- Unless otherwise agreed, the prevailing version of this Agreement will apply to each Order concluded with Cloudone. The terms of this Agreement will be incorporated into and form part of each such Order while this version of the terms remains valid. However, unless otherwise provided in the Order, the terms and conditions of any one Order shall not apply to any other Order.
- The terms of this Agreement shall be valid as from the date specified at the head hereof until replaced by Cloudone with amended or new standard terms. Such replacement will not affect the terms of any Orders already concluded prior to the date on which the replacement terms are specified by Cloudone to take effect, but the replacement terms will apply to all Orders concluded as from the date on which the replacement terms are specified to take effect.
- Insofar as any term and condition in the Order conflicts with the terms contained in this Agreement, the Order shall prevail.
Unless the contrary is clearly indicated, the following terms used in this Agreement shall have the following meanings:
- “Agreement” shall mean these terms together with the annexures attached to it (if any);
- “Authorised User” shall mean an individual who is duly authorised to use the Software;
- “Customer” shall mean the person or entity that has signed and submitted an Order involving the use of the Software;
- “Customer Data” means all data submitted to or generated using the Cloudone System by Customer;
- “Customer System” means the computer system used by Customer for the purposes of accessing the Cloudone System, comprising the equipment at the Premises and the software implemented on such equipment, including the Onsite Software, as well as the Connectivity;
- “Commencement Date” shall mean the date on which the Order becomes effective;
- “Confidential Information” shall mean any information of whatever nature, which has been, or may be obtained directly or indirectly by one Party hereto from the other Party hereto, whether in writing or in electronic format, or pursuant to discussions held between the Parties, or which can be obtained by examination, testing, visual inspection or analyses, including, without limitation a Party’s Know-How, all program code (including of the Software), product architecture, data file structures, interface and communications protocols and associated material and documentation (including the Documentation) and the information contained therein, all information relating to a Party’s past, present and future research and development or to a Party’s business activities, products, services, Customers, or to a Party’s technical knowledge, including, without limitation, all such Party’s Trade Secrets, as well as the terms and conditions of this Agreement, any information identified as confidential, and any other material which contain or otherwise reflect, or are generated or derived from any such information as is specified in this definition;
- “Connectivity” means the network access of the Customer System to the Cloudone System (including via third party data telecommunications networks) as may be specified by Cloudone, including the type and bandwidth of the relevant access circuit;
- “Documentation” shall mean the operating, reference, user and/or training manuals and other documents and materials relevant to the Software supplied to the Customer;
- “Error” means a failure of the Cloudone System or Software to conform in all material respects to the Documentation relevant thereto, if used in accordance with Cloudone’s instructions, but shall exclude all Excluded Errors;
- “Excluded Error” shall mean a problem arising from any of the following:
- the Customer System, Connectivity, Customer Data or any equipment or software not provided by Cloudone, including interoperation problems;
- accident, misuse, operator error, negligence or abuse or a failure to comply with the Documentation or Cloudone’s instructions;
- the failure by Customer to implement promptly any upgrade or any recommendation in respect of or as solution to faults advised by Cloudone;
- any breach by Customer of any of its obligations under this Agreement; or
- a Force Majeure Event;
No rule of construction that an agreement shall be interpreted against the party responsible for its drafting or preparation shall apply to this Agreement.
- “Expenses” shall mean all costs and expenses reasonably incurred by Cloudone in providing the Services to which such costs and expenses relate, including for travel, accommodation and subsistence;
- “Force Majeure Event” shall have the meaning ascribed to it in Clause 13;
- “Intellectual Property Rights” shall mean all rights in or to any present and future patents, trademarks, trade names, designs, design rights, copyright, together with all related source codes, inventions, trade secrets, rights to Confidential Information and all other rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same;
- “Know-How” means any and all concepts, ideas, methods, methodologies, procedures, processes, know-how, formulae, techniques, models (including, without limitation, asset management and other management, business, function, process, system and data models), templates, the generalised features of the structure, sequence and organisation of software and data files, user interfaces and screen designs, communications protocols, business processes and business rules, product architecture, data file definitions, structures, utilities and routines; and logic, coherence and methods of operation of systems that a Party has created, acquired or otherwise has rights in (including for Cloudone as may be incorporated in the Software or Documentation);
- “Minimum Term” means the minimum specified period of the Order commencing on the Commencement Date of the Order;
- “Software” means the software module which is downloaded and installed onto the Device of an Authorised User;
- “Device” means any device of a type suitable for implementation of the Software that is authorised for purposes of accessing the Software (whether on a monthly or ad hoc daily basis), including without limitation personal organizers, mobile cellular telephone handsets, tablets and other similar devices;
- “Onsite Software” means the software modules which are implemented onto the Customer System so as to facilitate access to the Cloudone System;
- “Order” shall mean an order or proposal by Cloudone or its Service Partner for the supply of the Cloudone system and services using the Software that has been duly accepted and signed by the Customer in accordance with the terms thereof;
- “Software” shall mean the computer programs forming part of the Cloudone system made accessible to Customer inclusive of the data file structures provided in connection therewith;
- “Parties” means Cloudone and Customer and “Party” means either one of them;
- “Personnel” means any director, employee, agent, consultant, contractor or representative of a Party;
- “Premises” shall mean the site agreed to by the Parties for the location of the Customer System as stated in the Order;
- “Services” means any services rendered hereunder including training, support, development, implementation and consulting services;
- “Service Fees” shall mean the fees payable in consideration for receiving Services which ma be charged at the standard prevailing rates of Cloudone applicable to such Services unless otherwise agreed in writing;
- “Service Partner” shall mean a person or entity that has been duly authorised in writing by Cloudone to promote the Software to customers like the Customer;
- “Software” means the Software, Onsite Software and Mobile Application Software;
- “Software Fees” shall mean the fees payable in consideration for receiving the right to access and use the Software, as agreed in the Order and failing such agreement, at the standard prevailing rates applicable thereto;
- “Cloudone” shall mean Cloudone Technology (Pty) Ltd (Registration number 2014/103689/07), a company incorporated under South African law with address at Workshop 17 @ The Watershed, 17 Dock Road, The V&A Waterfront, Cape Town, 8001, South Africa;
- “Cloudone System” shall mean the computer system used by Cloudone to host and provide access to the Software;
- “Trade Secret” means information, without regard to form, which: (a) is capable of application in trade or industry; and (b) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by, other persons in such trade or industry who can obtain economic value from its disclosure or use, including for Cloudone, the source code of the Software and the communications protocols, product architecture, data file definitions, structures, utilities and routines, logic, coherence and methods of operation and the business processes and business rules implemented by or contained in the Software and/or Documentation.
- “UserID” means the mechanisms used by Cloudone to grant access to the Cloudone System that are issued to the Customer by Cloudone for use by the duly authorised Personnel of the Customer including usernames, passwords, and/or personal identification numbers that remain valid and have not expired or been deactivated by Cloudone;
Subject to termination in terms of Clause 10, the Order shall commence on the Commencement Date and shall continue indefinitely thereafter.
Following expiry of its Minimum Term, the Order may be terminated by either Party by giving the other Party at least 90 (ninety) days prior written notice thereto, which termination will take effect as of the date specified in the notice of termination.
FEES AND PAYMENTS
In consideration for the use of and access to the Software, the Customer shall pay to Cloudone, or to Cloudone’s designated Service Partner, all the fees, charges and expenses agreed to be applicable thereto, and in particular as specified in the Order.
Save to the extent otherwise agreed in writing, Cloudone or its designated Service Partner may invoice the Customer monthly in advance for the monthly Software Fees and any related taxes for the duration of this Agreement. Save to the extent otherwise agreed in writing, Cloudone or its designated Service Partner may invoice the Customer monthly in arrears for all Expenses and interest that are due for such month.
Unless otherwise agreed in the Order, invoices issued by Cloudone or its Service Partner will be payable within 10 (ten) days of invoice. All payment obligations under this Agreement are non-refundable. All payments shall be made by electronic transfer, debit order or direct deposit into the bank account of Cloudone or its designated Service Partner as indicated on the invoice. All amounts due and payable by the Customer shall be paid in the currency specified for payment in the relevant invoice.
The fees, charges and expenses payable by the Customer hereunder are net amounts, free from set-off or deductions and exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by the Customer or imposed on Cloudone or its Service Partner or otherwise due as a result of this Agreement. The Customer shall pay any and all such taxes and duties, customs fees and similar charges, whether directly to the appropriate taxing authority or by reimbursing Cloudone for payments it made on the Customer’s behalf.
The Customer shall not be entitled for any reason whatsoever to withhold or defer payment under this Agreement and payments which are not received when payable shall bear interest at the lesser of the maximum amount chargeable by law or 1½% per month, capitalised monthly, commencing with the date payment was due. Amounts received from Customer may be allocated as follows: Firstly towards interest and reimbursement of Expenses, secondly to Service Fees and thirdly to Software Fees.
In consideration for payment of the Fees and for the duration of the Order, Cloudone grants the Customer a non‑exclusive, non-transferable right to Use the Software (in machine readable form only) and the Documentation for its internal business purposes only. For the purposes hereof “Use” shall mean:
- To implement the Onsite Software on the Customer System at the Premises and to use such Onsite Software for the purposes of facilitating communication with the Cloudone System;
- To permit Authorised Users using Devices not exceeding the number duly licensed and paid for by Customer to communicate with the Cloudone System via the Customer System, where such Devices may be licensed on a monthly basis in exchange for payment of Software Fees at the relevant rate;
- To permit access and use of the Software as implemented on the Cloudone System at the Premises by duly authorised Customer Personnel to process Customer Data for the benefit of Customer in compliance and for the purposes contemplated in the Documentation;
- All Customer Data must be submitted in compliance with the requirements specified for same in the Documentation, including with respect to the format and process for submission.
- Customer Data as processed by the Ordering Software may be stored on the Cloudone System subject to such storage limitations as may be specified by Cloudone from time to time, including in respect of available memory.
- Customer will permit only duly authorised Personnel to submit Customer Data. Customer will be required to register a UserID to enable access by the Customer and its authorised Personnel to the Software. Customer will ensure that the UserID is kept confidential and is not made known to or used by unauthorised persons.
- Cloudone may at any time, on reasonable grounds, withdraw, limit or suspend the access of Customer or an member of its Personnel to the Cloudone System or may also require that Customer suspend or terminate the access of any particular Personnel member of Customer to the Cloudone System.
- All other rights are fully and expressly reserved to Cloudone. In particular, the Customer may not and shall not permit, whether directly or indirectly, any third party to do any of the following, except as permitted in terms of Clause 5.1, –
- without Cloudone’s prior written consent reproduce, translate, modify, adapt, sell, distribute, sub-licence, assign or otherwise transfer any part of the Documentation or use its access to the Software or the Documentation for rental or sharing purposes with any third party;
- alter, obscure, remove, conceal or otherwise interfere with any eye-readable or machine-readable marking on the Software, the Documentation or its packaging which refers to the authorship or copyright ownership thereof; or
- reverse engineer the computer programs making up the Software, whether in whole or in part, or otherwise attempt to derive the source code of the Software.
- Customer acknowledges that it obtains no right, title or interest in or to the Software or the Documentation except as expressly granted in this Clause, and that Cloudone shall, remain solely entitled to all proprietary rights in the Software and Documentation, including all Intellectual Property Rights therein and all Know-How represented by or incorporated in the Software and Documentation.
- Customer undertakes that it shall not in any manner whatsoever represent that it is the owner or has any interest, other than as user in terms hereof, in the Software or Documentation and shall not take any action to impute any right, title or interest of Cloudone in or to the Software or Documentation.
- To the extent that Cloudone utilises or makes available any of its Know-How pursuant to this Agreement, same shall remain the property of Cloudone and the Customer shall acquire no right or interest in such Know-How, and Customer shall not use such Know-How for any purpose other than in respect of its permitted use of the Cloudone System.
- The risk of loss or damage in respect of all components of the Software provided to Customer shall transfer to Customer upon delivery thereof.
- Unless otherwise agreed in writing, Customer shall, be responsible, at its own expense, for procuring, implementing at the Premises and maintaining all the components of the Customer System required to access the Cloudone System and use the Software, including the Connectivity. Customer will ensure that such Customer System complies with the minimum recommendations for such Customer System as may be specified by Cloudone.
- Customer will be responsible for testing its access to the Cloudone System and its interoperability with the Customer System as implemented to ensure that it meets with the Customer’s requirements and Customer will notify Cloudone of any problems that it detects during such testing.
- In the event that Cloudone becomes aware that the Customer’s use of a component of the Software or Cloudone System may amount to an infringement or potential infringement of the rights, including the Intellectual Property Rights, of any third party, Cloudone shall be entitled at its own expense and option either to:
- obtain the right for the Customer to continue using such component; or
- amend, modify and/or adjust the Software or Cloudone System in such a manner as that they no longer infringe the rights of the third party; or
- replace the component with a non-infringing substitute.
- Cloudone may, having used commercially reasonable endeavours to resolve an infringement in the manner set out in Clause 5.13 and failing to do so, withdraw the infringing component forthwith by giving notice thereto
Customer may report Errors to Cloudone in accordance with Cloudone’s standard support procedures and provided that all amounts due to Cloudone have been duly paid by Customer, Cloudone will endeavour to provide workarounds or coding fixes for such Errors in accordance with Cloudone’s standard support procedures.
Cloudone may, at its option, implement modifications, enhancements, upgrades and new versions of the Software on the Cloudone System from time to time, Furthermore, Cloudone may also provide and/or implement modifications, enhancements, upgrades and new versions for the Onsite Software and Mobile Application Software from time to time, provided that Customer will promptly implement such modifications, enhancements, upgrades and new versions that are not implemented by Cloudone and cease using any versions being replaced.
Customer will ensure that the Customer System remains compliant with the minimum specifications for such Customer System as may be specified by Cloudone and is kept in proper working condition and maintained in accordance with the recommendations of the manufacturer.
The Customer may request, and Cloudone may provide, certain professional services during the term hereof including support for Excluded Errors, implementation, customisation, configuration, data entry and conversion, consultation, training and other services to which the parties agree. Such services will be provided in return for payment of the applicable Service Fees and Expenses unless otherwise agreed in writing.
Unless expressly provided to the contrary in a writing signed by Cloudone, all right, title and interest, including but not limited to all Intellectual Property Rights, in and to any and all deliverables created by Cloudone during the provision of such services shall vest in Cloudone, and if any such rights vest in the Customer now or in future, the Customer hereby cedes, assigns and transfers its full right, title and interest in such rights to Cloudone, effective as from the moment the relevant deliverables come into existence.
In addition to such other obligations as may be specified in this Agreement, the Customer shall be responsible for the following:
- preventing anyone other than duly authorised Personnel from accessing the Cloudone System or using the Software;
- providing, implementing and maintaining the Customer System in accordance with the specified requirements;
- data entry and verifying the accuracy and completeness of data emanating from the Software; and
- providing access to the Customer System and Customer Data as may be reasonably required by Cloudone to assist and enable Cloudone to maintain and support the Onsite Software, including remote access via a suitable access link as may be requested by Cloudone;
- obtaining such consents as may be required to submit any Customer Data to the Cloudone System for processing;
- accuracy and completeness of information provided to Cloudone, as well as for the accuracy and completeness of Customer Data as submitted to and obtained from the Cloudone System; and
- security of the UserID and Customer Data, including by implementing suitable access controls and keeping sufficient back-ups of Customer Data.
The Customer may not use the Software in contravention of applicable law and shall strictly adhere to Cloudone’s instructions as to its access and useof the Cloudone System.
Customer shall provide to Cloudone, its auditors (including internal audit staff and external auditors), inspectors, regulators and other representatives as Cloudone may from time to time designate in writing (“Auditors”) access at all reasonable times (and in the case of regulators, at any time required by such regulator) to the Premises and Customer System, and to the relevant Customer Personnel for the purpose of performing audits and inspections (“Audits”) to verify the Customer’s compliance with the terms of this Agreement including, to the extent applicable to the Services, performing audits of general controls, compliance with licensing limitations and security practices and procedures.
Cloudone will treat the Customer Data as the Confidential Information of Customer. However, Cloudone may make and retain copies of all Customer Data available to it and use such Customer Data for all purposes in connection with this Agreement. This clause will survive termination of this Agreement.
The Cloudone System, Software and Services are provided to the Customer on an “as-is” basis and are not warranted to be free from defects. Cloudone makes no express implied or tacit representations or warranties with respect to the Cloudone System, Software or Services or any aspect thereof, and specifically to the maximum extent permitted by applicable law, Cloudone disclaims all other warranties, including without limitation, any tacit and/or implied warranties in respect of quality, merchantability, non-infringement, suitability or fitness of the Cloudone System or Software for any particular purpose.
To the maximum extent permitted by applicable law, Cloudone shall not be liable to the Customer for any consequential, incidental, indirect, special or other damages whatsoever including, without limitation, arising from loss of income, loss of goodwill or profits, third party claims, business interruption, loss or corruption of data or business information or other pecuniary loss arising in connection with the Order (including out of delay of delivery, reliance on the use or the use or inability to use the Cloudone System, Software or Services), regardless of whether such liability is based on contract, statute, delict or otherwise.
Subject to clause 9.2 and to the maximum extent permitted by applicable law, Cloudone’s total aggregate liability in respect of any and all claims, actions, damages, costs, losses, expenses and other liabilities arising during any contract year under the Order (being a 12 month period commencing on the Commencement Date or an anniversary of the Commencement Date) will be limited to the amount of Software Fees received by Cloudone in respect of such contract year, regardless of whether such liability is based on contract, statute, delict or otherwise.
In the event of either of Customer committing one or more of the events of default listed hereunder, then without prejudice to any rights Cloudone may have under this Agreement, in law, or otherwise, it shall be entitled in its discretion to terminate the Order or to suspend performance of any of its obligations under the Order with immediate effect by giving written notice thereto:
- The Customer is in material breach of any of its obligations in terms of this Agreement, and in the case of a remediable breach, fails to remedy the default within 14 (fourteen) days of receipt of written notice from Cloudone calling upon it to do so;
- The Customer commits an act of insolvency, is placed under judicial management, or is wound-up (whether provisionally or finally), compromises with any of its creditors or endeavours or attempts to do so or ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due;
- The Customer breaches its confidentiality obligations in respect of Cloudone’s Confidential Information or breaches the terms regulating its access to and use of the Ordering Software or Documentation or infringes Cloudone’s Intellectual Property Rights; or
- The Customer cedes, delegates or transfers or attempts to cede, delegate or transfer any of its rights or obligations under this Agreement to a third party in contravention with the terms of this Agreement.
Upon termination of the Order, the Customer shall cease to use the Cloudone System, Software and Documentation as well as any and all Know-How of Cloudone incorporated therein or made available in connection therewith and shall promptly destroy or return to Cloudone any and all elements thereof in its possession or under its control, in accordance with the instructions of Cloudone and certify same to Cloudone. In any event, if the Order terminates or expires for any reason, Cloudone may render the Ordering Software inaccessible to Customer.
The following Clauses will survive any termination or expiry of the Order: Clause 2 (Definitions), Clause 9 (Liability), Clause 10 (Termination), Clause 11 (Confidentiality), Clause 12 (Domicile), Clause 14 (Disputes), Clause 15 (General) and all other Clauses of this Agreement and the Annexures that expressly or by their nature survive any termination or expiry of the Order or which impose any obligations following the termination or expiry of the Order.
Each party (“Receiving Party“) must treat and hold as confidential all Confidential Information which they may receive from the other party (“Disclosing Party“) or which becomes known to it during the term of this Agreement.
The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s Confidential Information, unless the Disclosing Party has expressly agreed otherwise in writing, the Receiving Party will not and will ensure that its Personnel and the Personnel of its Affiliates does not at any time, whether during the term of the Order or thereafter, use or disclose any Confidential Information of the Disclosing Party other than as allowed in terms hereof. Without limiting the aforesaid, the Receiving Party shall:
- initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to Confidential Information, the secret and confidential nature thereof; and
- notify the Disclosing Party of all persons to whom the Disclosing Party’s Confidential Information is to be disclosed or who are to be granted access to the Disclosing Party’s Confidential Information before those persons are permitted access to the Disclosing Party’s Confidential Information;
- if required by the Disclosing Party, arrange for any persons who are permitted access to the Disclosing Party’s Confidential Information to give a written confidentiality undertaking to the Disclosing Party to be bound to the terms of this Agreement;
- ensure that its Affiliates, its Personnel and the Personnel of its Affiliates, its subcontractors, professional advisers and any other person that it allows to or provides with access to the Disclosing Party’s Confidential Information comply with the provisions of this Agreement; and
- procure that, upon request by the Disclosing Party, any materials containing Confidential Information of the Disclosing Party will be returned or otherwise disposed of as the Disclosing Party may direct, provided that in the event the Receiving Party is instructed to dispose of or destroy such materials, the Receiving Party shall provide the Disclosing Party with an acceptable certification of such destruction; and
- promptly notify the Disclosing Party if it becomes aware of any breach of confidence in respect of Confidential Information of the Disclosing Party by any person to whom it has disclosed such Confidential Information and shall give the Disclosing Party all reasonable assistance in connection with any actions and proceedings which it may institute as a result.
The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Personnel who are actively involved in the implementation of the Order on a ‘need to know basis’ only, and such Personnel may be permitted to use such Confidential Information to the extent reasonably necessary for the exercise of the Receiving Party’s rights and compliance with its obligations pursuant to this Agreement only.
The obligations of the Receiving Party hereunder shall not apply to any information which –
- can be demonstrated to have been lawfully in the public domain at the time of disclosure or subsequently and lawfully becomes part of the public domain by publication or otherwise;
- can be demonstrated through documentary proof to have been lawfully in the Receiving Party’s possession prior to disclosure;
- subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose such information; or
- is disclosed pursuant to a requirement or request by a regulatory authority, by operation of law or by any court of competent jurisdiction, provided that the Receiving Party gives as much notice of such impending disclosure as is reasonably possible and provides the Disclosing Party with all reasonable assistance in preventing and/or limiting such disclosure.
The parties choose as their domicilia citandi et executandi for all purposes under this Agreement and the Order, whether in respect of court process, notices or other documents or communications of whatsoever nature, the respective addresses stated on the Order incorporating these terms.
Any part may by notice to the other party change its domicilium citandi et executandi to another physical address and/or telefax number, provided that such change shall become effective only on the 7th day after receipt of the notice.
Any notice to a party contained in a correctly addressed envelope and:
- delivered by hand to a responsible person during the ordinary business hours at its physical address as set out in the definition schedule above, shall be deemed to have been received by such party on the day of delivery thereof;
- successfully transmitted by fax to the telefax number as set out in on the Order incorporating these terms shall be deemed to have been received by the addressee on the first ordinary business day after the transmission thereof.
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 the chosen domicilium citandi et executandi.
Cloudone shall be excused from the performance or punctual performance of any of his obligations under the Order or this Agreement and the performance of such obligations shall be extended by a period reasonable under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond Cloudone’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, extreme weather riots, wars, (whether declared or not), hostilities, revolutions, civil disturbance or usurped authority, accidents, embargo or requisition, unforeseeable acts (including failure to act) of any governmental authority (de jure or de facto), sabotage, nuclear incidents, epidemics, strikes, as the case may be, have no control, including non-availability of an export licence for the Software or any part thereof or the failure of any institution whose consent is required for the performance of any obligation hereunder to provide such consent, the failure of any authority to grant visa and permits for Cloudone’s staff, or delays in the performance of its sub-contractor caused by any such circumstances as referred to in this Clause (” a Force Majeure Event”). The right of relief shall apply irrespective of whether the cause of prevention or delay occur before or after the agreed due time for such obligations.
The validity and interpretation of this Agreement shall be governed by the laws of the Republic of South Africa.
The parties shall make diligent efforts through negotiation to settle any disputes arising out of or related to this Agreement, including elevating the issues to their respective upper management levels.
Subject to the remainder of this Clause 14, the parties consent to the non-exclusive jurisdiction of the Western Cape High Court, Cape Town of the Republic of South Africa to adjudicate all disputes arising in connection with this Agreement.
Save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, any dispute which the parties are unable to resolve in accordance with Clause 14.2 and which arises in regard to:
- the interpretation of; or
- the carrying into effect of; or
- any of the Parties’ rights and obligations under this Agreement or arising from the termination of; or
- 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 on written notice given by any Party to the others in terms of this clause.
- Such arbitration shall be held in Cape Town in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”) save that:
- the arbitration shall be informal; and
- the arbitrator shall have the entire and absolute discretion to determine the procedure to be adopted, it being the agreed intention that, if possible, the arbitration shall be held and concluded within 15 (fifteen) business days after it has been demanded.
- Save as otherwise specifically provided in this Agreement, the arbitrator shall be, if the question in dispute is:
- primarily an accounting matter – an independent chartered accountant of not less than fifteen (15) years’ standing;
- primarily a legal matter – a practising senior advocate or attorney of not less than fifteen (15) years’ standing;
- any other matter – an independent and suitably qualified person,
as may be agreed upon between the Parties.
- If agreement cannot be reached on whether the question in dispute falls under clause 14.6.1, 14.6.2 or 14.6.3 or upon a particular arbitrator in terms of clause 14.6 within three (3) business days after the arbitration has been demanded, then it shall be deemed to be a legal dispute to which the provisions of clause 14.6.2 shall apply and the arbitrator, in the event of a dispute as to his identity, shall be appointed by the chairman of AFSA within five (5) business days after the parties have failed to agree.
- This clause shall constitute each party’s irrevocable consent to the arbitration proceedings, and no party shall be entitled to withdraw therefrom or to claim at such arbitration proceedings that it is not bound by this clause.
- Each of the parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:
- shall be final and binding on each of them; and
- will be carried into effect; and
- can be made an Order of any Court to whose jurisdiction the parties are subject.
- Nothing herein contained shall be deemed to prevent or prohibit a Party from applying to any appropriate Court for an interdict, urgent relief or for judgment in relation to a liquidated claim.
The Customer may not cede or delegate any of itsrights and obligations in terms of this Agreement or the Order, unless with the prior written approval of Cloudone, which approval shall not be unreasonably withheld. Cloudone shall be entitled to cede, assign, delegate and transfer all or some of its rights and obligations in terms of this Agreement and the Order to any successor in title to its business pertaining to this Agreement and the Customer hereby agrees to such cession, assignment, delegation and transfer.
The Order and this Agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreement or understandings or representations by or between the parties regarding the subject matter hereof, and the parties will not be entitled to rely, in any dispute on any terms, conditions or representations not expressly contained in this Agreement or the Order.
No amendment or consensual cancellation of this Agreement or the Order or any provision or term hereof and no settlement of any disputes arising out of this Agreement or the Order and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or the Order shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable. If any invalid term is capable of amendment to render it valid, the parties agree to re-negotiate an amendment to remove the invalidity.
In connection with the Order, each party is an independent contractor and, as such will not have any authority to bind or commit the other party. Nothing in the Order or this Agreement will be deemed or construed to create a joint venture, partnership, employment or agency relationship between the parties for any purpose.