1. Definitions

• In this Agreement, unless inconsistent with, or otherwise indicated by, the context:
  • "This Agreement" means the agreement set out in this document and the annexures hereto;
  • "Business Day" means any day that is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
  • "Client" means the Party listed as such on the face of this Agreement.
  • "Confidential Information" shall for the purposes of this agreement include, without limitation, all commercial and financial information, know-how, trade secrets, processes and data in whatever form, communicated to the Receiving Party or a acquired by the receiving party from the Disclosing Party during the course of the parties' negotiations or subsequent association with one another. Such information includes information about websites, software, screens, specifications, data, methods, processes, procedures, improvements, marketing techniques and business plans, strategies, customer names and other information related to customers, price lists, pricing policies and financial information or other business in oral, demonstrative, written, graphic or machine-readable form, which is unpublished, not available to the general public or trade, and which is maintained as confidential and proprietary information by the Disclosing Party for regulatory, customer relations, and/or competitive reasons. Confidential Information also includes any information described above which the Disclosing Party has obtained in confidence from another Party.
  • "The Date of Signature" " means the date of signature of the Agreement, Proposal or Quotation by the last Party signing;
  • "Disclosing Party" means a party to this agreement who discloses Confidential Information to the other;
  • "The Effective Date" means, notwithstanding the Date of Signature, the date listed on the face of the Agreement, Proposal, Annexure or Quotation as such;
  • "Intellectual Property" means all intellectual property relating to the business of the Service Provider, whether registered or not, including (without being limited to) all rights, title and interest in and to any goodwill, reputation, technology, trade secrets, reports, recommendations, business systems or methods, colour schemes, décor, logos, trade names and styles, trademarks, designs, patents, copyrights, inventions or any other similar intellectual property whether in existence at the Effective Date or not;
  • "EE Laws" means all laws, regulations, by-laws, rules, directives, orders and other requirements of any government or any government agency, body or authority, including any regulator or court relating directly or indirectly to Broad Based Black Economic Empowerment, Employment Equity, Skills Development in the Republic of South Africa.
  • "Laws / Law" means all laws, regulations, by-laws, rules, directives, orders and other requirements of any government or any government agency, body or authority, including any regulator or court;
  • "Parties" means the Service Provider and the Client collectively and a reference to a "Party" shall mean either the Service Provider or the Client, as determined from the context of this Agreement;
  • "Personal Information" means personal information as defined in POPIA, and any other information which may be defined or regulated as "personal information" in terms of any existing or future applicable Laws;
  • "Process" shall bear the meaning ascribed to it in POPIA;
  • "POPIA" means the Protection of Personal Information Act No. 4 of 2013, as amended;
  • "The Proposal" or "Quotation" is the document prepared by the Service Provider detailing inter alia the Services, the costing and other incidental details related to the Services which is presented to the Client for the purposes of entering into this Agreement.
  • "Receiving Party" means a party to this agreement who receives confidential information form the disclosing party.
  • "Services"/ "Service" means the services/service to be provided by the Service Provider to the Client provided for in this Agreement as is set out in the Proposal (Annexure A) or Quotation hereto;
  • "Service Provider" means DOT CONNECTORS (Proprietary) Limited with Registration number 2017/298906/07;
  • "VAT" means Value Added Tax levied in terms of the VAT Act;
  • "VAT Act" means the Value Added Tax Act No. 89 of 1991, as amended.
• Any reference to the singular includes the plural and vice versa;
• Any reference to natural persons or persons includes legal persons and vice versa; and
• Any reference to a gender includes the other genders.
• Should any provision in a definition be a substantive provision conferring rights or imposing obligations on any Party, then effect shall be given to that provision as if it were a substantive provision in the body of this Agreement.
• Any reference to an enactment, regulation, rule or by-law is that enactment, regulation, rule or by-law as at the Date of Signature, and as amended or replaced from time to time.
• Where any number of days is prescribed, such number shall exclude the first and include the last day, unless the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday in the Republic of South Africa.
• The expiration or termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding the fact that the clauses themselves do not expressly provide this.
• The rule of construction that this Agreement shall be interpreted against the party responsible for the drafting or preparation of this Agreement shall not apply.
• The clause headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
• Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.

2. Parties

The parties to this agreement are –

• DOT CONNECTORS (Proprietary) Limited with Registration number 2017/298906/07 ("Service Provider");
• The party listed under as the Client in the Proposal, Annexure or Quotation provided

3. Introduction

• The Client has approached the Service Provider for the purpose of procuring the Services as set out in the Proposal, Annexure or Quotation provided

4. Appointment

• The Client appoints the Service Provider, which appointment the Service Provider accepts, with effect of the Effective Date to provide it with the Services on the terms and conditions as set out in this Agreement.

5. Term

• Subject to the provisions of clause 15 (Breach) and any other applicable provisions hereof providing otherwise, this Agreement commences on the Effective Date and shall continue for a period of 12 months.
• This Agreement may be terminated by either Party on no less than thirty (30) days written notice of termination to the other for convenience and/or without reason.
• Should the Agreement be terminated at the instance of the Client in terms of clause 5.2, the client shall pay a penalty equivalent to the charges applicable for 2 months under this Agreement which penalty will be invoiced to the Client in a final invoice.

6. Legal nature of the appointment

• The Client undertakes not to portray itself to the general public as an agent of the Service Provider and the Service Provider undertakes not to portray itself to the general public as an agent of the Client.
• The relationship between the Parties in terms of this Agreement shall involve a close interaction between two independent contracting Parties and in the circumstances shall not imply any partnership in the legal sense, nor shall it constitute either Party the agent or authorised representative of the other Party.
• The rights and obligations of the Parties in terms of this Agreement shall be incapable of being ceded, assigned or delegated to any other person outside of the Service Provider and/or the Client, save with the written consent of the other party, or as provided for in this Agreement.
• Each Party warrants that it is not acting as an agent for an undisclosed principal.

7. Services

• The Service Provider hereby agrees and undertakes to provide the Services to the Client with effect from the Effective Date

8. Service provider responsibilities

• The Service Provider will perform the Services in accordance with the Proposal or Annexure or Quotation that has been signed by the client
• Subject to clause 9, 11, 12, 20, 21 and/or other applicable clauses in this agreement, advise the Client on steps the Client should take which in the Service Providers opinion are reasonably likely to achieve the desired point level and/or compliance level and/or objective of the Agreement and/or Proposal, Annexure , Quotation Scope within either any or all of the categories (Broad Based Black Economic Empowerment and/or Employment Equity and/or Skills Development and/or related EE Laws, practices and standards) based on information provided by the Client on the affairs of the Client's undertaking and/or enterprise whilst this Agreement remains in effect.
• This Clause 8 is subject to the Client providing accurate information regarding its affairs and/or complying with all of the Client's obligations under this Agreement.
• The Service provider undertakes to act loyally and faithfully to the Client and in such manner as it reasonably considers as most beneficial to the Client's interests.
• The Service Provider must treat all documentation and sensitive information as strictly confidential.

9. Client roles and responsibilities

The Client will:

• Provide all information on the affairs of the Client relevant to the Services;
• Provide all information requested by the Service Provider;
• Not conceal information reasonably required by the Service Provider in performing the Services;
• Disclose all information reasonably required by the Service Provider in providing the Services;
• Pay fees in accordance with this Agreement and/or accepted proposals, Annexures or Quotations
• The Client warrants that all information provided to the Service Provider is correct and/or accurate and/or based on fact.
• Adhere strictly to all deadlines and/or time frames communicated by the Service Provider;
• Adhere to advice and/or recommendations made by the Service Provider;
• Continuously keep the Service Provider updated upon changes in its circumstances and/or information and/or in its affairs;
• By signing this Agreement and/or accepting the Proposal, Annexure or Quotation the Client acknowledges that it has freely and willingly entered into this Agreement on its/his/her own accord.

10. Payment

• Invoices are payable on presentation.
• The Client agrees to pay to the Service Provider the fees, costs and disbursements set out in the pricing Annexure/s. Proposals or Quotations hereto without deduction or set-off of any nature. Payment shall be made into the Service Provider's nominated bank account as specified on the invoice.
• All overdue accounts shall bear interest at the rate of 2% above the lending rate charged to the Service Provider on its overdraft facilities by its bankers, First Rand Bank Limited (acting through its First National Bank Division), as certified by any manager of such bank, whose appointment and authority shall not be necessary to prove, calculated from the due date for such payment to the date of actual payment, both days inclusive.
• The Service Provider may in its sole discretion appropriate any amount received from or on behalf of the Client to current or arrear debt, costs, interest or any amount due by the Client to the Company, notwithstanding any allocation that the Client made.
• The Service Provider also reserves the right to suspend the Services immediately in the event invoices are not paid on the due date, without prejudice to the Service Providers other rights at law.
• Insofar as it may be applicable, annual or other amounts paid in advance are non-refundable.
• Fees, costs and disbursements and any amounts in the pricing annexures, proposal/s or quotation/s hereto and/or this Agreement and/or any schedule hereto are exclusive of VAT which must be added if applicable.

11. Indemnity and disclaimer

• Without prejudice to any of the rights of the Parties at law or in terms of this Agreement including Proposal, Annexure or Quotation –
  • The Client indemnifies and holds the Service Provider harmless against all loss, liability, claim, damage and expense of whatever nature and/or source which the Service Provider may suffer or incur as a result of or in connection with the negligent acts or omissions of the Client, its employees, agents, representatives and/or contractors in connection with the implementation of this Agreement and/or a breach by the Client of this Agreement including Proposal, Annexure or Quotation
• The Client's obligation to indemnify the Service Provider will survive the termination, for any reason, of this Agreement or
• The accuracy of advice provided by the Service Provider is based upon the circumstances of the Client as instructed by the Client, information provided by the Client and upon the current Laws and/or EE Laws applicable to the Services:
  • In the event of changes of circumstances of the Client and/or changes in EE Laws and/or Laws, after the date upon which any advice is given under this Agreement, further advice will need to be obtained from the Service Provider as the current advice will expire. The Service Provider accepts no responsibility or liability for loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of any advice given in such circumstances;
  • Should the information provided by the Client be incorrect the advice will not be accurate and the Client will have to obtain further advice based on correct facts. The Service Provider accepts no responsibility or liability for loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of the inaccuracy of any advice given in such circumstances;
• The client undertakes to always keep the Service Provider updated of its changed circumstances to mitigate the effect of such changes on its affairs from a risk perspective.
• Any advice provided under this Agreement with respect to a Proposal, Annexure or Quotation is provided:
• • only in respect of Broad Based Black Economic Empowerment and/or Employment Equity and/or Skills Development and/or related EE Laws, practices and standards applicable in the Republic of South Africa at the date that the advice is provided;
  • to achieve the Service Providers purpose of endeavouring to advise the Client on steps the Client should take which in the Service Providers opinion are reasonably likely to achieve the desired point level and/or compliance level and/or objective within either any or all of the stated categories (Broad Based Black Economic Empowerment and/or Employment Equity and/or Skills Development and/or related EE Laws, practices and standards) and not for any other purpose;
  • in accordance with the Service Providers level of experience as a Broad Based Black Economic Empowerment and/or Employment Equity and/or Skills Development consultancy.
• The Service Provider does not accept any liability or responsibility for any comment made in this advice which does not relate directly and solely to the scoring of the Broad Based Black Economic Empowerment and/or Employment Equity and/or Skills Development initiatives against the relevant codes and/or EE Laws, as amended from time to time.
• The determination by any industry related verification agency and/or other industry related body and/or regulatory body and/or authority and/or regulator and/or government body(ies) and/or authorities and/or regulators and/or regulatory agents is based on a high level of interpretation by such persons which interpretations due to the nature of the industry may differ to the Service Providers interpretations and accordingly the Client must also engage with their appointed verification agency for guidance. The Service Provider accepts no responsibility or liability for loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of differing interpretations to the interpretation and/or opinion provided in the Service Provider's advice.
• In the event that further information outside the scope of the Proposal and/or information initially provided by the Client is discovered, the Service Provider reserves the right to amend the Proposal, Annexure or Quotation, and accordingly, the Service Provider accepts no responsibility or liability for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of the inaccuracy of any advice given under the initial or earlier Proposal, Annexure or Quotation and/or based on the initial information provided by the Client.
• Any recommendations, opinions or findings stated in advice provided are based on circumstances and facts as they existed at the time that the Service Provider performed the work. Any changes in such circumstances or facts upon which the advice is based may adversely affect any recommendations, opinions or findings contained in advice given and accordingly the Service Provider accepts no responsibility or liability for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of changes in circumstances and/or facts after the work is performed.
• The Service Provider's advice is specifically tailored to a Client's needs and may not be used by any person outside the Client. The use of the advice by unauthorised persons shall be at their own risk and the Service Provider accepts no responsibility or liability for loss, liability, damage or expense of whatsoever nature suffered by the third party or the Client as a result of such unauthorised use.
• The advice given under this Agreement is for use in the Republic of South Africa and not for any other jurisdiction. The Service Provider accepts no responsibility or liability for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of use of the said advice in any other jurisdiction.
• The performance of the Services under this Agreement is dependent on the Client submitting all requested information on time within the deadlines set by the Service Provider. The Client must submit all requested information by the agreed deadline date(s) in order for the Service Provider to compile the submission in time. The Service Provider will not be able to assist if all requested information has not been received within the advised timeframes. The Service Provider accepts no responsibility or liability for any loss, liability, damage or expense of whatsoever nature suffered by the Client which may be attributed or related directly or indirectly to the late submission of requested information;
• The Service Provider is responsible for submissions to the relevant regulatory body(ies) and/or authorities and/or regulators and/or regulatory agents and/or government body(ies) and/or authorities and/or regulators and/or regulatory agents in the industry(or similar persons/entities responsible for applying/determining the Laws and/or EE Laws) in accordance with stated entities and/or person's requirements as dictated (a) by the Service Providers experience as to what these requirements are and/or (b) the Service Provider's reasonable endeavours to align its interpretation of the EE Laws with such requirements. The Service Provider however, cannot guarantee the outcome of the decisions and/or findings and or determinations of such persons being within such stated entities and/or person's full discretion and/or interpretation of the EE Laws. Accordingly, the Service Provider cannot be held responsible for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of:
  • Regulatory body's and/or governing body's and/or regulatory authorities and/or governing authorities and/or regulators and/or government agents/agencies and/or regulatory agents (or similar persons/entities responsible for applying/determining the Laws and/or EE Laws) adverse decisions and/or findings and/or disappointing feedback,
  • Fines,
• The Service Provider cannot be held responsible for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of:
  • Regulatory bodies and/or government bodies and/or, regulatory agents/agencies and/or government agents/agencies and/or regulatory authorities and/or regulators (or similar persons/entities responsible for applying/determining the Laws and/or EE Laws) changing criteria after date of submission;
  • Grant payment delays if applicable;
  • Grant payment dates;
  • Delays in the approval of any Work Place Skills Plan and/or timing of approval of any Work Place Skills Plan.
  • Delays in the finalization of verification process which may cause delays in the issuing of the BEE Certificate by the verification agency.
• Data amendments made by the Client a week or more after the agreed upon deadline, will be subject to an additional hourly charge as detailed on the Proposal, Annexure or Quotation and any work performed in such circumstances will be subject to the Client signing an appropriate waiver and a disclaimer acceptable to the Service Provider.

12. Limitation of liability

Notwithstanding anything to the contrary contained in this Agreement including the Proposal, Annexure or Quotation –

• Neither Party shall be liable to the other for any indirect, special or consequential damages;
• The Service Provider shall not be liable for any loss, liability, damage or expense of whatsoever nature suffered by the Client as a result of or which may be attributable to –
  • Any breach by the Client of its obligations as set out in this Agreement or applicable Laws and/or EE Laws;
  • The intentional or negligent acts or omissions of the Client, its employees, agents, contractors and representatives;
  • Any event of Force Majeure as defined in clause 19.1; or
• Neither Party's aggregate liability, if any, to the other Party under this Agreement, with the exception of the Client's obligation to pay the fees for the Services, shall exceed an amount equal to the charges incurred by the Client under this Agreement during the six month period prior to the occurrence of the first event giving rise to any such liability.
• The limitation of liability set forth in clauses 12.1 and 12.3, will not:
  • Apply in any way to the Client's liability to the Service Provider under clauses 13 (Intellectual Property) and 14(confidentiality) below;
  • Apply to liability resulting from gross negligence or wilful misconduct of the Client, its agents, employees or assigns; or
  • Apply to damages incurred by the Service Provider as a result of governmental, regulatory or judicial action(s) pertaining to violations of any applicable Laws, or any combination of same, to the extent that such damages result from the Client's breach, directly or indirectly, of its obligations under this Agreement.

13. Intellectual property

• The Parties agree and acknowledge that all rights, title and interest in and to each Party's Intellectual Property vests in that Party. Nothing in this Agreement transfers ownership of either Party's Intellectual Property to the other Party.

14. Confidentiality

• Neither Party ("Receiving Party") shall, during the existence of this Agreement or at any time after this Agreement is cancelled or otherwise terminates, use, divulge, disclose, exploit, permit the use of or in any other manner whatsoever use the other Party's ("Disclosing Party") Confidential Information or disclose the existence or contents of this Agreement other than as provided or contemplated in this Agreement; provided that the Receiving Party may disclose the Disclosing Party's Confidential Information and the existence and contents of this Agreement-
  • to the extent required by applicable Laws or the valid order of a court of competent jurisdiction or the request of any governmental or other regulatory authority or agency, in which event the Receiving Party shall so notify the Disclosing Party as promptly as possible (and if possible prior to making any disclosure) and shall use its commercially reasonable endeavours to seek confidential treatment of such Confidential Information;
  • to, and permit the use thereof by, the employees, its representatives and professional advisors to the extent strictly necessary for the purpose of implementing or enforcing this Agreement or obtaining professional advice or conducting its business.
• Excluded Information
  • The obligations of the parties pursuant to the provisions of this agreement shall not apply to any information that:
    • Is known to or was in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party;
    • Is or become publicly known, otherwise than pursuant to a breach of this agreement;
    • Subject to 14.1.1, is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time;
    • Is disclosed to a third party pursuant to the prior written authorisation from the Disclosing Party;
    • Is received from a third party in circumstances that do not result in a breach of the provisions of this Agreement.
    • Is received by the Receiving Party from a third party who has the right to disseminate such Confidential Information;
    • Is or had already been independently generated by the Receiving Party prior to receiving it from the Disclosing Party.
• Warranties
  • The disclosing party warrants to the best of its knowledge and belief that disclosure of the Confidential Information will not infringe the rights of any third party.
• The Parties' obligation in terms of this clause will survive the termination of this Agreement including the termination thereof by the effluxion of time.

15. Breach

• Unless this Agreement provides otherwise, if a Party ("Defaulting Party") commits a breach of any material provision of this Agreement and should such breach be –
  • Capable of being remedied and should the Defaulting Party fail to remedy such breach within 14 (fourteen) days after receiving written notice from the other Party ("Aggrieved Party") requesting it to do so; or
  • incapable of being remedied,
• Then the Aggrieved Party shall be entitled, without prejudice to any other rights which it may have, to claim specific performance of the Defaulting Party's obligations or to cancel this Agreement, in either event without prejudice to the Aggrieved Party's right to claim damages.

16. Termination

• This Agreement shall automatically and immediately terminate if:
  • Either Party is placed in liquidation, whether provisionally or finally; or
  • Either Party is placed under business rescue proceedings as contemplated in Chapter 6 of the Companies Act, as amended; or
  • Either Party commits an act of insolvency as contemplated in the Insolvency Act 24 of 1936, as amended.

17. Consequences of Termination

• Upon termination of this Agreement the Client shall –
  • Pay all amounts then due and owing by the Client to the Service Provider;
  • Cease all use of the Service Providers Intellectual Property; and
  • Immediately deliver to the Service Provider all records, files, information, documentation and other materials, irrespective of the medium upon which same is stored, belonging to the Service Provider, including the Services. The Client shall further delete all copies of the aforesaid items from its systems and shall furnish the Service Provider with a certificate signed by the Clients executive director, confirming return and deletion of the items as aforesaid.

18. Disputes

• Any dispute between the Parties in regard to:
  • The interpretation of;
  • The effect of;
  • The Parties' respective rights and obligations under;
  • A breach of; or
  • Any matter arising out of,
• This Agreement shall be decided by arbitration in the manner set out in this clause 18.
• The said arbitration shall be held subject to the provisions of this clause:
  • at Sandton, Gauteng;
  • Informally;
  • In English, before a single arbitrator, and otherwise in accordance with the rules (including those relating to any appeal) and procedures of the Arbitration Foundation of Southern Africa ("AFSA");
  • It being the intention that if possible it shall be held and concluded within 45 (forty five) Business Days after it has been demanded.
• The arbitrator shall be if the question in issue is:
  • Primarily an accounting matter an independent accountant agreed upon between the Parties;
  • Primarily a legal matter, a practising Senior Counsel with no less than 10 (ten) years standing or retired High Court judge agreed upon between the Parties;
  • Any other matter an independent person agreed upon between the Parties.
• If the Parties cannot agree upon a particular arbitrator in terms of 18.3 above within 7 (seven) days after the arbitration has been demanded, the nomination in terms of 18.3.1, 18.3.2, 18.3.3 as the case may be, shall be made at the request of either Party by the secretariat of AFSA within 7 (seven) days after the Parties have so failed to agree.
• The Parties irrevocably agree that the decision in these arbitration proceedings:
  • Shall be final and binding on them, unless an appeal option is agreed to under the AFSA rules;
  • Shall be carried into effect
  • May be made an order of any Court of competent jurisdiction.
• Nothing herein contained shall prevent or preclude any Party from applying in appropriate circumstances to any court of competent jurisdiction for interim or urgent relief.
• The provisions of this clause 18 shall be divisible from every other part of the Agreement and shall survive the termination or cancellation of this Agreement notwithstanding that the rest of the Agreement may be void or voidable.

19. Force Majeure

• Should either Party ("Invoking Party") be prevented from fulfilling any of its obligations in terms of this Agreement as a result of any Act of God, war, fire, flood, legislation, insurrection, sanctions, trade embargo or any economic or other cause beyond the reasonable control of such Party ("Force Majeure") then the Invoking Party will forthwith give written notice thereof to the other Party –
  • Specifying the cause and anticipated duration of the Force Majeure; and
  • Promptly upon termination of the Force Majeure, stating that such Force Majeure has terminated.
• Performance of any such obligations will be suspended from the date on which notice is given of Force Majeure until the date on which notice is given of termination of Force Majeure ("Suspension Period"), subject always to the remaining provisions of this clause 19.
• The Invoking Party will not be liable for any delay or failure in the performance of any obligation hereunder, or loss or damage due to or resulting from the Force Majeure during the Suspension Period provided that -
  • The Invoking Party uses and continues to use its best efforts to perform such obligation; and
  • if the Force Majeure shall continue for more than 60 (sixty) consecutive days, the other Party will be entitled to cancel this Agreement on the expiry of such period, but will not be entitled to claim damages against the Invoking Party as a result of the delay or failure in the performance of any obligations hereunder due to or resulting from the Force Majeure.

20. General Warranties

• Each of the Parties hereby warrants to and in favour of the other that –
  • It has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement upon signing of the Proposal, Annexure or Quotation provided the Service Provider
  • This Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
  • The execution of this Agreement and the performance of its obligations hereunder does not and shall not:
    • Contravene any law or regulation to which that Party is subject;
    • Contravene any provision of that Party's constitutional documents; or
    • Conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it; and
  • To the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
  • It is entering into this Agreement as principal (and not as agent or in any other capacity);
  • The natural person who signs and executes the signature of the Proposal, Annexure or Quotation for this Agreement or on its behalf is validly and duly authorised to do so;
  • No other party is acting as a fiduciary for it; and
  • It is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in this Agreement, including the Proposal, Annexure or Quotation
• Each of the representations and warranties given by the Parties in terms of this clause shall –
  • be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
  • Continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
  • prima facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.

21. Specific Warrantees by the client

• The client warrants to the Service Provider that:
  • All information provided by it is accurate and/or based on fact;
  • It will always keep the Service Provider informed of changes in its circumstances and/or new facts that arise in relation to the Services and/or that may reasonably have a bearing on the Services.
• Each of the representations and warranties given by the Client in terms of this clause shall –
  • be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
  • Continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and
  • prima facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.

22. Notices

• The Parties choose as their respective addresses set out in this clause for all purposes arising out of or in connection with this Agreement at which addresses all the processes and notices arising out of or in connection with this agreement, its breach or termination may validly be served upon or delivered to the Parties.
• For the purpose of this Agreement the Parties' respective addresses shall be
  • as regards Service Provider at:
  • 33 Riley Road, Pinewood Office Park, Building 1 Ground Floor, Woodmead
  • as regards CLIENT at:
• the address listed on the face of the Agreement, Annexure, Proposal or Quotation under the heading "Client".
• or at such other address in the Republic of South Africa not being a post office box, of which the party concerned may notify the others in writing.
• Any notice given in terms of this Agreement shall be in writing and shall:-
  • if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
  • if posted by prepaid registered post be deemed to have been received by the addressee on the 8th (eighth) Business Day following the date of such posting;
  • if transmitted by facsimile be deemed to have been received by the addressee 1 (one) Business Day after despatch.
• This clause 22 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 22.
• For purposes of legal notices to be issued in terms of this Agreement, the term "writing" or "written" in this clause 22 excludes "data messages" as defined in the Electronic Communications Transactions Act of 2002. For purposes of other notices, the term "writing" or "written" shall include "data messages" as defined in the aforesaid Act; provided that for such data messages to be valid in the case of the Service Provider, any such data message must be sent to the Service Provider and receipt of same must have been acknowledged.

23. Data Protection

• Each Party warrants to the other that in relation to this Agreement, it shall comply strictly with all requirements of the Protection of Personal Information Act (POPIA), as amended from time to time.
• Where any personal information pertaining to the Client and/or its personnel is provided to the Service Provider by the Client and/or collected by the Client from its personnel, the relevant party requesting and/or receiving the information shall ensure that an adequate level of protection is in place and for that purpose, take appropriate technical, physical and organisational security measures designed to protect against unauthorised access, or unlawful processing of the same and against accidental or unlawful destruction, or loss, or damage to the same and shall process such personal information and/or special personal data or information only in connection with the performance of this Agreement.
• Each Party will establish and maintain security measures to secure the integrity and confidentiality of any personal information that it processes, and will follow the requirements in Section 19 of POPIA.
• The Client agrees to indemnify, defend, and hold the Service Provider harmless (and those related to the Service Provider and its personnel) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to the Client failing to comply with its obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
• The Client shall at all times comply with all data use and data protection requirements as may be applicable to the Services as dictated by the Service Provider's data protection policies in force from time to time and/or any applicable Laws; and
• The Client shall protect the confidentiality of any Confidential Information and/or Personal Information pertaining to its personnel and/or affairs and/or persons and in particular shall only release such Confidential Information and/or Personal Information to the Service Provider in accordance with the, POPIA and other applicable Laws.
• The Client shall ensure that prior to providing Personal Information of its own and/or of its personnel to the Service Provider, it shall have obtained all consents (whether from natural or juristic persons – as applicable) that may be required in terms of the POPIA or any other applicable Laws to provide Personal Information to the Service Provider.
• Personal Information and/or advise and/or recommendation containing Personal Information shall be used by the parties solely and exclusively for the performance of their obligations under this Agreement and any other purposes that may be specifically prescribed by applicable Laws.

24. Subcontractors

• The Service Provider shall have the right to sub-contract persons and/or entities in its sole and absolute discretion it deems necessary to enable the Service Provider to fulfil its obligations under this Agreement.

25. Whole Agreement

• This Agreement constitutes the whole agreement between the Parties as to the subject-matter hereof and no agreement, representations or warranties between the Parties other than those set out herein are binding on the Parties.

26. Variation

• No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.

27. Relaxation

• No latitude, extension of time or other indulgence which may be given or allowed by any Party to any other Party in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of, or otherwise affect any of that Party's rights in terms of or arising from this Agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

28. Counterparts

• This Agreement may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument. An electronic counterpart of this Agreement in fax or e-mail form shall be conclusive evidence of the original signature and shall be as effective in law as the counterparts in original form showing the original signatures.

29. Severence

• If any provision contained in this Agreement is held to be illegal, invalid or unenforceable, it shall be severable, shall be deemed to be deleted from this Agreement and shall not affect the validity or enforceability of other provisions in this Agreement. The Parties shall use all reasonable endeavours to replace the invalid or unenforceable provision by a valid provision with effect nearest to the provision being replaced.

30. Jurisdiction and Proper Law

• The validity of this agreement, its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of it or its performance or expiration or earlier cancellation for any reason, shall be determined in accordance with the laws of the Republic of South Africa and the parties hereby submit to the jurisdiction of the South African courts.

31. Warrant of Authority

• The person signing on behalf of the Party they represent expressly warrants his/her authority to do so and that they have obtained all relevant resolutions and/or authorisations.

32. Conflicts and precedence

• If there is a conflict between these terms and conditions (this document being the agreement without its annexures) and its annexures, then, save to the extent expressly stated to the contrary, such conflict will be resolved by giving precedence to such different parts of this Agreement in the following order of precedence:
  • First annexure(s);
  • Second, these terms and conditions/this document being the Agreement with the exclusion of its annexure(s);

33. Costs

• Each Party shall bear its own fees, costs and expenses in respect of the negotiation, execution and implementation of this Agreement