These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide goods or services to you. An order contains the commercial terms of any specific transaction, and incorporates these terms and any other specific terms that may apply to the services covered under the order. Nothing in the terms obliges any party to enter into any orders.
2. Definitions and interpretation
2.1. Definitions. In the agreement:
additional fee means a charge you must pay us for the supply of any goods or services outside of an order, at our then current standard prices and rates, unless otherwise agreed in writing between us;
AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its place);
agreement means the agreement between us and you, consisting of the terms and any orders the parties enter into;
business day means any day within business hours, other than a Saturday, a Sunday, or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is based, and any other reference to a day means a calendar day;
business hours means our normal business hours on business days (8am to 4:30pm);
deliverables means the deliverables as defined in each order or related material;
EULA means an end user license agreement;
existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;
fees means the fees, charges, or price you will pay to us in respect of goods or services we provide under orders;
goods means any goods we provide to you, under orders (including software that we provide to you);
intellectual property means any intellectual property that a party has created, acquired or otherwise has rights in and may, in connection with performing their obligations under the agreement, employ, provide, modify, create or otherwise acquire rights in and includes any: trademarks, copyrights or patents; concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;
order means a goods or services order agreed to and signed by both the parties describing the specific goods or services that we will provide to you;
our websites means the website at www.aosis.co.za, and any other linked or affiliated websites that we own;
parties means the parties to this agreement being you and us, and party refers to either of us as the context requires;
personnel means any representative, including any director, employee, agent, affiliate, consultant, or contractor;
related and related persons means natural and juristic persons who are connected to one another in the manner contemplated in applicable law;
services means any services we or related persons provide to you, under orders;
service levels means the levels according to which we will provide each service as agreed by the parties in writing and signed;
sign, signed or signing means the handwritten signature, an advanced electronic signature, or an electronic signature that the parties agree to use, of a party’s duly authorised representatives;
signature date means the date of signature by the party signing last;
specific terms means any unique terms that apply to a specific service or class of services that we provide, and are incorporated by reference into any order for that specific service or class of services;
specification means the specification (which may be in the form of a proposal, wire frame, project initiation document, functional specification, or technical specification) of the deliverable, which may be (i) in or attached to an order, or (ii) in writing, dated and signed by the parties;
start date means in respect of each order, the start date stipulated in each order, in the absence of which it will be the date the order is accepted by us;
tax means any tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction), duty, tariff, rate, levy, or any other governmental charge or expense payable;
terms means these terms, consisting of:
- these terms of service;
- our security policy; and
- any other relevant terms, specific terms, policies, disclaimers, rules and notices that the parties agree on (including any that may be applicable to any specific goods or services);
third party contractor means any contractor, supplier, vendor, service provider or licensor any of the goods or services, which is not a party to the agreement;
third party software means all third party software owned by a third party but legally licensed to us for use in providing the goods or services;
we, us, or our means African Online Scientific Information Systems (Pty) Ltd (Registration Number: 2002/002017/07), being the vendor or service provider that enters into an order and the owners of our websites, and may include those related to us if this is specified in the order;
writing or written means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf files), but excludes information or data in the form of email, text message or instant message; and
you or your means the customer that enters into an order and, if specified in the order, those related to it.
2.2. Definitions in the order. Words defined (or assigned a meaning) in an order, specific terms, or any other policy will have that meaning in these terms, unless these terms define those words differently, or the context clearly indicates otherwise.
2.3. Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever ‘including’ or ‘include’, or ‘excluding’ or ‘exclude’ follow a term together with specific examples or items, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any law or enactment will include the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
2.4. Conflict. If there is a conflict between these terms and any order, or between any specific terms and any order, the order will prevail. If there is a conflict between these terms and any specific terms, the specific terms will prevail. This clause is subject to the limitations of liability clause below.
Unless otherwise agreed in any order or specific terms, these terms:
- start when you accept them by checking a checkbox saying that you accept the terms, or when you and we accept them by signing an order form that incorporates them by reference; and
- continue until terminated according to the agreement.
4.1. Placing orders. Orders are offers from you to us to buy our goods or services. You place an order with us whenever you:
- order or start using the services through our websites; or
- sign an order form and submit it to us.
4.2. Capacity. You represent and warrant that you (and any person who places an order):
- are old enough under applicable law to enter into the agreement;
- are legally capable of concluding any transaction;
- possess the legal right, full power, and authority to enter into the agreement; and
- will submit true, accurate and correct information to us.
4.3. Fees. The fees for any goods or services are as provided in the relevant order.
4.4. Time and place. We conclude the agreement when we accept the order and where we are domiciled when we do.
4.5. Orders. Each order will create a separate agreement. Despite that, we may consider your breach of any one order to constitute a breach of any or all agreements.
5.1. Specific service terms. We will provide the services according to the service levels described in the relevant specific terms or order.
5.2. Right. We grant you a right to use the services subject to the following limitations:
- duration of agreement – you may only use the services for the duration of the agreement;
- limited to terms – you may only use the services according to these terms;
- non-exclusive – we may allow anyone else to use the services;
- non-transferable – you may not transfer the right to anyone else; and
- specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time.
5.3. Breach. We may cancel your right if you breach the agreement.
6. Online services
6.1. Basis. Where we provide you with online services through our websites, we provide the online services to you on the following basis:
- you give us permission to monitor how you use them for security and stability purposes; and
- you agree that our records are undisputed evidence of the services provided to you.
6.2. Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:
- accurately provide us with any information that we ask for on registration or account creation;
- create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
- look after their credentials and not give them to anyone else;
- not interfere with or introduce any malicious software into the online services or otherwise misuse them;
- be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
- have the necessary infrastructure, equipment, and software to access the online services; and
- abide by the agreement and any policies that we communicate to them in writing.
6.3 Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available. We may make them unavailable for scheduled and emergency maintenance.
7. Your data and data protection compliance
7.1. Definition. Your data is any data (including information about an identifiable person) belonging to you or your customer that:
- you or your customer (or any third party on your behalf) provide to us; or
- we generate, process, or supply to you or your customer in providing the services;
but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.
7.2. Ownership. You own all your data, but give us a right to use it to provide the services when you provide us with access to it. We do not own any of your data, but we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.
7.3. Legal obligations. We are responsible for complying with our obligations and you are responsible for complying with your obligations under applicable laws governing your data. The parties both acknowledge that they are not investigating the steps the other is taking to comply with any applicable privacy and data protection laws.
7.4. Responsible party. You remain the responsible party for determining the purpose and means of our processing of your data, including that processing will not place us in breach of any laws.
7.5. Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.
7.6. Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding your data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.
7.7. Preservation of integrity of your data. Both of the parties will take reasonable precautions (having regard to the nature of each of their obligations under the agreement), to preserve the integrity of your data and prevent any unauthorised access, corruption or loss of your data.
7.8. Subcontracting. Subcontracting involves engaging a subcontractor outside our organisation to do work as part of providing the services. You agree that we may subcontract work involving your data, provided that we:
- notify you of any changes to our subcontractors;
- do so only through a written agreement with the subcontractor which imposes the same obligations on them as are imposed on us; and
- remain fully liable for any processing of your data under the agreement by our subcontractor.
7.9. Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. You consent to us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.
7.10. Records. You agree that our records are provisional (prima facie) evidence of the goods supplied or services provided to you.
8. Confidential information
8.1. Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement, including existing material and your data. Each party will take all reasonable steps to ensure their employees or contractors abide by this clause.
8.2. The receiving party’s responsibilities. The party that receives confidential information agrees to protect the interests of the party it is receiving from, and will:
- only use it to comply with its responsibilities under this agreement;
- only give the information to any of its employees or agents that need it, and only give as much of it as they need;
- use reasonable security procedures to make sure employees or agents keep the information confidential;
- get promises of confidentiality from those employees or agents who need access to the information;
- not reveal the information to anyone else; and
- not use it for any purpose other than this agreement.
8.3. End of this agreement. At the end of this agreement, or on written request, the parties will give back to the other all originals and copies of confidential information of the other that they have. If the other agrees, they may destroy the confidential information they have.
8.4. Exceptions. These responsibilities will not apply to any information that:
- is lawfully in the public domain (available to the general public) when a party received it;
- lawfully becomes part of the public domain afterwards;
- is given to the receiving party afterwards by a different person who is allowed to reveal the confidential information; or
- is given to comply with a court order or other legal duty.
8.6. Survival. This clause about confidential information is separate from the rest of this agreement and remains valid in perpetuity.
9. Intellectual property
9.1. Retention of rights. We have created, acquired or otherwise obtained rights in our intellectual property and despite anything contained in the agreement, we will own all right, title, and interest in our intellectual property.
9.2. Use of your intellectual property. Unless otherwise described in any specific terms or order, if we use any of your intellectual property in connection with our performance under an order, your intellectual property will remain your property and we will not acquire any right or interest in it.
9.3. Use of our intellectual property. Unless otherwise described in any specific terms or order, if we use any of our intellectual property in connection with our performance under an order, our intellectual property will remain our property and you will not acquire any right or interest in it. If required we may grant you a non-transferable, non-exclusive licence in writing to use our intellectual property in connection with the deliverable as agreed in the relevant order.
9.4. Licence. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyrighted works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.
9.5. Deliverables created during the agreement. We own all rights, title and interest to any and all deliverables (including intellectual property) that we develop for you in the course of providing the goods or services under this agreement and any orders.
9.6. Other rights. Neither party will obtain any rights in the existing material or intellectual property of the other party that was not created in performing the agreement or existed before the commencement of the agreement, unless a licence is granted.
9.7. Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.
9.8. Portfolio use. Despite the above, you agree that we may display your logos, sub-logos, marks, trade names or trademarks on our website for promotional purposes.
9.9. Restrictions. Except as expressly permitted under the agreement, the goods or services may not be:
- modified, distributed, or used to make derivative works;
- rented, leased, loaned, sold or assigned;
- decompiled, reverse engineered, or copied; or
- reproduced, transferred, or distributed.
9.10. Residual knowledge. Nothing contained in the agreement will restrict us from the use of any generic ideas, concepts, know-how, or techniques developed by us or learned in the course of providing the goods or services.
9.11. Prosecution. All violations of proprietary rights or the agreement will be prosecuted to the fullest extent permissible under applicable law.
10. Assignment and subcontracting
10.1. No assignment. No party may delegate its duties under this agreement or assign its rights or obligations under this agreement, in whole or in part without the other party’s prior written consent, which may not be unreasonably withheld. Despite this, we may assign this agreement to any successor or purchaser of our business or some of our assets, provided that we inform you of the change.
10.2. Our third party contractors. We may sub-contract our obligations under this agreement to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this agreement.
11. Relationship and non-solicitation
11.1. No temporary employment service or partnership. Nothing in this agreement will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
11.2. No employment relationship. Each party enters into the agreement as an independent contractor. The agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
11.3. Restriction. Unless we otherwise agree, you may not directly or indirectly solicit, offer employment to, employ, or contract with any of our personnel who were involved in providing the goods or services under an order, for the duration of that order or for 12 calendar months after its termination.
12.1. Appointment. On the start date, each party will appoint a suitably qualified and responsible person to act as their representative. If a party does not appoint a representative and that party is a natural person, then that party will be its own representative. Otherwise, the natural person that is ordinarily responsible for the day-to-day administration of that party will be its representative.
12.2. Function. The representative’s responsibilities include to manage and coordinate the goods or services and to discuss and manage any changes.
12.3. Replacement. A party may, on five business days’ written notice to the other, appoint an alternative representative who is suitably qualified and responsible.
12.4. Performance in good faith. The parties will cooperate with each other and at all times act in good faith towards each other in performing this agreement and any orders.
13. Fees and payment
13.1. Due dates. You will be liable for and pay the fees specified in the order, and any additional fees, promptly on the due date specified in the relevant order, without any deduction, set off or demand and free of exchange and bank charges in the currency specified in the order. If no due date is specified or agreed, the due date is within 30 days of the date of invoice. The parties may agree otherwise in the relevant specific terms or order.
13.2. Payment. You will pay us the fees on the due date in the manner agreed between the parties in writing. You may not withhold payment of any amount due to us for any reason.
13.3. Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.
13.4. Interest on overdue amounts. To the extent permitted by applicable law, we may charge you interest for overdue amounts within our reasonable discretion, as well as any applicable collection fees on such amounts. If you do not pay the overdue amounts within 14 days of receiving written notice from us to do so, any overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:
- 3% above the prime (or prime lending) rate; or
Interest will be payable on a claim for damages from when the damages were suffered.
13.5. Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.
13.6. Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.
13.7. Foreign currency. Where the parties have agreed that an invoice may be paid in a foreign currency, we may impose a 5% levy on the fees, to guard against currency exchange fluctuations.
13.8. Tax. All fees exclude any tax (unless indicated otherwise), including withholding taxes, which you will pay where applicable in addition to the fees.
13.9. Payment profile. We may provide any registered credit bureau with information about your payment of amounts.
13.10. Reimburse costs. If we suspend the service or remove any goods supplied by us due to non-payment, you will pay to us the costs incurred by us (including redeployment, travel and associated expenses) in remobilising our employees affected by the agreement and recommencing the services or re-installing the removed goods.
14. Our warranties
14.1. Service warranties. We warrant that we will:
- employ enough trained personnel with the knowledge and expertise to provide the services;
- use reasonable efforts consistent with prevailing industry standards to maintain the services; and
- provide the services in accordance with all applicable laws.
14.2. General warranties. We warrant further that we:
- have the legal right and authority to perform our obligations under the agreement; and
- will not knowingly introduce any malicious software into your systems.
15. Your warranties
15.1. Agreement warranties. You warrant that:
- you will not use the services provided under this agreement for any illegal or unlawful purposes under any law that may apply to you, and are otherwise not involved in any illegal or unlawful activity;
- no one has induced you to enter into the agreement by any prior representations, warranties, or guarantees; and
- you are not breaching of any other agreement by entering into the agreement.
15.2. Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.
16. Disclaimer of warranties
16.1. Disclaimer. You use our goods or services at your sole responsibility and risk. We provide the goods and services on an ‘as is’ and ‘as available’ basis. Except for the warranties given in this agreement and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:
- any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement;
- any representations, warranties or conditions regarding third party software; and
- that the goods or services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure, error-free or free from infection by malicious software.
16.2. Exclusion of liability. Despite any warranty we give, we will not be liable with regard to any defect arising from your negligence, failure to follow instructions (whether oral or in writing) or misuse.
16.3. Security software. You should keep up-to-date security software on any systems used to access the goods or services.
17. Limitation of liability
17.1. Direct damages limited. Despite anything else in this agreement including any order, our maximum liability to you for any claim for direct damages is the total amount of fees you have paid us in the preceding 12 months for the goods or services related to the claim. Our total aggregate liability for all claims under this agreement will never be greater than the maximum liability. This limitation applies to the extent allowed by any law that applies, and regardless of the basis of the claim (whether in contract, delict, tort or any other legal basis).
17.2. Indirect damages excluded. Despite anything else in the agreement including any order, we and our personnel will never be liable for any indirect, incidental, special or consequential damages or losses of any kind arising from the agreement. These include foreseeable or unforeseeable loss of profits, loss of goodwill, pure economic loss, damages relating to lost or damaged data or software, loss of use and damages relating to downtime or costs of substitute products.
17.3. This limitation of liability clause prevails. To avoid all doubt, and despite the conflict provisions in clause 2.4 of these terms, no order can ever supersede the limitation of our liability and the exclusion of indirect damages in this clause.
17.4. Exclusions. The limitation contained in this clause will not apply to (i) any breach by a party of the other party’s proprietary or confidential information or intellectual property; (ii) a party’s indemnification obligations in terms of the agreement.
17.5. We are not liable for your default. We will not be liable for any loss or damage suffered by you (or any third party) arising out of or in connection with any breach of the agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
17.6. Other services. We are not liable for any other deliverable, including website, goods, or service provided by any third party, nor are we liable for any claims arising due to third party software. You acknowledge and agree that we do not endorse, are not responsible for, and are not liable for any damages that you may suffer as a result of:
- any opinions, findings or other information found in scholarly books or journal articles published on our websites; or
- anyone else’s website or resources, despite the fact that we may link to these from our websites.
17.7. Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
18. Breach and suspension
18.1. Breach. If either party
- does not fix a breach within seven days of receiving written notice from the other party;
- breaches the agreement materially twice or more in six months;
- is bankrupt or has some legal disability;
- takes steps to or is closed down (such as becoming insolvent or entering sequestration);
- makes any settlement or arrangement with their creditors; or
- fails to pay a court order against themselves for a significant amount within 21 days;
then the other party may:
- make the party comply with the agreement; or
- immediately cancel the agreement in writing and claim damages from the other party, including fees already due.
18.2. Suspension. We may immediately suspend your right to use the services if:
- you violate any acceptable use policy that we may have in place from time to time;
- you try to gain unauthorised access to them;
- we decide that your use poses a security threat to us or another user other than you;
- there is evidence of fraud on your account; or
- we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.
In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.
19.1. Termination for good cause. We may need to terminate the agreement immediately if:
- we discontinue or stop providing the services;
- believe providing the services could burden or pose a risk to us;
- have to terminate to comply with a law; or
- determine that providing the services has become impractical.
If we need to terminate, we will give you as much notice as reasonably possible in writing.
19.2. Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.
19.3. Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
20. Effect of termination
20.1. Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to us for services rendered or goods received before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless an arbitrator directs otherwise.
20.2. Post-termination assistance. We may provide you with post-termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.
20.3. No expectation. The parties acknowledge and confirm that no expectation has been created by anyone, by the agreement or any other agreement, entitling us or you to expect the renewal or extension of the term of any agreement.
20.4. Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
21. Resolving disputes
21.1. Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- negotiation (direct talks to try and agree how to end the dispute); failing which
- mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
21.2. Negotiation. Each party must make sure that their chosen representatives meet within 10 days of notification, to negotiate and try to end the dispute by written agreement within 15 more days.
21.3. Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
21.4. Arbitration. If mediation fails, the parties must refer the dispute within 15 days to arbitration (including any appeal against the arbitrator’s decision) under AFSA ’s latest rules for expedited arbitrations. The arbitration will be held in English (or Afrikaans, if agreed between the parties) in Cape Town. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 days after the referral, the secretariat of AFSA will appoint the arbitrator.
21.5. Legal costs. Any legal costs (attorneys and advocates fees and the costs of experts and witnesses) incurred by the parties in the arbitration will be recoverable on the attorney and own-client scale.
21.6. Costs of arbitration. The costs of the arbitration proceedings, including the fees of the arbitrator/arbitrators, will be borne equally between the parties, unless the arbitrator’s award provides otherwise.
21.7. Agree otherwise in an order. The parties may agree otherwise in an order.
21.8. Periods. The parties may agree in writing to change the periods for negotiation or mediation.
21.9. Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).
21.10. Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
22. Force majeure
22.1. Parties not liable. No party is responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions or ‘acts of God’.
22.2. Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately of:
- the cause, nature and extent of the circumstances;
- the expected duration of the circumstances; and
- the extent to which its performance will be affected;
and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
22.3. Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 30 days because of force majeure, the other party may cancel this agreement, without liability to the affected party, on seven days’ written notice.
23.1. Entire agreement. The agreement is the entire agreement between the parties on the subject.
23.2. Changes to the terms. Unless otherwise described in any specific terms, no changes to any current, signed agreement will be valid unless in writing and signed by the parties. We may make changes to any of our terms, specific terms, or policies at any time, which changes will apply to future orders.
23.3. Changes to any third party software licence agreement. We will notify you of any changes to any third party software licence terms by placing a notice in a prominent place on our websites, or notifying you by email. The updated third party software licence terms will be effective immediately and you will be deemed to have accepted them upon notification.
23.4. Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our websites, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other. A notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery. If a party actually receives any notice or other communication, this will be good enough.
23.5. Waiver (giving up of rights). Any waiver we may allow you will not affect or substitute any of our rights against you.
23.6. Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.
23.7. Governing law. South African law governs this agreement, and you agree that conflict of law provisions do not apply.
23.8. Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings we may bring against you in connection with this agreement, even if the action or proceedings would otherwise be beyond its jurisdiction, without prejudice to our right to institute any action in any other court having jurisdiction. If you bring an action to enforce any order, you must bring it in the Magistrate’s court.
23.9. Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
23.10. Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.
23.11. No right to reference. Neither party may reference the other in any communications with third parties without the other party’s prior written consent.
23.12. Publicity. Unless and to the extent otherwise allowed under this agreement, a party will not make any announcement or statement to the press about this agreement, without first getting written permission from the other party.
23.14. Survival. The termination, cancellation, or expiry of this agreement will not affect the enforceability of the terms that are intended to operate after expiry or termination.
23.15. Claims limited. To the extent allowed by applicable law, you agree that you may only bring a claim against us or our personnel within one year from the cause of action arising.