TERMS AND CONDITIONS

1    DEFINITIONS AND INTERPRETATION

1.1    In this Agreement, unless inconsistent with the context, the following expressions shall have the meanings assigned to them below and cognate expressions shall bear corresponding meanings:

1.1.1     “Customer” or “the Client” means “[CUSTOMER]”;

1.1.2    “Agreement” means collectively this Service Level Agreement, any attachments (however described) hereto and the Transaction Documents;

1.1.3    “Business Day” means a day other than a Saturday, Sunday or a public holiday in South Africa;

1.1.4    “Business Hours” means 08:00 to 17:00 on a Business Day;

1.1.5    “CPI” means the Consumer Price Index, as published in the Government Gazette by Statistics South Africa or, if publication of the CPI ceases at any time, such other index reflecting the official rate of inflation in South Africa as may replace the CPI or as may be selected by [COMPANY];

1.1.6    “Confidential Information” means any and all information or data of whatever kind or nature concerning or relating to the Disclosing Party or its business to which the Receiving Party is provided access by virtue of this Agreement or its activities hereunder, whether in written, electronic, oral, web-based or other form and which by its nature or content is identifiable as, or could reasonably be expected to be, confidential, proprietary, obviously competitively sensitive and/or would be useful to other persons (even if not marked as being confidential, restricted, proprietary or with similar designation);

1.1.7    “Disclosing Party” means the Party whose Confidential Information is disclosed or made available to the Receiving Party;

1.1.8    “Effective Date” means:

1.1.8.1    in relation to this Service Level Agreement, the date on which [COMPANY] signs same; and

1.1.8.2    in relation to a Transaction Document, the date recorded therein or, if no such date is recorded therein, the Signature Date of the Transaction Document;

1.1.9    “Equipment” means any equipment, computer hardware or assets that are provided by [COMPANY] to the Client in terms of this Agreement, which Equipment will be described in the relevant Transaction Document;

1.1.10    “Fee(s)” means the amounts payable by the Client to [COMPANY] for the Services, which are set out in the relevant Transaction Document;

1.1.11    “Initial Term” means the initial term recorded in the relevant Transaction Document;

1.1.12    “Intellectual Property” includes any type of patent, design right, utility models or other similar invention, trademark, copyright, moral right, trade secret, trade name, service mark and any other intangible property, including applications and registrations for any of the foregoing in any country arising under statutory or common law or by contract and whether or not perfected or registered, now existing or hereafter created, filed, issued or acquired;

1.1.13    “Parties” means [COMPANY] and the Client and “Party” means either [COMPANY] or the Client;

1.1.14    “Personal Information” means information that relates to an identified or identifiable person;

1.1.15    “Personnel” means a Party’s employees, officers, representatives, agents, contractors or any person for whom the Party is responsible in law;

1.1.16    “Process” means any operation or set of operations that is performed on Personal Information, including the use of, recording, copying, compiling, collecting, collating, structuring, processing, mining, storing, erasing, altering, disclosing by transmission, disseminating and/or transferring such Personal Information;

1.1.17    “Receiving Party” means the Party that receives disclosure of, or has access to, any of the Disclosing Party’s Confidential Information;

1.1.18    “Services” means the services described in the applicable Transaction Document that will be provided by [COMPANY] to the Client in terms of this Agreement;

1.1.19    “Service Desk” means [COMPANY]’s call centre, which acts as a single point of contact between [COMPANY] and the Client to manage all Support Issues logged by the Client and communications with the Client;

1.1.20    “[COMPANY] Technology” means the various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs and general purpose consulting and software tools, utilities and routines used by [COMPANY] in the provision of the Services which [COMPANY] has created, acquired or otherwise has rights in;

1.1.21    “Signature Date” means the date of signature by the last signing Party;

1.1.22    “Site” means the premises specified in a Transaction Document at which [COMPANY] will provide the Services;

1.1.23    “Software” means any software that [COMPANY] will be providing to the Client as part of the Services and/or any software in relation to which the Services will be provided, which Software will be described in the relevant Transaction Document;

1.1.24    “Support Issue” means a request by the Client to [COMPANY]’s Service Desk for technically related support in respect of the Services;

1.1.25    “Third Party Services” means the services that form part of the Services that are provided by a Vendor;

1.1.26    “Transaction Document” means a supplementary agreement signed by both Parties describing specific Services to be provided by [COMPANY] to the Client, including any additional terms and conditions relating thereto;

1.1.27    “Vendor” means the manufacturer or supplier of the Equipment, the licensor or reseller of the Software and the service provider of any Third Party Services;

1.1.28    “Vendor Terms” means the Vendor’s terms and conditions, warranties and warranty conditions, licensing conditions, operating instructions and/or use policies;

1.1.29    “Workaround” means a set of actions that reduces or eliminates the effect of a Support Issue for which a permanent solution may either not be available or might take time to implement.

1.2    Any reference in this Agreement to:

1.2.1    natural persons includes a reference to created entities (corporate or unincorporated) and vice versa;

1.2.2    any one gender includes the other two genders;

1.2.3    the singular includes the plural and vice versa;

1.2.4    an enactment is to that enactment as at the Effective Date of this Agreement and as amended or re-enacted or substituted from time to time;

1.2.5    a Party includes such Party’s successors-in-title and permitted assigns;

1.2.6    the term “include”, “includes” and “including” means “include/includes/including without limitation”. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it;

1.2.7    days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be.

1.3    When any number of days is prescribed in this Agreement, same shall be calculated exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which event the last day will be deemed to be the next Business Day.

1.4    The headings appearing in this Agreement are for reference purposes only and shall not affect the interpretation hereof.

1.5    Where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.

1.6    If any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party, notwithstanding that it is only a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement.

1.7    Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in this Agreement, notwithstanding that such term has not been defined in this clause 1.

1.8    The expiration or termination of this Agreement shall not affect those provisions which expressly provide that they will operate after the expiration or termination or which of necessity must continue to have effect after the expiration or termination of this Agreement, notwithstanding the fact that the clauses themselves do not expressly provide this.

1.9    The rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to this Agreement.

1.10    The use of any expression in this Agreement covering a process available under the laws of South Africa, such as liquidation, shall, if any of the Parties is subject to the law of any other jurisdiction, be construed as including any equivalent and analogous proceedings under the law of such other jurisdiction.

2    STATUS AND PRECEDENCE

2.1    This Agreement is an umbrella agreement under which the Parties may from time to time agree for the provision of Services by [COMPANY] to the Client.  Such Services and any contractual terms applicable to the supply thereof shall be set out in Transaction Documents.  Such Transaction Documents shall be executed before the commencement of any Services contemplated therein.

2.2    Except where specifically provided to the contrary in a Transaction Document, each Transaction Document shall be subject to the provisions of this Agreement and deemed a part hereof as if fully included in its body.

2.3    In the event of a conflict between any provision of this Service Level Agreement and any provision of a Transaction Document, the order of preference shall be:

2.3.1    the Transaction Document should the conflict relate to the description of the Services or to any commercial or technical issues;

2.3.2    this Service Level Agreement should the conflict relate to any legal provision save to the extent that a Transaction Document expressly provides that such provision will not apply to it.

2.4    Each Transaction Document shall be a separate and divisible agreement capable of survival and/or termination independent of other Transaction Documents.

2.5    No further Transaction Documents may be entered into if this Service Level Agreement has been terminated.

3    DURATION

3.1    This Agreement will commence on its Effective Date and shall continue indefinitely thereafter until terminated in accordance with clause 17 below.

3.2    Subject to clause 17 below, each Transaction Document will endure for the Initial Term contemplated in that Transaction Document and will continue thereafter for further successive terms of 12 (twelve) months (“Renewal Term/s”) unless a Party gives the other Party at least 90 (ninety) days’ written notice prior to the end of the Initial Term or the current Renewal Term of its intention not to renew the Transaction Document, in which case that Transaction Document will terminate at the end of the Initial Term or current Renewal Term, whichever is applicable.

4    SERVICES

4.1    [COMPANY] shall itself or through the Vendors or other parties perform the Services in terms of this Agreement as more fully set out in the applicable Transaction Document.

4.2    Any Equipment, Software or Third Party Services that form part of the Services shall be provided by [COMPANY] to the Client on the terms and conditions set out in this Agreement and on the Vendor’s Terms.  The Vendor’s Terms shall apply exclusively between the Client and the Vendor and the Client shall have no claim against [COMPANY] in connection therewith.  By way of the support services referred to in clause 6 below, [COMPANY] shall facilitate the Vendor’s repair or replacement of faulty Equipment or the Vendor’s resolution of errors experienced in respect of the Software or Third Party Services.  The Client shall be responsible for ensuring that it has knowledge of, and complies with, the Vendor’s Terms.

4.3    The Fees payable by the Client to [COMPANY] for the Services are set out in the applicable Transaction Document.

4.4    Each Party shall appoint a representative to manage this Agreement on its behalf.  The details of the Parties’ representatives are set out in the Transaction Documents.  A Party may change its representative from time to time provided that it furnishes the other Party with the name and contact details of its new representative.

4.5    Should [COMPANY] determine that the services that the Client has requested or requires [COMPANY] to provide (including in respect of a Support Issue) falls outside the scope of the Services, then such services shall be subject to clause 9 below.

4.6    [COMPANY] shall not be responsible for any loss (including loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where [COMPANY]’s failure, delay or inability to perform its obligations in terms of this Agreement is due to:

4.6.1    circumstances beyond [COMPANY]’s reasonable control;

4.6.2    events that constitute a Force Majeure Event in terms of clause 15 below;

4.6.3    all telecommunications infrastructure and communication line faults;

4.6.4    power failure or power interruption at the Client’s Site/s;

4.6.5    the Client making changes to its information technology system or environment or any portion thereof which the Client did not advise [COMPANY] of and failed to obtain the prior written approval from [COMPANY] in so far as such changes may affect the quality and/or performance of a Service;

4.6.6    the Client making changes or procuring changes to be made to any part of the Services (including the Equipment and/or Software) by any party other than [COMPANY] or a party authorised by [COMPANY] or without [COMPANY]’s prior written consent;

4.6.7    the failure of any hardware, equipment, software programs, applications/s or any other computer systems (or any component thereof) or services of any third party on whom the Client relies (whether directly or indirectly) to use the Services and/or on which [COMPANY] relies to provide the Services (including the Equipment, Software and/or Third Party Services);

4.6.8    loss or damage caused directly or indirectly by the negligent and/or incorrect use of the Services (including the Equipment) by the Client or its Personnel;

4.6.9    any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities;

4.6.10    diagnosis and/or rectification of problems not associated with the Services;

4.6.11    the suspension of a Service for maintenance, repair and/or improvement; and/or

4.6.12    a failure by the Client to perform its obligations in terms of this Agreement or a breach by the Client of a provision of this Agreement.

5    RISK, OWNERSHIP AND INSURANCE IN RESPECT OF THE EQUIPMENT

5.1    While ownership in and to the Equipment shall remain vested in [COMPANY], the risk in and to the Equipment shall pass to the Client on the date on which the Equipment is delivered to the Client and shall remain with the Client until the Equipment is returned to [COMPANY].

5.2    The Client shall take reasonable care in the use of the Equipment, shall keep the Equipment in good condition, shall only use the Equipment for the purpose for which it was provided to the Client, shall comply with [COMPANY]’s and the Vendor’s specifications, instructions and recommendations for the installation, operation and storage of the Equipment and shall comply with the relevant Vendor’s Terms regarding its use of the Equipment.  The Client shall be liable for any damage to the Equipment from whatever cause arising and shall, on demand, pay [COMPANY] the costs that it or the Vendor incurs in repairing or replacing the Equipment or any part thereof, including call-out fees and the costs of any replacement parts.

5.3    The Client shall at all times keep the Equipment at the Site that it was delivered to and in the Client’s possession and control.  The Client shall not, without [COMPANY]’s prior written consent, move the Equipment or allow the Equipment to be removed from the Site.

5.4    The Client shall keep the Equipment free from any liens, hypothec and attachment.  The Client acknowledges that the Equipment is movable property and shall not accede to any other property, whether movable or immovable.

5.5    The Client shall not alter, modify, adjust or repair the Equipment (or attempt to procure any of the foregoing) without [COMPANY]’s prior written consent.

5.6    The Client should immediately notify [COMPANY] in writing of any defect in or damage to the Equipment and shall cease to use such Equipment until notified otherwise in writing by [COMPANY].

5.7    If any of the Equipment, or any part thereof, is lost, stolen or damaged beyond repair, the Client shall immediately notify [COMPANY] in writing and shall pay [COMPANY], on demand, the market value of the lost, stolen or damaged Equipment and the costs that [COMPANY] incurs in replacing the Equipment which cannot be recovered from the Client by way of the Fees payable by the Client for the Services that relate to such Equipment.

5.8    The Client shall insure the Equipment against all risk, loss and damage at its replacement cost for the duration of the applicable Transaction Document.  The Client shall provide [COMPANY] with proof of such insurance in the form of a certificate of insurance on request by [COMPANY].  If the Client fails to insure, or adequately insure, the Equipment, it will still be liable to [COMPANY] in the event that the Equipment is lost, damaged or destroyed.  Notwithstanding anything contained in this clause 5.8, [COMPANY] shall not be bound by the terms of the Client’s insurance policies and shall be entitled to demand immediate payment from the Client of all amounts due to it.

6    SUPPORT SERVICES

6.1    Support Issue Severity Classifications

The following severity definitions categorise the nature and impact of a Support Issue and the response times that apply thereto:

• Response Time – refers to the time between the Client reporting the Support Issue to the Service Desk and [COMPANY] formally acknowledging same.
• The time periods referred to above are Business Hours.

6.2    Support Issue Logging Process

6.2.1    The Client should report any Support Issues to [COMPANY] by sending an email or telephonically contacting the Service Desk.

6.2.2    When reporting a Support Issue, the Client must indicate the severity of the Support Issue and provide [COMPANY] with all necessary information to assist [COMPANY] and/or the Vendor to identify the root cause of the Support Issue.  The Client acknowledges and accepts that its failure to furnish [COMPANY] with the necessary information will affect the ability of [COMPANY] and/or the Vendor to resolve the Support Issue.

6.2.3    In the course of investigating a Support Issue [COMPANY] and/or the Vendor may require remote or physical access to the Client’s data and environments.  Where this is not attainable, the Client acknowledges that resolution of the Support Issue may be materially affected.

6.2.4    Once [COMPANY] has received more information in respect of the Support Issue, it may change the classification of the Support Issue and will notify the Client accordingly.

6.2.5    Resolution of a Support Issue may include an explanation or clarification of the functional operation of the Equipment or Software to which the Support Issue relates, assistance with the use or operation of the Services or a solution or Workaround in respect of the Support Issue.

6.2.6    As [COMPANY] is dependent on Vendors to resolve Support Issues relating to Equipment, Software and Third Party Services, the Client acknowledges that [COMPANY] cannot undertake to resolve a Support Issue within a particular timeframe and the manner in which the Support Issue is resolved will be determined by the Vendor.

6.2.7    A Support Issue will be regarded as having been closed:

6.2.7.1    when it has been resolved; or

6.2.7.2    if more than 15 (fifteen) Business Days lapses after the date on which [COMPANY] requests further information in respect of the Support Issue from the Client or access to the Client’s systems or Site without [COMPANY] receiving such further information or access.  In such circumstances, the Client can log a new Support Issue with the Service Desk once it is in a position to furnish [COMPANY] with the further information or the access that [COMPANY] or its Vendors require.

6.3    Escalation

6.3.1    [COMPANY] shall update the Client regarding resolution of the Support Issue in accordance with clause 6.1 above.

6.3.2    In the event that [COMPANY] fails to comply with the response times or fails to keep the Client updated in accordance with the provisions of clause 6.1 above, the Client shall be entitled to escalate a Support Issue that is classified as Critical or Major as follows:

6.4    Exclusions

6.4.1    [COMPANY] shall not provide support services in respect of the following:

6.4.1.1    any malfunction of whatsoever nature in the Client’s information technology system, including but not limited to power failure, loss of connectivity, faulty wiring and the like;

6.4.1.2    installation, support, maintenance and configuration of any services, software, hardware, attachments, equipment, peripherals, systems, network devices or any other devices not supplied by [COMPANY] to the Client in terms of this Agreement;

6.4.1.3    attending to faults or errors in the Equipment or Software which are caused by the use thereof outside of the terms and conditions of [COMPANY] and/or the Vendor’s Terms; and/or

6.4.1.4    reporting faulty telecommunication lines, where such lines do not form part of the Services.

6.4.2    Should [COMPANY] determine that the Support Issue falls outside the scope of the Services, the provisions of clause 9 below will apply to such services.

7    RESPONSIBILITIES OF THE CLIENT

In addition to the responsibilities of the Client stipulated elsewhere in this Agreement and/or in a Transaction Document, the Client shall:

7.1    provide such assistance to [COMPANY] as [COMPANY] or a Vendor may reasonably require in connection with the provision of the Services and ensure that its Personnel perform their duties and functions as may reasonably be required by [COMPANY] to enable [COMPANY] or a Vendor to provide the Services;

7.2    ensure that its information technology environment conforms to any requirements stipulated by [COMPANY] to ensure inter-operability with the Services;

7.3    ensure that it is duly licensed to use the Software prior to the commencement of the Services that relate to such Software and that it complies with all of the licensing requirements of the Software for the duration of the relevant Transaction Document;

7.4    comply with, and use the Services in compliance with, the terms and conditions relating to the Services set out in this Agreement and in the Vendor’s Terms;

7.5    purchase the hardware, software, server/s and all communications equipment required to use the Services save for the Equipment and Software that [COMPANY] supplies as part of the Services;

7.6    not modify or alter any aspect of the Services without the prior written consent of [COMPANY];

7.7    not, without giving [COMPANY] prior written notice, allow any person to work on the Client’s software or hardware systems that do not form part of the Services but are related to the Services and, where in [COMPANY]’s reasonable opinion, such software or hardware systems have an influence on its ability to provide any aspect of the Services to the Client, the Client shall ensure that such person complies with [COMPANY]’s conditions regarding its access to the systems;

7.8    provide its own security policies, systems and procedures to ensure the integrity of its computer, accounting and other systems, including the Services, provided that same shall not affect or interfere with the functionality of the Services;

7.9    comply with any recommended security specifications and any other specifications required by [COMPANY] and/or a Vendor from time to time to ensure the ongoing viability, security and integrity of the Services;

7.10    use the Services (including the Equipment and Software) solely for the purpose and in the manner for which they are designed or intended;

7.11    be responsible for the protection of its data, confidential and proprietary information unless expressly indicated otherwise in a Transaction Document;

7.12    ensure that its own equipment is insured and ensure that its data is suitably backed-up;

7.13    timeously provide [COMPANY], a Vendor and/or their Personnel with access to the Sites and its information technology environment for purposes of performing the Services, attending to any Support Issues and monitoring the performance by the Client of its obligations hereunder;

7.14    apply for and obtain any licences, certificates, exemptions or the like which may be required in connection with the use or possession of the Services;

7.15    take all necessary precautions to safeguard the Services from any loss, destruction or damage;

7.16    take reasonable care and exercise reasonable skill in detecting and/or becoming aware of any fault or defect in the Services, as soon as reasonably possible report same to [COMPANY] by way of the Service Desk and provide reasonable assistance to [COMPANY] in tracing, locating and resolving such fault or defect;

7.17    not commit nor attempt to commit any act or omission which directly or indirectly:

7.17.1    may damage in any way [COMPANY]’s technical infrastructure or any part thereof;

7.17.2    may impair or preclude [COMPANY] from being able to provide the Services in a reasonable and business-like manner or perform its obligations under this Agreement;

7.17.3    constitutes an abuse or malicious misuse of the Services (including the Equipment and Software); and

7.18    unless otherwise agreed with [COMPANY], be responsible for all maintenance of the any equipment or software that is not supplied by [COMPANY] but is used in conjunction with the Services.

8    RESPONSIBILITIES OF [COMPANY]

In addition to the responsibilities of [COMPANY] stipulated elsewhere in this Agreement and/or in a Transaction Document, [COMPANY] shall:

8.1    in performing its obligations under the Agreement at all times comply with all applicable laws, regulations and governmental directives;

8.2    have all the necessary licences, certificates, authorisations and consents required to perform the Services in terms of this Agreement;

8.3    use adequate numbers of qualified Personnel with suitable training, experience, qualifications and skill to perform the Services; and

8.4    provide the Services with promptness and diligence and in a workmanlike and timely manner and in accordance with the practices and standards used in well-managed operation performing services similar to the Services.

9    CHANGE PROCEDURE

9.1    During the currency of a Transaction Document, events may occur which cause a Party to request a change to the nature and scope of the Services provided.  Subject to clause 9.5 and clause 10.3 below, no such change shall be implemented unless the Parties comply with the provisions of this clause 9.

9.2    Should a Party wish to propose any change to the nature and scope of the Services provided in terms of a Transaction Document, such Party shall address a written notice (“Scope Change Document”) to the other Party detailing the desired changes.

9.3    Should such Scope Change Document be submitted by:

9.3.1    the Client, then the Client shall describe the change in sufficient detail to enable [COMPANY] to formulate a response.  [COMPANY] shall investigate the feasibility of implementing the proposed changes and the likely impact of any proposed changes on the provision of the affected Services, if implemented, and provide the Client with a proposal, including any amendments to the Fees and any other aspects of the Services, in respect thereof; or

9.3.2    [COMPANY], then [COMPANY] shall detail in the Scope Change Document the proposed changes to the Services, the services required to implement the changes, the Fees applicable to implement the changes and any amendments to the Fees set out in the relevant Transaction Document.

9.4    The Parties will discuss the proposed changes and will either accept or reject same.  If they both accept the proposal, it will be signed off by duly authorised representatives of the Parties and incorporated into a new Transaction Document or the relevant existing Transaction Document.  If the proposal is rejected by either Party, the Services shall continue to be provided by [COMPANY] on the existing terms set out in the applicable Transaction Document.

9.5    Any changes that the Client effects to its business, its infrastructure, its environment or any other aspects that affect the provision of the Services without [COMPANY]’s knowledge or prior written consent will result in [COMPANY] adjusting the Fees for such Services in accordance with the provisions of clause 10.3 below.

10    FEES AND PAYMENT

10.1    The initial Fees payable by the Client to [COMPANY] for the Services are set out in the applicable Transaction Document.

10.2    Working Units

10.2.1    If a Service is charged on a time and materials basis, the time spent carrying out the Service will be measured in working units with 1 working unit being equal to 1 hour, or part thereof, spent carrying out the Service.  However the number of hours purchased for that Service will be allocated to a working unit in accordance with the following, based on when the Service was carried out:

For example, during Business Hours, 3 working units = 3 hours x 1 = 3 hours purchased, whereas on Sundays and on Public Holidays, 3 working units = 3 hours x 2.5 = 7.5 hours purchased.

10.2.2    In the event that the Basic Conditions of Employment Act No. 75 of 1997 is amended so that the amount payable to employees for work after Business Hours, on Public Holidays and on Sundays is increased, the number of hours purchased that will be allocated to a working unit will be increased on a pro rata basis.  For example, if payment for work on Sundays is increased from two times an employee’s wage for each hour worked to three times an employee’s wage for each hour worked (which is an increase of 150%), the number of hours purchased that will be allocated to a working unit for a Sunday will be increased to 3.75 hours (2.5 hours x 150%).

10.2.3    Any hours purchased for a month that are not used in that month are not transferrable to the next month.  Hours purchased in respect of specific Equipment, Software or Third Party Services cannot be allocated to other Equipment, Software or Third Party Services.  If the number of hours spent carrying out a Service in a month exceeds the number of hours that the Client purchased for that month, the additional hours will be charged for according to the above table at the rate set out in the applicable Transaction Document.  The hours purchased will not be allocated to travel time, travel costs and accommodation, which will be charged to the Client at [COMPANY]’s prevailing rates.

10.3    Should the costs to [COMPANY] in providing the Services increase, including as a result of changes in foreign exchange rates, an increase in the fees charged by the Vendors, changes in the Services being rendered (including a change to the Client’s hardware, operating system, environment or infrastructure or the Software) or in maintaining the quality of the Service, [COMPANY] may increase the Fees.  With the exception of changes in the Fees resulting from changes to foreign exchange rates, which changes shall be effective immediately, [COMPANY] will give the Client at least 30 (thirty) days’ written notice of a Fee change before the Fee change takes effect.

10.4    In addition to clause 10.3 above, with respect to changes in Fees resulting from inflation, [COMPANY] reserves the right to apply an annual Fee escalation (with effect from each anniversary of the Effective Date of this Agreement or with effect from a different date stipulated in a Transaction Document). [COMPANY] reserves the right to apply a [CONTRACT_ESCALATION] annual price escalation, and to vary the escalation from time to time in accordance with external factors, such as inflation. Any possible variation would not be applied without prior written consultation with the Client.

10.5    The Fees exclude:

10.5.1    VAT, any other taxes, rates and/or levies due as a result of a requirement by any governmental organisation, all of which shall be paid by the Client in addition to the Fees at the then prevailing rate;

10.5.2    subsistence, accommodation and travel expenses of [COMPANY]’s Personnel incurred in providing the Services to the Client, which shall be payable by the Client within 30 (thirty) days of presentation of [COMPANY]’s invoice detailing such expenses.

10.6    The Client is not permitted, for any cause whatsoever, to withhold, delay, deduct from or defer any amount due by the Client to [COMPANY].  All payments shall be free of demand, exchange and set-off of whatever nature.

10.7    All Fees and any other amounts under this Agreement shall be paid by the Client to [COMPANY] by means of electronic funds transfer directly into [COMPANY]’s below bank account:

[COMPANY_BANK]

10.8    In the event that the Client fails to timeously effect payment of any amounts on their due dates, [COMPANY] will be entitled, but not obliged, in addition to any other rights or remedies available to it in terms of this Agreement or in law, to:

10.8.1    after giving the Client written notice, suspend the provision of all or any of the Services or such portion thereof as [COMPANY] in its sole discretion chooses until the Client has effected payment of the outstanding amounts in full to [COMPANY].  The Client acknowledges that it will not have any claims of whatever nature against [COMPANY] in respect of the suspension of the Services in accordance with this clause 10.8.1; and/or

10.8.2    charge interest on the outstanding amount at the rate of up to 2% (two percent) per month, compounded monthly, from the due date of payment until the actual date of payment (both days inclusive) and the Client undertakes to pay such interest on demand.

10.9    The Client carries any risk associated with or arising from the method or manner that the Client elects to effect payment to [COMPANY].  The Client will only be regarded as having effected payment to [COMPANY] when its payment has been received into [COMPANY]’s bank account.

10.10    [COMPANY] may appropriate any payments made by the Client to any indebtedness of the Client in terms of this Agreement.

11    NON-SOLICITATION

11.1    Each Party (“Restrained Party”) acknowledges that the other Party (“Employer Party”) has invested substantial time and expense in recruiting, hiring, training and retaining its employees.

11.2    The Restrained Party therefore undertakes not, without the express prior written consent of the Employer Party, either during this Agreement or for a period of 12 (twelve) months after the termination of this Agreement, for whatever reason, whether directly or indirectly and whether for its own benefit or that of another person, to solicit, induce, persuade, encourage or procure (or endeavour to do any of the foregoing) any person who at any time during this Agreement was an employee of the Employer Party and was involved in the execution of this Agreement to take up employment with or to consult to or to render the same or similar services as those that the person rendered to the Employer Party to the Restrained Party or any other person (“New Employer”).

11.3    If the Restrained Party breaches the provisions of this clause 11, without prejudice to the Employer Party’s rights and remedies in terms of this Agreement or in law, the Employer Party may charge the Restrained Party, even where another person has benefited from the services of such employee, and the Restrained Party hereby agrees to pay the Employer Party on demand, a recruitment fee of 20% (twenty percent) of the monthly remuneration that is payable to the employee by the New Employer multiplied by 12 (twelve).

12    INTELLECTUAL PROPERTY

12.1    The Client acknowledges and accepts that any and all Intellectual Property in and to:

12.1.1    the Services, Equipment, Software and Third Party Services is and shall remain the property of [COMPANY] or the Vendor;

12.1.2    the [COMPANY] Technology is and shall remain the property of [COMPANY];

12.1.3    the product or deliverables of any of the Services shall, unless expressly provided to the contrary in any Transaction Document, vest in [COMPANY].

12.2    The Client may only use the [COMPANY] Technology and any product or deliverable of any Services during the currency of this Agreement or the relevant Transaction Document and only in relation to the Services that the [COMPANY] Technology, the product or deliverable relate to.  Unless expressly stated otherwise, on termination of the relevant Transaction Document or this Agreement, for whatever reason, the Client shall immediately discontinue such use and return the [COMPANY] Technology, the product and/or deliverable to [COMPANY].

12.3    The Client shall not for the duration of this Agreement, or at any time after the termination of this Agreement, for whatever reason, acquire or be entitled to claim any right or interest in the Intellectual Property referred to in clause 12.1 above or in any way question or dispute the ownership thereof.  The Client shall take all commercially reasonable measures to ensure that its Personnel and any other persons are fully aware of the Intellectual Property of the persons referred to in clause 12.1 above and do not infringe or misappropriate such Intellectual Property.

12.4    [COMPANY] hereby indemnifies and holds the Client harmless against any claim by a third party alleging that the Client is infringing the Intellectual Property of such third party that subsisted at the commencement of this Agreement as a direct result of the [COMPANY] Technology that is provided to the Client as part of the Services (“Claim”) and hereby undertakes to defend, at [COMPANY]’s own cost and expense, the Claim, all subject to the Client complying with its obligations in terms of clause 12.5 below.

12.5    [COMPANY] shall pay any costs and damages awarded or agreed to in settlement of the Claim, provided that the Client furnishes [COMPANY] with prompt written notice of the Claim and provides [COMPANY] with all reasonable assistance, the Client grants [COMPANY] sole authority to defend or settle the Claim and the Client does not prejudice the defence or settlement of the Claim in any way.

12.6    Any infringement claims relating to the Equipment, the Software or Third Party Services must be referred to the relevant Vendor and will be subject to the Vendor’s Terms.

13    CONFIDENTIAL INFORMATION

13.1    The Receiving Party undertakes and agrees that in order to protect the proprietary interests of the Disclosing Party in and to its Confidential Information:

13.1.1    the Receiving Party will not at any time, whether during the currency of this Agreement or at any time thereafter, whether directly or indirectly and whether for its own benefit or that of another person, either use, employ or exploit in any manner whatsoever any Confidential Information of the Disclosing Party or publish, divulge or disclose any Confidential Information of the Disclosing Party to any other person other than as expressly permitted by this Agreement;

13.1.2    the Receiving Party will restrict dissemination of the Disclosing Party’s Confidential Information to only those of its Personnel who are actively involved in the execution of this Agreement and then only on a “need to know” basis and only after its Personnel have undertaken in writing to comply with the provisions of this clause 13 or with confidentiality provisions which are no less onerous than the provisions of this clause 13.  The Receiving Party’s Personnel shall be deemed to be acting, in the event of a breach, as the Receiving Party’s duly authorised agents and the Receiving Party shall be liable to the Disclosing Party in respect of their breach of any provisions of this clause 13;

13.1.3    the Receiving Party shall initiate, maintain and monitor internal security procedures to safeguard the Disclosing Party’s Confidential Information and prevent unauthorised access to, use of or disclosure of such Confidential Information.

13.2    The foregoing obligations will not apply to any information which:

13.2.1    is lawfully in the public domain at the time of disclosure to the Receiving Party;

13.2.2    subsequently and lawfully becomes part of the public domain by publication or otherwise;

13.2.3    subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party;

13.2.4    is already in the possession of the Receiving Party and is not subject to a confidentiality obligation to the Disclosing Party;

13.2.5    is independently developed by the Receiving Party without breaching its confidentiality obligations hereunder; or

13.2.6    is disclosed pursuant to a requirement or request by operation of law, regulation or court order.

13.3    Upon termination, for whatever reason, of this Agreement, the Receiving Party shall deliver up to the Disclosing Party or, at the Disclosing Party’s option, destroy all originals and copies of the Disclosing Party’s Confidential Information in the possession or control of the Receiving Party and its Personnel.

13.4    The Receiving Party agrees that monetary damages will not be a sufficient remedy for breach of the undertakings given in this clause 13 and accordingly, without prejudice to any other rights or remedies available to the Disclosing Party, agrees that the Disclosing Party shall be entitled to relief by way of interdict, specific performance or otherwise.

13.5    This clause is severable from the remainder of this Agreement and shall remain valid and binding upon the Parties for a period of 5 (five) years after the date of termination, for whatever reason, of this Agreement.

14    PROTECTION OF PERSONAL INFORMATION

14.1    The Client hereby consents to [COMPANY] Processing the Personal Information of the Client, which for purposes of this clause will include Personal Information pertaining to its Personnel, customers, suppliers or any other persons (“Data Subjects”), as required for the implementation and enforcement of this Agreement, the performance of the Services, any other purpose directly related to the execution of this Agreement, the operation of [COMPANY]’s business and for any other purpose that the Client expressly consents to.

14.2    The Client’s Personal Information will constitute its Confidential Information and will be subject to the provisions of clause 13 above.

14.3    [COMPANY]’s Processing of the Client’s Personal Information shall be in strict compliance with all applicable laws and [COMPANY]’s privacy policies.

14.4    [COMPANY] shall use reasonably commercial efforts to ensure that all its systems and operations which it uses to provide the Services, including all systems on which the Personal Information is Processed, will at all times be of a minimum standard required by law.

14.5    [COMPANY] shall as soon as reasonably possible inform the Client in the event that any of its Personal Information that is Processed by [COMPANY] is unlawfully accessed or Processed and will use reasonably commercial efforts to rectify the situation.

14.6    The Client hereby consents to the Processing of its Personal Information by the Vendors and [COMPANY]’s service providers for the purposes set out in, and subject to the provisions of, this clause 14.

14.7    The Client hereby warrants that it has procured all necessary consents from the Data Subjects to [COMPANY] Processing their Personal Information for the purposes set out in this clause 14.  The Client shall immediately inform [COMPANY] if any of the Data Subjects withdraws such consent.

14.8    The Client acknowledges that the Processing of Personal Information may involve a transfer of such information outside of South Africa and hereby consents thereto and warrants that Data Subjects have consented thereto.

15    FORCE MAJEURE

15.1    A Party (“Invoking Party”) shall not be liable for any failure to fulfil its obligations under this Agreement or a Transaction Document (save for an obligation to pay an amount due) if and to the extent that 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 (“Force Majeure Event”) provided that such circumstances are not attributable to the wilful act, neglect, default or other failure to take reasonable precautions by the Invoking Party.

15.2    The Invoking Party shall promptly notify the other Party in writing of the Force Majeure Event and such notice shall include an estimate of the approximate period for which the Invoking Party will not be able to fulfil its obligations.  In the event that the Invoking Party partially or completely ceases to be prevented from fulfilling its obligations by the Force Majeure Event, the Invoking Party shall immediately give written notice to the other Party of such cessation and the Invoking Party shall, as soon as possible, fulfil its obligations which were suspended, provided that in the event, and to the extent, that fulfilment is no longer possible or the other Party has given written notice that it no longer requires such fulfilment, the Invoking Party shall not be obliged to fulfil its suspended obligations and the other Party shall not be obliged to fulfil its corresponding obligations.

15.3    In the event that the Invoking Party is unable to perform any of its obligations in terms of this Agreement or a Transaction Document for a period of more than 30 (thirty) consecutive days as a result of a Force Majeure Event, then the other Party will be entitled to cancel the relevant Transaction Document by giving written notice to that effect to the Invoking Party.

15.4    Neither Party shall have a claim against the other as a result of the suspension of a Party’s obligations, or the non-performance of a Party’s obligations or the termination of a Transaction Document as contemplated by, or in terms of, this clause 15.

16    WARRANTIES, LIABILITY AND INDEMNITIES

16.1    Under no circumstances shall [COMPANY] be liable for any damages, loss or injury to property or persons of whatsoever nature and howsoever arising, resulting from or as a consequence of the Client’s possession, use or operation of or access to the Services (including the Equipment and Software), any interruption to the Services, the fact that the Services are not functioning properly or at all, the results obtained from the Services, any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities or for any other cause related to the Services, provided only that such damages, loss or injury do not result directly from the gross negligence of [COMPANY].

16.2    To the extent that the Services include the supply of Equipment, Software or Third Party Services, [COMPANY] will provide the Client with the warranties and guarantees that it receives from the Vendor and its liability in respect of the Equipment, Software or Third Party Services shall be limited to such warranties or guarantees.

16.3    Except for the express undertakings contained in this Agreement or in a Transaction Document, [COMPANY] gives no other undertakings, warranties or representations and any further undertakings, warranties or representations, whether express or implied, arising by statute, common law or other law or from a course of dealing or usage or trade or otherwise (including any warranties or merchantability or fitness for a particular purpose), with regard to the Services (including the Equipment, Software and Third Party Services) and the Client’s use thereof are excluded to the maximum extent permitted by law.

16.4    To the maximum extent permitted by law:

16.4.1    notwithstanding any provision to the contrary contained in this Agreement and notwithstanding the form, whether contract, delict or otherwise, in which any legal action may be brought, [COMPANY]’s maximum liability to compensate the Client for direct loss and/or damages for any breach, act or omission of [COMPANY] arising out of this Agreement shall not exceed the Fees paid by the Client to [COMPANY] in respect of the Service giving rise to such claim during the immediately preceding 3 (three) months of the date on which such claim arose; and

16.4.2    under no circumstances shall [COMPANY] be liable to the Client or any other person, whether based on contract, delict, statute, the breach of any warranty, other legal or equitable grounds or otherwise, in respect of indirect, special, incidental, exemplary or consequential damages or loss, loss of profits, loss of business opportunity, loss of data/information or loss of contracts or other like commercial or economic loss related in any way to the Services or the Client’s use thereof or in connection with or arising out of this Agreement or a Transaction Document.

16.5    The Client hereby indemnifies [COMPANY] and holds [COMPANY] harmless from and against all claims, liabilities, proceedings, costs, damages, losses and expenses (including legal costs on the scale as between attorney and own client) that may be brought against [COMPANY] or which [COMPANY] incurs or sustains, caused by or in any way connected with a failure by the Client to obtain and maintain the requisite licences in respect of any Software, the Client’s or its Personnel’s breach of or non-compliance with the Vendor’s Terms or any provision of this Agreement, any act or omission by the Client or its Personnel that hinders performance of the Services or any task related to the Services, the Client’s or its Personnel’s access to or use of the Services or any information obtained therefrom, any act or omission of a Vendor, termination of a Transaction Document before commencement of the Service due to technical unfeasibility, the Client’s or its Personnel’s infringement of any right in Intellectual Property including those set out in clause 12 above and/or any other cause for which the liability of [COMPANY] is excluded in terms of this Agreement.

17    BREACH AND TERMINATION

17.1    Should a Party (“Defaulting Party”):

17.1.1    fail to pay any amount validly due under this Agreement; and/or

17.1.2    breach any provision of this Agreement and fail to remedy such a breach within 14 (fourteen) days of receiving written notice from the other Party (“Aggrieved Party”) requiring it to do so,

the Aggrieved Party shall be entitled, without prejudice to its other rights or remedies under this Agreement or in law, at its option, claim specific performance of the Defaulting Party’s obligations, terminate the Transaction Document to which the breach relates or terminate this Agreement on written notice to the Defaulting Party, in either case without prejudice to the Aggrieved Party’s rights to claim damages.

17.2    If the Defaulting Party becomes insolvent, does not pay its debts as such debts generally become due, is sequestrated or placed into liquidation (whether provisionally or finally and whether voluntarily or compulsorily), is placed under business rescue, enters into a compromise, scheme of arrangement or composition with any or all of its creditors or has any attachment levied in respect of its property or assets or the Equipment, the Aggrieved Party, without prejudice to its other rights or remedies available under this Agreement or in law, will be entitled, at its option, to terminate this Agreement on written notice to the Defaulting Party.

17.3    In the event that any third party agreement (between [COMPANY] or the Client and a Vendor) for the provision of any of the Services or which are necessary for the provision of the Services, terminates for whatever reason, or if any other grounds arise making it objectively impossible to provide the Services, the Transaction Document in relation to the provision of such Services shall terminate with immediate effect on written notice by [COMPANY] to the Client.

17.4    The Party that successfully enforces its rights or the other Party’s obligations under this Agreement shall be entitled to recover all of its legal costs on the attorney and client scale, including counsel’s fees on brief, from the other Party.

18    EFFECT OF TERMINATION

18.1    A Transaction Document can survive and/or be terminated on its own.  [COMPANY] however reserves the right to terminate this Agreement and all or some of the Transaction Documents on receiving notice of termination of one of the Transaction Documents from the Client or on the termination of one or more Transaction Documents, based on the continued commercial viability of the engagement with the Client and on such considerations as “economies of scale”.

18.2    On termination of any Transaction Document for any reason the Client shall immediately:

18.2.1    pay [COMPANY] all amounts due and payable to [COMPANY] for Services rendered prior to termination;

18.2.2    at the Client’s expense and risk return the Equipment that forms the subject matter of such Transaction Document to [COMPANY]; and

18.2.3    cease using the Software that forms the subject matter of such Transaction Document, remove all copies of the Software from its systems and destroy all copies of the Software in its possession or control.

18.3    In addition to the amounts referred to in clause 18.2.1 above, on termination of any Transaction Document prior to the expiry of the Initial Period or current Renewal Period thereof for any reason, the Client shall immediately pay [COMPANY]:

18.3.1    all amounts that would have been payable by the Client to [COMPANY] under the Transaction Document from the date of termination until the expiry of the Initial Term or current Renewal Term, as is applicable; and

18.3.2    the costs that [COMPANY] incurs as a consequence of the early termination of the Transaction Document, including any amounts that [COMPANY] may be obliged to pay to the Vendors.

18.4    On termination, for any reason, of this Agreement:

18.4.1    the provision of all Services shall forthwith cease; and

18.4.2    each Party will deliver to the other Party, or at the other Party’s option, destroy and procure the delivery of or destruction by its Personnel, of all originals and copies of Confidential Information and proprietary materials in its or their possession or under its or their control.

19    DISPUTE RESOLUTION

19.1    Should any dispute arise between the Parties in connection with (i) the formation or existence, implementation, interpretation or application of the provisions, (ii) the Parties’ respective rights and/or obligations in terms of or arising out of, (iii) the breach or termination, the validity, enforceability, rectification, termination or cancellation, whether in whole or in part, of this Agreement or any documents furnished by the Parties pursuant to the provisions of this Agreement, or which relate in any way to any matter affecting the interests of the Parties in terms of this Agreement, the representatives of each Party appointed to manage their relationship with respect to this Agreement shall attempt in good faith to resolve the dispute within 7 (seven) Business Days of the dispute being referred to them by either Party.  If the representatives are unable to resolve the dispute as aforesaid, either Party may refer the dispute to the chief executive officers of the Parties who will negotiate in good faith in an effort to settle such dispute within 7 (seven) Business Days after the dispute is referred to them.

19.2    Should the dispute remain unresolved after being referred to the chief executive officers of the Parties in terms of clause 19.1 above, the dispute will be submitted to arbitration in terms of the provisions of clause 20 below.

20    ARBITRATION

20.1    Should any dispute between the Parties not be resolved in terms of the provisions of clause 19 above, either Party may refer the dispute to AFSA for arbitration in accordance with the Rules of AFSA.

20.2    The arbitrator will be appointed by the Parties or, failing agreement within 7 (seven) days of the dispute having been referred to AFSA, by the Registrar of AFSA.

20.3    The arbitration shall be held at Sandton, South Africa.

20.4    The arbitrator shall, without limitation, be entitled to:

20.4.1    investigate or cause to be investigated any matter, fact or thing which he considers necessary or desirable in connection with any matter referred to him for decision; and

20.4.2    make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he in his discretion may deem fit and appropriate.

20.5    The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within 30 (thirty) days after it has been so demanded.

20.6    The decision of the arbitrator, save in the event of a manifest error, shall be final and binding on the Parties and may be made an order of Court at the instance of any of the Parties.

20.7    The arbitration shall be held in camera and the Parties shall agree to keep the arbitration confidential and not to disclose it to anyone except for the purpose of an order to be made in terms of clause 20.6 above. 

20.8    Notwithstanding the foregoing, this clause 20 and clause 19 above shall not preclude a Party from access to a court of competent jurisdiction for an interdict or any interim or final relief on an urgent basis.

20.9    This clause is severable from the rest of this Agreement and shall therefore remain in effect despite the termination or invalidity for any reason of this Agreement.

21    NOTICES AND DOMICILIUM

21.1    The Parties select as their respective domicilia citandi et executandi for the purposes of giving or sending any notice or communication provided for or required in terms of this Agreement, the physical addresses, postal addresses and email addresses set out on the first page of this Agreement or in a Transaction Document.  The Parties choose such physical addresses for the service of any legal process.

21.2    A Party may at any time change its chosen addresses by notice in writing to the other Party provided that the new physical address is an address in South Africa at which legal process can be served.

21.3    Any notice or communication shall be deemed to have been given, unless otherwise proven:

21.3.1    if delivered by hand to a responsible person during Business Hours, on the date of delivery;

21.3.2    if sent by prepaid registered post to an address at which post is received, 10 (ten) days after posting; and/or

21.3.3    if sent by e-mail, the first Business Day after the successful transmission of the email.

21.4    Nothing contained in this clause shall operate so as to invalidate the giving or receipt of any written notice or communication which is actually received by a Party other than by a method or at an address referred to in this clause.

22    RELATIONSHIP OF THE PARTIES

22.1    Nothing in this Agreement shall be construed as creating a partnership, joint venture or employment relationship between the Parties and neither Party shall have any authority to incur any liability on behalf of the other.

22.2    The Parties shall at all times owe each other a duty of good faith and shall, in the exercise of their rights and performance of their obligations under this Agreement, act according to such standard.

23    CESSION AND ASSIGNMENT

The Client shall not cede or assign any of its rights or obligations under this Agreement to a third party without the prior written consent of [COMPANY].

24    GENERAL

24.1    Regardless of where this Agreement may be signed or performed by either Party, this Agreement shall be deemed to be made under the laws of South Africa and the construction, validity, interpretation and performance of this Agreement as well as any dispute related to or arising from this Agreement shall be governed in all respects by the laws of South Africa.  The Parties hereby submit themselves to the exclusive jurisdiction of the courts of South Africa.

24.2    This Agreement constitutes the whole of the agreement between the Parties relating to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded or otherwise contained in this Agreement.

24.3    No amendment, alteration, addition, variation or consensual cancellation of this Agreement shall be of any force or effect unless reduced to writing and signed by the Parties.

24.4    No waiver or discharge of any terms or conditions of this Agreement shall be valid unless effected in writing and signed by the Party against which such waiver or discharge is sought to be enforced, and any such waiver or discharge will be effective only in the specific instance and for the purpose given.  No Party shall be regarded as having waived, or be precluded in any way from exercising, any right under or arising from this Agreement by reason of such Party having at any time granted any extension of time for, or having shown any indulgence to the other Party with reference to, any performance hereunder, or having failed to enforce, or delayed in the enforcement of, any right of action against the other Party.

24.5    Each provision in this Agreement is severable from all others.  Should any provision be found to be invalid, unlawful or unenforceable for any reason, such provision shall be severable from the remaining provisions, which provision shall continue to be valid and enforceable.

24.6    The Parties shall each pay their own costs of negotiating, drafting, preparing and implementing this Agreement.