10. NON SOLICITATION
11.8 The Customer shall not, during the continuance of the Agreement and for a period of twelve (12) months immediately following the date of termination of the Agreement, directly or indirectly solicit or offer employment or any other form of contract for services to any Personnel of
C.I.T.S. or was Personnel within 12 (twelve) months prior to termination of this Agreement, without C.I.T.S.’s written consent;
11.9 The above restraint shall endure also in favour of the successors-in-title. The terms Successors-in-title shall mean any person who: -
11.9.5 acquires the business; or
11.9.6 acquires the goodwill of the business; or
11.9.7 becomes beneficial owner of such goodwill through his/her shareholding in any company;
11.9.8 has acquired by cessions the right to enforce the restraints embodied herein.
12. CONFIDENTIAL INFORMATION
12.2 For the purpose of this Agreement, Confidential Information shall not include:
12.2.5 information which is required by law or a court of competent jurisdiction to be publicly released, to the extent only that it is necessary to comply with such law or with the order of such court; or
12.2.6 any information which the receiving Party can prove by substantial written evidence was already in its possession, without breach of any Contract Document, or which is already or becomes public knowledge through no wrongful act of the receiving Party or was acquired independently of the disclosing party by the receiving party in circumstance that do not amount to a breach of the provisions of the Contract Documents.
12.3 Each Party hereby undertakes to the other that it shall:
12.3.5 keep confidential the existence and terms and conditions of the Contract Documents;
12.3.6 keep confidential the Confidential Information and not disclose any of or any part thereof to any third party (other than its professional advisors, auditors, bankers and Personnel executing the Services and / or Deliverables) without the prior written permission of the disclosing party;
12.3.7 not use the Confidential Information or any part thereof except for the performance of its obligations under the Contract Documents;
12.3.8 without prejudice to the obligations contained herein, ensure that its employees, agents or sub-contractors are
under the same obligations of confidence as set out herein prior to the receipt of such Confidential Information; and
11.2.5 upon the termination of this Agreement or any Service Schedule, for whatever reason, return to the disclosing party (and procure the return from any employees, agents or sub- contractors of) all Confidential Information in whatever format (including all copies) belonging to the disclosing Party, which is capable of being so returned.
11.2.6 Not to derive any benefit, whether directly or indirectly, from the Confidential Information, nor, without limiting the generality of the aforegoing, be engaged, involved, concerned or interested, whether directly or indirectly, in the economic exploitation, whether by marketing, promoting, advertising, changing, adapting, reverse-engineering, publishing or selling in any manner whatsoever, the Confidential Information;
11.3 Any documents or records (including written instructions, drawings, notes or memoranda) relating to the Confidential Information of the Customer which come into C.I.T.S.’s possession during the currency of this Agreement, shall be deemed to be the property of the Customer and shall be, subject to clause 9 above, surrendered to the Customer on demand, and in any event on the termination of C.I.T.S.’s appointment by the Customer and C.I.T.S. will not retain any copies thereof or extracts thereof.
11.4 The disclosing party may, at a time by way of written notice to the receiving party , require the receiving party to return any material containing, pertaining to or relating to Confidential Information from any word processor, computer or any other similar device into which it was entered or programmed, and may, in addition, require the receiving party to furnish a written statement (certified as correct by a director of receiving party) to the effect that upon such a return, receiving party has not retained in its possession, or under its control, either directly or indirectly, any such material;
11.5 As an alternative to the return of the material contemplated above, the receiving party and / or its representatives shall at any instance of disclosing party, destroy such material and furnish disclosing party with a written statement (certified as correct by a director of receiving party) to the effect that such material has been destroyed;
11.6 the Parties indemnify and agree to keep each other indemnified against all costs, claims, demands, liabilities, losses and expenses arising out of any breach on the part of the receiving party (including its agents, employees and sub- contractors) of the provisions of this clause 12.
11.7 The obligations in this clause shall survive in perpetuity.
12. THE CUSTOMER DATA
12.1 Ownership in all Customer Data, whether under its control or not, shall continue to vest in the Customer and
C.I.T.S shall use the same for the purposes of providing the Services or as directed by the Customer and shall not obtain any proprietary rights in the Customer Data. The Customer hereby grants to C.I.T.S. and its Personnel a non-exclusive, royalty free licence to process the Customer Data as an Operator for the purpose of providing the Services or as directed by the Customer for the duration of the Agreement.
12.2 Processing of Customer Data:
12.2.1 The Customer shall determine what Customer Equipment needs to form part of the Services;
12.2.2 The Customer shall determine what Customer Data needs to be made available for purposes of the Services;
12.2.3 Customer Data shall be made available to C.I.T.S. in a format as per the C.I.T.S. specifications;
12.2.4 The Customer shall not upload, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, facilitates illegal activity or causes damage or injury to any person or property. It is the responsibility of the Customer to
ensure that the Customer Data to be
uploaded is Virus free. The Customer hereby indemnifies
C.I.T.S. against any claim and liability whatsoever that may result from an upload of a Virus
12.2.5 C.I.T.S. shall process Customer Data on instructions from the Customer and process the Customer Data as Confidential Information;
12.2.6 C.I.T.S. shall make Customer Data available to third parties as per instructions from the Customer and shall not be responsible to verify whether said third party is authorised to receive the Customer Data or control the third party’s management of the Customer Data subsequent to receipt of said Customer Data.
12.3 Privacy and Data Protection.
12.3.1 C.I.T.S. and the Customer are each responsible for complying with their respective obligations under applicable privacy and data protection laws, if any, governing the Customer Data.
12.3.2 The Customer remains solely responsible for determining the purposes and means of C.I.T.S.'s processing of Customer Data under any Contract Document.
12.3.3 The Customer is and shall have sole responsible for the legality, reliability, integrity, accuracy and quality of the Customer Data;
12.3.4 Processing of Personal Information: If C.I.T.S. processes any Personal Information on the Customer’s behalf when performing its obligations under the Contract Documents, the parties record their intention that the Customer shall be the Responsible Party and C.I.T.S. shall be an Operator and in any such case:
22.214.171.124 the Customer shall ensure that the Customer is entitled (as per applicable data protection legislation) to transfer the relevant Personal Information to C.I.T.S. so that
C.I.T.S. may lawfully use, process and transfer the Personal Information in accordance with Contract Documents on the Customer's behalf;
126.96.36.199 C.I.T.S. shall process the Personal Information only in accordance with the terms of the Contract Documents and any lawful instructions reasonably given by the Customer from time to time;
188.8.131.52 C.I.T.S. shall notify the Customer immediately in writing if there are reasonable grounds to believe that the Personal Information has been accessed or acquired by any unauthorised person or that there has been any loss or corruption of Personal Information. C.I.T.S. agrees to use its best endeavours to assist the Customer, where such information has been used, lost, corrupted or disclosed in remedying such unauthorised use, loss, corruption or disclosure.
184.108.40.206 In the event that C.I.T.S. uses a third party for any or all of the processing activities required of C.I.T.S. in connection with a Contract Document, it will ensure that it has signed terms and conditions sufficient to meet its obligations under this Agreement.
220.127.116.11 Disclosure of any Personal Information to any of C.I.T.S.’s Personnel, which will be done on a need to know
basis only, and without prejudice to the Customer’s rights in terms of the Contract Documents, C.I.T.S. shall procure that each employee or representative is aware of the confidential nature of the information being disclosed and shall be bound by am applicable confidentiality provision.
18.104.22.168 Where required) the Customer acknowledges and agrees that the Personal Information may be transferred or stored outside the country where C.I.T.S. may make use of third party service providers in order to carry out the Services and C.I.T.S.’s other obligations under the Contract Documents;
12.3.5 Provisions of Information
22.214.171.124 If the Customer is required to provide information to a third party, regarding the Customer Data and outside the scope of the Services, C.I.T.S. will reasonably cooperate with the Customer in providing such information. The Customer will reimburse C.I.T.S. for
126.96.36.199 Upon C.I.T.S.'s or the Customer's reasonable written request, the Customer or C.I.T.S. will provide the other with such information that it has regarding Customer Data and its processing that is necessary to enable the requester to comply with its obligations under this clause and the applicable privacy and data protection laws.
12.3.6 Both Parties shall take reasonable technical and organisational measures to preserve the integrity of the Customer Data or any other information that may contain Personal Information, and to prevent any unauthorised or unlawful access and processing Personal Information or its accidental loss, destruction or damage.
12.3.7 C.I.T.S. shall follow its archiving procedures for Customer Data if the Customer decides to archive the data at a cost determined between C.I.T.S. and the Customer. C.I.T.S. will keep archived data for three (3) years or otherwise indicated between C.I.T.S. and the Customer. Customer data will be destroyed after the three (3) year period, unless otherwise agreed upon between C.I.T.S. and the Customer. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for C.I.T.S. to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by C.I.T.S. in accordance with C.I.T.S.’s archiving procedure. C.I.T.S. shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, except those third parties sub- contracted by C.I.T.S. to perform services related to Customer Data maintenance and back-up.
13. PROPERTY RIGHTS
C.I.T.S Intellectual Property
13.1 The Customer acknowledges and agrees that C.I.T.S. and/or its licensors own and retain all rights, title and interest in the Services and the Documentation including without limitation, all reproductions, enhancements, upgrades, new releases, modifications and/or derivative works thereto that is used in connection with the Services to the extent listed in each Service Schedule. Except as expressly stated herein, the Contract Documents do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
13.2 C.I.T.S. confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
13.3 The Customer shall only utilise and ensure its employees and contractors utilise C.I.T.S.’s Intellectual Property as per the terms and conditions of the Contract Documents or such license terms and conditions made available to the Customer for purposes of the Services.
13.4 Without limiting specific use restrictions under any Service Schedule, the Customer shall not allow any third party to use (gain access to) or copy any of C.I.T.S.’s Intellectual Property during the utilisation of same by the Customer. Where any integration may be required between the Intellectual Property of C.I.T.S. and any third party Intellectual Property, the Customer shall notify C.I.T.S. in writing prior to any integration. On receipt of such notification C.I.T.S. shall submit to the Customer the necessary specifications and procedures to be followed during integration and the Customer shall allow C.I.T.S. to manage the process.
Use of third party Intellectual Property licensed to the Customer
13.5 Prior to the commencement date of a Service Schedule, the Customer shall at its own expense procure the grant of such licenses or permissions to C.I.T.S. as are necessary under the terms of any third party licenses, lease, rental or other agreement in respect of C.I.T.S.'s use of third party software for the purpose of providing the Services during the Service Schedule term.
13.6 Ownership of the third-party software, including all Intellectual Property Rights in it, shall remain in the relevant third party.
its reasonable charges for such assistance provided on a time and materials basis.
14. DISPUTE RESOLUTION
Any dispute arising from the Agreement shall be subject to the following dispute resolution procedures -
14.1 Informal dispute resolution: Prior to referring any dispute to arbitration, the Parties shall first attempt to resolve the dispute.
14.2 Informal dispute resolution does not reduce Parties' rights: Proceedings in terms of this clause 14.1 shall not be construed to prevent a Party from instituting formal proceedings earlier to obtain urgent or interim relief, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors.
14.3 Institution of Formal Proceedings: Subject to the provisions of clauses 14.1 and 14.2, the Parties agree that either Party may elect to refer any dispute which may arise to any court with jurisdiction in South Africa or to arbitration proceedings as contemplated in clause 14.4. Upon election by a Party initiating the relevant dispute proceedings, the other Party will be bound by such election for the purposes of the dispute in question.
14.4 Arbitration: If the Parties are unable to resolve any dispute informally and either Party has elected to commence arbitration proceedings to resolve the dispute in terms of clause 14.3, then such dispute shall on written demand by the electing Party be submitted to arbitration at AFSA (Arbitration Foundation of Southern Africa) against the Expedited Rules of AFSA.
14.5 Status of arbitration ruling: The decision of the arbitrator shall be binding on the Parties to the arbitration after the expiry of the period of 20 (twenty) days from the date of the arbitrator's ruling if no appeal has been lodged by any Party or upon the issue of determination by the appeal panel, as the case may be. A decision, which becomes final and binding in terms of this clause 14.5 may be made an order of court at the instance of any Party to the arbitration. The parties agree to keep the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
14.6 Rapid resolution of disputes: The Parties shall use commercially reasonable efforts to resolve disputes arising as rapidly as possible.
14.7 Confidentiality: All disputes will be dealt with in confidentiality to protect the reputation of the parties
14.8 Excluded relief: This clause 1 shall not preclude either Party from seeking urgent or interim relief from the High Court of South Africa or any other competent organs of state created for the specific purpose of regulating the business or industry activities in which the Parties are engaged.
14.9 Agreed Jurisdiction: The Parties hereby consent to the jurisdiction of the North Gauteng High Court (Pretoria) in respect of proceedings referred to in clause 14.3 above.
15.1 Each Party warrants to the other Party that:
15.1.1. it has full capacity and authority and all necessary licences, permits and consents to enter into and to perform this Agreement;
15.1.2. this Agreement is executed by a duly authorised representative of that Party; and
15.1.3. the execution and delivery of this Agreement, and the performance by the warranting Party of its obligations under it, will not:
15.1.4. result in a breach of any provision of the Memorandum or Articles of Association or Partnership Deed, if applicable, of the warranting Party; or
15.1.5. result in a breach of or constitute a default under any instrument or agreement to which the warranting Party is a Party to or by which the warranting Party is bound; or
15.1.6. result in a breach of any order, judgement or decrees of any court or Governmental agency to which the
warranting Party is a Party or by which the warranting Party is bound.
15.2 C.I.T.S. warrants that the Services shall be supplied by appropriately experienced, qualified and trained personnel and in a professional manner with reasonable care, skill and diligence.
15.3 The Customer warrants that it has the right to authorise
C.I.T.S. to access the Customer Equipment and / or Customer Data for purposes of the Services and indemnify C.I.T.S. against any claim, damages or expenses whatsoever as a result of C.I.T.S.’s access to and processing of the Customer Equipment and/or Customer Data.
15.4 Except as expressly stated in this Agreement all conditions and warranties whether express or implied, statutory or otherwise (including but not limited to any conditions or warranty for, fitness for particular purpose, satisfactory quality, usefulness or timeliness) are excluded
16. LIMITATION OF LIABILITY
16.1 Unless otherwise agreed to under this Agreement or any Service Schedule, this clause 16 sets out the entire financial liability of C.I.T.S. (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
16.1.1 any breach of this agreement;
16.1.2 any use made by the Customer of the Services and Documentation or any part of them; and
16.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
16.2 Except as expressly and specifically provided in any Contract Document:
16.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use.
C.I.T.S. shall have no liability for any damage caused by errors or omissions in any information (including Customer Data), instructions or scripts provided to C.I.T.S. by the Customer in connection with the Services, or any actions taken by C.I.T.S. at the Customer's direction;
16.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
16.2.3 the Services and the Documentation are provided to the Customer on an "as is" basis.
16.3 Nothing in this agreement excludes the liability of C.I.T.S.:
16.3.1 for death or personal injury caused by C.I.T.S.'s negligence; or
16.3.2 for fraud or fraudulent misrepresentation.
16.4 Subject to clause 16.2 and clause 16.3:
16.4.1 C.I.T.S. shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
16.5 C.I.T.S.'s total aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount of the total fees paid by the Customer to C.I.T.S. during the 3 months immediately preceding the date on which the claim arose.
17.1 The Customer shall defend, indemnify and hold harmless
C.I.T.S. against claims, actions, proceedings, losses,
damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
17.1.1 the Customer is given prompt notice of any such claim
17.1.2 C.I.T.S. provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
17.1.3 the Customer is given sole authority to defend or settle the claim.
17.2 C.I.T.S. shall, subject to clause 17.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any Republic of South African patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
17.2.1 C.I.T.S. is given prompt notice of any such claim;
17.2.2 the Customer provides reasonable co-operation to
C.I.T.S. in the defence and settlement of such claim, at C.I.T.S.'s expense;
17.2.3 C.I.T.S. is given sole authority to defend or settle the claim.
17.3 In the defence or settlement of any claim, C.I.T.S. may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the particular Service Schedule on 2
business days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer, except a refund on any payment made in advance, minus the pro rata use of said Service.
17.4 In no event shall C.I.T.S. or its Personnel be liable to the Customer to the extent that the alleged infringement is based on:
17.4.1 a modification of the Services or Documentation by anyone other than C.I.T.S.; or
17.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by C.I.T.S.; or
17.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from C.I.T.S. or any appropriate authority.
17.5 The foregoing states the Customer's sole and exclusive rights and remedies, and C.I.T.S.'s (including Personnel) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
17.6 Each Party agrees to indemnify, defend and hold the other Party (and its Personnel) harmless against any and all loss of or damage to any property or injury to or death of any person; and (ii) loss, damage (including attorneys' fees on an attorney and own client basis), costs and expenses which the other Party may suffer or incur arising directly or indirectly from caused by any wilful misconduct or fraud of such Party or its Personnel.
18 NOTICES AND LEGAL PROCESS
18.1 Each Party chooses as its address for all purposes under this Agreement (“chosen address”), whether for serving any court process or documents, giving any notice, or making any other communications of whatsoever nature and for any other purpose arising from a Contract Document (“notice”), the following address and contact details:
18.1.1 Physical address: 118 Oak Avenue, Oak House, Centurion 0046.
18.1.2 Email: email@example.com (information officer)
Customer: as per the proposal or Service Schedule address which is not a post office box or poste restante.
18.2 Any notice required or permitted under this Agreement shall be valid and effective only if in writing.
18.3 Either Party shall be entitled from time to time, by written notice to the other, to vary its address to any other
18.4 Any notice to either party which is -
18.4.1 sent by prepaid registered post in a correctly addressed envelope to the address specified for it under clause shall be deemed to have been received, unless the contrary is proved, within 14 (fourteen) days from the date on which it was posted; or
18.4.2 delivered to the party by hand, shall be deemed to have been received on the day of delivery, provided that it has been delivered to a responsible person during ordinary business hours; or
18.4.3 sent by email to the addressee, shall be deemed to be received as and when it is reflected in the sender’s mail server logs and in the absence of any administrator or mail server error messages.
18.5 Notwithstanding anything to the contrary herein, a written notice actually received by a party, including a notice sent by telefax, shall be an adequate notice to it notwithstanding that it was not sent or delivered to its chosen address.
19. CONFLICTS OF INTEREST
C.I.T.S. provides a wide range of services to a large number of customers. C.I.T.S. attempts to identify such situations but cannot guarantee that it has identified all those situations that exist or may exist. The parties agree to notify each other in the event of conflicts arising. No service or products provided by C.I.T.S. can be considered by the client to be exclusive and by accepting an assignment or order C.I.T.S. does not accept any restriction of trade.
20. BREACH AND TERMINATION
20.1 Should either party;
20.1.1 breach any of its obligations in terms hereof (including any Service Schedule) and fail to remedy such breach within 10 (ten) working days from receipt of a written notice from the other party. If the breach cannot reasonably be remedied within 10 (ten) working days, the Party in default shall be entitled to an extension, not exceeding a further 20 (twenty) days, to remedy the breach, on condition that the Party in default provides evidence to the reasonable satisfaction of the party within the 10 (ten) days that effective steps to remedy the breach have been initiated and continues to provide such evidence on an on-going basis that the steps are being expeditiously pursued.
20.1.2 commits a breach of any payment obligation in terms of any Contract Document and fails to make payment within 7 (seven) days after receipt from the other Party of written notice calling upon it to do so;
20.1.3 be placed in liquidation or under judicial management or curatorship (in either case, whether provisionally or finally); or
20.1.4 effect a compromise with its creditors; or
20.1.5 commit any act or omission which would, in the case of an individual, be an act of insolvency in terms of Section 8 of the Insolvency Act; or
20.1.6 fail to satisfy any final judgement against it within 21 days of the date when it should have become aware of such judgement; or the non-defaulting party shall, without prejudice to any other remedies which it may otherwise have in terms of the Agreement, applicable Service Schedule or at law terminate this Agreement and/or any Service Schedules or any part of a Services under a Service Schedule on written notice to the defaulting party, in which event such termination shall be without prejudice to, and shall not constitute a release or
waiver of, any claims which the non-defaulting party
20.2 may have for damages against the defaulting party occasioned by the termination of this Agreement and/or any Service Schedule (as the case may be) in terms of this clause.
20.3 No party may cancel this Agreement on the grounds of a breach of a term of this Agreement unless the breach is material.
20.4 Without prejudice to the aforesaid right, where such breach is the result of non-payment from the Customer and Customer does not execute payment after notice as set out above, C.I.T.S. may suspend Services until the amount due and outstanding has been paid in full. Aforesaid suspension shall not be seen as a cancellation or termination unless C.I.T.S. specifically indicate cancellation of the Agreement;
20.5 The Customer may cancel the Agreement or any Service Schedule at the end of the Initial Period (if any) or if the Customer is a natural person, on at least 20 (twenty) Business Days advance written notice to C.I.T.S. at any time prior to the expiration of the Initial Period, subject to payment of all amounts due and payable up to the date of cancellation and payment of a reasonable cancellation fee that C.I.T.S. may charge for the early termination in contemplation of the Agreement or Service Schedule enduring for its intended Initial Period.
20.6 If the Customer is a Juristic Person, the Customer may not terminate the Agreement or Service Schedule prior to the Initial Term except as otherwise agreed to under this Agreement.
21. CONSEQUENCES OF TERMINATION
21.1 The effect of terminating this Agreement will be termination of all Service Schedules.
21.2 Upon termination or expiry of any Service Schedule: -
21.2.1 C.I.T.S shall cease work as per the terminated Service Schedule;
21.2.2 C.I.T.S shall prepare and submit to the Customer an itemization of all completed and partially completed Services;
21.2.3 C.I.T.S shall deliver to the Customer the Services completed up to the date of termination at the agreed upon Fees; and
21.2.4 C.I.T.S shall deliver upon request any work in process;
21.2.5 The Customer undertakes to return to C.I.T.S. any
C.I.T.S. Equipment, Documentation, information or other materials of C.I.T.S., which it has, no legal right to retain.
21.2.6 C.I.T.S. may destroy or otherwise dispose of any of the Customer Data in its possession unless C.I.T.S. receives, no later than 10 (ten) days after the effective date of the termination of this Agreement or any particular Service Schedule, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. C.I.T.S. shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 (thirty) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses (on a time and material basis) incurred by C.I.T.S. in returning or disposing of Customer Data.
21.3 Upon termination of this Agreement or any of the Service Schedules for whatever reason Customer shall pay to C.I.T.S. all sums due to the date of termination together with the cost of materials and goods ordered for the performance of the Services for which C.I.T.S. has paid or is legally bound to pay and such reasonable and necessary costs incurred in removing from the Customer's premises any property of C.I.T.S. and in removing and returning to the Customer any property of the Customer.
22.1 For the avoidance of doubt, the Parties record and agree that pursuant to the implementation of this agreement C.I.T.S. shall at all times act as an independent contractor;
22.2 Nothing in this agreement shall constitute an employer / employee relationship or an agency or a partnership in any shape or form between the Parties nor authorise either of the Parties to incur any liability on behalf of the other of them, save to the extent expressly provided for herein.
23. FORCE MAJEURE
23.1. Neither Party will be liable to the other for any default or delay in the performance of its obligations under Contract Documents:
23.1.1 if and to the extent that such default or delay is caused by any act of God, war or civil disturbance, court order, rule, regulation or direction or any other circumstance beyond its reasonable control including without limitation, strikes, failure of a utility service or transport or communications network provisioned by a third party, malicious damage ("Circumstances of Force Majeure"); and
23.1.2 provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by the non-performing Party through the use of alternative sources, workaround plans or other means.
23.2. Following any Circumstance of Force Majeure, the non- performing Party shall, subject to clause 23.5 below:
23.2.1 As soon as reasonably possible after the event occurring, notify the other Party by whichever way is available and if possible thereafter, confirm in writing;
23.2.2 be excused from further performance or observance of its obligation(s) so affected for so long as such circumstances prevail and such Party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay; and
23.3. co-operate with the other Party in implementing such contingency measures as that other Party may reasonably require.
23.4. Should any Circumstances of Force Majeure continue for more than 30 (thirty) days, then either Party may terminate the Agreement and/or the applicable Service Schedule by giving written notice to the other Party.
23.5. Notwithstanding the aforegoing, if the Customer declares a disaster at its current Location, C.I.T.S. shall continue to provide the Services or Deliverables at the Customer's designated disaster recovery site, upon the same terms and conditions set out in this Agreement and the applicable Service Schedule. The Customer will notify C.I.T.S. in writing of any changes made, from time to time, to its aforesaid disaster recovery plan.
23.6. If the agreed Services are to perform and deliver specific Services and / or Deliverables during Circumstances of Force Majeure, then these clauses will not apply.
24. GENERAL AND MISCELLANEOUS
24.1. Sole record of agreement: The Contract Documents constitutes the sole record of the agreement between the Parties with regard to the subject matter hereof. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein. This Agreement supersedes all previous agreements between the parties.
24.2. No amendment except in writing: No alteration, cancellation, variation of, or addition hereto, including this clause, shall be of any force or effect unless reduced to writing and signed by authorised representatives of the parties. The terms and conditions contained on the Customer’s purchase order or electronic communications shall not apply to, supplement or supersede any provisions of a Contract Document.
24.3 Waivers: No relaxation or indulgence, which any Party may grant to any other, shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in future.
24.4 Survival of obligations: Any provision of the Contract Documents, which contemplates performance or observance subsequent to any termination, or expiration of this Agreement or any Service Schedule shall survive any termination or expiration of this Agreement and applicable Service Schedule and continue in full force and effect.
24.5 Assignment: Neither Party may assign the Agreement, or any part thereof without the written consent of the other Party, which consent shall not be unreasonably withheld or unduly delayed, except that either party shall be entitled to assign or transfer any of its rights or obligations hereunder to any one of its Affiliates or in the event of sale or transfer of assets or business of the particular party pursuant to any financing, merger or reorganisation of the particular party, unless such action results in the taking control of the party by a competitor of the other party.
24.6 Approvals and consents: An approval or consent given by a party to the Agreement shall only be valid if in writing and shall not relieve the other Party from responsibility for complying with the requirements of this Agreement nor shall it be construed as a waiver of any rights under this Agreement except as and to the extent otherwise expressly provided in such approval or consent, or elsewhere in this Agreement.
24.7 Severability: In the event that any of the terms of the Contract Documents are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
24.8 Governing law & jurisdiction: The law of South Africa and the jurisdiction of the South African courts shall govern this Agreement.
25. OPENTEXT SUPPORT AND MAINTENANCE
25.1 Opentext Support and Maintenance Program. All Support Software provided to Licensee under an Opentext maintenance or support program is governed by C.I.T.S. Legal EULA. The provision of maintenance and support services by Opentext will be governed by the then-current version of the applicable Opentext software maintenance program handbook. (available upon request or at (www.opentext.com/agreements).
“Term and Renewal” The Initial Term for Opentext Prime Protect Software Maintenance Program is twelve months beginning on the Start Date. Unless either party provides 90 calendar days written notice prior to the expiration of the current term, the Opentext Prime Protect Software Maintenance Program will automatically renew for a Subsequent Term on an annual basis, commencing each anniversary of the Start Date. Before the commencement of a Term, you will be obligated to pay the applicable entire annual Opentext Prime Protect Software Maintenance Program fee with respect to the Covered Software which you have licensed from Opentext, failing which Opentext may suspend some or all of the Opentext Prime Protect Software Maintenance Program services until payment has been received. Such suspension shall not relieve you from your obligation to pay the applicable Opentext Prime Protect Software Maintenance Program fee. Opentext may increase the annual fee for Subsequent Terms of software maintenance by no more than 10% of the price of the previous Term. All fees paid for the Opentext Prime Protect Software Maintenance Program are non-refundable.