This master service level agreement (“Agreement”) is entered into between Ignition Telecoms Investments (Registration number 2010/016551/07) (“ITI”), being a company incorporated in terms of the laws of the RSA with registered address at 30 Meridian Drive, Umhlanga, Kwa-Zulu Natal, RSA 4320 and you (“Client”) as specified above or in any document to which these terms and conditions relate for the delivery of services by the Company to the Client (herein “Services”) as specified in such document or agreement from time to time.
Unless otherwise expressly stated, or the context otherwise requires, the words and expressions listed below when used in this Agreement, bear the meanings ascribed to them and cognate words and expressions will bear corresponding meanings:
“ABAC Laws” means FICA, the Prevention and Combating of Corrupt Activities Act No. 12 of 2004, or any other anti- bribery and corruption laws (including, but not limited to, the Bribery Act, 2010 of the United Kingdom and the Foreign Corrupt Practices Act, 1977 of the United States), or any other national or international regulatory enactment of similar import that may have a bearing on the activities of the Client
“Acquiring Bank” means the Client’s South African commercial bank that is compatible with and supported by the Platform, the supporting Banks will be provided to Client upon request to the Company.
“Adverse Consequences” means any cost, claim, damage, loss, penalty expense; including but not limited to, all penalties imposed by any competent authority and the claims made against a Party and/or a Source, or any legal and professional costs on an attorney and client scale, whether or not reasonably foreseeable by the Parties.
“Affiliate” means any company which directly or indirectly controls, is controlled by, or is under the common control of the Client.
“AFSA” means the Arbitration Foundation of Southern Africa.
“Agreement” means this master service level agreement and any Service Orders entered into between the Parties, together with any annexures appended thereto.
“API” means an application programming interface allowing for the integration of the Platform and the Client System.
“Applicable Laws” means all applicable laws, statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judgments, orders, decisions, rulings or awards, including those of which pertain to the jurisdiction in which the Services are to be performed or otherwise to the jurisdictions in which a Party’s business is performed, and/or any government agency or department in such jurisdiction(s), which may include, but not limited to, laws and regulations governing a Party’s contact with a User or prospect, or any Transactions that are engaged in as contemplated under this Agreement. For the sake of clarity, Applicable Laws includes ABAC Laws.
“Business Days” means Monday to Friday between the hours of 08:00 to 17:00, excluding Saturdays, Sundays or a day which, from time to time, is proclaimed a public holiday in the RSA.
“Client” means the Party described as such in the Recordal and includes any Affiliates.
“Client System” means the Client’s network and/or software application that receives, uses, displays and processes the data and/or Output and is solely developed by or for the Client and is owned by the Client.
“Commencement Date” means the date specified in the Recordal to this Agreement, notwithstanding the Signature Date or the date when any Services in terms of a Service Order commences.
“Company” means ITI.
“Company Intellectual Property” means the Intellectual Property that is proprietary to the Company and used in connection with the Services.
“Confidential Information” means all confidential information and Intellectual Property (however recorded, preserved or disclosed) by the Disclosing Party to the Receiving Party during the negotiations leading up to this Agreement or after the date of this Agreement, including but not limited to:
the terms of this Agreement or any Services Order;
the business, affairs, customers, clients, suppliers, plans of the Disclosing Party or of the Disclosing Party’s financial information and business information and processes;
the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party relating to that Party’s business activities, business relationships, customer names, prices, products and services;
technical, scientific, commercial or market information; and /or
information concerning systems, hardware and/or software, or the incidence of such faults or defects.
“Consumer Credit Information” means in respect of a Data Subject, their consumer credit information as defined in the NCA.
“CPI” means the average consumer price index for the preceding year as published by Statistics South Africa or failing such publication, a similar cost-of- living increase over the same time as designated by the Company in its reasonable discretion.
“Data” means any data, including Personal Information and/or Consumer Credit Information of any Data Subject.
“Data Subject” means a data subject as defined in POPI.
“Disclosing Party” means the Party that discloses Confidential Information to the Receiving Party (as the case may be)
“Event of Default” means a pre-specified event or circumstance which, when caused by or suffered by a Party, entitles the other Party to protection against such event or occurrence in terms of the provisions of this Agreement. An Event of Default shall occur if:
the Defaulting Party does not comply with any material provision of this Agreement and fails to remedy such breach within 30 (thirty) Business Days after the date of receipt by the Defaulting Party of written notice from the Aggrieved Party calling upon it to do so;
the Defaulting Party repeatedly or continuously breaches any term of this Agreement; “repeatedly or continuously” in this context shall mean 3 (three) consecutive times within a 6 (six) month period, the cumulative effect of which is a material breach of this Agreement;
the Defaulting Party infringes the Intellectual Property rights of the Aggrieved Party or any third party in order to meet all or some of its obligations under this Agreement;
any warranty, statement or representation made by the Defaulting Party in terms of this Agreement is or proves to have been incorrect or misleading when made, or deemed to have been made, and is not capable of being remedied, or if capable of being remedied, is not remedied within 10 (ten) Business Days after the date of receipt by the Defaulting Party of written notice from the Aggrieved Party calling upon the Defaulting Party to remedy same; and/or
the Defaulting Party experiences a Causal Event
“FICA” means the Financial Intelligence Centre Act, No. 38 of 2001, as amended.
“Force Majeure” means a circumstance which is beyond the reasonable control of the Parties or an unexpected and disruptive event, which results in either Party being unable, delayed or otherwise hindered in its ability to observe or perform an obligation under this Agreement and such circumstances include, but are not limited to the following examples: (a) acts of God, earthquakes, or any natural disasters; (b) changes in Applicable Laws; (c) applicable trade or banking sanctions, acts of sovereign states, blockade, embargo, public disorder, acts of war or public enemy, or terrorism; (d) epidemics and pandemics (or a lesser spread of disease that causes interruption or delay); (e) shortages of materials or labour; (f) cable cuts or power outage; (g) cybercrime or other forms of cyber or physical sabotage; and (h) non-performance of any third party or failure of any third-party system, infrastructure, software or application (in each case, only to the extent such third party or third-party system, infrastructure, software or application is outside the control and management of the impacted Party or its subcontractor).
“Initial Period” means a period of 12 months from the Commencement Date.
“Input” means the integrated submission files populated by the Client and/or its Users including Data and any other data or assistance that the Company requires from the Client to perform the Services effectively and/or timeously.
Intellectual Property” means all intellectual property and proprietary rights, including:
all current and future intellectual property and proprietary rights, howsoever arising in any jurisdiction worldwide, whether registered or not, discovered solely or in collaboration with others, irrespective of stage of development, including (without limitation) the following rights and rights similar thereto: patents, industrial designs, design rights, topography rights, registered and unregistered trademarks, service marks, goodwill, copyright, domain names, defensive names, know-how, trade secrets, Confidential Information and in respect of all of the aforegoing, any applications (or entitlement to make application) for the protection or registration of the aforesaid rights and all renewals and extensions thereof throughout the World (to the extent possible);
all current and future embodiments of the aforegoing rights, physical or otherwise, including (without limitation) inventions, discoveries, analyses, trade names, business names, logos, methods, customer lists, supplier lists, business and marketing information, specifications, software, systems and/or software code (source and object); and
any other information which relates to the business of the “Disclosing Party” which is not readily available in the normal course of business to competitors, and which may come to the knowledge of the recipient, whether graphic, written or oral.
“NCA” means the National Credit Act, 34 of 2005 together with the Regulations.
“Output” means any Personal Information and/or Consumer Credit Information received from a Source and delivered to the Client pursuant to the delivery of the Services, which Output may be incorporated into a Report.
“Party” means either the Client or the Company, as indicated by the context “Parties” shall refer to both the Client and the Company jointly.
“PASA” means the Payments Association of South Africa, being the payment system management body recognised by the South African Reserve Bank in terms of the National Payment System Act, No. 78 of 1998, to organise, manage and regulate the participation of its members in the payment system.
Personal Information” shall bear its definition as provided for in POPI.
“Platform” means pAIment being the web-based Platform developed, designed and owned by the Company integrated with the Client’s System for the purposes of provision of the Services;
“POPI” means the Protection of Personal Information Act, 4 of 2013, as amended.
“Prime Rate” means the publicly-quoted prime overdraft rate charged by Standard Bank of South Africa from time to time, calculated daily and compounded monthly.
“Process” means any operation or activity or any set of operations, whether or not by automatic means, concerning Data, including its collection, receipt, recording, organisation, collation, storage, updating or modification, merging, linking, blocking, degradation, erasure or destruction, retrieval, alteration, consultation, testing or use, dissemination or distribution by any means.
“Receiving Party” means the Party that receives Confidential Information from the Disclosing Party (as the case may be).
“Representatives” means employees, officers, directors, shareholders, agents or representatives of the Client, including Affiliates and professional advisors.
“RSA” – Republic of South Africa.
“Services” means the provision by the Company of the Platform to the Client as contemplated in this Agreement and any Services Order.
“Services Order” means the binding order in terms of which the Client elects to activate selected services offered by the Company to be rendered in accordance with the terms set out in this Agreement and as these terms may be augmented by such order.
“Services Order Effective Date” means the effective date as defined in each Services Order.
“Service Charges” means the service charges payable by the Client to the Company as specifically provided within a Service Order. Service Charges include Fees.
“Signature Date” means the date upon which the last Party hereto signs this Agreement or a Service Order.
“Source” means the third-party and/or Governmental Entities from which the Company sources the Data Subject’s information in the provision of the Services.
“Term” means the Initial Term and any renewal period as contemplated in clause 4.1;
“Transaction/s” means any request(s) by the Client and/or User(s) to the Company for any Service(s) to be delivered to the Client;
“Users” means the third parties appointed and/or authorised by the Client to access the Platform and/or use the Services, including without limitation, the Client’s employees and/or clients.
“VAT” means Value Added Tax as envisaged in the Value Added Tax Act, 89 of 1991, as amended.
In the event of a conflict between any of the terms of this Agreement and any Service Order forming part of this Agreement then the Parties agree that, in respect of such conflicting terms only, the content of the Service Order will take preference.
Unless any annexure provides otherwise, any annexure to this Agreement will be deemed to be incorporated in and form part of this Agreement.
Clause and paragraph headings are for purposes of reference only and will not be used in interpretation.
Unless the context clearly indicates a contrary intention, any word denoting any gender includes the other gender, the singular includes the plural and vice versa, natural persons includes artificial persons and vice versa.
When any number of days is prescribed such number will exclude the first and include the last day unless the last day falls on a Saturday, Sunday, or a public holiday in the RSA, in which case the last day will be the next succeeding day which is not a Saturday, Sunday or a public holiday in the RSA.
Where figures are referred to in numerals and in words and there is any conflict between the numerals and words, the words will prevail.
No provision herein will be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.
The use of the word “including” followed by specific examples will not be construed so as to limit the meaning of the general wording preceding it.
Any reference to any statute, regulation or legislation is a reference to such statute, regulation or legislation as at date of signature hereof and as amended or substituted from time to time.
If any provision in a definition is a substantive provision confirming any right or imposing any obligation on any party, then notwithstanding that it is only in the definition clause, effect will be given to it as if it was a substantive provision in this Agreement.
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, will bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in the definitions and interpretations clause.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
The termination or expiry of this Agreement shall not affect those provisions which expressly provide that they will continue to operate after such termination or expiry, or those provisions which of necessity must continue to have effect after such termination or expiry, even where those clauses do not expressly provide for this.
In the event that any right or remedy is expressly stated to be available to any of the Parties in particular circumstances, such right or remedy shall be available without prejudice to or limitation of any other right or remedy that may be available to that Party in such circumstances, unless the contrary is expressly stated.
Services shall be added to this Agreement by executing Services Order(s) signed by the Parties from time to time.
With effect from the Signature Date of a Services Order, such Services Order shall be deemed incorporated under this Agreement and form part of the Agreement.
With effect from Services Order Effective Date set out in a Services Order, such Services Order shall replace the Services set out in any preceding Services Order and have effect from that date onwards.
The Company agrees to render the Services specified in the prevailing Services Order in accordance with the terms of this Agreement and specifically against timeous payment of the Service Charges.
Term
This Agreement will commence on the Commencement Date and will continue for the Initial Period.
The Company may terminate this Agreement upon at least 30 (thirty) days prior written notice to the Client. Should the Client wish to terminate the Agreement during the Initial Period, the Client must provide the Company with at least 90 (ninety) days prior written notice of its intention to do so.
If the notices at 4.1.2 above are not provided prior to the expiration of the Initial Period, the Agreement will automatically renew for an indefinite period, until terminated by either Party in accordance with the notice periods contained in 4.1.2.
If the notices at 4.1.2 above are not provided prior to the expiration of the Initial Period, the Agreement will automatically renew for an indefinite period, until terminated by either Party in accordance with the notice periods contained in 4.1.2.
Summary Termination by the Company
Notwithstanding the provisions of clause 4.1.2, on or at any time after the occurrence of any Event of Default, the Aggrieved Party shall be entitled, on 30 (thirty) days written notice to the Defaulting Party, to:
terminate this Agreement and claim such Adverse Consequences as the Aggrieved Party may have suffered as a result of such Event of Default; or
claim specific performance and compliance with the terms and conditions of this Agreement and claim such Adverse Consequences as the Aggrieved Party may have suffered as a result of such Event of Default.
Either Party may summarily terminate this Agreement with immediate effect:
if the other Party is placed under voluntary or compulsory liquidation (whether provisional or final), sequestrated, placed under curatorship or under business rescue;
if the other Party has a civil judgment taken against it which judgment is not satisfied or rescinded within thirty (30) days after the date on which the judgment is granted;
if the other Party ceases to carry on its business;
if the other Party’s authority or consents are suspended or terminated by any applicable authority, or
under circumstances of Force Majeure as contemplated in clause 17.
The Aggrieved Party’s remedies in terms of clause 4.2 are without prejudice to any other remedies to which the Aggrieved Party may be entitled in terms of this Agreement or in law.
Termination Consequences
Upon the termination of this Agreement:
the Client will immediately stop using the Services and/or making the Services available for use by Users;
all amounts owed by the Client to the Company for the Services will become immediately due and payable;
the Client’s links to the Platform will be immediately disabled;
neither Party will be entitled to continue using the other Party’s name and/or Intellectual Property and each Party will immediately cease holding out that it is in any way connected to the other Party in respect of this Agreement and/or the Services;
the Client will not be entitled to any of the benefits arising from this Agreement after the termination date;
the Client will, within 7 (seven) days of termination, promptly return to the Company or otherwise dispose of Company Intellectual Property;
the Client will immediately delete all copies of the Platform and/or copies of the Company’s source code in the Client’s possession; and
the Company will be entitled to retain Input, Data and Confidential Information in order to comply with any lawful obligations and legislation.
Each of the Parties will within 30 (thirty) days of the termination date deliver to the other Party a written certification confirming that it has complied with all of its termination obligations contemplated in this Agreement. The Company will be entitled to send auditors to the Client’s premises to verify its confirmation of compliance with the aforesaid and the Client will co-operate and assist the auditors with such verification procedure.
If this Agreement terminates as a result of:
the Client’s breach, willful misconduct, fraud and/or negligence;
summarily as contemplated in clause 4.3,then the Client hereby indemnifies and holds harmless the Company, and its Representatives against any and all Adverse Consequences that the Client and/or any third-party may suffer as a consequence of the suspension or termination of the Services.
The Services are for the sole benefit of the Client and the Client undertakes that such Services will not be made available to any third party, either directly or indirectly.
The Client must specifically procure the following and, to the extent applicable, maintain same during the term of this Agreement, all at the Client’s cost:
comply with all Applicable Laws applicable to the Client, including maintaining registrations in good standing with such regulators and/or bodies as is necessary to comply with the aforegoing obligation, such as PASA;
maintain the required relationship(s) with an Acquiring Bank;
provide adequately qualified and skilled staff to perform the Clients obligations in terms of each Services Order;
provide and maintain its own computing infrastructure and telecommunications suitable for use with the Platform
promptly assist the Company as it may reasonably be required to render the Services effectively and in a legally compliant manner;
not introduce undue systemic risk into the payments processed using the Platform, including (without limitation) maintaining a debit order rejection rate lower than the prevailing threshold set by PASA or failing such set rate, as required by good industry practice; and
manage and maintain business processes and collections rules on an ongoing basis.
The Client is solely responsible for providing, operating and maintaining the Client System and serving, operating and maintaining the integration of the Client System with the Platform.
The Client may not:
use and/or Process any Output in any manner or for any purpose other than as contemplated in this Agreement;
reverse engineer, decompile or attempt to discover any source code or underlying algorithms of the Platform or the Services;
undertake any additional development of the Platform and/or Services without the Company’s prior written consent;
make for any purpose, including for error correction, any alterations, modifications, additions or enhancements to the Platform and/or the Services;
subject to the required integration of the Platform with the Client System, merge or combine the whole or any part of the Services and/or Platform with any other computer software and/or materials without the prior written consent of the Company;
make any warranties, assurances or statements concerning the features of the Platform and Services that are misleading or materially divergent from any documentation and/or statements provided by the Company; and/or
act or omit to act in any way which may damage any property of the Company or howsoever cause the quality and/or reputation of the Platform and the Services and/or the Company to be impaired.
The Client must comply with Company requests and queries within 48 (forty-eight) hours to enable the Company to render the Services effectively and timeously or such longer period as the Parties may agree upon. If the Company’s requests and queries are not attended to by the Client as contemplated herein, the Company will be entitled to suspend the Services and/or place any Transactions on hold, pending the Client providing the Company with a satisfactory resolution to the request or query. Save in the event of the gross negligence and/or fraud on the part of the Company, the Client hereby indemnifies and holds harmless the Company and its Representatives against any Adverse Consequences, now and in the future, that the Client and/or a third-party may suffer arising from the suspension of Services.
The Company shall have the right to suspend the access and use of the Platform, inclusive of the submission of any instructions to the Acquiring Bank, immediately on written notice to the Client if:
the Client is in breach of any obligation in terms of this Agreement; or
the Client, in the reasonable discretion of the Company, is introducing undue systemic risk into the Transactions or Services processed by the Platform; or
the Company is directed to do so in terms of a binding order, ruling or directive by a court, regulator, governing industry body or other body having similar standing.
The Company will use commercially reasonable endeavours to make the Services available on a continuous basis, except for:
planned maintenance carried out on dates and at times to be notified to the Client in advance; and
unscheduled maintenance, provided that the Company has used reasonable endeavours to give the Client at least 12 (twelve) hours’ notice in advance.
The Company will Process all lawful Transactions in a timely manner.
The Client must, at all times, obtain the written consent of the Data Subject to access, store, process and retrieve Data. To ensure compliance with POPI, the Company may refuse, in its absolute sole discretion, to execute any Transaction without prior notice to the Client if in the Company’s sole and absolute discretion, it determines that no prior written consent to Process Data that has been obtained by the Client and/or User from the Data Subject.
The Company reserves the right, after furnishing prior written notice of not less than 30 (thirty) days to this effect to the Client:
to vary the Services;
to withdraw selected Services for any reason whatsoever; and/or
to suspend and/or discontinue the provision of any Service/s if any license, permit, certificate, consent, change in legislation and/or exemption or other legal requirement of a material nature and without which the Company is unable to provide such Service/s, has expired, is withdrawn, discontinued, replaced, terminated and/or refused for a reason beyond the Company’s reasonable control.
The Client acknowledges that the Platform is housed on the Company’s third- party hosted-server.
The Company will maintain, and will procure that its third-party hosted-service supplier maintains reasonable technological measures in accordance with industry standards, adequate security, systems and/or procedures to ensure that the Platform and all Input, Data and/or Output to which this Agreement applies is kept confidential and secure, and is protected against loss, corruption, unlawful intrusion, wrongful alteration, unauthorised disclosure or access by any unauthorised third-parties (including on-line access). Notwithstanding the aforesaid, the Company does not give any guarantees against security breaches and/or loss and/or corruption of Data service exclusions
The Company will not be liable for any failure to perform its obligations, whether in whole or part, directly or indirectly attributable to:
any required Output not being available for whatever reason;
any failure or delay on the part of any Source to provide Output, or to provide Output that is accurate and/or complete;
any failure by the Client to comply with its obligations in terms of this Agreement (including any withholding of performance by the Company as a result of such failure);
the non-availability and/or incorrect functioning of the Client System and/or any computer or other systems owned or developed by or in possession of the Client or any third-party; and/or
any material defects in Data provided by the Client, User and/or Source to the Company;
the failure of Company’s third-party hosted-service supplier’s systems and/or the failure of such third-party to make the hosted-service available to the Company; or
any power failures, Force Majeure and/or circumstances beyond the Company’s reasonable control.
The Parties will adhere to all Applicable Laws relevant to the implementation of this Agreement and the delivery of the Services.
The Client will adhere to:
the Company’s applicable policies and guidelines relating to the Services, as notified to the Client and as updated by the Company; and
the directives, policies, codes of conduct, standard operating procedures and rules issued by an authority.
The Client will be solely responsible for obtaining licenses, permits, certificates or other permissions from relevant authorities that may be applicable to any of their obligations in terms of this Agreement.
The Client acknowledges that the Platform is housed on the Company’s third- party hosted-server.
In consideration for the Services, the Client will pay the Service Charges without demand, set-off or deduction.
The Company shall invoice the Client for the fixed or minimum monthly Service Charges monthly in advance, the Client agreeing to settle such invoice on or before the first calendar day of the calendar month relating to that invoice.
The Client may not, under any circumstances, be entitled to defer or withhold payment of any amounts due in terms of this Agreement for any reason whatsoever.
The Service Charges shall escalate at the expiry of the Initial Period (“Escalation Date”), and on each anniversary of the Escalation Date thereafter The Parties will at least 2 months prior to any Escalation Date meet to discuss and agree on the increase percentage. Should the Parties fail to reach agreement, the Service Charges will increase at a rate equal to the prevailing CPI rate +2.5%.
All payments due by the Client to the Company shall be made into the Company’s bank account, as nominated in writing by a duly authorised representative from time to time.
Any such payment shall only be deemed as received by the Company when this account has been credited with the required amount.
The Client hereby mandates the Company to collect all amounts due to the Client by direct debit submitted via the Acquiring Bank and shall upon request from the Client provide the Client with such separate written mandate as may be acceptable by the Acquiring Bank.
All amounts stated in this Agreement are exclusive of VAT and other sales taxes.
Unless and to the extent expressly stated otherwise, the Service Charges set out herein do not include third-party charges incurred by the Client in the use of the Services, including (without limitation) transactional and other charges levied by any Acquiring Bank or other bank.
Any overdue payments shall attract interest at the Prime Rate plus 2 (two) percent, such interest will be compounded monthly in arrears and, if the date of payment is not the last day of a month, then compounded finally on the date of payment., calculated daily and capitalised monthly.
The Company reserves the right, at its sole discretion, to amend the pricing structure from time to time on 1 (one) month’s prior written notice to the Client delivered by way of email.
The Client acknowledges that:
the Services are dependent on the Sources’ databases/systems being updated and that the Company is not responsible for the accuracy of the data on the Sources databases/systems; and
the Source will at all times have complete discretion as to whether or not it will consent to the transmission of the Data and/or Output called for by a Client and that the Company has no ability to influence nor force any Source to consent to same and the Company is merely acting as a safe conduit for the transfer of such Data and/or Output.
Each of the Parties hereby warrant to the other as material warranties, inducing the other to enter into this Agreement, that:
it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
the execution of this Agreement and the performance of its obligations thereunder does not and shall not:
contravene any Applicable Law or regulation to which that Party is subject;
contravene any provision of that Party’s constitutional documents; or
conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.
The Client warrants that it is fully acquainted with the Platform process and architecture and is fully satisfied with the manner in which the Platform operates, in particular in respect of:
the fact that most information is encrypted and that neither the Company nor any of its employees will be able to gain, nor have access to such encrypted information;
the fact that the accuracy and integrity of Output relies solely and completely on the Sources;
the fact that the Platform will only be able to transmit the requested Data if a successful match in respect of such requested Data is found on one of the Source’s systems and the corresponding Output is delivered to the Platform by the Source;
the fact that there is an obligation on the Client to obtain the legally required consent from Data Subjects.
Save as expressly provided in this Agreement, the Company makes no other warranties of any kind, whether express, implied, statutory, or otherwise, regarding the Services, and the Company specifically disclaims any implied warranties of merchantability or fitness for a particular purpose. The Company does not warrant that the Services will be uninterrupted or error-free.
Under no circumstances will the Company be liable for any consequential, indirect, special, punitive and/or incidental Adverse Consequences suffered by the Client and/or any third-party, whether foreseeable or unforeseeable, even if the Adverse Consequences arise out of negligence on the part of the Company and regardless of form or cause of action, whether in contract or delict or for restitution, whether based on this Agreement, any commitment performed or undertaken under or in connection with this Agreement and any Transaction, or otherwise.
The maximum aggregate liability of the Company for any Adverse Consequences arising from this Agreement and the rendering of the Services shall be limited to:
direct damages for which the Company is legally liable; and
liability capped at 50% (fifty percent) of the amount of Service Charges invoiced to Client in the month in which the cause of action arises.
Save in the event of the gross negligence and/or fraud on the part of the Company, the Client hereby indemnifies and holds harmless the Company and its Representatives against any Adverse Consequences, now and in the future, that the Client and/or a third party may suffer arising from:
a breach of any of the Client’s obligations, warranties and/or undertakings contained in this Agreement;
a breach of this Agreement by any User and/or Client Representatives; and/or
fines imposed by the Information Regulator which may arise now or in the future, as a result of the Client’s and/or the Client’s failure to obtain the written consent to lawfully Process the Data Subject’s Data as contemplated in this Agreement.
By virtue of this Agreement, the Parties will be provided and may have access to each other’s Confidential Information.
The Parties agree and undertake in favour of each other for the Term of this Agreement and indefinitely thereafter, to maintain the confidentiality of the Confidential Information and Intellectual Property that may be disclosed by the Disclosing Party to the Receiving Party and specifically not to use or disclose such information to any third party, except insofar as permitted in terms of this Agreement.
The obligations of confidentiality under this clause 12 shall not apply to:
disclosure as strictly required for the performance of obligations in terms of this Agreement;
information which is independently developed by or acquired from a third party;
the disclosure of information to the extent required to be disclosed by law, binding Services Order of competent authority or otherwise as essential for application in judicial action, as well as requests for information from PASA;
the disclosure in confidence to a Party’s professional advisors of information reasonably required to be disclosed for a purpose reasonably incidental to this Agreement; and
information which comes within the public domain otherwise than as a result of a breach of this clause
The Party seeking to rely on an exclusion in clause 12.3 shall bear the onus of proof that such exclusion applies to the particular facts or circumstances.
The Party making a disclosure to a third party permitted by clause 12.3. shall procure that such third party complies with the obligations contained therein, except in the case of regulatory disclosure.
The Client warrants that it will at all times have the written or verbal (legally recorded) authority of the relevant Data Subject authorizing the Client and its lawful agents, including the Company, to Process the Data Subject’s Data and use the results of the Services for any lawful purposes. The Client will furnish the Company with copies of consents within 3 (three) days of the Company’s request for such copies.
The Client warrants that it has implemented adequate security and technological measures to protect the Data of the Data Subjects. The Client warrants that it will ensure that the Client System and operations which it uses to access the Platform and/or utilise the Services, will at all times be of a minimum standard required by law and be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of Data.
The Parties hereby warrant in favour of each other that they will comply with all applicable legislation and with all the provisions and requirements of the Company’s data protection policies and procedures which may be in force.
The Client agrees that the Company will be entitled to audit the Client’s compliance with the provisions of this clause 13. If the Company wishes to audit the Client, the Company will provide the Client with at least 7 (seven) days’ notice and the Client agrees to provide the Company with all such documentation and evidence confirming that the consent from the Data Subjects has been obtained as envisaged, unless a data breach is alleged by a Data Subject in which event the Company will be entitled to such documentation within 5 (five) Business Days.
The Company undertakes to comply with POPI and in this regard, the Company implements adequate security and technological measures in line with good industry practice to ensure the security of its servers and to protect the Data of the Data Subjects, and where applicable, the Company has implemented measures to ensure that its service providers have implemented the relevant security measures, where servers are hosted. Notwithstanding these security measures, the Company does not provide any warranty that breaches of security will not take place.
Ownership of all Company Intellectual Property in and to the Platform and the Services is reserved and shall exclusively vest in the Company (or its licensors, as the case may be).
As part of the Services, the Client is licensed to use the Platform for its internal business purposes to the extent necessary for such purpose and for no other whatsoever. The Client may not, during this Agreement or at any time after the termination hereof, adapt, reproduce, modify (including the right to improve, translate and re-write into another language or another manner), integrate and incorporate into any existing or future work, re-engineer, reverse engineer and/or redevelop the Services.
The use of any Intellectual Property of the Company shall:
be subject at all times to the documentation and the directives issued by the Company; and
terminate upon termination of this Agreement for any reason, in which event the Client shall make no further use of Company Intellectual Property.
All rights not expressly granted to the Client shall be and remain reserved to the Company. All Company Intellectual Property is owned by the Company and is the sole property of the Company. Nothing contained in this Agreement should be construed as granting or conferring on the Client any right in or title to, expressly or by implication, to the Company Intellectual Property. The Client will not at any time or in any way question or dispute the Company’s ownership of, or right to, any such Company Intellectual Property and undertakes not to infringe or prejudice any such Company Intellectual Property rights.
The Client warrants that it will comply with all ABAC Laws applicable to the marketing, sale and/or distribution of the Services.
The Client acknowledges that a breach of this clause will be deemed by the Company to be an irremediable breach of this Agreement and the Company may in sole and absolute discretion terminate the Agreement.
The Company shall have the right to audit the Client’s compliance with the terms of this Agreement from time to time on no less than 10 (ten) Business Days prior written notice (hereafter “Audit”).
The Client agrees to give its reasonable co-operation during the execution of an Audit and specifically to enable access to such information as may be reasonably required for this purpose.
The Company agrees to take reasonable precautions not to disrupt the business activities of the Client in the execution of an Audit.
If the Client fails to co-operate and provide any reasonable information pertaining to any audit, the Company reserves the right to terminate this Agreement on 7 (seven) days written notice to the Client.
The Company will bear the costs of an audit, however, the Client will bear its own costs in relation to on-site visits or provision of the requested documents and information. If the audit report has any adverse findings supporting a breach of this Agreement, the Company will be entitled to claim any and all direct audit costs from the Client in addition to any other damages and/or Adverse Consequences which are specified in this Agreement.
Neither Party will be deemed to be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance or failure to perform any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other Party; and the time for performance of that obligation will be extended accordingly. In this regard, the Parties hereby indemnify and hold harmless the other of them against claims which may arise as a result of a Force Majeure.
If the Force Majeure in question prevails for a continuous period of more than 4 (four) weeks, the Parties will enter into bona fide discussions with a view to alleviating its effects, or to agreeing on such alternative arrangements as may be fair and reasonable.
Should any dispute arise, the Parties shall endeavour to resolve such dispute in an amicable manner and shall be subject to the following procedures:
Prior to referring any dispute to arbitration or litigation, the Parties shall first attempt to:
In the event that a dispute of a financial nature is not resolved, such dispute shall in the first instance be referred by either Party to the respective Chief Financial Officers of the Parties for resolution.
In the event that a dispute of a service delivery nature (or in any other way related to the provisions of this Agreement) is not resolved in accordance with the remedies provided in the Agreement or a Service Order, then such dispute shall in the first instance be referred by either Party to the respective Chief Technical Officers of the Parties for resolution.
Should the disputes referred in 18.2.1 and 18.2.2 not be resolved in good faith negotiation between such persons within 10 (ten) days after the date of referral, the dispute shall be referred to the Chief Executive Officers of both Parties for resolution.
In the event that there is no resolution of the dispute, then the dispute shall be referred to arbitration as per clause 18.6.
Proceedings in terms of clause 18.6 shall not be construed to prevent a Party from instituting formal proceedings earlier to obtain urgent or interim relief, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors.
Arbitration
Subject to the provisions of clauses 18.2.1 and 18.2.2, the Parties agree that either Party may elect to refer any dispute which may arise to arbitration proceedings. Upon election by a Party initiating the relevant dispute proceedings, the other Party will be bound by such election for the purposes of the dispute in question.
If the Parties are unable to resolve any dispute informally and either Party has elected to commence arbitration proceedings to resolve the dispute, then such dispute shall on written demand by the electing Party be submitted to arbitration in terms of the expedited rules of AFSA, to be held in Kwazulu-Natal, South Africa, in English. There shall be a right of appeal as provided for in the rules. Without affecting the validity of this clause, such expedited rules may be downloaded from: https://arbitration.co.za/domestic-arbitration/expedited-rules/.
The arbitrator shall be a retired Judge of the High Court of South Africa or a practicing senior counsel of at least 10 (ten) years standing as such, agreed upon between the Parties, provided that should the Parties fail to agree on an arbitrator within 3 (three) Business Days after the dispute is referred to arbitration, the arbitrator shall, at the written request of either Party, be appointed by AFSA.
The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than one is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
Status of arbitration ruling
The decision of the arbitrator shall be final and binding on the Parties to the arbitration after the expiry of the period of 20 (twenty) days from the date of the arbitrator's ruling if no appeal has been lodged by any Party. A decision, which becomes final and binding in terms of this clause 18.7 may be made an order of court at the instance of any Party to the arbitration. The Parties agree to keep the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
This clause 18.7 shall not preclude either Party from seeking urgent or interim relief from the High Court of South Africa or any other competent organs of state created for the specific purpose of regulating the business or industry activities in which the Parties are engaged.
The Parties choose as their address for service and/or receipt of notices (i.e. domicilia citandi et executandi) for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses set forth in this Agreement, provided that any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing and delivered to the relevant Party’s physical address or email address (hereafter each a “Notice Address”).
Unless the contrary is proved by a recipient, any notice to a Party to a Notice Address on Business Days:
delivered by hand to a responsible person at its physical address shall be deemed to have been received on the day of delivery; or
sent by email shall be deemed to have been received on the date and time when such notice is capable of being retrieved by the recipient from its email server.
In the event an email notice to a Party is delivered later than 17:00 in the recipient’s time zone, delivery shall be deemed to have taken place on the next Business Day.
Any communication required to be in writing in terms of this Agreement may be sent by data message, as defined in the Electronic Communications and Transactions Act, No. 25 of 2002, as amended.
Notwithstanding anything to the contrary, a written notice or communication actually received by a Party’s Representative shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at a Notice Address.
Governing Law: The laws of the RSA will govern the validity, interpretation and performance of this Agreement. Unless and to the extent expressly agreed otherwise in this Agreement, the Parties agree that the High Court of South Africa, Kwazulu-Natal Division, shall have exclusive jurisdiction to hear any disputes that may arise from this Agreement.
Reputation: Each Party will at all times uphold the reputation of the other Party in good standing.
Indulgences and Waiver
The grant of any indulgence, extension of time or relaxation of any provision by a Party under this Agreement will not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor.
No indulgence or relaxation of any of the provisions of this Agreement by either Party will constitute a waiver or abandonment of such Party’s rights to require strict and punctual performance of the provisions of this Agreement.
No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver of any of the Terms or Conditions of this Agreement will be binding for any purpose unless expressed in writing and signed by the Party giving the waiver and any such waiver will be effective only in the specific instance and for the purpose given.
Cession/Assignment
The Client cannot cede, delegate and/or assign any of its rights or obligations under this Agreement without the prior written consent of the Company first being obtained, which consent will not be unreasonably withheld. For the purposes hereof, such cession, delegation or assignment will include, without limitation, a merger, sale of assets or business, or other transfer of control by operation of law or otherwise.
The Company will have the right at any time to cede, delegate, assign and/or transfer all or any of its rights, interests and obligations under this Agreement, and the Client in such event hereby consents to such cession, delegation, assignment and/or transfer and hereby accepts the transferor, cessionary or assignee in place and stead of the Company.
Entire Agreement and Variation: This Agreement contains all the express provisions agreed on by the Parties with regard to the subject matter of the Agreement and supersedes and novates in its entirety any previous understandings or agreements between the Parties in respect thereof, and the Parties waive the right to rely on any alleged provision not expressly contained in this Agreement.
Counterparts: This Agreement may be signed in counterparts and the copies signed in counterpart will constitute the Agreement. This will include email copies of this document.
No representations: A Party may not rely on any representation which allegedly induced that Party to enter into this Agreement, unless the representation is recorded in this Agreement.
Costs: Each Party will pay its own costs of negotiating, drafting, preparing and implementing this Agreement.
No stipulation for the benefit of a third person: Save as is expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of a third person (i.e. a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.
Variation, cancellation and waiver: No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, will be effective unless reduced to writing and signed by or on behalf of the Parties.
Severability: All the provisions of this Agreement are, notwithstanding the manner in which they may have been grouped together or linked grammatically, severable from each other. Any provision of this Agreement which is or becomes unenforceable, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, will, only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this Agreement will remain of full force and effect.