INTERPRETATION AND DEFINITIONS 

Unless a contrary intention clearly appears – 

the following terms shall have the meanings assigned to them in this clause, namely – 

“Agreement” means this agreement and all annexures and schedules hereto; 

“Business Day” means any other day other than a Saturday, Sunday or public holiday in South Africa; 

“Client” means the Client as defined in the SOW who agrees that it is bound by the terms and conditions in this agreement and will remunerate Moditar for the services as set out herein and in the SOW;

“Confidential Information” means – 

any information of a confidential nature, which has been or may be received by either Party from the other after the Signature Date, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas; 

any Intellectual Property; 

any dispute between the Parties resulting from, whether directly or indirectly, this Agreement; 

“Data” means any data in relation to the Client which the Service Provider maintains, acquires or has lawful access to, whether as part of a database or otherwise;

“Intellectual Property” means – 

the copyrights, trademarks, designs or models, trade patterns, trade names and any other type of intellectual property of either Party (including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software), whether owned or used by a Party and whether registered or unregistered as at the Signature Date; and any Data related to the Moditar information technology systems and services; 

“Licence Fee” means the licence fee payable by the Client to the Service Provider, as set out in the SOW document;

“Parties” means the Client and the Service Provider and a reference to “Party” shall mean either one of them as required by the context; 

“Personal Information” bears the meaning assigned to it in the Protection of Personal Information Act, 2013; 

“SOW” means the agreement which is signed conjunction with this agreement, which is deemed inextricably linked to this agreement and sets out the Scope of Work to be provided by the Service Provider, the technical requirements that the Service Provider system must achieve, and the terms of remuneration from the Client therefore;

“Services” means the system services set out in SOW, and a reference to “Service” shall mean some or all of them, as the context may indicate; 

“Service Fees” means the fees payable by the Client to the Service Provider as described in SOW document; 

“Service Provider” means Modern IT Architects Proprietary Limited, a private company incorporated under the company laws of South Africa, with its registered address situated at 

7 Fairford Downs

Cotswold Downs 

95 Inanda Road

Hillcrest

3610

 

“Service Request” means a written request by the Client for the provision of a Service or Services by the Service Provider; 

 “Specified Purposes” means the following services specified in the SOW document 

 “Tax Invoice” means a tax invoice in the form required by the applicable VAT legislation and which identifies the amount and manner of calculation of the VAT payable in respect of that tax invoice; 

“Territory” means South Africa; 

“Term” means the period during which this Agreement is of force and effect, as determined in accordance with the SOW document; 

“VAT“ means Value-Added Tax levied in terms of the applicable VAT legislation; 

when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday in South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday in South Africa; 

expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;

the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as it is expressly provided 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; 

any reference in this Agreement to any other agreement or document or legislation shall be construed as a reference to such other agreement or Page 7 document or legislation as same may have been, or may from time to time be, amended, varied, novated, updated or supplemented.

 

2. INTRODUCTION

   1. It is recorded that the Service Provider provides the Services as set out in the SOW, and the Client wishes to make use of the Services.

   2. The Parties have therefore entered into this Agreement to give effect to the Services set out in the SOW and to regulate matters ancillary thereto.

   3. The Client and Service Provider acknowledge that upon the signing of the SOW, they will be bound in terms of that agreement and the terms and conditions as set out herein which are available for viewing on the Service Provider’s website.

 

3. DURATION

   1. This Agreement shall commence on the Signature Date; and endure and be of force and effect until terminated by either Party with 3 (Three) months’ notice provided in writing or in accordance with the breach clause as set out below.

 

4. SERVICE FEES

   1. In consideration for the provision of any Service, the Client will pay the Service Provider the fees set out in Annexure A – Scope of Work. All prices are reflected exclusive of the applicable VAT and in South African Rand.

   2. The payment terms for the Service Fees are as set out in the SOW.

   3. The Service Provider reserves the right to change any fees referred to in clause 4.1 in accordance with the Consumer Price Index data as and when such data is released and at any time thereafter.

   4. All payments to be made by the Client in terms of this Agreement shall be made into the Service Provider’s Bank Account by way of electronic funds transfer; and without set-off or deduction of any kind.

   5. The Client is obligated to make payment of the Service Fees to the Service Provider, within 30 days upon presentation to the Client of the applicable Tax Invoice.

 

5. SUPPORT TO BE PROVIDED BY THE SERVICE PROVIDER – RESPONSE TIMES

 

1. In addition to Services set out in the Scope of Work, the Service Provider will endeavour to provide as close as reasonably possible, the following support to the client  

1. Telephonic support: 8:00 A.M. to 17:00 P.M. Monday to Friday. 

2. Email support: Monitored 8:00 A.M. to 17:00 P.M. Monday to Friday. Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day.

3. Assistance to be provided within 48 hours during the business week.

2. Service Request Response Times:

1. The Service Provider will respond to service-related incidents and/or requests submitted by the Customer within the following time frames: 

• 0-4 hours (during business hours) for issues classified as High priority.

High Priority will be deemed to be any issue which completely halts the Client’s functionality.

• Within 12 hours for issues classified as Medium priority.

Medium Priority will be deemed to be any issue that hinders the Client’s functionality but does not the completely halt the Client’s functionality.

• Within 24 working days for issues classified as Low priority.

Low Priority will be deemed to be any issue that does not affect the day to day functionality of the Client.

• Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.

2. The Client acknowledges that these time periods relate only to the Service Provider providing a response to the Client and no undertaking or guarantee is made in any way regarding when the Service-related incident will be resolved.

3. The parties agree that the Service Provider will only be obliged to act in accordance with clause 5.2.1 if the Client has made timeous payment of all Tax Invoices.

3. The Service Provider will endeavour to provide as much notice as is reasonably possible with regards to maintenance work that it may deem necessary in regard to the Service.  

4. The Client acknowledges that the response times and support as detailed above are not a warranty or undertaking that the issue reported by the Client will be resolved within the response times set out. They are merely a time frame within which the Service Provider will respond to the Client.

5. The Service Provider undertakes to take all reasonable steps to determine the fault of the issue reported by the Client and to resolve the issue if it lies with the Service Provider’s SOW provided to the Client, as soon as reasonably possible.

MODITAR (SERVICE PROVIDER) Help Desk – 08:00 – 17:00 

Note: The elapsed escalation hours refer to working hours, i.e. 08h00 to 17h00, Monday to Friday excluding Public Holidays.  This implies that if a call is raised at 16h00 on a Monday, then the two-hour escalation mark is 09h00 on Tuesday morning.

6. CLIENT’S OBLIGATIONS

   1. The Client is to make payment of Tax Invoices within 30 days upon presentation of same to it by the Service Provider.

   2. The Client acknowledges that the Service Provider may require the Client to provide it with certain information in order to resolve issues that are or may compromise the Service. This information may include but is not limited to, Client data, workflow and internal system information that may relate to the service as set out in the SOW.

   3. The Client undertakes to take all steps necessary to provide such information requested by the Service Provider as soon as possible.

   4. The parties agree that in the event that the Client does not provide requested information in a timeous fashion, the Service Provider cannot be held liable in any way for any damages or loss that may be caused by the interruption of the Service provided.

   5. The parties further agree that the Client shall have no right to any expectation of resolving any issue with the service if it has not provided to the Service Provider all information that has been requested of it. 

 

7. UNDERTAKINGS AND RESTRICTIONS 

   1. The Client unconditionally and irrevocably undertakes that, for the entire Term and thereafter, it shall – 

1. not be entitled to hold the Service Provider liable for any clerical errors that may occur in the invoicing details provided to it by the Service Provider; 

2. not be entitled to hold the Service Provider liable for any losses that it may suffer as a result of a failure of the Service Provider to provide the Services set out in the SOW.

3. not be entitled to hold the Service Provider liable for any damages or losses suffered as a result of the Service Provider losing any of the Client’s confidential information due to any form of hacking. Notwithstanding the aforementioned, the Service Provider undertakes to take all reasonable steps to protect the Client’s information from such risks;

4. take all necessary precautions to safeguard the Service Provider’s system information from unauthorised disclosure, reproduction or use at any time by any person or entity; 

5. not use the system of the Service Provider in a manner that may prejudice the rights, legitimate business interests, reputation or goodwill of the Service Provider; 

6. not at any time purport to create a claim, lien or encumbrance on the system of the Service Provider

 

8. OWNERSHIP OF THE INTELLECTUAL PROPERTY 

1. The Client unconditionally and irrevocably agrees that – 

   1. all right, title and interest in and to the Intellectual Property of the Service Provider vests in the Service Provider and is proprietary to it; 

   2. the Client shall not at any time, under any circumstances, acquire any right, title, or interest in or to the Intellectual Property of the Service Provider; and

2. The parties record that in the event that the Service Provider is provided with any Intellectual Property of the Client’s, it shall not under any circumstances share or divulge such information to any other party. This may be further elaborated upon in a Non-Disclosure Agreement entered into between the parties.

 

9. WARRANTIES BY THE CLIENT 

The Client unconditionally and irrevocably warrants that, as at the Signature Date – 

1. the Client is authorised to enter into and implement this Agreement; 

2. the entering into and implementation of this Agreement by the Client will not infringe the rights of any third party. 

 

10. EXCLUSION OF WARRANTIES BY THE SERVICE PROVIDER 

The Service Provider makes no warranties of any nature regarding the Data and/or any Service as set out in Annexure A, and (without limitation) expressly excludes – 

1. any implied warranty, including any warranties of quality or fitness for a particular purpose in relation to the Data and the Services; 

2. the accuracy or completeness of any Data. 

 

11. INDEMNITY 

Each Party (“the Indemnifier”) indemnifies (and shall keep indemnified) the other Party against all losses (including loss of profit and/or loss of reputation or goodwill), damages (including incidental, special or consequential damages), costs (including legal costs on an attorney and own client basis, collection charges and costs of any appeals), interest and expenses which the other Party may sustain, suffer or incur as a result of any claim (contingent or otherwise) arising out of any negligent or wilful act or omission on the part of the Indemnifier, its employees, agents, appointees or authorised representatives. 

12. BREACH 

If any Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 7 days of receipt of written notice requiring it to do so, then the aggrieved Party shall be entitled without notice, in addition to any other remedy available to it at law or under this Agreement, including obtaining an interdict, to cancel this Agreement or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party’s right to claim damages. 

 

13. TERMINATION RIGHTS 

Either party shall be entitled to terminate this Agreement by giving the other party 3 (Three) months written notice to such effect. 

 

14. GOVERNING LAW AND SUBMISSION TO JURISDICTION 

1. This Agreement and any matter arising from this Agreement shall be governed by and interpreted in accordance with the substantive laws of South Africa. 

2. Subject to the provisions of clause 14.1, the Parties hereby consent and submit to the exclusive jurisdiction of the South Gauteng High Court in respect of any litigation arising in terms of this Agreement. 

 

15. ARBITRATION 

1. Save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to – 

   1. the interpretation of; or 

   2. the carrying into effect of; or

   3. any of the Parties’ rights and obligations arising from; or

   4. the termination or purported termination of or arising from the termination of; or 

   5. the rectification or proposed rectification of, 

this Agreement, or out of or pursuant to this Agreement, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be submitted to and decided by arbitration. 

2. That arbitration shall be held – 

   1. with only the Parties and their representatives present thereat; 

   2. at Johannesburg, Gauteng. 

3. It is the intention that the arbitration shall, where possible, be held and concluded in 21 Business Days after it has been demanded. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration. 

4. The arbitration shall be subject to the arbitration legislation for the time being in force in South Africa.

5. The arbitrator shall an impartial admitted attorney whether practising or non-practising of not less than 10 years standing appointed by the Parties or, failing agreement by the Parties within 14 days after the arbitration has been demanded, at the request of either of the Parties shall be nominated by the President for the time being of the KwaZulu-Natal Law Society (or its successor body in KwaZulu-Natal), upon which the Parties shall forthwith appoint such person as the arbitrator. If that person fails or refuses to make the nomination, either Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so. 

6. The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential. 

7. The arbitrator shall be obliged to give his award in writing fully supported by reasons. 

8. The provisions of this clause are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason. 

9. The arbitrator shall have the power to give default judgment if any Party fails to make submissions on due date and/or fails to appear at the arbitration. 

10. The arbitrator’s award shall be final and binding on the Parties. 

11. The costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the hearing shall be borne by the Parties in equal shares and shall be recoverable, as costs in the cause under the provisions of any award. 

12. The Parties, together with the arbitrator will agree from time to time on the arbitrator’s remuneration, which will be paid by the Parties in equal shares, upon receipt of invoices from the arbitrator. 

 

16. ADDRESS FOR SERVICE 

1. The Parties choose the addresses as set out in the SOW for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature – 

2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by e-mail. 

3. Any Party may by notice to any other Party change the physical address chosen in clause 22.1 to another physical address where postal delivery occurs in South Africa or its postal address or e-mail address, provided that the change shall become effective on the 7th Business Day from the receipt of the notice by the addressee. 

4. Any notice to a Party – 

   1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen in clause 16.1 to which post is delivered shall be deemed to have been received on the 7th Business Day after posting (unless the contrary is proved); 

   2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen in clause 16.1 shall be deemed to have been received on the day of delivery; or 

   3. sent by e-mail to its chosen e-mail address stipulated in clause 16.1, shall be deemed to have been received on the date of dispatch (unless the contrary is proved). 

 

5. Notwithstanding anything to the contrary herein contained 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 address. 

17 WHOLE AGREEMENT, NO AMENDMENT 

1. This Agreement constitutes the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any other discussions, agreements and/or understandings regarding the subject matter of this Agreement. 

 

2. No amendment or consensual cancellation of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). 

 

3. To the extent permissible by law, neither Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded in this Agreement. 

18 GENERAL 

1. 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 severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. 

 

2. This Agreement is deemed to be accepted by the Client and the Service Provider upon their signature of the SOW

1. Unless the Client provides the Supplier with written notice to the contrary, the Client gives the Supplier the right to use the Clients name and logo in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that the Client is a customer of the supplier.