Nedscaper (Pty) Ltd.
TERMS AND CONDITIONS NEDSCAPER (PTY) LTD
REG NO. 2020/479495/07
1.1 “Additional Charge means fees and charges payable by The Client which The Client accepts for services provided by Nedscaper to The Client which excludes services as defined in clause 14.3 below unless otherwise agreed in writing between the Parties
1.2 “Affiliate” means with respect to any party, any other entity which is a subsidiary or a holding company of such company. In regard to this definition, the terms “subsidiary” and “holding company” shall have the meaning assigned thereto in Section 3 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.
1.3 “Agreement” means this document, the relevant Record of Entitlements, the Service Level Agreement, and annexures hereto as may be amended by the Parties in writing from time to time.
1.4 “Anti-Bribery Laws” means applicable anti-bribery and corruption Laws.
1.5 “Business Day” means a day other than a Saturday, Sunday or a public holiday in the territory in which the Service is to be supplied.
1.6 “Change Plan” means a plan used to streamline the change management process developed to the extent appropriate for the type of change being undertaken. A change plan may include a change impact analysis report, change communication plan, change implementation plan, change test plan, and a change rollback plan.
1.7 “Client” means a private and or public company incorporated in accordance with the laws of the Republic of South Africa and or a registered entity in accordance with the laws of that country.
1.8 “Client Material” means material owned or developed by or for Client independently and outside of this Agreement and furnished by The Client to Nedscaper pursuant to this Agreement in connection with the Services that captures and defines the work activities, deliverables and timelines that Nedscaper will execute against, in performance of the specified work for The Client.
1.9 “Change Request” means a written request generated by the Client for the addition, modification, or removal of anything that could have an effect on a Configuration Item and/or the provision of the Services. For the sake of clarity, new configuration releases are usually identified by a change in the version number, for instance a change from version 1 to version 2
1.10 “Confidential Information” means, inter alia, Corporate Information (all and any information, whether or not recorded in documentary form or on computer disk or tape, relating to the business, business methods, corporate plans, management systems, finances, customer details, maturing new business opportunities or research and development projects of the Disclosing Party), Data (any and all data relating to customers, including but not limited to Personal Information, telematics data and any other data that may from its nature be deemed confidential); Intellectual Property Information (all intellectual property pertaining to all software, firmware, algorithms, trademarks, patents, design rights, copyrights, trade names, trade secrets, proprietary information, technology, rights and licenses, proprietary rights and processes, whether registered or not, know-how, research and development in progress and any and all other intellectual property, including, without limitation, all things authored, discovered, developed, made, perfected, improved, designed, engineered, devised, acquired, produced, conceived and first reckoned to practice by the disclosing party as a result of or in connection with its business), Marketing Information (all and any information, whether recorded in documentary form or on computer disk or tape, relating to the marketing of any past, present or future product or service including, without limitation, targets and statistics, market share statistics, marketing surveys and plans, market research reports, advertising and promotional material, the names, addresses, telephone numbers, contact names and identities of customers (existing and future), the nature of its business operations and requirements) and other information, whether or not recorded in documentary form or on computer disk or tape, to which attaches an equivalent level of confidentiality, and any other information which is identified as confidential and not specifically included herein.
1.11 “Configuration Item” means any item of Hardware or Software listed in the Record of Entitlements unless identified as a spare.
1.12 “Commencement Date” means the date of the last signing party.
1.13 “Data Controller” means Client, who alone or jointly with others, determines the purposes and means of the Processing of Personal Information.
1.14 “Data Processing” means where the services are to be provided, supplied, stored, collected, collated, accessed, and processed by on behalf of The Client by Nedscaper.
1.15 “The Client Management System” means the system used by The Client to record information relating to the provision of the applicable Services.
1.16 “Disclosing Party” means any Party or its Affiliate disclosing Confidential Information under this Agreement.
1.17 Emergency Maintenance” means any non-scheduled, non-standard maintenance required by The Client Management System.
1.18 “Event” means systematic detection or correlation of one or more Logs that identifies activity of interest.
1.19 “Force Majeure Event” means any event beyond the reasonable control of a Party, including but not limited to acts of God, changes in Laws, earthquakes, acts of war or public enemy, terrorism, strikes, applicable trade sanctions, acts of sovereign states, blockade, embargo, quarantine, pandemic, epidemic, banking sanctions, public disorder, cable cuts, power outage, sabotage, accident, or any similar events which impact on that Party’s ability to perform its obligations.
1.20 “Good Industry Practice” means standards, practices, methods and procedures conforming to the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances.
1.21 “Incident” means an unplanned interruption to an IT service or reduction in the quality of an IT service or security incident: is an validated compromise of an asset (e.g., identity or device) which may result in unauthorized access to an asset (e.g., application or data) which may result in intentional or unintentional data alteration (integrity) and/or loss through exfiltration, destruction or encryption (ransomware).
1.22 “Intellectual Property Rights” means any of the following rights anywhere in the world, whether registered or unregistered: any patents and applications for patents, trademark rights, service mark rights and domain name rights and applications for the same, rights in unregistered trademarks and rights in trade names and business names, copyright (including copyright in Software and databases), database rights, rights in designs and rights in inventions; and any rights of a similar effect or nature as any of those in paragraph (a) of this definition.
1.23 “Law” means any statute, by-law, directive, regulation, or court judgement, and any rule or policy (including common law), or statute, constitution, decree, order or any legislative issued by any government, local government, statutory or regulatory body or court.
1.24 “Location” means any location at, or from which, the Services are to be provided, as specified in this agreement.
1.25 “Log” means a record of activity generated by a system or application.
1.26 “Nedscaper” Means Nedscaper (Pty) Ltd a private company incorporated with the terms of the law of the Republic of South Africa with company registration number 2020/479495/07.
1.27 “Next Business Day” means the same time on the next Business Day as the Client logged the relevant Security Incident, Change Request or Service Request on a Business Day.
1.28 “Party” means the parties to this Agreement, Nedscaper (Pty) Ltd and The Client and party” shall mean either one of them.
1.29 “Permanent Resolution” means the action taken to resolve the root cause of a Security Incident or Problem.
1.30 “Personal Information” has the meaning set out in the Protection of Personal Information Act 4 of 2013 (“POPIA”).
1.31 “Point of Contact (POC)” means the person duly authorized serving as the coordinator or focal point of information and decision making concerning this Agreement on behalf of the Client;
1.32 “Priority” means the relative urgency and importance of an Event, Security Incident, Problem, Change Request, or Service Request based on a combination of impact and urgency, with Priority 1/critical being the highest and Priority 5/low being the lowest.
1.33 “Problem” means the cause of one or more Security Incidents.
1.34 “Process or Processing” means any operation or set of operations performed in respect of personal data, whether automated or not, including collection, recording, transfer, utilisation, adaptation or alteration, retrieval, disclosure and storage of Personal Information, by transmission, dissemination, or any other means of making it available.
1.35 “Receiving Party” means any Party or its Affiliate receiving Confidential Information disclosed under this Agreement.
1.36 “Record of Entitlements” means documentation (and all updates thereto) that The Client may reasonably require to be provided by Nedscaper relating to the services and/or deliverables, including reports, project plans, technical end-user documentation (including reports, guides, user manuals, technical manuals, computer operation manuals, installation and support manuals, operating standards, specifications and training materials) that describe, amongst other things, the installation, configuration, intended operation and maintenance of the deliverables.
1.37 “Security Incident” means an Event or threat in Client’s environment detected by the Service.
1.38 “Security Incident Diagnosis” means the performance of an investigation (not remediation) by Nedscaper into the possible causes of a Security Incident.
1.39 “Security Incident Record” means a record in The Client’s Management System generated either by Nedscaper that records and tracks a Service Request related to a Security Incident.
1.40 “Security Incident Report” means a report, prepared by a security analyst that details a Security Incident detected in The Client’s environment.
1.41 “Security Operations Centre (SOC)” means Nedscaper’s facilities staffed with personnel qualified to receive, analyse and respond to Events and Security Incidents in accordance with the Service.
1.42 “Service Calendar” means the hours and days specified in the Record of Entitlements during which the Service for the applicable Configuration Item is available.
1.43 “Service Charges” means fees by Nedscaper for services rendered
1.44 “Service Desk” means the technical support group that acts as a single point of contact between The Parties to manage all Security Incidents, Service Requests, Change Requests, communications and escalations with the Client.
1.45 “Service Level Target” means a commitment that is specified in the agreed Service Level Agreement between Nedscaper and the client.
1.46 “Service Portal” means the internet portal created and configured by Nedscaper used for Security Incident workflow, reporting, and document management.
1.47 “Service Request” means a request generated by the Client for any Service Ticket logged which is not an Incident, Change or Problem.
1.48 “Services” means the services described in this Agreement.
1.49 “Service Level Agreement” means the SLA entered into between the Parties, which
SLA shall be incorporated herein by reference and form an integral part of this Agreement.
1.50 “Software” means software listed in the Record of Entitlements or which forms an integral part of a Configuration Item but does not include any software installed on the Hardware by the Client unless it is listed in the Record of Entitlements.
1.51 “Standard Change” means a low risk, relatively common change that is mutually agreed and documented and constitutes a pre-approved change that is implemented through a Service Request.
1.52 “Term” means the term of this Agreement.
1.53 “Third Party” means any person who is neither a party to this Agreement nor an employee of either Party.
1.54 “Third Party Material” means any Third Party Software and any documentation, including operating manuals, user technical literature or related materials, on any online or offline media, that is supplied, used or made available to a Party in the provision of the Services, but which is not proprietary to either Party.
1.55 “Third Party Software” means Software owned by Third Parties that Nedscaper uses or makes available to Client in connection with the Service.
1.56 “Transition” means any period during which Nedscaper will perform certain obligations to prepare for and enable the provision of the Services, as set out in this Agreement.
1.57 “VAT” – means Value Added Tax in terms of the Value Added Tax Act of 1991.
2.1.1 References to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time;
2.1.2 words importing any particular gender include the other genders (i.e. the masculine, feminine and neuter genders, as the case may be); the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
2.1.3 references to a “person” include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of people;
2.1.4 References to a “subsidiary” or a “holding company” shall be references to subsidiary or holding company as defined in the Companies Act, 71 of 2008, as amended from time to time;
2.1.5 if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
2.1.6 Any definition, wherever it appears in this Agreement, shall bear the same meaning and apply throughout this Agreement unless otherwise stated or inconsistent with the context in which it appears;
2.1.7 if there is any conflict between any definitions in this Agreement then, for purposes of interpreting any clause of the Agreement, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in the Agreement;
2.1.8 where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
2.1.9 Where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the next succeeding Business Day;
2.1.10 any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
2.1.11 the use of any expression covering a process available under South African law (including, for example, a winding-up) shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction;
2.1.12 the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given;
2.1.13 the expiration or termination of this Agreement shall not affect the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination;
2.1.14 each of the provisions of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the party responsible for the drafting or preparation of the agreement (i.e. the contra proferentem rule), shall not apply;
3.1.1 This Agreement is an “umbrella agreement” and read together with any signed Service Order, shall constitute a separate and independent Service Agreement between the Parties, related to the subject matter thereof, notwithstanding any inquiry, specification, acceptance, order or other documentation to the contrary.
3.2 Agreement defines:
3.2.1 The general terms of the business relationship which shall govern all transactions between the Parties:
188.8.131.52 Relationship and Status;
184.108.40.206 Mutuality of obligation and
220.127.116.11 Standard Terms and Conditions.
This Agreement shall come into effect on the Commencement Date unless terminated in accordance with clause 9 below
5.1 Nedscaper will provide the services to the Client in accordance with the terms and conditions of this agreement and the annexures hereto; with the level of care, skill, competence, diligence, and judgment which may be expected of a professional organisation experienced in providing services of the type and complexity of the services;
5.2 in a professional and ethical manner; and
5.3 by allocating such human, technological and other resources as shall be necessary to ensure that the services are carried out so as to effect delivery thereof timeously, in accordance with the service levels and specifications and as described in the annexures hereto.
5.4 Nedscaper must ensure that its personnel and/or subcontractors and/or agents do not represent themselves as being, or allow another person to be under the misapprehension that any of them are, employees, partners or agents of the other party/ies to Nedscaper, the Client or any affiliated companies; in providing the services,
5.5 Nedscaper shall take care of, and comply with, all reasonable directions applicable to the services provided by the Client contact person.
5.6 Nedscaper shall remain fully responsible for the performance of the services in accordance with the relevant agreement.
5.7 Nedscaper shall designate a contact person who shall devote sufficient business time to the services. The contact person shall be the primary contact for the Client in dealing with Nedscaper in respect of the services;
5.7.1 shall have overall responsibility for managing and co-ordinating the delivery of the services;
5.7.2 shall meet regularly with the Client and or its contact person; and
5.7.3 shall have the power and authority to make decisions with respect to the actions to be taken by Nedscaper in the ordinary course of day to day management of the services. Such contact person may designate in writing a reasonable number of additional personnel of Nedscaper to be points of contact for the Client with respect to particular matters of expertise relating to the services.
5.8 The Client shall designate a contact person who shall be authorised to act as the Client’s primary contact with Nedscaper in dealing with the Client in relation to the services and who shall have the power and authority to make decisions with respect to actions to be taken by the Client in the ordinary course of day to day management of the services.
5.9 Nedscaper will provide the Client with all reports reasonably required by the Client. The format, content and frequency of such reports shall be reasonably required by the Client from time to time.
5.10 Nedscaper will attend such performance management meetings for the purposes of discussing performance and progress in the provision of services as detailed in the annexures.
5.11 Nedscaper hereby indemnifies and holds the Client harmless against any claim or action whatsoever taken against the Client by an employee, subcontractor, representative or agent of Nedscaper engaged in connection with the provision of the services, provided that the claim or action is due to any act or omission on the part of a party to Nedscaper arising prior to the date of termination of this agreement for whatever reason.
6.1. As consideration for the Services to be performed by Nedscaper in terms of any
applicable Service Level agreement , the Client shall pay to Nedscaper the Service Fees (plus VAT), as specified in the Service Level agreement .
6.2. Nedscaper shall submit an Invoice to the Client on or before the last day of each month setting out the Service Fees in respect of Services performed and any out-of-pocket Expenses incurred during that calendar month, provided that such out-of-pocket expenses were approved by the Client in writing prior to Nedscaper incurring same.
6.3. The Client shall make payment to Nedscaper within 30 (thirty) calendar days of receipt of the Invoice referred to in clause 6.1, free of deduction or set-off. Any payments due and owing to Nedscaper must be paid on or before the due date for payment thereof, notwithstanding any corresponding payments the Client is entitled to from its customer and/or any third party.
6.4. If the Client fails to make full payment to Nedscaper as outlined in clause 6.3 above the Client shall pay interest to Nedscaper on the outstanding amount at the prime interest rate, plus 2% (two percent) per annum calculated from the date on which payment falls due until the date on which payment is made.
6.5. In addition to clause 6.4 above and any other legal rights or remedies Nedscaper may have in law, should the Client fail to make payment as outlined in clause 6.3, Nedscaper shall be entitled to cancel this Agreement and cease to render the Services in respect to the applicable Service Level agreement with immediate effect.
6.6. Should The Client dispute any amount appearing on an invoice submitted to it pursuant to this Agreement and/or any applicable Service Level agreement, the Client shall, within 10 (ten) calendar days of receipt of the relevant invoice, notify Nedscaper, in writing, of such dispute, specifying the –
6.6.1. relevant Invoice;
6.6.2. specific amount in dispute; and
6.6.3. alleged reasons or grounds for dispute.
6.7. Any amount disputed in terms of clause 6.6 shall not be regarded as payable in terms of this clause 6 and if the Parties are unable to resolve such dispute within 7 (seven) business days from the date on which the dispute arose, it shall be referred to the financial managers of the Parties or their representatives for determination. If these representatives are unable to resolve the dispute within 7 (seven) business days from the date of referral, such dispute shall be referred for resolution in accordance with Clause 20 of this Agreement.
6.8. For the duration of this Agreement, Nedscaper shall :
6.8.1. Perform the Services under this Agreement in accordance with the agreed service levels, with due care and diligence, in a professional manner and in accordance with the reasonable instructions of the Client.
7.1. The Client shall timeously make available to Nedscaper all relevant information and data at the Client’s disposal to, and reasonably required for, the performance of the Services.
7.2. The Client shall procure any and all tools, deployment tools, hardware, software, and
software licenses that Nedscaper reasonably requires the Client to possess in order to adequately perform its obligations in terms of any Service Level agreement, which shall be the sole responsibility, and for the account, of the Client.
7.3. Nedscaper will not be liable for any damage suffered by the Client as a result of any Services undertaken by third parties. The Client will, in addition, be liable for any remedial or additional Services which Nedscaper is required/requested to perform as a result of the Services undertaken by third parties.
7.4. For the time being, if not specified otherwise in the Service Level agreement, Nedscaper representative shall be the Managing Director and the Client representative will be identified in the Service Level agreement. Either Party shall be entitled to change the identity of their respective representative from time to time by giving no less than 10 (ten) days’ notice of such change in writing.
7.5. At all times it shall be the responsibility of the Client to have adequate disaster recovery and data back-up systems in place and to maintain these systems. Nedscaper shall not be liable for any loss or damage, from whatsoever cause and howsoever arising, suffered by the Client as a result of the Client’s failure to maintain adequate disaster recovery and data back-up systems.
7.6. At all times it shall be the responsibility of the Client to have adequate security and anti-virus systems in place and to maintain these systems. Nedscaper shall not be liable for any loss or damage, from whatsoever cause and howsoever arising, suffered by the Client as a result of the Client’s failure to maintain adequate security and anti-virus systems, including but not limited to, cyber-attacks caused by:
7.7. At all times it shall be the responsibility of the Client to ensure compliance with its own internal policies and procedures (including, but not limited to, corporate governance, due diligence, risk management, framework assessments, infrastructure assessments, self-assessments, audit compliance, and compliance reports) as well as any Applicable Laws applicable to the Client. Should the Client require assistance in this regard, Nedscaper may (at its discretion) provide such assistance at the sole cost and expense of the Client.
8.1. For the duration of this Agreement, Nedscaper shall:
8.1.1. Perform the Services under this contract Agreement with due care and diligence, in a professional manner and in accordance with the reasonable instructions of the Client;
8.1.2. Exercise the skill required of an expert in the field of the Services provided by Nedscaper in performing the Services set out in this Agreement;
8.1.3. Use its best endeavours to protect and promote the business of the Client and preserve its reputation and goodwill;
8.1.4. Use the assets of the Client entrusted to it, if any, with the utmost care;
8.1.5. In relation to the Client, act honestly and in good faith;
8.1.6. Avoid any material conflict between its own interests and those of the Client; and
8.1.7 Take all reasonable precautions to ensure that, in the event of a disaster, the
impact of such disaster on the ability of Nedscaper to comply with its obligations under this Agreement will be reduced to the greatest extent possible.
9.1 Should a Party commit a breach of any provision, term or condition hereof, and remain in default for a period of 14 (fourteen) days after receipt by it of written notice from the other Party calling for such breach to be remedied, the other Party will be entitled, without prejudice to any other rights it may have hereunder or in law, to terminate this Agreement upon 30 (thirty) days written notice and or to claim specific performance of the defaulting party’s obligations whether or not such obligations would otherwise have fallen due for performance, in either event without prejudice to the Party’s rights to claim damages.
9.2 Any termination pursuant to the provisions of clause 9.1 above will be without prejudice to any claim the Party may have in respect of any prior breach of the terms and conditions of this Agreement by the defaulting Party.
9.3 In addition to any and all other legal remedies it may have, either Party may immediately and upon written notice to the other Party, cancel this Agreement, if the other Party (‘s):
9.3.1 is liquidated or placed under judicial management or business rescue;
9.3.2 affects a general compromise or any other arrangement with its creditors, such arrangement shall exclude solvent restructurings or amalgamations;
9.3.3 the Supplier consolidates or merges with or into any entity (other than the consolidation or merger of the Supplier with an affiliate of the Supplier in which the Supplier is the surviving entity) or more of the outstanding voting securities or other ownership interests of the Supplier is acquired by any entity, or group of entities acting in concert; or
9.3.4 property (a substantial part thereof) becomes subject to levy, seizure, assignment or sale for or by any creditor or governmental agency.
9.3.5 do anything which would amount to an act of insolvency as defined in section 8(a) of the Insolvency Act, 24 of 1936 (as amended); or
9.3.6 have any license, obtained pursuant to this Agreement, to conduct business suspended, removed or endorsed by any order or decree of any applicable authority where the license is required for the performance of services in terms of this Agreement; or
9.3.7 suffer a judgement to be granted or entered against it or by any court of law and fail to cause such judgement to be satisfied, rescinded or appealed against within a period of 10 (ten) days after the date the judgement came to its knowledge; or
9.3.8 be convicted for fraud or have any director convicted of fraud or any crime involving dishonesty, or be successfully sued for fraud.
10.1. In case of termination, save to the extent that such termination was due to a material breach by Nedscaper as contemplated in clause 9.2, the Client shall pay to Nedscaper any amount owed in respect of the Services that have already been provided and delivered in accordance with this Agreement.
10.2 The Parties acknowledge and agree that where a Party exercises a right to terminate under this Agreement, that Party shall use reasonable endeavours to mitigate any losses it may suffer as a result of exercising its right to terminate.
10.3. On termination of this Agreement:
10.3.1. Any rights of the Parties that arose or accrued prior to termination of this Agreement, or are intended to survive termination, shall survive and continue in full force and effect, but all other rights and obligations of the Parties shall cease immediately.
10.3.2. Termination of this Agreement shall not relieve a Party of obligations imposed upon such Party by statute or regulation or by this Agreement prior to its termination.
10.3.3 The exercise of any termination right set out in this clause 10 by a Party shall be without prejudice to the Party’s other rights and remedies under this Agreement or in law.
The Receiving Party acknowledges that the Confidential Information is confidential to the Disclosing Party and is not in the public domain.
11.1. The Receiving Party agrees to:
11.1.1. protect the Confidential Information and not reveal or disclose it to any other Party;
11.1.2. only use the Disclosing Party’s Confidential Information for the performance of its obligations and responsibilities under this Agreement;
11.1.3. only disclose the Confidential Information to its personnel on a need-to-know basis; and
11.1.4. obtain promises of confidentiality from those personnel who are granted access to the Confidential Information.
11.2. These confidentiality obligations will remain valid indefinitely.
11.3. These obligations do not apply to any Confidential Information that:
11.3.1. was lawfully in the public domain at the time of disclosure or lawfully becomes available to the general public afterwards;
11.3.2. was lawfully known by the Receiving Party at the time it was received;
11.3.3. was independently developed by the Receiving Party before the time it was received;
11.3.4. was lawfully given to the Receiving Party by a Third Party; or
11.3.5. was disclosed in order to comply with a court order or other legal duty, provided that the Receiving Party must only disclose the minimum Confidential Information:
18.104.22.168. required to comply with the court order or other legal duty; and
22.214.171.124. after having provided as much notice to the other Party as is
reasonably practical in the circumstances.
11.4. Each Party must use the same degree of care that it uses to protect its own Confidential Information of a similar nature and value, but in no event less than a reasonable standard of care.
11.5. In the event of a breach by the Receiving Party of any confidentiality obligation, the
Receiving Party acknowledges that damages may be inadequate compensation and, subject to the court’s discretion, the Disclosing Party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will constitute such a breach.
12.1. All right, title and interest in all existing Intellectual Property owned, vested in, or held by a Party under any licensing agreement with any independent third party prior to the conclusion of this Agreement shall be and remain the sole property of that Party or the applicable third party licensor.
12.2. It is the intention of the Parties that the Client should own the Intellectual Property in all materials specifically created by Nedscaper for the Client in terms of this Agreement. Nedscaper accordingly undertakes to assign the relevant Intellectual Property, if any, to the Client on demand, provided that –
12.2.1. The Client has complied fully (and within the relevant time periods) with its payment obligations in terms of this Agreement; and
12.2.2. The Intellectual Property is capable of assignment by Nedscaper. All Nedscaper processes, tools, methodologies, strategies, proposals, creative ideas, presentations, etc. which are created or devised by Nedscaper BV, Nedscaper’s sister company in the Netherlands (“Nedscaper BV”), shall remain the Intellectual Property and Confidential Information of Nedscaper BV and may not be shared with third parties or used by the Client for its own benefit outside of the scope of the Services, without the permission of Nedscaper BV.
12.3 All Intellectual Property owned by either Party (whether before or after the Effective Date) shall remain the sole and exclusive property of that Party.
12.4 No Party shall use the Intellectual Property of the other Party without the written consent of the other Party, which consent shall not be unreasonably withheld and or delayed.
12.5. Client shall not, under any circumstances, copy, modify, decompile, reverse assemble, disassemble or make any adaptation or derivative of, sell, resell, transfer, license, sublicense or distribute Nedscaper’s Material.
13.1. In the performance of this Agreement, the Client may be required to transfer to Nedscaper Personal Information relating to its staff, directors and officers, agents, subcontractors, independent contractors or other individuals.
13.2. To the extent that any Personal Information is transferred to Nedscaper by the Client, Nedscaper shall be allowed to Process Client’s Personal Information to perform the required Services. Such Processing shall adhere to the applicable data privacy legislation, including but not limited to POPIA. In all circumstances the Client will be deemed to be the Data Controller and Nedscaper the Data Processor. Nedscaper warrants that the transfer of Client’s Personal Information to Nedscaper as well as the Processing of such Client’s Personal Information by the latter shall comply with all applicable laws and regulations in respect of the protection of Personal Information.
13.3. To the extent that the Processing of Client’s Personal Information by Nedscaper is conducted in accordance with all applicable laws (including but not limited to POPIA), and Client’s instructions, Client shall defend and indemnify Nedscaper from and against any and all claims, liabilities, losses and reasonable expenses incurred by or asserted against the Client in connection with any Third Party claim related to the Processing of Client’s Personal Information.
13.4 For avoidance of doubt, Nedscaper will handle Client data with the necessary care to retain the intended integrity of such data;
13.5 Respect the Client’s right to privacy by gaining authorization before provisioning remote support.
14.1. Each Party shall comply with the Anti-Bribery Laws including:
14.1.1. ensuring that it has in place adequate procedures to prevent bribery;
14.1.2. ensuring compliance with the Anti-Bribery Laws;
14.1.3. using all reasonable endeavours to ensure that it complies with the other Party’s applicable policies relating to prevention of bribery and corruption (as notified to
the other Party and as may be updated from time to time); and
14.1.4. using all reasonable endeavours to procure that all of that Party’s employees, agents, subcontractors and Affiliates involved in performing the Services or with this Agreement so comply.
14.2. Without limitation to the above, neither Party shall make or receive any bribe as defined in the Anti-Bribery Laws, or other improper payment, or allow any such to be made or received on its behalf, and will implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
Nedscaper may not subcontract any part of the Services to any person without the prior written consent of the Client, which consent shall not be unreasonably withheld and or delayed.
Notwithstanding anything to the contrary contained in this agreement, the parties to the agreement shall not be liable to each other for any indirect or consequential loss or damage, including without limitation, loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract.
17.1.Nedscaper hereby indemnifies The Client from and against any losses, claims, costs, damages and expenses which the Client may suffer, incur or sustain as a result of:
17.1.1 the software, documentation and/or materials infringing the intellectual property rights of any third party;
17.1.2 Nedscaper’s violation or infringement (or possible violation or infringement) of any legislation, statute, regulations or by-laws applicable to the provision of the services and/or the software.
The parties undertake to not solicit either directly or indirectly or induce for employment, or employ, in any capacity whatsoever, including as independent contractor, agent or adviser, any employee of the other parties or the customers during the term of this agreement and for a period of 1 (one) year from date of termination of this agreement.
The parties further undertake not to either directly or indirectly solicit or induce any customer of the other party or parties, alternatively customer introduced in terms of this agreement, to exclusively contract to any one or more parties to the prejudice of the remaining party/ies for a period of 2 (two) years from date of termination of this agreement or services rendered in terms of this agreement, whichever is the later.
19.1. If a dispute of any nature arises between the Parties, including in regard to the interpretation of, the effect of, the Parties’ respective rights or obligations hereunder, a breach of or the termination of this Agreement, then, upon written request of either Party, each Party will appoint a senior representative whose task it will be to meet for the purposes of resolving such dispute. Such representatives will discuss the matter in dispute and negotiate in good faith in an effort to resolve the dispute on amicable terms within 14 (fourteen) days. No formal proceedings may be commenced until the designated representatives conclude in good faith that an amicable resolution of the matter is not likely to occur.
19.2. Should the representatives of the Parties be unable to resolve a dispute in accordance with the foregoing, such dispute may be submitted by either Party to arbitration in accordance with the Expedited Rules of the Arbitration Foundation of Southern Africa (“AFSA”).
19.3. The arbitrator(s) shall be appointed by the Parties within 10 (ten) days of either Party submitting the dispute to arbitration, failing which the arbitrator shall be nominated by the Chairman for the time being of the Cape Town Bar Council.
19.4. The arbitration shall be held in Cape Town, South Africa.
19.5. The language of the arbitration shall be English.
19.6 This clause is severable from the rest of the Agreement and shall remain in effect even if this Agreement is terminated.
19.7. An award made by an arbitrator pursuant to the provisions of this clause 20, shall be final and binding on the Parties. Such award may be made an order of court.
19.8. Nothing in this clause 19 shall preclude either Party from seeking interim and/or urgent relief or enforcing any of its rights and obligations from a court of competent jurisdiction within the Republic of South Africa.
20.1.1 A court of competent jurisdiction so orders;
20.1.2 As reasonably required, the Manufacturer, Distributor, Supply Chain Vendor needs to carry out Maintenance; 0ithstanding that it is performed timeously and with minimal impact to the Client, to the extent permitted;
20.1.3 The Client has not made a payment of as set out in Clause 6 above
Nedscaper becomes aware of a potential threat to the proper operation of the Service or has reasonable grounds to believe that the Service is being used fraudulently, or illegally, or in violation of the terms of the Agreement.
21.1. Neither Party is liable to the other for the consequences of any delays or failures of its performance which are caused by a Force Majeure Event.
21.2. If any Force Majeure Event occurs in relation to either Party that affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other Party as to the nature and extent of the circumstances in question. Neither Party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to the other, by reason of any delay in performance, or the non-performance of any of its obligations under this Agreement to the extent that the delay or non-performance of that obligation is due to any Force Majeure Event of which it has notified the other Party and the time for performance shall be extended accordingly.
21.3. If the performance by either Party of any of its obligations under this Agreement is prevented or delayed by a Force Majeure Event for a continuous period in excess of 30 (thirty) days, the other Party shall be entitled to terminate this Agreement by giving written notice to the Party so affected, whereupon all monies due up and including to the point of the non-performance due to Force Majeure Event shall be paid immediately by the Client;
21.4. Nedscaper will not be liable for any failure or delay in providing the Services, or any non-achievement of Service Level Targets, to the extent such failure or delay or non-achievement is the direct or indirect result of any act or omission by Client or the failure of Client to comply with any of its responsibilities and obligations under this Agreement.
21.5. Nedscaper will not be liable for Service Level Target failures resulting from:
21.5.1. power outages;
21.5.2. a failure of Third Party supplied equipment and/or services; and/or
maintenance of such equipment or services;
21.5.3. errors caused by the Client or its end users; and
21.5.4. a Force Majeure Event.
22.1 For purposes of legal notices in terms of this Agreement, the Parties choose the following addresses and email addresses as their respective domicilium citandi executandi:
Workshop 17 on Kloof street
32 Kloof street
Marked for attention: Hans Kroll
22.2. Any notice to either Party shall be addressed to it at its above domicilium, and shall be delivered by hand, courier or email.
22.3. Either Party shall be entitled by written notice to the other, to change its domicilium, provided that the change will become effective only 10 (ten) Business Days after service of the notice in question.
Agreement in reliance on any statement or representation of any person (whether a party to this Agreement or not) other than as expressly incorporated in this Agreement. Each of the Parties irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Agreement by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in this Agreement.
23.2. All amounts set out in this Agreement shall be exclusive of value added tax (if any) or any other local applicable equivalent taxes or withholding or other non-recoverable taxes or duties, which shall be invoiced and paid by the Customer at the applicable rate and the manner prescribed by law from time to time.
23.2 Save as expressly provided for in this Agreement, a Party shall not cede any of its rights, delegate any of its obligations or otherwise assign, dispose of, encumber or transfer any of its rights, obligations or interest in, under or in terms of this Agreement to any third party, without the prior written consent of the other Party, except where such cession, delegation, assignment or transfer takes place to an Affiliate of either Party, or is as a result of a change in control or sale of shares.
23.3 The Parties will each perform their respective obligations under this Agreement in accordance with all applicable laws.
23.6. No granting of time or indulgence shall be or be deemed to be a waiver of any term or condition of this Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach of that provision or any other provision.
23.7 . Each Party will do and execute, or arrange for the doing and execution of, each act, document and thing reasonably within its power to implement and give effect to this Agreement.
23.8 . This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa.