GENERAL TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
1.1 In the Agreement, unless clearly inconsistent with, or otherwise indicated by the context –
“Activation Date” means the date on which a Service will be activated;
“Agreement” means the SSO, the General Terms and Conditions, the Special Terms and Conditions, the SOS, the annexures attached hereto, and any documents incorporated by way of reference;
“Commencement Date” means the Activation Date, notwithstanding the Signature Date, upon which the Agreement shall commence;
“Confidential Information” means any and all strategic, sensitive and/or confidential business, private, personal and/or privileged information, in whatsoever format, and any part and/or element of the aforementioned;
“Customer” means the entity or person to whom, or on whose behalf, INTEGR8 shall provide the Services as identified in the SOS;
“Business Day” means Monday to Friday, excluding public holidays;
“ECNS Provider” means one of the electronic communication network service providers licensed to provide those services in terms of the Electronic Communications Act 36 of 2005, as amended from time to time;
“IPR” means intellectual property rights, which include, but shall not be limited to, concepts, know-how, data processing techniques, copyrights, patents, designs, inventions, trade marks, which are created, invented and/or developed;
“Initial Period” means a period of 12 (twelve) months calculated from the Commencement Date, or such other period as identified in the relevant SOS;
“Locations” means the premises where INTEGR8 will provide the Services, as identified in the relevant SSO;
“Network” means the data transmission and voice communication system between the relevant locations, comprising of points of presence, network hubs, circuits, host computers and other similar equipment owned by INTEGR8 or its Suppliers;
“Order Form” means the standard INTEGR8 order form to be submitted by the Customer to INTEGR8 on request for additional Services;
“Parties” means INTEGR8 and Customer and “ Party” means either of the Parties, as the context may determine;
“Project Plan” shall mean the processes, procedures, and/or documentation that are required to set out a project’s scope, tasks, schedule, deliverables, risks and costs according to industry standard project management practices and methodologies;
“Services” means the services to be provided by INTEGR8 to the Customer in terms of the Agreement;
“SSO” means the service specific order which contains specific terms and conditions for each Service ordered by the Customer;
“Service Charges” means the charges as reflected in the SOS and as updated or increased from time to time;
“Service Equipment” means the hardware, software, systems, cabling, and facilities that may be required for the Services and ordered by the Customer. Service Equipment shall not include the Network;
“Service Level” means the performance standards for certain Services to be delivered to the Customer, as set out in the relevant SSO;
“SOS” means a schedule of services which will reflect the duration, price and other relevant details of the contracted Services;
“Signature Date” means the date of signature of the SOS by the Party signing last in time;
“Software” means any elements of coding or computer programs, databases and related documentation, including, as applicable, the object code and/or source code and without limit to whether the software is operating system software;
“Specifications” means the Supplier’s published specifications in respect of the Service Equipment;
“Supplied Software” means the configuration and/or operating software supplied with the Service Equipment;
“Supplier” means the supplier of any relevant Services and/or Service Equipment to INTEGR8 or the Customer via INTEGR8;
“Supplier Warranty” means the warranty with respect to any Services and/or Service Equipment provided by the Supplier to INTEGR8 or the Customer; and
“Warranty Period” means the period for which any relevant Service and/or Service Equipment is under warranty from the Supplier, as set out in the relevant SSO;
In the Agreement, unless clearly inconsistent with, or otherwise indicated by the context –
1.2 any reference to the singular includes the plural and vice versa, any gender includes the other genders and singular includes the plural and vice versa;
1.3 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only contained in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
1.4 when any number of days is prescribed in the Agreement, same 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 case, the last day shall be the next succeeding Business Day;
1.5 where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
1.6 the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
1.7 a reference to a Party in the Agreement includes that Party’s successors and permitted assigns;
1.8 the headings appearing in this Agreement are for reference purposes only and shall not affect the interpretation hereof;
1.9 any term defined within the context of any particular clause in the Agreement shall, unless otherwise determined by the context, bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that such term is not defined in the definition clause; and
1.10 in this Agreement the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding words.
2.1 The Agreement shall commence on the Commencement Date and shall, unless cancelled in accordance with clauses 17 or 20, continue in force until all the Services have expired or have been terminated.
2.2 Each Service shall endure for an Initial Period, calculated from the Commencement Date, and, thereafter, shall be renewed automatically for successive periods (“Subsequent Period”) as agreed in the SOS.
2.3 The Customer may terminate the particular Service at the end of the Initial Period of that Service by way of, at least, 90 (ninety) days prior written notice (“Termination Notice”).
2.4 Should Termination Notice at the end of a particular Service Initial Period not be provided in terms of clause 2.3 the particular Service shall automatically be renewed for the Subsequent Period. Similar to the cancellation of the Initial Period in terms of clause 2.3, the Customer may, during any Subsequent Periods, terminate a particular Service at the end of each Subsequent Period by providing INTEGR8 with 90 (ninety) days prior written notice.
3.1 The Parties agree that, in the event of conflict between the various parts of this Agreement, the conflict shall be resolved by utilising the following priority of precedence, from highest to lowest, the SOS, the SSO, the Special Terms and Conditions and the General Terms and Conditions.
3.2 For the avoidance of doubt, and save where expressly provided to the contrary, the terms of any specific SSO shall not apply to any other SSO.
4 SERVICES AND EQUIPMENT
4.1 INTEGR8 shall provide the Services, against the agreed Service Levels, as set out in the SSO.
4.2 The Services will be provided to the Customer at the agreed Locations, as set out in the SSO.
5 ADDITIONAL SERVICES AND / OR UPGRADES
5.1 New Services: The Customer may, at any time during the currency of the Agreement, request INTEGR8 through an Order Form to provide additional services (“New Services”). If INTEGR8 agrees to render the New Services, INTEGR8 shall provide the Customer with the applicable SSO and the Parties shall sign the updated SOS.
5.2 Upgrade / Change of Services: INTEGR8 shall be entitled –
5.2.1 on receipt of the Customer’s written request to upgrade / change Services, to accept or reject the request; or
5.2.2 where the Customer has already commenced with the utilisation of the upgraded / changed Services or additional quantities of the existing Services, to update / change the SOS accordingly and charge the Customer against the revised Service Charges.
5.3 Upgrades, during the term of the Agreement, shall amend the Commencement Date of the particular Services to the Activation Date of the upgraded Services and the Initial Period shall be recalculated accordingly.
6 OBLIGATONS OF INTEGR8
6.1 INTEGR8 shall –
6.1.1 escalate all calls for problem resolutions timeously in accordance with the agreed Services and Service Levels;
6.1.2 ensure that all faults reported and/or interventions required by the Customer, and the processing and conclusion thereof, shall be timeously recorded and updated; and
6.1.3 perform the Services in accordance with all applicable laws and regulations and with reasonable skill and care.
7 OBLIGATIONS OF THE Customer
7.1 The Customer shall –
7.1.1 appoint a single point of contact who shall be responsible for co-ordinating and managing the relationship between the Parties in accordance with the Agreement;
7.1.2 where required, provide suitable access to INTEGR8 or its agents or Suppliers at Locations to provide the Services;
7.1.3 provide INTEGR8 with accurate information that may affect delivery of the Services, e.g. the Customer policies (IT Security Policy), health and safety regulations and product documentation.
7.2 Until ownership passes to the Customer in accordance with clause 10 below or the end of the relevant Warranty Period, whichever is the latest, the Customer shall use the Service Equipment and the Supplied Software in accordance with the Specifications and not use the Service Equipment for any purpose other than that for which it is intended, designed and/or reasonably suitable, and shall at its own expense –
7.2.1 maintain the Locations in which the Service Equipment is located in accordance with the Specifications;
7.2.2 immediately notify INTEGR8 in writing of any default or malfunction in, damage to, or loss of, the Service Equipment arising from any cause whatsoever, such notice to set out the relevant details relating to default, malfunction, damage or loss as well as the apparent cause thereof;
7.2.3 provide INTEGR8 and its Suppliers with full and reasonable access to the Service Equipment to enable INTEGR8 or such Suppliers to inspect, maintain, remove, repair or replace the Service Equipment from time to time;
7.2.4 ensure that only authorised employees, contractors and/or agents of the Customer has access to, and/or makes use of, the Service Equipment, and that all such persons are properly trained, managed and supervised;
7.2.5 at INTEGR8’s request, affix to the Service Equipment tags, decals or plates furnished by INTEGR8; and
7.2.6 if the site at which the Service Equipment is installed is rented –
184.108.40.206 advise INTEGR8, in writing, of the name and address of the landlord as well as any changes thereto; and
220.127.116.11 provide INTEGR8 with written confirmation from the landlord that the landlord is aware that the Service Equipment is rented and that the Service Equipment shall, therefore, not be subject to a lien or hypothec, it being agreed that INTEGR8 may notify the landlord of this fact should the Customer fail to do so.
7.3 The Customer –
7.3.1 assumes full responsibility for the overall suitability of the Locations in which the Service Equipment is to function and the Services are to be rendered;
7.3.2 shall be responsible for any licensing and/or registration of the Service Equipment which may be required by law and shall bear all costs incurred in this regard ;
7.3.3 shall comply with all the laws affecting the Services and / or Service Equipment, and the use and operation thereof, and shall bear the costs of all penalties, fines, levies or charges arising from failure to comply with any applicable laws;
7.3.4 shall not do or permit anything to be done or omit or permit the omission of anything in relation to any telecommunications facility or infrastructure owned or used by either INTEGR8 or any of its Suppliers, which may reasonably be expected to damage or materially interfere, in any manner whatsoever, with the proper and normal operation of such or in breach of any relevant laws;
7.3.5 shall not impede, impair or preclude INTEGR8 from being able to provide the Service/s in a reasonable and business-like manner;
7.3.6 shall not constitutes an abuse or malicious misuse of the Service/s;
7.3.7 is prohibited from selling, reselling or otherwise dealing with the Service/s which are proprietary to INTEGR8 or its Suppliers, in any manner whatsoever. Without limitation to the foregoing, any consideration which Customer may receive whilst acting in breach of this prohibition shall be accrued to the benefit of INTEGR8; and
7.3.8 is prohibited from allowing any person, other than its authorised employees or other authorised parties, access to the Service/s through any of the Customer’s equipment, personnel and/or Locations.
7.4 Customer agrees that –
7.4.1 INTEGR8 has no knowledge of the value of the Customer’s data, the financial consequences of the Customer’s data being lost or not properly processed or transmitted to a Location or of the effects on the Customer or its customers arising from any interruption, failure or other fault in the Service;
7.4.2 it is not INTEGR8’s responsibility, unless contracted for specifically, to store, back-up or keep a permanent record of data transmitted viathe Network; and
7.4.3 INTEGR8 shall not be responsible for any data that is transmitted over the Network.
7.5 Should INTEGR8 incur expenses to remedy any breach of the above obligations, INTEGR8 reserves the right to charge the Customer the amount necessary to cover INTEGR8’s additional expenditure. Notwithstanding the above, INTEGR8 reserves the right to take any other appropriate action it may deem necessary to remedy the situation.
8 PURCHASE, REPLACEMENT OR RENTAL OF EQUIPMENT /space
8.1 If INTEGR8 learns that the Customer does not have the necessary Service Equipment, required for purposes of specific Services, or that certain Service Equipment needs to be replaced, INTEGR8 shall supply a list of required Service Equipment with a written quotation to the Customer.
8.2 The Customer may order, in writing, the above suggested Service Equipment, based on the then current INTEGR8 terms and conditions for purchasing of Service Equipment or the rental of Service Equipment.
8.3 Where Service Equipment needs to be replaced on a temporary basis, the Customer may request INTEGR8, in writing, to replace the equipment, subject to the following conditions –
8.3.1 replacement of third party service equipment or components thereof will only take place on instruction of the Customer and the Customer hereby indemnifies INTEGR8 against any claim or liability, whatsoever, that may be instituted by the third party service provider as a result of the temporary replacement of such service equipment;
8.3.2 temporary replacement of third party service equipment will only take place after it has been established that the third party service provider is not available or cannot deliver the service equipment within the required timeframe;
8.3.3 the aforementioned temporary Service Equipment will be returned to INTEGR8 once the third party service equipment provider has installed the necessary service equipment;
8.3.4 the installation of temporary Service Equipment is not measured against any Service Levels. The temporary Service Equipment will be provided by INTEGR8 on a best effort-basis and against the then current INTEGR8 rental fee for such Service Equipment; and
8.3.5 where Service Equipment / space has been provided to the Customer on a rental basis, the Service Equipment / space will be returned to INTEGR8 after duration of the applicable SOS in the same condition as provided originally, subject to reasonable wear and tear.
9 DELIVERY and installation of SERVICE equipment
9.1 Delivery of Service Equipment, where applicable, shall be deemed to have been duly effected when the Customer signs INTEGR8’s delivery note.
9.2 If the Customer fails to sign the delivery note within 2 (two) Business Days after the date on which the Service Equipment was delivered to the Customer, the Customer shall, unless it has informed INTEGR8 of any defect in the Service Equipment, in writing, before close of business on the second Business Day, be deemed to have signed the delivery note on such second Business Day, thereby confirming that the Service Equipment conforms to the quality and quantity ordered.
9.3 Unless otherwise agreed to, INTEGR8 shall, at an additional cost to the Customer, configure and customise new Service Equipment according to the requirements of the Customer, which cost is to be agreed upfront by the Parties in writing.
10.1 The Parties agree that rental Service Equipment shall, during the currency of the Agreement and after the termination thereof, remain the property of either INTEGR8 or, as the case may be, the Supplier.
10.2 All Service Equipment sold by INTEGR8 to Customer shall remain the property of INTEGR8 and / or supplier as applicable until full payment has been received.
11 risk of loss (SERVICE EQUIPMENT)
11.1 In respect of each SOS, all risks of damage or loss to, or destruction of, the Service Equipment shall pass to the Customer upon delivery of the relevant Service Equipment to the Customer.
11.2 For the duration of each SOS, the Customer shall, at its expense, keep the Service Equipment insured for the full replacement value of the Service Equipment, to the satisfaction of INTEGR8.
11.3 The Customer shall be liable for any and all damage or losses to the Service Equipment or the Network which is caused by (i) the acts or omissions of the Customer or the Customer’s breach of the terms of the Agreement; or (ii) malfunction or failure of any equipment or facility provided by the Customer or its agents, employees, suppliers, representatives or subcontractors.
11.4 The Customer shall use the Service Equipment only for the purpose of receiving the Services and in accordance with INTEGR8’s reasonable instructions, from time to time, and / or Software licenses that may be provided with the Service Equipment.
11.5 The Customer shall not, without the prior written consent of INTEGR8 –
11.5.1 move the Service Equipment; or
11.5.2 make any alterations, additions or any attachments to the Service Equipment.
12 SUSPENSION OF SERVICES
12.1 INTEGR8 may suspend Services, or any part thereof, where –
12.1.1 INTEGR8 or its subcontractors or Suppliers needs to carry out emergency works to the Network or Service Equipment;
12.1.2 requested and / or order by a judicial or regulatory authority;
12.1.3 where INTEGR8 has reasonable grounds to consider that the Services is being used fraudulently, illegally or in violation of any term under the Agreement; or
12.1.4 non-payment for Services subsequent to written notification as per clause 17.1.1 below.
12.2 INTEGR8 shall not be liable for any failure to provide Services against the agreed Service Levels on Services suspended in accordance with clause 12.1.
The Parties agree that in the event of a breach of this Agreement by the Customer, which causes INTEGR8 to suffer damages or losses of any nature whatsoever, INTEGR8 shall not be required to attach any of the Customer’s hardware in execution, and shall be entitled to retain a lien over such hardware in reduction of any debt due by the Customer to INTEGR8.
14 PRICE AND PAYMENT
14.1 INTEGR8 shall be entitled to commence invoicing the Customer for the Service Charges from the Activation Date of such Service, even if the SOS for that particular Service has not been signed.
14.2 When the Activation Date is delayed due to the fault of the Customer, INTEGR8 shall be entitled to commence invoicing the Customer for the Service Charges, with effect from 30 (thirty) days from the proposed Activation Date for that Service.
14.3 The Customer shall pay to INTEGR8 the Service Charges and transition/ ingestion charges, as reflected in the most recent SOS, within 21 (twenty-one) days from the date of INTEGR8’s invoice into an account as designated by INTEGR8.
14.4 Additional services, upgrades or increases/ changes in the scope of the Services shall result in subsequent amendments to the Service Charges , as agreed between the Parties. INTEGR8 shall execute monthly service assessments / reviews to determine the Customer’s utilisation of the Services.
14.5 It is agreed that should there be a subsequent price increase on components of the Services, beyond the control of INTEGR8, including but, not limited to, foreign exchange fluctuations, increased Supplier products or services, surcharges, taxes, rates or levies or delays caused by any instruction of the Customer, INTEGR8 shall be entitled to increase the affected Services Charges accordingly, by the Rand value of the increase in proportion to the Services provided, after written notification to the Customer.
14.6 All prices and/or costs quoted by INTEGR8 shall be inclusive of all applicable taxes, but excluding –
14.6.1 South African value added tax, which shall be reflected separately to the agreed Service Charges; and
14.6.2 all and any ECNS Provider fees, which the Customer agrees to make payment directly to the ECNS Provider.
14.7 The agreed Service Charges will escalate annually on the anniversary date, which shall be calculated as 12 (twelve) months from the Commencement Date, by the CPI rate as published by Statistics South Africa, for the duration of the Agreement or any extension thereof.
14.8 The Customer shall be responsible for any alternative transport and / or out of town (more than 50 (fifty) kilometres outside agreed Location(s)) costs.
14.9 Unless otherwise agreed to in writing, where the Customer requires INTEGR8 to execute Services outside the agreed working hours, INTEGR8 will be entitled to charge the Customer its standard overtime rate.
14.10 Where a service request exceeds the agreed IMAC(X) value, the service request will be classified as a project, and INTEGR8 shall quote the Customer for such services separately and shall execute such services on acceptance of the quote.
14.11 The Customer may not, for any reason whatsoever, defer, adjust, set-off or withhold any payment due to INTEGR8 in terms of, or arising from, the Agreement.
14.12 If the Customer fails to make any payment or portion of a payment due in terms of the Agreement, INTEGR8 may, without prejudice to INTEGR8’s rights in terms of the Agreement or at law, charge interest on any unpaid amount from the date the account became due until the date of payment, both days inclusive, at the prevailing prime overdraft rate of Nedbank Limited, plus 2% (two percent) per month.
15 IPR and OWNERSHIP
15.1 All existing and future IPR in relation to the Services, the support, the business, related technologies and business methodology, as recorded in the Agreement, are either owned by INTEGR8, alternatively by certain other license holders who have licensed the use thereof to INTEGR8 or INTEGR8’s Suppliers. The Customer acknowledges that it shall have no claim to the said IPR merely as a result of the Agreement or utilise the IPR unless specifically authorised in terms of the Agreement.
15.2 The Customer shall retain all title, copyright and other IPR, in its data and information stored on any medium whether or not it has been placed in the possession or control of INTEGR8 or its Suppliers. The Customer hereby authorises INTEGR8 and/or its Suppliers to use, process, store and/ or transfer the Customer’s data for provision of the Services and to communicate to the Customer regarding other INTEGR8services. The Customer agrees, where applicable, to obtain all legally required consents and permissions from relevant parties for the use, processing, storing and transferring of end user data and personal information.
15.3 INTEGR8 warrants that the possession or use of the Services, as well as any other deliverable, will not infringe the IPR of any third party and hereby indemnifies and hold the Customer harmless against any third party claim on the basis that the Services, or any deliverable provided by INTEGR8, infringed the IPR of that third party.
16 CONFIDENTIALITY AND RESTRAINT
16.1 The Parties may not use in any manner for its own account or the account of any third party, nor disclose to any third party, any Confidential Information revealed to it by the other Party, other than to fulfil its express obligations in terms of the Agreement.
16.2 The Customer shall not, during the term of the Agreement, and for a period of 12 (twelve) months immediately following the date of termination of the Agreement, directly or indirectly solicit, or offer employment or any other form of contract for Services to, any person who is an employee or contractor of INTEGR8 or was an employee within 12 (twelve) months prior to termination of the Agreement, without INTEGR8’s prior written consent .
16.3 In any event resulting in a breach of clause 16.2, the Customer agrees that it will, without question or negotiation, pay to INTEGR8 an amount equal to 100% (one hundred percent) of the relevant employee or contractor’s total annual compensation, as a recruitment fee, within 7 (seven) Business Days of such breach.
17 BREACH AND TERMINATION
17.1 If the Customer –
17.1.1 breaches any material term of the Agreement and fails to remedy such breach within 7 (seven) days after the receipt of a written notice from INTEGR8;
17.1.2 commits any act of insolvency;
17.1.3 endeavours to compromise generally with its creditors or does, or causes, anything to be done which may prejudice INTEGR8’s rights hereunder or at all;
17.1.4 allows any judgement against it to remain unsettled for more than 10 (ten) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
17.1.5 is placed in liquidation or under business rescue proceedings or curatorship (in either case, whether provisionally or finally), or effect a compromise with its creditors or commit any act or omission which would, in the case of an individual, be an act of insolvency in terms of Section 8 of the Insolvency Act 24 of 1936, as amended,
INTEGR8 shall have the right, as and where applicable, without prejudice to any other right which it may have against the Customer, to:
a) suspend or terminate the Services in terms of this Agreement or any other agreement between the Parties;
b) treat as immediately due and payable all outstanding amounts, which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts, as well as any other amounts in arrears, including interest; and/or
c) terminate this Agreement,
in any event without prejudice to INTEGR8’s right to claim damages.
17.2 INTEGR8 may terminate the Agreement immediately, by notice, if the Customer has committed a material breach of any term of the Agreement which is incapable of remedy.
17.3 If INTEGR8 has reasonable grounds to consider that there has been a violation of regulatory provisions, INTEGR8 may notify the Customer and require the Customer to remedy the violation:
17.3.1 in the event of an incident involving a violation of public law or regulation or an imminent threat to the Network, immediately; or
17.3.2 in all other cases, within 48 (forty-eight) hours.
17.4 If the Customer fails to notify INTEGR8 that such a remedy has been affected in accordance with clause 17.3 or if INTEGR8 reasonably determines that the violation is continuing or is likely to occur again, INTEGR8 may terminate the Agreement (or the relevant Service) immediately upon notice to the Customer.
17.5 The breaching party shall be liable for all costs incurred by the non-breaching party in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client-scale whether incurred prior to, or during, the institution of legal proceedings or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
17.6 Except for Termination Notice as per clause 2.3 above, if the Agreement is terminated as a result of the Customer’s actions and / or omissions, prior to the end of the Initial and/ or Subsequent Period, whichever may be applicable, the Customer shall be liable for the payment of a cancellation charge equal to the balance of the Service Charges for such cancelled Services or part cancelled Services that otherwise would have become due for the unexpired portion of the term (the remaining contracted months).
18.1 The Customer warrants that it shall –
18.1.1 in its use of the Services and Service Equipment comply with any relevant legislative, regulatory provisions or policy and not use the aforementioned for any illegal or immoral purposes or in contravention of any person’s IPR;
18.1.2 for the duration of the Agreement, not, or allow any other third party, other than INTEGR8, to move, modify, configure or repair the Service Equipment;
18.1.3 keep the Service Equipment free and clear of all liens and encumbrances and shall not sell, transfer, sub-lease, charge, assign by way of security or otherwise, deal in or encumber the Service Equipment and shall exercise the utmost good faith in its care of the Service Equipment;
18.1.4 not remove, tamper with, or obliterate any words or labels on the Service Equipment;
18.1.5 comply with INTEGR8’s reasonable instructions in relation to the modification of the Customer’s equipment to enable the Customer to receive the Services, at its own expense; and
18.1.6 upon termination of a Service, allow INTEGR8 or its subcontractor access to remove the Service Equipment. Should any construction or alteration to the Customer’s Locations have occurred to facilitate any Service, neither INTEGR8 nor its subcontractor shall be obliged to restore the Customer’s Locations to the same physical state as prior to said construction or alteration.
18.2 INTEGR8 warrants that –
18.2.1 at the date of the Commencement Date, INTEGR8 has obtained, and will maintain for the duration of the Agreement, all permissions, licenses and consents necessary to perform the Services; and
18.2.2 INTEGR8 has adequate resources to meet its obligations in terms of the Agreement.
18.3 Except as expressly stated in the Agreement, all conditions and warranties, whether express or implied or otherwise (including, but not limited to, any conditions or warranty for, fitness for particular purpose, satisfactory quality, merchantability, usefulness or timeliness, secure against intrusion by unauthorised third parties), are excluded and INTEGR8 assumes no liability, responsibility or obligations in regard thereto.
19 LIMITATION OF LIABILITY
19.1 INTEGR8 shall not be liable for any damages or losses (including, but not limited to, loss of data, profits or goodwill), liability, damages (whether direct, indirect or consequential) or expense, of whatsoever nature and howsoever arising, where INTEGR8’s failure, delay or inability to perform any of the Service/s is due to the occurrence of any of the following events –
19.1.1 the Customer’s failure to perform, or delay in performing, its obligations in terms of the Agreement;
19.1.2 circumstances that constitute an event of force majeure as contemplated in clause 20 hereof;
19.1.3 all telecommunications infrastructure and communication line faults;
19.1.4 failure or unreasonable delay by the Customer to report faults/problems to INTEGR8; or
19.1.5 the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to use the Service/s and/or on which INTEGR8 relies to provide the Service/s.
19.2 INTEGR8 shall not be responsible for any damages or losses (including, but not limited to, loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense, of whatsoever nature and howsoever arising, if such loss is caused by any defect or failure in the Service Equipment due to –
19.2.1 compliance by INTEGR8 with any applicable legislation;
19.2.2 any alteration to the Software and Service Equipment by the Customer; or
19.2.3 any defect and/or hazard in any third party equipment required by the Customer to be used in the provision of the Services.
19.3 In addition to clauses 19.1 and 19.2, and to the extent permitted by applicable law, INTEGR8 shall not be liable for indirect or consequential damages or losses (including, but not limited to, loss of data, profits and goodwill) or expense, of whatsoever nature and howsoever arising, in respect of the Services provided in terms of this Agreement.
19.4 The Customer shall indemnify and hold INTEGR8 and any of its subsidiaries, affiliates, holding company, fellow subsidiaries, representatives, directors, officers or employees harmless against all losses, damages, liability, costs and expenses, including reasonable attorney fees, suffered or incurred by them as a result of any claim by any third party, arising from any of the provisions of clauses 19.1 and 19.2.
19.5 Subject to clauses 19.1 to 19.3 above, the entire liability of INTEGR8 and the Customer’s exclusive remedy for direct damages, losses, costs or expenses from any cause related to, or arising from, the Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the Service Charges paid by the Customer in terms of the Agreement for the period of 6 (six) months preceding the Customer’s written notice to INTEGR8 in respect of such claim.
19.6 The Customer hereby indemnifies INTEGR8 against, and holds INTEGR8 harmless from, any claim by any third party arising directly or indirectly from access to, or use of, the Service/s or information obtained through the use thereof or, in respect of any matter for which liability of INTEGR8 is excluded in terms of clauses 19.1 to 19.3.
19.7 The Parties shall keep each other fully and effectively indemnified against losses or damages to any property of the other Party or injury to, or death of, any persons under employ of the indemnified Party during the execution of the Service on the premises of the other Party or caused by any gross negligent act or omission or wilful misconduct of the other Party, its employees, agents, representatives or subcontractors.
19.8 The limitation shall not apply to the Customer’s failure to pay any amounts owing to INTEGR8 under the Agreement or any subsequent agreement.
19.9 All Service Equipment is subject to the terms of the Supplier Warranty.
19.10 INTEGR8 shall not be liable for any failure to provide the Services in accordance with the Service Levels if such failure is the direct result of the actions or omissions of a third party not under the control of INTEGR8.
19.11 The Customer indemnifies INTEGR8, its directors, employees, agents, subcontractors or Suppliers against any claim and / or legal action that may arise from non-compliance with the relevant legislation, applicable to the operations of the Customer or any provision in terms of the Agreement or content placed on, or accessible through, the Customer’s use of the Services or a third party claim for ownership or interest, lien, trust, pledge in any of the Customer’s equipment on INTEGR8 or its selected Supplier’s location.
20 FORCE MAJEUR E
…………. Should either Party (the “ Defaulting Party”) fail to meet any of its obligations in terms of the Agreement as a result of any act of God, war, strike, lock-out or other labour dispute, an ECNS Provider’s fault that affects the Services, fire, flood or legislation or any computer virus or any other cause beyond the reasonable control of the Defaulting Party, (hereinafter the “force majeure”), then, notwithstanding anything to the contrary contained or implied in the Agreement, the affected obligation, as well as the other Party’s counter-obligation, shall be suspended for the duration of the force majeure and the other Party shall not be entitled to terminate the Agreement prematurely, nor shall it have any claim for damages or losses, of whatsoever nature, against the defaulting Party, unless the force majeure continues for 30 (thirty) consecutive days or 60 (sixty) in aggregate in any 12 (twelve) month period, in which event the other Party may terminate the Agreement, with immediate effect, on written notice to the Defaulting Party.
21 DOMICILIUM AND NOTICES
21.1 The Parties choose as their domicilia citandi et executandi, for all purposes, the addresses as set out in the SOS.
21.2 Either Party shall be entitled, from time to time, by written notice to the other, to vary its address to any other address which is not a post office box or poste restante.
21.3 Any notice to either Party which is –
21.3.1 sent by prepaid registered post, in a correctly addressed envelope, to the address specified in clause 21.1 shall be deemed to have been received, unless the contrary is proven, within 14 (fourteen) days from the date on which it was posted;
21.3.2 delivered to the Party by hand, shall be deemed to have been received on the day of delivery, provided that it has been delivered to a responsible person during the ordinary business hours of the Party; or
21.3.3 sent by fax to a Party at the telefax numbers specified in clause 21.1, shall be deemed to have been received, unless the contrary is proven, within 4 (four) hours of transmission, if it is transmitted during normal business hours of the receiving Party or within 12 (twelve) hours of the first Business Day of the receiving Party after it was transmitted, if it is transmitted outside those business hours.
21.4 Notwithstanding anything to the contrary contained in this clause, a written notice or other communication actually received by either Party, and for which written receipt has been obtained, shall be adequate written notice or communication to it, notwithstanding that the notice was not sent to, or delivered at, its chosen address.
21.5 Any communication required to be in writing in terms of the Agreement shall only be valid if either written or printed in a paper based form. No data message (as defined in the Electronic Communications and Transactions Act 25 of 2002, as amended), including an email, SMS or recorded voice message sent by either Party shall amend the Agreement or the rights and duties of the Parties in any manner, unless such data message is reduced to paper and signed by the Parties.
22.1 Entire Agreement. The Agreement constitutes the entire agreement between the Parties in respect of the subject matter hereof and replaces all prior agreements or arrangements between the parties in regard to the subject matter of the Agreement.
Cession and Assignment . The Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of the Agreement, or any part thereof, without the prior written consent of INTEGR8, which consent shall not be unreasonably withheld or unduly delayed. The Customer and its successors-in-title shall be jointly and severably liable for any Service Charges or other amounts due to INTEGR8.
22.2 Variation . No alteration, modification or variation to, including, but not limited to, consensual cancellation of the Agreement, settlement of disputes arising from the Agreement or agreement of compromise, including this clause, shall be of any force or effect, unless it is recorded in writing and signed by the Parties. With respect to new pricing and/or service specifications in respect of existing Service/s, an INTEGR8 IMAC Form signed by a duly authorised representative of INTEGR8 and a duly authorised representative of Customer will constitute a written variation of the Agreement in accordance with this clause 22.3.
22.3 Survival of terms. The expiration or termination of the Agreement shall not affect such of the provisions of the Agreement as expressly provide that they will operate after any such expiration or termination or which, of necessity, must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
22.4 Waiver. Except as expressly provided herein, failure by either Party, at any time, to enforce any of the provisions of the Agreement shall neither be construed as a waiver of any rights or remedies hereunder, nor affect the validity of the Agreement or any part of thereof. No waiver shall be effective unless provided in writing and signed by the Parties and no waiver of a breach of the Agreement shall constitute a waiver of any antecedent or subsequent breach.
22.5 Severability. The invalidity or unenforceability for any reason of any of the provisions set out in the Agreement shall not prejudice or affect the validity or enforceability of the remainder of the Agreement. If further lawful performance of the Agreement, or any part thereof, shall be made impossible by the final judgment or final order of any court of competent jurisdiction, commission or government agency or similar authority having jurisdiction over either Party, the Parties shall use their reasonable endeavours to agree amendments to the Agreement so as to comply with such judgment or order.
22.6 Relationship: Nothing in the Agreement shall constitute a partnership, joint venture, agency or employment between the Parties hereto, and neither Party shall have the authority or power to bind, or contract in the name of, or to create a liability against the other Party in any manner or for any purpose.
22.7 Applicable Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the Republic of South Africa. The Customer consents in terms of Section 45 of the Magistrate’s Court Act 32 of 1944, as amended, to the jurisdiction of the Magistrate’s Court, having jurisdiction, in respect of any action or proceedings which may be brought against it arising from, or relating to, the Agreement, notwithstanding that the amount in question may exceed the jurisdiction of such Court, provided that INTEGR8 shall be entitled to bring any such action or proceedings in the High Court or any other Court having jurisdiction. The Parties agree that any costs awarded will be recoverable in accordance with the High Court tariff, determined on an attorney-and-own-client scale.
22.8 Costs. Each Party shall be responsible for its own legal and other costs relating to the negotiation of the Agreement.