Terms & Conditions

1           structure and applicability

 

IMPORTANT INFORMATION REQUIRED.  PLEASE READ CAREFULLY, TICK BELOW AND COMPLETE THE APPROPRIATE PART OF THIS AGREEMENT.

1.1    Are you a juristic person (i.e. a company, cc, trust etc)?                                                                                

YES                                                   NO

          

1.2       If you answered “YES” to question 1, was your annual turnover or asset value R2 million or higher in the last financial year?                                            

YES                                                   NO        

 

1.3      If you answered “YES” to both 1 and 2 above – please read and sign Parts A and B of this Agreement.

 

If you answered “NO” to 1 or 2 above – please read and sign Parts A and C of this Agreement.  The Customer by his signature hereto confirms that he has read and understood the meaning or effect of this Agreement and agrees to be bound by them. Where the Customer is requested to initial next to a clause he must ensure that he understands the meaning or effect of the relevant clause.  If the Customer does not understand the meaning or effect of any of the clauses contained herein, the Customer must request that it be explained to him before signing this Agreement.

 

PART “A”

IMPORTANT:     WHERE THE CUSTOMER IS AN ENTITY OTHER THAN A NATURAL PERSON, THIS AGREEMENT CONTAINS A CLAUSE WHICH REQUIRES THE PERSON SIGNING THIS AGREEMENT ON BEHALF OF THE CUSTOMER TO BIND HIMSELF AS A SURETY AND CO-PRINCIPAL DEBTOR IN SOLIDUM WITH THE CUSTOMER IN FAVOUR OF THE SUPPLIER.

2           DEFINITIONS AND INTERPRETATION

2.1           In this Agreement, unless inconsistent with, or otherwise indicated by the context, the following terms shall have the meanings assigned to them hereunder namely:-

2.1.1        “this Agreement” means the composite agreement comprising the Proposal, the remaining provisions of these Terms and Conditions and the SLD (if applicable) together with all addenda or annexures  thereto;

2.1.2        “Charges” means the Set-up charges, Monthly Services Charges, Usage Charges and any other charges pertaining to the provision of the Services by the Supplier to the Customer;

2.1.3        “Confidential Information” means information of a confidential nature including the contents of the Proposal, details of the Services, price information of the Services, the terms of this Agreement; information or material proprietary to, or deemed to be proprietary to a party; information designated as confidential by a party; information acquired by the other party solely by virtue of the provision of the Services; trade secrets of a party; all software, information systems, data and associated material and documentation; business plans, methodologies and all information concerning either party’s past, present or future development, their business activities, products, services, customers, clients and technology; and any dispute between the parties resulting from this Agreement;

2.1.4        “CPA” means the Consumer Protection Act, No. 68 of 2008 and any regulations promulgated pursuant thereto from time to time;

2.1.5         “Customer“ means any person who has entered into an agreement with the Supplier for the provision of services or who has applied to the Supplier for the provision of services;

2.1.6        “Effective Date” the date on which this Agreement is signed by the last signing party hereto;

2.1.7        “Fully Commissioned ” means the date on which the Initial Development is fully operational (if applicable);

2.1.8        “these Terms and Conditions” means the provisions of this document excluding all Proposals and SLD’s;

2.1.9        “Initial Development” means the first services that are provided by the Supplier to the Customer in terms of the Proposal signed by the Customer;

2.1.10    “Set-up Charges” the once off fee levied by the Supplier in consideration for the Initial Development;

2.1.11     “Managed Services” means the on-going management and provision of services by the Supplier in return for a monthly payment by the Customer;

2.1.12     “Monthly Service Charge” means the monthly fees levied by the Supplier in consideration for the Customer’s access to and use of the Network Services, the Managed Services or other Services provided by the Supplier;

2.1.13    “Network Provider” means any authorised supplier of telecommunications facilities;

2.1.14    “Network Services” means any services provided by any of the networks including but not limited all operators that provide network access or  network services (including value added services) made accessible to the Customer by the Supplier in terms of this Agreement;

2.1.15     “Proposal” means the proposal document submitted by the Supplier to the Customer and signed by the Customer in respect of the provision of the Services and which incorporates the provisions of these Terms and Conditions and the SLD (if applicable);

2.1.16    “Services” means the Initial Development, the Managed Services or other services provided by the Supplier to the Customer as set out in the Proposal and the SLD (if applicable);

2.1.17    “SLD” means the service level description agreement submitted by the Supplier to the Customer and signed by the Customer which sets out the service levels required of the Supplier with regards to the provision of the Services and which incorporates the provisions of these Terms and Conditions and the Proposal;

2.1.18    “Service Provider” means any Electronic Communications Networks Licensee or Electronics Communications Licensee licensed under the Electronic Communications Act, No. 36 of 2005, or any Service Provider of an Electronic Communications Networks Licensee or Electronics Communications Licensee;

2.1.19    “Supplier” means Ctrlroom Proprietary Limited, Registration Number 2006/004276/07 and/or Blake & Associates, Registration Number 1998/018490/07;

2.1.20    “Supplier’s Property” means any property of the Supplier (including but not limited to images, logos, style, sheets etc.) utilised by the Customer or its employees for the execution of this Agreement;

2.1.21    “Usage Charges” means the charges levied by the Supplier to the Customer for recorded usage of the Network Services.

2.2           The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.

2.3           Unless a contrary intention clearly appears words importing any one gender include the other two genders and the singular include the plural and vice versa.

2.4           If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement.

2.5           When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.  Any reference to months or years shall be a reference to named calendar months or years as the case may be.

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

2.7           Expressions defined in this Agreement shall bear the same meanings in the addenda or annexures hereto, the Proposal and the SLD (if applicable) where the addenda or annexures, the Proposal or the SLD (if applicable) do not contain their own definitions.

2.8           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 so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

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

2.10      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.

2.11      The words “include”, “including” and “in particular” followed by a specific example/s 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/s.

2.12      The words “other” or “otherwise” shall not be construed as eiusdem generis with any preceding words where a wider construction is possible.

2.13      In the event of a conflict between the terms of the Proposal, the SLD and these Terms and Conditions, the provisions of these Terms and Conditions shall prevail.

 

3           APPOINTMENT AND AUTHORITY

3.1           The Customer appoints the Supplier, which appointment the Supplier accepts, to supply the Services to the Customer with effect from the Effective Date, in accordance with the provisions of this Agreement.

3.2           The Supplier will be an independent supplier of the Services and nothing contained in this Agreement shall be interpreted or construed as creating or establishing a relationship of representation, employment, agency, partnership or joint ventureship and neither party shall incur any liability whatsoever for or on behalf of the other party.

3.3           Notwithstanding, the provisions of clause 3.2, the Customer hereby authorises the Supplier to:-

3.3.1        communicate with other Service Providers to enable the Supplier to obtain all information which may be necessary in order for the Supplier to render the Services.  Should the Supplier so require, the Customer shall sign a separate letter authorising the Supplier to approach the Service Providers to request such information as aforesaid which can be furnished as proof that the Supplier has been mandated by the Customer to approach the Service Providers for the purposes set out in this clause 3.3; and/or

3.3.2        in its sole and absolute discretion to enter into agreements and arrangements with third parties as may be necessary for the Supplier to render the Services without prior consultation with or approval of the Customer.

 

4           SERVICES: DELIVERY

4.1

The Supplier shall deliver the Services to the Customer at the address nominated by the Customer on the Proposal. The Customer acknowledges that the dates and times for delivery of the Services stipulated in the Proposal is an estimate only and the Supplier shall not be bound by those dates and times.  The Supplier shall use its reasonable endeavours to meet the estimated dates and times for delivery of the Services. The Supplier shall not be liable in any manner whatsoever to the Customer for any loss arising from any failure or delay in delivery, performance or providing the Services.

4.2           The Customer warrants and undertakes that as at the Effective Date, and for the duration of this Agreement it will ensure that :

4.2.1

the communication services and facilities, including without limitation, telephone facilities and lines, valid third party software, operating system and server licenses are in place ; and

4.2.2        all necessary approvals and authorities imposed by any competent authority and required for the purpose of the supply of the Services will be obtained.  The Customer hereby indemnifies the Supplier for any losses, expenses, damages, harm or amount for which the Supplier may become liable and/or any claims made by any third party arising by reason of such approval and authorities not having been obtained.

 

5           CHARGES AND PAYMENT

 

5.1

Unless otherwise agreed to by the  Supplier in writing and notwithstanding anything to the contrary contained in this Agreement, in consideration of the provision of the Services, the Customer shall effect payment to the Supplier at the Supplier’s premises or at the Supplier’s banker’s premises, in full and without deduction or set off:

5.1.1        for the supply of the Initial Development once it is Fully Commissioned and any other services on or before the last day of the month following the date of invoice presented to the Customer;

5.1.2        for the supply of the Managed Services,  the Monthly Service Charge and/or all other relevant periodic Charges (including Usuage Charges) as at the intervals as specified in the Proposal and/or SLD on or before the last day of the month following the date of invoice presented to the Customer.

5.2           It is expressly recorded and agreed that the Supplier shall be entitled, on 30 (thirty) days’ written notice to the Customer, to increase the Charges payable by the Customer in circumstances of either such increases being specifically provided for in the Proposal or the direct costs to the Supplier in providing the Services being increased.  In such event the increases to the Charges shall be commensurate with the increased costs of providing the Services. Save as  aforesaid, the Charges as specified in the Proposal and/or SLD shall remain fixed for each contract period, whereafter they will escalate annually by an amount equivalent to the percentage stated in the Proposal and/or SLD or if no such amount is stated, then an amount equivalent to the annual inflation rate for the year prior to the anniversary of the Effective Date,  which shall be calculated based on the consumer price index in the manner generally accepted by Statistics South Africa or its successor it title.

5.3           Unless the Customer notifies the Supplier in writing within 15 (fifteen) days of receipt of an invoice to the contrary, the contents of such invoice shall be deemed to be correct.  Should a dispute arise relating to the Charges payable in terms of this Agreement, such dispute shall be referred to the most senior directors of both  the Customer and  the Supplier for resolution within 7 (seven) business days.  In the event that such dispute shall not be capable of being resolved in accordance with the provisions of this clause 5.3, such dispute shall be resolved by an independent auditor appointed by the parties who shall act as expert and not arbitrator, and the determination made by such independent auditor shall be final and binding on the parties, and all or any amounts due in terms thereof shall be immediately payable by the Customer to the Supplier.

5.4           Unless otherwise stipulated, all amounts payable by the Customer to the Supplier in terms of this Agreement are exclusive of VAT and any other statutory levies, taxes and imposts as may be levied thereon from time to time.  The Customer shall accordingly be liable for VAT and all rates, taxes, government or statutory levies as may be imposed in respect of the Services from time to time.

5.5           Should payment of any one invoice not be received by the Supplier within the periods stipulated in clause 5.1, then all amounts due to the Supplier in terms that one invoice and any other amounts due to the Supplier by the Customer, shall become  immediately due and payable and Customer shall then be deemed to be in mora. Interest shall accrue thereupon at the rate prescribed in the Prescribed Rate of Interest Act, No. 55 of 1975 in respect of any amounts not paid on the due date.

5.6           Notwithstanding the aforegoing provisions, the Supplier may at any time on reasonable written notice to the Customer vary its invoicing and payment procedures and requirements.

5.7           In the event of a payment default by the Customer, a certificate by a director of the Supplier as to the amount owing by the Customer to the Supplier at any time shall be sufficient proof thereof for provisional sentence or summary judgment.

 

6           SUSPENSION

 

6.1           The Supplier may upon 5 (five) days written notice to the Customer and in any manner whatsoever, suspend the Customer’s use of the Services in the event that –

6.1.1        any modification, maintenance or remedial work is required to be undertaken pertaining in any manner whatsoever to the Services; and/or

6.1.2        the Customer fails to perform any of its obligations or breaches any term/s of this Agreement.

6.2           The Supplier may require the Customer to effect payment of any applicable reconnection Charges pursuant to the restoration of the Services suspended in the circumstances contemplated in clauses 6.1.1 or 6.1.2.

6.3           The Customer remains liable for the applicable Charges payable by it in terms of this Agreement during any period of suspension in the circumstances contemplated in clauses 6.1.1 or 6.1.2.

 

 

7           SURETY

 

In the event that the Customer is an entity other than a natural person, the person signing this Agreement on behalf of the Customer hereby binds himself jointly and severally as surety for and co-principal debtor in solidum with the Customer for the due and punctual performance by the Customer of its obligations in terms of the Agreement.  The signatory hereby renounces the benefits of excussion and division and of the legal exceptions non numeratae pecuniae and non cause debiti and acknowledges himself to be fully acquainted with the meanings of these terms.  The Agreement shall apply mutatis mutandis to this suretyship.

 

8           FORCE MAJEURE

 

If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of any event constituting force majeure (being any cause beyond the reasonable control of either party, including without limitation adverse weather conditions, unpredictable delays caused by traffic congestion, diversion or road works, the unavailability of raw materials, strikes, power outages, industrial disputes, regulatory interference or the unavailability of any communications lines and/or network operator facilities), then that party shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations.  In so far as the force majeure event affects the Supplier, the estimated delivery date for the Services, shall be adjusted to be the first day following the period after which the force majeure event terminates.  In the event of the force majeure affecting the Customer, it shall be relieved of its obligations hereunder during the period that such event continues.  Neither party shall be liable for any delay and/or failure in the performance of its obligations under this Agreement during such period, provided that if the force majeure event continues for a period longer than 30 (thirty) days, either party may cancel this Agreement without liability to the other party.

 

 

9           ABUSE OF SERVICES

 

9.1           In the event that the Supplier receives complaints from third parties with respect to the use of the Services by the Customer, the Supplier reserves the right, in its sole discretion, in addition to terminating, cancelling or suspending this Agreement and/or the Customer’s use of the Services, to disclose any and all information relating to the Customer, to the third party complaining of such abuse, any applicable authority or any other party and the Customer hereby consents to such disclosure.  Furthermore, the Customer hereby warrants and undertakes in favour of the Supplier that the Customer: –

9.1.1        shall not use nor allow the Services to be used for any improper, immoral or unlawful purpose, nor in any way which may cause injury or damage to persons or property or an impairment or interruption of the Services;

9.1.2

shall comply with all relevant legislation and regulations imposed by any competent authority and all directives issued by the Supplier in the conduct of its business in so far as it relates to the use of the Services, such legislation and regulations to include but not be limited to the CPA;  the National Credit Act, No. 34 of 2005, the Electronic Communications and Transaction Act, No. 25 of 2002; the soon to be promulgated Protection of Personal Information Bill  and that it will not utilise the Services to perform any act or deed in contravention or such legislation, regulations and directives as aforesaid.                   The Customer hereby indemnifies the Supplier for any losses, expenses, damages, harm or amount for which the Supplier may become liable and/or any claims made by any third party arising from or relating to the Customer’s use of the Services contrary to the provisions of this clause 9.

 

 

10        OBLIGATIONS ON TERMINATION / CANCELLATION / SUSPENSION

 

10.1      The Customer is liable for any obligation accrued at the date of termination, cancellation or suspension of the Services, including without limitation the payment of any costs or Charges that may arise in connection with such termination, cancellation (including, without limitation, the cancellation fees referred to in clause 21.4 or 25.6 as the case may be) or suspension, and the payment of all outstanding fees for the use of the Services prior to said termination, cancellation or suspension.

10.2      The payment obligations of the Customer in terms of this Agreement are not suspended, stayed, delayed or otherwise affected by any suspension of access to the Services where such suspension arises from the Customer’s failure to comply with, or violation of, the provisions of this Agreement or any law or legal obligation of the Customer.

10.3      The Supplier shall be entitled to immediately deactivate the Service on the date of termination or cancellation and further, has no obligation to the Customer after any termination or cancellation of this Agreement.

 

 

11        CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

 

11.1       Notwithstanding the cancellation or termination of this Agreement for any reason whatsoever, neither party shall during the existence of this Agreement or at any time after the date of termination divulge the other party’s Confidential Information to a third party.

11.2       Notwithstanding 11.1 the receiving party may disclose the other party’s Confidential Information: –

11.2.1          to the extent required by law (other than in terms of a contractual obligation of the receiving party); or

11.2.2          to, and permit the use thereof by, its employees, representatives and professional advisers to the extent strictly necessary for the purpose of implementing or enforcing this Agreement or obtaining professional advice or conducting its business, it being specifically agreed that any disclosure or use by any such employee, representative or adviser of such confidential or other information for any other purpose shall constitute a breach of this clause 11 by the receiving party.

11.3       It is recorded and agreed that the performance or execution of the Supplier’s obligations in terms of this Agreement shall not give the Customer any ownership, interest in or rights to any of the Supplier’s Confidential Information, inventions, designs, copyright, trade-marks, know-how, information systems or data or other intellectual property rights of the Supplier, whether registered or unregistered.  Without limiting the generality of the aforegoing, ownership of any innovations, which for the purposes on this clause 11.3 shall mean any invention, development or innovations conceived, whether or not jointly, by the Supplier and/or the Customer during the performance of either parties obligations in terms of this Agreement; and whether capable of being registered as a patent or not, shall vest in the Supplier.

11.4

The Supplier will not verify the existence of any possible third party intellectual property rights which might be infringed as a consequence of the supply of the Services and the Customer shall indemnify the Supplier against all third-party claims of infringement of copyright, patent, trademark, industrial or design rights arising from the supply of the Services and Customer’s use of Services or any part thereof.

 

 

12       DISCLOSURE

 

12.1       The Supplier undertakes not to disclose to any third party details of the Customer’s name, address or any third party (“Customer details”) except as set out in this clause 12.

12.2       The Customer hereby authorises the Supplier to disclose Customer’s details to a third party wherever the Supplier deems this reasonably necessary to enable it to properly perform its functions or protect its interests, for the purpose of enabling the provision of emergency Services or directory or repair Services to the Customer.

12.3       In addition, the Supplier may disclose the Customer’s details if required to do so to any regulatory authorities or any court of law.

 

 

13       RESTRAINT

 

13.1       While the Agreement is in force, and for a period of 12 (twelve) successive months from termination of this Agreement for whatever reason the Customer shall not encourage, entice, induce, solicit, offer employment or employ any person who, during the currency of this Agreement, was an employee of the Supplier or was utilized by the Supplier in rendering the Services to the Customer as contemplated in terms of this Agreement, without the prior written consent of the Supplier.

13.2       To the extent that the Customer breaches the provisions of clause 13.1, the Customer shall pay to the Supplier a finder’s fee equal to 12 (twelve) times the monthly salary which was paid to the employee at the time of resignation.

13.3       Nothing in this clause 13 shall be construed as preventing either party from appointing an employee of the other pursuant to the employee responding to the publication of general recruitment advertising by such party, provided that party can submit evidence to the other party in support of such assertion.

 

 

14        SUPPLIER PROPERTY IN THE POSSESSION OF THE CUSTOMER OR ITS EMPLOYEES

 

14.1      The Supplier’s Property remains the property of the Supplier and will at any time be available for inspection by the Supplier’s representative.  Any such Property in the possession of the Customer or its employees on completion or termination of this Agreement will, at the Customer’s expense, be returned to the Supplier forthwith.

14.2      The Customer will be responsible at all times for any loss of or damage to the Supplier’s Property in its/its employees’ possession, and if required the Customer will furnish such security for the payment of any such loss or damage as the Supplier may require.

 

 

15        AMENDMENTS TO THE GENERAL TERMS AND CONDITIONS

 

15.1       The Supplier frequently modifies and seeks to improve the Services which it provides to its Customers, and such changes may from time to time require that the Supplier amends this Agreement.

15.2       The Supplier shall in its sole discretion have the right to amend the Agreement and to change and/or discontinue any feature or component of the Services, as it may deem necessary.

15.3       Any use by the Customer of the Services after any such amendment has been implemented and notified to the Customer in writing by the Supplier, shall be deemed to constitute acceptance by the Customer of such amendment.

15.4       The Customer acknowledges and agrees that it is solely responsible for reviewing any amendments notified to it by the Supplier from time to time and to make itself aware of any such changes.

15.5       For the avoidance of doubt, it shall not be a defence against any assertion that the Customer accepted the amendments to the Agreement, that the Customer was not aware of such amendment.

 

 

16       NOTICES

 

16.1       The Customer and the Supplier choose the addresses set out in the Proposal as their chosen address (“domicilium citandi et executandi”) for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature.

16.2       Either party may change its domicilium citandi et executandi on written notice to the other.

16.3       Any notice required or permitted to be given in terms of this Agreement shall be valid and effective only if given in writing.

16.4       Any notice given or any payment made by a party to the other (“the addressee”) which:–

16.4.1    is delivered by hand during the normal business hours of the addressee to the addressee’s domicilium citandi et executandi for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;

16.4.2    is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium citandi et executandi for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the 7th (seventh) day after the date of posting.

16.5       Where in terms of this Agreement, any communication is required to be in writing the term “writing” shall include communications by telex and/or facsimile and/or e-mail and shall in such case, unless contrary is proved by the addressee, be deemed to have been received by the addressee 48 (forty-eight) hours after the time of transmission.

 

 

17       GOVERNING LAW AND JURISDICTION

 

17.1      This Agreement shall be governed by the laws of the Republic of South Africa.

17.2      The parties hereto and in terms of the provisions of Section 45 of the Magistrates Court Act. No 32 of 1944, as amended, consent to the jurisdiction of the Magistrate’s Courts in relation to any actions or proceedings instituted against the other party in terms of, or arising out of the provisions of this Agreement, provided that either party in its sole and absolute discretion shall be entitled to institute any such actions or proceedings, in any division of the High Court of South Africa possessed of the requisite jurisdiction.

17.3      In the event of either party instituting legal proceedings against the other (“defaulting party”) to recover amounts due to or take any other legal steps arising out of this Agreement, the defaulting party shall be liable for legal costs on the scale as between attorney and own client, as well as for collection commission.

 

 

18       SETTLEMENT OF DISPUTES

 

18.1       If any dispute arises out of or in connection with this Agreement, or related thereto, whether directly or indirectly, the parties may refer the dispute for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of arbitration. The reference to negotiation and mediation is a precondition to the parties having the dispute resolved by arbitration.

18.2       A dispute within the meaning of this clause exists once one party notifies the other in writing of the nature of the dispute and requests the resolution of the dispute in terms of this clause.

18.3       Within 5 (five) business days following such request, the other party shall indicate in writing whether it agrees to the resolution of the dispute in terms of this clause.  In such event the parties shall be bound by the provisions of this clause.   However, neither party shall be precluded from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process for which purpose the parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.

18.4       Within 5 (five) business days following such notification, the parties shall seek an amicable resolution to such dispute by referring such dispute to designated representatives of each of the parties for their negotiation and resolution of the dispute. The representatives shall be authorised to resolve a binding dispute.

18.5       In the event of the negotiation between the designated representatives not resulting in an agreement signed by the parties resolving the dispute within 15 (fifteen) business days thereafter, the parties must refer the dispute for resolution by way of mediation in accordance with the then current rules of the Arbitration Foundation of Southern Africa (“AFSA”).

18.6       In the event of the mediation envisaged in 18.5 failing in terms of the rules of AFSA, the matter must, within 15 (fifteen) business days thereafter, be referred to arbitration as envisaged in the clauses below.

18.7       The periods for negotiation or mediation may be shortened or lengthened by written agreement between the parties.

18.8      Each party agrees that the arbitration will be held as an expedited arbitration in Durban in accordance with the then current rules for expedited arbitration of AFSA by 1 (one) arbitrator appointed by agreement between the parties, including any appeal against the arbitrator’s decision. If the parties cannot agree on the arbitrator or appeal arbitrators within a period of 10 (ten) business days after the referral of the dispute to arbitration, the arbitrator and appeal arbitrators shall be appointed by the Secretariat of AFSA.

18.9      The references to AFSA shall include its successor or body nominated in writing by it in its stead.

18.10   This clause is a separate, divisible agreement from the rest of this Agreement and shall remain in effect even if the Agreement terminates, is nullified or cancelled for whatsoever reason or cause.

 

19       GENERAL

19.1      Should any part of this Agreement be found invalid, the balance of the provisions shall remain enforceable, unless the Supplier’s rights or obligations hereunder are materially impaired.

19.2      This Agreement constitutes the whole Agreement between the parties relating to the subject matter hereof, and shall not be modified except as expressly set out in this clause 19.

19.3      This Agreement shall be binding upon heirs, executors, administrators, successors-in-title and permitted assigns of the parties.

19.4      Subject to clause 15 and any other provision herein to the contrary, no cancellation of this Agreement, or cancellation or amendment of any other Agreement, bill of exchange or other document (excluding the rates) issued or executed pursuant to or in terms of this Agreement and no settlement of disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions of this Agreement or of any other Agreement, bill of exchange or other document (excluding the rates) issued pursuant to or in terms of this Agreement shall be binding unless recorded in writing and signed by the parties (or in the case of an extension of time, waiver, relaxation or suspension signed by the party granting such extension, waiver, relaxation or suspension).  Any such extension, waiver, relaxation or suspension, which is so given, shall be strictly construed as relating only to the matter in respect of which it was made or given.

 

 

PART “B”

 

 

20       CONSUMER PROTECTION ACT WARRANTY

 

20.1

The Customer warrants and undertakes that as at the Effective Date its asset value or annual turnover shall equal or exceed the amount of R2 000 000.00 and that accordingly the provisions of the CPA shall not apply to this Agreement.

20.2       The warranty and undertaking in clause 20.1 above is premised on the calculation of the asset value and annual turnover of the Customer in accordance with Government Notice 294 published in Gazette No. 34181, of 1 April 2011.

 

 

 

 

21       TERM

 

21.1       This Agreement shall commence on the Effective Date and shall continue for a period of 12 (twelve) successive months (“the Initial Period”).

21.2       At the expiry of the initial period, this Agreement shall automatically be renewed on the same terms and conditions, for an unlimited number of further successive periods of 12 (twelve) successive months (“the Renewal Period”), unless terminated by the Customer, on expiration of the initial period or a renewal period, as the case may be, by giving the Supplier written notice of termination not less than 30 (thirty) and not more than 90 (ninety) days before the expiration of the initial period or a renewal period, as the case may be.  Any such renewal shall be subject to any escalation or alteration of any discounts granted in respect of the Charges as set out in the Proposal.

21.3       Notwithstanding anything to the contrary contained in this Agreement, the Supplier shall be entitled to terminate this Agreement at any time by the giving of 3 (three) months’ notice in writing to this effect to the Customer.

21.4       Should the Customer terminate this Agreement prior to the expiry of the initial period or any renewal period for any reason other than expressly provided for in this Agreement, the Customer shall remain liable for all amounts owing to the Supplier up until the date of termination or cancellation and the Supplier shall be entitled to levy a cancellation/early settlement fee in an amount equivalent to the sum of the Charges for the remaining contract period plus 10 (10) percent.

21.5       Any new or additional Services or expansion of the initial Services to be provided by the Supplier to the Customer from time to time shall be subject to the terms contained in a new Proposal and/or SLD or required to be agreed upon by the parties in writing in a new agreement and such new Services shall commence on the date as specified in the new agreement or Proposal and/or SLD, as the case may be.

21.6       The Services and/or the Network Services are subject to government or relevant authority regulated limitations and transmission limitations, and may be temporarily and/or permanently refused, limited, interrupted or curtailed as necessary or appropriate for the proper operation of the Services.

 

 

22       DEFAULT

 

22.1       Save where otherwise provided for in the Proposal or elsewhere herein, should either party (“the Defaulting Party”) be in breach of its obligations under or in terms of this Agreement”) and, where the breach is capable of being remedied, fail to remedy that breach within fourteen (14) days of receiving written notice from the other party (“the Aggrieved Party”) requiring it to do so, then the Aggrieved Party shall be entitled, without prejudice to any of its other rights under this Agreement and/or in law to immediately cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.

22.2       Notwithstanding clause 22.1 and without derogating from its other rights, the Supplier shall be entitled to cancel this Agreement forthwith, if the Customer:-

22.2.1    is placed under liquidation or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;

22.2.2    commits any act which if committed by a natural person would constitute an act of insolvency;

22.2.3    any business rescue proceedings are commenced in respect of the Customer in terms of Chapter 6 of the Companies Act No. 71 of 2008;

22.2.4    compromises or attempt to compromise generally with any of its creditors;

22.2.5    has a final judgment taken against it which is not satisfied within 30 (thirty) days after the granting of such judgment;

22.2.6    the Customer contravenes the provisions of clause 9 hereof.

 

 

23        WARRANTIES, EXCLUSION AND LIMITATION OF LIABILITY

 

23.1       No party shall be bound by any express or implied term, representations, warranty, promise or the like not recorded herein.

23.2       The Supplier warrants that:

23.2.1    it has the requisite skill, knowledge and experience to provide the Services;

23.2.2    the Services shall be rendered with a high degree of professional skill and care;

23.2.3    it has the necessary approvals, licenses, and authorities to provide the Services;

23.2.4    for the duration of the Agreement, it shall comply with all law applicable to the performance of its obligations in terms of this Agreement;

23.2.5    its methodologies, concepts, ideas and consulting tools are in accordance with international best practice;

Save for the aforegoing, the Supplier does not make any representations nor gives any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services.

23.3       The Supplier shall not be liable to the Customer or any third party for any loss or damage whatsoever and howsoever arising which the Customer or such third party may suffer or incur arising from or as a consequence of the Customer’s use of the Services, and whether or not arising from negligence, irrespective of whether such loss or damage is direct, special, incidental, consequential or otherwise and the Customer hereby agrees to indemnify, hold harmless and defend the Supplier from and against any such claim, demand, cause of action, loss, expense, or liability of whatsoever nature arising.

23.4       Without limiting the generality of the aforegoing, the Supplier shall not be liable for any damage or loss suffered by the Customer caused by and/or attributable to: –

23.4.1          the use by the Supplier of any incorrect information supplied to it by the Customer and any actions taken by it by or at the direction of the Customer;

23.4.2          the Services being interrupted, suspended or terminated, for whatsoever reason;  and/or

23.4.3          the Supplier’s failure to suspend the provision of the Services to the Customer in terms of an arrangement between the Supplier and the Customer or after the Customer has specifically requested the Supplier to do so in order to limit the applicable Charges;  and/or

23.4.4          communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever;  and/or

23.4.5          circumstances that constitute a force majeure event (as contemplated in clause 8);  and/or

23.4.6          the Customer’s failure to perform its obligations under this Agreement;  and/or

23.4.7          changes made to the Customer’s operating environment which were not communicated to the Supplier;  and/or

23.4.8          a power failure or power interruptions at any site from where the Services or any component of the Services are rendered;  and/or

23.4.9          any failure or delay by the Customer to report problems or queries to the Supplier;  and/or

23.4.10       the server and/or equipment of the Customer being non-functioning for any reason whatsoever;  and/or

23.4.11       the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the Supplier and/or the Customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the Services;

23.4.12       the unavailability of the Supplier’s website for any reason whatsoever; and/or

23.4.13       the Customer using the Services contrary to the provisions of clause 9.

23.5       Notwithstanding any other provisions of this Agreement to the contrary, the Supplier’s sole liability (or that of its servants, agents and sub-contractors) to the Customer and/or any third party for any damages or loss of whatsoever nature arising out of or in connection with any defect in performance of the Services,  it carrying out, or failing to carry out all or any of its obligations and/or responsibilities and/or duties in terms of this Agreement and whether or not arising from negligence,  shall be limited, at its own option,  to either rectification of the malfunction or to the issue of a credit note for any amount in dispute with the Customer or the third party, which amount shall in any event and under all circumstances not exceed an amount equal to the Monthly Charges payable by the Contractor during the Initial Period.

 

 

24       ASSIGNMENT AND SUB-CONTRACTING

 

24.1       The Customer may not assign any of its rights or obligations in terms of this Agreement, without the Supplier’s prior written consent.

24.2       The Supplier shall be entitled at any time during the currency of the Agreement to cede and/or assign and/or sub-contract any or all of its rights and obligations in terms of the Agreement to any other party.

 

 

PART “C”

 

IMPORTANT:               THIS PART CONTAINS THE ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO CUSTOMER’S WHO ARE CONSUMERS FOR THE PURPOSES OF THE CPA AND ANY CONSUMER WHO IS NOT A CONSUMER FOR THE PURPOSES OF THE CPA IS NOT ENTITLED TO THE BENEFIT OF THE TERMS AND CONDITIONS IN THIS PART.

                                        THIS PART CONTAINS CLAUSES WHICH LIMIT THE LIABILITY OF THE SUPPLIER AND REQUIRE THE CUSTOMER TO INDEMNIFY THE SUPPLIER.

 

25       term

 

25.1       The provisions of this clause 25 do not apply to juristic persons regardless of their annual turnover or asset value.  Please refer to clause 21.

25.2       This Agreement shall commence on the Effective Date and shall continue for a period of 12 (twelve) successive months (“the Initial Period”).

25.3        If the Customer is a natural person the Customer may terminate this Agreement:

25.3.1          on the expiry of the Initial Period, on written notice to the Supplier;

25.3.2          during the Initial Period, on 20 (twenty) business days notice to the Supplier, subject, however, to the provisions of clause 25.6.

25.4       Not more than 80 (eighty) nor less than 40 (forty) business days before the expiry of the Initial Period, the Supplier shall notify the Customer in writing of the impending expiry of this Agreement, which notice will include any material changes to the Agreement and/or the Charges.  The Customer may either direct the Supplier to terminate this Agreement on the expiry date or agree to renew this Agreement for a further fixed term, subject to the material changes of which the Customer has been notified.

25.5       If this Agreement is not terminated in accordance with the aforegoing or renewed for a further fixed term, then this Agreement will continue, after the Initial Period, on a month to month basis (terminable by either the Supplier or the Customer on one month’s written notice to the other), subject to the material changes of which the Customer has been notified.

25.6       Should the Customer terminate this Agreement prior to the expiry of the Initial Period or any renewal period, the Customer shall remain liable for all amounts owing to the Supplier up until the date of termination or cancellation and the Supplier shall be entitled to levy a cancellation fee, which shall be limited to a reasonable fee determined in accordance with the guidelines set out in the CPA.

25.7       Any new or additional Services or expansion of the initial Services to be provided by the Supplier to the Customer from time to time shall be subject to the terms contained in a new Proposal and/or SLD or required to be agreed upon by the parties in writing in a new agreement and such new Services shall commence on the date as specified in the new agreement or Proposal and/or SLD, as the case may be.

25.8       The Services and/or the Network Services are subject to government or relevant authority regulated limitations and transmission limitations, and may be temporarily and/or permanently refused, limited, interrupted or curtailed as necessary or appropriate for the proper operation of the Services.

25.9       If the conclusion of the Agreement is the result of direct marketing as defined in the CPA the Customer has the right to cancel this Agreement without reason or penalty by written notice to the Supplier within 5 (five) business days after the later of the date on which this Agreement was concluded.

 

 

26       DEFAULT

 

26.1       Save where otherwise provided for in the Proposal or elsewhere herein, should either party (“the Defaulting Party”) be in breach of its obligations under or in terms of this Agreement (and in the case of the Customer such breach must be material) and, where the breach is capable of being remedied, fail to remedy that breach within twenty (20) business days of receiving written notice from the other party (“the Aggrieved Party”) requiring it to do so, then the Aggrieved Party shall be entitled, without prejudice to any of its other rights under this Agreement and/or in law to immediately cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.

26.2       Notwithstanding clause 26.1 and without derogating from its other rights, it is recorded that the events listed below will constitute a material breach by the Customer subject to the provisions of clause 26.1, which will entitle the Supplier shall be entitled to cancel this Agreement forthwith, if the Customer fails to remedy its breach after receiving notice (where such breach is capable of being remedied):-

26.2.1          is sequestrated, placed under liquidation or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;

26.2.2          commits any act which if committed by a natural person would constitute an act of insolvency;

26.2.3          any business rescue proceedings are commenced in respect of the Customer in terms of Chapter 6 of the Companies Act No. 71 of 2008;

26.2.4          compromises or attempt to compromise generally with any of its creditors;

26.2.5          has a final judgment taken against it which is not satisfied within 30 (thirty) days after the granting of such judgment;

26.2.6          the Customer contravenes the provisions of clause 9 hereof.

 

 

27        WARRANTIES, EXCLUSION AND LIMITATION OF LIABILITY

 

27.1       The parties agree that the only warranties given by the Supplier to the Customer are those contained in this clause 27.  The parties agree further that no representation by the Supplier other than those contained in this Agreement may be relied upon by the Customer.

27.2       The Supplier warrants that:

27.2.1          it has the requisite skill, knowledge and experience to provide the Services;

27.2.2          the Services shall be rendered with a high degree of professional skill and care;

27.2.3          it has the necessary approvals, licenses, and authorities to provide the Services;

27.2.4         for the duration of the Agreement, it shall comply with all law applicable to the performance of its obligations in terms of this Agreement;

27.2.5          its methodologies, concepts, ideas and consulting tools are in accordance with international best practice;

27.3       Save for the aforegoing, the Supplier does not make any representations nor gives any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services.

27.4       The Supplier shall not be liable to the Customer or any third party for any loss or damage whatsoever and howsoever arising which the Customer or such third party may suffer or incur arising from or as a consequence of the Customer’s use of the Services, irrespective of whether such loss or damage is direct, special, incidental, consequential or otherwise, unless such loss is as a result of gross negligence on the part of the Supplier.  The Customer hereby agrees to indemnify, hold harmless and defend the Supplier from and against any such claim, demand, cause of action, loss, expense, or liability of whatsoever nature arising.

27.5       Without limiting the generality of the aforegoing, and unless such loss is as a result of gross negligence on the part of the Supplier,  the Supplier shall not be liable for any damage or loss suffered by the Customer caused by and/or attributable to: –

27.5.1          the use by the Supplier of any incorrect information supplied to it by the Customer and any actions taken by it by or at the direction of the Customer;

27.5.2          the Services being interrupted, suspended or terminated, for whatsoever reason;  and/or

27.5.3          the Supplier’s failure to suspend the provision of the Services to the Customer in terms of an arrangement between the Supplier and the Customer or after the Customer has specifically requested the Supplier to do so in order to limit the applicable Charges;  and/or

27.5.4          communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever;  and/or

27.5.5          circumstances that constitute a force majeure event (as contemplated in clause 8);  and/or

27.5.6          the Customer’s failure to perform its obligations under this Agreement;  and/or

27.5.7          changes made to the Customer’s operating environment which were not communicated to the Supplier;  and/or

27.5.8          a power failure or power interruptions at any site from where the Services or any component of the Services are rendered;  and/or

27.5.9          any failure or delay by the Customer to report problems or queries to the Supplier;  and/or

27.5.10       the servers and/or equipment of the Customer being non-functioning for any reason whatsoever;  and/or

27.5.11       the failure of any hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom the Supplier and/or the Customer relies (whether directly or indirectly) to supply and/or receive, as the case may be the Services;  

27.5.12       the unavailability of the Supplier’s website for any reason whatsoever; and/or

27.5.13       the Customer using the Services contrary to the provisions of clause 9; and/or

27.5.14       the unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, PBX or other telecommunication equipment.  In such circumstances, the Customer shall remain liable for all Charges incurred pursuant to such unlawful or fraudulent access and hereby indemnifies the Supplier against all loss, liability, damage or expense which the Supplier may suffer as a result thereof.

27.6       Notwithstanding any other provisions of this Agreement to the contrary, each of the Supplier’s and the Customer’s liability (or that of its servants, agents and sub-contractors) to the other party and/or any third party for any damages or loss of whatsoever nature (unless such loss is as a result of gross negligence on the part of the Supplier or the Customer) arising out of or in connection with any defect in performance of the Services,  a party carrying out, or failing to carry out all or any of its obligations and/or responsibilities and/or duties in terms of this Agreement,  shall be limited to, either rectification of the malfunction or to the issue of a credit note for a reasonable portion of the Charges payable for the Services during the Initial Period.

 

28        ASSIGNMENT, SUB-CONTRACTING AND CONTRACTING ON BEHALF OF THE CUSTOMER

 

28.1       The Customer may not assign any of its rights or obligations in terms of this Agreement, without the prior written consent of the Supplier.

28.2       The Supplier shall be entitled at any time during the currency of the Agreement to cede and/or assign and/or sub-contract any or all of its rights and obligations in terms of the Agreement to any other party, provided such assignment of obligations is not to the Customer’s detriment.

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