Resource Zen's Services Agreement

AUTUMN LEAF IT (Pty) Ltd

 (“Supplier”)

 

RESOURCE ZEN PLATFORM AND SOFTWARE SERVICE AGREEMENT

(the “Agreement”)

ResourceZen SaaS Services Agreement

Between

Autumn Leaf IT (Pty) Ltd (hereafter referred to as the “Supplier”)

4 Havenga Street, Upper Oakdale, Bellville, Western Cape, 7530, South Africa

And

You (hereafter referred to as the “Client”)

 

Version Date & Number: 01 April 2024, v1.0

Confidentiality Notice: This Agreement contains confidential information.

Duration and fee of the services:

The services will be provided for the duration of the selected subscription, which is renewed for the term (monthly or annual) as long as the term’s fee is paid.

 

 

STANDARD TERMS AND CONDITIONS

 

1. RECITALS

 

1. The Supplier is an information technology business that provides clients a broad range of information technology and communication services, including services related to Amazon Web Services.

 

2. In terms of this Agreement, the Supplier makes it possible for the Client to purchase services from the Supplier whereby the services are delivered online by allowing the Client to add and remove subscriptions via the ResourceZen platform.

 

3. The Client desires to engage the Services (as defined below) of the Supplier.

 

 

NOW THEREFORE, in consideration of the mutual covenants that follow, the Supplier and the Client agree:

 

2. INTERPRETATION AND DEFINITIONS

 

1. Interpretation

 

1. The headings in this instrument are used for ease of reference only and will have no bearing on the interpretation of the terms of this Agreement. Such headings shall not be deemed to govern, limit, modify, or affect the scope, meaning or intent of the provisions of this Agreement or any part of it; nor shall such headings otherwise be given any legal effect.

 

2. Words importing –

 

1. any one gender includes the other gender; 

2. the singular includes the plural, and vice versa; and

3. natural persons include created entities (incorporated or unincorporated) and the State and vice versa.

 

3. All references to currency herein shall be South African Rand.

 

4. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as 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 that the Clauses themselves do not expressly provide for this.

 

5. 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.

 

6. When any number of days is prescribed in this Agreement, the same shall be reckoned exclusive of the first day and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day.

 

7. A law shall be construed as any law (including common law) or statute, constitution, decree, judgement, treaty, regulation, directive, by-law, order or any legislative measure of any government, local government, statutory or regulatory body or court as at the Effective Date (as defined below) and as amended or re-enacted from time to time, where applicable.

 

8. Any definition so defined within the further terms or conditions and amendments shall be deemed to have been validly included in the list of definitions below.

 

9. Unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.

 

10. The words “include” and “including” mean “include without limitation” and “including without limitation”.  The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.

 

11. Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this Clause 2 or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.

 

12. Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.

 

2. Definitions

 

“Affiliate(s)” means, with respect to either Party, any other entity which is a subsidiary or a holding Supplier or a subsidiary of the holding Supplier of such Party. In regard to this definition the terms "subsidiary" and "holding Supplier" shall have the meaning assigned thereto in Section 1 of the Companies Act No. 71 of 2008, but shall include any foreign entity which, had it been registered in terms of that Act, would fall within the ambit of such term;

 

“Agreement” means this service agreement as is described on the cover page and includes a reference to all addendums that implement amendments to the agreement, which are appended to this agreement from time to time; 

 

“AWS” means Amazon Web Services as provided by Amazon Web Services South Africa (Pty) Ltd. (“AWS ZA”), an affiliate of Amazon Web Services, Inc. or as provided by Amazon Web Services, Inc., as the case may be, that consists of a comprehensive cloud platform, offering a suite of fully featured services from data centres globally, including but not limited, to SaaS (as defined below). For more information on AWS ZA see https://aws.amazon.com/legal/aws-za/ ;

 

“Business Day” means any day other than Saturday, Sunday or a public holiday officially recognised in the Republic of South Africa;

 

“Client” means the Client as set out on the cover page hereto;

 

“Confidential Information” means any information or data in whatever form or medium whether tangible or intangible, oral or in writing including, but not limited to, documents, materials or data which by its nature or content is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence or is designated as confidential information by the Disclosing Party whether or not owned or developed by the Disclosing Party, which is not  generally known to the Receiving Party, to Receiving Party’s personnel and representatives, and of which the Receiving Party may obtain knowledge through or as a result of the relationship established hereunder with the Disclosing Party, access to the Disclosing Party, access to the Disclosing Party’s premises, or communications with the Disclosing Party’s  employees, representatives or independent contractors. Without limiting the generality of the foregoing, “Confidential Information” shall include but is not limited to ideas, concepts, business plans, strategies, financial statements, pricing data, operations, inventions, discoveries, formulae, processes, designs, specifications, drawings, prototypes, sample, improvements, developments, applications, marketing data, customer names, projections, trademarks, trade names, and trade secrets, any commercial, financial, technical or strategic information, whether or not the same are or may be patented, registered, or otherwise publicly protected;

 

“Data” means any information, including but not limited to personal information as defined in the Protection of Personal Information Act 4 of 2013 (“POPI Act”) disclosed by the Parties (as defined below) to each other for the purpose of providing the Service(s);

 

“Effective Date” means the date of subscribing by the Client to the services as provided by the Supplier (as defined below); 

 

“Equipment” means all hardware, software, network facilities, and/or communication and storage facilities, or any other technology that the Supplier uses to provide the Services;

 

“Network” means the communication network, network components and storage facilities owned and/or operated by the Supplier, but does not include equipment or premises or any networks not owned or controlled by the Supplier;

 

“Parties” means both the Client and the Supplier;

 

“Party” means either the Client or the Supplier;

 

“Proprietary Information” means all rights in and in relation to intellectual property, including but not limited to, patents, copyrights, trademarks, designs, trade secrets, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), ideas expressed in any tangible or virtual form, sketches, concepts, blueprints, processes, formulas, source and object codes, data, database, computer programs, domain name, circuit topography design, and/or utility model audio-visual programs, other works of authorship, know-how, business plans, improvements, discoveries, developments, designs and techniques, research, development, new products, marketing plans, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers lists and customers lists, and all information that by its nature is deemed to be confidential, whether registered or not, and including the benefit of all registrations or applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable, and all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may subsist anywhere in the world (hereinafter collectively referred to as “Intellectual Property”).

 

“SaaS” means software as a service that is cloud-based and also known as cloud application services and that is the most comprehensive form of cloud computing services enabling the delivery of entire applications via a web browser;

 

“Services” means the services provided by the Supplier whereby the Client may purchase any subscription for the period as defined by the subscription from the Supplier and whereby the services are delivered online to the Client via the ResourceZen Platform (as defined below). The Services include any, a combination or all of the following:

 

• Organisation Management: Facilitates the centralised management of organisational details, including customisable preferences, enabling businesses to tailor the platform to their operational needs.

• Customer Management: Enables comprehensive management of customer information, including contact details, preferences, and history.

• Supplier Management: Streamlines the process of managing supplier relationships, ensuring efficient supply chain operations.

• User & Access Management: Facilitates the setup and administration of user accounts, roles, and permissions, ensuring customisable and secure access to the system and its organisational data.

• Materials Management: Provides tools for tracking and managing materials, including inventory levels, usage rates, and reorder alerts, to both optimise stock levels and reduce waste.

• Job Card Management: Allows for the creation and management of job cards, detailing work to be done, materials used, and labour hours, supporting efficient workflow management.

• Stock Management: Offers advanced features for stock control, including real-time inventory tracking, low stock alerts, and automated reorder notifications, ensuring materials are always available when needed.

• Quotations: Enables quick and accurate generation of quotes for customers, incorporating labour, materials, and overheads with customisable templates for a professional presentation.

• Accounting Integrations & Invoicing: Integrates with Quickbooks for seamless invoicing and financial management, reducing manual entry and improving accuracy.

• Tax Compliance: Ensures all financial transactions, including invoicing and purchasing, comply with local tax regulations, simplifying the complexities of tax management for businesses.

• Email Correspondence: Integrates email correspondence capabilities, enabling direct communication with customers and suppliers through the platform, including automated notifications and personalised campaigns.

• Mobile Accessibility: Ensures full functionality of ResourceZen is accessible on mobile devices, allowing users to manage operations on-the-go for increased flexibility.

 

“SLA” means the Supplier’s standard service level agreement, signed and executed by the Parties, that will highlight the availability of support during the GMT+2 hours specified for the Services and that is incorporated herein by reference;

 

“Supplier” means Autumn Leaf IT (Pty) Ltd, a private Supplier duly incorporated in the Republic of South Africa and having its principal place of business at 2 Havenga Street, Upper Oakdale, Bellville, Western Cape, 7530, South Africa;

 

“Subscription” means the collection of services to which the Client subscribes. This is limited to the modules selected, the subscription tier selected, and the duration of the subscription. Future modules will not be automatically included in existing subscriptions unless stated otherwise. Limitations such as caps, storage limits and specific features will be determined by the modules and subscription tier selected;

 

“ResourceZen Platform” means the Supplier’s web-based platform for rendering the service to the Client;

 

“ResourceZen AUP” means ResourceZen’s acceptable use policy that governs the Client’s use of the services offered by the Supplier and its affiliates and their website(s) as described in 6.2; and

 

“ResourceZen Platform Terms” means the terms of use of the ResourceZen Platform.

 

3. SERVICES ENGAGEMENT AND TERM

 

1. The Client hereby engages the Supplier to provide the Services set out in the cover page. The Client shall use the Services in accordance with the terms and conditions of this Agreement. The Services include any, a combination or all of the Services and shall be delivered on the ResourceZen Platform.

2. The Client acknowledges that the Services are provided by the Supplier and that, accordingly, the Client will comply with all terms and conditions, rules and the ResourceZen AUP as required by the Supplier. Some of the Supplier’s terms and conditions are also incorporated into this Agreement as specific Clauses.

 

3. In the event that the Services are also to be provided to an Affiliate of the Client or the Client together with one or more Affiliate, then this shall be so circumscribed on the cover page, which shall also set out the payment source and arrangement in accordance with the provisions of Clause 4 below. 

 

4. The engagement in terms of Clause 3.1 shall be effective from and for the duration of the term outlined on the cover page, which shall also detail whether the Services are provided exclusively or non-exclusively. In the event that no such indication is made, the Services shall be deemed to be delivered exclusively to the Client, and the Client shall not be entitled to engage any other service providers for the Services.

 

5. This Agreement shall be effective from the Effective Date, and the Services shall each start on the dates and for the term as described on the cover page.

6. In providing the Services, the Supplier reserves the right to use any Equipment which it has available and which it considers at its discretion as most suitable and reasonable to render the Services unless the cover page expressly specifies the Equipment to be used.

7. The Supplier reserves the right to use any spare communication and storage capacity that it has installed for the Client for the purpose of providing services to other Supplier customers, provided that such use of spare capacity does not (i) have an adverse effect on the provision of the Services to the Client; and (ii) such use of spare capacity does not result in the Supplier's failure to comply with the Service Level Description.

8. The Client will receive the Services wholly at the Client’s own risk, save where otherwise agreed in this Agreement.

 

9. The Client hereby confirms that neither it nor any of its directors, employees, agents or Affiliates are authorised to act as agents of the Supplier and are not authorised to make any representation and enter into any contract or commitment on behalf of the Supplier.

 

10.  It is specifically recorded herein that the Parties and their subsidiaries are independent contractors in relation to each other, and this Agreement shall not be construed as creating any relationship of agency, partnership or joint venture between the Parties.

 

4. SERVICES FEES

 

1. In consideration for the Services provided by the Supplier, the Client shall compensate the Supplier as outlined in the cover page (hereinafter the “Services Fee(s)”) in South African Rands. The Client shall pay to the Supplier the Services Fees agreed between the Parties on or before the due date without any set-off or other deduction, including, without derogating from the generality of the foregoing, all and any taxes as may be imposed on the Client.

 

2. In the event that the delivery of the Services starts on a date within a calendar month, the Services Fee for that month will be calculated on a pro-rata basis. 

 

3. Where any fees or charges in this Agreement are based on an exchange rate, that rate shall be based on the exchange rate on the day of invoice. The Client agrees to bear the risk in any variation in the exchange rate of the South African Rand against the applicable foreign currency in relation to the applicable Service, and the Supplier shall accordingly be entitled to increase or reduce the amount due by the Client in arrears in respect of the Services. For the purpose of determining any variance in the exchange rate, the South African Rand/foreign currency exchange rate as published by First National Bank, a bank incorporated and licensed in the Republic of South Africa, shall be used based on the invoice generation date.

 

4. The Supplier will invoice the Client for the Services provided under this Agreement from the Services effective date as set out on the cover page. The invoice will detail what Services will be invoiced in advance of the period to which it relates and what Services will be invoiced in arrears, as applicable.

5. The Supplier shall, in relation to all Services Fee(s) due under this Agreement, provide the Client with a detailed statement of their account (together with all related tax invoices) and invoices setting out the amount due and payable by the Client.

6. All Services Fee(s) shall be payable by the Client by the due date by electronic funds transfer into a banking account specified by the Supplier in writing.

7. If any Services Fee(s)  are overdue, the Customer shall pay interest on the overdue amount at First National Bank’s prevailing prime overdraft rate of interest plus two percent (2%), compounded monthly in arrears and calculated on a three hundred and sixty five (365) calendar day year irrespective of whether or not the year is a leap year, and as certified by any representative of that bank whose appointment and designation it will not be necessary to prove, such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).

5. THE SUPPLIER’S OBLIGATIONS

 

1. The Supplier shall perform the Services herein in a professional and diligent manner and shall comply with all applicable laws.

 

2. The Supplier shall perform all duties in a timely manner consistent with industry standards and at a location, place and time as set out on the cover page.

 

6. THE CLIENT’S OBLIGATIONS

 

1. General Obligations

 

1. The Client shall comply with all reasonable instructions issued by the Supplier. The Client shall observe and be governed by the terms and conditions, rules of conduct and policies established by the Supplier as it relates to the provision of the Services.

 

2. The Client has a general duty to bring concerns of any nature to the immediate attention of the Supplier on an ongoing and proactive basis. The Client must bring any urgent, material or vital concerns to the attention of the Supplier in written form (with proof of delivery - email shall be acceptable), or if performed orally, to be followed with a written note to the Supplier (with proof of delivery - email shall be acceptable) within 1 business day.

 

3. The Client shall not enter into any other contract that will conflict with the Client’s obligations arising from this Agreement.

 

4. In making use of the Services, the Client shall:

 

1. comply with this Agreement and any applicable laws;

 

2. where applicable, use reasonable efforts to comply with any Acceptable Usage Policy provided by the Supplier and to ensure that its employees, customers and/or any other persons permitted by the Client to make use of the Services, comply with such policy; and

 

5. The Client shall use reasonable efforts to ensure that it, its employees, customers and/or any other persons permitted by the Client to make use of the Services, do not by any act, or omission, damage, interfere with or impede the operation of the Services provided by the Supplier. Where the Client is or becomes aware that there is any violation or contravention contemplated in this Clause 6.1.5, it will communicate with the Supplier as set out in Clause 6.1.2 and will co-operate to the extent reasonably necessary and provide the Supplier with the necessary information to assist in identifying, preventing or remedying or rectifying such violation or contravention.

 

6. Unless agreed in writing between the Parties, the Client shall not be entitled to resell any of the Services provided under this Agreement.

 

7. Except to the extent caused by the Supplier’s breach of this Agreement, (a) the Client is responsible for all activities that occur under its ResourceZen Platform, regardless of whether the activities are authorised by the Client or undertaken by the Client, its employees or a third party (including the Client’s contractors, agents or end users), and (b) the Supplier and its Affiliates are not responsible for unauthorised access to the Client’s accounts.

 

8. The Client is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup its accounts in a manner that will provide appropriate security and protection, which might include the use of encryption to protect it from unauthorised access and routinely archiving its Data and content.

 

9. The Client’s ResourceZen Platform login credentials and private keys generated by the Services are for the Client’s internal use only, and the Client will not sell, transfer or sublicense them to any other entity or person, except that the Client may disclose its private key to its agents and subcontractors performing work on its behalf.

 

10. The Client shall be responsible for any end users’ use of its Data, content and the Services. The Client shall ensure that all end users comply with its obligations under this Agreement and that the terms of its agreement with each end user are consistent with this Agreement. If the Client becomes aware of any violation of its obligations under this Agreement caused by an end user, the Client will immediately suspend access to its Data, content and the Services by such end user. The Supplier does not provide any support or services to end users unless it has a separate agreement with the Client or an end user obligating the Supplier to provide such support or services.

 

2. ResourceZen Services Acceptable Use Policy (ResourceZen AUP)

 

1. Use: The Client may not use, or facilitate or allow others to use, the Services:

 

1. for any illegal or fraudulent activity;

2. to violate the rights of others;

3. to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm;

4. for any content or activity that promotes child sexual exploitation or abuse;

5. to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device;

6. to distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (or “spam”).

 

2. Investigation and Enforcement: The Supplier may investigate any suspected violation of the ResourceZen AUP and remove or disable access to any content or resource that violates the ResourceZen AUP. The Client agrees to cooperate with the Supplier to remedy any violation. When determining whether there has been a violation of the ResourceZen AUP, the Supplier may consider the Client’s ability and willingness to comply with the ResourceZen AUP, including the policies and processes the Client has in place to prevent or identify and remove any prohibited content or activity.

 

3. Applicable Law

 

1. ResourceZen Platform: By visiting and using the ResourceZen Platform, the Client agrees that the laws of the Republic of South Africa, without regard to principles of conflict of laws, will govern the ResourceZen Platform Terms and any dispute of any sort that might arise between the Client and the Supplier.

 

4. Site Policies Modification and Severability

 

1. The above policies govern the Client's use of the ResourceZen Platform. The Supplier reserves the right to make changes to the ResourceZen Platform policies at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

 

7. REPUTATION

 

1. Both Parties undertake not to do anything by act or omission or to use each Party’s name or other property in any manner that may be prejudicial to each Party’s reputation.

 

8. DATA PRIVACY AND PROTECTION

 

1. The Parties shall each-

 

1. ensure that at all times it complies with all provisions of the POPI Act and any other data-related law;

 

2. use its best efforts to keep any personal information confidential and shall not disclose any personal information to any other person except as required by law, save to the extent set out herein; and

 

3. utilise security technologies and techniques in accordance with best industry practice for the purpose of complying with its obligations herein.

 

2. The Client acknowledges that it is primarily responsible for complying with any data protection obligations imposed in terms of the POPI Act, and any other applicable legislation, including the common law, in relation to any personal information and shall obtain any consents necessary for the disclosure of personal information to the Supplier for the purposes of this Agreement.

 

3. The Client shall separate any personal information from any other data provided to the Supplier for the purpose of providing the Services and shall designate the personal information as such before disclosing or otherwise making it available to the Supplier.

 

9. OWNERSHIP PROTECTION

 

1. General Principles: 

 

1. The Parties agree to reasonably protect and keep safe any and all items of ownership in any form and manner from access, use, claims of ownership or any other prejudice by unauthorised parties and not to make use of any such items without explicit authorisation from the owner Party.

 

2. In the event that ownership of any type of item is destined to pass from the Supplier to the Client, such ownership shall only pass upon payment of the applicable Services Fees and the compliance of any other obligations set out between the Parties in the cover page, including compliance with any legal prescriptions. 

 

3. The specific provisions below shall not derogate from the obligations arising from Clause 9.1.1.

 

4. The Parties agree that any breach of the provisions in this Clause 9 shall entitle the prejudiced Party to urgent legal relief in the form of a motion for an interdict without prejudice to any other available legal relief.

 

2. Proprietary Information:

 

1. The Parties shall at all times keep confidential and protect the other’s Proprietary Information to which it has been exposed and shall not in any way use it to compete, whether directly or indirectly, with each other. Any Non-Circumvention and Non-Disclosure Agreement executed between the Parties is hereby incorporated by reference.

 

2. The Parties record that all Data, in whatever form, owned by the Parties respectively, shall constitute the Intellectual Property and Proprietary Information of each Party. Accordingly, the Parties retain all right, title and interest in and to the Data and each Party shall ensure that it labels its Data to identify ownership.

 

3. Consultations:

 

1. In the event that the Supplier provides consultation services, standalone, or in combination with other services as the Services, the following shall apply:

 

1. The ownership in any information forming part of consultation services provided by the Supplier to the Client, including Proprietary Information, that are intended to pass in ownership from the Supplier to the Client shall only so pass upon the payment of the applicable Services Fees and the compliance of any other obligations set out between the Parties in the cover page, including compliance with any legal prescriptions, unless otherwise arranged in the cover page.

2. Likewise, any parts of the consultation services provided by the Supplier, including but not limited to information generally and all Proprietary Information, shall not be available for use in any manner by the Client unless the requirements set out in Clause 9.3.1.1 have been complied with, unless otherwise arranged in the cover page.

 

10. HEALTH, SAFETY AND SECURITY

 

1.  General Rules:

 

1. Each Party agrees to comply with health, safety and security policies and procedures notified to each of them by the other Party and with the requirements of the Occupational Health and Safety Act No. 85 of 1993 and all other relevant legislation and common law provisions.

 

2. Each Party shall at all times act reasonably in the protection of the health, safety and security interests of each other as if the interests are its own.

 

3. The Parties shall each, at their own cost and expense, take whatever steps necessary to procure and discharge their respective obligation and rights in terms of this Agreement and applicable laws to ensure the health, safety and security of the other Party’s employees, agents, directors, contractors and members of the public.

 

4. Any applicable policies relating to health, safety and security issued by the Parties shall become part of this Agreement and shall be deemed to be attached as schedules to the Agreement.

 

5. The Parties shall be entitled to draft specific policies relating to health, safety and security for the Services to be delivered, and the Parties shall be obliged to comply therewith.

 

2.  Health:

 

1. The Parties shall comply with all legally prescribed regulations and prescriptions regarding health matters, including but not limited to COVID-regulations issued in terms of the Disaster Management Act 57 of 2002 and related policies issued by the Parties that are aligned with the law.

 

3.  Safety and Security:

 

1. All access to the Client sites by the Supplier and its employees, agents and contractors shall be in terms of the Client’s safety and security procedures, as amended from time to time.

 

2. The Client shall be entitled to request the Supplier to remove any employee, agent or contractor from its team if it is of the reasonable opinion that such person is a security or safety risk. Any such request shall be in writing and shall stipulate the reasons why the Client believes the requested removal is necessary.

 

11. SERVICE VARIATIONS

 

1.  If the Client wishes to make a change, modification or adjustment to any element of any Services, the following procedure will apply:

 

1. The Client will forward a change request to the Supplier, setting out the details of the change request;

 

2. The Supplier will investigate the feasibility, cost implications and impact of the change request on the Services and notify the Client of the results of this impact study;

 

3. If the Client makes a decision to proceed with the change request after considering the impact study, the Client shall give the Supplier a written instruction to proceed with that change on the basis set out in the impact study. That instruction shall be binding on the Parties, and the Agreement shall be amended accordingly by way of an Addendum; and 

 

4. If the Parties cannot agree upon the necessary amendments, the change request will not be implemented.

 

12. INTELLECTUAL PROPERTY RIGHTS

 

1.  Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property of the other Party.

 

2.  Any passing of Intellectual Property from one Party to another, where applicable, shall be arranged in the cover page as it relates to the Services to be delivered.

 

3.  Notwithstanding any other provision in this Agreement, no Intellectual Property shall pass from one Party to the other Party without a separate written cession agreement and the payment of the applicable Services Fees, save for those Intellectual Property and works that emerge from the Supplier’s provision of the Services (“Emergent Works”) and which Emergent Works shall vest with the Supplier in rights and ownership to the full of extent of the law worldwide in perpetuity.

 

4.  Each Party indemnifies the other Party against all claims, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement, passing-off and/or unlawful competition in relation to any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the unlawful and/or unauthorised use by a Party of the Intellectual Property Rights of the other Party.

 

13. WARRANTIES

 

1.  General Warranties

 

1. The Parties each warrant separately that as far as their individual knowledge is concerned that none of them is under any obligation or disability, created by law or otherwise, which would in any manner or to any extent prevent or restrict any Party from entering into and fully performing this Agreement.

 

2. Any warranties expressed elsewhere in this Agreement are deemed to form part of this Clause 13.

 

3. Except as expressly stated in this agreement, the parties make no warranty of any kind whatsoever, express or implied, statutory or otherwise.

 

2.  Client’s Warranties

 

The Client warrants that:

 

1. it has obtained all necessary approvals required by law and its own governance structures in relation to receipt of the Services and shall provide a copy of same upon request; and

 

2. it shall comply with all obligations set out in Clause 6 and will especially comply with the various policies and rules for the Services and use as set out by the Supplier.

 

3. it procures the Services from the Supplier on an “as is”-basis and that the SLA governs the only remedial recourse for defective Services.

 

4. The supplier's services herein, the ResourceZen platform and all other websites and all information, content, materials, products (including any software) and services included on or otherwise made available to the client through the ResourceZen platform and all other websites are provided by the supplier on an "as is" and "as available" basis, unless otherwise specified in the agreement.

 

5. The supplier makes no representations or warranties of any kind, express or implied, as to the suitability and operation of the services, the ResourceZen platform and all other websites or the information, content, materials, products (including any software) or services included on or otherwise made available to the client, unless otherwise specified in writing.

 

6. The client expressly agrees that its use of the services, the ResourceZen platform and all other websites is at its sole risk.

 

7. To the full extent permissible by applicable law, the supplier disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.

 

8. The supplier does not warrant that the services, the ResourceZen platform and all other websites, information, content, materials, products (including any software) or services included on or otherwise made available to the client, its servers, or e-mail sent from the supplier are free of viruses or other harmful components. The supplier will not be liable for any damages of any kind arising from the use of the services, the ResourceZen platform and all other websites or from any information, content, materials, products (including software) or services included on or otherwise made available to the client, including, but not limited to direct, indirect, incidental, punitive, and consequential damages, unless otherwise specified in the agreement.

 

14. INDEMNITIES

 

1.  The Parties agree to indemnify each other and their respective successors, assigns, licensees, officers, directors and employees and hold each other harmless from and against any and all claims, liability, losses, damages, costs, expenses (including but not limited to attorneys' fees), judgments and penalties arising out of any Party’s breach of its warranties under this Agreement.

 

2.  The indemnities contained herein shall not derogate or diminish the indemnities contained elsewhere in this Agreement.

 

15. SUSPENSION OF SERVICES

 

1.  The Supplier may, on 1 (one) calendar month prior written notice, lawfully suspend, withdraw all or part of any Services at any time until further notice to the Client if, in the Supplier's reasonable discretion:

 

1. the continued provision of the Services will cause the Supplier to breach an applicable law or be in contravention of its licenses in which case the Parties will explore various options to continue the Services or provide alternative services, failing which the provision of the applicable Services shall cease;

 

2. the Client is in breach of any material provision of this Agreement, and such breach remains unremedied notwithstanding prior written notice of the breach from the Supplier; or

 

3. any overdue invoice for Services Fees billed by the Supplier to the Client remains unpaid.

 

2.  The exercise of the Supplier's right to suspend the Services under this Clause 15 is without prejudice to any other remedy available to the Supplier under the Agreement and does not constitute a waiver of the Supplier's right to subsequently terminate the Agreement.

 

3.  Where the Supplier has suspended the Services in terms of Clause 15.1.2 or 15.1.3, and the Client has remedied the applicable breach to the reasonable satisfaction of the Supplier, the Supplier may not unreasonably refuse to continue delivering or supplying the Services but may require the Client to comply with such conditions that the Supplier considers reasonable in the circumstances, as a pre-condition to making the Services available again.

 

16. LIMITATION OF LIABILITY

 

1.  Notwithstanding anything to the contrary in this Agreement, the Supplier shall not under any circumstances, unless prohibited by law, be liable to the Client for any damages which are regarded in law as direct, indirect, special, incidental, consequential, punitive or exemplary damages and which damages arise out of or in connection with this Agreement.

 

2.  All liability by the Supplier with regard to the Services shall be governed by virtue of the remedial processes set out in this document;

 

3.  Without limiting the provisions of this Clause 16 in any way, the Supplier shall not be liable to the Client for:

 

1. the failure of the Supplier for any reasonable reason and/or based on other rights set out in this Agreement, to supply and/or deliver any Services on a specified date save for the service reinstatement process set out in the applicable SLA; and/or

 

2. the interruption, suspension or termination of the Services for whatever reason save for the service reinstatement process set out in the applicable SLA; and/or

 

3. any costs arising from unauthorised access to and/or use of any Equipment or devices, including Client Equipment used by the Client to access the Services on the Network; and/or

 

4. loss or damages arising as a result of lost, damaged or corrupted Data and/or content.

 

4.  Nothing contained in this Clause 16 shall limit the Client’s liability in respect of charges incurred for the Services.

 

17. ASSIGNMENT

 

1.  No rights, duties or liabilities under this Agreement may be ceded, assigned, transferred, conveyed or otherwise disposed of by any Party without the other Party’s consent, which consent shall not be unreasonably withheld.

 

2.  In addition, the Supplier is entitled to cede, transfer and make over its right, title and interest in and to any and all debts and receivables due and/or payable to the Supplier under this Agreement, both future and present arising under this Agreement, as security or otherwise. The Client hereby recognises and consents to such cession and/or transfer (including any splitting of claims that may arise) and agrees that the prohibitions of Clause 17.1 shall not apply to any such cession and/or transfer.

 

18. CONFIDENTIALITY

 

1.  Neither Party shall individually or by means of press agents or publicity or advertising agencies or others, employed or paid by them or otherwise, circulate, publish or otherwise disseminate any news, information or other publicity containing the subject matter of this Agreement and the Services to be rendered, unless first approved by the other Party.

 

2.  Subject to Clauses 18.4 to 18.6, each Party must:

 

1. protect for the term of the Agreement and for two (2) years thereafter, the Proprietary Information in the manner, and with the endeavour of a reasonable person protecting his own Proprietary Information;

 

2. use the disclosing Party's Proprietary Information only for the purposes of this Agreement;

 

3. take all practical steps, both before and after disclosure, to impress upon its employees who are given access to the Proprietary Information the secret and confidential nature thereof; and

 

4. not disclose any such Proprietary Information to any third party without first obtaining the other Party’s express written consent on a case-by-case basis.

 

3.  Clause 18.2.1 does not apply to Proprietary Information that is in the public domain other than such Proprietary Information that has entered the public domain as a result of a breach of this Agreement or any other obligation of confidence.

 

4.  A receiving Party may disclose the Proprietary Information of the disclosing Party if that disclosure is to the employees, contractors or professional advisers of the receiving Party or its Affiliates who have a need to know that information in relation to the provision of the Services and who have agreed to keep it confidential.

 

5.  A Party may disclose Proprietary Information of the disclosing Party or make an announcement that is required in accordance with any applicable law or valid court order provided that the receiving Party has consulted with the disclosing Party prior to making such disclosure and provided that the disclosure is confined to that which is absolutely necessary in terms of such legal duty and/or order. 

 

6.  A Party may disclose Proprietary Information of the disclosing Party as part of its normal reporting or review procedures to its auditors and attorneys, or in case of a dispute to its attorneys.

 

7.  The Parties shall on termination of this Agreement for whatever reason, immediately deliver to each Proprietary Information belonging to the other which may be in each Party's possession or under its control.

 

19. FORCE MAJEURE

 

1.  Any delay or failure of either Party to perform its obligations under this Agreement shall be excused, to the extent that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, action by any governmental authority, fires, floods, war, acts of terrorism, insurrection, revolution, nuclear reaction, windstorms, explosions, riots, natural disasters, pandemics, inability to obtain power, material, labour, equipment or transportation, or court injunction provided that, written notice of the delay shall be given by the affected Party to the other Party within ten (10) calendar days.

 

2.  Relief from liability for non-performance by reason of the provisions of this Clause shall commence on the date on which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the date on which such impediment ceases to exist, provided that if the impediment continues for a period of more than sixty (60) consecutive calendar days, the other Party shall be entitled to terminate those Services affected by such event by written notice to the Party seeking relief.

 

20. TERMINATION OF THIS AGREEMENT

 

1.  Termination for convenience

 

1. The Parties shall not be entitled to terminate this Agreement for convenience within the first period of the subscription term, unless otherwise so agreed between the Parties. Thereafter either Party shall be entitled to terminate for convenience the Agreement by providing the other Party with one period prior written notice to that effect. This termination shall not affect the term of any existing Services, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the Term thereof as set out in the cover page.

 

2. Notwithstanding the Term set out in the cover page, the Client shall be entitled in its sole discretion and without cause, to terminate one or more Services by giving the Supplier sixty (60) calendar days prior written notice. The termination of these Services shall be subject to the early termination charges set out in Clause 21.

 

2.  Termination for cause

 

1. Without prejudice to any rights and remedies that may have accrued, either Party may terminate this Agreement with immediate effect upon written notice if the other Party: 

   1. ceases to trade (either in whole, or as to any part involved in the performance of this Agreement); or

   2. has a court order issued against it placing it under final liquidation. For the avoidance of doubt, where a Party is undergoing the business rescue process in accordance with the Companies Act No. 71 of 2008, and for so long as that Party is still complying with its obligations under this Agreement, subject to Clause 15.1.3, the other Party may not terminate the Agreement in accordance with this Clause 20.2.

 

3.  Material Breach

 

1. Should any Party (“Defaulting Party”) commit a material breach, then the other Party (“Aggrieved Party”) shall, if it wishes to enforce its rights hereunder, be obliged to give the Defaulting Party 10 (ten) Business Days written notice to remedy the breach.  If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled to cancel this Agreement or to claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations whether or not the due date for payment and/or performance shall have arrived, in either event without prejudice to the Aggrieved Party’s rights to claim damages.  The aforegoing is without prejudice to such other rights as the Aggrieved Party may have at law.

 

2. The Parties may, in addition, afford themselves of any interim remedies such as interdicts and declaration orders.

 

3. The Parties may agree to submit the matter of material breach for mediation and arbitration in terms of Clause 22 as opposed to exercising the legal remedies set out in Clause 20.3.1. This Clause shall also apply to any delictual claims.

 

21. EARLY TERMINATION COSTS

 

1.  The termination fee shall be calculated on the outstanding Services Fees for each of the Services that are being terminated as at the termination date and will be determined in the cover page.

 

22. DISPUTE RESOLUTION

 

1.  Mediation

 

1. Any controversy or claim arising out of or relating to this Agreement or breach thereof, including a material breach or delictual claims if the Parties so agree as set out above in Clause 20.3.3, shall first be referred to internal mediation by a committee consisting of two representatives of each Party.

 

2. Should no settlement be achieved after ten (10) business days, the matter shall be referred for arbitration.

 

2.  Arbitration

 

1. The arbitration shall be performed in accordance with the then pertaining rules and regulations of the Arbitration Foundation of South Africa (“AFSA”). 

 

2. Such arbitration shall take place in Cape Town with all costs other than each Party’s respective attorneys’ fees to be shared equally by the Parties.

 

3. Each Party expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency, and irrevocably authorises the other to apply, on behalf of the Parties, in writing, to the secretariat of AFSA for any such arbitration to be conducted on an urgent basis.

 

4. The Parties agree that the submission to arbitration in terms of this Clause is subject to the Parties’ rights of appeal.

 

5. Any arbitration (including any appeal proceedings) shall be conducted in camera, and the Parties shall treat the details of the dispute submitted to arbitration, the conduct of the arbitration proceedings, and the outcome of the arbitration as confidential.

 

23. CONSEQUENCES OF TERMINATION

 

1.  Any termination of this Agreement for whatever reason shall not:

 

1. affect the contractual operation of the provisions of Clauses destined by its nature to survive termination of this Agreement; and 

 

2. be construed as precluding any Party from recovering any damages that it may have suffered as a result of a breach by the other Party of any of its obligations in terms of this Agreement.

 

24. ENTIRE AGREEMENT AND NON-VARIATION

 

1.  This Agreement shall represent the entire agreement between the Parties and shall supersede, nullify and amend all prior agreements or other correspondence between the Parties. Any amendments to this Agreement must be in writing and executed by the Parties hereto.

 

2.  This Agreement, including this Non-Variation Clause, may be amended only by written instrument signed by both Parties.

 

25. ILLEGALITY AND DIVISIBILITY

 

1.  Nothing contained herein shall require the commission of any act or the payment of any compensation that is contrary to an express provision of law in any jurisdiction where all or any parts of this Agreement are executed.

 

2.  If there shall exist any conflict between any provision contained herein and any such law or policy, the latter shall prevail, and the provision or provisions herein affected shall be curtailed, limited or eliminated to the extent (but only to the extent) necessary to remove such conflict, and as so modified the remaining provisions of this Agreement shall continue in full force and effect.

 

26. NO PARTNERSHIP OR EMPLOYMENT

 

1.  The Parties hereto expressly agree, each for the other, that the relationship between them hereunder is that of two principals dealing with each other as independent Clients for the sole and specific purpose outlined herein, subject to the terms and conditions of this Agreement. At no time, past, present or future, shall the relationship of the Parties herein be deemed or intended to constitute a relationship with the characteristics of a Supplier, partnership, joint venture, or collaboration for the purposes of sharing any profits or ownership in common.

 

2.  The Parties hereto expressly agree, each for the other, that this Agreement does not constitute or bring about an employer-employee relationship between the Supplier and the Client but constitutes a relationship of “work-for-hire” between the Parties.

 

27. NO WAIVER OF RIGHTS

 

1.  No conduct of any kind by either Party that seems to exhibit an indulgence and acceptance of any breach by either Party will constitute a waiver of any rights contained in this Agreement. Any variation of rights, as contained herein, can only be altered by written agreement as set out in Clause 24.

 

28. CUMULATIVE RIGHTS AND REMEDIES

 

1.  All rights, remedies, licenses, undertakings, obligations, covenants, privileges and other property granted herein shall be cumulative, and the Parties may exercise or use any of them separately or in conjunction with any one or more of the others.

 

29. CONSENSUS OBTAINED BY IMPROPER MEANS

 

1.  Both Parties hereto warrant that no misrepresentation of whatsoever nature has induced any to engage in contracting with each other as set out in this instrument and that both Parties have explored and investigated all the facts and conditions pertaining hereto, and therefore, shall not have a claim to rescind this Agreement or, alternatively, shall not have a claim for a damages award against each other based on pre-contractual misrepresentation.

 

30. EXECUTION OF FURTHER DOCUMENTS

 

1.  The Parties further agree to execute, verify, acknowledge, and deliver any documents that any Party shall deem necessary or advisable to give effect to the obligations in terms of this Agreement.

 

31.  JURISDICTION

 

1.  It is understood by all Parties hereto that this Agreement shall be construed according to the laws of the Republic of South Africa and the Parties hereby attorn to the jurisdiction of the courts of Cape Town.

 

32. NOTICE

 

1.  Any notice or other written communication provided or permitted hereunder shall be in writing and given by personal delivery (against receipt), or sent by registered mail (against receipt) postage prepaid, addressed to the other Party at the domicilium address provided herein, or transmitted by e-mail.  Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or, if transmitted by e-mail during the regular business hours of the party receiving the notice, on the date it was transmitted, or if transmitted after business hours, on the next business day, or if sent by registered mail on the fifth (5th) business day thereafter.

 

2.  Notices to the Supplier shall be delivered as follows: