1. AS2 has been appointed by the customer to provide our services. These terms and conditions, as may be amended from time to time, regulate the Agreement between the parties for our services to be provided to the customer.
2. DEFINITIONS AND RULES OF INTERPRETATION
2.1 The following expressions and words have the meanings assigned to them and derivative expressions and words will have a corresponding meaning: –
2.1.1 “Agreement” means the Agreement between the parties an includes these terms and conditions, AS2 quotation/s, AS2 invoice/s, service level agreement/s and scope of work;
2.1.2 “AS2/us/we” means AS2 (Pty) Ltd, registration no. 2006/003447/07, with its principal place of business, and chosen domicilium at Time Business Park, Unit 7, 39 Blaauwberg Service Road, Bloubergrant, Cape Town, South Africa;
2.1.3 “AS2 Technology” means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, software tools, software, source code, utilities and routines used in the provision of the Services, intellectual property, or any changes or additions thereto which we have created, acquired or otherwise has rights in prior to the date of signature of this Agreement, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in;
2.1.4 “BI Report Designs” means any report that has been designed using a Business Intelligence (BI) designer software, i.e. Sage Intelligence Reporting, Microsoft Power BI or a direct Microsoft Excel link.
2.1.5 “Confidential information” means all information of the disclosing party which is not generally available to the public or persons involved in the same industry as the disclosing party;
2.1.6 “Customer” is as described in our quotation and/or invoice and/or any documentation exchanged between the parties and includes the customers’ holding company, subsidiaries, and affiliates, and its chosen domicilium citandi et executandi is as per the Agreement;
2.1.7 “Development Project Scope Document” means a document detailing the expected specifications and requirements of a development that will be done for a client.
2.1.8 “Effective Date” means the date of acceptance of our quotation by the customer;
2.1.9 “Initial installation” means the 1st installation of the software
2.1.10 “Personnel” means any employee, agent, consultant, sub-contractor or other representative of either party;
2.1.11 “Performance Requirements” means the service levels set out herein;
2.1.12 “Policy procedures” means
2.1.13 “Products” means any software products or programs e.g. Sage or AS2 software programs
2.1.14 “Project Value” means the value of the project as detailed in the quotation to the client.
2.1.15 “Registered products” means software product registered with Sage or AS2
2.1.16 “Services” means the services to be provided by us to the customer in terms of the Agreement;
2.1.17 “Service Fee” means the service fee payable to us by the customer as detailed herein and/or our quotation/s and/or invoices, together with the rate card attached thereto.
2.1.18 “Service Term” means the services that we will render and shall commence on the effective date and shall continue until the termination as per the agreement;
2.1.19 “Source Code” means the computer programming code for our technology/product;
2.1.20 “Scope creeping” means any changes out of scope and not included in the Agreement;
2.1.21 “SLA” means service level agreement concluded between the parties containing a summary of the specific services to be rendered by us to the customer;
2.1.22 “Standard prevailing rate” means the rate charged for work done by AS2.
2.2 In this Agreement: –
2.2.1 clause headings are for convenience only and are not to be used in its interpretation;
2.2.2 unless the context indicates a contrary intention, an expression which denotes:
22.214.171.124 any gender includes the other genders;
126.96.36.199 a natural person includes a juristic person and vice versa;
188.8.131.52 the singular includes the plural and vice versa;
2.2.3 references to clauses, schedules, parts, annexes and sections are, unless otherwise provided, references to clauses, schedules, parts, annexes and sections of this Agreement;
2.2.4 cross-references to clauses in a specific schedule, part, annexed or section shall be a cross-reference to clauses in such schedule, part, annexed or section unless specifically stated otherwise;
2.2.5 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, provided that Saturdays, Sundays and South African public holidays shall be excluded from the calculation;
2.2.6 the use of the word “including or “includes” followed by a specified example/examples shall not be construed as limiting the meaning of the general wording preceding it and eiusdem generi rule shall not be applied in the interpretation of such general wording or such specific examples;
2.2.7 the rule of construction that an agreement shall be interpreted against the party responsible for the drafting of preparation of the agreement, shall not apply.
2.2.8 the agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa;
2.2.9 where figures are referred to in numerals and words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
3.1 The Customer hereby appoints AS2, who hereby accepts such appointment, to provide the Services on the terms and conditions of this Agreement. During the currency of this Agreement, and with effect from each Effective Date, AS2 shall provide the Services in accordance with the terms and conditions of this Agreement.
4. COSTS, PAYMENT TERMS AND EXPENSES
In consideration for services, the customer shall pay to us the service fees during the term of this Agreement in accordance with the provisions of this clause 4.
4.1 Payment terms:
184.108.40.206 All rates are applicable between 8:00 – 17:00 Monday to Friday.
220.127.116.11 Onsite consultation is charged at 1 (ONE) hour as a minimum and will be rounded off to the nearest half hour thereafter . Customers situated more than 50km from our office will be billed a minimum of 2 (TWO) hours per onsite consultation. For remote or telephonic consultation, normal rates (excluding call out rates) apply.
18.104.22.168 Payment for consultation services must be made as and when consultation services are provided, and any other services are rendered, and must reflect in our bank account within 48 (FORTY-EIGHT) hours.
22.214.171.124 All prices are VAT exclusive.
126.96.36.199 Consultation services are charged on a time and material basis, unless otherwise stipulated.
Rate per hour
Sage Business Cloud Accounting (Sage 1)
08:00 – 17:00
Sage Pastel Partner/Payroll/Xpress
08:00 – 17:00
08:00 – 17:00
08:00 – 17:00
BI Report/ SQL Writing/ Development work
Subject to Quote
08:00 – 17:00
Chief Technical Officer
08:00 – 17:00
Chief Executive Officer
08:00 – 17:00
A fee of R300.00 per visit is applicable to clients within a 20km radius of AS2 offices. Clients outside of this area will be subject to quote.
Onsite consultation billing is based on 1 hour minimum and will be rounded off to the nearest half hour thereafter.
Clients situated 20km from AS2 office will be billed a minimum of 2 hours per onsite consultation.
Normal consultation rates, call out charge not applicable. Consultations are billed in 0.50 hour increments
Consultations are billed in 0.25 hour increments
ALL PRICES ARE EXCLUDING VAT.
4.1.2 Software: Software costs and (or) hardware are payable on acceptance of quotation and proof of payment shall be provided by the customer to us before software and (or) hardware can be ordered from our suppliers. Final prices and availability will be confirmed on acceptance of quotation.
4.1.3 Development Work
188.8.131.52 A 50% (fifty percent) non-refundable deposit of our quotation must be paid before any work is initiated.
184.108.40.206 Payment thereafter is specified as per the milestones outlined in our quotation.
220.127.116.11 Full and final payment must be paid within 7 (seven) calendar days after initial installation.
18.104.22.168 If initial installation is delayed by the customer for more than 30 (THIRTY) calendar days, the full and final payment becomes due and payable immediately.
22.214.171.124 Payments are due and payable within 7 (seven) calendar days of receipt of a tax invoice from us.
126.96.36.199 VAT invoices shall reflect any additional charges which the customer is liable for.
188.8.131.52 If any amount payable by the customer is not paid on its due date, we may without prejudice to any other rights it may have, forthwith suspend any and or all software provided, and forthwith suspend the carrying out of our obligations in terms of the Agreement.
184.108.40.206 All payments by the customer to us shall be made in full, in South African currency, without any deduction or set- off, and free of bank exchange or other charges or commission.
220.127.116.11 All payments shall be paid in cash, by direct bank transfer or by means of a banker’s standing order, at our offices or at such other place in the Republic of South Africa as we may advise the customer from time to time.
4.1.4 Development Work changes/updates/scope creeping/bugs/virus
18.104.22.168 The project value will change in accordance with any changes/updates/scope creeping or any work provided and will have an effect (increase) on the yearly license fee.
22.214.171.124 On condition that the customer did not delay the initial installation for more than 30 (THIRTY) calendar days, any bugs on custom programs/reports will be fixed free of charge within a period of 30 (THIRTY) calendar days after initial installation.
126.96.36.199 In the event that the customer delayed initial installation for more than 30 (THIRTY) calendar days, same will be treated as scope creeping and are billable at our standard prevailing rate.
188.8.131.52 Any bugs fixed after the 30 (THIRTY) calendar day period will be treated as scope creeping and are billable at our standard prevailing rate.
184.108.40.206 Any changes/ updates/ consulting/scope creeping or any work done due to incorrect or insufficient information provided by the customer to us, are billable at our standard prevailing rate.
220.127.116.11 Any work done due to virus damage, software updates, hardware changes and the like are billable at our standard prevailing rate.
4.1.5 AS2 products License and Term :
18.104.22.168 As from the Effective Date and until terminated pursuant to the terms of this Agreement, AS2 grants the Customer a limited, non-exclusive, non-transferable licence to Use the AS2 products for its own business purposes, solely on the following terms:
22.214.171.124.1 To Use the Software for the number of users and software components specified in the License File.
126.96.36.199.2 The Customer accepts the licence granted to it in terms of clause 188.8.131.52 and acknowledges that it obtains no rights of ownership of the Software.
184.108.40.206.3 The Customer accepts that this Agreement governs the terms under which the right to use the Software is granted.
220.127.116.11.4 Save for the standard software maintenance plan set out in clause 18.104.22.168.8 which may form part of this Agreement, any services including implementation services acquired from AS2 or a third party are contracted and billed separately from this Agreement.
22.214.171.124.5 Unless terminated earlier in accordance with the terms of the Agreement and subject always to clauses 126.96.36.199.6.2 and 188.8.131.52.6.3, the initial term of this Agreement shall be 12 months from the Effective Date (“Initial Term”) and will automatically renew for additional periods of 12 months (each a “Renewal Term”) unless either party gives the other notice of non-renewal at least 90 (ninety) days before the end of the Initial Term or Renewal Term (as appropriate).
184.108.40.206.6 Fees and Payment
220.127.116.11.6.1 A license fee is payable to AS2 to use AS2 products. The license fee can be paid either on a monthly or yearly basis.
18.104.22.168.6.2 Payment of the License Fee will result in the automatic renewal of the Agreement for a further period of 12 months in accordance with clause 22.214.171.124.5
126.96.36.199.6.3 In the event of non-payment of the License Fee AS2 may terminate this Agreement with immediate effect and the software will no longer be accessible by the Customer.
188.8.131.52.6.4 The License Fee is due and payable on each anniversary date of this Agreement to continued access to and Use of the Software.
184.108.40.206.6.5 In order to extend the right to Use the AS2 products, the License Fee must be paid by the Customer irrespective of whether or not the Software has been successfully implemented.
220.127.116.11.6.6 Should the Customer wish to re-instate access to the Software, a re-instatement fee will apply and will be calculated at the time of re-statement.
18.104.22.168.7 Prohibited Uses
22.214.171.124.7.1 The Customer may not reproduce or distribute copies of the AS2 products to others or electronically transfer the Software from one computer to another over a network or on disk.
126.96.36.199.7.2 The Customer may not make copies of the Documentation or procure their reproduction through any third party without the prior written consent of AS2, and such consent shall not be unreasonably withheld or delayed. If the Customer requires additional copies of the Documentation, these may be obtained from AS2 at the then prevailing rate.
188.8.131.52.7.3 The Customer may not Use the Software for personal, family, household, or other non-business purposes.
184.108.40.206.7.4 The AS2 products contain intellectual property and know-how, system design and proprietary information which is the exclusive and valuable property of AS2, and the Customer may not disclose to others any such information or materials relating to the design, construction, operation or issue of the AS2 products except in connection with the Use permitted by this Agreement, or as agreed in writing by AS2.
220.127.116.11.7.5 Except to the extent expressly required to be permitted by law, the Customer may not modify, translate or create derivative works based on the Software, nor reverse assemble, de-compile or reverse engineer the Software, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the Software or any files contained in or generated by the Software, nor shall it permit, whether directly or indirectly, any third party to do so.
18.104.22.168.7.6 The Customer may not without AS2’s prior written consent, merge or combine the whole or any part of the Software with any other software or documentation.
22.214.171.124.7.7 The Customer may not without AS2’s prior written consent, grant any third-party direct access to the Software, including, without limitation by way of lease, loan, resell, distribute or grant sub-licences based on the AS2 products or any part thereof, nor use the same to act as a bureau or for time-sharing use.
126.96.36.199.7.8 The Customer acknowledges that the AS2 products, related product logos and product names are the trademarks or are otherwise proprietary to AS2, and the Customer may not remove any such notices or product identification or attempt to cover or disfigure the same.
188.8.131.52.8 Software Maintenance Services
184.108.40.206.8.1 Payment of the License Fees provides the Customer with product improvement and access to the maintenance plan as set out in this clause 220.127.116.11.8. The maintenance plan provides the Customer with access to the following:
18.104.22.168.8.1.1 Access to future upgrades or versions, which may include enhanced functionality and technology advancements.
22.214.171.124.8.1.2 Access to patches as released that either may correct the operation of the system and/or include enhancements.
126.96.36.199.8.1.3 Access to user guide documentation
188.8.131.52.8.1.4 Provides predictability on the future running costs of the system.
184.108.40.206.8.2 AS2 reserves the right not to provide support services in the event that the Customer requiring support on:
220.127.116.11.8.2.1 Customer has not upgraded such Software to a) the current major version distributed or b) one version prior to the current major version distributed. Furthermore, the AS2 Software must have been upgraded to include at least Service Pack or Patch level N-2, where N is the latest Patch List number provided by Supplier.
18.104.22.168.8.2.2 Any other Software that has not been upgraded such Software to a) the current major version distributed or b) at most two versions prior to the current major version distributed.
22.214.171.124.8.2.3 Any third-party software regardless of whether or not the third-party software was purchased through AS2.
126.96.36.199.8.3 The Customer agrees that the License Fee provide assurances and entitlement limited to the plan outlined above and do not provide for any assurances on implementation, support or other services not envisaged in clause 188.8.131.52.8
184.108.40.206.8.4 The Customer is required to maintain a matching level of software maintenance for all licensed users of the same Software.
4.1.6 License fees for AS2 developments/products:
220.127.116.11 A yearly license fee will be applicable on the development work.
18.104.22.168 The license fee will be stipulated on the quote supplied to the customer.
22.214.171.124 The customer must pay the license fees annually or quarterly in advance.
126.96.36.199 If the customer requires payment to be made monthly, such payments will be made in advance subject to a 12 (TWELVE) month minimum contract period.
188.8.131.52 Our Service Fee:
184.108.40.206.1 Our service fee is based on inter alia costs of fuel, labour, materials and other charges (‘expenses”) ruling at the effective date.
220.127.116.11 Written authorisation:
18.104.22.168.1 The customer shall authorize expenses in writing that we may require to incur on the customer’s behalf.
22.214.171.124.2 To the extent which we incur any expenses on the customer’s behalf, the customer shall re-reimburse us for said expenses on receipt of a VAT invoice from us detailing the nature and extent of such expenses.
126.96.36.199 Material variations to expenses:
188.8.131.52.1 Any material variations after the effective date in any of the aforesaid rates or charges, shall entitle us to vary the service fee accordingly.
184.108.40.206 Refusal to agree to increase:
220.127.116.11.1 To the extent that the customer is not agreeable to such increase, we may terminate the Agreement or the effected service, on 30 (thirty) days written notice to the customer.
18.104.22.168 Unavoidable expenses:
22.214.171.124.1 Any unavoidable expense incurred by us at the customer’s instance in modifying or otherwise altering or making additions to the specifications for the rendering of the agreed services, and any expenses arising as a result of suspension of our work due to instructions given, or a failure by the customer to give instructions shall be added to the service fees payable.
4.1.8 Final Prices and Availability: will be confirmed by us on acceptance of quotation.
4.1.9 Ownership: All goods remain our property of AS2 until fully paid for.
4.1.10 Additional Charges: Additional charges shall be calculated at our applicable market-related time and material rates in effect when performing those activities, such rates to be notified to the customer upon changes being made thereto.
4.1.11 Termination Costs becoming due: Upon termination of this agreement by any party and for any reason, all amounts due and payable by the customer to us shall become payable immediately together with any cancellation costs that may apply.
4.1.12 Escalation: On 1st January of each year, our standard prevailing rates of AS2 shall be adjusted in accordance with the Consumer Price Index.
4.1.13 Interest: The customer shall pay interest on demand at the publicly quoted basic rate per annum ruling from time to time at which First National Bank Limited lends on overdraft, which rate shall be proved by way of a certificate signed by any employee of such Bank, compounded monthly in arrears, on all amounts owing by the customer to us which have not been paid on the due date thereof, reckoned from the due date thereof until date of payment.
4.2 Statement of account:
126.96.36.199 The nature and amount of any and all amounts due by the customers to us in terms of this Agreement, as well as the interest payable in respect thereof, will at any time be determined and proved by a statement of the customer’s account. The statement will be issued by our finance staff whose capacity or the authority will not be necessary to prove.
188.8.131.52 The statement or other form of evidence as the case may be will upon the mere production thereof be binding on the customer and be prima facie proof of the contents of such statement and of the fact that such amount was due and payable in any legal proceedings against the customer and will be valid as a liquid document against the customer in any competent Court.
4.3 Where more than one unit is supplied and installed, we reserve the right to regard each completed unit and installation as a separate contract for payment purposes, and the client shall not be entitled to withhold any payment for the whole contract, whilst any part of the contract is in dispute or incomplete.
5. CUSTOMER WARRANTIES AND OBLIGATIONS
5.1 The customer warrants that:
5.1.1 it’s PC equipment used is modern, of business standard, up to date, virus free and dedicated to business use;
5.1.2 all its PC equipment complies with the hardware specifications supplied by us;
5.1.3 it’s anti-virus and firewall applications allow our products and software through as we use a web service for licensing purposes; and
5.1.4 that the intended data have been maintained and is error free.
5.2 The customer shall:
5.2.1 provide us with proof of its PC equipment compliance with hardware specification, when requested;
5.2.2 confirm agreement to any scope document supplied and that includes all the information required for the service;
5.2.3 provide us free and uninterrupted access to its premises during normal office hours, personnel, equipment, network for email, hardware, software and documentation (if necessary) in respect of which the services are to be provided and information, documentation and data relating to such documents, software and hardware as may be reasonably required by us to enable us to provide the services and comply with its obligations set out in this Agreement;
5.2.4 provide or procure a working environment for our employees if they are required to provide the services on site at the customer’s premises, which is free of prohibited unfair discrimination and harassment;
5.2.5 follow our policy procedures;
5.2.6 consider a request from us for consent or authorization without any delay, should same be required in terms of this Agreement, having regard to the nature of the request and impact which any delay in providing such consent or authorization may have on the services;
5.2.7 ensure that any third party over which it has direct control performs its duties and functions as may be required by us to enable us to provide the services;
5.2.8 ensure that an anti-virus program is installed on its PC and (or) network;
5.2.9 confirm the validity of accounting matters commented on by us or our staff members with customer own accountant / auditor before implementing it on the customer system;
5.2.10 inform us 48 (FORTY-EIGHT) hours before any system/hardware/software upgrades or changes to the server environment as we need to ensure that the software is compatible with the intended changes, since failure to do this may result in our technologies becoming in- operable;
5.2.11 if for any reason it is not satisfied with the conduct or performance of any of our employees inform us thereof in writing within 24 (TWENTY-FOUR) hours, to enable us to institute appropriate action and shall provide us with all information, documentation and assistance as may be reasonably required by us to effectively conduct any disciplinary or incapacity hearings;
5.2.12 be liable for a 50% placement fee (ex VAT) of any of our existing or ex staff members, or our subcontractors’ annual salary package, should it employ any of our existing or any ex staff members, or any of our sub-contractors within 12 (TWELVE) months of that staff member leaving our employment.
5.2.13 appoint an account liaison to facilitate the effective management of this Agreement and shall be responsible per the following roles and responsibilities:
184.108.40.206 insurance – the customer retains sole responsibility for insuring all of its own property, including but not limited to its data, documents, hardware, software or items of any nature;
220.127.116.11 disaster recovery – the customer shall be solely responsible for the implementation, maintenance and testing of its own disaster recovery at its own cost. We shall have no responsibility or obligation whatsoever in respect of any such disaster recovery.
5.2.14 check and test on a regular basis if the disaster recovery plan includes all the required data and is useable;
5.2.15 not reverse engineer any development work or reports supplied by us;
5.2.16 ensure its staff is suitably trained to use products supplied by us;
5.2.17 ensure back-ups are made of any customized reports developed by us.
6. OUR DUTIES, WARRANTIES AND EMPLOYEES
6.1 We will:
6.1.1 provide a solution based on the customer warranty that its PC equipment is modern, of business standard, up to date, virus free and dedicated to business use;
6.1.2 compile a scope document with the customer to determine the requirements;
6.1.3 send a quotation to the customer based on the scope document indicating the cost of the service;
6.1.4 prepare and send a separate quotation for any additional work requested by the customer outside the ambit of the scope document, and agreed between us and the client, and the separate quotation will form part of the Agreement;
6.1.5 provide support to customers in accordance with our policy procedures as specified by our management;
6.1.6 design BI reports as per the version of Sage stated by the customer;
6.1.7 in the event that the customer is of the opinion that a specific issue that occurs is the result of a possible defect/bug in the Sage system, we will assist the client with resolving the matter. We will bill for our time at our standard prevailing rate;
6.1.8 in the event that we agreed in writing to be liable or responsible for integration of third party products into any Sage products, unless agreed in writing by us, assist with resolving the matter we will bill same at our standard prevailing rate;
6.1.9 sub-contract certain of the services to third parties provided that we shall remain liable to customer for the provision of the services notwithstanding the fact that such services have been sub-contracted;
6.1.10 ensure that our employees work under our direction;
6.1.11 Should we in our sole discretion decide to return products, we shall charge a 50% handling fee (on the applicable invoiced amount). All returns shall be subject to the applicable legislation.
6.2 We warrant that we: –
6.2.1 possess or have the right to use knowledge and sufficient expertise to enable us to provide the services;
6.2.2 shall use and adopt techniques and standards to provide the services in a fit and proper manner;
6.2.3 shall provide the services with due care, skill and diligence;
6.2.4 shall render the services in a professional manner.
6.3 We shall not:
6.3.1 return products
6.3.2 accept returns on registered products under any circumstances since registered products are strictly non-refundable;
6.4 We shall not be liable for or held responsible for:
6.4.1 backing up Windows operating system prior to the installing of the software;
6.4.2 backing up of any customer data, programs or reports;
6.4.3 any Windows crashes that may occur during the install process;
6.4.4 customer system problems due to the use of computer systems that are out of date, have insufficient resources, use of pirated software and the like;
6.4.5 any errors or problems experienced if the software is not installed by our qualified and trained personnel.
6.4.6 for loss of data or downtime as a result of viruses or security breaches.
6.4.7 for any changes to the Customized BI Report Designs that may be caused by a new or different version of the accounting package or Microsoft Excel.
6.4.8 any damage to hardware/software when exporting or linking to the customer accounting package;
6.4.9 any defects that may exist within any software or hardware product supplied;
6.4.10 any loss of income or data as a result of any defect that may exist within any software or hardware product supplied;
6.4.11 for any data corruption/ data errors or financial book-keeping errors.
6.4.12 any integration of third party products into any Sage products, unless agreed in writing by us;
6.4.13 installing any software that does not comply with the Sage products license agreement.
6.5 We may give an opinion on accounting matters when asked but we are not the customer accountant / auditor, the customer must confirm the validity with its accountant / auditor before implementing it on its system;
7. CONFIDENTIAL INFORMATION
7.1 Each party shall retain all confidential information of the other party (“the disclosing party”) in strict confidence and undertakes not to disclose such information to any third party without the prior written consent of the disclosing party, which consent shall not be unreasonably withheld.
7.2 The above provision shall remain in effect after the expiration or termination of this agreement.
8. INTELLECTUAL PROPERTY
8.1 We may utilize our technology in the provision of the services or grant the customer the right to use such technology in whole or in part during the currency of this Agreement.
8.2 Any and all copyright, trademarks and other intellectual property rights subsisting in or used in respect of our technology are and shall remain our property.
8.3 Ownership of intellectual property and copyright held in the development scope document and source code remains our property of and may not be used by the customer.
8.4 The customer shall not during or at any time after termination of this Agreement acquire or be entitled to claim any right or interest therein or in any way question or dispute our ownership.
8.5 The customer further acknowledges that the programs may only be used by it as specifically authorized in terms of this Agreement, or otherwise in writing by us.
8.6 Unless expressly stated otherwise, upon to ittermination of this Agreement for whatever reason, the customer shall immediately discontinue such use.
9. LIMITATION AND EXCLUSION OF LIABILITY
9.1 The customer:
9.1.1 indemnifies and holds us harmless against any direct or indirect loss or damage which may arise as a result of any cause of action of whatsoever nature, including but not limited to delict and contract for the duration of the Agreement.
9.1.2 indemnifies and holds harmless us, any of our employees, directors, shareholders and sub-contractors for any data loss, hardware loss or any other monetary loss, including consequential losses.
9.2 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 control, including but not limited to; inclement weather, default or failure of third party service provider or other supplier. Acts of God, flood, earthquake, tempest, hurricane, government restrictions, war, riot, malicious acts of damage, civil commotion, strike, lockout, industrial dispute/action, refusal of license (including refusal or revocation of any Telecommunication Authority (e.g. the Telkom or Post Office consent), power failure, fire, or any act of State or Government or any other authority.
9.3 Should either party be unable to fulfil a material part of its obligations under this Agreement for a period in excess of 90 (ninety) days due to circumstances beyond its control, as recorded in clause 11.1, the other party may cancel this Agreement forthwith by written notice.
10. DISPUTE RESOLUTION
10.1 If any dispute arises out of the Agreement or the interpretation thereof, both while in force and after its termination, either party may refer it to the Chief Executive Officers of each party or appointed representatives on their behalf, who shall meet within 7 (SEVEN) days after such reference in an attempt to resolve the dispute.
10.2 If the Chief Executive Officers have not met within the said 7 (SEVEN) day period or, having met, have failed to resolve the dispute within 7 (SEVEN) days after their first meeting or such longer period agreed between them, either party may then refer proceed with legal action as provided in the Agreement.
11.1 Should either party commit a breach of this Agreement and fail to remedy such breach within 14 (FOURTEEN) calendar days of written demand from the other party, the other party as 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: –
11.1.1 claim specific performance; or
11.1.2 removal of all of our technologies by us if the Customer is the defaulting party; or
11.1.3 terminate this Agreement, such termination to be effective immediately upon receipt by the defaulting party of written notice to that effect.
11.2 Should either party: –
11.2.1 effect or attempt to affect a compromise or composition with its creditors; or
11.2.2 be provisionally or finally liquidated, be placed under curatorship, or be placed in judicial management, whether provisionally or final; or
11.2.3 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 the Insolvency Act, 1936 (as amended); or the other party may, immediately terminate the 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 the Agreement in terms of this clause, notwithstanding that the damages shall only have arisen due to termination in terms of this clause.
11.3 In the event that the customer fails to effect payment timeously as set out in clause 4 above, we may suspend the services until such time as the customer has made payment in full, alternatively we may terminate the Agreement and exercise any right which it may have in law in order to recover any monies due, owing and payable to it by the Customer as well as any damages which may be suffered as a result of the Customer’s breach.
12. ADDRESS FOR SERVICE OF NOTICES AND DOCUMENTS
12.1 The parties have chosen an address for the service of all notices and processes to be given and served at their respective physical addresses stipulated in clause 2 herein.
12.2 Any notice of change in respect of such physical addresses shall be given in writing by the party concerned and shall be delivered by hand or sent by registered mail or sent by facsimile to the other party and upon notification of which the address so notified will serve as the new address for service of notices and documents.
12.3 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 telefax or email.
12.4 Any notice shall be deemed to have been given: –
12.4.1 if posted by prepaid registered post, 7 (SEVEN) days after the date of posting thereof, if hand delivered, on the day of delivery,
12.4.2 if sent by telefax or email, on the date and time of sending of such telefax or email, as evidenced by a fax or email confirmation printout, provided that such notice shall be confirmed by prepaid registered post on the date of dispatch of such telefax or email, or, should no postal facilities be available on that date, on the next business day.
13. GENERAL MATTERS:
13.1 Save as set out in paragraph 6.1 above, we make no express or implied warranties in respect of the services.
13.2 All warranties reside with the supplier / manufacturer.
13.3 We are an independent contractor and that neither us or our employees are the customer’s employees.
13.4 Nothing in the Agreement shall be construed as:
13.4.1 creating a partnership and neither party shall have any authority to incur any liability on behalf of the other or to pledge the credit of the other party;
13.4.2 giving rise to a relationship of a temporary employment service.
13.5 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.
13.6 No variation 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 authorized representatives.
13.7 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.
13.8 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 and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.
13.9 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.
13.10 The parties hereto hereby consent and submit to the jurisdiction of such Western Cape High Court, Cape Town, in any dispute arising from or in connection with this Agreement.
13.11 Notwithstanding termination of this Agreement, any clause which, from the context, contemplates ongoing rights and obligations of the parties, shall survive such termination and continue to be of full force and effect