In these T&Cs, unless the context clearly indicates a contrary intention, the following expressions shall bear the meaning assigned to them
below, and cognate expressions shall bear corresponding meanings:
2.1. “Agreement” means the master license and service agreement, including the annexures thereto, and incorporates these T&Cs, as
amended from time to time;
2.2. “Background IP” means any and all Intellectual Property in any form and of any nature, which either of the Parties owns or
develops prior to the execution of the Agreement, or which it will create or develop independently and separate from the
Agreement;
2.3. “Confidential Information” means all technical and business information, including all trade connections, Know How, secret
knowledge and information (including any financial, commercial, market, technical, functional and scientific information, and
information relating to a Party’s strategic objectives and planning and its past, present and future research and development),
technical, functional and scientific requirements and specifications, data concerning business relationships, demonstrations,
processes, trade secrets, machinery, architectural information, information contained in a Party’s software and associated
materials and documentation, plans, designs and drawings and all material of whatever description, whether subject to or protected
by copyright, patent or trademark, registered or unregistered, or otherwise disclosed or communicated before or after the date of
the Agreement;
2.4. “Derived IP” means any rights to Intellectual Property which arise in the course of the Parties’ activities, but which are derived
solely from Background IP, held by either of the Parties;
2.5. “Force Majeure Event” means any event or circumstance which, as at the Signature Date, is either (i) unforeseeable, or (ii)
foreseeable as a possibility, but a reasonable person would not, or the Parties themselves did not, expect the occurrence of such
event to affect the ability of a Party to perform in terms of the Agreement, and it would be reasonable to permit a Party to be
entitled to rely on such an event or circumstance;
2.6. “Foreground IP” means all Intellectual Property that is jointly developed by the Parties or Intellectual Property developed or
created during the course of the Agreement;
2.7. “Intellectual Property” means all intellectual property rights owned by either Party subsisting anywhere in the world, which is in
any way capable of protection in law, including trademarks, domain names, copyright, patents, designs, Confidential Information,
and all proprietary rights in and to ownership of any idea, discovery, artwork, design, concept, technique or improvement, industry
information, Know How, system, methodology, data, data model, computer software, computer source code and object code,
report, correspondence, documentation, flow chart, database, table, calculation, spreadsheet, schematic plan, photograph,
presentation or invention (whether patented or not) and any other rights of a similar nature which exist now or will in the future
exist, by either Party from time to time, and whether registered or not;
2.8. “Know How” means all unpatented, secret, substantial and identified know-how, expertise, technical or other information, including
all related ideas, concepts, methods, inventions, discoveries, data, formulae, processes, methods, techniques and specifications;
and
2.9. “Losses” means any damages, liabilities, losses, expenses, fines, costs, penalties and expenses, excluding any indirect, incidental
or consequential losses or damages; and
2.10. “T&Cs” means these standard terms and conditions that are applicable to the use of the System (and which are incorporated into
the Agreement by reference).
3.1. Clause headings are for ease of reference only and unless the context clearly indicates a contrary intention, any expression which
denotes: (i) any gender includes all genders; (ii) a person includes any individual, firm, company, corporation, government, state or
agency of the state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal
personality); and (iii) the singular includes the plural and vice versa.
3.2. If any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then,
notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision of the
Agreement.
3.3. 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.
3.4. Where any term is defined in a particular clause, that term shall bear the meaning assigned to it in that clause wherever it is used
in the Agreement.
3.5. Any reference to a time or day is, unless otherwise expressly indicated or set out in a Work Order, a reference to Johannesburg,
South Africa time. Any reference to days (other than a reference to Business Days) or years shall be a reference to calendar days
or years, as the case may be.
3.6. Where any day for the performance of any obligation or the payment of any amount under the Agreement falls on a day other than
a Business Day, such obligation shall be performed, or such amount shall be paid on the immediately preceding day, which is a
Business Day.
3.7. The Parties acknowledge and agree that the Agreement has been entered into pursuant to the negotiation of its provisions by them
and, accordingly, that any rule of construction requiring that the Agreement be interpreted or construed against the Party
responsible for the drafting or preparation to hereof shall not be of any application.
3.8. The obligations of each Party under or in connection with the Agreement are several, and no Party shall be responsible for the
obligations of any other Party under or in connection with the Agreement. Failure by a Party to perform its obligations under the
Agreement shall not affect the obligations of any other Party under the Agreement.
3.9. The rights of each Party under or in connection with the Agreement are separate and independent rights, and any debt arising
under or in connection with the Agreement to a Party shall be a separate and independent debt.
3.10. The words following “other”, “specifically”, “including”, “in particular”, or any other similar general term or expression shall not, if a wider construction is possible, (i) be construed as being of the same kind, class or nature with any preceding words; or (ii) limit the generality of any preceding word/s.
3.11. Any term which is not defined in these T&Cs shall bear the meanings ascribed to them in the Agreement.
4.1. The relationship between the Parties shall be that of independent contractors, and nothing in the Agreement shall be interpreted as
constituting a partnership, employment, joint venture or an agency relationship between the Parties or between either Party and
the other Party’s Personnel.
4.2. Nothing in the Agreement or in the conduct of the Parties in relation to the Agreement or in giving of effect to the provisions of the
Agreement shall be deemed or construed as either Party exercising or being able to exercise any form of control over the
business, affairs or decisions of the other Party.
4.3. No Party shall have any authority to bind the other in any way whatsoever, including (i) entering into contractual obligations on
behalf of the other Party; (ii) incurring any liability on behalf of the other Party; (iii) settling or waiving any claim against or by the
other Party; (iv) entering into any oral arrangements, thereby binding the other Party to such arrangements; or (v) making any
promises, representations, warranties or guarantees in respect of the License other than those contained in the Agreement.
5.1. The Parties agree that the non-defaulting Party shall be entitled to terminate the Agreement on five Business Days’ notice to the
other defaulting Party in any of the following circumstances:
5.1.1. the defaulting Party become the subject of business rescue proceedings, is placed under liquidation, judicial
management whether provisionally or finally and whether voluntarily or compulsorily;
5.1.2. the defaulting Party commits any act of corruption (as applicable in terms of any laws applicable in the Jurisdictions); or
5.1.3. the defaulting Party commits any Prohibited Action.
6.1. Information
When a Work Order terminates for any reason, the Parties shall, to the extent permissible in law:
6.1.1. delete all data, software and documentation associated with the terminated System, except any documentation required
by law for compliance purposes;
6.1.2. ensure that such data is destroyed in accordance with acceptable industry standards relating to document destruction;
and
6.1.3. ensure that all Confidential Information is deleted or destroyed pursuant to, and in accordance with, the provisions set
out in the T&Cs.
6.2. Fees
6.2.1. Upon termination of a Work Order/s by the Licensee prior to the expiry thereof for any reason (except due to breach of
the Licensor), the Licensee shall remain solely liable for all amounts owing to the Licensor up until the last date of the
agreed upon term of the Work Order/s.
6.2.2. In the event that a Work Order/s is terminated prior to the expiry due to a breach by the Licensor, no amount shall be
payable by the Licensee other than amounts due up to and including the end of the notice of termination.
7.1. Introduction
If an invoice issued by the Licensor has not been queried within ten days of issue (“Invoice Dispute Period”), it shall be deemed
to have been accepted by the Licensee.
7.2. Dispute
7.2.1. If a bona fide dispute arises in relation to any of the Fees which are due and payable by the Licensee to the Licensor,
then the Licensee shall be required, within the Invoice Dispute Period, to provide a written notice to the Licensor setting
out the dispute with sufficient detail therein (“Invoice Dispute Notice”).
7.2.2. The Parties shall resolve the dispute in accordance with the provisions of clause 16 and on the basis detailed in the
Invoice Dispute Notice.
8.1. If a Party reasonably suspects (with prima facie evidence) that the other Party has, or continues, to breach any of the provisions of
the Agreement (including misusing the System or embarking upon fraudulent activities), then either of the Parties may conduct a
review of the Party’s compliance with the Agreement in accordance with this clause 8 .
8.2. Subject to clause 8.1 , either Party may (at its discretion) conduct a review of the other Party’s compliance with the Agreement
(including, but not limited to, a review of the Fees, the Party’s systems, processes, and policies), provided that any such review is
carried out as follows:
8.2.1. the Party wishing to conduct the review (“Reviewing Party”) shall provide the Party in which the review will be
conducted over (“Recipient”) with five Business Days prior written notice, setting out the reasons for the review, the
documents and information required to conduct the review, and any other ancillary information that may be required to
allow the Reviewing Party to adequately conduct the review (“Review Notice”);
8.2.2. upon receipt of the Review Notice, the Recipient shall provide the Reviewing Party with the information and documents
set out in the Review Notice within the aforementioned time period set out in the Review Notice. If the Reviewing Party is
not satisfied with the information or documents, the Reviewing Party shall provide the Recipient with a notice requesting
additional information or documents (“Additional Notice”), and the Recipient shall be required to provide the additional
information or documents set out in the Additional Notice within three Business Days thereafter;
8.2.3. the Reviewing Party shall endeavour to conduct the review of the information and documents provided to it by the
Recipient. However, if the Reviewing Party requests a meeting with the Recipient to explain or discuss any information,
the Parties shall agree on a time and date for the review within two Business Days after the meeting request is sent by
the Reviewing Party to the Recipient. In the event that the Parties are unable to reach a mutually suitable time and date
to conduct the review meeting, the Reviewing Party shall determine the date and time for the review meeting; and
8.2.4. the Recipient shall, upon receipt of the Review Notice (or the Additional Notice, as the case may be), provide all
assistance reasonably requested by the Reviewing Party in relation to the review. The Recipient shall be required to
provide any such information and documents as the Reviewing Party may require for purposes of conducting the review
to ensure compliance with the Agreement, provided, however, that the parties adhere to the confidentiality undertakings
set forth in the Agreement.
8.3. If the Reviewing Party finds on the face of it (with prima facie evidence) that the Recipient is or has breached a provision of the
Agreement, then the Reviewing Party shall be entitled to place the Recipient in breach, and the Recipient will be deemed to have
breached the Agreement, unless it provides (i) a written statement under oath (to the satisfaction of the Reviewing Party)
confirming that it is not in breach of the Agreement, or (ii) remedies the breach within the prescribed time period set out in the Agreement (in relation to a breach remedy period).
9.1. Background IP
9.1.1. Each party shall retain ownership of and rights in its respective Background IP. No party shall be deemed to have
assigned or granted to the other party any licence or right to use such Background IP or any right to disclose such
Background IP other than as expressly set out in the Agreement or for purposes of the Licensor being able to perform
the Services.
9.1.2. Notwithstanding anything to the contrary, the Licensor’s Background IP includes the System, and any enhancements,
improvements, modifications or adaptations to the Licensor’s algorithms, apps and systems independently developed in
the course of the Agreement, any modification, adaptation and upgrades to the System created or implemented in
connection with the Agreement, and any feedback pertaining to the System, even where provided or paid for by the
Licensee. The Licensor’s Background IP in relation to the System includes all components thereof, including calculation
methods, related applications, user interface designs, software and source codes, and Know How.
9.1.3. All Intellectual Property which could reasonably be expected to be developed, produced, created, compiled, devised,
discovered or brought into being by the Licensor or in conjunction with the Licensee, during the course and scope of or
incidental to the Agreement, or similar in nature or form to System or the Services, as well as any customisations,
enhancements and modifications relating thereto, shall vest fully in the Licensor.
9.2. Derived IP
9.2.1. Derived IP in respect of the System, Services and other related Intellectual Property shall belong to the Licensor, and the
Licensee shall take all such action as is reasonably required in order for rights to such Derived IP to be vested in the
Licensor.
9.2.2. Derived IP from the Licensee’s Background IP shall remain the Intellectual Property of the Licensee.
9.3. Foreground IP
Save as set out in a Work Order, all Foreground IP relating to the System or the Services will be owned by the Licensor, and
each of the Parties shall do all such actions and execute all such documents as may be required to ensure that such
Foreground IP is validly vested in the Licensor.
9.4. Data in the IP
9.4.1. Any personal information or data solely relating to the Licensee, or its personnel will remain the property of the Licensee.
9.4.2. Any data relating to the Licensor will remain the property of the Licensor, and in this regard, the Licensor shall own and
retain all right, title and interest in and to its data.
9.5. Termination
Upon termination of the Agreement or earlier if required by the Licensor, each Party shall:
9.5.1. immediately cease all use whatsoever of the other Party’s Intellectual Property;
9.5.2. deliver to the other Party or destroy, at the other Party’s election, any and all materials in its possession or control that
bear or include the other Party’s Intellectual Property and confirm in writing to the other Party that it has done so; and
9.5.3. take all reasonable measures to protect each other’s Intellectual Property, including providing assistance and measures
as are reasonably requested by the other Party from time to time.’
10.1. Introduction
During the course of the Agreement, either of the Parties may gain access to, or come to possess, non-public, proprietary
information or materials, including Confidential Information and Intellectual Property of the other Party. As such, the Parties agree
that all Confidential Information is deemed to be proprietary, valuable, specific and a unique asset of each of the Parties,
respectively.
10.2. Confidentiality Undertakings
Each Party (“Receiving Party”) undertakes in favor of the other Party (“Disclosing Party”;), and to the extent within its power and
control, that it shall, at all times:
10.2.1. ensure that Confidential Information will be used only for the purposes contemplated in the Agreement and for no other
purpose;
10.2.2. not to disclose or divulge, directly or indirectly, or copy or reproduce, Confidential Information in any manner whatsoever,
unless required for purposes of performance in terms of the Agreement; and
10.2.3. ensure that Confidential Information will be treated as private and confidential and will be kept and safeguarded in the
same manner and with the same endeavours which a reasonable man would employ to protect his own confidential
information.
10.3. Permitted Disclosures
10.3.1. The Parties agree that Confidential Information will not be disclosed to any person except to:
10.3.1.1. the extent required by law (other than in terms of a contractual obligation of the Receiving Party); and
10.3.1.2. permit the use thereof by its Personnel, representatives and professional advisers to the extent strictly
necessary for the purpose of implementing or enforcing the Agreement or obtaining professional advice or
conducting its business, it being specifically agreed that any disclosure or use by any such Personnel,
representative or adviser of such Confidential Information or other information for any other purpose shall
constitute a breach of this clause 10 by the Receiving Party.
10.3.2. The provisions of this clause 10 shall cease to apply to any Confidential Information of a Party which:
10.3.2.1. is or becomes generally available to the public other than as a result of a breach by the Receiving Party of
its obligations in terms of this clause 10 is also received by the Receiving Party from a Third Party who did
not acquire such Confidential Information subject to any duty of confidentiality in favour of another Party;
10.3.2.2. was in possession of a Party prior to its disclosure otherwise than as a result of any breach by that Party of
any obligation of confidentiality owed to any other person whether pursuant to the Agreement, or otherwise;
10.3.2.3. is disclosed to a Party by a person which person did not acquire the information under an obligation of
confidentiality; or
10.3.2.4. is independently acquired by a Party as a result of work carried out by a person to whom no disclosure of
such information has been made.
10.4. Deletion of Confidential Information
Immediately upon written request by a Party at any time, the other Party agrees to return all Confidential Information to the Party
who requested the return of the relevant Confidential Information (including all copies and extracts thereof). Where Confidential
Information is in a form or format that is incapable of return, the relevant Party shall delete, destroy or erase the Confidential
Information and immediately thereafter, provide written confirmation (under oath, if requested) to certify such destruction or erasure
of the Confidential Information.
11.1. The license to use the System granted in terms of the Agreement only permits the Licensee to use the System within the
parameters allowed by the Licensor.
11.2. Without derogating from any other restriction or limitation in the Agreement or these T&Cs, the Licensee undertakes:
11.2.1. to maintain accurate and up-to-date records of the Users who have access to the System;
11.2.2. to supervise and control the use of the System in accordance with the terms of the Agreement;
11.2.3. ensure that its Administration Users are notified of the terms and obligations hereof prior to such parties being given
access to or using the System;
11.2.4. to use the System for its own business purposes and shall, in the ordinary course of its business, use the System only
for the number of Users as specified and agreed;
11.3. The Licensee accepts that no output that is produced from the use of the System constitutes or can be interpreted as advice on the
financial affairs of the Licensee by the Licensor. Information provided by the Licensor to the Licensee in whatever form shall be for
informational purposes only and should not be construed to constitute financial, legal, accounting or tax advice.
11.4. Each Party is entitled to, on reasonable written notice to the other Party and during regular business hours, to audit the other
Party’s compliance with the terms and conditions of the Agreement, should there be reasonable suspicion, or a reason to believe,
that the other Party may be in breach of any of the terms of the Agreement.
11.5. The Licensor reserves the right to monitor access to the System by the Licensee as part of the normal course of its business
practice. Should the Licensor discover that the Licensee engaged in Prohibited Actions which create denial of access or
impediment of Service or System, or which adversely affect the Licensor’s ability to provide Services or System, the Licensor
reserves the right to temporarily or permanently suspend access to the System or provision of the Services or terminate the
Agreement or the relevant Work Order. The Licensor shall make written or electronic notification to the Licensee point of contact of
any temporary suspension, and the cause thereof, as soon as reasonably possible. This temporary suspension will remain in effect
until the Prohibited Actions have ceased.
11.6. Without derogating from the generality of any terms and conditions in the Agreement, the Licensor identifies the Prohibited Actions
as a breach of the Agreement for the Licensee in terms of which the Licensor may terminate the Agreement or the relevant Work
Order, or deny access to the System or impede the Services.”
The Licensee shall not, and shall not permit any third party to (“Prohibited Actions”):
12.1. use the System or the Licensor’s Intellectual Property in any manner inconsistent with the terms and conditions of the Agreement.
12.2. sell, lease, license, sub-lease, sub-contract, assign, cede, vary, enhance or copy the System or resell the Services or System without the Licensor’s authorisation.
12.3. redistribute, reverse engineer, decompile, disassemble, transfer, distribute or otherwise commercially exploit or otherwise attempt to derive the source code for the System or the Licensor’s Intellectual Property.
12.4. modify, copy, duplicate or make derivative works, or create subsets or derivative databases from the System or the Licensor’s Intellectual Property
12.5. access the System or the Licensor’s Intellectual Property to build a competitive product or system or to compete with any System or the Services.
12.6. interfere with or disrupt the integrity or performance of the System, the Licensor’s Intellectual Property or the data contained therein.
12.7. interfere with or disrupt other network users, network services or network equipment. It is the Licensee’s responsibility to ensure that their network is configured in a secure manner.
12.8. interfere with the Services or System, locally or by the internet, by any means, including proxy hunters, spiders, robots, scrapers, crawlers, using any program / script / command, or sending messages of any kind.
12.9. use the Services or System to access, or to attempt to access the accounts of others or the Licensor’s Intellectual Property or its related systems or networks, or to penetrate, or attempt to penetrate, security measures of the Licensor’s or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
12.10. solicit login information or access an account belonging to someone else.
12.11. take any action that could disable, overburden, or impair the proper working of the System or use the System for any activity which adversely affects the ability of other people or systems to use the System including “denial of service” (DoS) attacks against another network host or individual user.
12.12. publish or otherwise disseminate the System or create subsets of derivative databases from the System for commercial use or sale or disclose any outcome produced by the System to any third parties, other than as required by the auditors of the Licensee or in terms of any law or regulatory provision, without the prior written consent of the Licensor.
12.13. allow data from the Services to be made available to others or download the System onto any electronic storage media or distribute or transfer the System in any form (printed, electronically relayed, posted to public list services or bulletin boards, or magnetically stored) to, or for the benefit, of others.
12.14. share the Licensor’s identities or passwords for use at common workstations or kiosks or allow unauthorised distribution of passwords or access codes.
12.15. provide or otherwise make available the System to any person other than as specified in this Agreement or make any part of the System available to non-authorised Users or third parties or display the System on a public bulletin board, FTP site, world wide web site, chat room or by any other unauthorised means. However, the Licensee may use any amount of data from the System that has no independent commercial value, on an ad hoc basis, in the normal conduct of its business, including but not limited to reports, charts, pitch books and similar presentations to its employees, customers, agents and consultants.
12.16. use the Services or System to collect, or attempt to collect, users’; content or information or personal information about third parties without their knowledge or consent.
12.17. upload viruses or other documents with malicious purpose.
12.18. upload content that legally belongs to another person or entity.
12.19. use the System or Web Application for any unlawful, misleading, malicious, discriminatory or inappropriate purposes or actions.
12.20. configure or allow the System to be configured in such a way that gives a third party the capability to use the Services or System in an illegal or inappropriate manner.
12.21. use the Services or System to transmit any material (by email, uploading, posting, or otherwise) that violates any applicable local, state, national or international law, or any rules or regulations promulgated there under.
12.22. use the Services or System to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as “pyramid schemes,” “ponzi schemes”; and “chain letters”.
12.23. add, remove or modify identifying network header information in an effort to deceive or mislead or attempt to impersonate any person by using forged headers or other identifying information. The use of anonymous autoresponders/remailers or nicknames does not constitute impersonation. Using deliberately misleading headers (“munging” headers) to avoid spam email address collectors is allowed.
12.24. use the Services or System to transmit any unsolicited commercial email or unsolicited bulk email.
12.25. use the Services or System to transmit any material (by email, uploading, posting, or otherwise) that infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorised copying of copyrighted material, the digitisation and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorised transmittal of copyrighted software.
The Parties undertake, to the extent that it is within their control, at all times to do all such things, perform all such actions and take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be available to them and necessary for or incidental to the putting into effect or maintenance of the terms, objectives or import of the Agreement.
15.1. Neither Party shall at any time during the Agreement, and for a period of one year after the termination of the Agreement, for any circumstances whatever reason whatsoever, either for themselves or as their agent of anyone else, persuade, induce, solicit, encourage or procure any employee or authorised representative of the other Party to:
15.1.1. become employed by any business, firm, or company, directly in competition with the business carried on by the other Party;
15.1.2. terminate his or her employment with the other Party.
15.2. The restraint set out in clause 15.1 shall not be applicable where (i) the prior written approval to make such an offer has been obtained from the Party, who is or has been the employer of such staff member, or (ii) an offer is made to a staff member of a Party who has left the employ of such Party, on his or her own accord (that being, not as a result of having been approached or solicited by the other Party), and at the time the offer is made a period of at least six months has lapsed since the staff member has left the employment of such Party.
16.1. Internal Resolution
16.1.1. Should any dispute, disagreement or claim arise between the Parties (“Dispute”) concerning the Agreement, the Parties shall endeavour to resolve the Dispute by negotiation.
16.1.2. One of the Parties shall invite the other/s in writing to meet and to attempt to resolve the Dispute by negotiation (“Negotiation”), within ten Business Days from the date of the written invitation.
16.1.3. If the Dispute has not been resolved by Negotiation within ten Business Days of the commencement thereof, then the Parties shall submit the dispute to the chairpersons of their board of directors, who shall, within a further period of ten Business Days, use their best commercial endeavours to resolve the Dispute by way of Negotiation.
16.1.4. If the chairpersons of each of the Parties’ board of directors are unable to reach an agreement in respect of the Dispute, then either of the Parties shall be entitled to follow the dispute resolution process set out in clause 16.2 .
16.2. External Resolution
16.2.1. If the Dispute has not been resolved by Negotiation within the time periods set out in clause 16.1 , then the Parties shall submit the dispute, for final resolution, to arbitration (“Arbitration”) before an arbitrator (“Arbitrator”).
16.2.2. The Arbitrator shall be such person as is agreed upon by the Parties. If the Parties fail to reach agreement regarding the appointment of the Arbitrator within five Business Days after the dispute has been submitted to arbitration, then the Arbitrator shall be the following persons (subject to the question in issue):
16.2.2.1. primarily an accounting matter, an independent chartered accountant of not less than ten years’ standing;
16.2.2.2. primarily a legal matter, a legal practitioner of not less than five years’ standing; and
16.2.2.3. a technical matter pertaining to the System, a suitably qualified computer engineer or developer, of not less than ten years’ standing.
16.2.3. The Arbitrator shall determine the rules that apply to the Arbitration.
16.2.4. Unless otherwise agreed in writing by all the Parties, any such Negotiation or Arbitration shall be conducted in English and held on any electronic communication platform (including Microsoft Teams or Zoom).
17.1. If during the currency of the Agreement, a Force Majeure Event occurs which prevents performance by a Party of all or any of its obligations in the Agreement, then the Party claiming a Force Majeure Event (on whom the onus shall rest) shall by no later than 30 days after the start of the Force Majeure Event, give written notice thereof to the other Parties, specifying the nature of the Force Majeure Event, its anticipated duration and the anticipated effects that the Force Majeure Event will have on the performance of its obligations in terms of the Agreement.
17.2. Any notice given after the time period set out in clause 17.1 , shall be of no effect, and the Party concerned shall not be entitled to rely on such Force Majeure Event.
17.3. Subject to clause 17.3.4 :
17.3.1. the Agreement, or the affected part of it, shall be suspended for the period during which the Force Majeure Event continues, and the time for performance of an obligation referred to in clause 17 shall be extended accordingly (unless the Parties agree in writing to not extend the performance of an obligation);
17.3.2. the Party claiming a Force Majeure Event shall, at its own cost, take all reasonable steps available to it to mitigate its effect upon that Party’s ability to perform and the Party claiming the Force Majeure Event shall not, to the extent and for so long as that Party is prevented from performing such obligation as a result of the Force Majeure Event, be in breach of the Agreement or otherwise liable for the resulting failure or delay in the performance of such obligation;
17.3.3. the Party not claiming a Force Majeure Event shall not be obliged to comply with reciprocal obligations to those obligations suspended in the period during which the force majeure subsists;
17.3.4. if a Party fails to perform, satisfy or comply with any obligation, condition, covenant, or other provision contained in the Agreement for a period of not less than 45 consecutive days due to a Force Majeure Event, and such failure shall either have a material and adverse effect on the Agreement or the innocent Party, such affected Party shall be entitled on 30 days’ notice to terminate the Agreement.
17.4. If the event of a Force Majeure Event, then the Parties shall use their best commercial endeavours and negotiate in good faith, with a view of agreeing to such extensions to perform their obligations in the Agreement. Accordingly, the Parties shall not use a Force Majeure Event as a means to circumvent the provisions of the Agreement and prevent performance, where it is reasonably possible to agree on extensions to a Parties’ performance.
17.5. A Force Majeure Event will not relieve a Party from any obligation which arose before the occurrence of the Force Majeure Event.
18.1. Domicilium
Each of the Parties chooses as its domicilium citandi et executandi (“Domicilium”) for all purposes relating to this Agreement, including the giving of any notice to the address set out in the Agreement.
18.2. Change of Domicilium Any Party shall be entitled from time to time, by giving written notice to the others, to vary its physical Domicilium to any other physical address (not being a post office box or poste restante).
18.3. Delivery
18.3.1. Any notice given or payment made by any Party to another which is delivered by hand between the hours of 09h00 and 17h00 on any Business Day to the addressee’s physical Domicilium, for the time being, shall be deemed to have been received by the addressee at the time of delivery.
18.3.2. This clause 18 shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the addressee other than by a method referred to in this clause 18.
18.4. Electronic communication If sent by email during business hours, such email will be presumed to have been received on the date of successful transmission of the email. Any email sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.
The Licensor may provide a migration service if, and to the extent, specified in a Work Order. The following assumptions shall apply:
19.1. Any migration service provided by the Licensor is limited to relevant data for the total number of participants specified in a Work Order based on the initial dataset provided by the Licensee (the “Initial Dataset”). The migration of this information based on the Initial Dataset shall be referred to as the “Initial Migration”.
19.2. Should an Initial Migration timeline be provided by the Licensor, it should be noted that the timeline is only an estimate and assumes that the data is provided by the Licensee to the Licensor in a ready-to-import state (“a good state”) and that the Licensee’s team will be available to check the Initial Dataset within the timeline. The Licensee must promptly provide agreed historical and active award information (at the start date of the implementation) for the Licensor to meet the anticipated timelines.
19.3. The Licensor will provide the Licensee with the required data field lists and/or templates for the data migration (including required participant and incentive plan data), which the Licensee must complete and return within the first three days following the Work Order’s commencement date to meet the anticipated timelines. The Licensee must also ensure data is provided in a format the Licensor requires to meet anticipated timelines.
19.4. The Licensee must ensure that documents, data and information are substantially free from inaccurate records and uniquely identifiable. Should the Initial Dataset reflect inaccurate, incomplete, incorrect, or irrelevant parts, replacing, modifying, or deleting the dirty data may incur additional costs.
19.5. The data for the migration provided to the Licensor will be the balances and information as at a specified date to be agreed by Parties (the “Specified Date”). The Licensor will upload that set of data onto the platform. Unless agreed by the Licensor (at its sole discretion), updates to the platform for new data after the Specified Date can only be made after the migration is completed and signed off and may be performed as part of Covered Basic Support.
19.6. The Licensee must provide the Licensor with:
19.6.1. participant data such as personal information and active or leaver status attached to a participant;
19.6.2. share plan awards data, including the agreed plan’s terms and conditions, award balances, and related information, and treatment of awards for any good leavers; and
19.6.3. any other information that the Licensor requires to migrate the Initial Dataset.
19.7. The Licensee will be required to sign off on the Initial Migration before go-live. Thereafter, or once the Initial Migration is complete, the Licensee will be responsible for updating and maintaining all related participant and award information (including importing and maintaining the administration data). The Licensee may utilise Covered Basic Support to assist with these tasks. The Licensee shall not unreasonably withhold sign-off of any of the migration tasks shown above.
19.8. Unless the Licensee fails to comply with the provisions of this clause19, Migration Services that are included in the scope of a Work Order, for the Initial Migration of the Initial Dataset do not contribute towards Covered Basic Support.
20.1. Whole Agreement
This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the Parties.
20.2. Variations in Writing
No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
20.3. Cession and Assignment
No Party shall be entitled to cede any of its rights or delegate any of its obligations in terms of this Agreement without the prior written consent of the other Parties.
20.4. Costs
Each Party shall bear its own costs of and incidental to the negotiation, preparation and drawing of this Agreement.
20.5. Signature
20.5.1. The Parties sign the Agreement on the dates and at the places indicated below.
20.5.2. The 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.
20.5.3. The Parties record that it is not required for the Agreement to be valid and enforceable that a Party shall initial the pages of the Agreement or have its signature of the Agreement verified by a witness.
20.5.4. The Agreement may be signed by way of electronic signature.
20.6. No Indulgences
No latitude, extension of time or other indulgences which may be given or allowed by any Party to the others (or some of them) in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from the Agreement and no single or partial exercise of any right by any Party under the Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from the Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power or privilege under the Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
20.7. No Waiver or Suspension of Rights
No waiver, suspension or postponement by any Party of any right arising out of or in connection with the Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
20.8. Provisions Severable
20.8.1. Each provision of the Agreement is, notwithstanding the grammatical relationship between that provision and the other provisions of the Agreement, severable from the other provisions of the Agreement. Any provision of the Agreement, which is or becomes invalid, unenforceable or unlawful in any jurisdiction shall, in such jurisdiction only, be treated as pro non scripto to the extent that it is so invalid, unenforceable or unlawful, without invalidating or affecting the other provisions of the Agreement which shall remain of full force and effect.
20.8.2. The Parties declare that it is their intention that the Agreement would be executed without such invalid, unenforceable or unlawful provision if they were aware of such invalidity, unenforceability or unlawfulness at the time of execution of the Agreement.
20.9. Continuing Effectiveness of Certain Provisions
The expiration or termination of the Agreement shall not affect such of the provisions of the Agreement as expressly provide that they will operate after any expiration or termination or which of necessity must continue to have effect after such expiration or termination.
20.10. Benefit of Agreement
The Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or any of them.
