TERMS & CONDITIONS
THE PARTIES AGREE THAT –
In this Agreement, unless a contrary intention clearly appears, the following terms shall bear the meanings assigned to them and cognate expressions shall have corresponding meanings –
1.1. “Agreement” means this master rental agreement and its schedules, each of which is an integral part of this agreement and shall be interpreted and construed accordingly;
1.2. “Annual Percentage Change” means, with reference to the most recent statistics available at the relevant anniversary of the Effective Date, a minimum of the change in the South African Headline Consumer Price Index escalated by appropriate economic conditions and expressed as an overall percentage.
1.3. “Business Day” means any day other than a Saturday, Sunday or public holiday as gazette by the government of the Republic of South Africa from time to time;
1.4. “Confidential Information” means all information and data of any nature, whether tangible, intangible, oral or in writing and in any format or medium, that is obtained or learned by, disclosed to or comes to the knowledge of a Party (“Receiving Party”) by or from the other Party (“Disclosing Party”) during the course or arising out of this Agreement, by whatsoever means, which by its nature or content is or ought reasonably to be identifiable as confidential or proprietary to the Disclosing Party or which is disclosed in confidence and whether or not it is marked or identified as ‘confidential’, ‘restricted’, ‘proprietary’ or in similar fashion, including –
1.4.1. information and data relating to its strategic objectives, business plans, business relationships, customers and Staff;
1.4.2. information and data contained in or constituting its information technology;
1.4.3. its proprietary Intellectual Property and/or Intellectual Property that is proprietary to a third party and in respect of which it has rights of use or possession. Confidential Information excludes information or data –
1.4.4. in the public domain at the time of its disclosure to the Receiving Party or which subsequently becomes part of the public domain by publication or otherwise, other than by breach of an obligation of confidentiality by the Receiving Party or any third party;
1.4.5. becoming available to the Receiving Party from a source, other than the Disclosing Party, other than by breach of an obligation of confidentiality by the Receiving Party or any third party;
1.4.6. developed independently by the Receiving Party without the knowledge of, use of or access to the Confidential Information, using Staff who have not in any way been employed (directly or indirectly) in the use of the Services or Goods;
1.4.7. disclosed pursuant to a requirement by operation of law, regulation or order of court or other administrative body, but then only to the extent so disclosed and in the specific instance and under the specific circumstances in which it is obliged to be disclosed; provided that –
1.4.8. the onus shall at all times rest on the Receiving Party to establish that such information or data falls within an exclusion;
1.4.9. the information or data disclosed is deemed not to be within the foregoing exclusions merely because it is embraced by more general information or data in the public domain or in a third party’s possession;
1.4.10. a combination of features is deemed not to be within the foregoing
1.4.11. exclusions merely because individual features are in the public domain or in a Party’s possession. A combination of features shall be excluded only if the combination itself is in the public domain or was already in the Receiving Party’s possession.zThe determination of whether information is Confidential Information shall not be affected by it being subject to or protected by common law or statute related to copyright, patent, trademarks or otherwise;
1.5. “Customize” means altering or modifying the existing functionality of or adding new functionality to an item of Goods;
1.6. “Customized Software” means the Object Code and Documentation of Software Customized by NEO WAVE (PTY) LTD for Client, including Associated Updates and Upgrades which may be provided to Client.
1.7. “Date of Signature” means the date of the last signature of this Agreement or a Support Services appendix, as the case may be;
1.8. “Delivery and Installation Certificate” means the delivery and installation certificate in the format in Appendix 1;
1.9. “Destructive Element” means malicious computer software, code or routines which –
1.9.1. might disrupt, distort, disable, harm or otherwise impede the operation of the Goods or any associated software or hardware;
1.9.2. might disable or impair in any way the operation of Goods based on an elapsed period of time or advancement to a particular date or other numeral;
1.9.3. might permit any person to access (remotely or otherwise) and disable or impair the Goods;
1.9.4. comprise harmful or hidden procedures, routines or mechanisms which might cause the Goods to cease functioning;
1.9.5. might damage or corrupt data, storage media, software, firmware, hardware or communications or otherwise interfere with technology operations generally;
1.10. “Documentation” means user documentation published by the manufacturer or original licensor of an item of Goods, describing its functionality and intended operation, either on paper or electronic media format, as determined by NEO WAVE (PTY) LTD;
1.11. “Effective Date” means the date so described on the face page hereof, notwithstanding the Date of Signature;
1.12. “Foreign Currency” means, if applicable, the currency specified in Appendix 1based on which the rental for specified Goods has been determined;
1.13. “Franchisor” means _______________________
1.14. “Goods” means, as applicable, Software and/or Customized Software and/or Commodity Software and/or Hardware;
1.15. “Hardware” means the computer hardware to be provided by NEO WAVE (PTY) LTD to Client as described in Appendix 1, including its Documentation, power cabling and connectivity required to connect –
1.15.1. those internal components which are integral to and must operate or interact with each other;
1.15.2. it to a single network point;
1.16. “Intellectual Property” means, collectively, patents, copyright, trademarks, logos, style names, slogans, designs, models, methodologies, Know-How, inventions, trade and business secrets and any other type of intellectual property (whether registered or unregistered including applications for and rights to obtain, use or for their protection) which are used or held, whether or not currently, in connection with a party’s business;
1.17. “Know-How” means ideas, designs, documents, diagrams, information, devices, technical data, scientific data, secret and other processes and methods used in connection with a party’s business, and, all available information regarding marketing and promotion of the products and services of a party, and, all and any modifications or improvements to any of them which do not constitute entirely new products or services;
1.18. “Losses” means all losses, damage, damages, liabilities, fines, penalties, claims and all costs and expenses (including related legal fees on the attorney-client scale, tracing and collection charges, costs of investigation, interest and penalties);
1.19. “Minimum Rental Period” means the period described as such in Appendix 1, calculated from the Effective Date;
1.20. “Monthly Rental” means the monthly rental payable by Client to NEO WAVE (PTY) LTD in respect of the Goods which, as at the Effective Date, is the amount so described in Appendix 1;
1.21. “New Release” means a new software program developed to replace its predecessor thus becoming the new release/version of the Software, which generally adds substantial new functionality and improvements and is installed as a new software program;
1.22. “Object Code” means the compiled code of a software program which is written in a software programming language and is executable by a central processing unit capable of reading the code;
1.23. “Reimbursable Expenses” means out-of-pocket expenses actually incurred by NEO WAVE (PTY) LTD in performing its obligations in terms of this Agreement including stationery, media, report and presentation material, local road travel, local air travel, international air travel, 4-star or business-equivalent accommodation, per diem allowance and vehicle rental;
1.24. “Services” means the various services more fully described in this Agreement, including Installation Services and Support Services, each of which has the following meaning –
1.24.1. “Installation Services” means the services more fully described in this Agreement, particularly clause 10;
1.24.2. “Support Services” means the services more fully described in this Agreement, particularly Appendix 2;
1.25. “Site” means the physical location described in Appendix 1 to which Goods shall be delivered and/or at which Services shall be performed, and at which Goods may be used;
1.26. “Software” means the Object Code and Documentation of the software described in Appendix 1to be supplied by NEO WAVE (PTY) LTD to Client including any associated Customized Software, Updates, Upgrades, New Releases and/or any other software which NEO WAVE (PTY) LTD may provide;
1.27. “Staff” means a Party’s employees, agents, independent contractors, sub-contractors or other representatives;
1.28. “Time and Materials” means NEO WAVE (PTY) LTD’s standard published hourly services charge out rate and product/materials list price, from time to time;
1.29. “Update” means software developed to correct errors or fix bugs in Software, which is installed into the Software being updated;
1.30. “Upgrade” means software developed to improve existing functionality or add limited new functionality to Software, which is installed into the Software being upgraded;
1.31. “VAT” means value-added tax per the Value-Added Tax Act, 1991;
1.32. “Warranty Period” means the 60-day period calculated from the Effective Date.
2.1. Clause headings in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify its terms nor any of its clauses.
2.2. In this Agreement unless a contrary intention clearly appears, words importing: any one gender include the other two; the singular include the plural and vice versa; natural persons include legal entities (corporate or unincorporated) and the state and vice versa.
2.3. Any reference to an enactment in this Agreement is to that enactment as at the Date of Signature and as amended or re-enacted from time to time.
2.4. Any substantive provision in any definition in this Agreement which confers rights or imposes obligations on a Party shall, notwithstanding that it is only in a definition, be given effect to as if it were a substantive provision in the body of the Agreement.
2.5. When a number of days is prescribed in this Agreement, they 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 which case the last day shall be the next succeeding Business Day.
2.6. Defined expressions in this Agreement shall bear the same meanings in schedules to this Agreement which do not themselves contain their own definitions.
2.7. Reference to days, months or years in this Agreement shall be construed as Gregorian calendar days, months or years.
2.8. Any term defined within the context of any particular clause in this Agreement shall, unless otherwise determined by the context, bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that such term is not defined in the definition clause.
2.9. Expiration or termination of this Agreement shall not affect such of its provisions as expressly provide that they shall continue to operate thereafter or which of necessity must continue to have effect thereafter notwithstanding that the clauses themselves do not expressly provide for this.
2.10. In this Agreement the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply.
2.11. Any reference in this Agreement to a Party shall, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be.
2.12. In this Agreement the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed nor shall they take effect as limiting the generality of any preceding words.
2.13. In this Agreement the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.
- STRUCTURE OF THIS AGREEMENT
3.1. This Agreement is a master rental agreement and its terms shall apply to each Appendix 1 and/or Appendix 2executed between the Parties from time to time, each of which shall describe and regulate an engagement for the rental of Goods and/or performance of Services.
3.2. No Appendix 1 and/or Appendix 2shall be of any force or effect unless it is executed by duly authorized representatives of each Party and, once duly executed, shall constitute an individual transaction in terms of this Agreement and shall be –
3.2.1. a separate agreement between the Parties upon the terms hereof;
3.2.2. construed and interpreted as an integral part of this Agreement;
3.2.3. subject to the terms of this Agreement.
3.3. Termination or expiration of any Appendix 1 and/or Appendix 2shall not affect the continued operation of this Agreement or any other Appendix 1and/or Appendix 2 to it.
4.1. Client hereby appoints NEO WAVE (PTY) LTD with effect from the Effective Date to rent Goods to and perform Services for Client upon the terms of this Agreement. NEO WAVE (PTY) LTD hereby accepts the appointment upon the terms and conditions of this Agreement.
4.2. To the extent permissible by law, Client hereby consents to –
4.2.1. NEO WAVE (PTY) LTD making enquiries regarding Client’s credit record with any credit reference agency and any other party when assessing Client’s application;
4.2.2. NEO WAVE (PTY) LTD providing credit reference agencies with regular updates regarding how Client manages its account, including Client’s failure to meet any terms and conditions hereof;
4.2.3. credit agencies making Client’s records and details available to other credit grantors;
4.2.4. NEO WAVE (PTY) LTD furnishing such information to any person who, in NEO WAVE (PTY) LTD’s opinion, needs it to carry out any of NEO WAVE (PTY) LTD’s rights or duties in terms hereof or any law pertaining to the Goods;
4.2.5. NEO WAVE (PTY) LTD withdrawing from current arrangements, renegotiating the terms and conditions of this Agreement and/or calling for additional security in the event of any material deterioration in Client’s financial position during the term of this Agreement.
5.1. This Agreement shall commence on the Effective Date and endure for no less than the Minimum Rental Period after which it shall automatically renew for consecutive periods of 12 months each. Either Party shall be entitled to terminate this Agreement with effect from expiry of the Minimum Rental Period or any subsequent 12-month period, by giving no less than 90 days’ prior written notice to this effect to the other Party.
5.1.1. Under no circumstances whatsoever shall Client be entitled to early settle and/or cancel this Agreement, unless otherwise agreed in writing by NEO WAVE (PTY) LTD upon terms acceptable to NEO WAVE (PTY) LTD, including recovery of all Monthly Rentals payable hereunder to the end of the Minimum Rental Period or the then-current subsequent 12-month period, as the case may be.
6.1. Prior to delivery, Client shall prepare the Site for the installation of the Goods and shall thereafter maintain an appropriate environment, as specified in the Documentation, suitable for the proper operation of the Goods.
6.2. If any Goods ordered are not available at the time of delivery, NEO WAVE (PTY) LTD may substitute compatible Goods of equivalent functionality and performance which shall become the Goods for the purposes hereof. In this event NEO WAVE (PTY) LTD shall deliver a revised Appendix 1 to Client for signature at the time of delivery of the Goods, which revised Appendix 1 shall substitute that appended to this Agreement.
6.3. NEO WAVE (PTY) LTD shall not be responsible for any malfunction, non-performance or degradation of performance of Goods caused by or resulting from, directly or indirectly, any alteration, adjustment, modification, repair (including any attempt to repair) or attachment of other products to Goods, made by anyone other than NEO WAVE (PTY) LTD.
6.4. Client hereby irrevocably appoints NEO WAVE (PTY) LTD as its attorney in rem seUm with the right on behalf of Client to sign the Delivery and Installation Certificate should Client fail to do so within 3 Business Days after becoming obliged to do so.
6.5. Upon termination of this Agreement Client shall return the Goods to NEO WAVE (PTY) LTD in the same good condition, good and proper working order and complete, as they were at the Effective Date (fair wear and tear excepted), by delivering them to the physical address selected by NEO WAVE (PTY) LTD as its domiciliumcitandi et executandi or such other address within the Republic of South Africa as NEO WAVE (PTY) LTD may stipulate. Goods shall be properly packed and shipped and insured at Client’s cost and risk.
- RISK, OWNERSHIP AND DELIVERY
7.1. All delivery dates given or indicated by NEO WAVE (PTY) LTD in or arising out of this Agreement by which any associated Goods or Services are estimated to be delivered or performed, are approximate only and NEO WAVE (PTY) LTD shall not be bound to deliver Goods or perform Services at any specific date or time.
7.2. NEO WAVE (PTY) LTD shall physically deliver the Goods to the Site.
7.3. At the time of delivery, the Parties shall physically inspect the Goods delivered and Client shall not be obliged to take delivery of any excess Goods or those whose packaging is noticeably damaged. Client shall acknowledge receipt in good working order of Goods of which it takes delivery, by signing the accompanying Delivery and Installation Certificate to that effect.
7.4. If the quote includes insurance cover (quote will state clearly if insurance is included or not) then Client agrees that all goods are comprehensively insured by NEO WAVE (PTY) LTD against all risks for their full replacement value. In the event of –
7.4.1. a loss requiring the replacement of any Goods, Client shall pay the minimum excess of R 2 500 or 10% of the replacement value of the equipment (whichever is higher) charged by the insurers per incidents subject to forced entry with regards theft of the Goods and the replacement goods shall become the Goods for the purposes of this Agreement and the property of NEO WAVE (PTY) LTD;
7.4.2. a loss not requiring replacement, Client shall restore the Goods to the same good condition, good and proper working order and complete, as they were at the Effective Date (fair wear and tear excepted),
7.4.3. NEO WAVE (PTY) LTD reserves the right to increase the excess charge after multiple claims against this policy, and also to cancel insurance following multiple claims on the policy, thereafter requiring proof of own insurance from the client. in each case applying any proceeds of the insurance but otherwise at Client’s own expense.
7.5. Goods are and shall remain the property of NEO WAVE (PTY) LTD. Client’s interest in the Goods shall be as hirer, upon taking delivery. Neither Client nor any person on its behalf shall –
7.5.1. 7.during or after termination of this Agreement become owner of the Goods;
7.5.2. after termination of this Agreement retain the possession, use or enjoyment of the Goods.
7.6. Client shall –
7.6.1. ensure that Goods are not encumbered by operation of law or otherwise. Should Goods become subject to any encumbrance by operation of law or otherwise and NEO WAVE (PTY) LTD make payment of the amount necessary to procure the release thereof, such payment shall be a debt due by Client and payable to NEO WAVE (PTY) LTD on demand;
7.6.2. procure that Goods are not affixed to any premises and/or property and/or asset in such a manner that they might accede or become permanently attached to same. Client acknowledges that the Goods are and are intended to remain, movable property;
7.6.3. not sell, offer for sale, transfer, lease, assign, charge, encumber or otherwise dispose of, deal with or part with possession of the Goods or any interest therein;
7.6.4. not cause nor allow any alteration, adjustment, modification, repair (including any attempt to repair) or attachment of other products to Goods, by anyone other than NEO WAVE (PTY) LTD or a duly qualified and expert third party approved by NEO WAVE (PTY) LTD in writing. Under no circumstances shall NEO WAVE (PTY) LTD be liable to compensate Client for any alteration, adjustment, modification, repair or attachment to Goods all of which shall become the property of NEO WAVE (PTY) LTD;
7.6.5. not cause nor allow any identification mark, name or notice on any Goods to be altered, obscured or removed in any way or manner;
7.6.6. allow NEO WAVE (PTY) LTD to inspect each Site and Client’s premises, generally, at all reasonable times on demand, in order to inspect the Goods and Client’s use of the Goods.
7.7. Client shall notify in writing –
7.7.1. NEO WAVE (PTY) LTD, of the name and contact details of the landlord, owner and mortgagee of each Site to which Hardware is to be delivered;
7.7.2. the landlord of any Site to which Goods may be delivered, of the reservation and vesting of ownership in NEO WAVE (PTY) LTD and, if requested to do so by NEO WAVE (PTY) LTD, provide written acknowledgement by the landlord thereof to NEO WAVE (PTY) LTD. Client acknowledges that NEO WAVE (PTY) LTD may give similar notice to the landlord.
8.1. NEO WAVE (PTY) LTD hereby grants Client a personal, non-exclusive and nontransferable license to use each item of Software during the term of this Agreement for the purposes of processing Client’s data for its own internal business purposes and upon the associated license parameters described in Appendix 1, including the number of instances which may be installed, the identified Site where it may be installed and/or the identified CPU on which it may be installed.
8.2. Should the identified CPU on which any item of Software is installed-?
8.2.1. become unavailable or unable to read and execute the Software, Client may temporarily install that Software on an alternative CPU until such time as the original CPU is again available or capable of reading and executing the Software, in which case Client shall DE install the Software from the CPU on which it was temporarily installed;
8.2.2. be permanently de-commissioned, Client shall de-install the Software from the de-commissioned identified CPU and install it on a replacement CPU which replacement CPU shall become the identified CPU for all purposes in terms of this Agreement.
8.3. On each occasion, Client shall notify NEO WAVE (PTY) LTD in writing of each temporary installation and subsequent de-installation and any decommissioning de-installation and replacement installation, immediately after its occurrence.
8.4. Client irrevocably undertakes and agrees that upon termination for whatever reason of the license granted in respect of any item of Software, Client shall –
8.4.1. immediately cease use of that item of Software;
8.4.2. immediately de-install every copy (including partial copy) of that Software;
8.4.3. at the option of NEO WAVE (PTY) LTD notified in writing to Client and instead of returning it, destroy every copy and partial copy of that item of Software, and certify its compliance with the aforesaid requirements by way of a written notice addressed by a director of Client to NEO WAVE (PTY) LTD.
8.5. Commodity Software
8.5.1. Client agrees that Software identified in Appendix 1 as third party commodity software (“Commodity Software”) is freely available for acquisition by Client from multiple sources on the open market and shall be licensed to Client on its accompanying license terms, including terms relating to warranties and remedies, and accordingly orders it from NEO WAVE (PTY) LTD on that basis. Client warrants that at the Date of Signature hereof, it shall have sought out, familiarized itself with and agreed to such accompanying license terms. Client agrees to look solely to the warranties and remedies, if any, provided by the original licensor or supplier of such Commodity Software, to the exclusion of all warranties and remedies afforded to Client in terms of this Agreement.
8.5.2. Any delays incurred in the performance of Agreement arising directly or indirectly out of or in connection with Client’s failure to agree the accompanying license terms of, or cancelling any order for, such Commodity Software, shall be for the risk of Client who hereby indemnifies NEO WAVE (PTY) LTD against same. Any costs, penalties or charges incurred by NEO WAVE (PTY) LTD resulting from the cancellation of any order for such Commodity Software shall be for the account of Client who shall reimburse these to NEO WAVE (PTY) LTD upon demand.
8.6. Client shall not be entitled to use Software to offer data processing, hosting, application service provider, timesharing, facilities management, outsourcing or bureau services to third parties unless Client shall have entered into a separate license agreement with NEO WAVE (PTY) LTD which specifically authorizes such use and made payment to NEO WAVE (PTY) LTD of all associated license fees.
8.7. Client may make 2 complete copies of each item of Software licensed to Client and retain 1 copy for back-up purposes, and 1 copy for disaster-recovery purposes. Client shall –
8.7.1. notify NEO WAVE (PTY) LTD in writing of each copy made and its location;
8.7.2. ensure that each copy (including any partial copy) bears all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices as are included on the original, and shall not cause nor allow any such mark, name or notice to be altered, obscured or removed in any way or manner;
8.7.3. not use any back-up or disaster-recovery copy in productive use, except in circumstances where Client has experienced a disaster, or other than for the limited purpose of testing Client’s disaster-recovery facilities, not to exceed 7 days in any 12-month period.
8.8. Client shall not in any way de-compile, disassemble or reverse engineer the whole or any part of any Software.
8.9. Client shall not translate, adapt, vary, modify or create any derivative work from any Software or have any software or other program written or developed for itself based on the Software or on any Confidential Information.
8.10. Client acknowledges and agrees that the Software contains purpose designed access codes and time-locks which are specifically designed to control proper and authorized licensing of the Software by way of license keys. Client shall not in any way remove, bypass or de-activate (nor attempt nor permit any attempt to remove, bypass or deactivate) such access codes and time-locks. A breach of this provision by Client shall be material going to the root of this Agreement.
8.11. Client acknowledges that whilst NEO WAVE (PTY) LTD takes reasonable care to exclude then-known Destructive Elements from the media on or from which Software is supplied, no warranty is given that Software is free of Destructive Elements.
8.12. Software licensed to Client in terms of this Agreement (including Customized Software and Commodity Software), is not automatically supported and the license does not entitle Client to Updates, Upgrades, New Releases or Support Services therefore. Should Client wish to acquire any Updates, Upgrades, New Releases or Support Services these should be contracted for with, and acquired from, NEO WAVE (PTY) LTD separately. Client agrees that the terms of this Agreement shall apply to any such Updates, Upgrades, New Releases or Support Services so contracted for by Client.
- GENERAL TERMS RELATING TO SERVICES
9.1. Should NEO WAVE (PTY) LTD be delayed or prevented from performing its obligations by factors beyond NEO WAVE (PTY) LTD’s reasonable control, including Client’s failure to perform its responsibilities in a timely manner, NEO WAVE (PTY) LTD shall be entitled to an equitable adjustment in the Delivery Dates and consideration described herein.
9.2. Client agrees and acknowledges that all engineering, diagnostic, maintenance and support manuals and documentation supplied and used by NEO WAVE (PTY) LTD but located at the Site or Client’s premises generally, are the property of and include Confidential Information of NEO WAVE (PTY) LTD. Client shall safeguard such materials and ensure that they are used only by NEO WAVE (PTY) LTD. Client agrees that NEO WAVE (PTY) LTD may remove them from Client’s premises or Site at any time and hereby irrevocably grants NEO WAVE (PTY) LTD the right to enter upon any Site or Client’s premises generally at any time during Client’s normal business hours to remove them.
- INSTALLATION SERVICES
10.1. Installation Services comprise installation and commissioning by NEO WAVE (PTY) LTD of the Goods at the Site within a reasonable period after their delivery to Client, during normal working hours. Installation Services shall be charged for on a Time and Materials basis, failing agreement to the contrary.
10.2. Installation Services do not include installation, supply or connection of external electric current supplies required to meet NEO WAVE (PTY) LTD’s electric power requirements from the main power source nor does it include the installation, supply or connection of any LAN, WAN or VPN beyond the network point.
10.3. Client shall provide a dedicated power point and dedicated network point within a 1-meter radius of each item of Hardware’s designated location at the Site.
10.4. Client shall pay all costs incurred by NEO WAVE (PTY) LTD in relation to rigging, hoisting equipment and related labour costs, and, costs to comply with any local law requirements, all of which costs are deemed to be Reimbursable Expenses.
10.5. Installation Services for Goods shall be deemed to have been duly and properly performed and the Goods properly installed when the Goods have been unpacked, assembled (where applicable), connected to a power point and network point (where applicable), and, their in-built diagnostics and test routines have run successfully. Client shall acknowledge proper installation of the Goods by signing the accompanying Delivery and Installation Certificate to that effect.
- CLIENT’S OBLIGATIONS
Client shall –
11.1. not cause nor allow Goods to be removed from or relocated at the Site without NEO WAVE (PTY) LTD’s prior written consent;
11.2. maintain Goods in good condition, good and proper working order and complete;
11.3. acquire and install lightning or power surge protection and other safety or protection devices as NEO WAVE (PTY) LTD may reasonably require;
11.4. provide NEO WAVE (PTY) LTD access to the Site and the Goods during normal working hours and at such other times as NEO WAVE (PTY) LTD may reasonably request, to enable NEO WAVE (PTY) LTD to deliver Goods, perform the Services and generally perform its obligations as required by this Agreement;
11.5. use and store Goods at the Site within the environmental specifications specified in their Documentation or by their manufacturer or licensor or by NEO WAVE (PTY) LTD from time to time;
11.6. not cause nor allow Goods to be used other than by persons who have successfully completed appropriate training in the use of the Goods and then only for the purpose for which they were designed;
11.7. perform the obligations recorded in this Agreement in a timely manner and shall facilitate the due performance by NEO WAVE (PTY) LTD of its obligations which are in whole or in part dependent on timely performance by Client;
11.8. ensure that all Intellectual Property used by Client on or in connection with the Goods or Services or to which NEO WAVE (PTY) LTD is given access by Client, is duly and properly licensed or authorized. Client indemnifies and holds NEO WAVE (PTY) LTD harmless against all Losses incurred by NEO WAVE (PTY) LTD arising directly or indirectly out of or in connection with any claim, demand, charge, action, cause of action, or other proceeding made or brought against NEO WAVE (PTY) LTD by any third party for infringement or unauthorized use of such Intellectual Property;
11.9. provide all Client information, data and documentation reasonably required for NEO WAVE (PTY) LTD to duly and properly perform the Services, including contact with Client’s Staff who have access to it as part of their normal duties;
11.10. provide all necessary assistance reasonably requested by NEO WAVE (PTY) LTD to enable NEO WAVE (PTY) LTD to properly perform its obligations hereunder;
11.11. provide secure parking and space for NEO WAVE (PTY) LTD’s Staff at the Site, including access to electrical power points, telephone and fax services, to enable NEO WAVE (PTY) LTD to carry out the Services;
11.12. be solely responsible for the transfer of its work onto the Goods and proving the operation and the use of the Goods in its business and operations;
11.13. be solely responsible for the use of the Goods including audit controls, operating procedures, security of input and output data, restart and recovery routines, and any other procedures necessary for Client’s intended use of the Goods;
11.14. be solely responsible for ensuring the accuracy, correctness and completeness of all input and/or output data to be used on or in conjunction with the Goods, prior to the use of such data on or in conjunction with the Goods or in Client’s business and operations;
11.15. be solely responsible for compliance with and the giving of instructions to NEO WAVE (PTY) LTD relating to all legal and regulatory requirements governing Client’s business and operations.
- CONSIDERATION AND PAYMENT TERMS
12.1. Client undertakes and warrants that it shall retain proof of payment of the Monthly Rental and Support Services fees in the form of bank statements or paid cheques. Accordingly, and in terms of §20(7) of the Value-Added Tax Act, 1991 read together with VAT Practice Note No. 2 of 1991, no tax invoice shall be required to be issued by NEO WAVE (PTY) LTD in respect of the Monthly Rental or Support Services fees due by Client in terms of this Agreement.
12.2. During the term of this Agreement, Client shall pay to NEO WAVE (PTY) LTD –
12.2.1. the Monthly Rental, monthly in advance on or before the 27th day of the preceding month to which it relates;
12.2.2. Support Services fees, monthly in advance on or before the 27th day of the preceding month to which they relate.
12.3. All other charges and all fees for all other Services shall become due and owing upon the dates described in this Agreement failing which they shall become due and owing upon their delivery or performance or tendered delivery or performance to Client, and shall thereafter be payable by Client within 30 days from the date of a valid tax invoice from NEO WAVE (PTY) LTD.
12.4. Client shall be liable for Reimbursable Expenses reasonably incurred by NEO WAVE (PTY) LTD in performing its obligations under this Agreement. NEO WAVE (PTY) LTD shall invoice Client monthly in arrears for Reimbursable Expenses plus a reasonable mark-up thereon for administration and handling.
12.5. Client shall pay each Monthly Rental, all Support Services fees, all other charges and fees and all Reimbursable Expenses when they become payable and shall not defer, delay or withhold payment under any circumstances, including when they are disputed. Payment shall be made to NEO WAVE (PTY) LTD’s bankers, free of exchange, set-off and any other deduction, and payment shall not be effected until the funds have been cleared to and received by NEO WAVE (PTY) LTD’s bankers.
12.6. NEO WAVE (PTY) LTD shall be entitled at any time and from time to time upon written notice to Client to change its banker’s details and/or to direct that Client make payment in any other manner to any address within the Republic of South Africa. Payments to bankers or to addresses other than those so directed shall not have the effect of discharging Client’s obligations.
12.7. The Monthly Rental and the Support Services fees are inclusive of VAT at the prevailing rate as at the Effective Date and/or the date on which Support Services commence, as the case may be. Client shall bear the risk of any increase in the prescribed rate of VAT affecting the Monthly Rental and Support Services fees and NEO WAVE (PTY) LTD shall be entitled to adjust the Monthly Rental and Support Services fees accordingly, without prior notice to Client.
12.8. All other charges payable in terms of this Agreement are exclusive of VAT which shall be charged to Client in addition, at the rate and in the manner for the time being prescribed by law.
12.9. The Monthly Rental, Support Services fees and all other charges payable in terms of this Agreement are exclusive of –
12.9.1. any taxes or duties which are levied or charged by any revenue authority (including the South African Revenue Services), all of which shall be for the account of Client. Should Client be obliged to deduct any withholding taxes from any amounts due to NEO WAVE (PTY) LTD,
22.214.171.124. the amount payable by Client shall be grossed up by Client such that after deduction of the withholding tax, NEO WAVE (PTY) LTD receives the full amount specified in the Agreement;
126.96.36.199.Client undertakes and warrants that it shall make due and timely payment of such withholding taxes due by it to the appropriate revenue or other government authority;
12.9.2. any other fees and costs (including freight, delivery and insurance), all of which shall be for the account of Client.
12.10. If during the term of this Agreement any change occurs in legislation (or its interpretation) or banking practice which increases the cost to NEO WAVE (PTY) LTD of performing or maintaining this Agreement, then NEO WAVE (PTY) LTD shall be entitled on each such occurrence without prior notice to Client, to increase the Monthly Rental by an amount which gives NEO WAVE (PTY) LTD the same after tax return on its investment as that calculated at the Effective Date, taking into account the same factors used to calculate the present after tax return.
12.11. Where Appendix 1 identifies that the Monthly Rental has been determined based on a Foreign Currency, that Monthly Rental shall fluctuate with any appreciation or depreciation in the exchange rate between the South African Rand and the Foreign Currency from the Date of Signature hereof (“1st Date”) until the date the Goods arrive at customs in the Republic of South Africa (“2nd Date”). Client shall bear the risk and receive the benefit of any variation in the exchange rate. The ZAR/Foreign Currency rate quoted by Nedbank Limited, Commercial branch as their 1-month forward rate for imports at 10:00 on the 2nd Date, shall be used to determine any fluctuation in the exchange rate. Any dispute as to the exchange rate to be utilized in terms of this clause shall be finally determined by the branch manager of Nedbank Limited, Commercial branch, (whose authority it shall not be necessary to prove) acting as an expert.
12.12. Should NEO WAVE (PTY) LTD agree to purchase forward cover for any Foreign Currency exposure, the cost of acquiring such forward cover is deemed to be a Reimbursable Expense.
12.13. The Monthly Rental and the fees for Services shall adjust upwards each year on the anniversary of the Effective Date, by the Annual Percentage Change.
12.14. Any amount not paid by Client on due date to NEO WAVE (PTY) LTD shall bear interest at the prime lending rate charged by Nedbank Limited to its most favored private individual clients on an unsecured overdraft basis from time to time, plus 5 percentage points, as certified by any branch manager of that bank whose authority it shall not be necessary to prove, calculated from due date to date of actual payment, both days inclusive.
12.15. A certificate under the hand of any director of NEO WAVE (PTY) LTD, whose appointment it shall not be necessary to prove, specifying the amount of any debt owed by Client under this Agreement, shall be prima facie evidence of Client’s indebtedness to NEO WAVE (PTY) LTD for the purposes of seeking a judgment or order against Client in a court of law.
12.16. Any failure by Client to make any payment on due date shall be a material breach of these terms going to the root of this Agreement and shall entitle NEO WAVE (PTY) LTD, inter alia, to refuse to make further deliveries of Goods and to immediately suspend the provision of any and/or all Services until such time as all arrears have been paid in full, including any interest due.
12.17. Should Client commit a material breach of this Agreement or breach any other terms of this Agreement and fail to remedy same timeously, or should an event of default occur to Client as described in clause 22, all amounts due by Client to NEO WAVE (PTY) LTD in terms of this Agreement shall become immediately due, owing and payable to NEO WAVE (PTY) LTD whether or not the due date for same has arrived, and Client shall make payment of those amounts.
13.1. The Parties shall treat all Confidential Information as strictly confidential. The Receiving Party shall not directly or indirectly use the Disclosing Party’s Confidential Information for its own benefit nor for the benefit of any other person nor for any purpose other than carrying out its obligations in accordance with and upon the terms of this Agreement.
13.2. The Receiving Party shall not disclose the Confidential Information to any person whomsoever other than the Receiving Party’s Staff who are directly involved in carrying out the Receiving Party’s obligations in terms of this Agreement and then only on a need-to-know basis. Before revealing any Confidential Information to them, the Receiving Party shall procure that Staff are made aware of the confidential nature of the Confidential Information being made available to them and that Staff who are –
13.2.1. employees, have each signed an undertaking with like obligations of confidentiality; and
13.2.2. sub-contractors, independent contractors, other representatives or agents, have each signed a separate undertaking in favor of the Disclosing Party with like obligations of confidentiality.
13.3. The Receiving Party shall procure that its Staff observe and comply with these said confidentiality obligations, whether or not they continue to be employed or contracted by the Receiving Party.
13.4. The Receiving Party shall initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorized disclosure of the Confidential Information.
13.5. The Receiving Party shall use the same standard of care (which shall not amount to less than a reasonable standard of care) in protecting the Confidential Information as it uses to protect its own confidential information.
13.6. Should it be required to disclose Confidential Information pursuant to clause 1.4.7, the Receiving Party shall advise the Disclosing Party thereof prior to disclosure, if possible, and shall further, to the extent it is lawfully able to, take such steps to limit the extent of the disclosure and afford the Disclosing Party a reasonable opportunity to intervene in the proceedings and shall comply with the Disclosing Party’s requests as to the manner and terms of any such disclosure.
13.7. Upon termination or expiry of this Agreement, the Parties shall deliver to each other or, at the Disclosing Party’s written election, the Receiving Party shall destroy all originals and copies (including partial copies) of the Disclosing Party’s Confidential Information received by the Receiving Party or in its possession, and all notes (in any media or format) which it may have prepared or may have obtained as a result of the Confidential Information being made available to it, and the Receiving Party shall certify its compliance with the aforesaid requirements by way of a written notice addressed by a director of the Receiving Party to the Disclosing Party.
13.8. The Parties acknowledge and agree that for the purposes of section 37(1) and/or 64(1) (as the case may be) of the Promotion of Access to Information Act, 2000, the Confidential Information is information provided in confidence by the Disclosing Party.
- INTELLECTUAL PROPERTY
14.1. All Intellectual Property owned by NEO WAVE (PTY) LTD or the Clients Franchisor and all modifications made by Franchisor to that Intellectual Property, shall at all times remain the sole property of NEO WAVE (PTY) LTD and the Clients Franchisor. Client shall not acquire any rights, title or interest of any kind in any Intellectual Property owned by NEO WAVE (PTY) LTD or the Clients Franchisor. Unless specifically authorized in this Agreement or in writing by NEO WAVE (PTY) LTD or the Clients Franchisor and then only to the extent so authorized, Client shall have no right to use NEO WAVE (PTY) LTD or Franchisor’s Intellectual Property in any manner whatsoever. This includes but is not limited to menu listings, pricing, recipes, suppliers and any other details supplied by Franchisor and instructed to be removed should the Client no longer remain a Franchisee of the Franchisor.
14.2. Any Intellectual Property rights including those contained in material or documentation (in any media or format) which are prepared, created or authored by or for Client (and whether or not by NEO WAVE (PTY) LTD alone or by NEO WAVE (PTY) LTD in conjunction with Client) in terms of this Agreement shall belong exclusively and in totality to NEO WAVE (PTY) LTD and in this regard Client hereby irrevocably and in perpetuity cedes, assigns and makes over (with effect from inception in respect of future copyright, as the case may be) its entire world-wide right, title and interest in and to any such Intellectual Property rights to NEO WAVE (PTY) LTD and, further, hereby waives in favor of NEO WAVE (PTY) LTD the full and complete right to claim authorship of and all rights to object to any distortion, mutilation or other modification to any such Intellectual Property rights which would be prejudicial to its honor or reputation. NEO WAVE (PTY) LTD shall be entitled by written notice to request Client, from time to time, to sign any deeds and documents and to take all such actions as may be necessary for NEO WAVE (PTY) LTD to perfect its rights of ownership over any such Intellectual Property. Client hereby irrevocably appoints NEO WAVE (PTY) LTD as its attorney in rem suam with the right on behalf of Client to sign all such deeds and documents and to take all such actions as may be necessary for NEO WAVE (PTY) LTD to perfect its rights of ownership over such Intellectual Property should Client fail to comply with any such written request within 3 Business Days after date thereof.
15.1. Client acknowledges that NEO WAVE (PTY) LTD has invested substantial time and expense in recruiting, hiring, training and retaining its Staff. Client shall not without the prior written consent of NEO WAVE (PTY) LTD, either during or within 12 months after termination or expiration of this Agreement, solicit for employment, whether directly or indirectly, any person who at any time during the duration of this Agreement, was a member of NEO WAVE (PTY) LTD’s Staff.
15.2. Should Client breach the provisions of this clause 15, Client shall be liable to pay NEO WAVE (PTY) LTD should it so elect, as a penalty, an amount equivalent to twice the then-current gross annual package on a ‘total cost to company’ basis (including incentives, bonuses, allowances and all employer contributions) to which such Staff member was entitled and/or which were made on behalf of or to the direct or indirect benefit of such Staff member during his/her employment immediately prior to termination thereof.
- US EXPORT REGULATIONS
Client shall not sell, lease, license, export or otherwise dispose of any Goods, proprietary information or associated technical data or documentation to any person, firm, corporation, or government entity which Client knows or should have reason to believe shall export, resell, use or otherwise dispose of same in any country or territory where the disposition is prohibited or regulated by law, including the export administration regulations of the Bureau of Industry and Security of the United States Department of Commerce: provided that, this restriction shall not apply if a license has been issued by the appropriate USA agency giving its consent and the transaction is otherwise lawful.
17.1. NEO WAVE (PTY) LTD warrants that each item of Goods delivered shall be of good quality and workmanship and shall operate substantially in accordance with its associated Documentation throughout the Warranty Period. Should any Goods fail to meet the terms of the warranty, Client shall immediately notify NEO WAVE (PTY) LTD in writing identifying the affected item of Goods, giving the waybill/delivery note number under which it was shipped and describing the defect, and, promptly thereafter, ship the item to NEO WAVE (PTY) LTD. NEO WAVE (PTY) LTD shall at its option repair or replace the defective item of Goods at no further cost to Client. Client shall pay transportation and insurance costs to ship the failed item to NEO WAVE (PTY) LTD and NEO WAVE (PTY) LTD shall pay return transportation and insurance costs.
17.2. NEO WAVE (PTY) LTD warrants that it shall provide Services in a workmanlike manner and with due care.
17.3. NEO WAVE (PTY) LTD warrants that whilst on the Site or Client’s premises generally, it shall (and shall procure that its Staff shall) comply with all legislation affecting the operations of Client as are notified by Client in writing to NEO WAVE (PTY) LTD, including occupational health and safety.
17.4. NEO WAVE (PTY) LTD warrants that it is the owner of or has valid title to each item of Goods supplied to Client and is entitled to grant rights therein to Client as envisaged in this Agreement.
17.5. Notwithstanding anything to the contrary herein contained, NEO WAVE (PTY) LTD does not warrant that Software shall be completely free of errors or that all errors shall be corrected completely, nor that they shall meet all of Client’s requirements, nor that they shall operate in all combinations selected for use by Client.
17.6. Goods under warranty may require ongoing support and the warranty provided is not a substitute for Support Services which may be contracted for by Client separately.
17.7. The warranties provided exclude the supply or replacement of expendable and consumable items, including supplies, tape or disk media, printer bands, print heads, printer drums, batteries, toner, ink, ribbons or any other similar items.
17.8. The warranties provided in this clause 17 shall fall away and not apply in respect of defects due to or resulting from –
17.8.1. Goods not being used or stored within the environmental specifications specified in their Documentation or by their manufacturer or licensor or by NEO WAVE (PTY) LTD from time to time;
17.8.2. Goods being installed, configured or commissioned by anyone other than NEO WAVE (PTY) LTD;
17.8.3. Goods being used by persons who have not successfully completed the appropriate training in the use of the Goods;
17.8.4. Goods being altered, adjusted, modified, repaired (including any attempt to repair) or having other products attached to them, by anyone other than NEO WAVE (PTY) LTD;
17.8.5. external factors including Force Majeure or failure or fluctuation of electrical power or air conditioning or telecommunications services;
17.8.6. relocation of Goods from their designated location at the Site by persons other than NEO WAVE (PTY) LTD;
17.8.7. theft, vandalism, accidents, misuse, negligence or failure by Client (or its Staff) to follow instructions for the proper use of the Goods;
17.8.8. Destructive Elements;
17.8.9. Client’s failure to acquire and install any update or upgrade to the Software specified by NEO WAVE (PTY) LTD from time to time;
17.8.10. Client’s failure to install any update or upgrade to any hardware or software product comprising part of Client’s environment, as specified by NEO WAVE (PTY) LTD from time to time.
17.9. Should NEO WAVE (PTY) LTD be required to provide services to Client as described in clause 17.8, NEO WAVE (PTY) LTD shall provide such services on an ad hoc basis, charging on a Time and Materials basis and subject to the availability of necessary Staff and resources, but otherwise mutatis mutandis upon the terms of this Agreement.
17.10. Except as provided in this clause 17, Goods and Services are provided voetstoots (as-is). To the extent permissible by law, NEO WAVE (PTY) LTD disclaims all warranties whether expressed or implied or arising by operation of law or otherwise, in respect of Goods supplied to and/or Services performed for Client. NEO WAVE (PTY) LTD specifically disclaims implied warranties of fitness for a particular purpose and/or merchantability. Warranties given by NEO WAVE (PTY) LTD in terms of this Agreement extend solely to Client and are not transferable.
17.11. Client warrants that –
17.11.1. all information supplied to NEO WAVE (PTY) LTD by Client or anyone on its behalf concerning Client’s business, in whatever form, is true and correct in all material respects including, in particular, all information supplied to NEO WAVE (PTY) LTD during its investigation prior to the Effective Date including balance sheets, income statements, cash flows, profit forecasts and other financial statements or accounts;
17.11.2. all information as envisaged in clause 17.11.1 and which may be supplied to NEO WAVE (PTY) LTD in the future will be true at the relevant time and shall thereafter remain true and correct in every material aspect;
17.11.3. all Monthly Rental payments due in terms hereof are wholly or partly deductible from Client’s income under Part 1/Chapter II of the Income Tax Act, 1962.
- GENERAL INDEMNITIES
18.1. Client hereby indemnifies and holds NEO WAVE (PTY) LTD and its respective officers, directors, Staff, successors, and assigns (in whose favor this constitutes a stipulatioalteri), harmless from all and any Losses arising directly or indirectly out of or in connection with any claim, demand, charge, action, cause of action or other proceeding (including product liability) arising out of Client’s breach of or failure to observe or perform any of its duties or obligations in terms of this Agreement.
18.2. Each Party (“Indemnifying Party”) hereby indemnifies and holds the other Party (“Indemnified Party”) and its officers, directors, Staff, successors, and assigns (in whose favor this constitutes a stipulatioalteri) harmless from any and all Losses arising directly or indirectly out of or in connection with any claim, demand, charge, action, cause of action or other proceeding brought by the Indemnified Party or any of its Staff, clients, business visitors or other affected persons in respect of –
18.2.1. the death or bodily injury of any person;
18.2.2. the damage, loss or destruction of any real or tangible personal property of any person, caused by the Indemnifying Party. The provisions of clauses 20.1 and 20.2 in favor of NEO WAVE (PTY) LTD shall not extend to indemnified claims as described in this clause 18.2 where NEO WAVE (PTY) LTD is the Indemnifying Party.
- INDEMNITY AGAINST INTELLECTUAL PROPERTY INFRINGEMENT
19.1. NEO WAVE (PTY) LTD hereby indemnifies Client against Losses arising directly out of any claim or lawsuit brought by a third party that Goods provided in terms of this Agreement infringe a Republic of South Africa patent or copyright or are subject to claims of misappropriation of trade secrets protected by South African law, as a result of Client’s use thereof, provided that this indemnity shall fall away and be of no force or effect should Client –
19.1.1. fail to promptly notify NEO WAVE (PTY) LTD in writing of such claims or lawsuits;
19.1.2. make any admission or settlement or attempt at settlement in respect of any such claims or lawsuits;
19.1.3. fail to permit NEO WAVE (PTY) LTD to defend or settle the claim or lawsuit exclusively; and
19.1.4. fail to provide all reasonable assistance, at its own cost, to NEO WAVE (PTY) LTD in defending or settling any such claim or lawsuit.
19.2. Where any Goods become the subject of any such claims or lawsuit, NEO WAVE (PTY) LTD, at its sole discretion, may choose to either –
19.2.1. obtain the right of use of the Goods if commercially practicable; or
19.2.2. replace or modify the Goods to avoid the claim of infringement; or
19.2.3. demand that Client cease use of the item of Goods and return it to NEO WAVE (PTY) LTD in which case NEO WAVE (PTY) LTD shall refund Client the consideration paid by Client for that item of Goods less a reasonable charge for use and obsolescence based upon a 5-year straight line depreciation method, provided that in the case of Software whose license is less than 5 years, the charge shall be based upon a straight line depreciation method equal to the period of the license.
19.3. This indemnity shall not apply if such claim or lawsuit –
19.3.1. is made by a parent, subsidiary or affiliate of Client or Client’s holding company (or any organ/body of state where Client is an organ/body of state);
19.3.2. results from any modification, alteration, repair or addition made by Client to the Goods to the extent that if it were removed, the infringement or violation would cease;
19.3.3. arises out of the use by Client of the Goods in combination with any other product, service or materials;
19.3.4. results from a breach by Client of the provisions of this Agreement.
19.4. This clause 19 states the entire liability of NEO WAVE (PTY) LTD and Client’s sole and exclusive remedies for patent or copyright infringement and trade secret misappropriation.
- LIMITATION OF LIABILITY
20.1. Under no circumstances whatsoever including as a result of NEO WAVE (PTY) LTD’s negligent (including grossly negligent) acts or omissions or those of its directors, servants, agents or contractors or other persons for whom in law NEO WAVE (PTY) LTD may be liable, shall NEO WAVE (PTY) LTD or its directors or servants (in whose favor this constitutes a stipulatioalteri) be liable for any Losses which comprise indirect, extrinsic, special, penal, punitive, exemplary or consequential loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by Client, its directors, servants, dealers or customers, including any loss of profits, revenue, operation time, information (or corruption thereof) and/or contracts.
20.2. Under no circumstances whatsoever including as a result of NEO WAVE (PTY) LTD’s negligent (including grossly negligent) acts or omissions or those of its directors, servants, agents or contractors or other persons for whom in law NEO WAVE (PTY) LTD may be liable, shall NEO WAVE (PTY) LTD’s or its directors’ or servants’ (in whose favor this constitutes a stipulatioalteri) aggregate maximum liability for any Losses which comprise general or direct loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by Client, its directors, servants, dealers or customers, exceed the amount actually paid by Client to NEO WAVE (PTY) LTD for the specific item of Goods or specific Service which is the subject matter of or directly related to the cause of action asserted, during the 3 month period immediately preceding the date on which the cause of action arose.
20.3. Under no circumstances whatsoever shall NEO WAVE (PTY) LTD be liable for any loss of Client’s data regardless of how such loss is occasioned, whether due to NEO WAVE (PTY) LTD’s negligence or otherwise. Client acknowledges and agrees that back-up of such data is Client’s responsibility and can be undertaken easily and regularly so as to be able to restore lost data. Accordingly, Client hereby indemnifies and holds NEO WAVE (PTY) LTD harmless against all and any Losses suffered by Client arising directly or indirectly out of or in connection with the loss of any of Client’s data.
20.4. NEO WAVE (PTY) LTD may from time to time during the course of this Agreement refer Client to third party products and services. Regardless of any reference or representation so made to Client, Client acknowledges that the final business decision to use any such third party products or services vests with Client and that all associated risks and liabilities are assumed by and remain with Client. Accordingly, Client indemnifies and holds NEO WAVE (PTY) LTD harmless against all and any Losses incurred by Client arising directly or indirectly out of or in connection with its acquisition or use of any such third party products or services.
Subject to clause 22, should either Party breach 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 fail to remedy such breach within 30 days of receipt of notice requiring it to do so and warning that if the breach is not so remedied, the other Party may exercise its rights in terms of this clause, then the other Party shall be entitled without notice to claim specific performance and/or Losses in respect thereof but shall not be entitled to cancel this Agreement.
- EVENTS OF DEFAULT
Not withstanding anything to the contrary herein contained, if Client –
22.1. fails to make payment of any Monthly Rental when due;
22.2. misrepresents its financial affairs or any other information to NEO WAVE (PTY) LTD;
22.3. fails to insure or maintain insurance for the Goods if the insurance provided by NEO WAVE (PTY) LTD as detailed herein is refused, whether it be at the instance of Client or NEO WAVE (PTY) LTD;
22.4. abandons any or all of the Goods;
22.5. commits an act which is or would be an act of insolvency within the meaning of §8 of the Insolvency Act, 1936 (if committed by a natural person) or §344 of the Companies Act, 1973 or §69 of the Close Corporations Act, 1984;
22.6. allows any judgment against it to remain unsatisfied for a period of 10 days, unless it takes steps to rescind or appeal against such judgment within such 10-day period and thereafter successfully prosecutes such rescission or appeal to a timely conclusion;
22.7. compromises or attempts to compromise or defer payment of any debt owing by it to its creditors generally or to any class of its creditors generally;
22.8. being a juristic person is provisionally or finally liquidated, removed from the register of companies, placed under judicial management (whether provisionally or finally) or is placed in or under any other similar or replacement regime covered from time to time by South African insolvency law, or takes any steps for its voluntary winding up or undergoes a change of control;
22.9. being a juristic person undergoes a change in the beneficial ownership of any or all of the shares or interest therein without the prior written consent of NEO WAVE (PTY) LTD;
22.10. disposes of all or a material portion of its assets or business or ceases (including where there is a reasonable prospect of cessation) to conduct its business;
22.11. suffers any of its assets to be attached;
22.12. encumbers or hypothecates in any manner whatsoever a material portion of its assets, then, in addition to any other remedies to which NEO WAVE (PTY) LTD may be entitled in terms of this Agreement or in law –
22.13. all amounts due by Client to NEO WAVE (PTY) LTD in terms of this Agreement shall become immediately due, owing and payable to NEO WAVE (PTY) LTD whether or not the due date for same has arrived;
22.14. NEO WAVE (PTY) LTD shall be entitled, but not obliged, to terminate this Agreement at any time upon written notice to that effect to Client and to take immediate possession of the Goods.
- FORCE MAJEURE
23.1. If vis major or force majeure or casus fortuitus (“Force Majeure”) cause delays in or failure or partial failure of performance by a Party of all or any of its obligations, this Agreement, or as the case may be the affected portion thereof, shall be suspended for the period during which the Force Majeure prevails, but if they affect any material part of the Agreement it shall be suspended only for a maximum period of 120 days after which any affected Party shall be entitled on 30 days’ written notice to cancel this Agreement. Written notice of a Force Majeure event specifying its nature and commencement date shall be dispatched by the Party seeking to rely on it (on whom the onus shall rest) as soon as reasonably possible after its commencement. Written notice of the cessation of the Force Majeure event shall be given by the Party who relied on it, within 5 days after such cessation. The Party whose performance is interrupted by Force Majeure shall be entitled, provided that such Party shall give notice to that effect with the written notice of the Force Majeure event as provided above, to extend the period of this Agreement by a period equal to the time that its performance is so prevented.
23.2. For the purposes of this clause, vis major and force majeure include acts or omissions of any government, government agency, provincial or local authority or similar authority (but, where Client is an organ/body of state specifically excluding acts or omissions by Client which are not the exercise of executive government powers), any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts of war or public enemy, illegal strikes, interruption of transport, lockouts, interruption of essential services from public utilities (including electricity, water and sewerage), inability on the part of NEO WAVE (PTY) LTD as a result of force majeure of the nature contemplated in this clause to obtain the goods from its supplier or contemplated supplier (including any telecommunications supplier), combination of workmen, prohibition of exports, rationing of supplies, flood, storm, fire or (without limitation eiusdem generis) any other circumstances beyond the reasonable control of the Party claiming force majeure or vis major and comprehended in the terms force majeure or vis major.
23.3. Notwithstanding anything to the contrary herein, the provisions of this clause 23 shall not apply to payment of the Monthly Rental which obligation shall not be suspended but shall continue of full force and effect throughout any period during which Force Majeure prevails.
- DOMICILIUM CITANDI ET EXECUTANDI
24.1. The Parties choose as their domiciliacitandi et executandi for all purposes in terms of this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), their respective addresses described on the face page hereof.
24.2. 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 fax.
24.3. Party may by notice to the other Party change the physical address chosen as its domiciliumcitandi et executandi to another
24.4. physical address where postal delivery occurs in the Republic of South Africa, or its postal address or its fax number, provided that the change shall become effective on the 5th Business Day from the deemed receipt of the notice by the other Party.
24.5. A notice to a Party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domiciliumcitandi et executandi to which post is delivered, shall be deemed to have been received on the 5th Business Day after posting (unless the contrary is proved).
24.6. A notice to a Party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domiciliumcitandi et executandi, shall be deemed to have been received on the day of delivery.
24.7. A notice to a Party sent by fax to its chosen fax number, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
24.8. Notwithstanding the foregoing, 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 domiciliumcitandi et executandi.
- CESSION AND ASSIGNMENT
25.1. Client shall not be entitled to cede, delegate, assign or in any other manner dispose of any of its rights or obligations arising out of this Agreement without the prior written approval of NEO WAVE (PTY) LTD which may withhold its approval in its sole and absolute discretion.
25.2. NEO WAVE (PTY) LTD (and any cessionary in terms of this Agreement) shall be entitled to cede all or any of its rights under this Agreement, including its right to receive payment of any monies and/or its rights of ownership of the Goods and/or its rights in and to any insurance policy referred to herein, without notice to Client. Client agrees to hold the Goods on behalf of and to make all payments direct to such cessionary and, further, to comply with all written instructions of such cessionary in this regard.
25.3. Any reference in this Agreement to NEO WAVE (PTY) LTD shall include a reference to any cessionary in terms of this Agreement.
25.4. This clause 25 shall be binding on the liquidator, judicial manager or trustee (whether provisional or final) of Client.
NEO WAVE (PTY) LTD shall be entitled to sub-contract its obligations in terms of this Agreement as determined by NEO WAVE (PTY) LTD.
27.1. During the term of this Agreement and for 6 months after its termination, neither Party shall make or issue, directly or indirectly, any formal, informal, public or private announcement, advertisement or statement in connection with this Agreement or the negotiations leading up to it without the express prior written consent of the other Party, which consent shall be obtained both in relation to the fact and to the contents of the announcement, advertisement or statement, provided that NEO WAVE (PTY) LTD shall be entitled to name Client as a client of its products and services in its general marketing material.
27.2. The provisions of clause 27.1 shall not apply in respect of any announcement, advertisement or statement to the extent that it is required by law or by any published regulations of the JSE Limited applicable to corporate bodies in general.
- RELATIONSHIP OF PARTIES
The Parties’ relationship shall be governed by this Agreement. Nothing in this Agreement shall be deemed to constitute Client as NEO WAVE (PTY) LTD’s partner nor constitute Client the agent or legal representative of NEO WAVE (PTY) LTD. It is not the Parties’ intention to create nor shall this Agreement be construed to create any commercial or other partnership. Client shall have no authority to act for or to assume any obligation or responsibility or pledge the credit of NEO WAVE (PTY) LTD nor to hold itself out as a partner or agent of NEO WAVE (PTY) LTD.
- GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
- SUBMISSION TO JURISDICTION
For the purpose of all proceedings hereunder, the Parties hereby consent to the jurisdiction of the magistrates’ court having territorial jurisdiction notwithstanding that such proceedings may otherwise be beyond its jurisdiction. This clause is deemed to constitute the required written consent conferring jurisdiction upon the said court in terms of§45 of the Magistrates’ Court Act, 1944, provided that either Party shall have the right, at its sole option and discretion, to institute proceedings in any other competent court. Each Party appoints any person at the address chosen as its domiciliumcitandi et executandi to receive for and on its behalf, service of process in such jurisdiction in any legal action or proceedings with respect to this Agreement. The Parties irrevocably waive any objection they may now or hereafter have that such action or proceeding has been brought in an inconvenient forum. The Parties further irrevocably consent to the service of process in any such action or proceeding as contemplated in the domicilium clause. Nothing herein shall affect the right to serve process in any other manner permitted by law.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
- WHOLE AGREEMENT, NO AMENDMENT
32.1. This Agreement constitutes the whole agreement between the Parties relating to its subject matter and replaces, supersedes and cancels in its entirety, with effect from the Effective Date, any other agreements whatsoever (whether written or oral) in force between the Parties relating to the subject matter of this Agreement. The Parties acknowledge that there are no oral or collateral agreements which in any way vary or modify this Agreement or suspend its operation.
32.2. No amendment or consensual cancellation of this Agreement or any of its provisions or terms or of any agreement or other document or instrument issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising out of this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement or other document on instrument issued pursuant to or in 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).
32.3. For purposes of clarity, it is agreed by the Parties that no alteration or variation of this Agreement or any terms thereof, regardless of whether such alteration or variation is at the instance of the Client or NEO WAVE (PTY) LTD, including any of NEO WAVE (PTY) LTD’s representatives, agents, servants or employees, shall be of any effect unless such alteration or variation is recorded in writing and signed by all Parties to this Agreement.
32.4. Any extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document or instrument issued or executed pursuant to or in terms hereof, shall be strictly construed as relating strictly to the matter in respect whereof it was made or given, shall not operate as an estoppel against any Party in respect of its rights in terms of this Agreement, and, shall not operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement.
32.5. No failure or delay on the part of either Party in exercising any right, power or privilege in terms of this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
32.6. No terms and conditions contained in any proposal, quotation, delivery note, invoice, statement or any other documents between the Parties, whether attached to this Agreement, whether exchanged on or subsequent to the Date of Signature, and whether signed by one or both of the Parties, shall in any way amend, novate or supersede the terms and conditions contained in this Agreement.
- EXECUTION IN COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
- LEGAL COSTS
Each Party shall bear and pay its own costs of or incidental to the drafting, preparation and execution of this Agreement.
Appendix 2 – Support Services
In addition to the definitions contained in the Agreement, in this Appendix 2, unless a contrary intention clearly appears, the following terms shall bear the meanings assigned to them and cognate expressions shall have corresponding meanings –
1.1. “Commencement Date” means the date so described in the table to this Appendix 2;
1.2. “Contact Centre” means NEO WAVE (PTY) LTD’s contact centre to which Service Calls are made and whose contact details are specified in the table to this Appendix 2;
1.3. “Incident” means an interruption to the function of Goods as more fully described in this clause 1.3 and which directly impacts Client’s ability to conduct business. Incidents have varying levels of severity, each of which has the following meaning –
1.3.1. “Severity 1” means an Incident whereby the main Hardware terminal has failed or Client cannot print to any printer;
1.3.2. “Severity 2” means an Incident whereby –
188.8.131.52. a Hardware terminal has failed but Client still has access to a terminal that has not failed; or
184.108.40.206. a Hardware printer has failed but Client still has access to a printer that has not failed; or
220.127.116.11. Client’s network to which the Goods are attached, has failed;
1.3.3. “Severity 3” means an Incident in relation to reports, stock, head office files, the network to which Goods are attached (other than a failure), and, interfaces between the Goods and external devices;
1.4. “Resolve” means the reasonable efforts undertaken by NEO WAVE (PTY) LTD to provide temporary or permanent resolution of an Incident (including by way of a work-around) such that Client is reasonably able to conduct its day-to-day operations as were normally conducted using the affected Goods;
1.5. “Respond” means the act of personal contact (including telephonic contact) made with Client by NEO WAVE (PTY) LTD to commence the provision of Support Services in terms of the Service Call;
1.6. “Service Call” means a communication by Client to the Contact Centre to request Support Services;
1.7. “Service Hours” means the hours described as such in the table to this Appendix 2;
1.8. “Service Levels” means the quantitative performance levels to be achieved by NEO WAVE (PTY) LTD in respect of Support Services, as described in the table to this Appendix 2.
This Appendix 2 is entered into upon and subject to the terms of the Agreement.
Support Services shall commence on the Commencement Date and endure for the initial period.
- SUPPORT SERVICES
4.1. In return for the Support Services included in the rental fees, NEO WAVE (PTY) LTD shall perform Support Services in respect of the Goods during Service Hours and in accordance with the Service Levels. NEO WAVE (PTY) LTD shall react to Service Calls placed outside of Service Hours, after the commencement of the next cycle of Service Hours. NEO WAVE (PTY) LTD shall provide Support Services by telephone or remote access from the Contact Centre to Client’s Site.
4.2. Support Services comprise –
4.2.1. Responding to Service Calls;
4.2.2. providing operational trouble-shooting advice on the use of Goods;
4.2.3. Resolving Incidents;
4.2.4. the provision of such Updates and/or Upgrades to the software (excluding Customized Software and Commodity Software) as NEO WAVE (PTY) LTD determines in the exercise of its sole discretion are necessary for the proper operation of that Software.
4.3. The Contact Centre shall –
4.3.1. receive Service Calls, allocate a reference number to each Service Call (and advise Client of same), log the Service Call onto a case tracking database, and, record all information received from Client during the Service Call;
4.3.2. upon receiving a Service Call which reports an Incident, classify the Incident as a Severity 1, Severity 2 or Severity 3, as the case may be.
4.4. When placing a Service Call reporting an Incident, Client shall also provide details of –
4.4.1. the Incident including any error messages generated by the Goods;
4.4.2. reduced functionality and any time delays experienced in the processing of transactions on the Goods;
4.4.3. activities taking place on the Goods at the time the Incident was experienced or when any error message was generated;
4.4.4. screen and/or data dumps in relation to the Incident or the activities taking place on the Goods at the time the Incident was experienced.
4.5. Client shall co-operate with the Contact Centre and provide information reasonably requested and follow instructions reasonably given, including, in respect of Incidents, those given to try Resolve and/or reproduce the Incident and/or to provide screen or data dumps in relation to the Incident or the activities taking place on the Goods at the time the Incident was experienced. Client acknowledges that NEO WAVE (PTY) LTD may not be able to Resolve Incidents which cannot be reproduced.
4.6. Where NEO WAVE (PTY) LTD Resolves any Incident by way of a temporary resolution, NEO WAVE (PTY) LTD shall make a determination, in the exercise of its reasonable discretion, as to whether it is necessary, practical and economically reasonable, to take action to attempt to avoid a similar Incident in the future. Should NEO WAVE (PTY) LTD determine that it is, NEO WAVE (PTY) LTD shall investigate and diagnose the root cause of the Incident so experienced and stipulate a non-binding estimated time for completion thereof, and notify Client accordingly.
4.7. NEO WAVE (PTY) LTD shall provide Support Services by way of any one or combination of the following, as determined by NEO WAVE (PTY) LTD in its reasonable discretion –
4.7.1. by telephone or remote access from NEO WAVE (PTY) LTD to Client’s Site;
4.7.2. on-Site where remote support has proved ineffective in Resolving the Incident or where NEO WAVE (PTY) LTD determines that remote support shall not Resolve the Incident, provided that on-Site Support Services extend to the associated Site;
4.7.3. by referring the Incident to the licensor/manufacturer of the Goods (even if acquired through NEO WAVE (PTY) LTD). Notwithstanding anything to the contrary contained herein, NEO WAVE (PTY) LTD’s sole obligation in respect of Incidents referred by NEO WAVE (PTY) LTD to the licensor/manufacturer of the Goods (even if acquired through NEO WAVE (PTY) LTD), shall be to track and to manage the progress made by that person in resolving same;
4.7.4. by de-installing affected items of Hardware, removing them to NEO WAVE (PTY) LTD’s repair facility, Resolving the Incident, returning the item of Hardware to Site and re-installing it. The risk in and to such Hardware shall at all times remain with Client. Subject to availability and where practical (including taking into account Client’s geographical location), NEO WAVE (PTY) LTD may, but is not obliged to, provide temporary loan hardware in place of any Hardware removed to NEO WAVE (PTY) LTD’s repair facility should NEO WAVE (PTY) LTD be unable to Resolve such Incident within the Service Levels. Ownership of all loan hardware shall at all times be and remain vested in NEO WAVE (PTY) LTD. Loan hardware is provided voetstoots (as-is), may not be the same make or model as the Hardware and may operate differently to the Hardware.
4.8. Support Services do not cover –
4.8.1. the provision of support for any products (including temporary loan hardware) other than the Goods;
4.8.2. the supply or replacement of expendable and consumable items, including supplies, tape or disk media, printer bands, print heads, printer drums, batteries, toner, ink, ribbons or any other similar items;
4.8.3. the provision of Updates and/or Upgrades (other than those referred to in clause 4.2.4) and/or New Releases to to the Customized Software and Commodity Software;
4.8.5. routine maintenance of Goods;
4.8.6. on-Site Support Services, other than for specified Sites;
4.8.7. the provision of general advice or assistance on the use of the Goods. This is provided by way of training services;
4.8.8. Customization of the Software, including reports generated by it;
4.8.9. relocation of the Goods or the network within or outside of the Site;
4.8.10. Support Services provided outside of Service Hours;
4.8.11. repair of Incidents in relation to Software which is more than 1 release/s older than the current New Release of that Software;
4.8.12. repair of Incidents due to or resulting from –
18.104.22.168. Client failing to maintain an appropriate environment, asspecified in the Documentation, suitable for the proper operation of the Goods;
22.214.171.124. Goods being installed, configured or commissioned by anyoneother than NEO WAVE (PTY) LTD;
126.96.36.199. Goods being used by persons who have not successfullycompleted the appropriate training services in the use of the Goods;
188.8.131.52. Goods being altered, adjusted, modified, repaired (including any attempt to repair) or having other products attached to them, by anyone other than NEO WAVE (PTY) LTD;
184.108.40.206. external factors including Force Majeure or failure or fluctuation of electrical power or air conditioning or any telecommunications service;
220.127.116.11. theft, vandalism, accidents, misuse, negligence or failure by Client (or its Staff) to follow instructions for the proper use of theGoods;
18.104.22.168. Destructive Elements;
22.214.171.124. Client’s failure to acquire and install any Update or Upgrade to the Software specified by NEO WAVE (PTY) LTD from time to time;
126.96.36.199. Client’s failure to install any update or upgrade to any hardware or software product comprising part of Client’s environment, as specified by NEO WAVE (PTY) LTD from time to time.
188.8.131.52. Goods not being used or stored within the environmental specifications specified in their Documentation or by them manufacturer or licensor or by NEO WAVE (PTY) LTD from time to time;
184.108.40.206. relocation of Goods from their designated location at the Site by persons other than NEO WAVE (PTY) LTD.
4.9. Client may request NEO WAVE (PTY) LTD to provide services to Client as described in clause 4.8 by placing a Service Call with the Contact Centre to that effect, and NEO WAVE (PTY) LTD shall provide such services on an ad hoc basis charging on a Time and Materials basis and subject to the availability of necessary Staff and resources, but otherwise mutatis mutandis upon the terms of this Agreement.
4.10. NEO WAVE (PTY) LTD reserves the right to terminate Support Services or change the types of support available for any Goods –
4.10.1. at the expiration of the then current term for Support Services; or
4.10.2. on 30-days prior written notice if NEO WAVE (PTY) LTD reasonably determines that any modification or alteration to Goods (other than those made and/or approved by NEO WAVE (PTY) LTD) or Client’s failure to install any Update or Upgrade shall interfere with the provision of Support Services.
4.11. Should Client not contract continuously with NEO WAVE (PTY) LTD for Support Services for any item of Goods from the date of its acquisition and subsequently wish to contract for Support Services, NEO WAVE (PTY) LTD shall inspect such item and provide a quote to Client for its repair and modernization to a level determined by NEO WAVE (PTY) LTD in its reasonable discretion as suitable for the commencement of Support Services, the validity of which quote shall not exceed 30 days. NEO WAVE (PTY) LTD shall not offer Support Services for any item of Goods until NEO WAVE (PTY) LTD has carried out the repair and modernization.
- SERVICE LEVELS
5.1. Service Level time periods specified in this Contract Document exclude any travelling and layover time incurred by NEO WAVE (PTY) LTD in the performance of the Support Services, and shall be deducted from the Response time and/or Resolve time, for the purposes of calculating whether a Service Level has been met.
5.2. Should NEO WAVE (PTY) LTD be unable to meet any Service Level due to factors beyond NEO WAVE (PTY) LTD’s reasonable control including Client’s failure to perform its responsibilities in a timely manner, NEO WAVE (PTY) LTD shall be excused from meeting that Service Level for as long as those factors prevail.
5.3. NEO WAVE (PTY) LTD shall not be liable for any failure to meet any Service Level, in respect of any Disaster. For the purposes of this clause, “Disaster” means any failure of Goods to operate which results in a significant adverse impact on Client’s business, and in respect of which NEO WAVE (PTY) LTD is unable to determine a Resolution for such failure, despite having
5.4. Service Levels are calculated during Service Hours only.
5.5. Where NEO WAVE (PTY) LTD has requested Client to provide a screen or data dump in relation to any Service Call, the calculation of Service Levels in relation to that Service Call shall exclude the time elapsed between the time such a request is made, until the time NEO WAVE (PTY) LTD receives the entirety of the screen or data dump so requested.
- REIMBURSABLE EXPENSES
Local road travel by NEO WAVE (PTY) LTD’s staff within a radius of 20 kilometers from a NEO WAVE (PTY) LTD office (as they are from time to time) to provide Support Services shall not be charged for as a Reimbursable Expense. For the sake of clarity, this shall not apply in respect of services described in clause 4.8 or to the provision and removal of loan hardware described in clause 4.7.4.
- CLIENT OBLIGATIONS
Client shall provide and procure remote access to the Goods to the extent necessary to enable NEO WAVE (PTY) LTD to provide the Support Services described herein.
- BREACH OF SUPPORT SERVICES
Subject always to clause 5.2 of the Agreement, should NEO WAVE (PTY) LTD breach any material provision or term of these Support Services and fail to remedy such breach within 30 days of receipt of notice requiring it to do so and warning that if the breach is not so remedied, Client may exercise its rights in terms of this clause, then Client shall be entitled, upon notice, to claim specific performance (in which case Client may withhold payment of the Support Services fees until NEO WAVE (PTY) LTD remedies its breach) or cancel the Support Services (in which case Client shall have no further obligation to pay for Support Services fees which have not become due, owing or payable), in either event without prejudice to Client’s right to claim damages. If any aforementioned breach is not capable of being remedied, it shall be deemed to have been remedied (but without prejudice to Client’s right to claim damages) provided that NEO WAVE (PTY) LTD has caused the breach to cease within the period aforesaid. Client expressly agrees and acknowledges that cancellation of the Support Services in accordance herewith shall not cancel the Agreement nor in any way affect Client’s continuing obligation to make payment of the Monthly Rental.