This Agreement (as defined below) is a legally binding agreement between Adrenaline Capital (Pty) Ltd. with company registration number 2021/141077/07 (hereinafter referred as “AC”, “us”, “we” or “our”) and the juristic or natural person mentioned in the Services Document, SOW or similar document ( the “Client” , “you”, or “your”) and govern the Services offered and rendered by us and/or our Affiliates to you or your Affiliate(s) that has signed an Affiliate form. This Agreement will be binding on our successors and assigns

INTRODUCTION & EXPLANATION

These standard Terms and Conditions apply to the services to be rendered, provided or created by AC, as the case may be, to the Client and is incorporated by reference hereto in the mutually executed Letter of Engagement, SOW or similar document or annexure thereof (the “Services Document”) countersigned by the Client. The Agreement shall commence on the Effective Date and shall, unless the Services Document stipulates otherwise, is extended, or is terminated earlier will terminate once the Services have been rendered by AC and all Fees, VAT and Expenses have been paid by the Client.

INTERPRETATION

This Agreement shall be governed and interpreted in accordance with South African law as follows.

2.1. Words and phrases used in this Agreement that are defined in any statute or regulations shall be construed in accordance with the applicable stature or regulation. 

2.2. Headings shall be read for convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.

2.3. Words shall be gender neutral, the singular shall include the plural, natural persons shall include other legal persons (corporate or un-incorporate) and the State and vice versa.

2.4. The provisions of this Agreement are severable. Any provision which is or may become unenforceable shall be ineffective to the extent of its unenforceability and shall be treated as if not written and severed without invalidating the remaining provisions.

2.5. References to statute, regulation or other legislation shall be a reference to the same as at the Effective Date, and as amended or substituted from time to time thereafter.

2.6. Words such as “include”, “in particular” etc. denote examples or emphasis and shall not be construed as limiting the generality of any preceding words.

2.7. The rule of construction that a contract shall be interpreted against the Party principally responsible for the drafting or preparation of the contract, shall not apply.

2.8. Any annexures and/or document referred to in this Agreement shall be deemed to be incorporated herein and in the event of a conflict, the provisions of this Agreement shall prevail. 

2.9. Any provisions of this Agreement which either expressly or by its nature extends beyond the expiration or termination of this Agreement shall survive such expiration or termination.

2.10. Any substantive provision imposing rights or obligations, notwithstanding that it is in a definition clause, shall have effect as if it were a substantive provision in the body of this Agreement. 

2.11. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

2.12. When any number of days is prescribed in this Agreement, same shall be reckoned inclusively of the first and exclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the immediately following Business Day.

3.1. ‘Agreement’ means the Services Document, these Terms and Conditions and the (read with any other document referred to in either) or any amendments thereto properly effected in accordance herewith.

3.2. ‘Affiliate’ means in relation to:

3.2.1. any Party, any other company that is its subsidiary, holding company or a subsidiary of its holding company; or

3.2.2. any person (including a company, partnership or trust), any other person over which, or over the management of which, control can be or is exercised directly or indirectly by persons who can or do also exercise control directly or indirectly over that person or its management.

3.3. ‘AC' or 'we' or 'us' or derivatives thereof means the AC contracting party identified in the Services Document.

3.4. ‘AC Client Portal’ mean the proprietary platform, software, interfaces and/or hardware owned and/or procured by AC which AC uses to send Project updates notices to the Client, facilitate and/or to provide the Services.

3.5. 'AC Personnel' means AC and, where applicable, each and all of AC's directors, employees, sub-contractors, together with any other natural or juristic person, association, partnership, trust or other entity controlled or owned, directly or indirectly, by AC or Affiliated with AC.

3.6. ‘Business Day’ means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa. 

3.7. ‘Confidential Information’ means the Information of the Parties which is deemed or designated by either of them to be confidential and/or proprietary and includes:

3.7.1.  information which affords the Disclosing Party a competitive advantage and includes its trade secrets, ideas, processes, formulas, computer software and information systems (whether developed in-house or operated under licence), data and know-how, copyrightable material, improvements, inventions (whether patentable or not), techniques, marketing plans, strategies, business and product development plans, timetables, forecasts and details and particulars in regard to its suppliers, (potential) customers and business associates, products and services (past, current and prospective), business or technical information, product plans, product designs, product costs, pricing structures and strategies, product names, finances and/or financial results, business opportunities, research, staff and development.

3.7.2. Information is not readily available in the normal course of business to a competitor or the public and/or under the circumstances would reasonably be deemed to be confidential and has not lawfully been made public or entered the public domain through lawful and authorised means.

3.8. ‘Data Protection Law’ means the POPIA.

3.9. ‘Deliverable’ refers to anything in writing or otherwise tangible (whether in hard copy or electronic format) created or prepared by AC for the Client as part of the Services 3.14

3.10. ‘Effective Date’ means the date on which AC commences rendering the Services to the Client or the date of written acceptance by the Client of the Services Document, whichever is the earlier date.

3.11. ‘Services Document’ means the written Letter of Engagement, Statement of Work (“SOW”) or similar document (which includes any annexures, schedules, additional terms related to the Services) read together with these standard Terms and Conditions, which are incorporated by reference explicitly and which defines the terms of the engagement between us and you with respect to our Services. Any modification or variation to the Services Document must be in writing and signed by an authorised representative of each of us. For the avoidance of doubt and in amplification of the immediately preceding clause, any modification of the Services Document will include any modification of these standard Terms and Conditions and vice versa. No variation of the Services Document will be of any force or effect, unless reduced to writing and signed by all the signatories thereto. By implication, no variation of these standard Terms and Conditions will be of any force or effect, unless reduced to writing and signed by all the signatories thereto. In the event of any inconsistency between the Services Document and these standard Terms and Conditions, the Services Document will prevail. In the event of any inconsistency between these standard Terms and Conditions and additional terms that may apply, the additional terms shall prevail.

3.12. ‘Entity’ means any juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity.

3.13. ‘Expenses’ mean the actual costs incurred by AC reasonably necessary for the successful completion of the Services, including but not limited to disbursements, travelling, accommodation, subsistence, communication, stationery, administration, photocopying, printing, report and presentation material, secretarial time and charges related to goods and services purchased on the Client’s behalf.

3.14. ‘Fees’ means the fees charged by AC for the Services as set out in the Services Document (or addendum thereto) or as agreed upon between the Parties, which excludes VAT and Expenses.

3.15. ‘Force Majeure’ means any event beyond the reasonable control of the Party (‘the Affected Party’) claiming the occurrence of force majeure:

3.15.1. the occurrence of which could not have been reasonably foreseen at the date of the execution of this Agreement; and

3.15.2. includes, but is not limited to, war whether declared or not, revolution, riot, strikes or other protestor action, insurrection, civil commotion, invasion, armed conflict, the failure of suppliers or contractors, hostile act of foreign enemy, act of terrorism, sabotage, radiation nor chemical combination, ionizing radiation, act of God, plague or other serious endemic, epidemic or pandemic or any governmental action related to any of the foregoing.

3.16. ‘Information’ means any information as generally understood, including Confidential Information, source codes, reports, notes, working papers, emails, designs, techniques, models, templates, generalised features of the structure, sequence and organisation of software, user interfaces, screen designs, general purpose consulting and software tolls, utilities and routines logic, coherence and methods of operations systems; methodologies, documents, presentations, data technologies, programmes, processes, records and facts, whether in hard copy or electronic format;

3.17. ‘Intellectual Property’ means all Information of a proprietary nature in relation to the technology, business, products, processes, services or operations of a Party, including any patent, trademark, logo or design, which has been registered or is capable of being registered in any national or international intellectual property office or association, as well as any copyrightable works, trade secrets and know-how.

3.18. ‘Party/Parties’ means AC or the Client individually or collectively as the context may require.

3.19. ‘Personnel’ means any director, employee, agent, consultant, contractor, sub-contractor, partner or other authorised representative of a Party

3.20. ‘Personal Information/Personal Data’ shall have the meaning set out in POPIA, as amended from time to time, or such other legislation, as may become applicable to the protection of Personal Information/Personal Data (or the equivalent).

3.21. ‘POPIA’ means the Protection of Personal Information Act No 4 of 2013.

3.22. 'Services' means the services to be delivered by AC in terms of the Services Document and if applicable, those additional services required by you from us. Services shall be deemed to include any Deliverables and Work/s.

3.23. ‘Subsequent Event’ means an event which occurs after the completion of the Services.

3.24. ‘Term/s’ means the terms contained in this Agreement and any annexure or schedule thereto.

3.25. ‘VAT’ means value-added tax as described in the Value-Added Tax Act 89 of 1991, as amended.

3.26. ‘Work/s’ means the work that AC conducts, creates or prepares either alone, with the support of any subcontractors, member firm or with the Client in rendering the Services, which work includes Deliverables, processes, procedures, investigations, notes, working papers, recordings, models, advice, findings or recommendations, whether in draft or final form, in writing or orally.

3.27. 'You' (and derivatives thereof) or 'the Client' means the contracting party or parties identified in the Services Document, collectively or individually, as the case may be and includes any additional personal or entity who agrees expressly to be bound by this Agreement, being the Client of AC.

ACCEPTANCE AND THE RELATIONSHIP BETWEEN THE PARTIES

4.1. The Parties are independent persons, save to the extend otherwise provided for in the Services Document, neither Party shall act as the agent of the other, and neither Party shall have the authority, or represent that it has the authority, to bind the other Party.

4.2. Nothing in this Agreement shall be construed as:

4.2.1. constituting a temporary employment service as contemplated in section 198 of the Labour Relations Act, 66 of 1995; or

4.2.2. creating a partnership, consortium or joint venture arrangement between the Parties, and neither Party shall have any authority to incur any liability on behalf of the other or to pledge the credit of the other Party, unless such has been expressly agreed between the Parties and recorded in writing.

4.3. The Parties acknowledge that they may from time to time conclude other agreements unrelated to this Agreement. 

4.4. The Parties agree that all other agreements entered between them shall be separate and independent, and rights and obligations existing under any other agreement between them will not result in rights and obligations under this Agreement. Nothing in this Agreement shall be construed as creating an exclusive relationship between AC and the Client.

4.5. No Party shall be entitled to enforce its rights in such other agreements by withholding performance or applying set-off under this Agreement, or vice-versa.

FRAUD, BRIBERY AND CORRUPTION

5.1. AC undertakes that it will, throughout the duration of this Agreement:

5.1.1. Comply with (and shall procure that each person Affiliated with AC who is performing under this Agreement shall comply with) all applicable South African anti-bribery laws, statutes, regulations, directives or by-laws, (“the Anti-Bribery Laws)”;

5.1.2. Be responsible for (and shall ensure) the observance, performance and compliance with Anti-Bribery Laws by each person Affiliated with AC who is performing in terms of this Agreement; and 

5.1.3. Immediately report to the Client a) any knowledge or suspicion of any violations by AC, its officers, employees or any person Affiliated with it of any Anti-Bribery Laws; or b) any requests or demands for any undue financial or other advantage of any kind received by AC in connection with the Client’s continued business.

5.2. The Client warrants and represents that neither it nor any of its officers, employees or, having made reasonable enquiries, so far as it is aware, other persons Affiliated with it in connection with this Agreement:

5.2.1. have been convicted of any offence involving bribery, corruption, fraud or dishonesty.

5.2.2. have been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Bribery Laws;

5.2.3. have been involved in any activity which may violate the Anti-Bribery Laws in respect of the conduct of business process and/or negotiation that resulted in the award of transaction and/or this Agreement.

5.3. Any infringement of any applicable Anti-Bribery Law and/or any breach of the foregoing provisions of this clause by either Party shall be a breach of a material term of this Agreement.

5.4. Without prejudice to either Party’s rights or remedies in terms of this Agreement, either Party shall be entitled to terminate this Agreement with immediate effect upon written notice to the other Party.

5.5. The Parties are committed to working in an ethical and professional manner and in compliance with all laws that apply to this Agreement.

SUBSEQUENT EVENTS  

6.1. Once we have issued our Deliverable/s and/or have completed our Services which have been accepted by the Client, AC shall have no further responsibility to the Client to:

6.1.1. amend or update the Deliverable, or

6.1.2. to monitor or identify the occurrence of any Subsequent Event or its impact on the Services or Deliverables.

PROCESSING AND TRANSFER OF PERSONAL INFORMATION/DATA

7.1. Where necessary to enable us to deliver the Services, you may provide us with, or we may have access to, Personal Information/Personal Data relating to an identifiable natural person, and where applicable, an identifiable juristic person.

7.2. In making Personal Information/Personal Data available to us, you confirm that you have complied with applicable Data Protection Law.

7.3. We agree that if we process Personal Information/Personal Data on your behalf in the performance of the Services, we will:

7.3.1. Only process the Personal Information/Personal Data on your documented instructions save where required by law or the order of competent court or tribunal.

7.3.2. Ensure that Personal Information/Personal Data is processed in accordance with applicable Data Protection Law and any other relevant laws and where we act as a processor, notify you if any instruction infringes any Data Protection Law to which we are subject to.

7.3.3. Take all reasonable steps to ensure that the Personal Information/Personal Data is protected against misuse and accidental loss or disclosure, and from unauthorised or unlawful processing, destruction or alteration, and in case of any Personal Information/Personal Data breach (as defined by applicable Data Protection Law) we will notify you without undue delay upon becoming aware of it.

7.3.4. Not subcontract our processing of Personal Information/Personal Data, save that we may subcontract and, in doing so, you consent to the transfer Personal Information/Personal Data to AC authorised personnel, or third parties who are bound by appropriate confidentiality and security obligations consistent with the terms of this clause.

7.3.5. Answer your reasonable enquiries to enable you to monitor our compliance with this clause and provide you with reasonable assistance to enable you to comply with applicable Data Protection Laws.

7.3.6. Upon termination or expiry of the Services promptly return to you or, if requested by you, destroy all copies of the Personal Information/Personal Data, in which case any right to use, copy or disclose that Personal Information/Personal Data ceases. This shall, however, be subject to legislative, regulatory or internal company policy requirements for the retention of Personal Information/Personal Data for periods of time after the processing has ceased.

7.4. If, due to the nature of the Services as described in the Services Document or with your consent, we determine the purpose and means of all or any of the processing of Personal Information/Personal Data, we will comply with applicable Data Protection Laws when we do so.

7.5. AC and each of its subsidiaries have taken all technical and organizational measures necessary to protect the information technology systems used in connection with the operation of AC’s and its subsidiaries’ businesses. Without limiting the foregoing, AC and its subsidiaries have used reasonable efforts to establish and maintain, and have established, maintained, implemented and complied with, reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection with the operation of AC’s and its subsidiaries’ businesses.

INTELLECTUAL PROPERTY

8.1. The Parties record that each Party has prior to this Agreement created, acquired or otherwise obtained rights to its own Intellectual Property. Each Party shall for the duration of this Agreement and thereafter retain the ownership of its own Intellectual Property.

8.2. Except where a licence is expressly granted or where ownership is expressly transferred in writing, a Party shall acquire no right or interest in the Intellectual Property of the other Party.

8.3. Any developments, modifications, improvements or enhancements to a Party’s Intellectual Property arising from the Services will remain the property of that Party.

8.4. In the event of either Party requesting the use of the other Party’s Intellectual Property outside the scope of the Services or this Agreement will be the subject of a separate Agreement.

8.5. Each Party warrants that no aspect of its Intellectual Property lawfully utilised during this Agreement, will infringe the proprietary rights of any third party.

8.6. Notwithstanding the above AC shall always retain all intellectual property rights, including but not limited to copyright, in the product of its’ Services, Work and Deliverables, whether oral or tangible, as well as ownership of our working papers and the files created by us during delivering our Services, including electronic documents and files.

8.7. To the extent that there are any components of the Client’s Intellectual Property included in the Deliverable, AC hereby grants to the Client, upon full and final payment of all amounts owing to AC in respect of the Services and Work, a royalty-free, perpetual, world-wide, non-exclusive, non-transferable licence to use such Intellectual Property as an embedded part of the Deliverable only.

8.8. Any other Deliverable released to you in any form or medium will be supplied by us on the basis that it is for your benefit and information only and that it will not be copied, referred to or disclosed, in whole (save for your own internal purposes) or in part, without our prior written consent.

8.9. The Services shall be delivered on the basis that you will not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any Deliverable to your regulators, bankers and legal and other professional advisers for purposes of seeking advice in relation to the services, provided that when doing so you inform them that: a) disclosure by them (save for their own internal purposes) is not permitted without our prior written consent; and b) we accept no responsibility or liability whatsoever; and c) we owe no duty of care to them in connection with the services.

8.10. Prior to completion of the Services we may supply oral, draft or interim advice or reports or presentations, but in such circumstances our final written advice or our final written report shall take precedence. No reliance shall be placed by you on any draft or interim advice or report or any draft or interim presentation. Where you wish to rely on oral advice or on an oral presentation made on completion of the services, you will inform us and we shall, where appropriate, supply documentary confirmation of the advice concerned.

8.11. We shall not be under any obligation, under any circumstances, to update any advice, report or any other Deliverable, oral or written, for events occurring after the advice, report or product concerned has been issued in final form, unless otherwise specifically agreed upon by mutual consent by you and us in the body of the Services Document.

8.12. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.

8.13. It may become necessary to change the scope of our Services to include matters you may deem appropriate. You will discuss and agree such changes with us, which will include the payment of any additional Fees and the period for provision of any additional services. Significant variations in the scope of our services, at your instance, will be the subject of a supplementary Services Document.

FEES

9.1. The Client shall in return for the Services pay to AC the Fees, Expenses and any VAT thereon. AC shall be entitled to increase the Fees in the event of a change in the scope of the Services.

9.2. AC rates increase on an annual basis. AC may therefore on written notice to the Client increase the Fees on the date on which it typically increases its annual rates.

9.3. AC will invoice the Client from time to time for the Fees due in respect of the Services rendered. All AC invoices are payable on presentation of its invoice.

9.4. AC may at its sole discretion, charge the Client interest on all due and unpaid invoices at the prime interest rate of its banker as published from time to time, which interest shall be compounded monthly in arrears.

9.5. If AC determines that the Client has overpaid for the Services, AC may, at its sole discretion, issue a credit note to the Client for the overpaid amount. The credit note shall be valid for 6 (six) months from the date of issuance and may be used towards future purchases of Services. Any unused portion of a credit note shall expire at the end of the validity period.

9.6. The Parties agree that payments may be affected by electronic transfer of funds or as otherwise agreed to between the Parties. The AC banking details are set out on its invoices.

9.7. All payments made or arising out of this Agreement shall be made free of bank exchange, commission and any deductions, or set-off to the Party entitled to the payment and each Party shall be responsible for the payment of its own taxes.

9.8. Should a dispute arise relating to any Fees, Expenses or VAT due to AC the Client must notify AC of the disputed amounts and the reasons for the dispute in writing within 20 (twenty) Business Days from the date of being presented with the relevant invoice, failing which the Client shall be deemed to have accepted the invoice as correct, due and payable.

9.9. Excluding instances where the Client disputes the invoice/s, AC shall have the right to suspend or terminate the Services should any Fees, Expenses or VAT be overdue and remain unpaid despite written demand.

9.10. Our bank account details will not change during a transaction. If you have any concerns, please speak to us before transferring any money. We will not take responsibility if you transfer money to an incorrect bank account. If you receive an email from AC requesting your bank details or purporting to amend our bank details, please immediately contact us, by telephone to clarify.

REFERRAL COMMISSION 

10.1. As a consequence of our relationship with other professionals in various areas of business, we may from time to time receive referral commission from them. Prior to us referring you to such party, our terms of arrangement shall be disclosed to you.

CLIENT RESPONSIBILITIES

11.1. You shall retain responsibility and accountability for:

11.1.1. The management conduct and operation of your business and affairs.

11.1.2. Any representations made by You to third parties including published information.

11.1.3. The maintenance of the accounting records, the preparation of annual financial statements and the safeguarding of your assets.

11.1.4. The adopted policies and prescribed procedures adhered to for the prevention of errors and irregularities, including fraud and illegal acts.

11.1.5. The use of, extent of, reliance on or implementation of advice or recommendations supplied by us.

11.1.6. Making any decision in respect of the Services delivered or any use of the Deliverables.

11.1.7. The delivery, achievement or realisation of any benefits directly or indirectly related to the Services that require implementation by you.

11.1.8. Ensuring that all arrangements are made for access, security procedures, virus checks, facilities, licences and/or consents (without any cost to us), where you require us, or the nature of the Services is such that it is likely to be more efficient for us, to perform Services at your premises or use your computer systems or telephone networks.

11.1.9. Unless expressly agreed upon either in the Services Document provided to you or by way of a separate agreement, vulnerability and penetration testing or cyber security testing will not form part of any general controls review performed.

11.2. To enable us to perform the Services, you shall use your best endeavours to procure and promptly to supply all information and assistance, and access to all documentation in your possession or custody, or under your control, and to personnel under your control, where required by us. Where such information and/or documentation are not in your possession or custody or under your control, you shall use your best endeavours to procure the supply of the information and assistance and/or access to all the documentation.

11.3. You shall inform us of any information or developments which may come to your attention during the duration of this Agreement, which might have a bearing on or be relevant to the Services we have agreed to provide.

11.4. We may rely on any instructions or requests made or notices given, or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes (‘an authorised person’).

11.5. We may choose to communicate with you by electronic mail where an authorised person wishes us to do so, on the basis that in consenting to this method of communication, you accept the inherent risks of such communications (including the security risks of interception of or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices) and that you shall perform virus checks. As you are however aware, the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed or incomplete, or arrive late or otherwise be adversely affected or unsafe to use. Accordingly, whilst we will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically and not withstanding any collateral contract, warranty or representation, neither AC nor its directors, employee or agents shall have any liability to you on any basis, whether in contract, delict (excluding gross negligence) or otherwise, in respect of any error or omission arising from or in connection with the electronic communication of information to you, and your reliance on such information.

11.6. If the communication on which you wish to rely relates to a significant matter and you are concerned about the possible effects of electronic transmission, you should request a hard copy of such communication from us. If you wish us to password-protect all or certain documents transmitted electronically, you should discuss this with us, and we will make appropriate arrangements.

11.7. We may receive information from you or from other authorised sources while delivering the Services and:

11.7.1. We shall consider the consistency and quality of information received by us.

11.7.2. We shall not seek to establish the reliability of information received from you or any other information source. Accordingly, we assume no responsibility and make no representation with respect to the accuracy, reliability or completeness of any information provided to us.

11.7.3. We shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information material to the Services or other default relating to such material information whether on your part or that of the other authorised information sources.

11.7.4. You undertake to supply information in response to our enquiries to enable us to comply with our statutory obligations in terms of the Financial Intelligence Centre Act 38 of 2001 and the Prevention of Organised Crime Act 121 of 1998. 

CONFIDENTIALITY

12.1. Each Party (“Receiving Party”) undertakes to treat and hold as confidential all Confidential Information which it may receive from the other Party (“Disclosing Party”), or which becomes known to them.

12.2. The Receiving Party acknowledges the importance of the Confidential Information to the Disclosing Party and, where applicable, third-party proprietors of such information, and recognises that the Disclosing Party and/or third-party proprietors may suffer irreparable harm or loss in the event of such information being disclosed or used otherwise than in accordance with this Agreement.

12.3. The Receiving Party agrees and undertakes:

12.3.1. except as permitted by this Agreement, not to disclose or publish any Confidential Information in any manner, for any reason or purpose whatsoever without the prior written consent of the Disclosing Party (excluding its Affiliates, sub-contractors and professional advisors) and provided that in the event of the Confidential Information being proprietary to a third-party, it shall also be incumbent on the Receiving Party to obtain the consent of such third-party;

12.3.2. except as permitted by this Agreement, not to utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third-party, it shall also be incumbent on the Receiving Party to obtain the consent of such third-party;

12.3.3. to restrict the dissemination of the Confidential Information to only those of the Personnel who are actively involved in activities for which use of Confidential Information is authorised and then only on a “need to know” basis;

12.3.4. to take all practical steps, both before and after disclosure, to impress upon its Personnel that are given access to Confidential Information the secret and confidential nature thereof;

12.3.5. unless prohibited by law, agree to inform the Disclosing Party if requested or compelled by law or institution of authority to disclose any of the Disclosing Party’s Confidential Information and agree to comply with the Disclosing Party’s reasonable requests as to the terms of any such disclosure;

12.3.6. if compelled by law or institution of authority to disclose the Disclosing Party’s Confidential Information, the Receiving Party undertakes to limit the extent of the disclosure to that expressly required in terms of the relevant law or institutional authority.

12.3.7. to protect the Confidential Information in the manner, and with the endeavour, of a reasonable person protecting his/her own Confidential Information. In no event shall the Receiving Party use less than reasonable efforts to protect the confidentiality of the Confidential Information.

12.4. The Disclosing Party may at any time on written request to the Receiving Party, require that the Receiving Party immediately return to the Disclosing Party any Confidential Information and may, in addition, require that the Receiving Party furnish a written statement to the effect that upon such return, it has not retained in its possession or under its control, either directly or indirectly, any such Confidential Information or material. Alternatively, the Receiving Party shall, as and when required by the Disclosing Party on written request to the Receiving Party, destroy all such Confidential Information and material and furnish the Disclosing Party with a written statement to the effect that the same has been destroyed.

12.5. Each Party shall ensure that its Personnel who have access to the other Party’s Confidential Information sign a confidentiality undertaking containing substantially the same terms and conditions as those set out herein.

12.6. Nothing contained in this Agreement will restrict the Receiving Party from the use of any generic ideas, concepts, know-how, or techniques developed or learned by in the course of performing any Services under this Agreement, provided that in doing so such Party does not disclose the Disclosing Party’s Confidential Information to third parties or infringe the Intellectual Property Rights of the Disclosing Party or third parties who have licensed or provided materials to the Receiving Party.

12.7. The foregoing obligations of confidentiality and non-use shall not apply to public information that was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party (as evidenced by written records) or subsequently comes into its possession (as evidenced by written records) otherwise than through disclosure, provided that neither Party nor the source of such information was subject to any Agreement or other duties imposing confidentiality in respect thereof or was required to be disclosed by law or institution of authority having jurisdiction over the Receiving Party.

FORCE MAJEURE

13.1. Neither Party shall be liable for any failure to fulfil its obligations under this Agreement (excluding the payment of Fees) in the event and to the extent that such failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, extreme weather, riots, wars, (whether declared or not), hostilities, revolutions, civil disturbance or usurped authority, accidents, embargo or requisition, unforeseeable acts (including failure to act) of any governmental authority (de jure or de facto), sabotage, nuclear incidents, epidemics, pandemics, general power failures, general communications failures, riots, strikes over which the affected Party has no control (“Force Majuere”).

13.2. The affected Party shall give notice to the other Party immediately upon the occurrence of an event of Force Majeure.

13.3. The affected Party shall be entitled to such extension of time in which to perform that obligation as may be reasonable in the circumstances, taking into account the interests of both Parties, provided that if such Force Majeure event persists for longer than 20 (twenty) Business Days the other Party shall be entitled to terminate this Agreement but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.

NOTICES AND DOMICILIA

14.1. The Parties select as their respective Domicilia Citandi et Executandi, and for the purposes of giving or sending any notice provided for or required in terms of this Agreement, the addresses (including email addresses) as set out in the Services Document, or such other address as a Party elects in writing.

14.2. Any notice addressed to a Party at its physical address shall be delivered by hand or by courier.

14.3. Any notice shall be deemed to have been given if delivered by hand or courier on the day of delivery or if sent by email, the next Business Day. 

EXCLUSIONS AND LIMITATIONS OF OUR LIABILITY

15.1. In no event shall AC or its Personnel be liable for any indirect, incidental, extrinsic, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including, without limitation, loss of profits, loss of income, loss of goodwill, loss or corruption of data, loss of use, business interruption, Third-Party claims or any other pecuniary loss arising out of a delay in delivery or Services) arising in connection with this Agreement whether based on contract, delict, statute or otherwise, to the extent that such limitation is permitted by applicable law.

15.2. AC’s maximum aggregate liability to the Client for any direct damages, expenses, costs and/or losses claimed in connection with this Agreement shall be limited to the total Fees paid by the Client or due to AC under this Agreement, whether in contract, delict, statute or otherwise, to the extent permitted by law.

15.3. You and or any third parties shall not bring any claim personally against any AC Personnel in respect of loss or damage suffered by you or such third parties arising out of or in connection with our Services, save as may be expressly permitted by law. This restriction will not operate to exclude AC’s liability for the acts or omissions of Ac or any AC Personnel that constitute wilful misconduct or gross negligence.

THIRD PARTIES AND THIRD-PARTY RIGHTS

16.1. This Agreement shall not create or give rise to, nor shall it be intended to create or give rise to, any third-party rights.

16.2. You shall indemnify and hold us and all AC Personnel harmless against any loss, damage, expense or liability incurred by us and all AC Personnel as result of, arising from any claim made by any third party pursuant to, from, or related to your breach of this Agreement or any provision contained herein.

BREACH and TERMINATION

17.1. Should either Party (“Defaulting Party”):

17.1.1. commit a material breach of this Agreement, and fail to remedy such breach within 30 (thirty) calendar days of having been called upon in writing by the other Party to do so; or

17.1.2. fail to pay any amount due that is more than 30 (thirty) calendar days outstanding; or

17.1.3. commence business rescue proceedings; or

17.1.4. defer or suspend payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due; or

17.1.5. effect or attempt to effect a compromise or composition with the Defaulting Party’s creditors; or

17.1.6. take steps for its voluntary winding up or be provisionally or finally liquidated or be placed in judicial management, whether provisionally or final or ceases to conduct business;

17.1.7. have its majority shareholder change;

17.1.8. then, without prejudice to any other rights or remedies it may have in law, the other Party (“Innocent Party”) may, in its discretion, terminate this Agreement and Statement of Works in whole or in part on written notice to the Defaulting Party, such termination to take effect on the date specified in the notice.

17.2. Notwithstanding the foregoing, either Party may terminate this Agreement for convenience by giving the other Party at least 60 (sixty) days written notice.

DISPUTE RESOLUTION

18.1. Should any dispute arise between the Parties in relation to this Agreement:

18.1.1. The authorised representatives, as appointed by each Party, shall meet as soon as reasonably practicable (but no less than 5 days of such meeting being requested in writing by either Party) to try to resolve the dispute and shall, if required by either Party, continue to negotiate for at least five (5) consecutive days (or such other period as may be agreed by the Parties in writing).

18.1.2. If the dispute had not been resolved at the meeting pursuant to Clause 20.1.1, the dispute shall be referred to an urgent meeting of the Chief Executive Officers of the Parties or such other representatives as may be appointed by their Chief Executive Officers. This meeting is to take place within five (5) days of the matter being referred to them or such other period as may be agreed by the Parties in writing.

18.1.3. If the dispute has not been resolved within 5 days of the meeting contemplated in Clause 20.1.2 (or such other period as may be agreed by the Parties in writing), either Party may refer the dispute to arbitration in accordance with the terms of Clause 20.2.

18.2. In the event of there being any dispute relating to or arising out of this Agreement, which is not resolved in accordance with Clause 20.1 then, save where otherwise provided in these terms, such dispute shall be finally resolved on the terms as provided for below:

18.2.1. In the event of any such dispute or difference arising between the Parties the said dispute or difference shall on written demand by any Party to the dispute be submitted to arbitration in Cape Town, Western Cape in the English language in accordance with the rules of AFSA.

18.2.2. The arbitrator shall be, if the matter in dispute is principally:

18.2.2.1. a technical matter, an independent technical expert of not less than 10 (ten) years’ experience in the relevant technical area;

18.2.2.2. an accounting matter, an impartial chartered accountant of not less than 10 (ten) years’ standing;

18.2.2.3. a legal matter, an impartial practising advocate of not less than 10 (ten) years’ standing;

18.2.3. If the parties fail to agree whether the matter in dispute is of a legal, accounting or technical nature within 7 (seven) days after the arbitration has been demanded, it shall be considered to be a legal matter as per clause 18.2.2.3;

18.2.4. Each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:

18.2.4.1. shall be final and binding on each of them; and

18.2.4.2. will be carried into effect; and

18.2.4.3. can be made an order of any competent Court to whose jurisdiction the Parties are subject.

18.2.5. Each Party expressly consents to any arbitration in terms hereof being conducted as a matter of urgency; and irrevocably authorises the other Party to the dispute to apply, on behalf of all Parties to the dispute, in writing, to the secretariat of AFSA, in terms of the AFSA rules, for the arbitration to be conducted on an urgent basis.

18.2.6. Any arbitration in terms of this clause 20.2 shall be conducted on camera and the Parties shall treat as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of the other Party.

18.2.7. This clause 14 shall constitute each Party’s irrevocable consent to the arbitration proceedings described herein, and no Party shall be entitled to withdraw from such proceedings or to claim at such proceedings that it is not bound by this clause.

18.2.8. Nothing herein contained shall be deemed to prevent or prohibit a Party from applying to any appropriate Court for an interdict, urgent relief, enforcement of Intellectual Property Rights or for judgment in relation to a liquidated claim.

18.2.9. The costs of the arbitrator and the incidental costs of the arbitration shall be borne equally by the Parties to the dispute subject to the proviso that the arbitrator shall be competent to make an order as to the costs or parts thereof, as appropriate.

18.2.10. The provisions of this clause 14 are severable shall survive termination of this Agreement or any part thereof.

NON-SOLICITATION 

19.1. For the duration of this Agreement and a period of 12 (twelve) months after its termination (for whatsoever reason) and save to the extent otherwise agreed in writing or in this Agreement, neither Party shall, directly or indirectly, solicit for employment/subcontract any employee or sub-contractor of the other Party involved in the supply of the Services, nor shall it solicit, entice, encourage or persuade any such employee or sub-contractor to terminate his/her employment/agreement with the other Party. General advertisements by a Party will not be considered direct or indirect solicitation and the appointment of a person pursuant to an unsolicited response to such advertisement will not be prohibited hereunder.

AC SUB-CONTRACTORS

20.1. AC shall, provided that it shall remain responsible to the Client for the fulfilment of its obligations in terms of this Agreement, have the right to make use of subcontractors to assist it in rendering the Services.

20.2. The Client acknowledges that AC is the prime service provider to the Client and shall be the prime interface with the Client in respect of the Services.

20.3. Save for communication and interaction required for purposes of the day to day rendering of the Services, the Client undertakes to only communicate with AC in relation to all rights, obligations and other material matters relating to this Agreement.

20.4. The Client will not interfere with or impede the relationship between AC and its subcontractors, or suggest or cause the subcontractors to modify, cancel, fail to renew or extend their agreements with AC.

20.5. AC shall assume full responsibility for making payment to its subcontractors, and no subcontractor will be entitled to seek payment directly from the Client for services under this Agreement.

GENERAL

21.1. This Agreement constitutes the entire Agreement between the Parties relating to its subject matter, and supersedes all other oral or written representations, undertakings or Agreements.

21.2. The AC Standard Terms and Conditions are subject to change from time to time. In the event of any change to the AC Standard Terms and Conditions, AC undertakes to give the Client 30 (thirty) days’ prior written notice.

21.3. No amendment, variation or consensual cancellation of this Agreement, including an amendment to this clause and no settlement of any disputes arising under this Agreement, shall be binding unless recorded in writing and signed by both Parties.

21.4. This Agreement is governed by the laws of the Republic of South Africa and any dispute arising from or in connection to this Agreement will be subject to the jurisdiction of a competent tribunal or court within the Republic of South Africa. 

21.5. Each undertaking in this Agreement shall be deemed to be and shall be construed as an undertaking given in the terms of this Agreement.

21.6. If any provision in these terms is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.

21.7. If any provision or undertaking in this Agreement is or becomes illegal, invalid or unenforceable, such provision shall be struck off, the remainder of this Agreement shall be valid and binding.

21.8. The Client expressly accepts that AC has the option to use the name and/or logo of the Client, as well as, a broad description of the Services, as a reference in proposals or similar submission which it may make to prospective clients.

21.9. Either Party desiring to issue a news release or advertisements or other form of media publicity in relation to this Agreement shall obtain the written consent of the other Party prior to the release of such publicity, which consent will not be unreasonably delayed. Further the Client agrees that it is not authorised to use the name, trademarks, marks, devices, trade names, business names, trading styles, logos or domain names of AC in connection with any marketing, co-branding and/or promotion materials or activities, or for any other purpose whatsoever.

21.10. This Agreement may be executed in counterparts, each of which together constitutes a single Agreement between the Parties but shall not be effective until both Parties have executed each counterpart. Each such counterpart shall be deemed to be an original, but all the counterparts shall together constitute this Agreement.

21.11. No extension of time, delay, neglect or forbearance by either Party in enforcing its rights under this Agreement shall be a waiver of, or prejudice, those rights. No waiver shall be effective unless it is expressly stated in writing and signed by the Party giving it.

21.12. AC has the right to assign, cede or otherwise transfer the benefit or burden of all or any part of this Agreement without the consent of the other Party, however, AC will inform the Client of such cession or assignment. The Client shall not be entitled to assign, cede, or otherwise transfer the benefit or burden of all or any part of this Agreement without the written consent of AC, which consent shall not be unreasonably withheld.

21.13. Except as otherwise provided in this Agreement AC provides no implied warranties regarding the Services.

21.14. This Agreement revokes, replaces and supersedes all previous written proposals, quotations or submissions provided by AC to the Client regarding the Services.

21.15. All terms regarding indemnification, warranty, liability, and limits thereon, confidentiality, protections of proprietary rights and trade secrets shall survive the termination of this Agreement.

21.16. Parties represent to each other that the person executing this Agreement has full authority to bind that Party to the terms of this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their respective representatives, successors and assigns.