General Terms And Conditions Of Contract (SaaS Services)
In this Agreement, unless a contrary intention is clear, the terms below (and cognate expressions thereof) shall bear their assigned meanings –
1.1. “Agreement” means the agreement between the Parties which consists of these Terms, the Proposal, and all appendices thereto;
1.2. “Commencement Date” means the effective date indicated on the associated Proposal, notwithstanding its Date of Signature;
1.3. “Confidential Information” means all information/data of any nature, whether tangible, intangible, oral or in writing and in any format or medium, that is obtained or learned by, disclosed to or comes to the knowledge of a Party (“Receiving Party”) by or from the other Party (“Disclosing Party”) during the course or arising out of this Agreement by whatever means, which by its nature or content should reasonably be identifiable as confidential or proprietary to the Disclosing Party, or which is disclosed in confidence (even if not marked as proprietary, confidential, or in similar fashion) including: information/data relating to customers, Staff, business plans, business relationships, strategic objectives, or constituting or contained in its information technology; and, IP proprietary to it and/or a third party in respect of which it has rights of use/possession. The determination of whether information is Confidential Information shall not be affected by it being protected by common law or statute related to copyright, patent, trademarks or otherwise. Confidential Information excludes information or data –
1.3.1. in the public domain at the time of its disclosure to the Receiving Party or which subsequently becomes part of the public domain by publication or otherwise, other than by breach of an obligation of confidentiality by the Receiving Party or any third party;
1.3.2. received by the Receiving Party from another source other than by breach of an obligation of confidentiality by the Receiving Party or any third party;
1.3.3. developed independently by the Receiving Party without reference to the Confidential Information;
1.3.4. disclosed pursuant to a requirement by operation of law, regulation or order of court or other administrative body, but then only to the extent so disclosed and in the specific instance and under the specific circumstances in which it is obliged to be disclosed, provided that a combination of features shall not fall within an exclusion due to individual features being in the public domain; and provided further that the Receiving Party shall bear the onus of establishing that such information or data falls within an exclusion;
1.4. “Productive Use” means use of SaaS in a production environment and/or live environment and/or for day-to-day use;
1.5. “Proposal” means a NEO Retail Solutions document, regardless of the form or title thereof, signed between the Parties regulating an engagement in respect of the supply of an instance of Services to Client, which incorporates the Proposal terms and conditions attached thereto, as well as these Terms and which describes the Services and estimated consideration payable by Client;
1.6. “Residuals” means ideas, concepts, know-how or techniques learned or developed by a Party which do not infringe the other Party’s IP rights or disclose Confidential Information in breach hereof;
1.7. “Service Level Default” means a failure to meet a Service Level;
1.8. “Specifications” means the specifications of SaaS and/or a Service, as described in the associated Proposal;
1.9. “Terms” or “General Terms and Conditions” means these general terms and conditions of contract;
1.10. “Variation Order” means a variation order which records details of an alteration or amendment to this Agreement;
1.11. “Warranty Period” means the 90 day period following the Commencement Date, during which defects in a Service shall be corrected at no further cost to Client.
2.1. In this Agreement –.
2.1.1. clause headings are for convenience and reference only and shall not be used in the interpretation of nor modify nor amplify its terms;
2.1.2. a reference to any law is to that law at the Date of Signature and as amended or re-enacted from time to time;
2.1.3. unless a contrary intention clearly appears, words importing: any one gender include the other two; the singular include the plural and vice versa; natural persons include legal entities and vice versa;
2.1.4. a substantive provision conferring rights or imposing obligations in a definition shall have effect as if it were a provision in the body hereof;
2.1.5. references to days, months or years are Western Calendar references;
2.1.6. a prescribed number of days shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;
2.1.7. defined expressions shall bear the same meanings in schedules hereto which do not contain their own definitions;
2.1.8. the use of expressions covering proceedings available in South African law shall, if a Party is subject to the law of another jurisdiction, be construed as including like proceedings under that law;
2.1.9. any term defined within the context of any particular clause shall, unless otherwise determined by the context, bear the meaning ascribed to it for all purposes in terms of this Agreement;
2.1.10. expiration or termination shall not affect such provisions as expressly provide for their continued operation thereafter or which of necessity must continue in effect thereafter even if not expressly provided for;
2.1.11. the rule of construction that a contract shall be interpreted against the party who drafted or prepared the contract, shall not apply;
2.1.12. a reference to a Party shall be applicable also to and binding upon that Party’s liquidator or trustee, should one be appointed;
2.1.13. the words “include” and “in particular” (and cognate expressions) shall be construed as examples or emphasis only and not as limiting the generality of any preceding words;
2.1.14. the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words if a wider construction is possible.
2.2. Notwithstanding anything to the contrary contained in any other agreement between the Parties, these Terms shall apply to the provision of the Services notwithstanding any conditions stipulated by the Client, or referred to in any Proposal or other document provided by Client in respect of the Services.
3. SAAS SERVICES
3.1. The licence granted to Client in respect of the SaaS Services in terms of this Agreement is a personal, non-exclusive, non-transferable, non-sub-licensable licence to access and use SaaS for Client’s associated End User’s internal business and data processing purposes, only, by Client’s Staff to whom Client will give access to SaaS in the conduct of its business.
3.2. Client undertakes that it shall, for the duration of the SaaS Services, update SaaS with such updates, upgrades and new releases for SaaS, if any, as are released by NEO Retail Solutions to the licensee community of SaaS generally.
3.3. Save as expressly permitted in terms of this Agreement, Client shall not use the NEO Retail Solutions Systems or SaaS for hosting, application service provider, data processing, timesharing, facilities management, outsourcing or bureau services for third parties unless Client enters into a separate agreement and pays the associated fees to authorise such use.
3.4. NEO Retail Solutions warrants that SaaS shall operate substantially in accordance with its Documentation in all material respects when operated within the Client Environment, during the Warranty Period. Should a defect arise in SaaS during its Warranty Period, Client shall immediately notify NEO Retail Solutions in writing identifying the defective SaaS module and describing the defect. NEO Retail Solutions shall at its option repair or replace the defect.
3.5. Client irrevocably agrees that on termination of the SaaS Services for whatever reason Client and its End Users shall immediately cease all use of SaaS and certify compliance herewith in writing by way of notice from a director of Client.
3.6. Client shall not in any way remove, bypass or de-activate (or attempt to do so) any rights management controls in respect of SaaS.
3.7. Client (and Client shall procure that its End Users) shall not, directly or indirectly: circumvent or compromise (or attempt to circumvent or compromise) the security on the NEO Retail Solutions Systems; introduce Destructive Elements into the NEO Retail Solutions Systems and/or SaaS; conduct itself in a manner contrary to any law or which would amount to a criminal offence or which would give rise to civil liability, in its use of the NEO Retail Solutions Systems and/or SaaS; damage, misuse or abuse the NEO Retail Solutions Systems and/or SaaS; or, interfere with NEO Retail Solutions’s ability to provide, or with the rights of others to use, the NEO Retail Solutions Systems and/or SaaS. Client indemnifies NEO Retail Solutions against any damage or loss of any nature whatsoever and howsoever incurred by NEO Retail Solutions arising directly or indirectly out of or in connection with Client’s (and its End Users’) breach hereof.
3.8. NEO Retail Solutions and Client shall each be solely responsible for the security of, access-control to and support and maintenance of, their respective information technology systems used in relation to SaaS Services, which support and maintenance shall be performed to the extent and at the levels and frequency determined by NEO Retail Solutions or Client, respectively, in its reasonable discretion. NEO Retail Solutions shall use reasonable endeavours to schedule maintenance on the NEO Retail Solutions Systems, after normal business hours.
3.9. The cost of all use and maintenance of the communication link shall be for the account of Client. Client shall not make (nor permit) any changes to the Link or to any part of Client’s information technology environment, generally, which may directly or indirectly affect the operation of the SaaS Services or NEO Retail Solutions’s ability to perform SaaS Services or any other Services, other than with the written consent of NEO Retail Solutions.
3.10. Client acknowledges that any disruption to or interruption in the services/facilities provided by any communications supplier, shall result in a disruption to and interruption in the SaaS Services and no Service Level Default shall be incurred in respect of any such disruption or interruption.
3.11. Client acknowledges that due to the nature of SaaS, NEO Retail Solutions may conduct maintenance, repair and improvement work from time to time on the NEO Retail Solutions Systems which may result in the provision of SaaS being suspended from time to time. Client agrees that NEO Retail Solutions shall have no liability whatsoever to Client for any losses of any nature whatsoever and howsoever incurred or arising therefrom.
3.12. Client shall not use SaaS Services in respect of any unlawful or illegal purposes and Client indemnifies NEO Retail Solutions against any claim, demand or action brought or made by any third party (including End Users) against NEO Retail Solutions arising out of or in connection therewith.
3.13. Client shall not: reverse engineer, de-compile or disassemble the whole or any part of the NEO Retail Solutions Systems or SaaS; or, translate, adapt, vary, modify or create any derivative work based on the whole or any part of the NEO Retail Solutions Systems and/or SaaS.
3.14. On delivery of SaaS to Client (which includes activation by way of a software key), NEO Retail Solutions shall deliver any associated no-cost electronic Documentation to Client. To the extent that Documentation expressly permits Client to do so, Client may incorporate it (or extracts from it) into works prepared for Client’s internal business operations provided that Client includes all trademarks, copyright, ownership and confidentiality notices as per the original.
3.15. NEO Retail Solutions is not responsible for any malfunction, non-performance or degradation of performance of Services directly or indirectly arising out of any alteration or attachment to, or adjustment or modification of Services or to the Client Environment made without NEO Retail Solutions’s written approval.
4. CLIENT’S OBLIGATIONS
4.1. Client shall at its cost and throughout the term of this Agreement procure and maintain in good working condition and operation the Client Environment and all telecommunications links (including data) necessary for Client’s use of the Services and shall provide NEO Retail Solutions remote access to the Client Environment during normal working hours and at other imes reasonably requested by NEO Retail Solutions, to enable NEO Retail Solutions to perform its obligations.Client shall provide NEO Retail Solutions access to the site during normal working hours and at other times reasonably requested by NEO Retail Solutions, to enable NEO Retail Solutions to perform its obligations.
4.2. To facilitate NEO Retail Solutions’s due performance of obligations dependent on Client’s timely performance of its obligations, Client shall perform obligations within the time period prescribed in this Agreement, or if not prescribed, within 3 Business Days of NEO Retail Solutions’s request.
4.3. Client shall ensure that all IP used by Client in connection with the Services or to which NEO Retail Solutions is given access by Client, is duly and properly licensed or authorised. Client indemnifies NEO Retail Solutions against any damage or loss of any nature whatsoever and howsoever incurred by NEO Retail Solutions arising directly or indirectly out of or in connection with any claim, demand, charge, action, cause of action, or other proceeding made or brought against NEO Retail Solutions by any third party (including End Users) in relation to unauthorised use of such IP.
4.4. Client shall provide NEO Retail Solutions the following in a timely manner: all Client information, data, documentation and assistance reasonably required for NEO Retail Solutions to duly and properly perform the Services, including contact with Client’s Staff who have access to it as part of their normal duties; and, all necessary assistance reasonably requested by NEO Retail Solutions to permit NEO Retail Solutions to properly perform its obligations in terms hereof.
4.5. Client shall duly and properly maintain the Client Environment for the proper performance of the Services.
4.6. Client is responsible for compliance with and the giving of instructions to NEO Retail Solutions relating to all legal and regulatory requirements governing Client’s business and operations.
4.7. Client shall not –
4.7.1. enter into any contract with any End User which is inconsistent with the terms of this Agreement;
4.7.2. negotiate or agree any terms or conditions with any End User in relation to Services, beyond those or inconsistent with those contained in this Agreement;
4.7.3. be entitled to conclude, nor hold itself out to be authorised to conclude, without NEO Retail Solutions’s prior written consent and then only upon such terms as NEO Retail Solutions may stipulate, any contract with any person for or on behalf of NEO Retail Solutions or otherwise incur any liability on behalf of NEO Retail Solutions.
4.8. NEO Retail Solutions may refer Client to third party products or services during this relationship. Client agrees that despite such references, the final business decision to use third party products or services vests in Client who assumes all associated risks and liabilities and indemnifies NEO Retail Solutions against any damage or loss of any nature whatsoever and howsoever incurred by Client arising directly or indirectly out of or in connection with its acquisition or use of such products or services.
5. VARIATION ORDERS
5.1. Should a Party wish to amend this Agreement, that Party shall prepare a Variation Order specifying: the Party’s name and contact details and the Variation Order’s date; a description of the proposed amendment and reasons therefor; and, by when the Variation Order should be implemented, if so agreed.
5.2. NEO Retail Solutions shall allocate a number to each Variation Order and promptly undertake an exercise, for Client’s account (charged for on a Time and Materials basis unless otherwise agreed), to determine the impact (including any knock-on effect) of the proposed amendment on: the continued provision of the balance of the Parties’ obligations under the Agreement; Services and resources, including Staff; and, the consideration and Reimbursable Expenses.
5.3. NEO Retail Solutions shall incorporate the outcome of the impact assessment into the Variation Order and present it to Client for consideration. No Variation Order shall be of any force or effect until it is signed by duly authorised representatives of both Parties. A Variation Order shall be subject to the terms of this Agreement.
6.1. The Parties shall treat Confidential Information as strictly confidential. The Receiving Party shall not in any way use the Disclosing Party’s Confidential Information for its own benefit or for the benefit of any other person or for any purpose other than carrying out its obligations in accordance with and upon the terms of this Agreement.
6.2. The Receiving Party shall not disclose Confidential Information to any person other than the Receiving Party’s Staff involved in carrying out the Receiving Party’s obligations in terms of this Agreement and then on a need-to-know basis. Before revealing Confidential Information, the Receiving Party shall procure that Staff are made aware of the confidential nature thereof and that Staff have signed an undertaking with like obligations of confidentiality. The Receiving Party shall procure that Staff shall continue to comply with these obligations.
6.3. The Receiving Party shall: initiate internal security procedures to prevent unauthorised disclosure of Confidential Information; and, use the same standard of care (which shall not be less than a reasonable standard of care) in protecting the Disclosing Party’s Confidential Information as it uses to protect its own confidential information.
6.4. Should it be required to disclose Confidential Information pursuant to clause 1.3.4, the Receiving Party shall: advise the Disclosing Party thereof prior to disclosure, if possible; take steps to limit the extent of the disclosure, if possible; afford the Disclosing Party an opportunity to intervene in proceedings; and, comply with the Disclosing Party’s requests as to the manner and terms of any such disclosure.
6.5. On expiry or termination of this Agreement, the Receiving Party shall destroy all related Confidential Information of the Disclosing Party received by the Receiving Party or in its possession, including notes (in any media or format) which it may have prepared or may have obtained as a result of the Confidential Information being made available to it, and certify compliance with the foresaid in writing addressed by one of its directors to the Disclosing Party.
6.6. The Parties acknowledge and agree that for the purposes of §64(1) of the Promotion of Access to Information Act, 2000, the Confidential Information is provided in confidence by the Disclosing Party.
7. INTELLECTUAL PROPERTY
7.1. Neither Party shall acquire any rights, title or interest of any kind in any IP owned by the other Party. All IP owned by a Party and all modifications made by it to that IP, shall at all times remain that Party’s sole property. Unless expressly authorised in writing, neither Party shall have the right to use the other Party’s IP in any manner whatsoever. Neither Party is restricted from using any Residuals.
7.2. Subject to clause 8.1, any IP rights in any media or format, which are prepared, created or authored by NEO Retail Solutions for Client (whether or not by NEO Retail Solutions alone or by NEO Retail Solutions in conjunction with Client) in terms of this Agreement shall belong exclusively and in totality to NEO Retail Solutions and in this regard Client hereby irrevocably and in perpetuity cedes, assigns and makes over (with effect from inception in respect of future copyright, as the case may be) its entire world-wide right, title and interest in and to any such IP rights to NEO Retail Solutions and, further, hereby waives in favour of NEO Retail Solutions the full and complete right to claim authorship of and all rights to object to any distortion, mutilation or other modification to any such IP rights which would be prejudicial to its honour or reputation. Should NEO Retail Solutions request Client by written notice, from time to time, to sign any documents or take any actions necessary for NEO Retail Solutions to perfect its rights of ownership over any such IP, Client agrees to do so within 5 Business Days after date thereof.
8.1. NEO Retail Solutions warrants that –
8.1.1. Services shall be provided with due care and skill;
8.1.2. it is entitled to grant the rights to Client as envisaged in this Agreement.
8.2. SaaS comprises, inter alia, the operation of software. Accordingly, and notwithstanding anything to the contrary herein contained, NEO Retail Solutions does not warrant that SaaS is completely error-free or that all errors can be corrected completely, nor that SaaS shall meet Client’s requirements other than as expressly provided for in this Agreement, nor that SaaS shall operate in all combinations selected for use by Client.
8.3. SaaS under warranty require ongoing support and the warranty provided is not a substitute for support Services which may be contracted for by Client separately.
8.4. The warranties provided in this clause 9 shall not apply in respect of defects due to or resulting from –
8.4.1. Client failing to: maintain the Client Environment; or, update or upgrade products in the Client Environment, as specified by NEO Retail Solutions from time to time;
8.4.2. Services not being operated in accordance with the environmental specifications specified in their Documentation or Specifications or by their manufacturer or licensor or by NEO Retail Solutions from time to time;
8.4.3. SaaS being configured or commissioned by anyone other than NEO Retail Solutions or appropriately trained members of Client’s Staff;
8.4.4. SaaS being used by persons who have not successfully completed the appropriate training in their use or failure by Client (or its Staff) to follow instructions for the proper use of SaaS;
8.4.5. SaaS being altered, adjusted, modified, repaired or having products attached to it, by anyone other than NEO Retail Solutions;
8.4.6. external factors including theft, vandalism, accidents, misuse, negligence, Destructive Elements, Force Majeure or failure or fluctuation of electrical power or air conditioning.
8.5. Should NEO Retail Solutions be required to provide services to Client as described in clause 9.3, NEO Retail Solutions shall provide such services ad hoc, charging on a Time and Materials basis (unless otherwise agreed) and subject to the availability of necessary Staff and resources, but otherwise mutatis mutandis upon the terms of this Agreement.
8.6. Save for warranties expressly provided in terms of this Agreement, NEO Retail Solutions disclaims, to the extent permissible by law, all warranties express or implied (including fitness for a particular purpose and/or merchantability) or arising by operation of law or otherwise, in respect of SaaS provided and/or Services performed for Client.
9. LIMITATION OF LIABILITY
9.1. Under no circumstances whatsoever, including as a result of its negligent acts or omissions or those of its servants, contractors, agents or other persons for whom it is liable in law, shall NEO Retail Solutions’s or its servants’ (in whose favour this is a stipulatio alteri) liability for any damage or loss of any nature whatsoever and howsoever sustained by Client, its End Users and their directors and servants (whether arising under contract, delict or otherwise) in respect of any claim or series of claims arising from the same cause of action, exceed an aggregate maximum amount equivalent to the amount paid to NEO Retail Solutions by Client for the specific sub-category of Service which is the subject matter of or directly related to the cause of action asserted, during the 60 day period immediately preceding the date on which the cause of action arose. Client hereby irrevocably indemnifies NEO Retail Solutions accordingly.
9.2. Under no circumstances whatsoever, including as a result of its negligent acts or omissions or those of its servants, contractors, agents or other persons for whom it is liable in law, shall NEO Retail Solutions or its servants (in whose favour this is a stipulatio alteri) be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential losses (of any kind whatsoever or howsoever caused and whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable) sustained by Client, its End Users and their directors, servants and customers, including loss of profits, revenue, use, information and/or contracts. Client hereby irrevocably indemnifies NEO Retail Solutions accordingly.
9.3. Nothing herein shall limit a Party’s liability for: any breach of clause 7 or 8; death or bodily injury to a person; or, destruction, damage or loss of real or tangible personal property of a person, caused by it.
Should a Party breach a material term of this Agreement (other than one which contains its own remedies or limits remedies in the event of a breach thereof) and fail to remedy same within 30 days of receipt of written notice requiring it to do so and warning that if it is not remedied the other Party may exercise its rights in terms hereof, then the other Party shall be entitled without notice, in addition to any other remedy available to it at law or herein (including an interdict), to cancel this Agreement or claim specific performance of any obligation (whether or not the due date thereof has arrived), in either event without prejudice to the other Party’s right to claim damages or losses. If the breach is not capable of being remedied, it shall be deemed to have been remedied (without prejudice to the other Party’s right to claim damages or losses) provided that the Party in breach has caused it to cease within the period aforesaid.
11. EVENTS OF DEFAULT
Notwithstanding anything to the contrary herein contained, if a Party: commits an act which is or would be an act of insolvency in terms of Section 8 of the Insolvency Act, 1936 (if committed by a natural person); or, commences business rescue proceedings, is provisionally or finally liquidated, is removed from the company register, takes steps for its voluntary winding up, or, is placed in any similar or replacement regime covered by South African insolvency law; or, compromises or attempts to compromise or defer payment of any debt owing to its creditors generally or to any class of its creditors; or, allows a judgment against it to remain unsatisfied for 30 days, unless it takes steps to rescind or appeal the judgment within that period; or, disposes of all or a material portion of its assets or undertaking or ceases (including if cessation seems likely) to conduct its business; or, in any way encumbers or hypothecates a material portion of its assets, then, the other Party shall be entitled, but not obliged, to terminate this Agreement at any time upon written notice to that effect.
12. FORCE MAJEURE
12.1. If vis major or force majeure or casus fortuitus (“Force Majeure”) cause delays in or any failure of performance by a Party of any of its obligations, the affected part of this Agreement shall be suspended for the period during which the Force Majeure prevails, but if it affects a material part of the Agreement it shall be suspended for a maximum period of 120 days after which any affected Party shall be entitled on 30 days’ written notice to cancel this Agreement. Written notice of a Force Majeure event stating its nature and date of commencement shall be dispatched by the Party seeking to rely on it (on whom the onus shall rest) as soon as reasonably possible after its commencement. Written notice of cessation of a Force Majeure event shall be given by the Party who relied on it, within 5 days after such cessation. The Party whose performance is interrupted by Force Majeure shall be entitled to extend the period of this Agreement by a period equal to the time that its performance is so prevented.
12.2. For the purposes hereof, vis major and force majeure include acts or omissions of any government, government agency, provincial or local or similar authority (but, where Client is an organ/body of state, specifically excluding Client’s acts or omissions which are not the exercise of executive government powers), civil strife, riots, sabotage, insurrection, acts of war or public enemy, illegal strikes, combination of workmen, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), prohibition of exports, inability on NEO Retail Solutions’s part due to Force Majeure to obtain goods or services from its suppliers (including telecommunications suppliers), rationing of supplies, flood, storm, fire or any other circumstances (without limitation eiusdem generis) beyond the reasonable control of the Party claiming Force Majeure and comprehended in the term Force Majeure.
13. DISPUTE RESOLUTION
13.1. Prior to initiating any other resolution process, the Parties shall attempt to resolve disputes arising from this Agreement informally and in good faith. Either Party may refer any dispute arising, to the Parties’ chief executive officers by simultaneous written notice to them at the Parties’ addresses in clause 15.1. For a period of up to 7 days, the Parties’ chief executive officers (or their nominees) (“Executives”) shall meet and attempt to resolve the dispute informally.
13.2. If the Parties fail to resolve the dispute within that period it may be submitted to arbitration, in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators nominated by it, on written demand by either Party. The place of the arbitration shall be Sandton, Johannesburg.
13.3. The provisions of this clause constitute an irrevocable consent by the Parties to any proceedings in terms hereof and neither Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions.
13.4. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
13.5. This clause 14 is severable from the rest of this Agreement and shall remain in effect after termination of this Agreement for any reason.
14. DOMICILIUM CITANDI ET EXECUTANDI
14.1. The Parties choose as their domicilia citandi et executandi for all purposes in terms of this Agreement, including court process, notices or other documents or communications of whatever nature, their respective addresses described on the Proposal. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing. Either Party may by notice change its physical address to another physical address in the RSA, or its postal address or its fax number, which change shall be effective on the 5th Business Day from deemed receipt of the notice by the other Party. Unless the contrary is proved, a notice to a Party –
14.1.1. delivered by hand to a responsible person during business hours at its physical address, is deemed to be received on date of delivery;
14.1.2. sent by prepaid registered post to its postal address (airmail if appropriate), is deemed to be received on the 7th day after posting.
14.2. Notwithstanding the aforegoing, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilia citandi et executandi.
15. CESSION, ASSIGNMENT AND SUB-CONTRACTING
Client shall not cede, delegate, assign or in any other manner dispose of any of its rights or obligations arising out of this Agreement without the prior written approval of NEO Retail Solutions. NEO Retail Solutions may sub-contract its obligations under this Agreement provided that such sub-contracting does not change NEO Retail Solutions’s obligations to Client.
16. GOVERNING LAW AND JURISDICTION
16.1. This Agreement shall be governed by and interpreted in accordance with the laws of the RSA and all disputes, actions and other matters relating to his Agreement shall be determined in accordance with such laws. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
16.2. Subject to clause 14, the Parties agree that to the extent that any court has jurisdiction over any matter arising out of or in connection with this Agreement, such matter shall be brought in the South Gauteng High Court of South Africa (or its successor) and they irrevocably submit to the exclusive jurisdiction of such court.
17.1. Any illegal, invalid or unenforceable provision in this Agreement shall be ineffective to the extent of its prohibition or unenforceability and be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
17.2. This Agreement constitutes the whole agreement between the Parties relating to its subject matter and replaces, supersedes and cancels, with effect from the Date of Signature, any other agreements (written or oral) in force between the Parties relating to its subject matter.
17.3. No amendment or consensual cancellation of this Agreement or any of its provisions or terms or of any agreement or other document or instrument issued or executed pursuant to or in terms hereof and no settlement of any disputes arising out of this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement or other document or instrument issued pursuant to or in terms hereof shall be binding unless recorded in writing and signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting same).
17.4. No terms or conditions contained in any proposal, quotation, delivery note, invoice, statement or like documents between the Parties, whether exchanged on or subsequent to the Date of Signature, and whether signed by one or both of the Parties, shall in any way amend, novate or supersede the terms and conditions contained in this Agreement.
17.5. Client acknowledges that NEO Retail Solutions in the normal course of carrying on its business, intercepts and monitors all usage of NEO Retail Solutions’s e-mail, fax, Internet, phone and other forms of communication and the NEO Retail Solutions Systems. Client hereby consents (and shall procure its Staff’s consent) to the interception and monitoring by NEO Retail Solutions, for legal purposes, of any communication made by Client or its Staff using NEO Retail Solutions’s e-mail, fax, Internet, phone or other forms of communication and the NEO Retail Solutions Systems.
17.6. Neither Party shall, during or within 24 months after expiration or termination of this Agreement, solicit for employment, directly or indirectly, any person who was a member of the other Party’s Staff during the term of this Agreement and who was directly involved with any activity relating to this Agreement, without the prior written consent of the other Party
17.7. For the term of this Agreement and 6 months thereafter, neither Party shall make or issue, directly or indirectly, any formal, informal, public or private announcement, advertisement or statement in connection with this Agreement or its negotiations without the prior written consent of the other Party. This shall not apply in respect of any announcement, advertisement or statement to the extent required by law or published regulations of the JSE Limited applicable to corporate bodies in general.
17.8. Any extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document or instrument issued or executed pursuant to or in terms hereof, shall be strictly construed as relating strictly to the matter in respect whereof it was made or given, shall not operate as an estoppel against any Party in respect of its rights in terms of this Agreement, and, shall not operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement.
17.9. No failure or delay on the part of a Party in exercising any right, power or privilege in terms of this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
17.10. The Parties’ relationship shall be governed by this Agreement. Nothing herein shall be deemed to constitute any Party the partner or agent or legal representative of the other. It is not the Parties’ intention to create nor shall this Agreement be construed to create any commercial or other partnership. Neither Party shall have any authority to act for or assume any obligation or responsibility on behalf of the other Party nor hold itself out as partner or agent of the other Party.
17.11. Each Party shall bear and pay its own costs of or incidental to the drafting, preparation and execution of this Agreement.