DIJITAL MASTER SUBSCRIPTION AGREEMENT
(hereinafter referred to as the “Agreement”)
Unless otherwise specifically provided by separate written agreement duly signed by FS Systems and the Customer, this Agreement constitutes the agreement between FS Systems and Customer in respect of the provision by FS Systems to Customer of Dijital Services (all as defined below).
1. DEFINITIONS AND INTERPRETATIONS
1.1 Words and expressions capitalized in these Terms and Conditions shall have the meanings ascribed to them below.
“AFSA” means the Arbitration Foundation of Southern Africa, or its successors in title;
“Approved Quotation” means such quotation issued by FS Systems to Customer for Dijital Services;
“Approved PO” means an official Customer signed purchase order pursuant to an Approved Quotation for Dijital Services;
“Business Day” means any day other than a Saturday, Sunday or government recognized public holiday in South Africa;
“Business Hours” means between the hours of 08h00 and 17h00 on any Business Day;
“Control” means owning more than 50% (fifty percent) of the issued share capital or having the legal power to direct or cause direction of the general management and policies of the company in question;
“Customer” means the party who affixed its name and signature to the Customer On-boarding Form;
“Customer On-boarding Form” means the document headed “Customer On-Boarding Form” completed by Customer to which this Agreement acts as an annexure;
“Customer Equipment” means such Equipment owned by Customer identified to be measured by Dijital Sensors pursuant to any Individual Agreement;
“Customer Environment” means the environment in which Customer Equipment is situated;
“CPI” means the average year-on-year percentage change in the Consumer Price Index for all urban areas as published by the Statistical News Release compiled by Statistics South Africa (or its successors in title) for the preceding 12 (twelve) months;
“Data” means any and all data provided by or on behalf of FS Systems, whether belonging to FS Systems or any other party, which is delivered to Customer via the Dijital Platform;
“Database” means the database(s) accessed through the Dijital Platform which stores data recordings relating to, inter alia, the condition monitoring/ environmental health status of Customer Equipment or Customer Environment;
“Dijital Sensors” means the Dijital monitoring and tracking device installed on Customer Equipment or in the Customer Environment for the purposes of providing the Dijital Services, as set out in this Agreement.
“Dijital Services” means the provision of various tracking and monitoring services including but not limited to the information provided in respect of the condition monitoring/ environmental health status of Customer Equipment via the Dijital Sensors and Dijital Software;
“Dijital Software” means the proprietary software modules and applications developed and/or licensed by FS Systems (as the case may be), as amended from time to time, and any successor software modules, applications and related documentation and includes all upgrades and updates thereto;
“Dijital System” means system incorporating the Dijital Software and Database made available by FS Systems to Customer via the Dijital Platform;
“Dijital Platform” means the Dijital web-based platform developed and maintained by FS Systems to which Users shall be granted access;
“Documentation” means any technical, instructional or supplementary material related to the Dijital System and/or the Dijital Sensors, as the case may be, that is provided or published by FS Systems;
“Effective Date” means in respect of any and each Individual Agreement, the date upon which an Approved PO is received and accepted by FS Systems;
“Executives” means those Personnel of the Parties holding the highest levels of office and who have been delegated the rights to make decisions in respect of matters pertaining to this Agreement;
“Fees” means the total fees and charges payable by Customer to FS Systems in accordance with this Agreement, comprising the Monthly Fees and the Unfront Fees (if so applicable);
“Individual Agreement” means each individual and separable agreement entered into between FS Systems and Customer, constituted upon the issuance by FS Systems of an Approved Quotation and the receipt by FS Systems from Customer of an Approved PO;
“Licence” means the licence granted by FS Systems to Customer in terms of clause 4 below;
“Monthly Fees” means the fees and charges specified under any and each Individual Agreement and payable by Customer to FS Systems in respect of the Licence, the Dijital Sensors and/or the Dijital Services (as the case may be) as set out in an Individual Agreement, as specified on each applicable Approved Quotation;
“FS Systems” means FS Systems Proprietary Limited (registration number: 2015/547948/07), a private company duly incorporated in accordance with the laws of the Republic of South Africa;
“FS Systems IP” means all intellectual property rights owned by FS Systems subsisting anywhere in the world, which is any way capable of protection in law, including and without limitation, trademarks, domain names, copyright, patents, designs, confidential information and all proprietary rights in and to the ownership of any idea, discovery, art, work, design, concept, technique or improvement, industry information, know-how, system, audio and video files, methodology, data model, computer software, computer source code and object code, report, correspondence, documentation, flow chart, database, table calculation, spreadsheet, schematic plan, photograph, presentation or invention (whether patented or not) and any other rights of a similar nature which exist now or will in the future exist, by FS Systems from time to time, and whether registered or not;
“Losses” means all losses, liabilities, expenses, damages and related compensation that may arise from any claim, demands and all related costs, expenses (including legal fees and disbursement costs of investigation, litigation, settlement and judgement), fines, interest and penalties, of any nature whatsoever (including but not limited to legal costs on the scale between attorney and own client;
“Parties” means both FS Systems and Customer, and “Party” shall be construed as either one of them, as the context may require;
“Personnel” means any director, employee, agent, consultant, contractor or other representative of the Parties;
“Personal Information Laws” means any applicable laws in place, now or in future, in the jurisdiction in which the Dijital Services are provided;
“POPI” means the Protection of Personal Information Act;
“Rand” means South African Rand;
“Reports” means any reports developed for or delivered to Customer through the Dijital System;
“Services” means the services to be provided by FS Systems to Customer, comprising the Dijital Sensors and the Dijital Services, as may be amended from time to time;
“Third Party Software” means each third party software components, modules or libraries from third party providers in order to run the Dijital Platform;
“Third Party Agreement” means each agreement entered into between FS Systems and third parties for the provision of either Third Party Software or Third Party Services;
“Third Party Services" means each service provided by third parties ancillary to the provision of Dijital Services;
“Upfront Fee” means such fee as stipulated in an Approved Quotation (as the case may be) to be payable upfront for activation of the Dijital Services;
“User” means those Personnel members of Customer who are authorized by Customer to use the Dijital System via the Dijital Platform; and
“VAT” means Value-added Tax;
1.2 In this Agreement:
1.2.1 references to a statutory provision includes any subordinate legislation made from time to time under that provision and includes that provision as modified or re-enacted from time to time;
1.2.2 words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial or juristic persons and vice versa;
1.2.3 references to a “person” include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
1.2.4 if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
1.2.5 any definition, wherever it appears in this Agreement, shall bear the same meaning and apply throughout this Agreement unless otherwise stated or inconsistent with the context in which it appears;
1.2.6 if there is any conflict between any definitions in this Agreement then, for purposes of interpreting any clause of the Agreement, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in the Agreement;
1.2.7 where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
1.2.8 any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
1.2.9 the use of any expression covering a process available under South African law (such as but not limited to a winding-up) shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction;
1.2.10 references to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT;
1.2.11 the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word "including" is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
1.2.12 the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this.
1.2.13 each of the provisions of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting or preparation of the Agreement (i.e. the contra proferentem rule), shall not apply.
2.1 FS Systems provides Dijital Sensors and makes related information available to its customers through the Dijital Platform.
2.2 Customer wishes to gain access to the Dijital System and make use of the Dijital Sensors and Dijital Services provided by FS Systems in order to inter alia track the status of its critical equipment or environmental data (including inter alia temperature, humidity, flood, air quality data) from its sites (the “Purpose”).
2.3 The Parties hereby record their agreement in respect of the aforementioned in writing.
3. COMMENCEMENT AND DURATION
3.1 This Agreement shall commence on the Effective Date and shall continue indefinitely unless terminated in accordance with its terms.
3.2 For the sake of clarity, thid Agreement is a master agreement and the terms and conditions of this Agreement shall apply to each and every Individual Agreement.
3.3 Either Party may terminate this Agreement or any Individual Agreement with 30 (thirty) day’s notice to the other Party in writing.
4. GRANT AND NATURE OF LICENCE
4.1 Subject to clause 5 and the terms and conditions of this Agreement, FS Systems hereby grants Customer a non-transferrable, non-exclusive, limited, non-sub licensable licence to access the Dijital System and the Dijital Software in accordance with the terms and conditions set forth in this Agreement.
4.2 FS Systems hereby grants Customer and its Users the right to access and use the Dijital Platform, provided that FS Systems shall at all times retain ownership of the Dijital Platform;
4.3 Customer is authorized to access the Dijital System and the Dijital Platform solely for the Purpose.
4.4 The rights granted to Customer in terms of this Agreement are personal to Customer and limited to the Dijital Platform, any enhancements, upgrades, later releases, or versions.
5. RESTRICTIONS OF USE
5.1 Customer shall not –
5.1.1 modify, translate or create derivative work based on the Dijital System and/or the Dijital Software, nor reverse assemble, decompile or reverse engineer the Dijital System and/or the Dijital Software, whether in whole or in part, or otherwise attempt to derive the source code, object code, underlying ideas, algorithms, file formats or programming of the Dijital System and/or the Dijital Software, nor shall it permit, whether directly or indirectly, any third party to do so;
5.1.2 Grant any other party besides Customer and its Users access to the Dijital System, whether directly or indirectly;
5.1.3 Remove, delete or obscure any copyrights or trademarks or other marks or proprietary notices associated with or generated by the Dijital System and/or Djital Software.
6. THE SERVICES
6.1 In consideration for the payment of the Fees, FS Systems shall, during the currency of this Agreement, provide the Dijital Sensors and Dijital Services in accordance with the terms of this Agreement and each Individual Agreement.
7. DIJITAL SENSORS
7.1 Subject to the payment of the Upfront Fee as set out in an applicable Approved Quotation (as the case may be), FSS shall supply and install Dijital Sensors on such Customer Equipment and/or at such locations as set out in such Approved Quotation, accordance with the provisions of this clause 7.
7.2 Risk of ownership of Dijital Sensors shall pass to Customer immediately upon installation thereof, provided that (for the avoidance of doubt) title shall remain vested in FS Systems at all times.
7.3 Subject to the compliance of the provisions of this clause 7, and specifically the provisions of clause 7.4, FS Systems shall warrant the Dijital Sensors and installation thereof for a period of 12 (twelve) months calculated from the date of installation thereof, fair wear and tear excluded.
7.4 Notwithstanding the foregoing, FS Systems shall be under no obligation to repair or replace Dijital Sensors and/or to provide Dijital Services in respect of the Customer Equipment on which the Dijital Sensors in question are installed in the event that:
7.4.1 Customer, or any third party alters, modifies, misuses or tampers with, or attempts to repair the Dijital Sensors under any circumstances without FS Systems’ prior written consent; or
7.4.2 the Dijital Sensors suffer damage, whether intentional or otherwise, due to water, collisions, vandalism or any damage which would reasonably be considered to be an “act of god” including, but not limited to, fire or lightning strike.
7.5 Notwithstanding anything to the contrary contained in this Agreement, FS Systems shall be relieved of its obligations under this Agreement, without prior notification to Customer, during any period in which one or more Dijital Sensors is not functioning due to reasons outside of FS Systems’ reasonable control.
8. CUSTOMER OBLIGATIONS
8.1 To enable FS Systems to provide the Dijital Services, Customer agrees to provide reasonable assistance, liaison, input, support and co-operation and shall, to the extent reasonably required by FS Systems and at Customer’s cost –
8.1.1 comply with all reasonable policies, procedures and instructions of FS Systems in respect of the provision of the Dijital Services pursuant to this Agreement.
8.1.2 take commercially and technically reasonable measures to ensure that:
220.127.116.11 the security or integrity of FS Systemss’ system or software (including the Dijital Software) is not compromised on the back of any access thereto by Customer or its Personnel; and
18.104.22.168 it and its Personnel comply with such reasonable security measures as FS Systems may impose from time to time.
8.1.3 ensure that all persons that make use of the Dijital System are trained to a reasonable level of proficiency to do so.
9. CUSTOMER DATA
9.1 Ownership in all Customer Data, whether under its control or not, shall continue to vest in Customer.
9.2 Customer’s Data in the possession of FS Systems, or to which FS Systems may have access to during the currency of this Agreement, may not be used by FS Systems for any purposes whatsoever other than as may be specifically required to enable FS Systems to comply with its obligations in terms of this Agreement.
9.3 Notwithstanding the foregoing, Customer hereby expressly consents to FS Systems’s use of Customer’s Data for the purposes of improving its services offerings to its customers in general, provided that FS Systems complies with any applicable privacy and protection of Personal Information Laws
9.4 Both Parties shall take such reasonable precautions (having regard to the nature of their obligations in terms of this Agreement), to preserve the integrity of Customer Data and to prevent any unauthorized access, corruption or loss of such data.
10. CUSTOMER WARRANTIES
10.1 Customer warrants that –
10.1.1 it has not been induced to enter into this Agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in this Agreement;
10.1.2 by entering into this Agreement, Customer is not acting in breach of any other agreement to which Customer is a party;
10.1.3 it will comply with its obligations under all applicable laws in respect of the Dijital Services;
10.1.4 its use of Customer Data provided by FS Systems does not and will not infringe the intellectual property rights of any other person or breach any confidentiality obligations owed by Customer or any data protection laws,
and hereby indemnifies and holds FS Systems harmless (on a Rand for Rand basis) from any claim or damages by any third party as a result of the breach of these warranties, including all legal costs incurred on an attorney-and-own-client basis.
11. FEES AND PAYMENT
11.1 Unless indicated otherwise, Customer shall be liable to pay the Upfront Fee upon acceptance of an Approved Quotation.
11.2 Customer shall be liable for and shall pay the Monthly Fees in respect of the Dijital Services supplied pursuant to this Agreement monthly in arrears.
11.3 All invoices in respect of any additional fees and charges shall be paid by Customer on presentation of FS Systems’s invoice.
11.4 All fees and charges referred to in this Agreement are exclusive of Value Added Tax, rates or other levies payable in respect of the Dijital Services, all of which shall be payable by Customer in addition to the Fees or charges stipulated herein.
11.5 All payments in terms of or arising from this Agreement shall be made by way of electronic funds transfer, in Rand, to FS Systems’s nominated bank account, free of conditions, set off, bank exchange or any other deduction and Customer shall not be entitled to withhold payment for any reason whatsoever.
11.6 Where payment of any amount due is not made on a due date, then FS Systems shall be entitled to: -
11.6.1 without prejudice and in addition to any and all rights to which it may be entitled in terms hereof or at law, be entitled to charge interest to Customer on such unpaid amount at a rate equal to Prime plus 2% (two percent) per annum, calculated from the date payment was due until the date of actual payment; and
11.6.2 without prejudice to any other rights or remedy it may have, forthwith and without notice suspend the provision of Dijital Services or such portion thereof as FS Systems in its sole discretion elects until all payments in arrears have been paid in full.
11.7 Subject to clause 11.6.1, the Monthly Fees shall increase annually at CPI, which escalation shall take effect on each anniversary date of the Effective Date.
11.7.1 In the event that FS Systems elects to increase the Fees by more than CPI, it shall advise Customer accordingly no later than 20 (twenty) Business Days prior to each anniversary of the Effective Date, and should the Customer disagree with the Fees being increased by more than CPI, it shall be entitled to terminate this Agreement in writing on 20 (twenty) Business Day’s notice to FS Systems.
11.8 In addition to the charges indicated in this Agreement, FS Systems will be entitled to charge Customer additional charges on a time and materials basis, which shall be agreed to between the Parties from time to time, for time which, in the reasonable opinion of FS Systems, it spends in relation to or on account of any of the following –
11.8.1 data restoration and/or re-establishment or other assistance required by Customer which does not result from inherent errors in the Dijital Software or errors, faults or interruptions in the Dijital Services;
11.8.2 unauthorized use of the Dijital Services;
11.8.3 providing any other services, including services or work required as a result of any Customer modifications to the Dijital Software in breach of the provisions of this Agreement; or;
11.8.4 providing any services outside the scope of this Agreement.
12. FS SYSTEMS WARRANTIES
12.1 FS Systems hereby excludes and disclaims all warranties, whether express or implied, statutory or otherwise, except those warranties expressly made in this Agreement. Without limiting the foregoing, FS Systems disclaims:
12.1.1 any implied warranties of satisfactory quality and fitness for a particular purpose;
12.1.2 all warranties in respect of third party software applications provided pursuant to this Agreement.
13. INTELLECTUAL PROPERTY
13.1 All rights, title and ownership of any code, forms, algorithms, methodologies, frameworks or materials developed by or for FS Systems or Customer independently and outside of this Agreement and provided during the course of this Agreement (“Existing Material”) shall remain the sole property of the Party providing the Existing Material.
13.2 FS Systems has created, acquired or otherwise obtained rights in the FS Systems IP and, notwithstanding anything contained in this Agreement, as between the Parties, FS Systems will own all rights, title and interest, including all rights under copyright, patent and other intellectual property laws, in and to the FS Systems IP.
13.3 Where FS Systems utilizes any FS Systems IP in connection with FS Systems’s performance under this Agreement, the FS Systems IP shall remain the property of FS Systems and Customer shall acquire no right or interest therein.
13.4 Unless otherwise agreed in writing, with respect to any development, adaption, enhancement, modification, adjustment, deliverable or other change to any FS Systems IP which may be developed by FS Systems, FS Systems shall be the owner of all such derivative works.
14. CONFIDENTIAL INFORMATION
14.1 Each Party (the “Receiving Party”) must treat and hold as confidential all information which it may receive from the other Party (the “Disclosing Party”) or which becomes known to it during the currency of this Agreement.
14.2 The confidential information of the Disclosing Party shall include –
14.2.1 all software and associated material and documentation, including the information contained therein;
14.2.2 customer Data;
14.2.3 all information relating to –
14.2.4 the Disclosing Party’s past, present or future research and development;
14.2.5 the Disclosing Party’s business activities, pricing, products, services, customers as well as the Disclosing Party’s technical knowledge and trade secrets; and
14.2.6 the terms of this Agreement.
14.3 The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s confidential information –
14.3.1 it shall only use the confidential information for the purposes of complying with its obligations under this Agreement;
14.3.2 it shall only make the confidential information available to those of the Receiving Party’s Personnel who are actively involved in the execution of the Receiving Party’s obligations under this Agreement and then only on a “need to know” basis;
14.3.3 it shall initiate internal security procedures reasonable acceptable to the Disclosing Party to prevent unauthorized disclosure and will take all practical steps to impress upon those Personnel who need to be given access to confidential information, its secret and confidential nature;
14.3.4 subject to the right to make the confidential information available to its Personnel under clause 14.3.2, it shall not at any time use any confidential information of the Disclosing Party or directly or indirectly disclose any confidential information of the Disclosing Party to any third parties.
14.4 The Receiving Party hereby indemnifies the Disclosing Party and holds it harmless against any loss or damage, which the Disclosing Party may suffer as a result of a breach of this clause 14 by the Receiving Party or the Receiving Party’s Personnel.
14.5 This clause 14 is severable from the remainder of this Agreement and shall remain valid and binding on the Parties, notwithstanding any termination, for a period of 5 (five) years after the effective date of termination.
15.1 Neither Party shall during the currency of this Agreement or for a period of 12 (twelve) calendar months following termination, directly or indirectly solicit, offer employment to, employ or contract in any manner with any Personnel of the other Party who were involved in the implementation or execution of this Agreement unless otherwise agreed by both Parties in writing.
16. LIMITATION OF LIABILITY
16.1 Notwithstanding any to the contrary contained in this Agreement, the maximum cumulative liability of FS Systems in terms of this Agreement shall never exceed the aggregate of all Fees received in terms thereof, and shall be limited accordingly.
16.2 In no event shall FS Systems be liable for any direct, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including, without limitation, loss of profits, loss of goodwill, lost of damaged data or software, loss of use downtime or costs of substitute products) arising from this Agreement.
16.3 This clause 16 shall survive termination of this Agreement.
17. BREACH AND TERMINATION
17.1 Should either Party (the “Defaulting Party”) –
17.1.1 commit a material breach of this Agreement and fail to remedy such breach within 14 (fourteen) calendar days of having been called on in writing by the other Party to do so;
17.1.2 effect or attempt to effect a compromise or composition with its creditors;
17.1.3 be provisionally or finally liquidated or placed under judicial management; or
17.1.4 cease or threaten to cease to carry on the Defaulting Party’s normal line of business or commit any act or omission which would, in the case of an individual, be an act of insolvency in terms of the Insolvency Act, 1936 (as amended),
then the other Party (the “”) may, in its discretion and without prejudice to its rights in this Agreement or in law, either (i) claim specific performance of the Defaulting Party’s obligations; or (ii) terminate this Agreement, whether in whole or in respect of the User to which the breach relates, if applicable, on written notice to the Defaulting Party, in which event such termination shall be without prejudice to, and shall not constitute a release of waiver of, any claims which the Innocent Party may have for damages against the Defaulting Party occasioned by the termination of this Agreement.
18. EFFECT OF TERMINATION
18.1 On termination of this Agreement for any reason, all amounts due to FS Systems for Dijital Services rendered prior to termination shall become due and payable.
18.2 On termination, cancellation or expiry of this Agreement –
18.2.1 the provision of all Dijital Services shall forthwith cease;
18.2.2 Customer shall cease to use the Dijital System;
18.2.3 Customer shall, unless agreed otherwise by both Parties in writing, be obliged to return all Dijital Sensors installed in its environment and/or on Customer Equipment;
18.2.4 Customer will deliver to FS Systems, or at FS Systems’s option, destroy all originals and copies of confidential information and proprietary materials of FS Systems in its possession or under its control.
18.2.5 the expiry or termination of this Agreement shall not affect the enforceability of the terms which are intended to operate after such expiry or termination.
18.3 Notwithstanding anything else to the contrary contained in this Agreement, FS Systems shall have the right to terminate this Agreement in the event that any Third Party Agreement pursuant to the provision of any Third Party Services is cancelled or terminated for any reason whatsoever.
19.1 The Parties undertake to co-operate with each other in all respects to give effect to this Agreement according to the intent and purpose.
20. DISPUTE RESOLUTION
20.1 Any dispute which arises between the Parties shall, in the first instance, be referred to the designated Executives of the Parties, or alternates appointed by them, who will use their best endeavours to resolve the dispute within 14 (fourteen) Business Days of the dispute having been referred to them.
20.2 Should the Executives be unable to resolve a dispute in accordance with the foregoing, such dispute will be finally resolved in accordance with the rules of AFSA by an arbitrator or arbitrators appointed by it.
20.3 Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party.
20.4 Nothing in this Agreement shall preclude either Party from obtaining interim or injunctive relief on an urgent basis from a court of competent jurisdiction.
20.5 The arbitration referred to in clause 20.2 shall be held –
20.5.1 In Cape Town in the English language; and
20.5.2 Immediately and with a view to it being completed within 21 (twenty one) calendar days after it is demanded.
20.6 The Parties irrevocably agree that the submission of any dispute to arbitration is subject to the Parties’ rights of appeal. Either Party may appeal the arbitration ruling by giving written notice to the other Party to the arbitration within 20 (twenty) calendar days of the ruling being handed down. The appeal shall be dealt with in accordance with AFSA by a panel of 3 (three) arbitrators appointed by AFSA.
20.7 The Parties irrevocably agree that on expiry of the 20 (twenty) calendar day period for appeal or the handing down of the ruling of the appeal panel,, as the case may be, as contemplated in clause 20.6, the decision in arbitration proceedings –
20.7.1 shall be final and binding upon the Parties;
20.7.2 shall be carried into effect; and
20.7.3 may be made an order of any court of competent jurisdiction.
20.8 The cost of any reference to arbitration will be borne by the unsuccessful Party, unless otherwise determined by the Parties or the arbitrator, irrespective of which Party referred the dispute to arbitration.
20.9 This clause 20 is severable from the rest of this Agreement and shall remain valid and binding upon the Parties notwithstanding termination of this Agreement.
21. DOMICILIUM AND NOTICES
21.1 Each party chooses its domicilium citandi et executandi (its domicile for the purpose of being served summons and execution levied) for all purposes under this Agreement the physical address as specified for the Party as set out on the cover page to this Agreement.
21.2 Each Party may by giving written notice to the other Party, change the address set out herein to any address in the Republic of South Africa, provided that the change shall only take effect 14 (fourteen) calendar days after delivery of the written notice.
21.3 Notice shall be deemed to have been given if delivered by hand to a responsible person during Business Hours to the designated physical address, on the date of delivery.
21.4 If a notice or communication is actually received by a Party, adequate notice or communication shall have been given.
22. FORCE MAJEURE
22.1 Neither Party shall be liable for any failure to fulfil its obligations under this Agreement if and to the extent such failure is caused by any circumstances beyond its reasonable control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, pandemic, government restrictions or acts of God.
22.2 Should any event of force majeure arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) calendar days of the notice to negotiate in good faith alternative methods of fulfilling its obligations under this Agreement, if any. In addition FS Systems shall continue to provide and Customer shall continue to pay for those Dijital Services not affected by the event of force majeure.
22.3 Should either Party be unable to fulfil a material part of its obligations under this Agreement for a period in excess of 60 (sixty) calendar days due to circumstances or force majeure, the other Party may at its sole discretion cancel this Agreement forthwith by written notice.
23. ASSIGNMENT AND SUBCONTRACTING
23.1 Neither Party shall be entitled to cede, assign, delegate or otherwise transfer (other than an assignment by FS Systems to any successor of all or substantially all of the business or assets of FSS) the benefit or burden or all or any party of this Agreement without the prior written consent of the other Party,
23.2 Notwithstanding the provisions of clause 23.1, it is expressly recorded that FS Systems may cede and delegate all rights and obligations in terms of this Agreement to an Affiliate without the prior written consent of Customer, provided that FS Systems shall notify Customer of such event within a reasonable time of such event occurring.
23.3 FS Systems may sub-contract its obligations under this Agreement, provided that FS Systems shall remain liable for performance of such subcontractor. FS Systems shall not be required to disclose the terms or payment provisions of any sub-contract entered into in respect of the Dijital Services.
24. RELATIONSHIP AND DUTY OF GOOD FAITH
24.1 Nothing in this Agreement shall be construed as creating a partnership or employment relationship between the Parties and neither Party shall have any authority to incur any liability on behalf of the other or to pledge the credit of the other Party.
24.2 The Parties shall at all times owe each other a duty of good faith and shall, in all dealings with each other and in respect of the Dijital Services act according to such standard.
25. DATA PROTECTION
25.1 Customer acknowledges that all information to provided to FS Systems by it is done so freely for the specific purpose as agreed to between Customer and FS Systems.
25.3 Customer agrees to receiving further and applicable marketing material from time to time, and should Customer no longer wish to receive said further and applicable material, then Customer is entitled to instruct FS Systems to opt-out accordingly, as well as to destroy any personal and identifiable data held and/or under the control of FS Systems.
26. PRESS RELEASES
26.1 FS Systems reserves the right to make announcements, press releases, publications, presentations and other public statements that reference Customer as a customer using the Dijital Services without Customer’s prior written consent, provided that FS Systems does not disclose Customer’s confidential information in the course of such publicity or misrepresent Customer’s relationship with FS Systems.
27.1 This Agreement constitutes the entire agreement between the Parties in respect of the subject matter of this Agreement.
27.2 No amendment or modification to this Agreement shall be effective unless reduced to writing and signed by authorized signatories of both Parties.
27.3 No granting of time or forbearance shall be, or deemed to be, a waiver of any term of this Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach.
27.4 If the whole or any part of a term of this Agreement is void or voidable by either Party or unenforceable or illegal, the whole or that part of that term (as the case may be) shall be severed, and the remainder of this Agreement shall have full force and effect, provided the severance does not alter the nature of this Agreement between the Parties.
27.5 This Agreement shall be governed and construed according to the laws of the Republic of South Africa and the Parties submit to the exclusive jurisdiction of the South African courts.
Last updated 11.10.2021