1. INTERPRETATION AND DEFINITIONS
In this Agreement –
1.1. words importing –
1.1.1. any one gender includes the other gender or neuter;
1.1.2. the singular includes the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporated) and the State and vice versa;
1.2. the following terms shall have the meanings set out below –
1.2.1. “Affiliate” means in relation to each Party, any controlling shareholders and/or holding company or subsidiary company of such Party and any other subsidiary company undertaking of any such holding company and includes any director, officer, employee, consultant, representative, agent or adviser of any of the aforementioned entities. For these purposes, the terms “holding company” and “subsidiary company” shall have the meaning attributed to them in the Companies Act no. 71 of 2008, (as may be amended from time to time);
1.2.2. “Agreement” means the Terms and Conditions as well as the specific terms of the applicable Service Schedule and/or Proposal which govern the relationship between the Parties;
1.2.3. “Altron Karabina” means Altron Karabina, a Division of Altron TMT Proprietary Limited (registration no.: 1984/003805/07), a company incorporated in accordance with the laws of the Republic of South Africa and having its principal place of business at Altron Karabina Building, Design Quarter District, Leslie Avenue East, Fourways;
1.2.4. “BRS” means business requirements specifications;
1.2.5. “Business Day” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
1.2.6. “Customer” means the purchaser of the Services as detailed in a Service Schedule and/or Proposal;
1.2.7. “Customer Data” means any data, including personal information as defined in the Protection of Personal Information Act No. 4 of 2013 (as may be amended from time to time), and any other legislation related to the protection of personal data, supplied to Altron Karabina by the Customer, or stored, collected, collated, accessed, or processed on behalf of the Customer by Altron Karabina;
1.2.8. “Effective Date” means the date on which Altron Karabina commences the Services with the Customer;
1.2.9. “Fees” means the fees and charges payable by the Customer to Altron Karabina for its performance of the Services;
1.2.10. “Intellectual Property” means any and all rights, title and interest in (and whether registered or not), past and future copyright, related rights, patents, utility models, trademarks, trade names, service marks, designs, databases, semi-conductor topography, know-how, trade secrets and inventions (whether patentable or not), goodwill and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;
1.2.11. “Parties” means, collectively, Altron Karabina and the Customer, and “Party” shall have a corresponding meaning;
1.2.12. “Proposal” means a proposal submitted by Altron Karabina to the Customer for the supply of Services;
1.2.13. “Services” means the products and/or services to be provided by Altron Karabina to the Customer as set out in a Service Schedule or Proposal;
1.2.14. “Service Schedule” means, in respect of each Service which Altron Karabina provides to the Customer, the service schedule concluded between the parties setting out, inter alia, a description of the Service, the fees payable, and the applicable service levels;
1.2.15. “Termination Date” means the date on which the Services as detailed in a Service Schedule or Proposal are successfully delivered by Altron Karabina, or such other date upon which this Agreement terminates in accordance with the provisions set out herein; and
1.2.16. “Terms and Conditions” means the terms and conditions contained in this document, as may be amended from time to time.
1.3. Unless otherwise stated, references to clauses, sub-clauses, schedules or paragraphs are to be construed as references to clauses, sub-clauses, schedules or paragraphs of this Agreement. Clause headings and sub-headings are for convenience only and shall not affect the interpretation of this Agreement.
1.4. References to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended from time to time.
1.5. References to any Party shall, where relevant, be deemed to be references to, or to include, as appropriate, their respective successors or permitted assigns.
1.6. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in this definitions and interpretation clause, effect shall be given to it as if it were a substantive provision in this Agreement.
1.7. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next Business Day.
1.8. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in this clause 1.
1.9. The rule of construction that the Agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.
This Agreement shall commence on the Effective Date and will remain in force until the Termination Date.
3. THE SERVICES AND SERVICE SCHEDULES
3.1. The specific Services to be performed by Altron Karabina will be set out in a Service Schedule or Proposal, which when read together with these Terms and Conditions, shall constitute the entire agreement between the Parties in respect of the Services.
3.2. Each Service Schedule shall be deemed to be a separate agreement on these Terms and Conditions and the termination of any specific Service Schedule shall not be deemed to constitute a termination of any other Service Schedules concluded between the Parties, which shall continue to be of full force and effect.
3.3. In the event of any conflict or inconsistency between a Service Schedule, a Proposal, and these Terms and Conditions, then the provisions of the Service Schedule or Proposal shall prevail to the extent of such inconsistency.
3.4. Each Service Schedule shall be catalogued numerically for identification purposes and shall, inter alia, include –
3.4.1. a description of the Service to be rendered;
3.4.2. the effective date, initial period, and termination period of the particular Service;
3.4.3. the pricing and invoicing terms applicable to the Service;
3.4.4. the required service levels applicable to the particular Service; and
3.4.5. the specific undertakings and terms and conditions not contained in these Terms and Conditions which pertain to the applicable Service.
4. CONSIDERATION AND PAYMENT
4.1. As consideration for its performance of the Services, the Customer agrees to remunerate Altron Karabina in accordance with these Terms and Conditions and the terms of the applicable Service Schedule or Proposal.
4.2. The specific amounts payable by the Customer shall be indicated in the Service Schedule or Proposal. The Customer shall not be liable for any additional costs, expenses and charges not expressly specified by Altron Karabina in the Service Schedule or Proposal or for any costs, expenses and charges that have not been agreed to by the Customer prior to being incurred by Altron Karabina on behalf of the Customer.
4.3. Altron Karabina shall comply with all reasonable invoicing standards and requirements of the Customer.
4.4. The Customer shall make payment of all amounts due and payable to Altron Karabina within 14 (fourteen) days of receipt of invoice.
4.5. The Customer shall be entitled to query any line item on an invoice in good faith, by way of written notice to Altron Karabina, within 3 (three) days of receipt of the invoice. The Customer may withhold or suspend payment of the line item that is disputed, but shall make payment of the undisputed part of the invoice in the normal course within 14 (fourteen) days of receipt of the invoice.
4.6. For all Services or milestones on which a retained amount is allocated, the Customer shall be entitled to withhold such amounts until such time as the Services in question have been completed as per the agreed BRS or project plan.
4.7. If Altron Karabina does not achieve a milestone or deliverable as a result of the Customer failing to timeously provide Altron Karabina with information, documentation, feedback, responses, technical solutions and or other resources reasonably required by Altron Karabina in order to achieve a milestone or deliverable in accordance with a project plan (each a “Customer Dependency”), the Customer will not withhold payment on submitted invoices. If the delay pushes the milestone or deliverable 1 (one) week beyond its expected delivery date, the Customer will be liable for the costs incurred in order to extend the project timeline and maintain the resources allocated to perform the Services.
4.8. Where the Customer has remunerated Altron Karabina timeously in respect of the invoices submitted for payment and Altron Karabina has failed to timeously remunerate any subcontractor or supplier (“Sub Service Provider”), Altron Karabina shall be solely responsible for any penalties and interest levied by the Sub Service Provider, without dispute.
4.9. Altron Karabina reserves the right to charge interest at the annual rate of 2% (two percent) above the prime rate quoted by the Standard Bank of South Africa Limited on all overdue amounts. Such interest will accrue on a monthly basis from the date on which payment became overdue up to the date on which Altron Karabina receives payment of the full outstanding amount together with all accrued interest.
4.10. The Customer accepts that all late payments by the Customer to Altron Karabina, in excess of 14 (fourteen) days from receipt of invoice, may result in Altron Karabina incurring penalties and interest as levied by the Sub Service Provider on the overdue amounts, which the Customer accepts as their liability.
4.11. Altron Karabina shall be entitled, from time to time, to increase the rates payable by the Customer, on each anniversary of the Effective Date, provided that Altron Karabina shall notify the Customer no less than 30 (thirty) days prior to such increase. Rates will not be increased where a Service Schedule or Proposal has been agreed and the duration of such Service Schedule or Proposal is less than 12 (twelve) calendar months.
4.12. Altron Karabina shall, for the duration of this Agreement, furnish the Customer with a written invoice setting out –
4.12.1. the amount of the Services due by the Customer, which amount shall be invoiced in the manner and at the times set out in the applicable Service Schedule or Proposal;
4.12.2. any additional fees due by the Customer to Altron Karabina, as specified in the Service Schedule or Proposal, shall be invoiced in the manner and at the times specified in the Service Schedule or Proposal;
4.12.3. VAT on all amounts due to Altron Karabina; and
4.12.4. the net amount due and payable by the Customer to Altron Karabina in respect of each such invoice.
4.13. Unless clearly stipulated in the Service Schedule, all amounts payable by the Customer to Altron Karabina are exclusive of VAT.
4.14. In addition to Altron Karabina’s Fees, the Customer shall also be liable for the payment of all costs and expenses incurred by Altron Karabina in providing the Services provided that the Customer has agreed to such costs or cost estimates in the Service Schedule or by way of written consent from one of the Customer’s authorised representatives. For the avoidance of doubt, such costs include, without limitation –
4.14.1. all costs for special deliveries incurred in carrying out the Customer’s instructions and safeguarding the Customer’s interests;
4.14.2. all costs involved with copy clearance where deemed necessary by Altron Karabina including legal fees in each jurisdiction in which the copy will be broadcast or published;
4.14.3. all surcharges levied by third parties against Altron Karabina;
4.14.4. all additional costs or penalties payable by Altron Karabina to third parties due to late payment, to the extent such late payment resulted from late payment by the Customer of sums owing to Altron Karabina in terms of this Agreement; and
4.14.5. any other item agreed between the Parties in writing.
5. INTELLECTUAL PROPERTY
5.1. All right, title and interest in all existing Intellectual Property owned, vested in, or held by a Party under any licensing agreement with any independent third party prior to the conclusion of this Agreement shall be and remain the sole property of that Party or the applicable third party licensor.
5.2. It is the intention of the Parties that the Customer should own the Intellectual Property in all materials specifically created by Altron Karabina for the Customer in terms of this Agreement and the relevant Service Schedule. Altron Karabina accordingly undertakes to assign the relevant Intellectual Property, if any, to the Customer on demand, provided that –
5.2.1. the Customer has complied fully (and within the relevant time periods) with its payment obligations in terms of this Agreement and the relevant Service Schedule; and
5.2.2. the Intellectual Property is capable of assignment by Altron Karabina. All Altron Karabina processes, tools, methodologies, strategies, proposals, creative ideas, presentations, etc. which are created or devised by Altron Karabina, remain the Intellectual Property and confidential information of Altron Karabina and may not be shared with third parties or used by the Customer for its own benefit, without the permission of Altron Karabina.
5.3. If, in the course of a project envisaged under this Agreement, Altron Karabina creates any modifications or enhancements to its own software, provided by itself or any other supplier, all rights to such enhancements or modifications shall be retained by Altron Karabina or such other supplier, and the Customer shall receive a non-exclusive licence to use such enhancements and/or modifications under the terms of this Agreement.
5.4. The Customer is entitled to copy the manuals, input or output forms, screens, or materials in machine readable form, or any other materials related to a project and which have been provided to it by Altron Karabina, with the written permission of Altron Karabina, provided the copying falls within the scope of this Agreement.
5.5. Altron Karabina shall ensure that the Customer shall at all times have possession of the latest version of source code materials in relation to Intellectually Property developed specifically for the Customer (“Developed IP”) under the Agreement, and shall take such steps as may be necessary to ensure that the source code materials are delivered on a continuous basis during the course of this Agreement. Upon termination of this Agreement for any reason whatsoever, Altron Karabina shall provide the Customer with a complete collection of the latest version of all source code materials and Developed IP in accordance with the terms of this Agreement.
5.6. The Intellectual Property rights in and to all the personal information supplied by the Customer to Altron Karabina for the purpose of the Services, literary works or other works of authorship generated in the course of performing the Services and paper-based and electronically based documentation and deliverables under the Agreement, which is limited to the Developed IP, shall be owned by Customer.
5.7. Altron Karabina shall retain all of its Intellectual Property rights in respect of any and all of its generic or common models, methodologies or the like of a common or generic nature supplied or developed by Altron Karabina in the conduct of its business, before or after the period of this Agreement. The Customer shall retain all of the Intellectual Property rights to the customised models in relation to the Developed IP.
5.8. Notwithstanding the provisions of this clause 5, the Parties agree that the Services may comprise of generic functional components and Altron Karabina reserves the right to continue to use its own Intellectual Property, which shall not include any customisations performed for the Customer by means of this Agreement, to conduct its business which includes, but is not limited to, the development as a part of its offerings to its Customer, which offerings may include patterns, designs and presentations of a generic nature.
5.9. The Customer and Altron Karabina undertake to ensure that the integrity of Altron Karabina’s licence, during the design and development integration, remains uncompromised and both Parties adhere to the license requirements and limitations as set out by Altron Karabina.
5.10. The provisions of this Clause 5 shall survive the expiry or termination of the Agreement and shall remain in force indefinitely.
6. THIRD PARTY PROPRIETARY MATERIAL AND DERIVATIVE WORKS
6.1. Altron Karabina shall not implement or utilise any third party’s Intellectual Property (or any derivative works thereof) in the provision of any Services unless –
6.1.1. the Customer has provided its prior written consent thereto;
6.1.2. the details of all such Intellectual Property have been listed in each applicable Service Schedule;
6.1.3. Altron Karabina passes on to the Customer all cost benefits that arise from using the relevant third party Intellectual Property; and
6.1.4. Altron Karabina shall have caused such third party to agree to grant to the Customer a perpetual, irrevocable, non exclusive, royalty-free, fully paid, worldwide licence to use, copy, modify and sub-licence the third party’s Intellectual Property.
6.2. Altron Karabina shall obtain from third parties all rights and licences required to perform the Services, and the terms and conditions of all such rights and licences shall be subject to the review and approval of the Customer prior to their implementation by Altron Karabina.
6.3. Altron Karabina shall be responsible for advising the Customer regarding the suitability of any third party Intellectual Property in relation to the Services. Altron Karabina warrants that all third party Intellectual Property recommended by Altron Karabina shall fully integrate with applicable software used in a project envisaged under this Agreement.
6.4. With respect to all technology used and to be used by Altron Karabina to perform the Services hereunder, whether proprietary to Altron Karabina or any third party, Altron Karabina hereby grants to the Customer and its Affiliates the licence rights contemplated in clause 6.1.4 or shall cause to be granted by the licensor thereof, as the case may be, upon reasonable commercial & license terms agreed in the Service Schedule, such licences and sub-licences as may be necessary in order for the Customer and its authorised representatives to use or receive the benefit of the use by Altron Karabina of such technology in connection with the Services on substantially the same licence terms as contemplated in clause 6.1.4.
7. DATA PROTECTION AND DATA SECURITY
In this clause 7, the terms “data subject”, “operator”, “personal information”, “processing” and “regulator” shall have the meanings given to them in the Protection of Personal Information Act no. 4 of 2013, as may be amended from time to time.
7.2. Data Protection
7.2.1. Without prejudice to the obligations set out in this clause 7, the Parties acknowledge and agree that each Party will remain solely responsible for complying with their respective obligations under applicable privacy and protection of personal information laws governing Customer Data. Neither Party will be responsible for investigating the steps that the other Party is taking to comply with such laws.
7.2.2. Altron Karabina will ensure that it –
18.104.22.168. complies with all applicable data protection and privacy laws (“Data Protection Laws”);
22.214.171.124. shall not access, use or process Customer Data except to the extent reasonably required for the performance of its obligations under the Agreement;
126.96.36.199. implements applicable organisational, technical and security measures to preserve the integrity of Customer Data; and
188.8.131.52. complies with its own policies in order to prevent any unauthorised or unlawful access, accidental or unauthorised destruction, corruption, loss, alteration or disclosure or other prohibited processing of Customer Data.
7.2.3. Each Party agrees that it shall acquire no rights in data, information, software or other materials obtained by it as a result of the Agreement except as expressly set out in the Agreement.
7.2.4. The Customer hereby grants Altron Karabina the right to transfer Customer Data across a country border to enable Altron Karabina to perform the respective Services detailed in the Service Schedule or Proposal.
7.2.5. Each Party will co-operate with and assist the other Party in relation to all access to information requests made by third parties, including data subjects, under applicable Data Protection Laws. Such co operation and assistance will include providing all available information to the other Party in order for the other Party to respond to the relevant information request and for the other Party to comply with the applicable Data Protection Laws.
7.3. Data Security
7.3.1. In the performance of the Services and its rights and obligations under the Agreement, Altron Karabina will use commercially reasonable efforts to secure the integrity and confidentiality of the Customer’s personal information.
7.3.2. Altron Karabina will use commercially reasonable efforts to –
184.108.40.206. identify all reasonably foreseeable internal and external risks to personal information in its possession or under its control;
220.127.116.11. establish and maintain appropriate safeguards against the risks identified;
18.104.22.168. regularly verify that the safeguards are effectively implemented; and
22.214.171.124. ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
7.3.3. Altron Karabina will notify the Customer within a reasonable timeframe where there are reasonable grounds to believe that personal information has been accessed or acquired by any unauthorised person.
7.3.4. Altron Karabina will, assist the Customer in responding to any directions by the regulator to publicise any compromise to the integrity or confidentiality of personal information.
8.1. For the purposes of the Agreement, “Confidential Information” means any of the proprietary information, whether technical, commercial, trade secrets or know-how (including, but not limited to, information, technical data, trade secrets or know-how concerning research, product plans, products, service plans, services, client lists and clients, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, distribution and sales methods and systems, sales and profit figures or finances) that is disclosed, directly or indirectly, to either Party or one of its representatives, whether in writing, orally, on disc or by drawings or inspection of documents or other tangible property where the information is –
8.1.1. identified as confidential at the time of disclosure; or
8.1.2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
8.2. Each Party (the “Recipient”) undertakes to the other Party (the “Discloser”) to –
8.2.1. hold all Confidential Information of the Discloser which it obtains in relation to the Agreement in strict confidence;
8.2.2. not disclose, or authorise the disclosure of, the Discloser’s Confidential Information to any third Party other than pursuant to clauses 8.3 and 8.5;
8.2.3. not use, or authorise anyone to use, the Discloser’s Confidential Information for any purpose other than the performance of the Recipient’s obligations or the exercise of its rights or the receipt of any benefits pursuant to this Agreement; and
8.2.4. promptly notify the Discloser of any suspected or actual unauthorised use or disclosure of the Discloser’s Confidential Information of which the Recipient becomes aware and promptly take all reasonable steps that the Discloser may require in order to prevent, stop or remedy the unauthorised use or disclosure.
8.3. The Recipient may disclose the Discloser’s Confidential Information, including the contents of the Agreement, to its Affiliates, its respective officers, directors, employees, contractors, advisors, auditors and any Third Party, but only to the extent, and provided that, such persons –
8.3.1. need to know the Confidential Information disclosed to them for the purpose of the provision or receipt of the Services, or who otherwise have a legal right or duty to know the Confidential Information;
8.3.2. have been informed in writing of the confidential nature of the Confidential Information and the purpose for which it may be lawfully used; and
8.3.3. comply with the terms of this Agreement in respect of the Confidential Information disclosed to them.
8.4. The obligations of confidentiality contained in this clause 8 will not apply to Confidential Information to the extent that –
8.4.1. such Confidential Information has been placed in the public domain other than through the fault of the Recipient;
8.4.2. such Confidential Information has been independently developed by the Recipient without reference to the Confidential Information of the Discloser; or
8.4.3. the Discloser has approved in writing the particular use or disclosure of the Confidential Information.
8.5. The Recipient may disclose the Discloser’s Confidential Information if, and to the extent that, it is required to do so by a Regulator, a relevant stock exchange or otherwise by law.
8.6. The obligations with respect to Confidential Information will survive termination of the Agreement.
9. WARRANTIES, REPRESENTATIONS, UNDERTAKINGS AND INDEMNITIES
9.1. Warranties, Representations and Undertakings
Each Party represents and warrants to the other Party, as of the Effective Date, and undertakes for the future, that –
9.1.1. it has the capacity and authority to enter into the Agreement and perform its obligations thereunder;
9.1.2. the persons entering into the Agreement on its behalf have been duly authorised to do so; and
9.1.3. there is no proceeding pending or threatened, or any other event, matter, occurrence or circumstance which to such Party’s knowledge, challenges or may have a material adverse impact on this Agreement or the ability of such Party to perform its obligations pursuant to this Agreement.
9.2. Altron Karabina represents and warrants to the Customer, as of the Effective Date, and undertakes for the future, that –
9.2.1. this Agreement and the obligations created hereunder are binding upon it and enforceable against it in accordance with their terms and do not and will not violate the terms of any other agreement, or any judgment or court order, to which it is bound;
9.2.2. the deliverables and Service tools will, to the extent applicable, be –
126.96.36.199. in accordance with the applicable design and specification;
188.8.131.52. of satisfactory quality;
184.108.40.206. free from any defects in design and workmanship; and
220.127.116.11. fit for the purpose intended.
9.3. In performing its obligations under this Agreement, Altron Karabina will –
9.3.1. ensure that all software used by or on behalf of Altron Karabina will be the currently supported versions of that software, and that such software will perform in accordance with its specifications;
9.3.2. it will perform the Services in accordance with all applicable laws and with due care, skill and diligence; and
9.3.3. the use or receipt by the Customer of the Services will not infringe or misappropriate the Intellectual Property of any third party.
9.4. To the extent the Customer’s use of the Services (including any deliverable), Service tools and/or materials infringes a third party’s Intellectual Property, Altron Karabina, at its discretion, may elect to –
9.4.1. procure the right and/or licence for Customer to continue using such Services (including any deliverable), Service tools and materials; and/or
9.4.2. replace the Services (including any deliverable), Service tools and materials with a suitable non infringing equivalent; and/or
9.4.3. modify the Services (including any deliverables), Service tools and materials to make the same non-infringing.
9.5. The Customer undertakes to –
9.5.1. brief Altron Karabina in such a manner as to enable Altron Karabina to draft a detailed Service Schedule for discussion and negotiation between the Parties;
9.5.2. remunerate Altron Karabina for its Services rendered as set out in these Terms and Conditions and the applicable Service Schedule or Proposal;
9.5.3. provide all necessary logistical and other support to Altron Karabina to enable it to render the Services on the terms as set out in the Agreement;
9.5.4. co-operate with Altron Karabina at all times for the purpose of facilitating the timely and efficient delivery of the Services, including the timely furnishing of all the information needed by Altron Karabina in order for it to provide the Services;
9.5.5. review all materials prepared by Altron Karabina under the Agreement and that its acceptance of such materials shall indicate that any (express, tacit or implied) descriptions and/or representations made in the material with respect to the Customer’s organization, products and services are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements;
9.5.6. furnish Altron Karabina with adequate substantiation and suitable objective factual information and other data for all such descriptions or representations as Altron Karabina may reasonably request to enable Altron Karabina to deal with any legal or other regulatory complaints raised in relation to the advertising materials produced in terms of this Agreement; and
9.5.7. immediately inform Altron Karabina in the event the Customer considers that any information or material submitted by or on behalf of the Customer is false, misleading, or in any way contrary to any applicable law.
Altron Karabina will indemnify, defend and hold harmless the Customer from any losses arising in relation to any claim by a third party (“Third Party Claim”) that the receipt of or use of any software or deliverable by the Customer, the use of any software or deliverable by Altron Karabina in performing the Services, or the performance of Altron Karabina’s obligations under this Agreement, infringes such third party’s Intellectual Property.
9.7. Assumption of Control Rights
9.7.1. In respect of a matter for which Altron Karabina provides an indemnity, Altron Karabina will assume control of the defence and settlement of the Third Party Claim.
9.7.2. Altron Karabina will, at its own cost and expense, defend the Third Party Claim and have control of the conduct of the defence and settlement of the Third Party Claim.
9.7.3. The Customer shall –
18.104.22.168. not make admissions (except under compulsion of law), agree to any settlement or otherwise compromise the defence or settlement of the Third Party Claim without the prior written approval of Altron Karabina, which will not be unreasonably withheld; and
22.214.171.124. give, at Altron Karabina’s request and cost, all reasonable assistance in connection with the defence and settlement of the Third Party Claim.
9.7.4. Altron Karabina will be subrogated to the rights and defences of the Customer in respect of the Third Party Claim.
10. LIMITATION OF LIABILITY
10.1. Save as provided in clause 10.4 of this Agreement, in no event shall either Party be responsible or liable for any indirect, special, punitive, incidental or consequential damages, including lost profits, suffered or incurred by the other Party arising out of or in connection with this Agreement, whether claimed in contract, delict or otherwise, whenever arising and whether having been advised of the possibility of such damages by the other Party or not.
10.2. Either Party’s total liability to the other Party, whether based on an action or claim in contract, delict (including negligence), breach of statutory duty or otherwise arising out of, or in relation to, this Agreement, will be limited to an amount equal to 100% (one hundred per cent) of the Fees –
10.2.2. invoiced but unpaid; and
10.2.3. accrued but un-invoiced,
in respect of the 12 months prior to the first event giving rise to the claim (or series of connected claims) of the applicable Service Schedule or Proposal.
10.3. Except as set forth in clause 10.4, the Parties will only be liable for direct loss arising in relation to the Agreement, as “direct loss” is defined by the South African courts, but which will be deemed to include indemnified losses recoverable pursuant to an indemnity given by either Party under this Agreement.
10.4. Nothing in this Agreement is intended to exclude or limit –
10.4.1. the liability of either Party in respect of death or personal injury arising as a result of a Party’s negligence;
10.4.2. the liability of either Party in respect of a fraudulent act or fraudulent misrepresentation;
10.4.3. any gross negligence or wilful misconduct of either Party; or
10.4.4. any other liability which cannot be excluded or limited as a matter of law.
11. EXCUSED PERFORMANCE
11.1. Altron Karabina will be relieved from performing its directly affected obligations pursuant to this Agreement if, and to the extent that the relevant non-performance directly results from the Customer’s failure to perform a Customer Dependency (an “Excused Event”), and Altron Karabina –
11.1.1. promptly, and in any event within 5 (five) days of the Customer’s failure to perform a Customer Dependency provides the Customer with notice of such failure, act or omission and its intention to rely on this clause 11 (the “Relief Notice”);
11.1.2. uses commercially reasonable efforts to perform (and to minimise the impact of such non performance) notwithstanding any matters referred to in the Relief Notice; and
11.1.3. recommences performance immediately following resolution of the failure to perform the Customer Dependency.
11.2. The Relief Notice will –
11.2.1. identify the cause or causes of the delay or interruption;
11.2.2. provide details of the delay or interruption and expected duration;
11.2.3. identify clearly which Services or other obligations pursuant to this Agreement are to be affected and, in the reasonable opinion of Altron Karabina, the extent to which they are to be affected;
11.2.4. identify as far as possible the extent to which Altron Karabina’s fulfilment of the relevant obligations under this Agreement will be delayed, interrupted or otherwise affected; and
11.2.5. give indications of the proposed rectification steps to be taken by Altron Karabina to solve the problem and of the progress made so far.
12.1. Customer Right to Terminate
Subject to the terms of the applicable Service Schedule or Proposal, the Customer may terminate the Agreement in whole, or in part, or any Service Schedule and/or Proposal in whole, or in part, for convenience by giving at least 90 (ninety) days’ written notice to Altron Karabina. The Customer will be liable for payment of the termination charges (if any) and any Fees due and owing up to the Termination Date.
12.2. Termination by Altron Karabina
12.2.1. Altron Karabina may terminate any Service Schedule and/or Proposal, by giving written notice to the Customer, if the amount of unpaid Fees pursuant to that Service Schedule and/or Proposal is in excess of two months’ aggregate Fees, provided that Altron Karabina has given the Customer a notice of default relating to such non-payment (“Initial Notice”), and the Customer has failed to cure such default within 7 (seven) days of receipt of the Initial Notice.
12.2.2. Altron Karabina may immediately, by written notice to the Customer, terminate the Agreement in whole or in part or any Service Schedule and/or Proposal in whole or in part, if a Force Majeure Event persist for more than 30 days, provided Altron Karabina has used commercially reasonable efforts to resume performance of the Services impacted by the Force Majeure Event.
12.3. Accrued Rights
The expiry or termination of this Agreement or any Service Schedule and/or Proposal will not affect any accrued rights or liabilities of either Party, nor will it affect the coming into force or remaining in force of any provision which is intended expressly or impliedly to come into or remain in force.
12.4. Survival of terms
All terms that by their nature are intended to survive the expiry or termination of this Agreement, will survive the expiry or termination of the Agreement.
13. DISPUTE RESOLUTION PROCEDURE
13.1. It is the intention of the Parties to resolve any issues in a constructive manner that reflects the concerns and commercial interests of each Party.
13.2. The Parties will attempt to resolve disputes between them arising out of or relating to the Agreement, using the dispute resolution procedure set out in this clause 13. Nothing in this clause 13 will restrict either Party’s ability to seek any urgent relief to preserve a legal right or remedy, or to protect a proprietary or trade secret right, by initiating court proceedings.
13.3. Each Party will designate an executive representative to represent it for the purposes of this clause 13 (each a “Business Representative).
13.4. Disputes will be referred to each Party’s Business Representative for resolution. The Business Representatives will discuss the problems and attempt to resolve the dispute without unreasonable delay and without the necessity of any formal proceeding.
13.5. The Parties will use commercially reasonable efforts to resolve the dispute within 10 (ten) Business Days.
13.6. To the extent that the Parties are unable to resolve the dispute within the stipulated timeframe under clause 13.5, then any dispute arising out of or in connection with this Agreement, including the validity, interpretation, implementation, execution, rectification, termination or cancellation of this Agreement, may at the instance of the Party seeking relief, be decided by way of arbitration in accordance with the provisions of clause 14.
14.1. Subject to the provisions of clause 13, any dispute arising out of or in connection with the Agreement, including the validity, interpretation, implementation, execution, rectification, termination or cancellation of the Agreement, may at the instance of the Party seeking relief, be decided by way of arbitration in accordance with the provisions of this clause 14.
14.2. The arbitration shall take place in Johannesburg and in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”).
14.3. The Parties irrevocably agree that any award made in the arbitration proceedings shall be final and not subject to appeal, and may be made an order of court of competent jurisdiction.
14.4. Nothing herein contained shall be deemed to prevent or prohibit a Party from applying to the appropriate court for urgent relief pending the outcome of the arbitration proceedings.
14.5. Any arbitration in terms of this clause shall be conducted in camera and the Parties shall treat as confidential and not disclose to any third party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of all the disputants.
14.6. The provisions of this clause 14 are severable from the rest of the Agreement and shall survive the expiry or termination of the Agreement for any reason whatsoever.
The Parties agree that for the duration of the Agreement and 12 (twelve) months thereafter, neither Party shall, without prior written consent of the other, engage, employ or otherwise solicit for employment, whether directly or indirectly, any person who was or is a member of the staff of the other Party involved in the acquisition or provision of the Services in terms hereof. To the extent that either Party breaches this provision (“Defaulting Party”), such Party shall pay the other Party (“Innocent Party”) a recruitment fee equal to 12 (twelve) times the gross monthly amount paid by the Innocent Party to the person concerned. Such amount shall be payable within 30 (thirty) days of commencement of such person’s appointment with the Defaulting Party.
16. FORCE MAJEURE
16.1. Neither Party will be liable to the other for any failure, delay or default in the performance of its obligations under this Agreement, if and to the extent that such failure, delay or default is caused by force majeure including (without detracting from any other occurrences covered by the rules and principles relating to force majeure) casus fortuitous, act of God, strikes, lock out, fire, riot, flood, drought, state of emergency, inability to secure power, materials or supplies, embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, any requirements of any authority or other competent local authority, war (whether declared or not), civil disturbance, any circumstance beyond its reasonable control, court order, or failures, shortages, interruptions or fluctuations in electrical power, water supply or communications (each a “Force Majeure Event”).
16.2. The Party claiming the Force Majeure Event will promptly (and in any event within 3 (three) business days notify the other Party in writing of its reasons for the delay or stoppage and its likely duration and will take all reasonable steps to overcome the delay or stoppage.
16.3. If the Party claiming the Force Majeure Event has complied with clause 16.2 its performance under this Agreement will be suspended for the period that the Force Majeure Event continues, and the Party will have an extension of time for performance equal to such period. As regards the delay or stoppage arising from the Force Majeure Event –
16.3.1. any costs arising from such delay or stoppage will be borne by the Party incurring those costs;
16.3.2. the Party claiming the Force Majeure Event will take all reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event; and
16.3.3. if the Force Majeure Event continues for more than 30 (thirty) consecutive days, either Party may terminate the Agreement with immediate effect on giving written notice to the other Party and neither Party will be liable to the other for such termination.
17.1. Entire Agreement
17.1.1. This Agreement, together with all schedules, appendices, Proposals, Service Schedules and/or amendments thereto constitute the entire agreement between the Parties with respect to its subject matter. Where, however, the Parties have concluded and signed a principal contract, the terms contained in such contract shall take precedence over these Terms and Conditions.
17.1.2. Each Party acknowledges and agrees that it has not entered into this Agreement in reliance on any statement or representation of any person (whether a party to this Agreement or not) other than as expressly incorporated in this Agreement. Each of the Parties irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Agreement by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in this Agreement.
All amounts set out in this Agreement shall be exclusive of value added tax (if any) or any other local applicable equivalent taxes or withholding or other non-recoverable taxes or duties, which shall be invoiced and paid by the Customer at the applicable rate and the manner prescribed by law from time to time.
17.3. Exchange Rate
The cost to Altron Karabina of materials or Services purchased overseas may be more or less than the cost anticipated at the date when Altron Karabina ordered the relevant materials or Services (or obtained the Customer’s approval for such costs) as a result of fluctuations in the rate of currency exchange. If so, Altron Karabina will charge the Customer at the rate of currency exchange in operation on the date Altron Karabina pays for the relevant materials or Services, which will be deemed to be the Standard Bank foreign currency buy rate for the currency in the Republic of South Africa on that day. For the avoidance of doubt, this buy rate is defined as the rate received on buying the relevant foreign currency with South African Rand.
17.4. Cession, Delegation and Assignment
Save as expressly provided for in this Agreement, a Party shall not cede any of its rights, delegate any of its obligations or otherwise assign, dispose of, encumber or transfer any of its rights, obligations or interest in, under or in terms of this Agreement to any third party, without the prior written consent of the other Party, except where such cession, delegation, assignment or transfer takes place to an Affiliate of either Party.
17.5. Compliance with Applicable Laws
The Parties will each perform their respective obligations under this Agreement in accordance with all applicable laws.
Any notice to be given must be in writing and delivered personally, sent by courier or electronic transmission to the recipient’s Business Representative and legal department. The address for service of each Party will be the address as notified in writing to the Party giving the notice. A notice will be deemed to have been served –
17.6.1. if personally delivered, at the time of delivery;
17.6.2. if sent by courier, one Business Day after despatch; and
17.6.3. if sent by electronic transmission, when the transmission is complete.
No granting of time or indulgence shall be or be deemed to be a waiver of any term or condition of this Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach of that provision or any other provision.
If a court of competent jurisdiction or other competent body decides that any provision of this Agreement is void or otherwise ineffective but would be valid and effective if appropriately modified then such provision will apply with the modification necessary to make it valid and effective. If such a provision cannot be so modified, the provisions’ invalidity or ineffectiveness will not affect or impair the validity or legal effect of any other provision of this Agreement.
No variation or alteration to this Agreement will be effective unless in writing and signed by the Parties and expressly identified as a variation or alteration of this Agreement.
17.10. No Partnership or Agency
Altron Karabina will at all times be an independent contractor. Nothing in this Agreement will constitute or be deemed to constitute, either Party as an employee, representative, agent, partner or joint venture of the other. Save as expressly authorised in this Agreement and then only to the extent so authorised, neither Party will have any authority to act nor make representations on behalf of the other or create any contractual liability to a third party on behalf of the other Party.
17.11. Further Assurance
Each Party will do and execute, or arrange for the doing and execution of, each act, document and thing reasonably within its power to implement and give effect to this Agreement.
17.12. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and the Parties submit to the non exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg.