Last updated: 28th March 2018
Thanks for taking the time to read our General Terms. We’ll try to keep things simple, but it’s important that you understand your rights and responsibilities, so please keep reading.
In this Agreement, a reference to:
HI5 TECHNOLOGIES (PTY) LTD TERMS AND CONDITIONS
Registration Number: 2016/445285/07
(hereinafter referred to as the “Company")
1.1. The Client wishes to engage with the Company to implement, access, maintain and support certain software as provided by the Company (“the Services”) for use by the Client and/or the Client’s customers on the basis set out herein.
1.2. The Services as rendered by Company to the Client are governed by the terms and conditions recorded in these T’s and C’s.
- INTERPRETING THESE TERMS
2.1. These T’s and C’s contains a number of words and phrases which have specific meanings denoted by such words being capitalised.
2.2. In these T’s and C’s, headings are for convenience only and are not intended to be used to interpret these T’s and C’s.
2.3. If these T’s and C’s refer to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then these T’s and C’s will also be applicable to, and binding on, that party’s liquidator or trustee, as the case may be.
2.4. Unless these T’s and C’s indicate to the contrary, any references to any gender includes the other gender, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
2.5. The contra proferentem rule, or rule of construction that these T’s and C’s shall be interpreted against the Party responsible for the drafting or preparation of these T’s and C’s, shall not apply.
2.6. Where in these T’s and C’s, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed or otherwise agreed to in writing by the duly authorised representative of such Parties.
2.7. The use of the word "including" followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
2.8. Where these T’s and C’s specify any number of days, the number of days excludes the first day and includes the last day, unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
2.9. Any reference to "business hours" shall be construed as being the hours between 09h00 (nine hours) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
2.10. All annexures, appendices and amendments to these T’s and C’s form an integral part hereof and therefore also the Company’s contract with the Client.
2.11. The words and phrases in the definitions sections, below, bear the meanings assigned to them and related expressions bear corresponding meanings.
3.1. “Bug” means a failure of a portion or entirety of the Services to perform as specified herein;
3.2. “Bug Fix” has the meaning assigned to it in clause 5.2.2 of these T’s and C’s;
3.3. “Business Day” means any day in the RSA which is not a Saturday, Sunday or Public Holiday;
3.4. “Client” means the Party which has consented to these T’s and C’s, or where appropriate, the entity on behalf of which a duly authorised representative has bound by virtue of consenting to the terms of these T’s and C’s on behalf of such entity;
3.5. “Confidential Information” means any information or data of any nature, tangible or intangible, oral or in writing and in any format or medium, which by its nature or content is, or ought reasonably to be, identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence, and which the Disclosing Party or any person acting on behalf of the Disclosing Party may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. Without limitation, the Confidential Information of the Disclosing Party shall include the following even if it is not marked as being “confidential”, “restricted” or “proprietary” (or any similar designation) –
3.5.1. information relating to the Disclosing Party’s business activities, business relationships, products, services, processes, data, and Staff, including agreements to which the Disclosing Party is a party;
3.5.2. the Disclosing Party’s technical, scientific, commercial, financial and market information, methodologies, formulae and trade secrets;
3.5.3. the Disclosing Party’s plans, software, designs, drawings, processes, process maps, functional and technical requirements and specifications, and the data relating thereto;
3.5.4. Intellectual Property that is proprietary to the Disclosing Party or that is proprietary to an External Party, and data relating to the clients of the Disclosing Party; and
3.5.5. The demographic and other data relating to any staff or potential staff member of the Disclosing Party, which data may be disclosed to the Receiving Party by the Disclosing Party in order for the Company to perform the Services for the Client in terms of these T’s and C’s.
3.5.6. Without limiting the generality of the foregoing in any way, it is recorded that the Disclosing Party’s Confidential Information shall also include:
220.127.116.11. all information and data related to the Services and the Documentation in relation thereto;
18.104.22.168. All information relating to the Company’s planned and/or existing computer systems, systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods;
22.214.171.124. All information regarding the Company’s product strategies, customer lists, sales, profits, organisational restructuring, new business initiatives and financial information; and
126.96.36.199. Confidential Information of third parties with whom the Company conducts business.
3.5.7. Confidential Information excludes information or data which if demonstrated by the Receiving Party to the reasonable satisfaction of the Disclosing Party:
188.8.131.52. is lawfully in the public domain at the time of disclosure thereof to the Receiving Party;
184.108.40.206. subsequently becomes lawfully part of the public domain by publication or otherwise;
220.127.116.11. is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or
18.104.22.168. is disclosed pursuant to a requirement or request by operation of law, regulation or court order, but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed. In this event, the Receiving Party shall notify the Disclosing Party in writing in advance of such disclosure, and provide the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect such information.
3.5.8. provided that:
22.214.171.124. the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions;
126.96.36.199. the information disclosed will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party’s possession;
188.8.131.52. any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in a Party’s possession, but only if the combination itself is in the public domain or in a Party’s possession; and
184.108.40.206. the determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise.
3.6. “Content” means all information regardless of the medium used for the communication of such Content (including, but specifically not limited to, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which may be protected by copyright;
3.7. “Company” means Hi5 Technologies (Pty) Ltd, a private company duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 2016/445285/07, and having its registered address at 15 Glynville Terrace, Gardens, Cape Town, 8001;
3.8. “Disclosing Party” means the Party disclosing Confidential Information to the Receiving Party;
3.9. “Documentation” means, collectively (a) all materials published or otherwise made available to Client by the Company that relate to the functional, operational and/or performance capabilities of the System; (b) all user, operator, system administration, technical, support and other manuals and all other materials published or otherwise made available by the Company that describe the functional, operational and/or performance capabilities of the System.
3.10. “Effective Date” means the date on which date the Services shall commence, being item 4 of Onboarding Form hereto;
3.11. “External Party” means a party other than the Parties to these T’s and C’s;
3.12. “Implementation Services” shall refer to those services rendered, if any, on a once off basis at or near to the Effective Date as recorded in item 8 of Onboarding Form, and which are aimed at orienting and familiarising the Client and its users with the System;
3.13. “Implementation Fee” shall be the once off fee, if applicable, which is payable by the Client in respect of the Implementation Services, as recorded in item 9 of Onboarding Form;
3.14. “Intellectual Property” means the expression and/or representation of an intellectual and/or creative process and includes, but is not limited to, any text, images, data, multimedia, ideas, source code, concepts, know-how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions;
3.15. “Intellectual Property Rights” shall include, but not be limited to, rights in Intellectual Property attaching to any Content or other piece of Intellectual Property –
3.15.1. Created, invented and/or developed by the Company in the course and scope of rendering the Services in terms of the these T’s and C’s, alternatively, developed independently and/or owned by the Company (“the Company’s Content”); and
3.15.2. Generated by the System in the course and scope of the Company rendering the Services in terms of these T’s and C’s (“the Project Specific Content”).
3.15.3. Developed independently and/or owned by the Client (“Client’s Content”); and/or developed independently and/or owned by any External Party (“External Party Content”);
3.16. “Interruption Event” means theft, strike, lock-out, load shedding, blackout, fire, explosion, flood, riot, war, accident, act of nature, embargo, legislation, civil commotion, unrest or disturbances, cessation of labour, server downtime, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
3.17. “Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these T’s and C’s by reason of an Interruption Event;
3.18. “Losses” means all losses (including, but not limited to, those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, claims, loss of profit, data or business, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties) whether based in contract, delict or otherwise, including negligence, whether indirect, special, incidental or consequential damages;
3.19. “Outsourced Services” means Services outsourced by the Company to one or more External Parties required by the Company at any given time during the duration of these T’s and C’s;
3.20. “Package” means the package, as selected by the Client, as indicated in item 2 of Onboarding Form, which correlates with the maximum number of users/staff which a Client may have utilising the system, as stipulated in item 3 of Onboarding Form;
3.21. “Parties” means the Company and the Client. “Party” shall have a corresponding meaning;
3.22. “Pilot Period” means the voluntary period, if applicable, in which the Services are to be rendered on a pilot basis, for the duration referred to in item 7 of Onboarding Form hereto, on the terms as more fully canvassed in clause 6 hereof.
3.23. “Receiving Party” means the Party directly or indirectly receiving Confidential Information from the Disclosing Party.
3.24. “Services” mean the services to be rendered by the Company to the Client in order to develop, maintain and support the System in accordance with the license set forth in clause 6 hereof, as more fully contained in these T’s and C’s.
3.25. “Service Fees” means the payment/s made by the Client to the Company commencing from the Effective Date in respect of the Services as referred to in clause 11 herein and detailed more fully in item 10 of Onboarding Form hereto.
3.26. “Services Variation” means a material change in the Services contained in these T’s and C’s;
3.27. “System” means the software provided in accordance with the Services, and located at www.get5.io, alternatively, as standalone mobile software applications on both the Apple App Store and Android Stores located at:
respectively, as to which the Client shall be granted a license to access same in terms of clause 6.
3.28. “T’s and C’s” mean these terms and conditions as well as the Onboarding Form, any annexures, appendices or addenda to these T’s and C’s from time to time, together with the Client order form;
3.29. “Term” shall refer to the term of these T’s and C’s as recorded in item 5 of Onboarding Form hereto.
3.30. “Update” means any update, correction, or other modification to the Code of the Services as contemplated in these T’s and C’s, (other than an Upgrade) that the Company and/or an External Party releases or provides after the original release provided to Client;
- COMMENCEMENT AND DURATION
4.1. Unless terminated in accordance with clause 14, these T’s and C’s shall commence on the Effective Date and endure for the Term as recorded in item 5 of Onboarding Form hereto, unless a Pilot Period is applicable in accordance with items 6 and 7 of Onboarding Form.
4.2. Should the Parties elect for a Pilot Period to be applicable, and should these T’s and C’s not be terminated in accordance with clause 14 hereof, these T’s and C’s shall be automatically renewed for the Term, and which Term shall commence from the date upon which the Pilot Period terminates.
4.3. Furthermore, and during the Term, should these T’s and C’s not be terminated in accordance with clause 14, such Term shall automatically be renewed on the same terms and conditions as that set out herein on each anniversary of the Term, for a further period each time equal to the Term, but in terms of which, such Service Fees shall increase in each renewal by an amount equal to the then rate of CPI Inflation of South Africa as published by Statistics SA from time to time.
4.4. During the Term, either Party may terminate these T’s and C’s for any reason whatsoever, on 3 (three) months written notice to the other.
5.1. The Company shall, during the currency of these T’s and C’s, render the Services on the basis set out herein.
5.2. Further the Company shall also provide, at its discretion, to the System:
5.2.1. Updates by way of conducting routine updates, at the discretion of the Company, to the software comprising the Services in order to ensure that same are up to date and functioning in accordance herewith.
5.2.2. Bug Fixes, which shall include the fixing or otherwise correcting of Bugs on behalf of the Client, at the discretion of the Company, in order to ensure that the software comprising the Services are functioning as intended.
5.3. These T’s and C’s may be amended or wholly replaced by the Parties provided that each amended or replaced version shall be effected in writing and be agreed to by way of signature or other recognised form of written agreement (at the discretion of the Company) by both Parties’ representatives.
5.4. Amendments and/or replacements may, at the Company’s sole and unfettered discretion, require consequential changes to the Service Fees payable. The Company shall notify the Client of any such changes in writing, and Services based on such amended or replaced Agreement shall commence on acceptance of such changes by the Client.
5.5. Each version of these T’s and C’s shall become binding on the Parties upon the signature date thereof.
5.6. These T’s and C’s shall specify the Services to be rendered by the Company pursuant to these T’s and C’s.
5.7. The Company shall not be required to render Services until such time as these T’s and C’s is signed or otherwise agreed to by the Client.
5.8. Departures from the Services, as determined in the sole and unfettered discretion of the Company, shall constitute a Services Variation.
5.9. In dealing with Service Variations, this clause 5 must be read in conjunction with the Specification Appendix pertaining to Service Variations, if any.
5.10. The Company shall not be required to render Services subject to a Service Variation, unless the Service Variation is appropriately recorded in an agreed, writtenamendment to, or replacement of the existing Agreement.
5.11. It is specifically recorded that usage of users which exceeds the number of users which the Parties have agreed to shall constitute a Service Variation. In this case, the Company shall only be obliged to make provision of the Services to those additional users, upon the corresponding Package being signed or otherwise agreed to in writing by the Parties, and the increased Service Fees, associated therewith, being paid by Client for the remainder of the Term or Pilot Period, as the case may be.
6.1. The Company hereby grants to the Client a non-exclusive, limited, non-transferable, revocable licence to access the System and associated Documentation which have been licensed in exchange for payment of the Service Fees.
6.2. The Company specifically reserves that right to conduct a usage audit from time to time, in order to verify that the number of end-users utilising the System.
- SUPPORT AND RESPONSE TIMES
7.1. Throughout the term of these T’s and C’s, the Company shall offer certain support to the Client during business hours via electronic mail as set out hereunder.
7.2. The Company shall endeavour to, but cannot guarantee, that it will respond all support requests within 1 (one) business day.
7.3. All support tickets and queries shall be logged by sending a detailed email containing the nature of the support queries to email@example.com.
- INTELLECTUAL PROPERTY
8.1. All Intellectual Property Rights together with all rights, titles and/or interest therein attaching to the Company’s Content, shall remain vested in the Company.
8.2. All Intellectual Property Rights together with all rights, titles and/or interest therein attaching to the Project Specific Content, shall remain vested in the Company.
8.3. All Intellectual Property Rights together with all rights, titles and/or interest therein attaching to the Client’s Content, shall remain vested in the Company.
8.4. Notwithstanding the aforegoing External Party Content shall, at all times remain vested in the applicable External Party owner.
8.5. No other provisions in these T’s and C’s shall be deemed to be a transfer of the aforesaid Intellectual Property Rights to either Party.
8.6. The Client shall not –
8.6.1. remove and/or tamper with the copyright, trademark and/or other proprietary notices contained on or in the Company’s Content, the Project Specific Content and/or External Party Content and shall reproduce such notices on all copies of such Content;
8.6.2. save as may be required for the fulfilment of these T’s and C’s, reproduce or modify the Company’s Content; or
8.6.3. cause or allow the discovery by any External Party or of the source code of any software owned or utilised by the Company; or
8.6.4. rent or lease the Company’s Content and/or the Project Specific Content or its direct derivatives; or
8.6.5. distribute the Company’s Content and/or the Project Specific Content to External Parties.
8.7. The Company shall not:
8.7.1. remove and/or tamper with the copyright, trademark and/or other proprietary notices contained on or in the Client’s Content, and shall reproduce such notices on all copies of such Content;
8.7.2. save as provided for herein, reproduce or modify the Client’s Content; or
8.7.3. distribute the Client’s Content to External Parties.
- EXTERNAL PARTY SERVICES & OUTSOURCED SERVICES
9.1. The Services may incorporate the use of External Party software and/or services.
9.2. The Client acknowledges that the Company does not render legal services, and that the Client shall remain solely responsible for familiarising itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those External Party software and/or services.
9.3. The Company accepts no liability whatsoever for the Client’s failure to comply with the terms and conditions governing the use of the External Party software and/or services, nor the content contained therein.
9.4. As at the commencement of these T’s and C’s, certain of the Services set out in these T’s and C’s may be outsourced by the Company to one or more Service Providers.
9.5. The Company shall be entitled at any time and from time to time to change the identity of any Service Provider and/or to sub-contract any of the Outsourced Services to a new Service Provider and/or to delegate to one or more existing or new Service Provider/s all or any part of its obligations to provide any particular Service to the Client in terms of these T’s and C’s.
9.6. The Client acknowledges that the Service Providers’ terms and conditions shall govern the provision of the Outsourced Services as between the Company and such External Party. The Parties further record and agree that the Company shall, at any time during the term of these T’s and C’s, be entitled to appoint and/or terminate the services of such Service Providers, provided that such appointment and/or termination of Service Providers shall not be materially detrimental to the Company’s performance of its obligations and/or compromise the service levels agreed to in terms of these T’s and C’s.
- SERVICE LEVELS
10.1. The Company hereby undertakes to ensure that the standard of the Services it shall render to the Client in terms of these T’s and C’s shall be in accordance with these T’s and C’s, and shall be rendered during business hours, unless otherwise provided in these T’s and C’s.
10.2. The Company shall endeavour to have the Services made available 99.99% percent of the time, but cannot warrant same. This measurement is averaged over the course of a month, and excludes holidays, weekends and scheduled maintenance. If a Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections, alternatively utilities or other reasons beyond the Company’s control will also be excluded from any such calculation.
- IMPLEMENTATION FEES
11.1. If required by virtue of items 8 and 9 of Onboarding Form, the Client may shall be obliged to make a once off payment of the Implementation Fee by way of EFT into a bank account as nominated by the Company in respect of the Implementation Services, prior to their being rendered.
- SERVICE FEES
12.1. The Client shall, as consideration for the Services to be rendered by the Company in terms of these T’s and C’s, effect payment to the Company of its Service Fees monthly in advance, in accordance with clause 13 below.
12.2. In the event of the Client, after provision of the Services by the Company subsequent to the Effective Date, not enlisting any end-users, alternatively, not enlisting all the end users as permitted by their chosen Package, then and in that event, the Client will still be liable to make payment to the Company of the Service Fees.
13.1. The Company shall provide to the Client an invoice on the XXX day of each month, the monthly Service Fee as recorded in item 10 of Onboarding Form.
13.2. Each invoice shall be paid within 30 (Thirty) days of presentation thereof directly into the Company’s banking account by way of credit card or debit order, as stipulated in item. The Company’s banking details shall be recorded on the invoice.
13.3. In the event of the Client failing to timeously effect payment of any amount due to the Company in terms of these T’s and C’s, the Company shall without prejudice to any other rights which it may have in terms of these T’s and C’s or otherwise at law, be entitled to suspend the provision of the Services in terms of these T’s and C’s and/or disable access to the System, and revoke the license, for any period in which a payment remains outstanding.
13.4. In addition to the provisions of clause 13.3 above, all unpaid invoices which remain unpaid for more than 30 (Thirty) days after receipt of such invoice, shall be subject, at the discretion of the Company, to a finance charge of 1.5% (One Point Five Percent) per month on any outstanding balance, or the maximum permitted by law, whichever is lower.
13.5. The Client agrees that, should the Company be required to recover any outstanding amounts from the Client, it shall pay all the Company’s expenses in recovering any amounts the Client owes the Company, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon (if applicable).
- CLIENT RESPONSIBILITY TO MAINTAIN EQUIPMENT
14.1. The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
15.1. Either Party may immediately terminate these T’s and C’s by giving written notice to the other Party if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other Party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other Party, or in the case of the Company terminating, if the Client materially breaches its obligations to make payment pursuant to these T’s and C’s.
15.2. During the Pilot Period, if applicable, and notwithstanding any of the provisions set out herein, either Party may terminate these T’s and C’s for any reason whatsoever on 30 (Thirty) days written notice to the other.
15.3. During the Term, and notwithstanding any of the provisions set out herein, either Party may terminate these T’s and C’s for any reason whatsoever on 90 (Ninety) days written notice to the other.
16.1. The Receiving Party shall not, without the prior written consent of the Disclosing Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Disclosing Party) disclose such Confidential Information to any person, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.
16.2 The Receiving Party may disclose Confidential Information to its officers, employees and subcontractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
16.3. The Receiving Party shall inform any officer, employee or subcontractor to whom it discloses such Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any External Party (other than those persons to whom it has already been disclosed in accordance with the terms of these T’s and C’s), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this clause 16, by the person to whom it is disclosed.
16.4. Notwithstanding the provisions of this clause 16 –
16.4.1. either Party may make reference to these T’s and C’s, the Parties’ identities and a general description of the System and Services rendered pursuant to and in terms of these T’s and C’s; and
16.4.2. either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding, the details of its financial performance, its financial performance forecast and the Party’s strategic planning.
16.5. The Client acknowledges and agrees that the System developed in terms of the Services provided is unpublished and hence, not in the public domain, and contains proprietary and Confidential Information of the Company, which the Company considers to constitute valuable trade secrets. In addition, the Client may also be provided with or be exposed to Confidential Information of External Parties with whom the Disclosing Party conducts business.
16.6. The Receiving Party shall treat such Confidential Information with at least the same degree of care as the Receiving Party would treat their own Confidential Information.
16.7. That Receiving Party will not make use of any Confidential Information for its own purposes, such as the creation of a, direct or indirect, competitive product or service, such as, but not limited to, a product similar to that delivered by the Disclosing Party; or for the benefit of anyone or any other entity or External Party.
16.8. The Receiving Party may disclose Confidential Information to its officers, employees and agents but only to the extent that such Confidential Information is absolutely necessary for the Receiving Party to perform in terms of the provisions of these T’s and C’s.
16.9. The Receiving Party shall inform any officer, employee or agent to whom it discloses such Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any External Party (other than those persons to whom it has already been disclosed in accordance with the terms of these T’s and C’s), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this clause 16.9, by the person to whom it is disclosed.
16.10. Upon the termination of these T’s and C’s for any reason whatsoever, as more fully canvassed in clause 14 above, or at any time that the Company may so request, the Client will deliver promptly to the Company or, at Company’s option, will destroy all memoranda, notes, records, reports, databases, media and other documents and materials (and all copies thereof), whether physical or electronic, regarding or including any Confidential Information which the Client may then possess or have under its control.
16.11. Further to the above, the Client acknowledges that the disclosure of the Company’s Confidential Information may cause irreparable injury to the Company, including damages which may be difficult to ascertain or quantify. Accordingly, the Company shall be entitled to interdictory relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that the Company prove irreparable harm, in addition to such other remedies as may be available at law or in equity. In this regard, such harm, may include both direct and consequential damages. Without limitation of the foregoing, the Client shall advise the Company immediately in the event that it learns or has reason to believe that any person or entity which has had access to Confidential Information has violated or intends to violate the terms of this Agreement.
- LIMITATION OF LIABILITY
18.1. To the fullest extent permitted by law, the Client agrees that the Company shall not be liable for any Losses however arising and whatever the cause, even in instances where the Client was informed of the possibility of such Losses being cause, including, but not limited to, Losses arising as a result of the Client’s misconduct, negligence and/or gross negligence.
18.2. Notwithstanding the foregoing, should the Company not be permitted to lawfully limit its liability as referred to in 18.1 above, the Company’s aggregate liability for damages arising out of or in connection with these T’s and C’s, the performance of the Services, or the Company’s performance of its obligation herein, shall not exceed the current average cost to the Client of annual Service Fees paid by the Client for the Services.
19.1. Subject to any other provision of these T’s and C’s providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these T’s and C’s and fail to remedy such breach within 7 (Seven) days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to -
19.1.1. cancel these T’s and C’s, provided the breach in question is a breach going to the root of these T’s and C’s; or
19.1.2. claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
in either event, without prejudice to the Aggrieved Party’s right to claim damages.
- INTERRUPTION EVENT
20.1. An Interrupted Party shall be relieved of its obligations in terms of these T’s and C’s during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
20.2. The Interrupted Party shall notify the other Party of an Interruption Event in writing as soon as it becomes reasonably aware of the Interruption Event as such.
20.3. In the event that an Interruption Event exceeds –
20.3.1. 20 (Twenty) consecutive days, and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of these T’s and C’s; or
20.3.2. 3 (Three) consecutive months, and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate these T’s and C’s and shall only remain liable for performance under these T’s and C’s which fell due immediately prior to the Interruption Event.
21.1. Save as expressly stated to the contrary herein, the Client shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these T’s and C’s, other than as provided for in these T’s and C’s, except with the prior written consent of the other Parties. The Company shall, at its discretion, be permitted to cede and assign any of its responsibilities in terms of these T’s and C’s.
22.1. If any clause or term of these T’s and C’s shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of these T’s and C’s shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these T’s and C’s.
- DOMICILIUM AND NOTICES
23.1. The Parties shall choose as their domicilium citandi et executandi ("domicilium") for all purposes arising from or pursuant to these T’s and C’s, their address and contact details as follows:
23.1.1. Company: 15 Glynville Terrace, Gardens, Cape Town, Western Cape, 8001; Email: firstname.lastname@example.org; and
23.1.2. Client: As per item 1 of Onboarding Form.
23.2. Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number, and shall be in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Party of such change.
23.3. All notices, demands, communications or payments intended for any Party shall be made or given at such Party's domicilium for the time being.
23.4. A notice sent by one Party to another Party shall be deemed to be received:
23.4.1. on the same day, if delivered by hand;
23.4.2.one day after transmission if sent by email;
23.4.3. on the third day after dispatch, if sent by prepaid courier.
23.5. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
- LIMITED WARRANTY
24.1. The Company makes no other warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose for which the Services and the System are intended. In this regard, the Client agrees that the Company is unable to, and is not required to, guarantee a particular result or set of commercial results.
24.2. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall provide advance notice in writing or by e-mail of any scheduled service disruption.
24.3. Except as expressly set forth in this section, subject to the business requirements of the customer being satisfied, the Services and System are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and noninfringement.
- VARIATION, CANCELLATION AND WAIVER
25.1. No contract varying, adding to, deleting from or cancelling these T’s and C’s, and no waiver of any right under these T’s and C’s, shall be effective unless reduced to writing and signed (or otherwise agreed to in writing) by or on behalf of the Parties.
25.2. The waiver or failure of the Company to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. The rights and remedies of the Company set forth in these T’s and C’s are in addition to any rights or remedies the Company may otherwise have at law or in equity. If any provision of these T’s and C’s shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
- GOVERNING LAW AND JURISDICTION
26.1. These T’s and C’s and the performance hereunder shall be governed by the laws of the South Africa without regard to conflicts of laws.
27.1. The Parties agree to first resolve any dispute informally, as between the Parties. Should such attempt at resolution fail, submit any dispute or difference between them arising out of these T’s and C’s to arbitration in accordance with the rules of the Arbitration Foundation of Southern Africa.
27.2. The Arbitration will be held in the English language in Cape Town or Johannesburg and in accordance with South African Law.
27.3. There will be one arbitrator, who will be, if the question in issue is:
27.3.1. Primarily an accounting matter, an independent chartered accountant of at least 10 (ten) years standing;
27.3.2. Primarily a legal matter, a practicing advocate or commercial attorney of at least 10 (ten) years standing; and
27.3.3, Any other matter, a suitably qualified person.
28.1. All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability, in addition to the other provisions which, by way of necessity are required to survive termination, shall survive the completion or termination of these T’s and C’s.
29.1. These T’s and C’s shall be binding on the successors of each Party.
- ENTIRE AGREEMENT
30.1. These T’s and C’s constitute the entire agreement and understanding of the Parties and supersedes and merges any and all prior proposals, understandings and agreements, oral and written, between the Parties concerning the subject matter hereof.