TERMS AND CONDITIONS
1.0 You, the Customer, agree that (a) this Agreement and the associated software and data licence appended hereto and forming an integral part hereof represent the entire Agreement between the Customer and Ubiquitous Connection (Pty) Ltd (hereinafter called UConnect) and that no alterations or additions to this Agreement may be effected unless agreed to by both parties, reduced to writing and signed by the Customer and a duly authorised representative of UConnect; (b) that this agreement will govern all future contractual relationships between the parties; (c) is applicable to all existing debts between the parties; (d) this Agreement is final and binding and is not subject to any suspensive or dissolutive conditions; (e) any conflicting conditions stipulated by the Customer are expressly excluded; (f) these terms supersede all previous conditions without prejudice to any securities or guarantees held by UConnect and (g) these terms apply to all servants and subcontractors of UConnect.
2.0 This Agreement only becomes final and binding on your acceptance of these Terms and Conditions and the Software and Data licence forming an integral part hereof.
3.0 The person effecting the acceptance hereby binds himself/herself in his/her personal capacity as co-debtor jointly and severally for the full amount due to UConnect and agrees that these Standard Terms and Conditions will apply mutatis mutandis to him/her.
4.0 The Customer acknowledges that it does not rely on any representations made by UConnect in regard to the Software, Data or Services or any of their qualities leading up to this Agreement other than those contained in this Agreement. All specifications, price lists, performance figures, advertisements, brochures and other technical data furnished by UConnect in respect of the Software, Data and Services orally or in writing will not form part of the Agreement in any way unless agreed to in writing by
5.0 The Customer agrees that neither UConnect, their licensors nor any of their employees will be liable for any negligent or innocent misrepresentations made to the Customer.
5.1 It is the sole responsibility of the Customer to determine that the Software, Data and Services ordered are suitable for the purposes of intended use.
5.2 The Customer agrees to pay all costs resulting from any acts or omission of the Customer including suspension of work, modification of requirements, or requirements that work be completed earlier than agreed.
6.0 The Customer hereby confirms that the Services on the Tax Invoice issued duly represent the Services ordered by the Customer at the prices agreed to by the Customer and, where access has been provided, that the Customer is satisfied that these conform in all respects to the quality and quantity ordered and are free from any defects.
6.1 All orders or variations to orders, whether oral or in writing, shall be binding and subject to these Standard Terms and Conditions and may not be cancelled.
6.2 UConnect shall be entitled in its sole discretion to split the access to the services ordered in the quantities and on the dates it decides.
6.3 UConnect shall be entitled to invoice each delivery of access actually made separately.
6.4 Access to the Software, Data and Services, is provided to the customer based solely on acceptance of this Agreement and the associated integral license agreement together with payment of the fees charged by UConnect for the Services, and the acceptance and payment thereof are pre-requisites for access.
6.5 Access and any performance times given are merely estimates and are not binding on UConnect.
6.6 The Customer acknowledges all copyrights and shall not duplicate copyrighted material.
6.7 The Customer indemnifiesUConnect against any claims, costs and expenses arising out of the infringement of UConnect?s or their licensors?copyright, patent, trademark or design.
7.0 All guarantees including common law guarantees are hereby specifically excluded.
7.1 Liability under Clause 7.0 is restricted to the cost of repair or replacement of faulty services or granting of a credit at the sole discretion of UConnect.
7.2 No claim under this Agreement shall arise unless the Customer has, within seven days of the alleged breach occurring, given UConnect thirty days written notice by prepaid registered post to rectify any breach of Agreement.
7.3 To be valid, claims must be supported by the original Tax Invoice.
7.4 Either party may terminate services by giving 30 days notice. There shall be no claim for refund of the pro-rata balance of a term, and the Customer will only have access to the Software, Data and Services for the term of the subscription.
8.0 Under no circumstances shall UConnect be liable for any consequential damages or for any delictual liability of any nature whatsoever.
8.1 Under no circumstances shall UConnect be liable for any damage arising from any misuse or abuse of the services.
9.0 Delivery of the Software, Data and Services to the Customer shall take place at the place of business of UConnect.
10.0 The Customer agrees that the amount contained in a Tax Invoice issued by UConnect shall was due unconditionally.
11.0 The Customer agrees to pay the amount on the Tax Invoice at the offices of UConnect.
11.1 The risk of payment rests with the Customer.
12.0 The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by UConnect, reduced to writing and signed by the Customer and a duly authorised representative of UConnect.
12.1 The Customer is not entitled to set off any amount due to the Customer by UConnect against this debt.
13.0 The Customer agrees that the amount due and payable to UConnect may be determined and proven by a certificate issued and signed by an officer of UConnect. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
13.1 Any printout of computer evidence tendered by any party shall be admissible evidence and no party shall object to the admissibility of such evidence purely on grounds that such evidence is computer evidence or that the requirements of the Computer Evidence Act have not been met.
14.0 The Customer agrees that interest shall be payable on any moneys due to UConnect at prime plus 3%, from the date it falls due. In the case of late payment interest shall be calculated from the date of order.
14.1 The Customer expressly waives all rights to claim prescription under the relevant provisions of the Prescription Act 68 of 1969 as amended.
15.0 The Customer agrees that if an account is not settled in full against order; UConnect is: (i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or (ii) to cancel the agreement and claim damages. These remedies are without prejudice to any other right UConnect may be entitled to in terms of this agreement or in law.
16.0 In the event of cancellation UConnect is entitled to immediately block access by the Customer to the service.
17.0 All goods used by UConnect remain the property of UConnector their licensors whether such goods are attached to other property or not.
17.1 The Customer is not entitled to assign any services without the prior written consent of UConnect.
17.2 The copyright of any Software, Data and Services developed by UConnect remains the property of UConnectand the copyright of any Software, Data and Services developed by UConnect?s licensors remains the property of UConnect?s licensors and the Customer may not copy, sell, lease or transfer the Software, Data or Services or any rights in the Software Data or Services to any third party without the prior written authority of UConnect.
17.3 The Customer is hereby licensed to use the Software, Data and Services only on the number of roles declared in the ordering documentation.
17.4 The licence to use the Software, Data and Services is granted only for the period of the role(s) purchased by the customer. Should the Customer have no further use for the Service, the customer undertakes to erase all copies of the Software in its possession.
17.5 The ownership of data collected by the Customer through the utilisation of the QuickFacts software or services shall remain the Intellectual Property of the Customer.
17.6 Connected World (and any of the subsidiaries of the ST Group) shall not be held liable for data loss, loss of data, data integrity, data breach, unauthorized access or data inaccuracy occurring due to negligence, connectivity, hardware failure orby any other means.
17.7 Storage of the data captured by the Customer through the utilisation of the QuickFacts software or services shall be terminated in the event of portal subscription expiry or termination, and shall be determined at the sole discretion of Connected World (and any of the subsidiaries of the ST Group).
17.8 Customer access to the website portal shall be permitted only in the event of a valid and current subscription being in place. Connected World (and any of the subsidiaries of the ST Group) reserves the right to terminate portal access by the Customer in the event of subscription expiry or termination.
17.9 The source code of any application software developed for the Customer remains the property of UConnect.
17.10 The Customer agrees that data receipt, dissemination and access are subject to the limitations as set out in the Acceptable Use Policy.
18.0 The Customer shall be liable to UConnect for all legal expenses, on the attorney-and-own client scale, of an attorney and counsel incurred by UConnect in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this agreement. The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as for any costs, including stamp duties, for any form of security that UConnect may demand.
18.1 The Customer shall furnish sufficient security in lieu of costs in any action instituted by or against the Customer.
18.2 The Customer agrees that UConnect will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate's Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.
19.0 The Customer agrees that no indulgence whatsoever by UConnect will affect the terms of this agreement or any of the rights of UConnect and such indulgence shall not constitute a waiver by UConnect in respect of any of its rights herein. Under no circumstances will UConnect be stopped from exercising any of its rights in terms of this
20.0 UConnect shall have the right to institute any action in either the Magistrate's Court or the Supreme Court at its sole discretion.
21.0 Any document shall be deemed duly presented to the Customer within twenty-four hours of being emailed to the Customer's emailaddress. Any notice given by the one Party to the other Party shall, until the contrary is proved by the addressee, be deemed to be received by the latter Party one day after it has been dispatched by email or telefax, and seven days after it has been dispatched by pre-paid registered post to one of the addresses of the latter Party, or on the same day on which it is delivered by hand.
21.1 The Customer chooses domicilium citandi et executandi at the email address or the physical addresses of any Director (in the case of a company), Member (in the case of close corporations) or of the Owner(s) or Partner(s).
21.2 The invalidity of any part of this Agreement shall not affect the validity of any other part.
22.0 Any order is subject to cancellation by UConnect due to force majeure from any cause beyond the control of UConnect, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, or by reason of an act of God, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
23.0 Any order is subject to cancellation if the Customer breaches any term of this Agreement or makes any attempt of compromise, liquidation, sequestration, termination or judgement is recorded against the Customer or any of its principals.
24.0 The Customer agrees that UConnect will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in clause 22 or 23 occur.
25.0 This Agreement and its interpretation are subject to South African law. SOFTWARE, DATA AND Service LICENCE Agreement Between UBIQUITOUS CONNECTION (PTY) LTD Trading as UCONNECT (PROVIDER) and the Customer
Whereas the CUSTOMER desires to acquire SERVICES from the PROVIDERand to use certain EQUIPMENT, DATA, INFRUSTRUCTURE and SOFTWARE; and
whereas the PROVIDER is able and willing to provide such SOFTWARE, INFRASTRUCTURE and SERVICES to CUSTOMER; and
whereas the PROVIDER has the necessary skills, capabilities and expertise to provide SERVICES as elaborated in this AGREEMENT; now, therefore, the Parties agree as follows:
1 INTERPRETATION AND STATUS OF THIS AGREEMENT
1.1 This AGREEMENT is an enabling agreement under the terms and conditions of which the Parties may from time to time arrange for services to be performed in fulfilment of CUSTOMER?s requirements. Such services, the charges there for and any other specific terms may be set out on PROVIDER?S website and CUSTOMER?S acceptance thereof constitutes an irrevocable acceptance of the Terms and Conditions of Sale and of the Terms and Conditions of this Software, Data and Services Licence agreement. Each order of such Software, Data and Services shall be accepted by the CUSTOMER before access will be provided to CUSTOMER by PROVIDER.
1.2 The acceptance of these Terms and Conditions of Sale and of the Terms and Conditions of this Software, Data and Services Licence agreement shall constitute the conclusion of this AGREEMENT. Insofar as any condition in the Terms and Conditions of Sale conflicts with those of the Terms and Conditions of this Software, Data and Services Licence the conditions of the Terms and Conditions of this Software, Data and Services Licence shall prevail.
1.3 The headings to the clauses of this AGREEMENT shall have no effect upon its interpretation.
1.4 In this AGREEMENT, except where the context clearly indicates a contrary intention, the singular includes the plural and vice versa, words importing the masculine gender include the feminine and vice versa, the word ?person? includes a company, close corporation and any other juristic person and a partnership and any other body of persons (whether corporate or unincorporated).
1.5 The Parties hereby confirm that this agreement, together with the Terms and Conditions of Sale constitutes the entire agreement between the Parties and no Party shall have any claim or right of action against the other for any undertaking, representation, or warranty not included in this agreement.
1.6 The Parties hereby confirm that this agreement replaces all other agreements that exist or may have existed in any form whatever, between them, with regard to the subject matter dealt with in this agreement.
1.7 Any amendment or change of any nature (including cancellation) made to this agreement shall only be valid if it is in writing, and signed by both Parties.
1.8 This agreement shall be governed by and construed according to the laws of the Republic of South Africa.
1.9 If any term, condition, provision or performance or any part of a term, condition, provision or performance of this agreement is determined to be invalid, illegal, unlawful or unenforceable to any extent, that term, condition, provision or performance or the relevant part thereof shall be removed from the remaining terms, conditions, provisions and performance of this agreement, or amended to make it valid, lawful and enforceable, in such a manner as to leave the amended agreement substantially the same in essence, and the agreement so amended shall remain of force and effect.
1.10 Failure or neglect by either Party, at any time, to enforce any of the provisions of this agreement, shall not, in any manner, be construed to be a waiver of any of that Party`s rights in that regard and in terms of this agreement. Such failure or neglect shall not, in any manner, affect the continued, unaltered validity of this agreement, or prejudice the right of that Party to institute subsequent action.
1.11 If any term, condition, provision or performance or any part of a term, condition, provision or performance of this agreement is determined to be invalid, illegal, unlawful or unenforceable to any extent, that term, condition, provision or performance or the relevant part thereof shall be removed from the remaining terms, conditions, provisions and performance of this agreement, or amended to make it valid, lawful and enforceable, in such a manner as to leave the amended agreement substantially the same in essence, and the agreement so amended shall remain of force and effect.
1.12 No addition to, variation or consensual cancellation of this AGREEMENT or any part thereof shall be of any force or effect unless in writing and signed by the Parties.
1.13 The CUSTOMER shall not be entitled to cede or assign or delegate its rights or obligations in terms of the AGREEMENT without the prior written consent of the PROVIDER, which consent shall not unreasonable be withheld.
1.14 In this AGREEMENT, unless the context otherwise indicates:
1.14.1 AGREEMENT shall mean this AGREEMENT read in conjunction with the preceding Terms and Conditions of Sale;
1.14.2 CUSTOMER shall mean the Party who accepted these Terms and Conditions of Sale and the Terms and Conditions of this Software, Data and Services Licence;
1.14.3 DATA shall mean any data captured, owned and accessed by the CUSTOMER
1.14.4 Effective Date shall mean the date on which the SERVICES commence for the first USER under this AGREEMENT subject to the procurement of services by the CUSTOMER;
1.14.5 EQUIPMENT shall mean any device certified by the PROVIDER consisting of a GSM unit and SIM card, together with its GPS capability, where applicable;
1.14.6 Service Provider shall mean any one of the third party service providers from time to time used by the PROVIDER for the purposes of fulfilling the SERVICES;
1.14.7 Host Centre shall mean the host centre managed by PROVIDER for the delivery of the SERVICES;
1.14.8 Term shall mean the period of validity of this AGREEMENT; subject to the existence of a valid role or software subscription and the duration thereof.
1.14.9 "LicenCe" shall mean the grant of certain limited rights to use the SOFTWARE, DATA and SERVICES on the EQUIPMENT. In order to preserve and protect its rights under applicable law, UCONNECT is not selling the ownership rights in Software (owned by or licensed to UCONNECT) to the CUSTOMER. UCONNECT specifically retains title to all UCONNECT Software and Related Materials, and UCONNECT?s licensors retain title to items owned by them.
1.14.10 UCONNECT shall mean Ubiquitous Connection (Pty) Ltd, registration number, 2006/015219/07, a private company registered and conducting business in the Republic of South Africa;
1.14.11 Parties shall mean the parties to this AGREEMENT, being PROVIDER and CUSTOMER, and
1.14.12 Party shall mean either one of the Parties;
1.14.13 PROVIDER shall mean the provider of the SERVICES being UCONNECT, its cessionary or its assignees;
1.14.14 SERVICES shall mean the communications, data collection, equipment tracking and other services provided to the CUSTOMER by PROVIDERwhich may include (without limitation) consulting, advising, tracking, recording, programming, installation, reporting, implementation, training, maintenance, data enhancement, development of CUSTOMER-specific applications and day-to-day assistance;
1.14.15 Software shall mean any Software used as an essential component of the SERVICES, and which the CUSTOMER uses;
1.14.16 Territory shall mean the territory in which Provider offers the SERVICES to the CUSTOMER;
1.14.17 USER shall mean any registered role comprised of a user name or password which facilitates system access.
1.14.18 User Application? shall mean the designated document, whether electronic or paper on which the CUSTOMER applies for SERVICES in respect of a particular device;
1.14.19 User List shall mean the list of USERS licensed for the CUSTOMER;
2 APPOINTMENT, Commencement, TERM AND NOTICE
2.1 The CUSTOMER hereby appoints the PROVIDER to provide the SERVICES to the CUSTOMER. The PROVIDER accepts the appointment on the terms and conditions set out herein.
2.2 This agreement becomes effective on the Effective Date and remains valid until revised or terminated by the PROVIDER and the CUSTOMER in terms hereof.
2.3 The Term of this AGREEMENT shall be the term of the Service ordered by the CUSTOMER.
The PROVIDER shall offer the following SERVICES in terms of this AGREEMENT and the CUSTOMER shall select from the offered SERVICES those that are defined on the PROVIDER?S website:
3.1 QuickFacts Lite
3.2 QuickFacts Standard
3.3 QuickFacts Professional
3.7 Templates (mobile apps)
4.1 The Parties agree to the exclusive use of EQUIPMENT approved and certified by the PROVIDER.
4.2 The CUSTOMER agrees to the proper installation of the SOFTWARE on the EQUIPMENT.
4.3 The CUSTOMER agrees not to alter the SOFTWARE in any way.
5.1 The PROVIDER agrees to grant the CUSTOMER and the CUSTOMER accepts a limited, non-exclusive licence to use the SOFTWARE included as an integral part of the SERVICES.
5.2 The CUSTOMER agrees to accept and observe the terms and conditions of the SOFTWARE licences.
5.3 The CUSTOMER agrees that the intellectual property rights in the SOFTWARE and any enhancements or modifications thereof remain the property of UCONNECT and/or its licensors.
5.4 The CUSTOMER undertakes to limit access to the SERVICES, SOFTWARE and DATA to its employees, agents or subcontractors.
5.5 All rights to the SERVICES, SOFTWARE and DATA shall cease on termination of this AGREEMENT.
6.1 SERVICE charges shall be paid in advance.
6.2 The CUSTOMER accepts the statement of account produced by the PROVIDER as prima facie proof to substantiate USER charges. The CUSTOMER further accepts that a certificate signed by any director, for the time being, of the PROVIDER in respect of indebtedness of the CUSTOMER to the PROVIDER under this AGREEMENT shall be prima facie evidence of the CUSTOMER?S indebtedness to the PROVIDER.
6.3 The CUSTOMER is not entitled to withhold payment of any amounts due under this AGREEMENT if the EQUIPMENT or SERVICES are not functional. Where applicable, the CUSTOMER shall insure the EQUIPMENT against the risk of loss damage and destruction and indemnifies the PROVIDER against costs arising from failure to function, loss, damage or destruction of the EQUIPMENT. The PROVIDER reserves the right to suspend the SERVICES if the CUSTOMER is in arrears on any charges.
6.4 The PROVIDER reserves the right to increase the SERVICE charges from time to time.
6.5 The CUSTOMER agrees to be liable for all charges arising from the unlawful use of the equipment, however arising.
6.6 Any amount arising from this AGREEMENT that is overdue shall bear interest at the maximum rate permissible by law.
7 CUSTOMER?S OBLIGATIONS
The CUSTOMER shall have the following obligations: -
7.1 to keep PROVIDER informed about any changes in the information required by the PROVIDER in order that the PROVIDER is able to deliver the SERVICES;
7.2 to indemnify the PROVIDER from any loss in the event that the aforesaid information is inaccurate or late in notification;
7.3 to authorise the PROVIDER to access credit bureau and other sources of financial information for the establishment of CUSTOMER?S financial position;
8 LIMITATION OF LIABILITY
8.1 The DATA, SOFTWARE and SERVICES are provided without warranty. The PROVIDER makes no representations or warranties, express or implied, with respect to the EQUIPMENT, DATA, SOFTWARE and SERVICES, including by way of example and not limitation, the implied warranties of title, merchantability and fitness for a particular purpose. By way of further example and not limitation, the PROVIDER makes no representations or warranties, express or implied, with respect to the accuracy, reliability or completeness of the EQUIPMENT, DATA, SOFTWARE and SERVICES. The CUSTOMER assumes the entire risk as to the use of the EQUIPMENT, DATA, SOFTWARE and SERVICES. In no event shall the PROVIDER be liable to the CUSTOMER or any other person, regardless of the cause, for the effectiveness or accuracy of the EQUIPMENT, DATA, SOFTWARE and SERVICES, or for any special, indirect, incidental or consequential damages arising from or occasioned by the CUSTOMER?S use of the EQUIPMENT, DATA, SOFTWARE and SERVICES, even if advised of the possibility of such damages. In the event the foregoing is found by a court of competent jurisdiction to be ineffective, the CUSTOMER hereby agrees that the PROVIDER?S maximum liability for any claim arising in connection with the EQUIPMENT, DATA, SOFTWARE and SERVICES (whether in contract, tort, including negligence, product liability or otherwise) shall not exceed the SERVICE charges paid by the CUSTOMER with respect to the EQUIPMENT, DATA, SOFTWARE and SERVICES at issue.
8.2 The CUSTOMER further acknowledges that the nature of the EQUIPMENT, DATA, SOFTWARE and SERVICES is such that the PROVIDER cannot warrant the correctness, accuracy, reliability, currentness or otherwise of the EQUIPMENT, DATA, SOFTWARE and SERVICES nor the fitness for any specified purpose. The CUSTOMER acknowledges that the operation of the EQUIPMENT, DATA, SOFTWARE and SERVICES is complex and that the EQUIPMENT, DATA, SOFTWARE and SERVICES may have certain defects when delivered. You agree that the PROVIDER shall have no liability in respect of any breach of contract and the CUSTOMER assumes the entire risk as to the performance and results of the use of the EQUIPMENT, DATA, SOFTWARE and SERVICES.
8.3 The CUSTOMER further acknowledges that the Third Party Service Provider(s) makes no warranties of continuity of service or that interruption, suspension or termination of service will not occur for whatever reason, and the Third Party Service Provider shall not be liable for any loss or damage, whether direct, indirect or consequential arising from such lack of continuity, interruption, suspension or termination of service, whether arising from any negligent act or omission arising on the part of the Third Party Service Provider, its employees or its agents.
8.4 The PROVIDER makes no warranties, express or implied, relating to the ownership of intellectual property rights in EQUIPMENT, DATA, SOFTWARE and SERVICES derived wholly or in part from source EQUIPMENT, DATA, SOFTWARE and SERVICES supplied by third party suppliers, save that the PROVIDER warrants that it has the agreement of the third party Supplier(s) to include their material in the EQUIPMENT, DATA, SOFTWARE and SERVICES. The PROVIDER shall not be liable for any direct, indirect, incidental or consequential loss caused to the CUSTOMER as a result of the EQUIPMENT, DATA, SOFTWARE and SERVICES infringing (whether alleged or proven) the intellectual property rights belonging to third parties save that the PROVIDER will refund the price paid by the CUSTOMER for the use of such infringing EQUIPMENT, DATA, SOFTWARE and SERVICES. To the extent that this AGREEMENT contains provisions that relate to the PROVIDER?S licensors, then those provisions constitute a stipulatio alteri in favour of the PROVIDER?S licensors.
8.5 The express terms of this AGREEMENT are in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
8.6 The CUSTOMER acknowledges that he has read this limited warranty, understands it, and agrees to be bound by its terms and conditions. The CUSTOMER also agrees that:
8.6.1 No oral or written information or advice given by the PROVIDER, its dealers, distributors, agents or employees shall in any way increase the scope of this Limited Warranty Disclaimer, and the CUSTOMER may not rely on any such information or advice.
8.6.2 This Agreement is the complete and exclusive statement of agreement of the PROVIDER and the CUSTOMER, and supersedes all proposals, oral or written, and any other communications the CUSTOMER may have had prior to downloading the execution of this AGREEMENT.
9 DETERMINATION OF DISPUTES
9.1 Any dispute (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) arising out of or pursuant to this agreement including, but not limited to, any dispute or difficulty arising in connection with the interpretation, application and/or effect of any of the terms or conditions contained herein and/or arising out of the termination or cancellation of this agreement or any provisions thereof, and any question to be agreed between the Parties hereafter and in respect of which no agreement can be reached (hereinafter also included in the term ?dispute?) shall, unless resolved between the Parties, be referred to such person as may be agreed upon between the Parties. Such dispute should be referred: -
9.1.1 to a senior counsel practising as such at the Johannesburg Bar and nominated by the President for the time being of the Society of Advocates of South Africa (Witwatersrand Division), if the dispute in question is a legal issue;
9.1.2 to a chartered accountant of not less that fifteen years? standing practising as such in Johannesburg and nominated by the President for the time being of the Transvaal Society of Chartered Accountants, if the dispute in question is an accounting issue;
9.1.3 to a senior counsel practising as such at the Johannesburg Bar and nominated by the President for the time being of the Society of Advocates of South Africa (Witwatersrand Division) if the Parties cannot agree within thirty days after delivery of written notice by one Party to the other whether the dispute in question falls within
clause 9.1.1 or 9.1.2.
9.2 Any person agreed upon or nominated as aforesaid (?the expert?) shall in all respects act as an expert and not as an arbitrator.
9.3 The expert shall be vested with entire discretion as to the procedure and manner to be followed in arriving at his decision.
9.4 The Parties shall use their best endeavours to procure that the decision of the expert shall be given within twenty-one days or so soon thereafter as reasonably possible after it has been demanded.
9.5 The expert?s decision shall be final and binding on the Parties, shall be carried into effect and may be made an order of any competent court at the instance of either of the Parties.
9.6 The provisions of this clause 9 constitute an irrevocable consent by the Parties to any proceedings in terms thereof and neither of the Parties shall be entitled to withdraw therefrom or claim at any such proceedings that he is not bound by this clause 9.
9.7 The provisions of this clause 9 are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
9.8 The expert may make any order as to costs, which in his sole and absolute discretion he deems fit.
10 TERMINATION, CANCELLATION AND BREACH
10.1 During the Term of this AGREEMENT, it may be terminated by thirty days notice by either Party.
10.2 Failing such notice, this Agreement shall continue to the end of the Term.
10.3 If either Party is in breach of any material term or condition or performance due in terms of this agreement and fails to correct such breach within thirty days (or such extended period as is reasonable in the circumstances) of a written notice to that effect by the other Party, the latter Party shall be entitled to cancel the agreement forthwith and without prejudice; provided that in the event of this agreement being cancelled, all SERVICES to the AGREEMENT will automatically terminate on completion of the notice period. "Material" shall, for the purpose of this clause 10.3, mean any term, condition or performance which goes to the root of this agreement and which would, in the event of its breach, in terms of common law have entitled the non-defaulting Party to cancel this agreement.
10.4 In the event of termination by the PROVIDER in terms of clause 10.1 the PROVIDER shall meet its commitments in terms of the AGREEMENT in force at the time. Should any existing SERVICES extend for longer than the notice period, the Parties shall agree on the steps to be taken thereafter, including but not limited to, the PROVIDER agreeing to complete any outstanding SERVICES at the CUSTOMER's request.
10.5 In the event of cancellation by the CUSTOMER in terms of clause 10.1, the CUSTOMER shall not be entitled to any unused portion of the fee for SERVICES.
10.6 In the event of cancellation by the PROVIDER in terms of clause 10.3 where the PROVIDER has not extended the notice period to remedy the breach beyond thirty days, the PROVIDER shall not be obliged to meet any remaining commitments in terms of the AGREEMENT in force at the time.
10.7 If either Party commits an act of insolvency as defined in the Insolvency Act, 24 of 1936 or is subject to an order of provisional or final liquidation or has made an offer of compromise to creditors or gives notice of an application for voluntary liquidation, the other Party shall be entitled to cancel this agreement in its entirety with immediate effect and without prejudice to any of such cancelling Party?s rights obtained in terms of this AGREEMENT.
11 FORCE MAJEURE
11.1 If the performance of the material part of this agreement is suspended due to force majeure (any event which makes the performance due by any Party to this agreement impossible, which is beyond the reasonable control of that Party and which could not have reasonably been foreseen by that Party, such as an act of God, lock-out, strike, government action, war or events of like or similar nature), that Party shall give the other Party written notice:
11.1.1 Specifying the cause and anticipated duration of the force majeure; and
11.1.2 Promptly upon termination of the force majeure, stating that such force majeure has terminated;
11.1.3 Such notice shall be given within three working days of the date on which the force majeure takes effect
11.2 The Party first affected by force majeure shall do its utmost to reinstate the performance due in terms of this agreement in the shortest possible time.
11.3 Provided notice has been given in accordance with clause 12.1 the Party affected by a force majeure event shall be relieved of its obligations hereunder during the period that such event and its consequences continue, but only to the extent so prevented and the relevant delivery dates or times allowed for performance shall be extended with the duration of the force majeure, provided that such extension shall be for a maximum period of sixty days.
11.4 If such notice is not given by the Party first affected by such force majeure, the other Party may, in its sole discretion, refuse to allow such adjustment of the relevant delivery dates or time allowed for performance, with regard to the delivery and performance due in terms of this agreement, of the Party first affected by force majeure, and to exercise all relevant remedies available to it in terms of this agreement or otherwise.
11.5 Performance of other material parts of this agreement still due and possible to perform by the Party first affected by force majeure shall not be suspended whilst the condition of force majeure persists, unless the other Party agrees in writing to the suspending of such performance.
11.6 If a period of sixty days has elapsed, and if the forcemajeure persists, either Party shall be entitled to cancel this agreement with immediate effect and without prejudice to either Party?s rights operating prior to the suspension of the agreement due to the force majeure.
12 ADDRESSES AND NOTICES
The PROVIDER chooses the following addresses for the purposes indicated or any other address in the Republic of South Africa, which they may choose for that purpose and inform the other Party of, in writing, from time to time.
12.1 Domicilium citandi et executandi: the PROVIDER
32 Gazelle Close, Corporate Park South, Randjesfontein, Midrand, South Africa.
Telephone number: (011) 314 0788
Telefax number: (011) 314 0787
Postal address: P.O. Box 50361, Randjesfontein, 1683.
12.2 Domicilium citandi et executandi: the CUSTOMER
The CUSTOMER chooses the address entered into the order form for the purchase of the Services as Domicilium citandi et executandi.
12.3 Any notice given by the one Party to the other Party shall, until the contrary is proved by the addressee, be deemed to be received by the latter Party one day after it has been dispatched by email or telefax, and seven days after it has been dispatched by pre-paid registered post to one of these addresses of the latter Party, or on the same day on which it is delivered by hand.