1.1.
“AFSA Rules” means the
rules for expedited arbitration (domestic arbitration) published
by The Arbitration Foundation of South Africa NPC from time to time;
“Agreement” means this written agreement together with the annexures and schedules hereto;
1.2.
"Business Day"
means a day which is not a Saturday, Sunday or a public holiday gazetted
in the Republic of South Africa from time to time;
“Commencement Date” means the Signature Date;
1.3. “Contract Period” means the period from the Commencement Date to Termination Date, both days included;
"Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in models, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
1.4. “Parties” means the parties to this Agreement, and, “Party” means any one of them;
1.5. “Services” means the services described in Annexure “A”, to be provided by XRA to the Customer in terms of this Agreement;
“Signature Date” means the date of signature of this Agreement by the Party last signing;
1.6. “Software” means any and all software in respect of which the Services are rendered;
“Termination Date” means Click or tap to enter a date., or, the date upon which this Agreement terminates earlier for any reason whatsoever;
1.7. “VAT” means any Value Added Tax payable, at the rate prescribed from time to time in terms of the Value Added Tax Act 89 of 1991 (as amended).
Unless a contrary intention clearly appears:
2.1. 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;
2.2. words importing:
2.2.1. any one gender include the other two genders;
2.2.2. the singular include the plural and vice versa; and
2.2.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;
2.3. any reference to an enactment is to that enactment as at the Signature Date and as amended or re‑enacted from time to time and includes any subordinate legislation made from time to time under such enactment. Any reference to a particular section in an enactment is to that section as at the Signature Date, and as amended or re‑enacted from time to time and/or an equivalent measure in an enactment, provided that if as a result of such amendment or re‑enactment, the specific requirements of a section referred to in this Agreement are changed, the relevant provision of this Agreement shall be read also as if it had been amended as necessary, without the necessity for an actual amendment;
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 clause 1, effect shall be given to it as if it were a substantive provision in the body of the 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 non-Business Day, in which case the last day shall be the next succeeding Business Day;
2.6. if the due date for performance of any obligation in terms of this Agreement is a day which is a non-Business Day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding Business Day;
2.7. if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
2.8. expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;
2.9. annexures and schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the annexures and schedules;
2.10. reference to day/s, month/s or year/s shall be construed as Gregorian calendar day/s, month/s or year/s;
2.11. the use of any expression in this Agreement covering a process available under South African law such as a winding‑up (without limitation eiusdem generis) shall, if any of the Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
2.12. if 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 clause 1;
2.13. 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;
2.14. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply to this Agreement;
2.15. prior drafts of this Agreement shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the Signature Date;
2.16. any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be.
2.17. the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s;
2.18. any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;
2.19. the words "other" and "otherwise" shall not be construed eiusdem generis with any preceding words if a wider construction is possible;
2.20. terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry specific practice, will be interpreted in accordance with their generally accepted meanings;
defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
2.21. no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement;
the words "clause" or "clauses" and "annexure" or "annexures" refer to clauses of and annexures to this Agreement;
2.22. any reference in this Agreement to:
2.22.1. "business hours" shall be construed as being the hours between 08h00 and 16h30 on any Business Day. Any reference to time shall be based upon Central Africa Time (CAT);
"days" shall be construed as calendar days unless qualified by the word "Business";
2.22.2. "laws" means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any governmental body; and the common law, and "law" shall have a similar meaning;
"person" means any natural person, company, close corporation, trust, partnership, joint venture, association, unincorporated association, governmental body, or other entity whether or not having separate legal personality; and
2.22.3. "tax" means all income tax, capital gains tax, secondary tax on companies (or any similar tax replacing or substituting it), dividend tax, VAT, stamp duty, securities transfer tax, uncertificated securities tax, PAYE, levies, assessments, imposts, deductions, charges and withholdings whatsoever in terms of any tax legislation, and includes all penalties and interest payable as a consequence of any failure or delay in paying any taxes.
3. APPOINTMENT TO PROVIDE SERVICES
The Customer hereby appoints XRA to provide the Services and XRA agrees to provide the Services to the Customer on the terms and conditions contained in this Agreement.
4.1. XRA agrees to provide the Services to the Customer during the Contract Period.
4.2. In providing the Services, XRA shall:
4.2.1. provide persons to render the Services as requested and/or approved by the Customer and/or as set out in Annexure “A”;
4.2.2. ensure that the persons who are utilised in providing the Services maintain the currency of their technical knowledge required to render the Services;
4.2.3. conduct itself in a professional manner and perform the Services with due and proper care and in accordance with applicable professional standards.
5. OBLIGATIONS OF THE CUSTOMER
The Customer shall:
5.1. in a timeous and complete manner, and otherwise in accordance with the requirements of XRA, provide XRA with:
5.1.1.
such information, documentation and assistance reasonably required by
XRA
(in order to perform the Services);
reasonable access to staff, management, premises, equipment and infrastructure as may be reasonably required (in order to perform the Services);
5.1.2. with access to electricity, work space, ablution facilities, internet access, testing data and environments, tools and equipment (and other amenities reasonably necessary to carry out the Services);
5.2. not by itself or with others, participate in any unlawful, deceptive, misleading or unethical practices, including but not limited to disparagement of XRA, its employees and/or clients, or any other practices which may be detrimental to XRA and/or its business;
except to the extent expressly authorised by the XRA, the Customer shall not remove, delete or in any manner alter any of the XRA’s trademarks or any other Intellectual Property Rights which appears on any documents, products, solutions and/or any other material delivered, produced and/or utilised in performing the Services;
5.3. not engage in any conduct which is calculated to or has or may have the effect of bringing XRA or any of its clients into disrepute.
6. NATURE OF XRA’S ENGAGEMENT
The Parties agree that XRA shall provide the Services to the Customer as an independent contractor and not as an agent, employee or partner of the Customer. Nothing in this Agreement or in the conduct of the Parties in relation to this Agreement or in giving of effect to the provisions of this Agreement shall be deemed or construed as creating a relationship of principal and agent, employment, partnership or joint venture between them.
7. SERVICE FEE AND EXPENSES
7.2. XRA shall provide the Customer with an invoice or similar document specifying the amount due to XRA for a calendar month. The Customer shall pay XRA on presentation of the invoice, or as otherwise approved by XRA in writing.
8. INTELLECTUAL PROPERTY RIGHTS
In order to give effect to clause 8.1, the Customer hereby:
8.1.1.
assigns and undertakes to assign and/or to procure the assignment to XRA,
with effect from the Commencement Date, the full right, title and interest in
and to the Intellectual Property Rights in and to the Materials and the Works,
wherever in the world enforceable, for the full term of any such rights,
including all renewals and extensions, free from any encumbrance;
irrevocably undertakes to procure the execution of all documents and the performance of all reasonable actions necessary to give effect to the terms of this clause 8. Without limitation to the foregoing, XRA shall have the exclusive right to reproduce and to authorise reproduction of the copies of any Materials and the Works wholly or in part absolutely.
8.2. Notwithstanding anything to the contrary contained in this Agreement, XRA shall not be required to transfer the Materials (including customised code and modifications) and/or Works (or any portion thereof) unless and until all Fees have been paid in full.
XRA shall not be liable for any act or omission on the part of the Customer (including its directors, employees, representatives, operators and agents) in the provision of the Services under this Agreement (whether negligent or otherwise) which causes injury, loss or damage howsoever arising to any employee of XRA and/or any third party (whether direct, indirect or consequential) and the Customer hereby indemnifies XRA in respect thereof.
10. PUBLICITY
No Party shall publish to any third party the fact of or any information concerning the conclusion of this Agreement, the reasons therefor or the terms hereof without the prior written consent of the other Parties, save that:
10.1. any information which is required to be furnished by law or by any stock exchange on which the shares of any Party to this Agreement are listed may be so furnished;
10.2. any Party shall be entitled (after consultation with the other Parties so as to avoid embarrassment or prejudice to the extent possible) to make such information available to its shareholders as may be necessary to enable such shareholders to consider the value and prospects of their shareholdings;
10.3. no Party shall be precluded from divulging any information to any person who is negotiating with such Party for the acquisition of an interest in such Party, provided that the person to whom any disclosure is made in the aforesaid circumstances shall first have undertaken in writing not to divulge such information to any other person and to use it only for the purpose of evaluating the business;
10.4. no Party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it.
11. NOTICES AND DOMICILE
Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing but it shall be competent to give notice by fax or e-mail.
11.2. Any notice to a Party:
11.2.1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the Business Day of delivery; or
sent by e-mail to its chosen e-mail address stipulated in clause 11.1, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
11.3. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
12.1. to claim immediate specific performance of all or any of the Defaulting Party's obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party's obligations; or
12.2. to cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. No Party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if:
12.2.1. it is capable of being remedied, but is not so remedied within the Notice Period; or
12.2.2. it is incapable of being remedied and payment in money will compensate for such breach, but such payment is not made within the Notice Period.
13.1. In the event of any dispute in relation to any matter pertaining to, or arising out of or in connection with, this Agreement its breach or termination, then any Party may give written notice to the other Parties referring the dispute to arbitration for final determination in accordance with the provisions of this clause 13 (“Arbitration Notice”).
The arbitration shall be:
13.1.1. held at Durban, South Africa;
conducted in the English language;
13.1.2. held before a single arbitrator;
subject to the provisions of this clause 13, conducted in accordance with the AFSA Rules; and
13.1.3. held as soon as is reasonably practicable in the circumstances and with a view to it being completed within 20 (twenty) Business Days of the date of the Arbitration Notice.
13.2. The arbitrator shall be agreed upon between the Parties; provided that should the Parties fail to agree on an arbitrator within 5 (five) Business Days of the date of the Arbitration Notice, the arbitrator shall, at the written request of any Party, be appointed in terms of the AFSA Rules.
The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than one Party is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
13.3. Subject to each Party’s rights of appeal in accordance with the AFSA Rules, the Parties hereby irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any court of competent jurisdiction.
The provisions of this clause 13:
13.3.1. constitute irrevocable consent by the Parties to any proceedings in terms of this clause 13 and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
are severable from the rest of this Agreement and shall remain in effect despite the termination, or invalidity for any reason, of this Agreement; and
13.3.2. shall not preclude any Party from obtaining interim relief on an urgent basis from any court of competent jurisdiction pending the decision of the arbitrator.
Notwithstanding the conflict of law principles which might otherwise have governed this Agreement shall be governed by and interpreted in accordance with the substantive laws of the Republic of South Africa.
15.1. The Parties agree that any legal action or proceedings arising out of or in connection with this Agreement shall be brought in the KwaZulu-Natal High Court - Durban (or any successor to that court) and irrevocably submit to the exclusive jurisdiction of such court.
The Parties irrevocably waive any objection they may now or hereafter have that such action or proceeding has been brought in an inconvenient forum.
16.1. This Agreement shall be executed in English.
The Parties reciprocally undertake to communicate in English.
16.2. All formal notices in terms of this Agreement shall be communicated in English.
17.1. The Parties warrant to each other that they have taken or caused to be taken all steps, actions and corporate proceedings necessary to cause this Agreement to be binding on themselves. Any Party shall, if requested by any other Party, furnish to the latter sufficient evidence of the authority of the person or persons who shall, on behalf of the Party so requested, take any action or execute any documents required or permitted to be taken or executed by such person under this Agreement.
Each of the Parties hereby warrants to and in favour of the other that :
17.1.1. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
this Agreement constitutes an Agreement valid and binding on it and enforceable against it in accordance with its terms;
17.1.2. it is fully aware of and acquainted with the provisions of this Agreement and the meaning and effect of all of such provisions;
the execution of this Agreement and the performance of its obligations hereunder does not and shall not:
17.1.2.1. contravene any law or regulation to which that Party is subject; or
contravene any provision of that Party's founding documents; or
17.1.2.2. conflict with, or constitute a breach of any of the provisions of any other Agreement, obligation, restriction or undertaking which is binding on it.
17.2. Each of the representations and warranties given by the Parties in terms of clause 17.2, shall:
17.2.1. be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
17.2.2. prima facie be deemed to be material and to be a material representation inducing the other Parties to enter into this Agreement.
18.1. XRA shall be entitled to cede any of its rights in terms of this Agreement without the prior written consent of the Customer.
The Customer shall not be entitled to cede and delegate respectively its rights and obligations under this Agreement to any third Party.
18.2. This clause shall be binding on the business rescue practitioner/liquidator/judicial manager/trustee (whether provisional or not) of any Party.
19. WHOLE AGREEMENT, NO AMENDMENT
19.1. This Agreement constitutes the whole Agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or Agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any Agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
19.2. No oral pactum de non petendo shall be of any force or effect.
No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Agreement.
19.3. To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
Each of the Parties hereto acknowledges that it has been free to secure independent legal and/or other advice as to the nature and effect of all of the provisions of this Agreement and that it has either taken such independent legal and/or other advice or dispensed with the necessity of doing so.
21.1. AGREEMENT BINDING ON SUCCESSORS IN TITLE
This Agreement shall be binding on the administrators, executors, heirs, business rescue practitioners, judicial managers and other successors-in-title of the Parties, who shall not be entitled to terminate this Agreement merely by reason of the death of a Party. Every Party indemnifies the others against any loss or damage of any nature whatsoever which the others may sustain if this Agreement is not binding for any reason on the former's administrators, executors, heirs, judicial managers and/or other successors-in-title.
Nothing contained in this Agreement shall be construed as relieving any Party from any duty of disclosure which XRA may have at common law or the consequences of any non-disclosure in breach of such duty.
21.3. NO REMEDY EXCLUSIVE
No remedy granted by this Agreement shall exclude any other remedy available at law.
21.4. SEVERABILITY
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated 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
21.5. USE OF THE NAME OF THE OTHER PARTY
No Party to this Agreement shall use the name of any other Party to this Agreement in any advertising or for the purposes of promoting the former’s business or products.
21.6. EXCLUSION OF ELECTRONIC SIGNATURE
The reference in this Agreement to “writing” shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.
21.7. CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS
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.
22.1. Each Party shall bear its own costs of and incidental to the preparation of this Agreement (including prior drafts and consultations) shall be borne by the Parties in equal shares.
Any Party shall be liable for all costs incurred by any other Party in the recovery of any moneys hereunder (including collection charges and attorney and own client costs) whether incurred prior to or during the institution of legal proceedings, including any appeals, or if judgment has been granted, in connection with the satisfaction or enforcement of any such judgment.
23. SIGNATURE
23.1. This Agreement is signed by the Parties on the dates and at the places indicated below.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
23.2. The persons signing this Agreement in a representative capacity warrant their authority to do so.
The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.