SERVICE LEVEL AGREEMENT
________________________________
Entered into by and between:
1.1. MYCOMAX MICROFINANCE SOLUTIONS (PTY) LTD
Registration No.: (2009/005504/07)
(hereinafter referred to as “Mycomax”)
And
1.2. COMPANY NAME: _____________________________
TRADING NAME: _________________________________
REGISTRATION NO.: ______________________________
VAT NUMBER: ___________________________________
(hereinafter referred to as “the Customer”)
2.1. The following expressions have the meaning assigned to them hereunder and cognate expressions bear corresponding meanings, namely –
2.1.1. “Agreement” means this written agreement, including any annexures and schedules as amended from time to time;
2.1.2. “Authorities” means any government or government administrative, fiscal or judicial authority, body, court, department, commission, tribunal, registry or any state owned, controlled or legislatively constituted authority which principally performs public, governmental or regulatory functions, including, without limitation, any competition authorities;
2.1.3. “Confidential Property” means any information (whether tangible, electronic or any other form) shared between the Parties to this Agreement for the purposes of fulfilling the aims of this Agreement, but not limited to: –
2.1.3.1. the terms of this Agreement;
2.1.3.2. any intellectual property of either Party such as any opinion, idea, trade secrets, know-how, processes, formulae, developments and related technical information; or
2.1.3.3. any other information disclosed by either Party to the other on the express basis that such information is confidential; or
2.1.3.4. which might reasonably be expected by either Party to be confidential in nature; or
2.1.3.5. relating to the business affairs of either Party;
2.1.3.6. relating to business affairs, intellectual property and/or other information or data of third parties affiliated with Mycomax, whether as client, service provider, parent company or any other capacity which provides for the disclosure of information and/or data which is required to remain confidential;
2.1.3.7. all proprietary assets, whether realised or under development which are unique and directly attributable to Mycomax as proprietary and/or intellectual property of it, whether or not such proprietary asset or intellectual property has commercial value.
2.1.4. “IT” means Information Technology and, in this Agreement, refers to the development and maintenance of loan management software as a service which is delivered remotely utilising the internet, storage of data in cloud infrastructure and support for use of the software;
2.1.5. “Laws” means, in relation to that specific Party, all and any: –
2.1.5.1. Statutes and subordinate legislation and common law;
2.1.5.2. Regulations;
2.1.5.3. Ordinances and by-laws;
2.1.5.4. Directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; and
2.1.5.5. Other similar provisions, from time to time, compliance with which is mandatory for that Party.
2.1.6. “Parties” or “Party” refers to the Parties to this Agreement, as contained in clause 1 of this Agreement;
2.1.7. “Product” shall refer to either, or both, the Mycomax loan origination website and the loan origination software application, both known as MAXMONEY, but the software of which is not governed by this Agreement;
2.1.8. “Services” shall refer to the Services which Mycomax is obliged to render to the Customer, as outlined in this Agreement at clause 4;
2.1.9. “Signature Date” refers to the date on which the last Party affixes its electronic signature to this Agreement;
2.1.10. “System Requirements” means the minimum functionality and features of the device on which MAXMONEY is to be used and such requirements will be communicated to the Customer before signature of this Agreement and may be amended from time to time in accordance with the operational requirements of MAXMONEY and the integrated features the Customer chooses to utilise;
2.1.11. “Uptime” shall refer to the time during which the Product is available for use and apply to the items marked as “covered for uptime” in Appendix – A, to this Agreement;
2.2. Clause headings are for reference purposes only and do not influence the interpretation of this Agreement.
2.3. Reference to the masculine gender shall include reference to the feminine and neuter genders and vice versa and references to the singular shall include the plural and vice versa and reference to natural persons shall include body corporates and other legal personae and vice versa.
2.4. Where a number of days is prescribed, it shall consist only of business days. i.e. days other than Saturdays, Sundays and Public Holidays in the Republic of South Africa and shall be calculated exclusively of the first and inclusively of the last day.
2.5. If figures are referred to in words and in numerals, the words shall prevail in the event of any conflict between the two.
2.6. Any reference to an enactment shall be a reference to the enactment, as at the date of signature hereto.
2.7. Schedules or appendices to this Agreement shall be deemed to be incorporated in and form part of this Agreement, and expressions defined in this Agreement shall bear the same meaning in the schedules or appendices, which do not themselves contain their own definitions.
2.8. The expressions “hereunder”, “hereto”, “herein”, “hereof” and similar expressions relate to this entire Agreement and not to any particular provision thereof.
2.9. References to this Agreement or any other document shall, where appropriate, be construed as reference to this Agreement or such other document as varied, supplemented, novated and/or replaced in any manner from time to time.
2.10. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.11. The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting or preparation of this Agreement shall not apply. The same applies to the schedules or appendices hereto.
2.12. In the event of any conflict or discrepancy between the terms of this Agreement or schedule and appendix hereto or any document referred to in any of the schedules or appendices of this Agreement, the terms of this Agreement shall prevail.
2.13. Each of the Parties hereto acknowledges that it has been free to secure independent legal, financial, tax and/or other advice as to the nature and effect of all of the provisions of this Agreement.
2.14. If any provision in a definition is a substantive provision conferring any right or imposing any obligation on any Party, then notwithstanding that it is only in the definitions and interpretation clause, effect shall be given to it as if it were a substantive provision in this Agreement.
2.15. Any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated, be applicable also to and binding upon that Party’s liquidator.
3.1. Mycomax is the developer, owner and marketer of the Product known as MAXMONEY. By virtue of utilising the Product, there are certain IT Services which need to be rendered to the Customer in order to facilitate the effective use and maintenance of MAXMONEY;
3.2. The Customer has elected to use MAXMONEY and therefore requires IT Services to be rendered from time to time, in order to properly and effectively utilise MAXMONEY in the conduction of its business activities;
3.3. The Parties have therefore decided to enter into this Agreement, which shall govern the relationship between them, in respect of such Services.
3.4. This Agreement is limited in its application to the provision and management of the Mycomax software subscribed to only and the ancillary services contained in Appendix – A to this Agreement.
4.1. Mycomax is obliged to undertake and provide the services set out in Appendix – A to this Agreement and: –
4.1.1. meet the prescribed response times associated with service related incidents;
4.1.2. undertake proactive maintenance of the Product and provide the Customer with reasonable notice of scheduled maintenance activities and upgrades of the Product;
4.1.3. within a reasonable timeframe of the Customer commencing use of the Product, provide training of up to 4 (four) employees, per branch of the Customer, free of charge and at a date and time arranged with the Customer;
4.1.4. Execute data conversion, within reason, in accordance with the Data Convert Agreement, which will be provided to the Customer and before inception of this Agreement, if required in order to facilitate the transfer of data from another loan management system/software, to MAXMONEY;
4.1.5. Host the relevant branding material, information and documentation pertaining to the Customer in order for the documents produced by the Product, to reflect the branding, in the proper proportions and quality, as supplied by the Customer;
4.2. Mycomax shall, within reason, only conduct routine maintenance and upgrades from 7:00 (PM) to 5:00(AM) (CAT) Harare, Pretoria.
4.3. Mycomax undertakes to document and communicate any changes which may be made to services to the Customer.
4.4. Mycomax will endeavour to maintain the following turnaround time, subject to the business hours contemplated in clause 6 of this Agreement, in respect of service requests made by the Customer: –
4.4.1. within 0 to 8 hours for issues classified as “High Priority”, which involves the Customer not being able to use MAXMONEY and therefore being unable to conduct its business activities;
4.4.2. within 48 hours for issues classified as “Medium Priority”, which involves an issue with MAXMONEY, but the Customer is still able to conduct its business activities;
4.4.3. within 5 business days for issues classified as “Low Priority”, which involves queries or requests where MAXMONEY is fully functional and the Customer is not encumbered from conducting its business activities; and
4.4.4. Mycomax reserves the right to provide remote assistance, consistent with the timelines contemplated in this clause, utilising third-party software such as AnyDesk. Google Meet, Skype and Whatsapp.
4.5. However, due to the nature of IT services, Mycomax may, in some instances, not be able to resolve issues within the turnaround times contemplated in the preceding paragraph. In such instances, the Customer shall be promptly notified that the turnaround times cannot be adhered to and advise, as soon as practicable, the expected time of resolution. In this regard, and subject to the provisions of clause 7, the Customer may be entitled to a credit on its monthly fees.
5.1. The Customer is obliged to, for the duration of this Agreement: –
5.1.1. effect full and timeous payment for the Mycomax licence fee and/or subscription fee, as elected, and all support costs undertaken or effected by Mycomax and: –
5.1.1.1. Billing cycles shall run from the 18th of each month to the 18th of the following month and shall be referred to as that particular month’s billing period;
5.1.1.2. Payment must be effected by no later than the 7th of the month immediately succeeding the closure of the billing period failing which, access will to MAXMONEY will be blocked; and
5.1.1.3. During such times as access to MAXMONEY is blocked, the existing data shall be stored and protected, without any further amendment thereof.
5.1.2. ensuring that a representative of the Customer is available, within reason, when resolving any Service-related incident, request or maintenance;
5.1.3. on reasonable notice and in accordance with clause 4.1.3, ensure the availability of the Customer’s elected employees for training in respect of Product; and
5.1.4. to provide Mycomax with the relevant branding material, information and documentation, in accordance with the requirements and specifications communicated to the Customer, which are to appear on documents generated by the Product.
5.2. The Customer is entitled to make payments in an amount which exceeds the amounts billed for in that billing period. The amounts in excess of the amount due for that period, shall remain as a credit to the Customer’s account and be utilised to settle the amounts due for the following period, either partly or in full, as the case may be.
5.3. The amounts held as credit to the Customer’s account may not be withdrawn from the account, unless this Agreement and the utilisation of MAXMONEY is terminated in accordance with the provisions of this Agreement.
5.4. The Customer may, at any time, request an itemised statement of account from Mycomax, which Mycomax will deliver within 5 business days to the Customer. If the requested statement of account is to be provided to the Customer electronically, no extra charge shall be applicable. If the Customer requests its statement of account to be delivered to it in any physical form, extra charges may apply.
5.5. It is the sole responsibility of the Customer to ensure its compliance with the relevant Laws, registration and regulatory requirements associated with the industry in which it conducts its daily activities. The Customer indemnifies Mycomax from all liability which may arise as a result of the Customer’s failure to do so.
5.6. The Customer is further obliged to cooperate with any competent Authorities which may investigate, enforce against or evaluate compliance of the business activities of the Customer, to the extent considered reasonable. The Customer indemnifies Mycomax from all liability which may arise as a result of the Customer’s failure to do so.
5.7. The Customer understands, and agrees, that it is responsible for the configuration and setup of the Product. Although Mycomax will execute the setup, it will only configure the Product in accordance with the directions and instructions of the Customer. It is the responsibility of the Customer to ensure that such configuration is compliant and consistent with industry Laws and indemnifies Mycomax from any and all liability which may arise as a result of the requested configuration not being compliant with industry Laws.
5.8. Mycomax does not provide advice and/or legal advice on any issue which finds application by Law and does not provide any legal interpretation in terms of Law which may be applicable to the Customer.
5.9. It is the responsibility of the Customer to ensure that the devices utilised for the use of the Product remains aligned with the System Requirements outlined by Mycomax and any amendments to such System Requirements which may be effected from time to time, in accordance with the development and continued maintenance of MAXMONEY.
5.10. The management of the Customer’s daily and business operations, management of its office, its employees and its responsibilities remain the obligation of the Customer and is in no manner or form delegated or contracted to Mycomax.
6.1. For the purposes of this clause, the applicable time zone shall be: –
6.1.1. (CAT) Harare, Pretoria
6.2. The Support Services of Mycomax shall be available during the following hours:
6.2.1. Telephone Support: 7:00 (AM) to 5:00 (PM) from Monday to Friday and 8:00 (AM) to 12:00(AM) on Saturdays. Telephone support shall not be available on the following Public Holidays: Christmas Day, Day of Goodwill, New Year’s Day, Good Friday, Family Day and Worker’s Day. Calls may be made to a specialist’s mobile phone and Mycomax will make its best effort to answer/action the call, within reason. Additional support charges will apply.
6.2.2. Email Support: 8:00 (AM) to 5:00 (PM) from Monday to Friday. Email Support shall not be available on the following Public Holidays: Christmas Day, Day of Goodwill, New Year’s Day, Good Friday, Family Day and Worker’s Day. Emails received outside of these hours will be received, but no action can be guaranteed until the following business day.
6.2.3. Online Support: 7:00 (AM) to 5:00 (PM) from Monday to Friday and 8:00 (AM) to 12:00(AM) on Saturdays. Telephone support shall not be available on the following Public Holidays: Christmas Day, Day of Goodwill, New Year’s Day, Good Friday, Family Day and Worker’s Day.
6.2.4. Onsite Support: Only by specific arrangement and at additional cost.
6.3. Consequent to the Customer’s initial configuration of MAXMONEY, the Customer is entitled to 2 (two) free hours of support Services per month. Any support Services required or requested by the Customer, in excess of 2 (two) hours per month, will attract additional billing, at Mycomax’s ordinary hourly rates, which may be amended from time to time.
7.1. Mycomax guarantees the following Uptimes for MAXMONEY, in accordance with the priority level assigned thereto in Appendix – A: –
7.1.1. Priority 1: 99.5% Uptime;
7.1.2. There are no guaranteed Uptimes for Priority 2 to Priority 4 items at the time this Agreement is entered into.
7.2. Measurement of Uptime shall be calculated as follows:
7.2.1. Uptime will be calculated as the sum of all the minutes in a calendar month during which the Product was available for use, excluding after-hours maintenance and upgrades and an allowance of 180 minutes for maintenance;
7.2.2. Should the amount of minutes during which the Product is not available fall below the percentages guaranteed in the preceding clause, the Customer shall be entitled to a credit on its fees for that month.
7.3. Penalties related to Uptime falling below the guaranteed percentages in accordance with clause 7.1 shall be calculated and effected as follows:
7.3.1. The credit will be calculated with reference to the total amount of minutes in that particular month, less the amount of time permitted for after-hours maintenance and upgrades in clause 7.1;
7.3.2. The amount of minutes, or hours, which fall below the guaranteed threshold in clause 7.1, shall be apportioned in accordance with the Customer’s monthly fees for that particular month and a credit will be applied to the Customer’s fees for the month immediately following the month in which the Uptime was lower than guaranteed.
7.4. The Uptime is only applicable in respect of the Products, and for errors or unavailability emanating from Mycomax’s server. Uptime is not guaranteed, nor are the provisions of clauses 7.1 to 7.3.2 applicable: –
7.4.1. if the error or unavailability emanates from the hardware, network or connectivity of the Customer;
7.4.2. in respect of integrations, whether provided by Mycomax or a third-party, such as payment systems integration, credit bureau integration or insurance integration;
7.4.3. any other components, hardware or equipment not provided, maintained and serviced by Mycomax; and
7.4.4. any event contemplated in clause 30 of this Agreement.
8.1. Parallel to this Agreement in the regulation of the relationship between the Parties, Mycomax has various policies, which the Customer will need to electronically accept and agree to, in order to use the Product and receive the related Services, as contemplated in this Agreement.
8.2. The Parties agree and understand that the parallel policies may be amended from time to time in accordance with the requirements of Law, the business of Mycomax and the further development of the Product and Services. Such updated policies will be communicated to the Customer and record acceptance of such policies in the same manner as the acceptance of this Agreement.
9.1. The provisions and applicability of this Agreement specifically excludes:
9.1.1. Any equipment, software, services or other parts of an IT system not contained in Appendix – A, to this Agreement;
9.1.2. Software, equipment or services not purchased from Mycomax. This includes Mycomax Managed Services (MMS) which are provided by other service providers, outside the scope of this Agreement and would, in the ordinary course of events, be governed by a Service Level Agreement with that provider;
9.1.3. the use of equipment, software or service(s) in a manner which is not recommended, harmful or dangerous;
9.1.4. the Customer has made unauthorised and unapproved changes to the configuration or setup of affected equipment, software or services.
9.1.5. the Customer has prevent, in any manner, Mycomax from performing the required maintenance and upgrade tasks;
9.1.6. the issue emanated from unsupported, or faulty, equipment, software or services;
9.1.7. the Customer abuses and/or illegally uses the software;
9.1.8. the computer hardware, used by the Customer, malfunctions;
9.1.9. the Customer, if conducting its business within the Republic of South Africa, does not comply with a direction or has been deregistered as credit provider, by the National Credit Regulator, or conducts itself in a manner which is not compliant with the National Credit Act;
9.1.10. the software has been subject to unauthorised alteration by the Customer, or the Customer caused the unauthorised alteration of the software;
9.1.11. the data has been accessed or amended, in whatsoever manner, other than access via Mycomax’s standard software;
9.1.12. the Customer is in breach of this Agreement, as contemplated in clause 13.
10.1. This Agreement shall commence on the date upon which the Customer accepts the terms and conditions of this Agreement, or the date upon which the Customer commence with the use of MAXMONEY and/or other Services made available by Mycomax, and endure indefinitely until such time as: –
10.1.1. this Agreement is terminated in accordance with clause 12 of this Agreement and the Parties agree that such termination is subject to the provisions of clause 33; or
10.1.2. this Agreement is superseded by a revised and mutually agreed Agreement governing the same subject matter as this Agreement.
10.2. If this Agreement is terminated in accordance with its clause 12, the relationship between the parties shall only be deemed terminated once all funds owing to Mycomax have been paid in full.
10.3. If the Customer is subject to South African Law, the commencement of this Agreement and of the Customer’s access to the Product and Services shall remain suspended until such time as the Customer provides confirmation of its application of registration with National Credit Regulator, as a credit provider and in accordance with the National Credit Act, and any other registration, subscription, certification or approval in accordance with applicable Law, to Mycomax.
10.4. Similarly, if a Customer is subject to the Laws of a different jurisdiction to that of South Africa and registration, subscription, certification or any approval is required in terms of such jurisdictional Law, Mycomax reserves the right to suspend this Agreement until it is provided with confirmation of the Customer’s compliance therewith.
11.1. Mycomax provides its Products and Services to multiple jurisdictional territories, all of which operate under their own Laws and requirements. It is therefore the obligation of the Customer to ensure its compliance with all applicable Laws, including, but not limited to: –
11.1.1. Protection of Information Laws;
11.1.2. Credit Extension and Collection Laws;
11.1.3. Financial Services Laws;
11.1.4. Banking Laws;
11.1.5. Insurance Laws; and
11.1.6. Any other Laws which may be applicable to the Customer in the jurisdictional territory where it conducts its business.
11.2. Should Mycomax suspect, or become aware of any non-compliance by the Customer of any applicable Law, it may suspend the Customer’s Products and Services, without prior notice and, if in its sole discretion it believes it to be appropriate, terminate this Agreement in accordance with clause 12.
12.1. Should either Party wish to terminate this Agreement, on good cause, it will be required to do so by effecting written notice to the other Party of its intention to do so, no less than 20 business days prior to the proposed date upon which the termination should take effect and the aforesaid notice shall contain the terminating Party’s reasons for terminating the Agreement.
12.2. Upon receipt of a termination notice from either Party to the other Party, the Parties agree that they will continue attending to their respective responsibilities, in a professional and ethical manner, until such date upon which the termination takes effect.
13.1. In the event of either Party committing a breach (“the Defaulting Party”) of any of the terms and conditions contained in this Agreement, and failing to remedy such breach within a period of 5 business days after receipt of a written notice from the other Party (“the Aggrieved Party”) to the Defaulting Party calling upon it to remedy the breach, the Aggrieved Party shall be entitled to, at its sole discretion and without prejudice to its other rights in law, either claim specific performance of the terms and conditions of this Agreement or to forthwith cancel this Agreement and without further notice, claim and recover damages from the Defaulting Party.
13.2. Should either Party: –
13.2.1. be placed under business rescue or any process analogue to such administration of its business;
13.2.2. cede or assign, or purport to cede or assign any of its rights or obligations under this Agreement;
13.2.3. be wound-up, whether provisionally or finally,
then, in any of such events, the other Party will be entitled, without prejudice to its rights, to claim damages or any other claim whatsoever that it may have against the other Party as a result thereof, be entitled to cancel this Agreement by means of a written notice to the effect.
14.1. The Parties agree that Mycomax shall be entitled to contract with any third-party provider it deems necessary for the conduction of its business, the availability of its Product and rendering of Services, and that Mycomax may contract with such third parties at its sole discretion.
14.2. The Customer shall only be entitled to contract with such third-parties as it deems necessary for the conduction of its business provided that such third-party’s products or services do not interfere with, damage, negate or require alteration of Mycomax’s Product and/or Services.
15.1. Should any dispute arise between the Parties in respect of any provision contained in this Agreement, then such dispute shall be decided in consultation between the Parties at a meeting convened specifically for that purpose at a time and venue suitable to the Parties concerned. In the event that the Parties fail to reach consensus on any issue envisaged in the matter of dispute within 7 (seven) days from the date on which any such dispute shall arise, then the dispute shall be submitted to and decided by arbitration in terms of the Arbitration Act No 42 of 1965 and as provided for in this clause.
15.2. Each Party to the dispute shall be entitled to be represented at such arbitration proceedings by its legal representatives and/or any other appointed expert or specialist.
15.3. The arbitration shall be held at Johannesburg or any other city in South Africa, as may be agreed upon by the Parties.
15.4. The arbitrator shall be such suitably qualified person with appropriate skills and knowledge in relation to the matter in dispute, as may be appointed by agreement between the Parties within 10 (ten) days of the dispute being referred to arbitration by any Party, and failing such agreement, then as may be appointed by the Chairman of the Association of Arbitrators of Southern Africa as follows:
15.4.1. if the dispute is primarily an accounting matter, an independent practising Chartered Accountant;
15.4.2. if the dispute is primarily a legal matter, a practising advocate of not less than 15 (Fifteen) years’ experience as such;
15.4.3. if the dispute relates to any other matter, an independent expert with appropriate knowledge and skills in relation to the matter in issue.
15.5. The Parties to the dispute shall within 10 (ten) days after the appointment of the arbitrator meet with him in order to agree the procedures to be followed at the arbitration proceedings. Failing such agreement within the said period of 10 (ten) days, the prevailing Rules for the Conduct of Arbitrations shall apply to the arbitration.
15.6. The decision of the arbitrator shall be final and binding upon all Parties to the dispute and capable of being made an order of Court upon the application of any of them and there shall be no right of appeal.
15.7. Nothing herein contained or implied shall preclude a Party from applying to Court for a temporary interdict, or other relief of any urgent and temporary nature, pending the award of the arbitrator.
15.8. The arbitrator is further vested with powers to make interim orders and to give directions as to alternative provisions, which are to be implemented by the Parties in the event of circumstances arising which in the opinion of the arbitrator render such interim orders or directions necessary or desirable.
15.9. The arbitrator shall have the power to give default judgement if any Party fails to make submissions on due date either as agreed or in terms of the Rules, as the case may be, and/or fails to appear at the arbitration.
5.10. The costs of an incidental to any such arbitration proceedings shall be in the discretion of the arbitrator, who shall be entitled to direct whether they be taxed as between “party and party” or as between “attorney and client”.
15.11. The provisions of this clause:
15.11.1. constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
15.11.2. are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.
16.1. The Parties respectively agree that they will, at all times during this Agreement and thereafter, display good faith in their dealings with one another and the reputations of the Parties respectively.
17.1. Neither Party will, from the Date of Signature, without the prior, written consent of the other Party, which consent may be withheld at the other Party’s sole discretion: –
17.1.1. attempt in any manner to deal directly or indirectly in any manner with any of the other Party’s Clients, Distributors, Suppliers, Contractors, Employees or Customers which are related to this Agreement for their sole gain; or
17.1.2. by-pass, compete, void, circumvent or attempt to circumvent the other Party in respect of any proposed transaction including by using confidential information or otherwise by exploiting or deriving benefit from confidential information.
17.1.3. The provision of this clause shall survive the termination of this Agreement in terms of clause 12.
18.1. The Parties hereto agree and undertake that they shall maintain as confidential and shall not disclose to any third party the terms and conditions of this Agreement other than to employees to whom it is necessary to make such disclosure in the conduct of the Agreement, unless the Parties hereto agree in writing to the contrary.
18.2. The Parties agree that: –
18.2.1. any Confidential Information which may be exchanged between the Parties is a valuable, special and unique asset of the Party to which such Confidential Information belongs or relates;
18.2.2. That the Party to whom the Confidential Information belongs or relates, may suffer irreparable harm or substantial economic and/or other loss in the event that such Confidential Information is disclosed or utilised in a manner which is inconsistent with the purpose for which it was disclosed, or: –
18.2.2.1. if such Confidential Information was inadvertently disclosed and no purpose exists; irreparable harm and/or other loss will be suffered if the Confidential Information is utilised in any manner whatsoever;
18.2.2.2. if such Confidential Information was obtained through mala fide or unscrupulous action by a Party; irreparable harm and/or other loss will be considered to have been suffered by the Party to whom the Confidential Information belongs or relates to, as of the date on which the other Party obtained such Confidential Information.
18.3. Regardless of the manner in which Confidential Information of one Party is received or obtained by the other Party, it is agreed that: –
18.3.1. such information is proprietary, or intellectual property of the Party owning or to which it relates and is not deemed to confer any rights of whatsoever nature on the other Party;
18.3.2. the Party in receipt of such Confidential Information of the other Party shall not use, or permit the use of, the Confidential Information for the purpose of obtaining commercial, trading, investment, financial or other advantage over the Party to whom the Confidential Information relates or to use, or permit to use, such Confidential Information to the detriment of the Party to whom such Confidential Information relates;
18.3.3. such Confidential Information may only be disclosed or utilised if the Party in receipt of such Confidential Information relating to the other Party, is directed to do so by order or direction of a competent Authority;
18.4. Should any breach, or suspected breach of, any confidential information occur, the other Party will be notified thereof immediately.
18.5. Any intellectual property already developed or developed during the course of this Agreement shall remain the property of the Party which developed such intellectual property, unless the contrary is agreed to in writing.
18.6. Neither Party may claim or make representations to own the intellectual property of the other.
19.1. The Parties indemnify each other and hold each other harmless from and against any claims, liabilities, investigations, actions, losses, penalties, expenses or damages arising from the daily conduction of their respective businesses and/or business activities;
19.2. The Customer indemnifies Mycomax from any liability which may be attributed to the Customer as a result of incorrect calculations or applications made by the Product, due to the fact that the Product is configured and set-up in accordance with the directions and instructions of the Customer, as contemplated in clause 5.7 hereof.
19.3. The Customer indemnifies Mycomax from any liability which can be attributed to the configuration of the Product if such configuration was made at the Customer’s instance or request. The Customer indemnifies Mycomax against any liability as a result of amendments or updates undertaken in respect of the Product. The Customer will receive notice of any such amendments and updates undertaken in respect of the Product and as a result is obliged to ensure that the configuration and update of the Product remains compliant with the necessary Laws and as per the Customer’s specifications.
19.4. The Customer indemnifies Mycomax from any loss or liability which may arise from the communication, distribution or dissemination of the User Names and Passwords or PINs allocated to the Customer and/or employees of the Customer.
20.1. The Parties appoint as their respective domicilia citandi et executandi for the purpose of all legal proceedings and for the purpose of giving or sending any notice provided for or necessary in terms of this Agreement, the addresses hereunder or such other address/es as the Parties may on not less than 5 (five) days’ notice appoint, provided that the new domicilium is in the Republic of South Africa and consists of, or includes, a physical address at which process can be served.
20.2. Any notice in terms of this Agreement shall be in writing and may be delivered by hand or by telefax transmission or e-mail where these facilities exist.
20.3. A notice will be presumed, unless the contrary is proved, to have been delivered:
20.3.1. if sent by telefax transmission or e-mail, on the next business day following the date of transmission. In each respective method of transmission, proof of delivery (i.e.: telefax transmission or e-mail report) must be provided;
20.3.2. if hand-delivered during business hours on a business day, then on the day of delivery to a responsible person or employee who must acknowledge receipt in writing.
20.4. Domicilium addresses of the Parties:
20.4.1. Mycomax:
20.4.1.1 c/o BOSCH MARAIS & ASSOCIATES INC.
First Floor, 120 Rosen Office Park, Invicta road, Midrand.
EMAIL: arno@boschmarais.co.za
20.4.2. Party 2:
20.4.2.1. _______________________________________
21.1. The rights and obligations of any Party under this Agreement shall not be assigned to any person or entity other than as expressly provided in this Agreement. Any attempted assignment of the rights and obligations of any Party in contravention of this clause shall be void.
22.1. This Agreement contains all the express provisions agreed on by the Parties with regard to the Service related provisions of the relationship between the Parties and the Parties waive the right to rely on any alleged express provision not contained in this Agreement, as it pertains to Service.
23.1. This Agreement may be amended, modified or consensually cancelled and supplemented only by written agreement between the Parties. No course of dealings shall be deemed to have modified, amended, cancelled or discharged any part of this Agreement or any rights or obligations of any Party under this Agreement.
24.1. No indulgence which any Party (“Grantor”) may grant to any other (“Grantee”) shall constitute a waiver of any of the rights of the Grantor, which shall not thereby be precluded from exercising any rights against the Grantee which may have arisen in the past or which may arise in the future.
25.1. If any provision of this Agreement or part hereof shall to any extent be or become invalid or unenforceable, the Parties shall agree upon any necessary and reasonable adjustment of the Agreement in order to secure the vital interest of the Parties and the main objectives prevailing at the time of execution of the Agreement. Failing an agreement between the Parties on adjustments to the Agreement, such adjustments shall be made by the arbitrators in accordance with the provisions of clause 14 above.
26.1. This Agreement may be executed in counterparts each of which will be deemed to be an original of this Agreement with the same force and effect. A facsimile or photocopy of a fully executed counterpart of this Agreement or a set of identical versions separately executed by the Parties will be valid evidence of the existence and the terms of this Agreement.
27.1. Each Party shall bear its own costs in connection with the negotiation and preparation of this Agreement.
28.1. The Parties agree that this Agreement shall be regulated by the Laws of the Republic of South Africa and that the Courts of the Republic of South Africa shall have jurisdiction.
29.1. In addition to the provisions contained in this Agreement specifically dealing with the requirement of compliance with applicable Laws, the Parties are generally obligated to, at all times, comply with all Laws applicable to its respective business activities.
29.2. Should either Party believe that any facet of the Agreement, whether immediate or future, may result in non-compliance with any Laws, such Party is required to immediately notify the other Party of the Law and the extent of the possible non-compliance.
30.1. No Party shall be liable to the other in respect of the non-performance of any of the provisions of this Agreement in the event, and to the extent that such non-performance is the direct result of or has been directly caused by force majeure, which for the purposes of this Agreement shall mean an event not within the reasonable control of the Party concerned.
30.2. A Party claiming force majeure shall as soon as reasonably possible after becoming aware of the force majeure event, notify the other Party thereof, stating the nature, extent and expected duration of the same.
30.3. The burden of proof of the existence and extent of the alleged event and the enforceability thereof, shall rest on the Party claiming force majeure.
30.4. In the event of force majeure as notified and accepted continuing for a period of thirty (30) days, the Party who has received notice of force majeure, shall be entitled to terminate this Agreement with immediate effect.
31.1. Nothing in this Agreement shall constitute or be deemed to constitute a legal partnership between the Parties.
32.1. The provisions of this Agreement shall be binding on the successors in title of the Parties.
33.1. The Termination of this Agreement, for any reason, shall not release either Party from any liability which, at the time of termination, has already accrued to such Party or which thereafter may accrue in respect of any act or omission prior to such termination.
34.1. This Agreement shall be electronically entered into between the Parties. By selecting the box “I Agree”, the Customer enters into this Agreement and acknowledges: –
34.1.1. that it has read and understood the terms and conditions of this Agreement;
34.1.2. that it agrees to this Agreement being entered into electronically; and
34.1.3. that it has not been forced or induced, in any manner whatsoever, to enter into this Agreement.
34.2. The date upon which Mycomax signs this Agreement is the date upon which this Agreement is made available to the Customer, on the Mycomax website and is:
34.2.1. 23/11/2022
34.3. The date upon which the Customers signs this Agreement is the date upon which it selects the “I Agree” box on the website and continues to use the website and is:
34.3.1. _________________________[TIMESTAMP HERE]
Item Type | Number of Items | Priority | Covered for Uptime? |
Cloud Backup | 1 | 2 |
|
Web Hosting | 1 | 1 | ✔ |
Manned Telephone Support |
| 2 |
|
Monitored Email Support |
| 2 |
|
Remote Assistance, |
| 3 |
|
Planned or Emergency |
| 3 |
|
Monthly system health check | 1 | 2 |
|