SCOTCH SOFTWARE PROPRIETARY LIMITED
INTERPRETATION AND PRELIMINARYThe headings of the clauses in this Agreement are for the purpose of convenience only and shall not be used in the interpretation of, nor modify nor amplify the terms of this Agreement, nor any clause of this Agreement. Unless a contrary intention clearly appears:
- words importing:
- any gender includes all others;
- the singular include the plural and vice versa; and
- natural persons include created entities (corporate or unincorporated) and the state and vice versa;
- the following terms have the meanings assigned to them in this clause 1.2 and cognate expressions shall have corresponding meanings, namely:
- "Additional Services" means those services in addition to the Services, as recorded and agreed to by the Parties under clauses 6.1-6.2;
- "Additional Term" has the meaning ascribed to it in clause 2.1;
- "Afﬁliate" means (with respect to any company, close corporation, trust or individual) any other company, close corporation, trust or individual which is related or controlled by or controls the ﬁrst mentioned company, close corporation, trust or individual as described by section 2 of the Companies Act 71 of 2008;
- "Agreement" means this agreement, including all annexures, schedules, terms & conditions and summary of key terms included in this agreement;
- "Authorised User" means those individuals who are nominated and authorised by the Client to use the Services and the Documentation, in accordance with this Agreement;
- "Business Day" means any day excluding Saturday, Sunday and a public holiday in South Africa;
- "Company" means Scotch Software Proprietary Limited, (Company Registration No. 2019/080199/07) whose physical address is 152 Witch-Hazel Avenue, Highveld Technopark, Centurion, Gauteng, 0157; email: firstname.lastname@example.org;
- "Client" means the company speciﬁed under Key Terms as Client ;
- "Company IP" means all Intellectual Property owned by the Company as at the Signature Date, including all Intellectual Property in the Services and the related software as at the Signature Date and thereafter;
- "Conﬁdential Information" means the terms and conditions of this Agreement, and any other information disclosed by one Party to the other, including, but not limited to, information regarding each Party's products, services, product designs, prices and costs, trade secrets, know how, inventions, Intellectual Property, development plans, techniques, processes, programs, schematics, software, data, customer lists, ﬁnancial information, sales and marketing plans, business opportunities, personnel data, research and development activities, pre-release products and any other information which the receiving Party ("Receiving Party") knows or reasonably ought to know is conﬁdential, proprietary or trade secret information of the disclosing Party ("Disclosing Party"). This deﬁnition also includes any information disclosed by or to any Afﬁliate concerning the Purpose;
- "CPI" means the consumer price index for all South African urban areas published by Statistics South Africa from time to time or if the calculation of such index has ceased, the most similar index, as compiled and published by Statistics South Africa or any statutory body authorised in its stead, in terms of the Statistics Act, 66 of 1976 or any statute replacing such Act, to compile and publish national statistics;
- "Customers" means the customers of the Client;
- "Data" means any data or information inputted by the Client or an Authorised User on the Hardware for the purpose of using the Services and may include, without limitation, Personal Information;
- "Debit Order Mandate" means the debit order mandate concluded by the Client authorising the Company to collect the Fees from the Customer via debit order and attached hereto as Annexure A;
- "Fees" means the fees paid by the Client to the Company in terms of this Agreement, as are set out in clause 8 and Schedule 1 to this Agreement, where applicable;
- "Hardware" means any ﬁxed or mobile device able to provide 'Point of Sale' services and any related payment offerings, as is recognised and pre-authorised by the Company as capable of integrating with the Services;
- "Cancellation Fee" means the cancellation fee referred to in Schedule 1 to this Agreement;
- "Improvements" means any adaptation, change, development, improvement, enhancement or modiﬁcation to any aspect of Intellectual Property residing therein created on or after the Signature Date;
- "Intellectual Property" means (without limitation) any know-how, methodologies, patents, copyright, (including all copyright in any designs and computer programs), registered design, trade mark, service marks, designs, design rights, Source Codes, inventions and trade secrets, and other intellectual property rights and rights of a similar character whether registered or capable of registration and all applications and rights to apply for the protection of any of the same anywhere in the world or other industrial or intellectual property rights, whether registered or not and
whether or not capable of being registered, and any application for any of the aforementioned;
- "Licence" means the licence to use the Services, as further elaborated on in clause 4.1;
- "Parties" means the parties to this Agreement;
- "Penalty Fee" has the meaning set out in clause 9.2.4;
- "Personal Information" shall have the meaning ascribed to it under clause 16.1.4;
- "Prime Rate" means the rate of interest per annum, compounded monthly in arrears, at which the Company’s bankers will lend from time to time to the Company on overdraft. Such rate of interest shall be ascertained, for the purpose of this Agreement without any further necessity of proof by a certiﬁcate issued by any branch manager of the Company’s bankers (whose appointment it shall not be necessary to prove);
- "POPIA" means the Protection of Personal Information Act 4 of 2013, as amended from time to time, including any regulations and/or code of conduct made under the Act;
- "Purpose" means the execution of this Agreement, as well as the implementation of this Agreement prior to and after the Signature Date;
- "Services" means the software application known as 'Scotch Software', accessible on the Hardware and which serves as a platform allowing Authorised Users to access Scotch and Third Party Services;
- "Signature Date" means the date on which the Party that is last to sign this Agreement, does so;
- "Source Code" means the source code of the software on which the Services are based, in the language in which the software to which it relates was written, together with all related notes, ﬂow charts and technical documentation
- "Statement of Work" means any additional document agreed to and signed by the Parties, which shall incorporate the terms of this Agreement;
- "Subscriptions" means the subscriptions, as purchased by the Client pursuant to clause 4.1 of the Agreement, which shall be limited to a maximum of 1 License per Hardware device and, in terms of which, multiple Authorised Users will be allowed to access and use the Services and the Documentation in accordance with the Agreement. For the sake of clarity, each Hardware device will require its own License and, furthermore, Licenses cannot be shared between Hardware devices, but multiple Authorised Users are allowed per Hardware device.
- "Support Services" means support and maintenance services rendered in respect of the Services and fulﬁlled as set out and agreed to in
- "Tax" means all taxes, charges, duties, levies, deductions, withholdings or fees of any kind whatsoever, or any amount payable arising out of the foregoing, imposed, levied, collected, withheld or assessed by a governmental authority, together with any penalties, ﬁnes or interest relating thereto;
- "Tax Invoice" means the document as required by Section 20 of the Value-Added Tax Act, 89 of 1997, as may be amended from time to time; and
- "Term" has the meaning ascribed to it in clause 2.1;
- "Third Party Services" has the meaning ascribed to it in clause 7;
- "Warranty" or "Warranties" means those warranties (or any one of them) as described or referred to in clause 14;
- reference to any legislation is to that legislation 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 legislation. Any reference to a particular section in any legislation 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 any legislation, provided that if as a result of such amendment, 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;
- 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;
- when any number of days is prescribed in this Agreement, the method for calculation shall be to exclude the ﬁrst day and include the last day, unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next succeeding Business Day;
- if ﬁgures are referred to in numerals and in words and if there is any conﬂict between the two, the words shall prevail;
- 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;
- 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 the term has not been deﬁned in this interpretation clause;
- the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement that expressly provide 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;
- 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;
- 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;
- the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word(s); and
- 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 COMMENCEMENT AND DURATION
- This Agreement shall commence on the Signature Date and will be for the period and subject to the termination rights set out in Schedule 1.
- In addition to any other rights to terminate or cancel in terms of this Agreement either Party may terminate this Agreement immediately by giving written notice of termination upon the happening of any one or more of the following events:
if either Party:
- has failed to pay any fees due, which includes the Fees due in terms of this Agreement and such payments are outstanding for more than 60 (sixty) calendar days from the due date;
- takes any steps in contemplation of being placed under provisional or ﬁnal liquidation;
- attempts a compromise without remedy or composition without remedy with its creditors;
- passes a resolution for its voluntary winding-up;
- has any of its property, movable or immovable, attached in execution or by any process of any court;
- makes default without remedy or threatens to make default in the payment of liabilities generally; or
- commits any act or omission which is an act of insolvency in terms of the Insolvency Act, No. 34 of 1936.
3 EFFECT OF TERMINATION
- Upon termination of this Agreement for any reason:
- all amounts outstanding to either Party shall become immediately due and payable, without demand or further notice of any kind, all of which are expressly waived by the Parties;
- both Parties shall immediately delete all electronic copies and destroy all hard copies of all Conﬁdential Information or any Documentation;
- all access by the Client to the Services and Documentation will be revoked and/or suspended with immediate effect; and
- the Company will with immediate effect stop rendering the Services, any Support Services and/or any Additional Services to the Client.
- The termination or expiration of this Agreement shall not affect any liabilities or obligations, including, without limitation, payment and indemniﬁcation obligations, which arose pursuant to the terms of this Agreement prior to the Termination Date.
4 SUBSCRIPTIONS AND LICENSES
- Subject to the Client purchasing and maintaining the Subscription, in accordance with the terms and conditions of this Agreement, the Company hereby grants to the Client a non-exclusive, non-transferable and non-sublicensable licence and right for multiple Authorised Users to use the Services and the Documentation on the Hardware for the duration of this Agreement ("Licence").
- The Client undertakes that:
- the maximum number of Subscriptions shall not exceed the number purchased from time to time in terms of the Agreement;
- each Authorised User shall keep a secure password for his/her use of the Services and Documentation;
- it will not allow any License to be used on more than one Hardware device, it being understood that a Subscription is equal to 1 (one) Licence per Hardware Device;
- it shall maintain a written, up to date list of current Authorised Users and Subscriptions and provide such list to the Company within 5 (ﬁve) Business Days of the Supplier’s written request at any time;
- it shall permit the Company to audit the Services in order to establish the name and password of each Authorised User, the number of Authorised Users, hardware Devices and the number of Subscriptions used by the Client, which audit may be conducted no more than once per quarter, at the Company's expense, upon reasonable notice to the Client, which shall not be less than 3 (three) Business Days and, in terms of which:
- if an audit reveals that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Company's other rights, the Company shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual; and/or
- if any of the audits referred to in clause 4.2.5 reveal that the Client has underpaid Fees due to the Company as it relates to the number of Subscriptions allowed, the Client shall pay to the Company an amount equal to such underpayment within 7 (seven) Business Days of the date of the relevant audit, and
- if the circumstances in terms of clauses 4.2.6 or 4.2.7 are in the afﬁrmative, the Client shall be responsible to reimburse the Company for any expenses incurred for the audit.
- The Client may, from time to time, purchase additional Subscriptions at the fee set out in Schedule 1 (or as adjusted and communicated to The Client in writing) by notifying the Company in writing of the number of additional Subscriptions it wishes to purchase and subject to the further terms as set out in section 4.4 of the Agreement.
- In the event that the Client requires additional Subscriptions, the Company shall grant access in accordance with the provisions of this Agreement, in the following manner:
- the Client shall request such additional Subscriptions in writing;
- the Company shall have the right to evaluate such request for additional Subscriptions and respond to the Customer with either the approval or disapproval of the request, such approval not to be unreasonably withheld;
- upon approval by the Company of a request for additional Subscriptions, the Company shall have the right to update the debit order details to
reﬂect the additional Subscriptions for the remainder of the Term or then current Additional Term (as applicable). Should the Client wish to purchase such additional Subscriptions part way through the month of any Term or Additional Term (as applicable) and the Company cannot include such additional fees in the next debit order, the Company shall provide a Tax Invoice to the Client for such fees for the additional Subscriptions, which shall be pro-rated for the particular month and which shall be paid by the Client within 2 (two) Business Days of receipt of such Tax Invoice.
- The Company shall, during the Term and against payment of the Implementation Fee (if applicable), make the Services available to the Authorised Users in accordance with the terms of this Agreement. The Company shall, furthermore, make available the Documentation to the Client on and subject to the terms of this Agreement.
- In support of the Services, the Company and authorised third party service providers shall provide the Support Services, in accordance with the terms of this Agreement, the details of which, type of Support Services and the service levels attached thereto, are set out and agreed to in Schedule 2.
- The Services are provided as is and no additional or bespoke functionality is available to the Client, unless provided for as an Additional Service or if agreed to by the Company in writing and which shall be subject to the Company's prevailing fees.
- Scheduled maintenance of the Services is necessary to ensure optimal performance thereof and may require the interruption of Services. The Company shall use commercially reasonable endeavours to make the Services available continuously, except for:
- scheduled maintenance, in terms of which, the Company will provide the Client with 36 (thirty-six) hours' notice of any such scheduled maintenance, during which the Services will not be available, and will endeavor to carry out maintenance to the Services between the hours of 22:00 and 07:00;
- unscheduled maintenance performed, not exceeding 10 (ten) hours per month;
- Force Majeure Events in accordance with clause 17; and
- problems caused by the Client or an Authorised User using the Services in a manner that contravenes the terms of this Agreement or the Documentation or renders the Services unavailable.
- Notwithstanding clause 5.4, the Company:
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities; and
- does not warrant, represent or undertake that the Client or an Authorised User's use of the Service will be uninterrupted or error-free.
6 ADDITIONAL SERVICES
- The Company may offer Additional Services, as shall be communicated to the Client from time to time, for purchase by the Client at any time during the Term or any Additional Term (as applicable);
- The Client may, during the term of this Agreement, purchase such Additional Services from the Company at the prevailing rates set by the Company, by means of the Parties both executing a Statement of Work, which shall be regulated in accordance with the provisions of this Agreement.
7 THIRD PARTY SERVICES
- The Client acknowledges that the Services act as a platform and serves to enable or assist the Client and its Authorised Users to access content or correspond with software and services provided by third parties ("Third Party Services").
The Services offered amounts primarily to a platform for very speciﬁc Third Party Services to operate on. In particular, the Third Party Services supported includes (without limitation):
- integrated 'Point of Sale' software;
- 'Payment Switch' capability;
- Connection services including but not limited to 3G, 4G, etc; and
- 'Value Add Services' including, but not limited to, purchase of airtime, prepaid electricity and further utilities.
- Based on the acknowledgements in clause 7.1:
- the Client acknowledges further that it and its Authorised Users utilise Third Party Services solely at its own risk and that the Company has no control over such Third Party Services, does not guarantee that it will comply with the Client's requirements, nor has control over such Third Party Services;
- the Company shall have no liability or obligation whatsoever in relation to Third Party Services, or to any transactions completed and/or any contract entered into by the Client relating to such Third Party Services; and
- the Company does not endorse or approve any Third Party Services, and in terms of the aforementioned, the Client shall not be liable for, and the Client hereby indemniﬁes the Company from, any claim, cost, damage or injury that may arise from the use of such Third Party Services utilised as part of the Services.
- The Client acknowledges that the Services are intended to be utilised together with speciﬁc Hardware, as is set out in this Agreement and the Documentation.
- Based on the acknowledgements in clause 8.1:
- the Client undertakes to use the correct Hardware, as speciﬁed;
- the Client will maintain its Hardware and keep it updated in order for the Services to function correctly;
- the Client and Authorised Users shall not modify, alter, add or utilise the Hardware in any manner contrary to the instructions of the third party provider or as is set out in this Agreement or the Documentation;
- the Client and Authorised Users shall not use any other hardware, other than the Hardware or load any other software onto the Hardware, other than is speciﬁcally identiﬁed herein or in any Documentation or with the prior written consent of the Company;
- the Client and Authorised Users shall at all times ensure that the Hardware is sufﬁciently charged and in a working condition, free of any defects and replaced if necessary; and
- the Client understands that the Company is not the provider of the Hardware and is not responsible for any problem or error of any Hardware, in terms of which the Company's assistance will be limited, and in terms of the aforementioned, the Client shall not be liable for, and the Client hereby indemniﬁes the Company from, any claim, cost, damage or injury that may arise from the use of such Hardware.
- Fees. The Client undertakes to pay the Fees, as set out in Schedule 1 to use the Services and applicable Support Services, and in the manner and frequency as is set out in this Agreement and the relevant Annexures.
Debit Order. The Client authorises for the payment of Fees to be collected in advance, via debit order, on the 1st (ﬁrst) day of each month, from the Client's bank account in terms of the Debit Order Mandate as agreed to and attached as Schedule 3, and in terms of which:
- the debit order is due timeously on the agreed debit order date, free of deduction or set-off to the Company;
- the Client will be in breach of this Agreement by cancelling the debit order without the prior written consent of the Company;
- the Client warrants that the signatory to the Debit Order Mandate is duly authorised;
- should a debit order fail, be returned unpaid, stopped or rejected, the Client shall be liable to pay a penalty fee of R10.00 (ten Rand) per Subscription ("Penalty Fee") per week, to be collected in the manner set out in clause 9.2.5 and, in addition, the Company shall be entitled to disconnect Authorised Users' access to the Services; and
- in the event of any debit order being returned unpaid, stopped or rejected ("First Payment Failure"), the debit order will be resubmitted to the Client's bank in the following payment run, which will result in two Fee payments and the Penalty Fee being collected in the following month, unless instructed otherwise by the Client. If a debit order for Fees is declined for a second time, resulting in any two Fee payments failing during the duration of this Agreement, this Agreement may be cancelled by the Company in terms of clause 2.2.1 and Scotch will be allowed to switch off the Services upon the Client's First Payment Failure until payment is received.
- Tax Invoice. Where applicable, the Company will issue a Tax Invoice to the Client for the payment of any fees agreed to in terms of this Agreement, such invoice to be issued in arrears and payment to be made within 14 (fourteen) Business Days of issue.
- Expenses. The Client shall be liable to the Company for any expenses reasonably incurred by the Company in the course of providing the Services or Support Services and shall be payable by the Client, to be included in a Tax Invoice, where applicable.
- Escalation. The Fees shall escalate from time to time as notiﬁed by the Company to the Client on 90 (ninety) calendar days prior written notice, which escalation shall not be less than the CPI for the preceding year.
- Taxes. All Fees provided for under this Agreement shall be exclusive of VAT, unless expressly stated otherwise, and the Client shall be liable to the Company for VAT and any other taxes applicable to the Fees, which shall be added to the debit order as per the Debit Order Mandate.
- General. All payments to be made by the Client to the Company in terms of this Agreement shall be made into the Company's bank account, the details of which will be provided by the Company in writing, from time to time.
10 CLIENT OBLIGATIONS
- The Client agrees, undertakes and where necessary, to procure compliance with the below, namely that:
- it and all Authorised Users use the Services for the intended purpose as set out in this Agreement and the Documentation and not for any other purpose;
- it shall take commercially reasonable steps to prevent unauthorised access to the Services and Documentation and to revoke access thereto by any persons no longer employed or authorised to utilise the Services and Documentation by the Client as an Authorised User;
- in the event of any unauthorised access or use contemplated in clause 10.1.1, the Client shall promptly notify the Company thereof;
- Authorised Users shall keep their login credentials secret and secure;
- Authorised Users shall comply with the terms of this Agreement applicable to them and the Documentation;
- the Client and Authorised Users comply with all applicable laws and regulations while using the Services and with respect to its activities performed under this Agreement;
- any Data submitted to the Service by the Client or an Authorised User shall be in compliance with applicable laws, including but not limited to POPIA;
- the Client is responsible for the backing up of any Data;
- the Client and Authorised Users utilise the Hardware and Services in the manner provided in clauses 8.2.1 to 8.2.6;
- the Client and Authorised Users refrain from any attempt or engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the Services infrastructure;
- the Client maintains its infrastructure, network connections and telecommunications links and provides sufﬁcient connectivity speed and range, so as to ensure continued access to the Services and Support Services, it being understood that the correct functioning, syncing and performance of the Services and Support Services are dependent on a constant and stable network connection;
- as it relates to the proper use of the Services and Hardware, that the Client ensures that all Authorised Users have adequate access and knowledge of the Documentation and adequate internal policies based on the Documentation and this Agreement, and are enforced to ensure the proper functioning thereof, which includes, without limitation, adequate diagnostics, anti-virus protection, proper use by Authorised Users and that such Authorised Users provide adequate assurances that, without limitation, Hardware is not used for purposes and services other than the Services or which may jeopardise the effective and efﬁcient utilisation of the Hardware;
- all Authorised Users and management of the Client are properly trained in using the Services and Hardware;
- where the Services or Hardware's proper functioning is dependent on any third party fees, such as (without limitation) those of a bank, payment gateway provider or payment aggregator, that such fees are paid on time;
- The Client hereby expressly agrees that the Company shall be entitled to attribute any actions of Authorised Users to the Client.
- Where the Company renders any Services, Support Services and/or Additional Services at the Client’s premises, the Client will ensure that the Company has timely access to appropriate Client personnel and will arrange for the Company personnel to have suitable and safe access to the Client’s facilities and systems. The Client undertakes to provide such reasonable working space and resources as may be necessary for the Company to render the aforementioned services.
- As it pertains to the Services and/or Documentation (as applicable) and the underlying software thereof, the Client undertakes not to, or attempt to:
- modify copy, duplicate, create derivative works from, mirror, frame, re-publish, download, display, transmit, or distribute all or any portion thereof in any form or media or by any means;
- modify, alter, or circumvent any security or protection mechanisms;
- remove, obscure or alter any proprietary reference to the Company, which includes a copyright notices or any name, trade mark, tagline, hyperlink or other designation; or
- not decompile, disassemble, reverse compile, reverse assemble or reverse engineer the from object code into Source Code or other human readable format (or attempt to authorise or permit the same) in any manner or for any purpose whatsoever.
11 COMPANY OBLIGATIONS
The Company shall discharge its obligations pursuant to this Agreement with all due skill, care and diligence and:
- ensure that the Services function as is intended and provided in this Agreement and the Documentation; and
- provide the Support Services as set out in and subject to Schedule 2.
- The Client shall, subject to clause 16.13, own all rights, title and interest in and to all of the Client's Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality thereof.
- Furthermore, the Client is responsible to back-up the Data and, in the event of any loss or damage to Data, the Client may request the assistance of the Company to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by the Company. For the avoidance of doubt, the Company has no obligation to either back-up or restore such Data, unless provided for otherwise in this Agreement and the Client hereby waives any claim it may have against the Company for a failure to either back-up or restore such Data.
13 INTELLECTUAL PROPERTY
- The right, title and interest in and to the Company IP, Services, Support Services, Additional Services and the Documentation, as well as any Improvements thereto, howsoever created by either Party and whether by the instruction or request, with or without compensation by the Client, or otherwise, is and shall remain exclusively vested in and owned by the Company. To the extent necessary, the Client hereby assigns any rights, title and interest necessary to give effect to the aforementioned and shall provide its reasonable assistance to enable the Company to establish, prove and/or assert such rights, title and interest.
- If called upon to do so, the Client agrees to provide such reasonable assistance and to execute such documents as may be reasonably necessary to give effect to clause 13.1.
- The Client hereby undertakes and warrants not to use, disseminate or deal with the Intellectual Property of the Company, as referenced in clause 13.1, in any manner other than as is provided for in this Agreement. All rights in respect of the Company IP not expressly granted to the Client in terms of this Agreement shall remain reserved to the Company.
- In the event that any third party Intellectual Property is used in order to render and/or provide or in conjunction with the Services, the Support Services,
Additional Services, Hardware and/or the Documentation, the right, title and interest in and to such third party Intellectual Property shall remain vested in its respective owner. The Client acknowledges and agrees that the rights of usage of third party Intellectual Property referred to in this clause 13.4 shall be determined by the applicable licence granted by the third party in respect thereof and that it is the responsibility of the Client to acquaint itself with the terms of such licence.
- If the Client becomes aware of, or suspects any infringement, unauthorised or illegal use, reproduction, exploitation and/or exercise of the Services or the Company's Intellectual Property ("IP Breach"), the Client undertakes that it shall:
- immediately provide the Company with a written notice containing full details of such conduct;
- provide, upon request and at the cost of the Company, reasonable assistance and co-operation to the Company in pursuing measures, including legal proceedings, taken by the Company for protection against such conduct; and
- if the Client is responsible for the IP Breach, the Client shall be liable
- The Client or any person acting on behalf of the Client unconditionally and irrevocably warrants that:
- they have the legal authority, capacity and power to enter into and perform; and take all necessary actions in terms of corporate governance (including obtaining all authorisations, consents and resolutions from the board and shareholders of the Client) to authorise its conclusion and performance of its obligations as provided for in the Agreement;
- the obligations that the Client has agreed to as provided for in this Agreement are legal, valid and binding on the Client;
- the Client is solvent and liquid as described in section 4 of the Companies Act 71 of 2008, and is not ﬁnancially distressed (as deﬁned by that Act);
- the Client will discharge its obligations pursuant to this Agreement with all due skill, care and diligence;
- in carrying out the Client's obligations in terms of this Agreement, it will not cause any infringement, or infringe any right of privacy, or any rights of third persons; and
- it will at all times uphold the reputation, interests and goodwill of the Company and will not perform any act or fail to perform any act which may result in the Company's reputation, interests and goodwill being prejudiced.
- The Company warrants that it will discharge its obligations pursuant to this Agreement with all due skill, care and diligence.
- Other than is provided under clause 14.2, the Company makes no warranties to the Client of any nature whatsoever and, in particular does not warrant, represent or undertake that the Client's or Authorised Users' use of the Services will be uninterrupted or error-free and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the Hardware or any Third Party Services, or the transfer of data over communications networks and facilities.
- Each of the warranties given by the Parties in this clause 14 and further in this Agreement will be given at all material times and be deemed to be material, and to have induced the Parties to enter into this Agreement.
- The Receiving Party is obliged to treat all of the Conﬁdential Information as conﬁdential. In addition, the existence and terms of this Agreement shall not be disclosed by any Party to any third party without the consent of the other Party, except as may be required by law.
- The Receiving Party may use the Conﬁdential Information exclusively in relation to the Purpose.
- The Receiving Party shall only disclose Conﬁdential Information to its employees and contractors who (i) have a need to access such Conﬁdential Information solely for the Purpose, and (ii) have been advised of the obligations of conﬁdentiality and are under obligations of conﬁdentiality substantially similar to those set out in this Agreement.
- The Receiving Party shall have no obligation to retain as conﬁdential any information which (i) was legally in its possession or known to the Receiving Party without any obligation of conﬁdentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; or (iii) is legally obtained by the Receiving Party from a third Party source without any obligation of conﬁdentiality. Subject to that, the conﬁdentiality obligations of the Receiving Party shall be perpetual and will survive the termination or expiry of this Agreement.
- The Receiving Party may disclose Conﬁdential Information pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides the Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or obtain a protective order.
- This clause 15 shall remain in force and effect from the Signature Date and shall survive termination of this Agreement.
- Upon termination of this Agreement or as requested by the Disclosing Party, the Receiving Party shall immediately delete all electronic copies and destroy all hard copies of all Conﬁdential Information and provide the Disclosing Party with written conﬁrmation if requested, unless otherwise required by Applicable Laws.
16 DATA PROTECTION
In this Agreement, the terms below shall have the meanings as deﬁned in POPIA and cognate expressions shall have corresponding meanings:
- "Data Subject" means the person to whom Personal Information relates;
- "De-Identiﬁed" means in relation to personal information of a Data Subject, means to delete any information that:
- identiﬁes the Data Subject;
- can be used or manipulated by a reasonably foreseeable method to identify the Data Subject; or
- can be linked by a reasonably foreseeable method to other information that identiﬁes the Data Subject;
- "Operator" means a person who Processes Personal Information for a Responsible Party in terms of a contract or mandate, without coming under the direct authority of that party;
- "Personal Information" means information relating to an identiﬁable, living, natural person, and where it is applicable, an identiﬁable, existing juristic person, including, but not limited to:
- information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
- information relating to the education or the medical, ﬁnancial, criminal or employment history of the person;
- any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identiﬁer or other particular assignment to the person;
- the biometric information of the person;
- the personal opinions, views or preferences of the person;
- correspondence sent by the person that is implicitly or explicitly of a private or conﬁdential nature or further correspondence that would reveal the contents of the original correspondence;
- the views or opinions of another individual about the person; and
- the name of the person if it appears with other Personal Information relating to the person or if the disclosure of the name itself would reveal information about the person;
- "Processing" means any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including:
- the collection, receipt, recording, organisation, collation, storage, updating or modiﬁcation, retrieval, alteration, consultation or use;
- dissemination by means of transmission, distribution or making available in any other form; or
- merging, linking, as well as restriction, degradation, erasure or destruction of information,
- and "Process", "Processes" and "Processed" shall have the corresponding meanings;
- "Responsible Party" means a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for Processing Personal Information.
- The Parties acknowledge that as a result of the Services, or otherwise in their dealings, Personal Information (in various forms) of the Client, its personnel and Customers may be Processed by the Company.
- The Parties warrant that they have familiarised themselves with the requirements and provisions of POPIA and have implemented processes and measures to meet the compliance requirements to the extent applicable to that Party.
- The Company warrants that all of its staff members, agents and contractors that will have access to or will Process Personal Information in terms of this Agreement have been adequately trained on all requirements and obligations in terms of POPIA.
- For purposes of POPIA, the Company may be an Operator mandated by the Client (as Responsible Party) to Process Personal Information in terms of this Agreement and, if required, will reasonably comply with all requirements relating to Operators as prescribed by POPIA.
- The Company agrees that it will not obtain any rights to the Personal Information provided by the Client and agrees to Process the Personal Information received from the Client as a result of this Agreement in a manner that is adequate, relevant and not excessive for purposes of providing the Services.
- Unless otherwise instructed, the Company shall be generally authorised to engage further Operators or service providers to Process Personal Information as referred to in clause 16.2, subject to the Company:
- notifying the Client of any intended use of further Operators;
- including terms in its contract with each further Operators which are no less protective those set out in this Agreement; and
- remaining liable to the Client for any failure by each further Operator to fulﬁl its obligations in relation to the Processing of the Personal Information.
- The Company shall take reasonable steps to identify all reasonably foreseeable internal and external risks posed to the Personal Information under the Company's possession or control and establish and maintain appropriate safeguards against any risks identiﬁed.
- The Company implements reasonable appropriate technical and organisational measures to prevent loss of, damage to, unauthorised destruction of, or unauthorised access to Personal Information Processed by the Company in order to establish and maintain the security safeguards as required by POPIA.
- The Company shall notify the Client promptly and within 10 (ten) Business Days if it receives:
- any request or complaint received from a Data Subject (together with the full details of the request or complaint);
- where there are reasonable grounds to believe that the Personal Information received from and Processed on behalf of the Client has been accessed or acquired by any unauthorised person; and
- where there are reasonable grounds to believe that a security breach has occurred or that a security breach is anticipated by the Company (together with the full details of the breach or anticipated breach), any of its personnel, contractors or further Operators that could result in the unauthorised access to the Client's Personal Information by any unauthorised person.
- Unless otherwise instructed by the Client, the Company may transfer Personal Information to a foreign country if such transfer of Personal Information will comply with the applicable requirements of POPIA and/or other foreign applicable laws relating to such transfer. This includes but is not limited to the transfer of Personal Information to a foreign country for purposes of storing or archiving the Personal Information.
- Unless otherwise agreed or required by applicable laws and to the extent possible as determined by the Company, the Company shall permanently destroy, delete or return all Personal Information received from the Client as a result of this Agreement after a period of 1 (one) month from the date of termination of this Agreement or within a reasonable time after being requested by the Client during the term of the Agreement.
- In compliance with applicable laws, the Client acknowledges that the Company uses and may on-sell aggregated, De-Identiﬁed data, which includes information derived from Data (including Personal Information) inputted by Authorised Users utilising the Services, for the development of the Company's products and services generally (for example conducting benchmarking, market research, data analysis as well as utilising, developing the Services and on-selling any market related insight or deductions drawn from User Data, provided such data remains De-Identiﬁed). The Company shall not publish
externally or otherwise disclose the Client's Data, including but not limited to Personal Information which would identify an underlying Data Subject or the Client without the Client's or Data Subject's prior consent. The Company shall be a Responsible Party in respect of such Processing.
- The Client hereby indemniﬁes and holds the Company harmless against any claim by or liability arising out of the Company's performance of the Services and its other obligations in accordance with the terms of this Agreement and any instructions given to it by the Client from time to time, to the extent that such claims do not arise as a result of the Company's wilful and/or negligent acts or omissions.
- Save as otherwise speciﬁcally provided herein, should any dispute arise between the Parties concerning any matter relating to this Agreement, the dispute will be referred to the managing directors (or their delegates) of the Parties who will endeavour to reach agreement on the issue. Should the Parties fail to successfully resolve the dispute after following the aforementioned procedure within a period of 14 (fourteen) days after such a process has been requested by either of the Parties, the matter will be referred to arbitration as set out below.
- Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises regarding:
- the interpretation of;
- the carrying into effect of;
- either of the Parties' rights and obligations arising from;
- the termination or purported termination of or arising from the termination of; or
- the rectiﬁcation or proposed rectiﬁcation of,
this Agreement, or out of or pursuant to this Agreement (other than where an interdict is sought, or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration, provided the Parties have attempted to resolve a dispute in terms of clause 17.1 and failed to resolve such a dispute ﬁrst.
- A dispute exists once a Party notiﬁes the other Party of such dispute, in writing, and requires its resolution in terms of this clause 17. Any other point or dispute not included in the aforesaid notice shall not be precluded from forming a part of the dispute in the arbitration proceedings.
- The Parties must agree to an arbitrator and refer the matter to arbitration in terms of this clause 17 within 10 (ten) Business Days following the date of the notice contemplated in clause 17.3.
- The arbitration shall be held:
- with only the Parties and their representatives present;
- in Johannesburg.
- The arbitration shall be subject to the arbitration legislation for the time being in force in the Republic of South Africa and shall be run in accordance with the Commercial Rules for Arbitration as stipulated by the Arbitration Foundation of South Africa ("AFSA"). The Parties may agree, in writing, to have another set of rules apply to the arbitration if they so choose.
- The arbitrator shall be an impartial admitted attorney, advocate, or retired judge, whether practising or non-practising, of not less than 10 (ten) years standing appointed jointly by the Parties.
- Failing agreement on the appointment of an arbitrator by the Parties within 10 (ten) Business Days, as contemplated in clause 17.4, either Party shall be entitled to request that the Secretariat of AFSA nominates an arbitrator to arbitrate the dispute. Either Party must then appoint such nominee of the Secretariat of AFSA as the arbitrator of the dispute.
- If the Secretariat of AFSA fails or refuses to make the nomination within 20 (twenty) Business Days of having been requested to do so, either Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
- Once the arbitrator has been appointed, proceedings may immediately be commenced by either Party, subject to the requirements in terms of applicable law and/or the arbitration rules.
- The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator conﬁdential.
- The arbitrator shall be obliged to give his/her award in writing fully supported by reasons.
- The provisions of this clause 17 are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
- The arbitrator shall have the power to give default judgment if either Party fails to make submissions on the due date and/or fails to appear at the arbitration.
- The arbitrator's award shall be ﬁnal and binding on the Parties and incapable of appeal.
- The costs of any venue, arbitrator's remuneration, recording, transcription and other costs and expenses ancillary to the hearing shall be borne by the Parties in equal shares and shall be recoverable, as costs in the cause under the provisions of any award. The Parties, together with the arbitrator will agree from time to time on the arbitrator's remuneration, which will be paid by the Parties in equal shares, upon receipt of invoices.
18 FORCE MAJEURE
- A Party shall not be liable for any failure to perform any of its obligations under this Agreement insofar as such failure is as a result of (hereafter “Force Majeure Event”):
- an event beyond the reasonable control of the Party;
- which was not reasonably foreseeable at the time of conclusion of this Agreement; and
- that the Party could not have reasonably avoided or overcome the Force Majeure Event, or at least its effects.
- By way of example, a Force Majeure Event referred to in clause 18.1 shall include, without limitation, acts of nature, such as black-outs, load shedding, violent storms, earthquakes, ﬂoods or destruction by lightning, war, blockage, embargo, boycott, revolution, invasion, insurrection, riot, mob violence, sabotage, epidemic, accident, quarantine, strikes, lock-outs, occupation of premises and work stoppages, explosions, ﬁres, pandemics, destruction of machines, hardware or any kind of installation, or a Government order restricting a Party's ability to render economic activity.
- A relief seeking Party’s release from liability in terms of clause 18.1 shall commence upon such Party giving written notice of the Force Majeure Event being relied upon and shall terminate upon the Force Majeure Event ceasing to exist, unless the Agreement is terminated in terms of clause 18.4.
- If the suspension of performance due to a Force Majeure Event continues for more than 30 (thirty) days after notice in terms of clause 18.3, then the Parties undertake to negotiate with one another in good faith and to agree on a substantially similar agreement in writing, which agreement removes the Force Majeure Event, failing which, a Party may terminate the Agreement by written notice to the other Party.
If any Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so then the aggrieved Party shall be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, including obtaining an interdict, to cancel this Agreement or to claim speciﬁc performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party's right to claim damages.
20 LIMITATION OF LIABILITY
- The Company will not, under any circumstances, be liable to the Client, any Authorised User or any Customer for any costs, claims, damages, penalties, actions, judgements, suits, expenses, disbursements, ﬁnes or other amounts which the Client, any Authorised User or Customer may sustain or suffer (or may be threatened with) as a result of, whether directly or indirectly, any act or omission in the course of or in connection with the implementation of this Agreement or the Services, Support Services, Additional Services and/or Hardware, or in the course of the discharge or exercise by the Parties or their employees, agents, professional advisors, delegates or Authorised Users of their obligations or rights in terms of this Agreement or the Services, Support Services, Additional Services and/or Hardware, or the termination of this Agreement for any reason.
- Without derogating from the generality of clause 20.1, the Company shall not be held liable or responsible for the failure of the Services, Support Services or any Additional Services if such failure is as a result of:
- electricity, network or connectivity infrastructure failures; or
- failure of Hardware or Third Party Services.
- If any matter results in a valid claim against the Company, the Company's liability will be limited to the most recent Fees paid by the Client in respect of 2 (two) months immediately preceding the claim against the Company.
21 NO CONSEQUENTIAL LOSSES
Under no circumstances whatsoever shall the Company be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), including but not limited to any loss of commercial opportunities or loss of proﬁts, and whether as a result of negligent acts or omissions of the Company or its servants, agents or contractors or other persons for whose actions the Company may otherwise be liable in law.
The Client hereby indemniﬁes and holds harmless the Company (including its shareholders, directors and employees, in whose favour this constitutes a stipulation capable of acceptance in writing at any time) against any claim by any third party, including (without limitation) any Customer, employees and/or Authorised User, for any costs, damages (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind), penalties, actions, judgements, suits, expenses, disbursements, ﬁnes or other amounts arising, whether directly or indirectly, from a breach of this Agreement, the Services, Support Services, Additional Services and/or Hardware, or any warranty given.
- Good faith: the Parties will in their dealings with each other display good faith.
- No assignment: The Company may cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of the Client. The Client may not cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of the Company.
- Relationship between the Parties: the Parties agree that neither Party is a partner or agent of the other Party and neither Party will have any right, power, or
authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party
- No representation: to the extent permissible by law, no Party will 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.
- Severability: any provision in this Agreement which is or may become illegal, invalid or unenforceable will be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
- Counterparts: this Agreement may be executed in several counterparts, each of which will together constitute one and the same instrument.
- No stipulation: no part of this Agreement will constitute a stipulation in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
Address for service: any notice, approval, request, authorisation, direction, or other communication under this Agreement shall be given in writing, directed to the addresses of the Parties set forth in clause 1, and shall be deemed to have been delivered and given for all purposes:
- on the delivery date if delivered by email, provided that any notice sent after 17:00 on a Business Day, or any notice sent on a non-Business Day, shall be deemed received on the next Business Day;
- on the delivery date if delivered personally to the Party to whom the same is directed;
- 1 (one) Business Day after deposit with a commercial overnight carrier with written veriﬁcation of receipt; or
- 5 (ﬁve) Business Days after the mailing date whether or not actually received, if sent by registered or recorded delivery post or any other means of rapid mail delivery for which a receipt is available to the contact at the address of the Party to whom the same is directed.
- Governing law: this Agreement and any action related thereto shall be governed, controlled, interpreted and deﬁned by and under the laws of the Republic of South Africa and the Parties submit to the exclusive jurisdiction of the High Court of South Africa (Johannesburg Division, Gauteng).
- Whole agreement: this Agreement sets forth the entire agreement and supersedes any and all prior or contemporaneous agreements and representations, written or oral, of the Parties with respect to the transactions set forth herein, all of which are excluded, except for fraudulent misrepresentations. The Parties acknowledge that as of the date hereof, no binding commitments exist between the Parties with respect to the subject matter of this Agreement except as may be provided herein.
- Amendment: no change, amendment or modiﬁcation of any provision of this Agreement will be valid unless set forth in a written instrument signed by both Parties.
- We agree to grant you the use of the goods described in the Schedule(s) hereto for the Term of this agreement.
- You agree to take delivery of the goods at the installation address stated in the Schedule(s) on our behalf when such delivery is tendered. You shall, at your own cost, ensure that the installation areas are suitable. We accept no responsibility or liability in respect of such installation.
- The Initial Rental Period of this Agreement is the period stated in the Schedule. After the Initial Rental Period, the Agreement shall run indefinitely until either of us gives the other thirty days written notice of termination.
- You and we both agree that the rights in this Agreement and in the ownership of the goods are held, and remain with us, or anyone to whom we have transferred our rights, and that nothing in this Agreement shall be taken to mean that ownership has or may pass to you, or that you have any interest in this Agreement or the goods other than as the user thereof.
- You agree that any dispute in respect of the goods, their licensing, maintenance or any other agreement you may have, will not entitle you to cease complying with your obligations in terms of this Agreement and any such dispute will not entitle you to withhold any rental payments.
- Should you elect that Scotch Software (Pty) Ltd insure the goods as owners, you acknowledge and agree:
- to at all times comply with all conditions imposed by the Company or it’s agents and be responsible for payment of any excess in the event of a claim;
- that you have read and understood the salient terms and conditions of the insurance policy taken out by The Company, a summary of which is set out in Appendix A (if applicable), and you agree to adhere to the conditions thereof;
- to notify us in writing as soon as reasonably possible but no later than seven days after the event, if any of the goods are lost, stolen or damaged;
- to provide all particulars of loss, damaged or stolen goods as required by The Company;
- to provide us and/or insurers with such proof, information and sworn declarations as the insurers may require;
- to inform the police of the theft or loss of goods or damage to goods as soon as practicable after such theft, loss or damage and to take steps and/or assist in taking steps to discover the guilty party and recover the stolen or lost goods;
- to assist us and SHRS with any information and/or documents required to ensure timeous submission of an insurance claim;
- that you will be liable for any costs including costs of repair and replacement should you fail to notify us timeously of such lost, stolen or damaged goods or if insurers repudiate an insurance claim or fails to pay out the full amount of repair or replacement of goods due to any act or omission by you; and
- to pay us on demand any shortfall in insurance proceeds recovered for lost, stolen or damaged goods should we be unable to recover the full amount of repair or replacement of such goods due to any act or omission by you.
- You hereby warrant, represent and undertake to us that you will not do, or omit to do, or permit an act or omission of anything that will negate or adversely affect our ability to claim against the insurance policy.
- Should you elect that The Company does not insure the goods then you shall insure the goods yourself for their replacement cost with a registered insurer or through a broker of your own choice for as long as you have them and advise the insurer of our ownership and our rights in and to the goods. You agree that you will notify us, in writing within fourteen days, if any of the goods are lost, stolen or damaged. You confirm that you have been given prior written notice of your right of free choice in terms of Section 43(1) of the Short-Term Insurance Act 53 of 1998, and that you have exercised that freedom of choice and you were not coerced or induced as to the manner in which you exercised your choice.
- If you breach any of the conditions or terms of this Agreement, or fail to pay any amounts due to us, or if you become insolvent, or compromise with any of your creditors, or if you made false statements in connection with this Agreement or our ownership of the goods, or you allow any judgment that has been granted against you to remain unsatisfied for more than seven days, or if you are subject to a final or provisional order of liquidation or surrender, or are placed under or take steps to commence business rescue proceedings, or if you are an individual and your estate is provisionally sequestrated, then you agree that we have the right (without notice to you and without affecting any of our other rights) to:
- claim immediate payment of all amounts which would have been payable in terms of this Agreement until expiry of the Initial Rental Period stated in the Schedule(s), whether such amounts are then due for payment or not. You agree that we may in the interim take possession of the goods and only return them to you on receipt of full payment of all amounts owing by you. You will not be able to withhold payment or make any deductions from any amount owing as a result of your loss of possession of the goods; or
- immediately terminate this Agreement, take possession of the goods, retain all amounts already paid by you and claim all outstanding rentals, all legal costs as between attorney and his own client and, as agreed pre-estimated liquidated damages, the aggregate value of the rentals which would have been payable had this Agreement continued until expiry of the Initial Rental Period stated in the Schedule.
- IIf we grant you an extension of time, in order to pay, or any other indulgence, this does not mean that we have given up any of our rights in this Agreement. You agree that we are entitled to charge interest on overdue amounts, including damages, at a rate of six percent per annum over prime, compounded monthly.
- A certificate signed by any of our managers or other authorised persons, certifying the amount due by you will on the face of it, be proof of the amount of your indebtedness or any matter so certified. It shall not be necessary to prove the appointment of the person signing such certificate.
- Value Added Tax (VAT) or any other taxes which may become applicable during the period of this Agreement will be payable by you.
- You shall pay all rentals in terms of this Agreement in arrears or advance, as indicated in the Schedule, every Payment Period, without the necessity of us having to send you a statement or invoice every Payment Period. Paying on time is an essential condition of this Agreement and you or your authorised representative’s signature to this Agreement gives us authority to draw against your bank account, wherever it may be, the amounts due to us in terms of this Agreement. You may not deduct any amounts owing by us to you from any amounts owing to us, for any reason whatsoever.
- You shall keep the goods in a secure and suitable place and use them according to the manufacturer's directions and you will use the goods with care and due diligence, and not in contravention of any vendor and/or manufacturer warranties.
- You hereby warrant, represent and undertake that:
- all legal requirements and approvals have been validly obtained and that the conclusion of this Agreement does not contravene any applicable laws, your constitutional documents or any other agreement;
- all information provided to us is true and correct and a material representation inducing us to enter into this Agreement; and
- you will keep and maintain the goods in good working order and condition.
- We shall at all times be permitted access to inspect the goods. Should you wish to relocate the goods or the accessories you must obtain our prior approval in writing. Upon cancellation or termination of this Agreement you agree, at your expense, to return the goods to us in good condition.
- You may not transfer your rights in terms of this Agreement, nor part with possession of the goods to any other party without obtaining our written consent. We may, without notice to you, transfer all or any portion of our rights in terms of this Agreement or our ownership of the goods to any other person/s. You agree that, if we transfer, you will hold the goods and continue to fulfill your obligations to the new owners of the rights to this Agreement and/or the goods.
- You shall notify the landlord and any subsequent landlord on whose premises the goods are situated or stored that the goods are our property and will not be subject to any lien, hypothec or any other encumbrance. You must provide us with a copy of such written notification to the landlord on demand.
- The rental due for the Broken Period shall become due with the first rental payment. The rental due for each succeeding Payment Period shall become due on the common due date of every succeeding Payment Period.
- This is the entire Agreement, regardless of any representations that may have been made regarding the goods or this Agreement, and no variation, waiver, suspension, extension of time or agreement to cancel shall be of any force or effect unless in writing and signed by both you and us and shall not operate as an estoppel (indulgence as a right) against us in respect of our rights nor shall it operate to preclude us from thereafter enforcing strict and punctual performance with each and every provision of this Agreement
- You acknowledge and agree:
- that you selected and inspected the goods prior to signing this Agreement and/or the Schedule and are satisfied with the goods and that they suit your purpose;
- that all warranties implied by the common law are excluded and that no representations of any nature have been made by or on behalf of us; and
- that once a Schedule to this Agreement is signed by you, the risk/s of and in the goods passes to you, subject to us retaining an insurable interest in the goods.
- If you fail to return the goods after this Agreement has expired, then in addition to any other claims that we may have against you, you will remain liable and agree to continue to pay the rentals as if this Agreement had not expired.
- Whenever it may be necessary to determine the value of the goods, you agree that we shall have the right in our discretion to nominate and appoint a sworn valuator whose valuation shall be final and binding.
- If any of the goods hired in terms of this Agreement are lost or stolen and not recovered within a period of 21 (twenty-one) days after such loss or theft or are damaged beyond repair, this Agreement shall terminate forthwith in respect of such goods, provided that such goods may, at our election, be replaced with goods which in our reasonable discretion are of similar nature and condition to such goods, in which event this Agreement shall apply in every respect to such replacement goods whereupon you undertake to sign a replacement schedule.
- On termination of this Agreement in pursuance of clause 28, the proceeds of any claim under and in terms of an insurance policy, referred to in clause 8 or 10 as may be applicable, shall be paid to us and shall be credited against the balance of rentals that remain unpaid in respect of the goods lost or destroyed immediately prior to termination of this Agreement. You, however, remain liable for any outstanding rentals and the aggregate of the rentals which would have been payable had the Agreement continued until expiry of the Initial Rental Period stated in the schedule that may remain unpaid after the crediting of the proceeds of the insurance claim, and such rentals shall be paid on demand to us.
- We may use any payments made by you to settle any debt(s) in terms hereof or otherwise which may be owing by you to us in terms hereof or otherwise.
- We hereby cede to you, which cession you accept herein, all claims which we may have against the vendor or the licensor of the goods arising out of any express or implied guarantee, warranty or undertaking to the condition, state or quality of the goods or software or as to the fitness or stability thereof for any purpose whatsoever or arising out of any latent defect in the goods.
- The cession in terms of clause 30.1 operates as a complete and absolute discharge of any liability which we may have to you in respect of any corresponding claim which is not excluded in this Agreement. Nothing contained in this Agreement shall derogate from your obligations in terms of this Agreement, notwithstanding that you may have no right against the vendor(s) of the goods or components thereof in terms of any of our rights ceded to you in terms of this Agreement.
- We make no warranty or representations as to the validity or enforceability of any right you may have against any of the Vendor(s).
- The cession of rights against the Vendor(s) in terms of clause 30.1 shall by the very fact terminate on termination of this Agreement and the rights hereby ceded shall by that very fact be deemed to have been re-ceded by you to us.
- If in our opinion it is necessary or desirable to substitute the goods, we may do so and substitute the goods described in the Equipment Schedule/s for substitute goods of a similar type, quality, capacity and functionality to your reasonable satisfaction (the “Substituted Goods”). The terms of this Agreement shall apply to such Substituted Goods.
- You confirm that you agree on your behalf and on behalf of your directors, shareholders, members, partners and associates that we are entitled, at any time, to communicate with any person to obtain and provide any information relating to your payment behavior, creditworthiness or defaults and you consent to us sharing such information with third parties including its associates, credit bureau and funders for any purpose as contemplated in the Protection of Personal Information Act.
- You acknowledge that your guarantor/s are entitled in law to obtain your confidential financial information and you hereby consent to us to providing the guarantee/ies with your confidential financial information.
- Should a debit order not be signed, a monthly collection fee of R50.00 (incl. VAT) will apply, in addition to the monthly rental as set out in the schedule.
- You agree that we may:
- make enquiries to confirm and verify any information you provided in your application;
- seek information from any credit bureau when assessing your application and at any time.
- You acknowledge and expressly consent that we may:
- verify information you provided to us and generally make whatever enquiries we deem necessary from any source whatsoever;
- process your personal information to conclude the Agreement with you and for purposes of providing services to you;
- process and disclose your personal information for purposes of the prevention, detection and reporting of fraud and criminal activities, the identification of the proceeds of unlawful activities and the combating of money laundering activities;
- process and report on your personal information to comply with an obligation imposed by applicable laws on us.
- I/We hereby consent to you or your cessionary/ies making enquiries to my/our credit records and trade references with any credit reference agency or any third party to confirm the details provided and confirm that this consent shall apply in every aspect to every director, shareholder, member and /or associate of the applicant. As signatory to this contract I/we hereby indemnify you and your cessionary/ies against any claim that may be made against you or your cessionary/ies by any director, shareholder, member and/or associate of the application by virtue of this consent.
- The Company reserves the right to cede (through sale or otherwise) the rights to any obligations under this agreement to a third-party without having to disclose this fact to the Client.