1. PARTIES
1.1 Parties: This agreement is between:
(a) The Customer: Details as per the Order Form.
(b) The Provider: Connexa Communications (Pty) Ltd with registration number2023/644401/07 incorporated under the laws of South Africa with its registered office at 39 Beach Road, Cape Town, Western Cape, 7700
collectively referred to as the Parties and individually a Party.
2. BACKGROUND
- The Provides will make available the Cloud Services to the Customer, provided the Customer agrees to the terms and conditions in this document (the Agreement);
- The Customer must accept this Agreement by agreeing to an Order Form. By agreeing to an Order Form, the Customer confirms they accept the Agreement and agree to its terms and conditions, and they confirm they are either at least 18 years old or old enough to enter into a legally binding agreement;
- If the person accepting the Agreement is acting in a representative capacity, this person confirms they have the authority to agree to this Agreement on behalf of the represented entity or person;
- If the Customer does not agree to the Agreement, the Customer should not use the Cloud Services and the Provider does not agree to provide access to the Cloud Services to the Customer; and
- Regardless of anything else stated in the Agreement or whether the Customer accepts the Agreement, no access is given for any Cloud Services if the Customer accessed the Cloud Services lawfully.
3. CLOUD SERVICES
3.1 Definitions:
(a) Affiliates, for purposes of Article 3, means, with respect to a Party, any other person or entity which directly or indirectly Controls, is Controlled by, or is under common Control with such Party.
(b) Control, for purposes of Article 3, means means the person or entity owns, directly or indirectly, more than 50 percent of the capital of the other entity, or in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such entity.
(c) Documentation means the usage manuals and instructional materials for the Cloud Service.
(d) Fees means the fees payable for the Cloud Services as per the Order Form.
(e) Oder Form means Order Form signed by the Customer and the Provider.
(f) Permitted Use means the permitted use as per the Order Form.
(g) Services means the cloud services as per the Order Form.
(h) Start Date means the starting date as per the Order Form.
(i) Term means the term as per the Order Form.
(j) Territory means the territory as per the Order Form, if applicable.
(k) Third-Party Expenses means the third-party expenses as per the Order Form, if applicable.
(l) Users means any individual who uses the Cloud Services on Customer’s behalf or through Customer’s account.
3.2 Access rights: Subject to and conditioned on payment of the Fees and compliance with the terms and conditions of this Agreement, the Provider provides a revocable, non-exclusive, non-transferable limited right to the Customer to access and use the Cloud Services for the duration of the Term.
3.3 Affiliates: The Customers Affiliates may use the Cloud Services subject to the terms and conditions as per this Agreement and the Order Form.
3.4 Permitted use: The Customer, their Affiliates and their Users may only use the Cloud Services as per the Permitted Use and the Documentation.
3.5 Restrictions: The Customer must not:
(a) Disassemble, reverse engineer, modify, or create derivate works of the Cloud Services;
(b) Use the Cloud Services in violation of applicable laws;
(c) Circumvent or disable any security features or other aspect of the Cloud Services;
(d) Attempt to gain unauthorised access to the source code of the Cloud Services;
(e) Use the Cloud Services to transmit unlawful material, or to store or transmit material in violation of third-party privacy rights;
(f) Use the Cloud Services to store or transmit any material that may infringe the software or other rights of third parties; or
(g) Knowingly or negligently use the Cloud Services in a way that abuses or disrupts servers, user accounts, or other services.
3.6 Suspension rights:
(a) The Provider may temporarily suspend the Customer’s and any Users’ access to all or part of the Cloud Services if:
(i) the Provider reasonably believes that there is a threat or attack on its Intellectual Property;
(ii) the Customer’s or its Users’ use of the Provider’s Intellectual Property is causing issues or security risks;
(iii) the Customer or its Users are using the Provider’s Intellectual Property for illegal or fraudulent activities;
(iv) the Customer faces bankruptcy or similar issues;
(v) providing the Cloud Services is against the law; or
(vi) any of the Providers vendors has stopped or ended the Provider’s access to services or products necessary for the Cloud Services.
(b) The Provider must make a reasonable effort to inform the Customer about the suspension and give updates about when access will be resumed.
(c) The Provider must try to restore access to the Cloud Services as soon as possible once the issue is resolved.
(d) The Provider is not liable for any damages or losses the Customer may face due to the suspension.
3.7 Retained rights: The Provider retains all right, title, and interest in and to the Cloud Services, including, without limitation, all software included in and used to provide the Cloud Services.
3.8 Users: The Customer is responsible its Users actions through the Cloud Service and their compliance with this Agreement.
3.9 Login credentials: The Customer must ensure that Users keep their login credentials confidential and must promptly notify the Provider upon learning of any compromise of User accounts or credentials.
3.10 Changes: Subject to Section 3.11, the Provider reserves the right, in its sole discretion, to make any changes to the Cloud Services and the Documentation that it deems necessary to:
(a) maintain or enhance:
(i) the quality or delivery of the Cloud Services to its customers;
(ii) the competitive strength of or market for the Cloud Services; or
(iii) the Cloud Services’ cost efficiency or performance; or
(b) to comply with applicable law.
3.11 General functionality: Any changes made by the Provider as contemplated in Section 3.10, may not materially reduce the general functionality of the Cloud Service.
4. LIABILITY
4.1 Unrecoverable losses: A Party will not be liable to the other Party under any theory of liability (whether in contract, delict (tort), or otherwise) and however caused under or relating to the Agreement for indirect, consequential, special and punitive losses which includes loss of profits, loss of business revenues, loss of anticipated savings, loss of goodwill, or loss of data.
4.2 Maximum liability: The maximum liability under or in connection with the Agreement of either Party, its Affiliates, employees, shareholders, contractors, or customers, under any theory of liability (whether in contract, delict (tort), or otherwise) and however caused, cannot exceed and amount equal to all amounts that a Party has paid to the other Party under this Agreement and includes interest and costsand applies to all claims on an aggregate basis.
4.3 Mitigation: In case of any breach under the Agreement by a Party, the other Party must mitigate its losses to the extent reasonable under the circumstances.
4.4 Survival: The provisions under Article 4 will survive the termination of this Agreement.
5. WARRANTIES
5.1 Mutual warranties: Each Party to this Agreement warrants that:
(a) No steps have been taken or are threatened by any person for their deregistration, winding up, liquidation, business rescue or administration and no matter or circumstance has arisen that would entitle anyone to take the aforementioned steps;
(b) They can enter into and perform their obligations under this Agreement;
(c) They have not conducted and will not conduct their business in a corrupt manner;
(d) They are not involved in or subject to any dispute and no dispute is pending or threatened, and they are not aware of any fact, matter or circumstance which may give rise to any dispute;
(e) They have disclosed all facts within their knowledge to the other Party which are material or would be reasonably likely to be material to the other Party in respect of the Agreement.;
(f) All information and documents provided by them to the other Party, before the Signature Date, was when it was given, and is, as at the Signature Date, true, accurate and complete;
(g) The Agreement does not and will not contravene their constitutional documents;
(h) The Agreement does not, and will not, contravene, any other agreement that they have concluded or will conclude; and
(i) They have not offered unlawful or prohibited inducements to the other Party or any other person in connection with this Agreement.
5.2 Cloud services warranty: The Provider warrants that:
(a) Documentation: The Cloud Services will materially perform in conformity with the Documentation;
(b) Viruses: It will use reasonable efforts so that no viruses are coded or introduced into the Cloud Services;
(c) Disabling code: It will not insert into any of the Cloud Services any code which would have the effect of disabling or otherwise shutting down all or any portion of the Cloud Services;
(d) Ownership of intellectual property: It is the owner of the Cloud Services and of each and every component thereof, or the recipient of a valid license thereto, and that they have and will maintain the full power and authority to grant the rights to the SaaS in this Agreement without the further consent of any third party and without conditions or requirements not stipulated in this Agreement.;
(e) Infringement: The Cloud Services will be free of any claim of infringement, misappropriation, unfair competition, or violation of any third party intellectual property right; and
(f) Laws: The Cloud Services will be updated as necessary to maintain compliance with applicable laws.
(g) The Provider may change the Documentation in their sole discretion, provided the functionality of the Cloud Services will not be materially decreased.
(h) If there is a breach under Section 5.2, the Provider must, at the discretion of the Customer:
(i) provide a workaround solution, and if the remedy fails or is not possible, refund all amounts paid for theCloud Services, including implementation costs (if any);
(ii) repair the Cloud Services, and if the remedy fails or is not possible, refund all amounts paid for the Cloud Services, including implementation costs (if any); or
(iii) replace the Cloud Services with Cloud Services of substantially similar functionality and if the remedy fails or is not possible, refund all amounts paid for the Cloud Services, including implementation costs (if any).
(i) Sub-Section (h), in conjunction with the Customers right to terminate this Agreement where applicable, states the Customers sole remedy and the Providers entire liability for breach of the warranty under Section 5.2.
(j) The Provider is not obliged to remedy the Cloud Services to the extent that the defect arises from or in connection with:
(i) modification or alteration of the Cloud Services by any person other than themselves;
(ii) a breach of the Agreement; or
(iii) the Cloud Services is used in a manner or for a purpose not reasonably contemplated by the Agreement or not authorised.
(k) TO THE EXTENT PERMITTED BY LAW, THE PROVIDER MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, THAT THE CLOUD SERVICES WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT IMMATERIAL INTERRUPTION, OR THAT ANY THIRD PARTY COMPONENTS INCORPORATED INTO THE CLOUD SERVICES WILL FUNCTION AS EXPECTED OR INTENDED.
6. TERMINATION
6.1 Material breach:
(a) If a Party is in material breach of this Agreement and such breach is:
(i) capable of being rectified, and the defaulting Party fails to rectify the breach within 30 days after the aggrieved Party provides a written notice requiring the defaulting Party to rectify the breach, then the aggrieved Party can terminate this Agreement with immediate effect and claim damages from the defaulting Party; or
(ii) not capable of being rectified, the aggrieved Party can terminate this Agreement immediately and claim damages from the defaulting Party.
(b) Unless otherwise provided in the Agreement, the relief stipulated above will not limit the aggrieved Partys rights. The aggrieved Party will have all available rights in terms of applicable law.
6.2 Material adverse regulatory change: The Provider may terminate this Agreement in whole, but not in part, in the event of a change in the regulatory environment applicable to the Provider that the change has a materially adverse effect on the Providers ability to fulfil their obligations under this Agreement. The termination right under 6.2 can be exercised by giving at least 3 months’ prior written notice to the Customer.
6.3 Additional termination rights: This Agreement may be terminated by:
(a) a Party immediately, without advanced notice, if the other Party is deemed unable or admits their inability to pay their debts as they become due;
(b) a Party immediately, without advanced notice, if the other Party suspends making payments on any of their debts;
(c) a Party immediately, without advanced notice, if the other Party commences negotiations with their creditors to reschedule their indebtedness because of actual or anticipated financial difficulties; or
(d) a Party immediately, without advanced notice, if the other Party is found guilty corrupt activities under applicable laws.
7. INTELLECTUAL PROPERTY
7.1 Definitions:
(a) Feedback any ideas, comments, or suggestions relating to the API, Documents or the Licensor Offering.
(b) Intellectual Property Rights copyrights, moral rights, inventions, patents, trademarks, designs, data and database rights, domain names, publicity rights.
7.2 Retained intellectual property: Subject to Sections 7.3 and 7.4, the following Intellectual Property remains the property of the current owner:
(a) Intellectual Property that existed prior to the Start Date; and
(b) Intellectual Property that was developed independently of the Agreement.
7.3 Related intellectual property: From the date of creation, the Provider owns all Intellectual Property Rights in:
(a) the Cloud Services and the Documentation; and
(b) any other item or material created, developed or provided by or on behalf of the Provider under or in connection with the Agreement.
7.4 Feedback rights: If the Customer provides the Provider with Feedback relating to the Cloud Services:
(a) all intellectual property rights in that Feedback, and anything created from that Feedback, including new material, enhancements, modifications, or derivative works, are owned by the Provider; and
(b) the Provider can use or disclose the Feedback for any purpose.
8. CONFIDENTIAL INFORMATION
8.1 Definitions:
(a) Affiliate, for the purposes of Article 8, means, with respect to a Party, any other person or entity which directly or indirectly Controls, is Controlled by, or is under common Control with such Party.
(b) “Confidential Information means all information disclosed between the Parties disclosed in connection with the Purpose of Confidential Disclosure.
(c) Control, for the purposes of Article 8, means the person or entity owns, directly or indirectly, more than 50 percent of the capital of the other entity, or in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such entity.
(d) Disclosing Party means a Party that discloses Confidential Information under this Agreement.
(e) Purpose only for the purposes of Article 8 means to give effect to the Agreement concluded between the Parties.
(f) Receiving Party means a Party that receives or acquires Confidential Information directly or indirectly under this Agreement.
8.2 Affiliate confidential information: Confidential Information will include any Confidential Information of any Affiliate of the Receiving Party.
8.3 Third party confidential information: Confidential Information will include any Confidential Information of any third party.
8.4 Labelling: For Confidential Information to be considered confidential, the information must be marked as confidential or if disclosed orally, identified as confidential in writing within [●].
8.5 Time of disclosure: The Confidential Information will include Confidential Information disclosed before and after the Signature Date.
8.6 Excluded information: The following information is not Confidential Information:
(a) information known to the Receiving Party before disclosure by the Disclosing Party;
(b) information that is or becomes publicly known, not as a result of a breach of this Agreement by the Receiving Party;
(c) information developed independently by the Receiving Party in circumstances that are not a breach of this Agreement; and
(d) information which Receiving Party receives from a third party who can disclose the Confidential Information free of restriction and without obligation.
8.7 Notification and disclosures required in terms of law: If the Receiving Party is required to disclose Confidential Information to satisfy a court order or to comply with any applicable law the Receiving Party will notify the Disclosing Party in writing before such disclosure to enable the Disclosing Party to protect their interest; and
8.8 Obligations and disclosures required in terms of law: If the Receiving Party is required to disclose Confidential Information to satisfy a court order or to comply with any applicable law the Receiving Party will only disclose the legally required portion of the information and use reasonable endeavours to protect the confidentiality of such information (the onus is on the Receiving Party to demonstrate that they have complied with this provision).
8.9 Handling of Confidential Information: A Receiving Party must not disclose the Confidential Information to any third party without first obtaining written consent from the Disclosing Party.
8.10 Standard of care: A Receiving Party must protect the Confidential Information of a Disclosing Party by using the same standard of care to safeguard their confidential information.
8.11 Steps required to protect Confidential Information: A Receiving Party must take reasonable steps to prevent any unauthorised disclosure of the Confidential Information.
8.12 Unauthorised access: A Receiving Party will immediately notify the Disclosing Party if the Receiving Party becomes aware of any loss or any unauthorised access to, or use or disclosure of, any Confidential Information in the control of the Receiving Party or their authorised recipient.
8.13 Cooperation: The Receiving Party must cooperate with the Disclosing Party to investigate and mitigate any adverse effects of unauthorised access to, or use or disclosure of, any Confidential Information.
8.14 Rights of the Disclosing Party: A Disclosing Party can at any time require:
(a) the Receiving Party to return any Confidential Information;
(b) the Receiving Party to expunge any Confidential Information from any device;
(c) the Receiving Party to destroy any material relating to the Confidential Information;
(d) the Receiving Party to cause the return or destruction of any Confidential Information which the Receiving Party disclosed to any third party; or
(e) a written statement under oath that the Receiving Party has not retained any such Confidential Information and that no third party has retained any such Confidential Information.
8.15 Authorised Recipients: A Receiving Party can disclose the Confidential Information to their representatives, employees, consultants, or professional advisors, if necessary and to the extent required to fulfil the Purpose.
8.16 Confidentiality undertakings: If a Receiving Party intends to disclose the Confidential Information to their representatives or employees, such representatives or employees must sign a confidentiality undertaking that is to the satisfaction of the Disclosing Party.
8.17 Acknowledgment: A Receiving Party acknowledges that unauthorised or unlawful use or disclosure of the Confidential Information can cause irreparable damage to the Disclosing Party.
8.18 Indemnity: The Receiving Party indemnifies the Disclosing Party against any, and all loss suffered where the Receiving Party, or their representative or employee, discloses or uses the Confidential Information unlawfully or without the Disclosing Partys consent.
8.19 Injunctive relief: The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorised or unlawful use or disclosure of the Confidential Information and a Disclosing Party can ask a court for injunctive relief without waiving any other rights or remedies.
8.20 No limitation: Notwithstanding anything agreed to between the Parties, a claim for breach of the confidentiality provisions , or a claim under 8.18, will not be limited or excluded under any limitation of liability or exclusion of liability provision.
8.21 Ownership and rights: The Disclosing Party will remain the owner of all rights relating to the Confidential Information. Where rights must be granted in respect of the Confidential Information, such rights are only granted to the extent required to fulfil the Purpose.
8.22 Termination and survival: The confidentiality provisions in this Agreement will survive the termination of this Agreement.
8.23 Period: The confidentiality provisions in this Agreement will bind the Receiving Party for an indefinite period.
8.24 Warranties: The Disclosing Party warrants that they have the right to disclose the Confidential Information to the Receiving Party.
8.25 No further warranties: The Disclosing Party makes no other express, implied, or statutory warranties in respect of the Confidential Information.
8.26 Disclaimer: The Disclosing Party disclaims all other representations, warranties, or assurances for the Confidential Information, including for accuracy, performance, completeness, suitability, or third-party rights.
9. FORCE MAJEURE
9.1 No liability: Neither Party is liable for failure or delay to perform its obligations under the Agreement to the extent caused by events or acts beyond its control which could not have been reasonably foreseeable when the Agreement was concluded and includes events or acts of:
(a) acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, storms or other severe or extraordinary weather conditions, natural disasters;
(b) sabotage, contamination, nuclear incidents, epidemics;
(c) war (civil or other and whether declared or not), military or other hostilities, terrorist acts or similar, riot, rebellion, insurrection, revolution, civil disturbance, or usurped authority;
(d) strikes or other industrial disputes that affect an essential portion of the supplies or works, except with respect to workers under the control of the party asking for relief due to this event;
(e) non-availability or loss of export permit or license for the productsor services to be delivered, or of visas or permits for the partys personnel;
(f) requisition or compulsory acquisition by any governmental or competent authority, embargo, or other sanctions, and
(g) currency restrictions, shortage of transport means, general shortage of materials, restrictions on the use of or unavailability or shortage of power or other utilities,
9.2 Exclusions: The relief in Section 9.1 will not apply to the extent that:
(a) the default or the delay was caused by the non-performing Party; or
(b) such default or delay could have been prevented by precautions and could have been circumvented by the non-performing Party using alternate sources, workaround plans, or other means.
9.3 Obligations: If an event or act as contemplated in Section 9.1 occurs:
(a) the non-performing Party must as soon as practical notify the other Party provide all relevant information, describing at a reasonable level of detail the circumstances and the performance that is affected;
(b) the non-performing Party must use reasonable endeavours to overcome the event; and
(c) the non-performing Party must continue to perform their obligations as far as practicable.
9.4 Should either Party be prevented from carrying on their contractual obligations due to an event above lasting continuously for 30 days, the Parties will consult each other on the future implementation of the Agreement.
9.5 If the Parties dont mutually arrive at an acceptable arrangement within 30 days after that, either Party can terminate the Agreement immediately on written notice.
10. DISPUTE RESOLUTION
10.1 Dispute resolution: A dispute under this Agreement shall be resolved as follow:
(a) Notice of Dispute: Should at any time a Party assert that a exists between the Parties that Party may submit a written notice (Notice of Dispute) to the other Party specifying:
(i) the nature of the dispute that has arisen;
(ii) the areas of expertise it considers are required to resolve the dispute;
(iii) the major issues for determination, and
(iv) the relief or outcome being sought.
(b) Notice of Response: Within 10 days of receipt of the Notice of Dispute, the other Party shall provide a written response (Notice of Response) stating their position in relation to the dispute, including:
(i) a statement of the areas of expertise it considers are required to resolve the dispute;
(ii) any additional issues that should be referred for determination; and
(iii) any comment on the relief or outcome referred to in the Notice of Dispute.
10.2 Good faith negotiations: After receipt of the Notice of Response or after 10 days of receipt of the Notice of Dispute (whichever is the earliest), the Parties must attempt to negotiate in good faith the dispute for at least 30 days.
10.3 Escalation: If the dispute is not resolved within the period provided for good faith negotiations, either Party may escalate such dispute by providing written notice (the Escalation Notice):
(a) Designations of executives: Each Party must designate an executive (with authority to make commitments that would resolve the dispute) which will in good faith attempt to resolve the dispute within 30 days from the date that the dispute was referred to them.
(b) No further action: Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither Party shall institute any further action until the period for escalation has come to an end.
10.4 Mediation: If the dispute is not resolved within the period stipulated above the Parties must attempt mediation administered by AFSA in accordance with the AFSA rules:
(a) Notice of mediation: Either Party may call for mediation by written notice to the other.
(b) Appointment of mediator:
(i) The Parties may agree to appoint a particular person as the mediator.
(ii) Failing agreement between the Parties, the mediator must be appointed in accordance with the AFSA rules.
(c) Place of mediation: The mediation will be held in Cape Town.
(d) Legal representation: The mediation shall be held without legal representation.
(e) Fees and disbursements: The Parties shall share equally in the fees and disbursements relating to the mediation.
(f) Role and powers of the mediator:
(i) The mediator shall convene a hearing of the Parties.
(ii) The mediator may hold separate discussions with any Party and shall assist the Parties in reaching a mutually acceptable settlement of their differences through means of reconciliation, interpretation, clarification, suggestion and advice.
(iii) The mediator is authorised to end the mediation process whenever in their opinion further efforts at mediation would not contribute to a resolution of the dispute between the Parties.
(g) No further action: Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither Party shall institute any further action until the mediation process has come to an end.
10.5 Arbitration: If a dispute cannot be resolved during the above process the dispute must be submitted to mandatory, binding arbitration administered by AFSA in accordance with the AFSA rules:
(a) Notice of arbitration: Either Party may call for arbitration by written notice to the other.
(b) Number of arbitrators: The arbitral panel shall consist of 1 arbitrator.
(c) Appointment of arbitrator:
(i) The Parties will jointly appoint the arbitrator.
(ii) Failing agreement between the Parties, the arbitrator must be appointed in accordance with the AFSA rules.
(d) Seat of arbitration: The place of arbitration will be Cape Town.
(e) Legal representation: The Parties may make use of legal representation.
(f) Fees and disbursements: The Parties shall share equally in the fees and disbursements relating to the arbitration.
(g) Judgment: Judgment on an arbitration award may be entered by any court with competent jurisdiction.
(h) Right of appeal: The arbitrators decision will be binding on the Parties to the arbitration at the date of the arbitrators ruling, and there will be no right of appeal.
10.6 Confidentiality: The Parties will treat as confidential and not disclose to any third-party details of the dispute submitted to the above proceedings, the conduct of the proceedings or the outcome of the proceedings without the written consent of the other Party.
10.7 Continued performance: Each Party must continue performing their obligations under this Agreement while a dispute is being resolved except when the issue in dispute precludes performance.
10.8 Language: Any dispute resolution proceedings under Article 10 must be conducted in English.
10.9 No suspension of contractual obligations: The referral of a dispute to proceedings under Article 10 does not suspend the contractual obligations of the Parties under the Agreement.
10.10 Binding nature of dispute resolution provisions: The provisions under Article 10 will be binding on the Parties despite any expiration, termination, or cancellation of this Agreement.
10.11 Interim relief: The provisions under Article 10 does not limit either Partys right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after any proceedings contemplated under Article 10.
11. THIRD-PARTY PRODUCTS
11.1 Definitions:
(a) Third-Party Products means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
11.2 Terms and conditions:
(a) The Cloud Services may permit access to Third-Party Products.
(b) For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions.
(c) If the Customer does not agree to abide by the applicable terms for any such Third-Party Products, then the Customer should not install, access, or use such Third-Party Products.
11.3 Liability and indemnification:
(a) The Customer is solely responsible for any loss, damage, or liability arising from the integration with third-party products and the exchange of its data.
(b) The Customer indemnifies the Provider against all claims for losses or damages arising from or relating to the Customers use of any third-party products.
11.4 Data security and privacy: The Provider is not responsible for the security and privacy of the Customers data once it is transferred to a third-party platform, and it is the Customers responsibility to ensure that the third-party platform has adequate security measures in place to protect its data.
11.5 Compliance with laws and regulations: The Customer is responsible for ensuring that its use of third-party products complies with all applicable laws and regulations, including data protection and privacy laws.
11.6 Termination of integration: The Provider may terminate, in its sole discretion, any integration with a third-party platform if it determines that the platform is no longer secure or is in violation of any laws or regulations.
12. SUBCONTRACTING
12.1 Subcontracting: The Provider cannot subcontract any Service unless they have obtained prior written consent from the Customer who can withhold or condition the written consent.
12.2 Subcontracting requirements: If the Provider subcontracts any of the Services, the Provider must provide the Customer with all invoices relating to such subcontracted services.
12.3 No benefit: The Provider cannot profit or benefit from any fees charged by the subcontractor if such fees are lower than the Provider s fees and any subcontractor fees that are lower than the Provider s fees will benefit the Customer.
12.4 Confidentiality: The Provider must obtain confidentiality undertakings from any approved subcontractor substantially the same as those in this Agreement.
12.5 Continued obligations: Despite anything contrary in this Agreement, no subcontracting by the Provider will relieve them of any of their obligations under this Agreement.
13. COMPIANCE WITH LAWS
13.1 Definitions: For purposes of Article 13, Applicable Laws means all applicable laws, regulations, rules, ordinances, codes and standards applicable to the services and products provided under this Agreement, which includes the applicable rules and regulations related to the personnel, consultants representatives of the Parties.
13.2 Undertaking: Each Party undertakes, at its own expense, in favour of the other to comply with all Applicable Laws in the performance of its obligations under the Agreement.
13.3 Permits, licenses and authorizations: Each Party must, at its own expense, promptly obtain and maintain any necessary permits, licenses, and authorizations required for the performance of its obligations under this Agreement.
13.4 Changes to applicable laws: Each Party must promptly notify the other Party of any changes in Applicable Laws that may materially affect its ability to perform under this Agreement.
13.5 Notification of non-compliance: If a Party becomes aware of any actual or potential non-compliance with Applicable Laws, it must promptly notify the other Party in writing and take all necessary steps to remedy such non-compliance within a reasonable time.
14.1 Governing law and jurisdiction: The laws of Republic of South Africa govern this Agreement and the courts of South Africa has non-exclusive jurisdiction to settle any disputes.
14.2 Amendments and waivers:
(a) No amendment to this Agreement is effective unless it is in writing, identified as an amendment and signed by an authorised representative of each Party.
(b) Except as otherwise stipulated in this Agreement, no failure to exercise any rights arising from this Agreement will be construed as a waiver.
(c) Except as otherwise stipulated in this Agreement, any exercise of any right hereunder will not preclude any other or further exercise thereof or the exercise of any other right.
14.3 Assignment:
(a) This Agreement will be binding on the Parties hereto and their respective successors and assigns.
(b) Except as contemplated below, neither Party may assign this Agreement without the prior written consent of the other Party which consent may be withheld or conditioned within the other Partys sole discretion.
(c) A Party may assign this Agreement where:
(i) a Party assigns the Agreement to its Affiliate; or
(ii) in the case of a merger or acquisition of all or substantially all of the assigning Partys assets.
(d) Any assignment made without other Partys consent as required above is null and void and of no effect as between the Parties.
14.4 Change of control:
(a) The Provider must not, without the Customers prior written consent, allow the transfer of the share capital or future increased share capital of the Provider resulting in a change in the Providers effective control, or transfer or dispose of their assets (or the business or material assets of any of its subsidiaries (if applicable).
(b) In the sole election of the Customer, any transfer as mentioned above will be a cession by the Provider of their rights under this Agreement.
14.5 Drafting and negotiation costs: Each Party will pay their costs for the Agreements negotiation, drafting, finalisation, signing, and implementation.
14.6 No employment, partnership, or agency: This Agreement will not result in an employment, partnership or agency relationship between the Parties and the Parties must not represent that there is any employment, partnership or agency relationship between the Parties.
14.7 No undertakings: Neither Party may give any undertaking which will create a binding obligation on the other Party.
14.8 No authority to bind: Neither Party will have authority to bind the other Party to any agreement.
14.9 No rights to third-parties: Unless otherwise stipulated in this Agreement, nothing in this Agreement is intended to or will confer on any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.10 Legal notices:
(a) Any notice under the Agreement must be delivered by email to:
The Customer
Email: Details as per the Order Form
Attention: Details as per the Order Form
The Provider
Email: grant@connexa.co.za
Attention: Grant Langton
(b) Date of notice: A notice will be deemed given if sent by email on the same day of transmission with a receipt confirming the successful completion of the transmission.
(c) Further requirements: If the notice is given under Section Error! Reference source not found., a copy of that email must be immediately delivered (by hand or courier) to the chief executive or equivalent officer of the other party at the other partys last known physical address.
14.11 Public disclosures: All public disclosures by either Party relating to this Agreement will be subject to the following terms:
(a) Any public disclosures must be coordinated with and approved by the other Party before release unless the announcement is intended solely for internal distribution or disclosures required to meet legal requirements beyond the control of the disclosing Party.
(b) Despite Subsection 14.11(a), the Provider can list the Customer as a customer and describe in general terms the Services provided by the Provider under this Agreement in proposals and other marketing materials.
14.12 Entire agreement: This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement.
14.13 Superseding documents: This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of this Agreement.
14.14 Order of precedence: If there is any inconsistency between the documents, the following order of precedence governs-
(a) The Agreement, excluding its schedules and annexures;
(b) The schedules and annexures to this Agreement; then
(c) Any documents incorporated herein by reference.
14.15 Deemed modification: If any provision of the Agreement is or becomes illegal, unenforceable or invalid, the relevant provision must be deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
14.16 Deemed severance: If modification under the above Subsection is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
14.17 Interpretation:
(a) Agreement means this document with all schedules relating to it, as may be amended from time to time.
(b) Parties means the parties to this Agreement and Party means one of the Parties.
(c) All references in this Agreement to Articles, Sections, and Schedule refer to the articles, sections, and schedules of this Agreement.
(d) The table of contents, background section and any section, schedule or other headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.
(e) The word including is not intended to be exclusive and means including, but not limited to and the word or is not intended to indicate exclusivity.
(f) If a word or expression is defined in a Section, the word or expression will bear the meaning assigned to such word or expression throughout this Agreement.
(g) An expression which denotes:
(i) Any gender includes the other genders;
(ii) A natural person includes a juristic person and vice versa; and
(iii) The singular includes the plural and vice versa;
(h) When reference is made to a specific time, the applicable time zone is CAT.
(i) When reference is made to days, it means calendar days and when calculating days and the last day falls on a Saturday, Sunday, or a public holiday, the last day will be the next succeeding business day.
(j) Unless otherwise provided, a reference to a law is a reference to it as amended, extended or re-enacted from time to time, provided that, as between the Parties, no such amendment, extension or re-enactment made after the date of this Agreement will apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.
(k) A reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the day preceding the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a business day, the period will end on the next business day in that month (if there is one) or the preceding business day (if there is not); and
(ii) if there is no numerically corresponding day in that month, that period will end on the last business day of that month;
Despite the above, a period commencing on the last business day of a month will end on the last business day of the next month or the calendar month in which it is to end.