) indicated in the Transaction Document unless the Customer gives its written request for delivery of invoices by means other than email, or that the email address (for billing purposes) has been changed. Delivery will mean on face value the first Business Day after date of sending the invoice by email to the billing email address.
- Invoices and all prices and Costs are quoted in S.A. Rand and payable in S.A Rand into the Service Provider's bank account in the RSA.
- Invoicing for Monthly Costs will be processed and delivered monthly in advance, and shall be settled by the Customer, monthly, within 7 (seven) days of the delivery date of invoice.
- The Service Provider shall be entitled to commence invoicing the Customer for the Costs in relation to each Service from the date, as set out in the Service Schedule concerned, and if none indicated as from the Service Agreement Effective Date.
- Value Added Tax: The Service Fee is stipulated exclusive of VAT but if the Service Provider is registered for VAT the Service Fee will be indicated with the VAT component as well. If applicable VAT shall be levied at the rate applicable from time to time;
Non-Payment: Where payment of any Costs, or part thereof, is not made when due, the Service Provider shall be entitled, at its sole discretion, to:
- Charge interest on the outstanding amount at a rate of 24% (twenty four per centum ) per annum. Such interest shall be calculated daily from the due date of payment to the date of actual payment, both days inclusive, compounded monthly in arrears. The Customer agrees and undertakes to pay such interest, which it hereby accepts as fair and reasonable, as from the first calendar day any payment is due.
- Suspension of Services: The Service Provider shall without prejudice to any other right or remedy, without liability and at the Customer's risk, be entitled to suspend provision of the Services or any portion thereof, for any period during which any Costs (including all interest thereon) are outstanding or in arrears, until all payments due and which remain outstanding have been paid in full, provided that the Service Provider shall give the Customer no less than 5 (five) Business Days written notice (which shall include by way of e-mail) of its intention to suspend the Services.
- Indemnity: The Customer indemnifies and holds the Service Provider harmless against any losses or damages suffered by it as a result of the suspension of any of the Services as a consequence of its failure to comply fully with the terms of this Agreement, including but not limited to this clause 5.
6. General Obligation and Undertakings by the Service Provider :
- The Service Provider shall appoint suitably qualified and trained Personnel to provide the Services to the Customer in, provided that the Service Provider shall be entitled, in its reasonable discretion, notwithstanding any other provision herein, to allocate Personnel in accordance with the training, skills and knowledge required, provided further that any exercise of such discretion shall not negatively impact upon the provision of the Services by the Service Provider to the Customer.
The Service Provider undertakes that:
- It and its Personnel have the experience, ability, expertise and means to perform the Services in accordance with best practices and the standards of care and diligence customary in the industry applicable to the type of Services performed in terms of the Agreement;
- It has all necessary rights, powers and authority to enter into and perform the Agreement, and the execution, delivery and performance of the Agreement by it have been duly authorised by all necessary corporate action;
- It will perform the Services diligently, and in a proper workmanlike manner and in terms of professional guidelines and requirements as stipulated by the relevant professional governing body as well as in terms of its obligations as set out in this Agreement; and
- The Intellectual Property provided by the Service Provider will not infringe or misappropriate any Intellectual Property Right, confidential information, trade secret, privacy or other proprietary right of any third party or the Customer;
- No express or implied undertakings. The Customer acknowledges that, save for the undertakings expressly provided in the Agreement, the Service Provider provides no other undertakings whether express or implied, statutory or otherwise;
7. General Undertakings and Obligations to the Customer :
- Customer's Undertakings: The Customer undertakes that it will perform its obligations, set out in this Agreement, diligently, in a timely manner, and in accordance with the instructions and requirements of the Service Provider and any time schedules set forth in this Agreement;
- No express or implied undertakings: The Service Provider acknowledges that, save for the undertakings contained in the Agreement, the Customer provides no other undertakings whether express or implied, statutory or otherwise.
- Access to Premises, equipment, records, personal data, research reports and documentation: The Customer shall do all things reasonably required to provide the Service Provider with free and uninterrupted access to the Premises as required in order to fulfil its obligations in terms hereof, during office hours and to provide the necessary information, documentation, Personnel records, medical records, research reports and data as may be reasonably required by the Service Provider to enable the Service Provider to provide the Services and comply with its obligations set out in this Agreement;
- Third Parties under Customer's Control: The Customer shall ensure that any third party, over which it has direct control, performs its duties and functions as may be reasonably required by the Service Provider to enable the Service Provider to provide the Services.
8. Provisions Relating to the Service Provider's Personnel :
- Independent Contractor: It is specifically recorded that the Service Provider is an independent contractor and that neither the Service Provider nor its Personnel are employees, agents, consultants, sub- contractors, or other representatives of the Customer;
- Personnel shall work under the Service Provider's Direction. Unless specifically agreed otherwise between the Parties, the Service Provider's Personnel shall at all time work under the direction and to the satisfaction of the Service Provider;
- Personnel shall work under the Service Provider's Direction. Unless specifically agreed otherwise between the Parties, the Service Provider's Personnel shall at all time work under the direction and to the satisfaction of the Service Provider;
- Conduct / Performance of Personnel: Where for any reason the Customer is not satisfied with the conduct or performance of any of the Service Provider's Personnel, the Customer must immediately inform the Service Provider thereof in writing, to enable the Service Provider to institute appropriate action. The Customer shall provide the Service Provider with all information, documentation and assistance as may be reasonably required by the Service Provider to effectively conduct any disciplinary or incapacity hearings;
- Working Environment: Since the Service Provider's Personnel is required to provide the Services on site at the Premises, the Customer undertakes to provide or procure a working environment for such Personnel which is safe, secure and free of prohibited unfair discrimination and harassment;
- No Temporary Employment Service: Nothing in this Agreement shall be construed as giving rise to a relationship of a temporary employment service as contemplated in section 198 of the Labour Relations Act, 1998 (Act No. 66 of 1995), sections 82 and 83A of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997), the Unemployment Insurance Act, 2001 (Act No. 63 of 2001), and any other relevant legislation.
9. Intellectual Property :
- Service Provider's IP: All the Service Provider IP, whether or not used as part of the rendering of the Services shall remain the property of the Service Provider. The Customer shall not for the duration of this Agreement, or at any time after termination or cancellation or expiration of this Agreement, acquire or be entitled to claim any right or interest therein or in any way question or dispute the ownership thereof and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by or licenced to the Service Provider, or any of its third party suppliers.
- The Service Provider hereby grants to the Customer for the duration of this Agreement an irrevocable, fully paid-up, royalty-free, non exclusive license to use the Service Provider IP strictly necessary to use and receive the Services being provided to the Customer.
- Customer IP: The Customer retains all right, title and interest in and to the Customer IP and to the extent required for the provision of the Services, the Customer will grant the Service Provider a license (on a fully paid up, royalty-free, non-exclusive basis) for its use of such Intellectual Property for the sole purpose of providing the Services to the Customer for the duration of the Services.
- Indemnities and warranties: The Service Provider hereby indemnifies and holds the Customer harmless against any claim by a third party that the Customer is infringing the Intellectual Property Rights of such third party as a result of the Services delivered to the Customer by the Service Provider in terms of this Agreement and the Customer hereby indemnifies and holds the Service Provider harmless against any claim by a third party alleging that the Service Provider is infringing the Intellectual Property Rights of such third party as a result of any Customer IP provided by the Customer to the Service Provider for purposes of the this Agreement (hereinafter referred to as the "Claim").
- The Parties shall notify each other in writing of a third party Claim which relates to this Agreement, the Services or any part thereof and infringes the Intellectual Property Rights of such third party.
- If any part of the Services is held to be infringing due to the Intellectual Property provided by the Service Provider, then the Service Provider shall, at its expense and option, either obtain the right for the Customer to continue using such part of the Service or replace it with a non infringing equivalent or modify it to make it non infringing.
- The Parties hereby indemnify each other against all actual or contingent losses, liabilities, damages, costs (including legal fees on the scale as between attorney and own client) and expenses of whatever nature which they may sustain or suffer arising from, in connection with, or as a result of breach of any of the warranties contained in this clause.
- Costs and Damages related to the Indemnity. The infringing party shall pay any costs and damages awarded or agreed to in settlement of a Claim, provided that the other party furnishes the infringing party with prompt written notice of the Claim and provides it with all reasonable assistance, for which the infringing party shall reimburse all reasonable expenses properly incurred by the other party in providing such assistance, and shall grant the infringing party sole authority to defend or settle the Claim.
10. Confidential Information :
- Confidentiality Obligation: Each party (hereinafter referred to as the "Receiving Party") must treat and hold as confidential all information, which it may receive from the other party (hereinafter referred to as the "Disclosing Party") or which becomes known to it concerning the Disclosing Party during the currency of this Agreement;
Nature of the Confidential Information: The confidential information of the Disclosing Party shall without limitation, include all information
- The Disclosing Party's past, present and future research;
- The Disclosing Party's business activities, financial affairs, products, services, customers and clients, as well as its Intellectual Property;
- The terms and conditions of this Agreement, and any dispute that may emanate from this Agreement;
- And insofar as the Service Provider is the Disclosing Party, the Service Provider's methodologies and know-how; and
- And insofar as the Customer is the Disclosing Party, the Customer's information, data, medical records of Personnel and know-how, hereinafter referred to as the "Confidential Information";
The Receiving Party's Obligations Regarding Confidential Information: The Receiving Party agrees that in order to protect the proprietary interests of
the Disclosing Party in its Confidential Information:
- It will only make the Confidential Information available to those of its Personnel who are actively involved in the execution of its obligations under this Agreement and then only on a "need to know" basis;
- It will initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to Confidential Information, the secret and confidential nature thereof;
- Subject to the right to make the Confidential Information available to their Personnel under clause 10.3.1 above, it will not at any time, whether during this Agreement or thereafter, either use any Confidential Information of the Disclosing Party or directly or indirectly disclose any Confidential Information of the Disclosing Party to third parties; and
- All written instructions, drawings, notes, memoranda and records of whatever nature relating to the Confidential Information of the Disclosing Party which have or will come into the possession of the Receiving Party and its Personnel, will be, and will at all times remain, the sole and absolute property of such Party and shall be promptly handed over to such Party when no longer required for the purposes of this Agreement;
- Obligations upon Termination: Upon termination or cancellation or expiry of this Agreement, the Parties will deliver to each other or, at each Party's option, destroy all originals and copies of Confidential Information in their possession;
Exclusions: The foregoing obligations shall not apply to any information which:
- Is lawfully in the public domain at the time of disclosure;
- Subsequently and lawfully becomes part of the public domain by publication or otherwise;
- Subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction of disclosure to disclose such Confidential Information; or
- Is disclosed pursuant to a requirement or request by operation of law, regulation or court order;
- Continuing Obligations: The provisions and restrictions contained in this clause 10 shall continue in force notwithstanding termination of this Agreement.
11. Non-Solicitation :
- The Parties agree that neither Party shall, during the subsistence of this Agreement, or within a period of 24 (twenty four) months thereafter, directly or indirectly solicit for employment, or contract with, any Personnel member of the other who has been involved at any time in the performance of this Agreement, or discourage any such Personnel member from continuing to be so employed or contracted, while such Personnel member remains employed or contracted by the other Party.
12. Force Majeure :
- Failure to Fulfil Obligations: Neither Party shall be liable for any failure to fulfil its obligations under this Agreement if such failure is caused by any circumstances beyond its reasonable control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions or acts of God;
- Right to Cancel the Agreement: Should either Party be unable to fulfil a material part of its obligations under this Agreement for a period in excess of 30 (thirty) days due to circumstances beyond its reasonable control, as recorded in above, the other Party may cancel this Agreement forthwith by written notice.
13. Limitation and Exclusion of Liability :
- Save for instances of fraud, or acts of gross negligence, the Service Provider shall under no circumstances whatsoever and however arising be liable for all or any claims for death, personal injury or loss of support, of whatsoever nature to any of the Customer's Personnel, directors, invitees or other persons present at the Customer's Premises, as well as any claims arising out of the loss or damage to the Customer's property and property belonging to the Customer's Personnel, directors, invitees or other persons;
- Subject to clause 13.3, a Party's liability for foreseeable damages to the other, for any cause whatsoever, and regardless of the form of action, whether in contract or delict, shall be limited to the Costs due and payable to the Service Provider for the Services (including any variations);
- In no event, and notwithstanding anything said to the contrary in this Agreement, (save and except for the provisions of this clause) shall either Party be liable to the other in any way for any indirect, special or consequential damages save and except where a third Party has a claim for infringement of its IP Rights against either Party due to the actions or omissions of the other Party in which event the innocent Party indemnifies the other Party against such third Parry IP claims which indemnity shall include loss for indirect, special and consequential damages. Such claim shall not be limited by the provisions of 13.2 above.
14. Dispute Resolution :
- In the event of a dispute arising in terms of this Agreement, the Parties shall firstly submit such dispute to their respective chief executive officers for purpose of resolution. Should the chief executive officers of the Parties fail to resolve the dispute referred to them within 10 (ten) Business Days, the Parties agree to attempt to resolve the dispute by mediation;
- The Parties shall, by agreement to be reached within 10 (ten) Business Days following the decision of the Parties to refer the dispute to mediation, appoint a third party to act as a mediator, and not as an arbitrator, to mediate in the resolution of the dispute. The Parties agree that the mediator shall be an advocate of the Western Cape Bar Council of not less than 10 (ten) years in practice. Should the Parties not be able to agree on the mediator, then the mediator shall be selected by the chairman for the time being of the Association of Arbitrators of Southern Africa (hereinafter referred to as "A of A (.S.A."). Such mediation shall be held in English, in Cape Town, and in accordance with the rules determined by the mediator and the timeframes agreed to by the Parties and the mediator;
- In the event that the Parties fail to resolve the dispute by way of mediation then that dispute shall be submitted to a court of competent jurisdiction.
15. Termination and Breach :
Material Breach: Should either Party (hereinafter the "Defaulting Party") commit a breach of a material provision of this Agreement and fail to remedy such
breach within 14 (fourteen) days of written demand from the other Party (hereinafter the "Aggrieved Party"), then the Aggrieved Party shall be entitled, in addition to any
other rights and remedies that it may have, including the right to recover damages, to:
- Claim specific performance; or
- Terminate this Agreement, such termination to be effective immediately upon receipt by the Defaulting Party of written notice to that effect, -- and in either event without prejudice to the Aggrieved Party's right to claim damages from the Defaulting Party;
Other Event Entitling a Party to Terminate this Agreement. Should either Party:
- Effect or attempt to effect a compromise or composition with its creditors; or
- Be provisionally or finally liquidated, be placed under curatorship, whether provisionally or final, or be subject to business rescue proceedings; or
- Cease or threaten to cease to carry on its normal line of business in the Republic of South Africa or default or threaten to default in the payment of its liabilities generally, or commit any act or omission which would, in the case of an individual, be an act of insolvency in terms of section 8 of the Insolvency Act, 1936 (Act No. 24 of 1936; or
- Be deemed to be unable to pay its debts in terms of the Companies Act, 2008 (Act No. 71 of 2008), -- the other Party may terminate this Agreement on written notice to such Party, in which event such termination shall be without prejudice to any claim which the other Party may have for damages against such Party occasioned by the termination of this Agreement in terms of this clause 15, notwithstanding that the damages shall only have arisen due to termination in terms of this clause 15.
16. Notices and Domicilium :
- The Parties select as their respective domicilia citandi et executandi for the purposes of giving or sending any notice provided for or required hereunder, the physical addresses, postal addresses and fax numbers detailed on the cover page hereof, or such other address or facsimile number as may be substituted by notice given as herein required;
- Any notice addressed to a Party at its physical or postal address shall be sent by prepaid registered post, or delivered by hand, or sent by email;
Any notice shall be deemed to have been given:
- If posted by prepaid registered post, 7 (seven) days after the date of posting thereof;
- If hand delivered, on the day of delivery;
- If sent by email, on the date and time of sending of such email, as evidenced by a delivery confirmation printout, provided that such notice shall be confirmed if a formal legal notice is given, by prepaid registered post on the date of dispatch of such email, or, should no postal facilities be available on that date, on the next Business Day;
- It is recorded that nothing in this clause shall operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause.
17. Processing Personal Information :
- The Service Provider acknowledges that in providing the Services, it may have access to Personal Information relating to the of any other person/s to whom Personal Information relates (Data Subjects) including in regard to content. Accordingly, the Service Provider agrees that it shall only store, copy or use Personal Information disclosed to it by the Customer or which it has access to as part of the Services to the extent necessary to perform its obligations under this Agreement and not otherwise modify, amend or alter the contents of the Personal Information or disclose or permit the disclosure of any of the Personal Information to any Third Party (save as set forth herein or allowed in law) and shall treat the Personal Information as strictly confidential.
- If required for purposes of providing the Services, the Service Provider will only Process the Personal Information of any other person/s to whom Personal Information relates (Data Subjects) in accordance with any applicable law and for a specific, lawful purpose strictly in accordance with the Customer's express written instructions and shall not carry out any related or further Processing activities for any other reason whatsoever (including any related processing functions or processing which would otherwise be a normal extension of the Processing which the Service Provider is entitled to undertake) without the express written consent of the Customer.
- If required by law, the Service Provider will implement appropriate, reasonable technical and organisational measures to ensure that the integrity of the Personal Information in its possession or under its control is secure and that such Personal Information is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access by having regard to any requirement set forth in law.
18. Assignment :
- Neither Party shall be entitled to assign, cede or otherwise transfer the benefit or burden of all or any part of this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
19. Subcontracting :
- It is recorded that the Service Provider shall be entitled to subcontract certain of the Services to third parties, subject to the Customer's prior written approval and provided that the Service Provider shall remain liable to the Customer for the provision of the Services, notwithstanding the fact that such Services have been subcontracted, and furthermore provided that the said third parties shall sign a confidentiality agreement with the Customer.
20. General :
- This Agreement constitutes the entire Agreement between the Parties in respect of the subject matter hereof and neither Party shall be bound by any undertakings, representations, warranties or promises not recorded in this Agreement;
- No variation, inclusive of this clause 20.2, or consensual cancellation of this Agreement and no addition to this Agreement shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives;
- No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the Party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege;
- Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid, lawful, and enforceable. If any term or condition held to be invalid, unlawful, or unenforceable is capable of amendment to render it valid, lawful, or enforceable the Parties agree to negotiate an amendment to remove the invalidity, unlawfulness, or unenforceability;
- This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law;
- Subject to clause 17, the Parties hereby consent and submit to the jurisdiction of the Western Cape Division of the High Court of the Republic of South Africa, in any dispute arising from or in connection with this Agreement;
- Notwithstanding termination of this Agreement any clause which, from the context, contemplates on- going rights and obligations of the Parties, shall survive such termination and continue to be of full force and effect.