Terms & Conditions

TERMS AND CONDITIONS

Silicon Sky Consulting Proprietary Limited (registration number 2009/008196/07) with its offices at Silver Stream Business Park, 10 Muswell Road, Bryanston (“Silicon Sky”) provides Services to customers.  These Terms and Conditions, as read with the Service Terms, govern the relationship between you, the Customer, and Silicon Sky, and the provision of the Services that you have ordered from Silicon Sky, as set out in the Service Terms and Service Order.

Should any Services be provided to Customer before the signing of a Service Order, Customer shall, in any event, observe and be bound by the provisions of the Agreement.

1. DEFINITIONS

The following terms shall have the meanings assigned to them hereunder.

• Agreement – the terms and conditions upon which Silicon Sky provides Services which consists of –
  • these Terms and Conditions;
  • any Specific Terms incorporating these Terms and Conditions; and
  • any Service Orders entered into by the Customer and accepted by Silicon Sky, incorporating the Specific Terms;

and includes any schedules, annexures, exhibits and attachments thereto, all as updated and amended from time to time.

• Applicable Hourly Rate – unless expressly otherwise agreed in a Service Order, the hourly charge out rate of Silicon Sky from time to time.
• Business Day – any day other than a Saturday, a Sunday and/or a public holiday as gazetted by the government of the Republic of South Africa from time to time.
• Customer – the customer which signs a Service Order and/or to which Services are supplied by Silicon Sky.
• Dedicated Infrastructure – the infrastructure that is dedicated to Customer on-premises or off-premises, as listed in a Service Order, which remains the property of Silicon Sky. Dedicated infrastructure may include, servers, storage, switches and/or firewalls.
• Services – the services to be rendered by Silicon Sky to Customer, as set out in the Service Order.
• Service Levels – the levels according to which each Service is to be provided, as set out in the corresponding Service Terms.
• Service Order – either (i) a services order agreed and signed by both the Customer and Silicon Sky, or a (ii) proposal signed by Customer and accepted by Silicon Sky, describing the specific Services to be provided by Silicon Sky to Customer, and the fees payable by Customer in respect thereof.
• Service Terms – one or more documents incorporating these Terms and Conditions and containing the specific terms relating to the Services provided in terms of a Service Order, as updated and amended from time to time.
• Silicon Sky IP – any and all intellectual property that Silicon Sky has created, acquired or otherwise has rights in and may, in connection with the performance of its obligations under the Agreement, employ, provide, modify, create or otherwise acquire rights in and includes, without limitation, all concepts; ideas; methods; methodologies; procedures; processes; know-how; techniques; function, process, system and data models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems.
• System – the infrastructure owned, licenced, used, managed and/or controlled by Silicon Sky from time to time to provide the Services.
• Terms and Conditions – these terms and conditions, as updated and amended from time to time.

2. ORDERING PROCESS AND AGREEMENT STRUCTURE
   • To place an order for Services, Customer shall be required to accept a proposal issued by Silicon Sky to Customer detailing the Services to be rendered, by countersigning same and delivering a signed copy to Silicon Sky. For the avoidance of doubt, these Terms and Conditions and the relevant Service Terms shall govern and be incorporated in all Service Orders accepted under it.  The countersigned proposal must be returned to Silicon Sky by handing, faxing or emailing them to Silicon Sky.  By signing the Service Order and/or accepting and/or using the Services, Customer explicitly acknowledges that it has read and understood these Terms and Conditions, the relevant Service Terms and the Service Order.
   • Unless explicitly stated otherwise by Silicon Sky in the proposal, the proposal issued by Silicon Sky shall be valid for a period of 7 (seven) days from the date of issue. Silicon Sky shall be entitled to amend the proposal and/or refuse to accept any order placed after such 7 (seven) day period.
   • A Service Order shall only become binding on Silicon Sky upon receipt and acceptance of such Service Order.
   • Except where specifically provided to the contrary in a Service Order, and then only to the extent so specified, each Service Order shall incorporate and shall be subject to these Terms and Conditions and the relevant Service Terms. Insofar as any term and condition in:
     • the Service Terms conflicts with the Terms and Conditions, the Service Terms will prevail; and
     • a Service Order conflicts with the Terms and Conditions and/or Service Terms in respect of (i) the description of the Services, the Service Order will prevail, and (ii) in respect of any other matter, the Terms and Conditions and/or Service Terms, as the case may be, will prevail.
   • Save where expressly provided to the contrary, the terms and conditions of one Service Order shall not apply to any other Service Order.

3. COMMENCEMENT AND DURATION

Unless otherwise indicated in a Service Order, each Service Order shall commence on the date provided therein (“Commencement Date”) and continue for an initial period of 12 (twelve) months, where after it shall renew automatically for further 12 (twelve) month periods, unless terminated as set out in the relevant Service Terms, subject to the right of either party to terminate the Service Order earlier in accordance with the Agreement. For the avoidance of doubt, the duration of the Service Order shall not be affected by any amendments or additions to the Services provided for therein, unless otherwise indicated by Silicon Sky.

4. SERVICE CHANGE PROCEDURE
   • During the term of a Service Order, Silicon Sky or Customer may propose changes in or additions to the Services (“New Services”).
   • If Customer desires to propose a New Service, Customer shall notify Silicon Sky of its requirements in sufficient detail. Silicon Sky shall respond to such proposal within such period as is reasonable in the circumstances by preparing and delivering to Customer a written proposal, in the form of a proposed amended Service Order (“Service Amendment Proposal“), indicating:
     • the effect of the New Services, if any, on the amounts payable by Customer;
     • the effective date or anticipated time schedule for implementing the New Services and the effect that the New Services will have on the term and duration of the affected Service Orders and/or Services, if applicable;
     • Silicon Sky’s proposal for an adjustment of the fees, if any; and
     • any other information in Silicon Sky’s discretion that it may deem relevant.
   • If Silicon Sky desires to propose a New Service, it may do so by preparing and delivering a Service Amendment Proposal to Customer, which substantially complies with clause 2.
   • Following the receipt by Customer of the Service Amendment Proposal above, Customer shall either:
     • accept the Service Amendment Proposal;
     • reject the Service Amendment Proposal;
     • ask Silicon Sky for further information pertaining to the Service Amendment Proposal to consider; or
     • suggest reasonable modifications to the Service Amendment Proposal (which suggestions may be considered or rejected by Silicon Sky in its discretion).
   • A Service Amendment Proposal, once submitted as aforesaid, shall constitute an offer by Silicon Sky, capable of acceptance by Customer, to implement the proposal described therein on the terms set out therein. If Silicon Sky’s offer is not accepted by Customer in writing, or Customer does not start using the New Services within 10 (ten) Business Days, or such other period as is reasonable in the discretion of Silicon Sky, from the date of receipt of Silicon Sky’s proposal, Silicon Sky shall be entitled to revoke its offer without notice to Customer.
   • If Customer elects to accept the offer set out in the Service Amendment Proposal, as evidenced by the written acceptance of Customer or use of the New Services or any part thereof, the Service Amendment Proposal shall become an amended Service Order (“Amended Service Order”), and any and all New Services described in the Service Amendment Proposal shall thereafter be included in the Services.
   • Notwithstanding anything to the contrary contained in the Agreement, any New Services:
     • offered by Silicon Sky to the Customer in writing in an amended and updated Service Order, which is accepted by the Customer in writing or by Customer using the New Services or any part thereof; or
     • requested by Customer, and subsequently provided by Silicon Sky and used by Customer (and not rejected by Customer within 7 (seven) days of first use of the New Services or any part thereof; shall be binding on the Parties notwithstanding any non-compliance with the procedure set out in this clause 4, and such amended and updated Services shall be deemed to constitute an Amended Service Order for the purposes of the Agreement.

5. FEES AND PAYMENT
   • Customer shall receive an invoice for and shall pay Silicon Sky the fees for the Services, as set out in the Service Order. Unless otherwise specified or agreed, invoices shall be rendered monthly in advance.
   • Any additional services or additional support agreed between the parties in respect of products not listed in the Service Order shall incur an additional charge at the fees for such services as set out in the Service Order or, if no such fees are set out therein, at Silicon Sky’s Applicable Hourly Rate from time to time. Such additional fees shall be invoiced monthly in arrears and are payable within 30 (thirty) days of date of invoice. Unless otherwise agreed, fees for Services provided for part of a month, shall be invoiced on a pro rata basis the end of the month in which the Service commenced, and such invoices are payable within 30 (thirty) days of date of invoice.
   • Customer shall make payment of all fees and costs, without set off or deduction according to the payment terms of each invoice, failing which, within 30 (thirty) days of the date of invoice.
   • All fees and costs are exclusive of VAT and such other taxes payable in respect of any services provided by Silicon Sky (except taxes based on the income of Silicon Sky), which shall be paid by Customer.
   • Unless otherwise agreed between the parties in writing, fees shall be quoted, expressed and paid for in South African Rands. The fees shall be subject to increases imposed on Silicon Sky by its third party service providers and suppliers and any changes in the foreign currency exchange rate.  In an event of a change to the fees, Silicon Sky shall, to the extent that it is reasonably possible to do so, give the Customer advance notice of such change.
   • The fees may be reviewed and increased by Silicon Sky on each anniversary of the Commencement Date, provided that such increase shall not exceed the average of the monthly Consumer Price Index (CPI) of the preceding year, as published by Statistics South Africa.
   • All outstanding amounts shall attract interest at prime rate charged by Silicon Sky’s bankers from time to time for similar amounts on unsecured overdraft to its prime customers in good standing in the private sector, as certified by any manager of that bank whose appointment it shall not be necessary to prove. Such interest shall be calculated from the due date of payment to the date of actual payment in full, both days inclusive, calculated daily and compounded monthly in arrears.
   • If any payment due from Customer is not received in full by Silicon Sky by the due date for payment, then Silicon Sky may (without prejudice to any other remedies it may have in terms of the Agreement or in law) in its sole discretion and immediately upon written notice to Customer, treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the relevant Service Order, and to claim such amounts as well as any other amounts in arrears, including interest thereon, and/or to suspend the Services until payment of all outstanding amounts has been received in full. Customer agrees such amount is a reasonable estimate of Silicon Sky’s actual damages.
   • In the event of it becoming necessary for Silicon Sky to take any steps to enforce its rights and recover any outstanding amounts owing by Customer, Customer agrees to be liable for any costs incurred in taking such steps including, without limitation, the collection fees, legal costs on the attorney and client scale and tracing fees.
6. INTELLECTUAL PROPERTY RIGHTS
   • The Customer acknowledges that:
     • Silicon Sky has created, acquired or otherwise obtained rights in the Silicon Sky IP and, notwithstanding anything contained in the Agreement, Silicon Sky will own all right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the Silicon Sky IP; and
     • without limitation to the foregoing, Customer shall not be entitled to use the name, trademarks, trade names or other proprietary identifying marks or symbols of Silicon Sky, the Silicon Sky group of companies or their third party contractors, as applicable, without the prior written consent of Silicon Sky, which consent can be withheld and/or withdrawn at any time and for any reason whatsoever.
     • Without limiting the generality of the foregoing, all right, title and ownership of any code, forms, algorithms, methodologies, frameworks or materials developed by or for Silicon Sky or Customer independently and outside of the Agreement and provided during the course of the Agreement (“Existing Material”) shall remain the sole property of the Party providing the Existing Material.
     • All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to any deliverable or work product (or any part thereof) created or delivered by Silicon Sky relating to the Services shall, unless expressly agreed to the contrary in the appropriate Service Order, vest in Silicon Sky.
     • To the extent that Silicon Sky utilises any Silicon Sky IP in connection with Silicon Sky’s performance under the Agreement, the Silicon Sky IP shall remain the property of Silicon Sky and Customer shall acquire no right or interest therein.
     • Silicon Sky will defend Customer against any claims made by an unaffiliated third party that any Service infringes its patent, design, copyright or trade mark and will pay the amount of any resulting adverse final judgment (or settlement to which Silicon Sky consents). Silicon Sky will reimburse Customer with all costs reasonably incurred by Customer in connection with assisting Silicon Sky with the defence of the action. Customer shall promptly notify Silicon Sky of the claim in writing and Silicon Sky shall have sole control over its defence or settlement.
     • Should any third party succeed in its claim for the infringement of any intellectual property rights, Silicon Sky shall, at Silicon Sky’s discretion and within 30 (thirty) calendar days of the infringing item having been found to so infringe:
       • obtain for Customer the right to continue using the infringing item or the parts which constitute the infringement;
       • replace the infringing item or the parts which constitute the infringement with another product which does not infringe and which in all respects operates substantially in accordance with its specifications;alter the infringing item in a way as to render it non-infringing while still in all respects operating substantially in accordance with its specifications; or
       • withdraw the infringing item and terminate the Service Order and, if applicable, refund to Customer all charges which Customer has already paid to Silicon Sky in respect of the period calculated from the date on which the claim arose until the expiry of the then current service period.

• Silicon Sky shall not be liable for any claim which arises out of goods or services selected by Customer and which are procured by Customer from third parties.

7. CONFIDENTIALITY

The term “Confidential Information” means any information, in whatsoever form, which by its nature or content is identifiable as confidential and/or proprietary to the party disclosing such information (“Disclosing Party”) and/or any third party, which is disclosed or otherwise made available to the other party (“Receiving Party”) as a result of or in connection with this the Agreement.

Each party agrees and undertakes not to:

7. • disclose Confidential Information to any third party without the prior written consent of the Disclosing Party; and
   • use Confidential Information for any purpose whatsoever other than strictly in relation to the Agreement.
   • Notwithstanding clause 2, Receiving Party may disclose the Confidential Information to its officers, employees and professional advisors to whom such disclosure is reasonably necessary and who are either bound by general confidentiality undertakings no less stringent than that contained in this clause 7 or agree, in writing, to be bound by provisions of this clause 7 prior to such disclosure.

 

• Receiving Party agrees to protect the Confidential Information by using the same standard of care used to safeguard its own information of a confidential and/or proprietary nature (but no less than a reasonable standard of care).

 

• Receiving Party shall, at Disclosing Party’s option, destroy (including, without limitation, extracting from any computer or similar devices) or return the Confidential Information on written demand by Disclosing Party, and shall certify its compliance with this clause 5 to Disclosing Party upon request.

 

• The obligations of Receiving Party pursuant to this clause 7 shall not apply to the extent that such information:

 

• is known to or in the possession of Receiving Party prior to disclosure thereof by Disclosing Party, through no breach of obligations owed to Disclosing Party;

 

• is or becomes publicly known, otherwise than pursuant to a breach of this clause 7 by Receiving Party;

 

• is developed independently by Receiving Party in circumstances that do not amount to a breach of the provisions of this clause 7 and without reference to or use of the Confidential Information of Disclosing Party;

 

• was received by Receiving Party from a third party who is entitled to disclose same free of restriction and without obligation to Disclosing Party;

 

• is disclosed by Receiving Party to satisfy the order of a court of competent jurisdiction or to comply with provisions of any law in force from time to time, provided that in these circumstances, Receiving Party shall advise the Disclosing Party in writing prior to such disclosure (unless otherwise prohibited from doing so) to enable the Disclosing Party to take whatever steps it deems necessary to protect its interest in this regard, and shall limit the extent of such disclosure;

 

• Neither party shall disclose the contents of a Service Order to any third party without the prior written consent of the other party.

 

8. PROTECTION OF PERSONAL INFORMATION
   • The term “Personal Information” shall have the meaning ascribed to it in terms of the Protection of Personal Information Act 4 of 2013, as amended.

 

• Unless required by law, in the provision of the Services or performance of any other obligation, Silicon Sky shall:

 

• process Personal Information only with the knowledge or authorisation of Customer; and

 

• treat Personal Information which comes to its knowledge as confidential and shall not disclose it without the prior written consent of Customer.

 

• In order to give effect to clause 2, Silicon Sky shall take reasonable measures to:

 

• identify all reasonable foreseeable internal and external risks to Personal Information in its possession or under its control;

 

• establish and maintain appropriate safeguards against the risk identified;

 

• regularly verify that the safeguards are effectively implemented; and

 

• ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.

 

• The Customer acknowledges that Silicon Sky or its agents, by virtue of the provision of the Services, may come into possession of Customer’s data, including Customer’s (and, if applicable, its customers’) Personal Information (“Customer Data”). Ownership in all Customer Data whether under its control or not, shall continue to vest in Customer and Silicon Sky shall not obtain any proprietary rights in Customer Data. Customer grants to Silicon Sky (and its third party contractors as necessary) a limited, non-exclusive, royalty free licence to use, reproduce and modify any Customer Data strictly for the purposes of providing the Services or as otherwise directed by Customer.

 

• The Customer warrants that:

 

• it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer Data as described in this clause 8; and

 

• it shall, for the duration of a Service Order, to the extent that the Customer Data comprises Personal Information, ensure that such information is and remains accurate, relevant, up-to-date, not misleading and complete.

 

• Silicon Sky and Customer are each responsible for complying with their respective obligations under applicable laws governing Customer Data, and each Party shall take reasonable precautions to preserve the integrity of Customer Data and to prevent any unauthorised access, corruption or loss of Customer Data.

 

• The Customer acknowledges and agrees that Silicon Sky and its agents may, and hereby expressly authorises Silicon Sky and its agents to, use, process and/or transfer Customer Data (including intra-group transfers, transfers across a country border and transfers to entities in countries that do not provide statutory protections for personal information):

 

• in connection with the provision of Services and complying with Silicon Sky’s obligations under these Terms and Conditions, any Service Terms or a Service Order;

 

• to incorporate Customer Data into databases controlled by Silicon Sky for the purpose of administration, provisioning, billing and reconciliation, verification of Customer identity and solvency, maintenance, support and product development, fraud detection and prevention, sales, revenue and customer analysis and reporting, market and customer use analysis; and

 

• to communicate to the Customer by voice, letter, fax or email regarding products and services of Silicon Sky or its group of companies.

 

9. WARRANTIES
   • Each party warrants and represents that it has full capacity and authority to enter into and comply with each Service Order.
   • Silicon Sky warrants and represents it shall perform its obligations under these terms and conditions and the Service Order with due skill, care and diligence.
   • No warranties, guarantees or representations, whether express or implied, regarding the availability, security, reliability, quality, merchantability, fitness for purpose, title or non‑infringement of intellectual property rights of the Services and System or any other warranty, guarantee or representation not set out in these terms and conditions shall be binding upon Silicon Sky and are hereby expressly excluded.
10. BREACH
    • An event of default shall occur if:
      • Customer fails to pay any fees or other amount owing by it to Silicon Sky in full on due date and which is not remedied within 5 (five) days of receipt of written notice requiring it to do so;
      • Customer fails to make payment of any fees or other amount timeously more than twice in any rolling 6 (six) month period;
      • a party commits any other breach of any provision of the Agreement and fails to remedy that breach within a period of 30 (thirty) days after receipt of written notice requiring it to do so;
      • a party effects, or attempts to effect, a compromise or composition with its creditors;
      • a party defaults or threatens to default in payment of its liabilities generally, or ceases or threatens to cease to carry on business;
      • a party commits an act of insolvency as set out in section 8 of the Insolvency Act 24 of 1936;
      • a party is sequestrated or liquidated (whether provisionally or finally) or passes a resolution to commence business rescue proceedings, or if business rescue proceedings are otherwise commenced.
    • If an event of default (as provided for in clause 1) occurs, the non-defaulting party shall, without prejudice to any other rights that it may have under the Agreement or in law, be entitled to terminate the Service Order to which the default relates, and/or claim immediate specific performance of all of the defaulting party’s obligations, in either event without prejudice to its rights to claim damages.
    • On termination of any Service Order for any reason, all amounts due to Silicon Sky under such Service Order (up until the date of expiry of such Service Order), shall become due and payable even if they have not been invoiced. For the avoidance of doubt, if any Service Order is terminated prior to the expiry of the then-current term, for any reason other than an event of default by Silicon Sky, then Customer shall be liable for and shall pay all charges that would have become due and payable under such Service Order until the expiry of the then-current term. The amounts may not be withheld for any reason, unless the arbitrator directs otherwise.
11. EFFECTS OF TERMINATION AND TERMINATION ASSISTANCE
    • Upon expiration or termination of any Service Order, Silicon Sky shall not be required to maintain or store, and may delete, Customer content hosted or stored in connection with the terminated Services, unless otherwise agreed in the applicable Service Terms or Service Order.
    • Upon termination of a Service Order, subject to payment by Customer of all amounts due and payable to Silicon Sky, Silicon Sky shall render such reasonable assistance to Customer so as to enable Customer to migrate any Services affected by such termination to a service provider of Customer’s choice. Any costs associated for the migration of the Services shall be for Customer’s account.
    • All Dedicated Infrastructure will be returned to Silicon Sky at Customer’s costs.
    • Without prejudice to accrued rights or obligations, upon termination of a Service Order due to a breach of the Customer, Silicon Sky shall be entitled, but not obliged, to immediately terminate all or any existing Service Orders and accompanying services, including all the Customer’s rights under such Service Orders in writing, without any liability to the Customer.
12. LIABILITY
    • Silicon Sky’s maximum liability under or in connection with the Agreement shall be limited to the aggregate amount of all the fees paid by Customer to Silicon Sky, in respect of the Service Order under which such claim arose, during the preceding 6 (six) month period.

 

• Neither party shall be liable for any indirect, special or consequential damages and/or losses of any kind whatsoever, including loss of data, loss of business or for loss of profits, revenue or anticipated savings howsoever arising, suffered by the other Party and arising in any way in connection with the Agreement, or the termination thereof, whether in whole or in part.

 

• The limitations contained in this clause 12 shall not apply to (i) any breach by a party of the other party’s proprietary or confidential information or intellectual property; (ii) any loss of or damage to any property or injury to or death of any person which arises from a party’s gross negligence; or (iii) damages arising from a party’s wilful misconduct (including theft, fraud or other criminal act).

 

• The above limitations and exclusions of liability shall apply regardless of the form of action, whether in contract, delict or otherwise and regardless of whether a party has been advised as to the possibility of such claims, losses or damages.

 

 

 

13. FORCE MAJEURE
    • Silicon Sky shall not be liable in any way for liabilities, losses, costs, expenses and/or damages arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards Customer caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or judgments of any court, natural disasters, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of machinery and non-delivery or delay by third party service providers or suppliers (“Force Majeure”).

 

• Upon the occurrence of any event of Force Majeure, Silicon Sky shall promptly inform Customer by written notice thereof specifying the cause of the event and how it shall affect its performance of its obligations. Should a Force Majeure event continue or be expected to continue for a period exceeding 30 (thirty) days, either party shall be entitled to cancel the affected Service Order without any liability to the other party.

 

14. GENERAL
    • No amendment or variation of the Agreement (including this clause 1) shall be of any force or effect, unless in writing and signed by each party’s duly authorised representative.
    • Customer hereby agrees that Silicon Sky may include Customer’s name in its published lists of customers.
    • If any provision of the Agreement shall be held illegal or unenforceable, such provision shall be severable and shall in no way affect or impair the validity or enforceability of the remaining provisions of the Agreement.
    • Neither party shall cede, assign, delegate or otherwise transfer the rights and/or obligations of all or any part of the Agreement, other than a cession or assignment by Silicon Sky to any company within the Silicon Sky group of companies, without the prior consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the above, Silicon Sky may appoint subcontractors to provide all or any part of the Services but shall remain liable for the performance of the Services by such subcontractor.
    • The parties shall act as independent contractors for all purposes under the Agreement. Nothing contained herein shall be deemed to constitute either party as an agent, representative, employee or partner of the other party, or both parties as joint ventures or partners for any purpose.
    • Termination of a Service Order or one or more of the rights and obligations of the parties, for whatsoever reason, shall not affect the provisions of the Agreement, which are intended to continue to have effect after such termination.
    • The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the party responsible for the drafting thereof, shall not apply in the interpretation of the Agreement.
    • For the duration of any Service Order, and for a period of 12 (twelve) months thereafter, neither party shall solicit for employment or retention as an independent contractor any employee or former employee of the other party who was involved in the provision of the Services and/or implementation or execution of the Agreement.
    • Each Service Order incorporating these Terms and Conditions and the Specific Terms shall form a separate agreement between the parties and shall constitute the entire agreement between the parties regarding the subject matter thereof. No party shall be bound by any express or implied term, representation, warranty, promise or the like not stated in the Agreement.
    • No waiver, indulgence, extension of time or abandonment by either party of any of its rights shall be binding on that party, unless such waiver, indulgence, extension of time or abandonment is in writing and signed by the duly authorised representative of the waiving party.
    • The parties nominate as their nominated addresses for service upon them of all notices and legal processes in connection with any matter relating to the Agreement, the addresses reflected in a Service Order.
    • The parties’ rights and obligations arising out of or in connection with the Agreement shall be governed, construed, interpreted and enforced according to the laws of the Republic of South Africa. For the purpose of all or any proceedings herein, the parties hereby consent to the jurisdiction of the Magistrate’s Court having jurisdiction under section 28 of the Magistrate’s Court Act 32 of 1944, as amended, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required consent conferring jurisdiction upon the said Court, pursuant to section 45 of the Magistrate’s Court Act, provided that each party shall have the right, at its sole discretion, to institute proceedings in any other competent court.