Ownership of the Site and its Contents
You acknowledge that this Site, and all intellectual property rights therein vest in, Resolve, our licensors, advertisers or third-party content providers (as applicable) and that any unauthorised use thereof is expressly prohibited. Unless otherwise indicated, all of the content featured or displayed on this Site, including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“Site Content”) are owned by Resolve, our licensors, advertisers or third-party content providers (as applicable).
All elements of the Site, including the Site Content are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property. We reserve the right at any time to change or discontinue, without notice, any aspect or feature of the Site.
Use of the Site
This Site and the Site Content are intended for Resolve’s users. You may not use this Site or the Site Content for anything other than personal and non-commercial purposes. You are specifically prohibited from: (i) printing, downloading, copying, adapting or re-transmitting any or all of the Site or the Site Content otherwise than through your bona fide, personal, non-commercial use of the Site without, or in violation of, a written licence or agreement with us; (ii) using any data-mining, robots or similar data-gathering or extraction methods; (iii) manipulating or otherwise displaying the Site or the Site Content by using framing or similar navigational technology; and (iv) using the Site or the Site Content other than for their intended purpose. Such unauthorised use may also violate applicable laws, including, without limitation, copyright and trademark laws, the laws of privacy and publicity, and applicable communications legislation and regulations.
You represent and warrant that you will comply with all applicable laws and regulations, including, without limitation, those relating to the Internet, data, electronic communications, privacy, and the transmission of data exported from the Republic of South Africa, the country from which you export the data or the country in which you reside.
Our logos and any other product or service name or slogan contained in the Site are registered or unregistered trademarks of Resolve and our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Resolve or the applicable trademark holder. You may not use metatags or any other HTML tags, comments or hidden text utilising “Resolve”, “Resolve Solution Partners” or any other name, trademark or product or service name of Resolve without our prior written permission. In addition, the look and feel of the Site (including, without limitation, all page headers, custom graphics, button icons and scripts) is the service mark, trademark and/or trade dress of Resolve and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
You may not use a Resolve logo or other proprietary graphic of Resolve to link to this Site (or any other site) without our express written permission. Further, you may not frame any of our trademarks, logos or other proprietary information, including the Site Content, without our express written consent.
We make no claim or representation regarding, and accept no responsibility for, directly or indirectly, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. Such sites are not under our control and we are not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. We provide such links (if any) to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by us of any site or any information contained therein. When you leave the Site, you should be aware that Resolve’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
Your participation, correspondence or business dealings with any third party found on or through the Site, regarding the payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that we will not be responsible or liable for any loss, damage or other matters of any sort incurred as the result of any such dealings.
Warranties and Undertakings
You undertake to conduct all dealings with Resolve and with other users of the Site with the utmost good faith and in accordance with all applicable laws.
You agree to defend, indemnify and hold us harmless, as well as our subsidiaries, affiliates, licensors, employees, agents, sponsors, third party information providers and independent contractors, against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your use of the Site (including, without limitation, any information you disclose in any dealings you have with any other user of the Site), your conduct, your use of or inability to use the Site, your breach or alleged breach of the Site Terms or of any representation or warranty contained herein, your unauthorised use of the Site Content, or your violation of any rights of another
Limitation of Liability
In no event shall we, our directors, members, employees or agents be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including, but not limited to, loss of use, loss of profits or loss of data, whether in an action in contract, delint (including, but not limited to, negligence) or otherwise, arising out of or in any way connected with the use of the Site, the Site Content or the materials or services contained in or accessed through the Site, including, without limitation, any damages caused by or resulting from your reliance on any information obtained from us, or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction or unauthorised access to Resolve’s records, programs or services. In no event shall our aggregate liability, whether in contract, warranty, delint (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Site exceed any compensation you pay, if any, to us for access to or use of the Site.
Dispute Resolution and Governing Law
These Site Terms are governed by and will be interpreted according to the laws of the Republic of South Africa, and all disputes, claims and other matters in connection with these Site Terms will be determined in accordance with such laws.
Any dispute relating in any way to your use of the Site or the Site Content will be submitted to confidential arbitration to be held in Sandton under the rules of the Arbitration Foundation of Southern Africa (or its successor in title), to which arbitration you hereby consent; except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek interdictory, injunctive or other appropriate relief in any applicable court in the Republic of South Africa, and you consent to exclusive jurisdiction and venue of such courts. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Site Terms may be joined to an arbitration involving any other party subject to the Site Terms, whether through class arbitration proceedings or otherwise.
Notwithstanding any of these Site Terms, we reserve the right, without notice and in our sole discretion, to restrict or block your use of the Site.
These Site Terms (as varied from time to time in accordance with the “Changes to Site Terms” section below) constitute the sole record of the agreement between you and us in relation to your use of the Site. Neither you nor Resolve will be bound by any express, tacit or implied representation, warranty, promise or the like not recorded herein. Unless otherwise specifically stated, these Site Terms supersede and replace all prior commitments, undertakings or representations, whether written or oral, between you and us in respect of your use of the Site. Notwithstanding the foregoing, our licensors, advertisers or third-party content providers may be granted access to the Site by virtue of a separate written agreement with Resolve. If this applies to you, these Site Terms must be read in conjunction with such agreement, which takes precedence over these Site Terms in the event of any conflict.
Failure or neglect by us to enforce at any time any of the provisions of the Site Terms may not be construed as a waiver of our rights. Any waiver of any provision of the Site Terms will be effective only if in writing and signed by us.
If any provision of these Site Terms is found to be unenforceable, wherever possible this will not affect any other provision and each will remain in full force and effect.
Any rights not expressly granted herein are reserved.
Changes to Site Terms
Resolve reserves the right to change any of the terms and conditions contained in the Site Terms or any policy or guideline of the Site, at any time and in our sole discretion. When we make changes, we will revise the “Last Updated” date at the top of these Site Terms. Any changes will be effective immediately upon posting on the Site. Your continued use of the Site following the posting of changes will constitute your acceptance of such changes. We encourage you to review the Site Terms whenever you visit this Site.
Questions or comments about the Site or Site Terms may be directed to Resolve at firstname.lastname@example.org
- Goods and Services. Resolve is in the business of providing goods and services and has the requisite degree of skill and expertise in providing such goods and services.
- Appointment. Customer wishes to appoint Resolve to provide certain Goods and Services to Customer, and Resolve wishes to accept such appointment subject to the terms and conditions contained in the Agreement.
- Purpose. The purpose of these Standard Customer Terms is to facilitate and govern the relationship between Resolve and Customer.
- No obligation. Nothing in these Standard Customer Terms obligates either Party to enter into any Orders.
- DEFINITIONS AND INTERPRETATION
- Definitions. For purposes of the Agreement—
- “Affiliate” means with regard to either Party, any legal entity which that Party Controls, which Controls that Party, or which is under common Control with that Party, and which enters into an Order;
- “AFSA” means the Arbitration Foundation of Southern Africa, or its successors in title;
- “Agreement” means the agreement which consists of—
- these Standard Customer Terms; and
- any Orders concluded pursuant to these Standard Customer Terms, and includes any schedules, annexures, exhibits and attachments thereto;
- Definitions. For purposes of the Agreement—
- “Business Day” means any day other than a Saturday, Sunday or gazetted public holiday in the Republic of South Africa;
- “Business Hours” means the hours from 08h00 to 17h00 (South African time) on Business Days;
- “Change Control Procedure” means the change control procedure referred to in clause 5;
- “Consumables” means any and all consumable items used by Resolve in fulfilling its obligations under the Agreement including tapes, discs (both optical and magnetic), diskettes, cartridges, ribbons, cards, paper and other storage media;
- “Contract Year” means, in respect of an Order, each successive 12 (twelve) calendar month period during the term of the Order, as measured from the Effective Date of such Order;
- “Control” means owning more than 50% (fifty percent) of the issued share capital or having the legal power to direct or cause the direction of the general management and policies of the company in question;
- “CPI” means the average year-on-year percentage change in the Consumer Price Index for all urban areas as published in the Statistical News Release compiled by Statistics South Africa (or its successor in title) for the preceding 12 (twelve) months;
- “Customer” means the customer that has entered into the Agreement and, if specified in an Order, its Affiliates;
- “Customer Data” means Customer’s data (including personal information about an identifiable individual)—
- provided to Resolve either by Customer or by any third party on Customer’s behalf; or
- data specific to the Services which Resolve generates, processes, or supplies to Customer in the performance of the Services,
but excludes any derived data that is created by Resolve for its own internal purposes or which is proprietary or confidential to Resolve or Resolve’s Third Party Contractors;
- “Customer Material” means all materials provided or made available by or on behalf of Customer to Resolve for purposes of the Agreement and includes Customer Data;
- “Customer Policies” means any of Customer’s policies, practices, codes of conduct and procedures including any applicable black economic empowerment, security, information technology, health, safety and environmental policies (as amended from time to time) which may be of general application;
- “Deliverable” means any deliverable or work product delivered by Resolve relating to the Services;
- “Effective Date” means in respect of each Order, the effective date stipulated in such Order, failing which it shall be the Signature Date of such Order;
- “Fees” means the fees and charges to be paid by Customer to Resolve in respect of Goods and Services provided by Resolve under Orders;
- “Goods” means any and all goods (including any and all equipment, hardware or third-party software) to be provided by Resolve to Customer under Orders;
- “Order” means a goods, licence, services or work order agreed to and signed by both the Parties pursuant to these Standard Customer Terms describing the specific Goods or Services to be provided by Resolve to Customer, including any schedules or annexures thereto;
- “Parties” means Resolve and Customer collectively and “Party” means either one of them individually, as the context requires;
- “Personnel” means any director, employee, agent, consultant, contractor or other representative of the Parties;
- “Representative” means either one of the persons appointed under clause 19;
- “Resolve” means the vendor that has entered into the Agreement and, if specified in an Order, its Affiliates;
- “Resolve IP” means any and all intellectual property that Resolve has created, acquired or otherwise has rights in and may, in connection with the performance of Resolve’s obligations under the Agreement, employ, provide, modify, create or otherwise acquire rights in and includes 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;
- “Scope Change Document” means the scope change document referred to in clause 5;
- “Services” means any and all services to be provided by Resolve to Customer, under Orders;
- “Service Levels” means the levels according to which each Service is to be provided as agreed by the Parties;
- “Sign” means the handwritten signature or advanced electronic signature of the duly authorised representative of a Party and “Signed”, “Signing” and “Signature” shall have a corresponding meaning;
- “Signature Date” means the date of signature of any document by the Party signing last;
- “Site” means the physical site referred to in an Order, to which Goods are to be delivered or at which Services are to be provided by Resolve for use by Customer under the Order;
- “Software” means any of the proprietary software applications developed and/or licensed by Resolve (as the case may be) and any successor software applications, as amended, updated and enhanced from time to time;
- “Standard Customer Terms” means these terms and conditions and includes any schedules, annexures, exhibits and attachments hereto;
- “Steering Committee” means any steering committee referred to in clause 20;
- “Third Party Contracts” means any and all contracts in force as at the Effective Date between Customer and Third Parties Contractors, referred to in the Order;
- “Third Party Contractor” means, in respect of any goods and services, the contractor, supplier, vendor or licensor (as the case may be) of the goods or services which is not a party to the Agreement;
- “Time and Materials” means Resolve’s standard time and materials fees and charges applicable from time to time; and
- “Writing” means any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents and fax transmissions, but excludes information or data in electronic form and “Written” and “Write” shall have a corresponding meaning.
- Headings. Headings and sub-headings are inserted for information purposes only and shall not be used in the interpretation of the Agreement.
- Examples. Whenever a term is followed by the word “including” or “include” or “excluding” or “exclude” and specific examples, the examples shall not limit the ambit of the term.
- Enactments. References to any enactment shall be deemed to include references to the enactment as re-enacted, amended or extended from time to time.
- References to persons. References to persons shall include natural and juristic persons and references to either Party shall include the Party’s successors or permitted assigns.
- Calculation of days. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included, unless the last calendar day falls on a calendar day that is not a Business Day, in which event the last calendar day shall be the next Business Day.
- Definitions in these Standard Customer Terms. Expressions defined in these Standard Customer Terms shall bear the same meanings in Orders, unless otherwise stated therein. Where any term is defined within the context of any particular clause in the Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of the Agreement, notwithstanding that the term has not been defined in clause 1 of these Standard Customer Terms.
- Rule of construction excluded. The rule of construction that an agreement shall be interpreted against the Party responsible for its drafting or preparation shall not apply.
- STATUS AND PRECEDENCE
- Structure. These Standard Customer Terms are the general terms of the relationship between Resolve and Customer. If Customer receives Goods or Services from Resolve under these Standard Customer Terms, the specific terms of those transactions will be contained in Orders that will incorporate these Standard Customer Terms, as amended by those Orders.
- Orders independent. Except where specifically provided to the contrary in an Order, and then only to the extent so specified, each Order shall be subject to these Standard Customer Terms. Insofar as any term and condition in an Order conflicts with these Standard Customer Terms in respect of—
- the description of Goods or Services, the terms and conditions in the Order shall prevail; or
- any other matter, these Standard Customer Terms shall prevail.
Save where expressly provided to the contrary, the terms and conditions of one Order shall not apply to any other Order.
- Conflicts with body of Orders. Insofar as the meaning of any term or condition in a schedule or annexure to an Order or any other document referred to in an Order, excluding these Standard Customer Terms, conflicts with the meaning of the body of the relevant Order, the meaning of the terms and conditions in the body of the relevant Order shall prevail.
Each Order will commence on its Effective Date and shall continue for the period provided therein, subject to termination as provided for in these Standard Customer Terms.
- CHANGE CONTROL
- Changes to Goods and Services. During the currency of an Order, events may occur which require a change to the nature and scope of Goods and Services. No change shall be implemented unless the Parties comply with the terms of this clause.
- Change request. A Party may propose a change to the nature and scope of Goods and Services by sending a Scope Change Document to the other Party detailing the desired changes.
- Scope Change Document. Should a Scope Change Document be made by—
- Customer, then Customer shall specify the reasons for that change and describe the change in sufficient detail to enable Resolve to formulate a response. Resolve shall investigate the likely impact of any proposed changes on the provision of Goods and Services and shall provide Customer with a scope change proposal, including amended pricing and timeframes; or
- Resolve, then Resolve shall detail in a scope change proposal the reasons for and impact of the change, the services required to implement the change and the effect that the changes, if implemented, will have on the relevant Order.
- Sign-off. The Parties shall discuss the proposed changes and shall effect the amendments to Resolve’s scope change proposal as may be agreed. The scope change proposal shall then be considered by Customer and approved or rejected in its discretion in writing within 3 (three) Business Days. If a scope change proposal—
- is accepted by Customer, the scope change proposal shall be signed off by duly authorised representatives of the Parties and incorporated into the relevant Order; or
- is rejected by Customer, the Goods or Services shall continue to be provided by Resolve on the existing terms.
- No change effective until sign-off. Neither Resolve nor Customer shall be entitled to proceed with or require the implementation of any change to an Order until the change and all matters relating to the change have been agreed in writing between the Parties. Pending sign-off, the Parties will continue to perform their obligations without taking account of the proposed changes. Neither Party shall be obliged to agree to any change proposed by the other Party but the Parties will not unreasonably delay or withhold their agreement to a proposed change.
- Exception. It is expressly recorded that amendments to the content of the Agreement which do not directly impact the nature and scope of Goods or Services provided shall not be subject to the Change Control Procedure, but shall be executed in writing.
- Access. Customer shall allow Resolve and its Personnel access (at all reasonable times) to the Sites for the purposes of fulfilling its obligations under Orders.
- Compliance with Customer Policies. Resolve shall take all reasonable steps to comply, and ensure that its Personnel comply, with Customer Policies. Customer shall notify Resolve of all Customer Policies prior to the Effective Date and give Resolve and the relevant Personnel reasonable written notice of any change in existing Customer Policies or the implementation of new Customer Policies.
- Allocation of resources. Resolve shall be entitled, in its discretion, to allocate and reallocate all Resolve Personnel who provide Services under the Agreement.
- CUSTOMER OBLIGATIONS
To enable Resolve to provide the Goods and Services, Customer agrees to provide ongoing assistance, liaison, input, support and full co-operation and shall, to the extent required by Resolve and at Customer’s cost—
- provision of office and working space; provide Resolve and its Personnel with access to adequate working space, office furniture and parking;
- provision of Consumables; provide the Consumables reasonably required by Resolve to fulfil its obligations under Orders, unless any Consumables are agreed to be provided by Resolve under an Order;
- safety training and certification; if required, provide training to all Resolve Personnel providing on-Site Services in the relevant aspects of safety awareness, plant-specific safety awareness and task-specific safety awareness and will provide appropriate certification where required;
- protective clothing; issue all Resolve Personnel providing on-Site Services with the required safety and protective clothing and equipment, and ensure that they are proficient in the use of these;
- availability of Personnel; make its Personnel available for workshops, group discussions and specific task execution as and when required according to any agreed project plans;
- decisions and approvals; render all decisions and approvals required as soon as is reasonably possible;
- suitable infrastructure; provide a suitable infrastructure for the components, software or Deliverables that are to be implemented, including main servers, network operating systems, third party software, databases, tools and related facilities, in accordance with any specification requirements;
- access; provide Resolve with reasonable access to Customer Material and Customer’s computer systems;
- notifications; notify Resolve as soon as reasonably possible of any issues, concerns or disputes;
- Customer Material; be responsible for the accuracy and completeness of all Customer Material;
- supply of infrastructure; provide electricity services, telephone services and other connectivity (including access to computer networks and the Internet) at each Site;
- dependent functions; make available sufficiently qualified and authorised Customer Personnel, with appropriate access rights and permissions;
- compliance with Resolve policies; comply with all reasonable policies, procedures and instructions of Resolve; and
- no malicious software; take commercially reasonable measures to ensure that no malicious software is introduced into Customer’s or Resolve’s systems by its Personnel or any third party.
- CUSTOMER MATERIAL AND CUSTOMER DATA
- Ownership. Ownership in all Customer Material whether under its control or not, shall continue to vest in Customer and Resolve shall not obtain any proprietary rights in Customer Material. Customer grants to Resolve (and Resolve’s Third Party Contractors as necessary) a perpetual, non‑exclusive, royalty free licence to use, reproduce and modify any Customer Material strictly for the purposes of providing the Goods and Services or as otherwise directed by Customer.
- Privacy and protection of personal information.
- Resolve and Customer are each responsible for complying with their respective obligations under applicable privacy and protection of personal information laws governing Customer Data.
- Customer remains solely responsible for determining the purposes and means of Resolve’s processing of Customer Data, including that processing will not place Resolve in breach of any applicable privacy and protection of personal information laws.
- Resolve and Customer each acknowledge that it is not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
- Trans-border Customer Data flows.
- Customer hereby consents to Resolve transferring Customer Data across a country border to enable Resolve to comply with its obligations under the Agreement.
- Customer is solely responsible for determining that any transfer of Customer Data across a country border complies with the applicable privacy and protection of personal information laws.
- Indemnity. Customer hereby indemnifies and holds Resolve harmless from any claim, damages, penalty or fine as a result of Customer failing to comply with its obligations under this clause 2, including all legal costs incurred on an attorney-and-own-client basis.
- Access. On either Party’s reasonable written request, the other Party will provide the requesting Party with the information that it has regarding Customer Data and its processing that is necessary to enable the requesting Party to comply with its obligations under this clause and the applicable privacy, protection of personal information and access to information laws. The requesting Party will reimburse the other Party for its reasonable charges for its assistance.
- Preservation of integrity of Customer Data. Both Parties shall take reasonable precautions (having regard to the nature of their obligations under the Agreement), to preserve the integrity of Customer Data and to prevent any unauthorised access, corruption or loss of Customer Data.
- Return of data. On termination of any Order, each Party shall return to the other Party in the form in which it was received all of the other Party’s data or information provided to the Party for the purpose of the performance of the relevant Order.
- CUSTOMER THIRD PARTY CONTRACTORS
- Applicable terms. Where Resolve is required under Orders to manage or liaise with Customer-appointed Third Party Contractors pursuant to Third Party Contracts, the following terms will apply:
- Customer shall notify Resolve in writing of the applicable terms of the Third Party Contracts insofar as they relate to or have an impact on Resolve’s obligations;
- Resolve shall not be required to ensure or be responsible for ensuring Customer’s or the Third Party Contractors’ compliance with the terms of the Third Party Contracts; and
- Customer shall be responsible for obtaining and maintaining all necessary licences, consents or authorities under the Third Party Contracts (including any consents or licences required to enable Resolve to fulfil its obligations under the Agreement) and shall be liable for all fees and other charges payable to any Third Party Contractors pursuant to the Third Party Contracts.
- No liability. Resolve shall not be liable for any act or omission of a Third Party Contractor.
- Applicable terms. Where Resolve is required under Orders to manage or liaise with Customer-appointed Third Party Contractors pursuant to Third Party Contracts, the following terms will apply:
- RESOLVE WARRANTIES
- Service warranties. Resolve warrants that in relation to the Services—
- Resolve and its Personnel will possess and have the right to use—
- knowledge and expertise sufficient to enable Resolve to provide the Services; and
- all maintenance and other manuals, specifications, diagnostic aids and testing devices and specialised tools and equipment necessary to enable Resolve to provide the Services.
- Resolve will employ a sufficient number of suitably trained Personnel to provide the Services and to achieve the Service Levels; and
- Resolve will provide the Services in accordance with all applicable laws, enactments and regulations.
- Resolve and its Personnel will possess and have the right to use—
- General warranties. Resolve warrants further that—
- Resolve has the legal right and full power and authority to execute and deliver, and to exercise Resolve’s rights and perform Resolve’s obligations under, the Agreement;
- Resolve and its Personnel will not knowingly introduce any malicious software into Customer’s system.
- DISCLAIMER OF WARRANTIES. RESOLVE HEREBY EXCLUDES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, EXCEPT THOSE WARRANTIES EXPRESSLY MADE IN THE AGREEMENT, INCLUDING—
- ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, NO LATENT DEFECTS, merchantability AND FITNESS FOR A PARTICULAR PURPOSE; AND
- ALL WARRANTIES IN RESPECT OF THIRD PARTY SOFTWARE APPLICATIONS PROVIDED PURSUANT TO THE AGREEMENT.
- Proposals and reports. All surveys, forecasts and recommendations in any proposal, report or other document are made in good faith and on the basis of information available to Resolve at the time. No statement in any proposal, report or other document is to be deemed to be a representation, warranty, undertaking or contractual condition.
- Service warranties. Resolve warrants that in relation to the Services—
- CUSTOMER WARRANTIES
Customer warrants that—
- it has not been induced to enter into the Agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the Agreement;
- by entering into an Order Customer is not acting in breach of any agreement to which Customer is a party;
- if Resolve Personnel are required to use software owned or operated by Customer, all necessary user licences have been obtained in advance; and
- the use of Customer Material by Resolve does not and will not infringe the intellectual property rights of any other person,
and Customer hereby indemnifies and holds Resolve harmless from any claim for damages by any third party as a result of the breach of these warranties, including all legal costs incurred on an attorney-and-own-client basis.
- FEES AND PAYMENT
- Fees. Customer shall be liable for and shall pay the Fees.
- Invoices. All invoices, including those in respect of Goods and Services provided on a Time and Materials basis, shall be paid by Customer within 30 (thirty) calendar days of the date of Resolve’s invoice.
- Tax. Unless otherwise specified in an Order, the Fees exclude all taxes (including value-added tax and other taxes levied in any jurisdiction, but excluding taxes based on the income of Resolve), duties (including stamp duties), tariffs, rates, levies and other governmental charges or expenses payable in respect of the Goods or Services, which shall be payable by Customer in addition to the Fees.
- Interest on outstanding amounts. Where payment of any amount due is not made on the due date, Resolve shall be entitled to—
- charge interest on the outstanding amount at a rate of 2% (two percent) above the prime overdraft rate (percent, per annum) charged by Resolve’s then-current bankers from time to time, as evidenced by any manager of the bank, whose authority it shall not be necessary to prove. Interest shall be calculated from the due date of payment to the date of actual payment, both days inclusive, compounded calendar monthly in arrears and Customer agrees and undertakes to pay on demand the penalty interest, which it hereby accepts as fair and reasonable; and
- without prejudice to any other right or remedy it may have, remove any Goods supplied by Resolve or halt the provision of any Services as Resolve (in its sole discretion) chooses until all payments in arrears have been paid in full.
- Payment. All amounts due and payable by Customer shall be paid to Resolve in the currency specified in the relevant Order, failing which in South African Rands, without deduction or set-off for any reason at an address and in a manner specified by Resolve in writing from time to time. Customer shall not be entitled to withhold payment of any amounts payable to Resolve to satisfy any claim of Customer.
- Escalation. Where an Order provides for the annual escalation of the Fees payable thereunder, such escalation will be determined by the Parties in accordance with the provisions of this clause 6. Fees are reviewed by Resolve on an annual basis and Customer shall be notified of the proposed escalation. Should it exceed CPI, then Resolve shall consult with Customer and such escalation shall be mutually agreed upon. Should the Parties be unable to agree on the amount of such escalation within 3 (three) months from the review date, the Fees shall automatically be escalated by the greater of the increase proposed by Resolve and CPI, which escalation shall be back-dated to the commencement of the Contract Year.
- Expenses. Customer shall reimburse Resolve for all reasonable expenses as are properly incurred by Resolve or Resolve’s Personnel in fulfilling Resolve’s obligations under the Agreement. Expenses include travelling, subsistence, goods and services purchased on Customer’s behalf, communications, stationery, report and presentation material. Travelling and subsistence expenses will be billed in accordance with Resolve’s standard policies from time to time.
- Reimburse costs. If Resolve suspends the provision of the Services or removes any Goods supplied by Resolve, Customer shall pay to Resolve the costs incurred by Resolve (including redeployment, travel and associated expenses) in remobilising Resolve’s employees affected by the Agreement and recommencing the provision of the Services or re-installing the removed Goods.
- Change in law. If at any time the direct costs of performing Resolve’s obligations under the Agreement are increased as a result of a change in any South African law, then Resolve will notify Customer of such increase and the increase shall become effective within 30 (thirty) days of such notice.
- Definition. Where—
- Customer does not provide access to a person, place or thing timeously; changes a decision which Customer has previously communicated to Resolve; does not reply to a communication from Resolve within the required (or reasonable) period required; unreasonably withholds an acceptance or consent; commits a breach of the Agreement which is not otherwise categorised as a Delay; or
- Resolve’s performance is affected by an event of force majeure; or the failure of a third party supplier or service provider,
- Definition. Where—
this shall constitute a “Delay”.
- Notification. Either Party shall notify the other of an event which has occurred or is anticipated and which—
- the notifying Party believes is or may be a Delay; and
- occurred no more than 14 (fourteen) calendar days previously.
- Extension of time for performance. Resolve’s performance shall be extended on a reasonable basis in proportion to the prejudice caused by the Delay, provided that the extension is at least the number of days of the Delay.
- Proposals for Delay.
- Should a Delay arise Resolve may submit proposals for different ways of dealing with the Delay. Resolve shall submit proposals to Customer which may set out a variety of methods for dealing with the Delay which Resolve considers practical.
- Proposals for addressing Delays shall include proposed changes to the scope of work, prices, loss of income due to the delay and any delay to the date of performance assessed by Resolve.
- Customer shall reply to Resolve within 5 (five) Business Days of the submission of Resolve’s proposal—
- accepting the proposal;
- requiring a revised proposal, in which event, Customer shall provide Resolve with reasons for doing so. Resolve shall submit the revised proposal within 21 (twenty one) calendar days of being required to do so; or
- notifying Resolve that the proposal shall not be accepted and that a revised proposal is not required. In such event, a dispute will be deemed to exist between the Parties to be resolved under clause 23.
- Assessing Delays.
- The changes to the prices must be assessed with regard to the effect of the Delay on—
- the fee for the work already done, and
- the forecast fee for the work not yet done.
- A delay in performance is assessed as the length of time that, due to a Delay, planned performance is later than originally indicated.
- Resolve shall include in Resolve’s proposal for a change to the scope proposed rates for its Personnel.
- The changes to the prices must be assessed with regard to the effect of the Delay on—
- Implementation. Resolve shall implement each accepted proposal in accordance with the proposal’s terms.
- Milestones. If an amount would have been payable to Resolve by Customer had it not been for a Delay as set out in clause 1.1, Customer shall pay Resolve the amount, notwithstanding the fact that any milestone has been adjusted.
- INTELLECTUAL PROPERTY
- Existing material. All right, title and ownership of any code, forms, algorithms, methodologies, frameworks or materials developed by or for Resolve 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.
- Deliverables. All right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to any Deliverables shall, unless expressly agreed to the contrary in any Order, vest in Resolve.
- Retention of rights. Resolve has created, acquired or otherwise obtained rights in the Resolve IP and notwithstanding anything contained in the Agreement, Resolve will own all right, title and interest, including all rights under all copyright, patent and other intellectual property laws, in and to the Resolve IP.
- Use of Resolve IP. To the extent that Resolve utilises any Resolve IP in connection with Resolve’s performance under an Order, the Resolve IP shall remain the property of Resolve and Customer shall acquire no right or interest therein.
- CONFIDENTIAL INFORMATION
- Confidentiality obligation. Each Party (“Receiving Party”) must treat and hold as confidential all information which it may receive from the other Party (“Disclosing Party”) or which becomes known to it during the currency of the Agreement.
- Nature. The confidential information of the Disclosing Party shall include—
- all software and associated material and documentation, including the information contained therein;
- Customer Data;
- all information relating to—
- the Disclosing Party’s past, present and future research and development;
- the Disclosing Party’s business activities, pricing, products, services, customers, as well as the Disclosing Party’s technical knowledge and trade secrets;
- the terms of the Agreement.
- The Receiving Party’s obligations. The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s confidential information—
- it shall only make the confidential information available to those of the Receiving Party’s Personnel who are actively involved in the execution of the Receiving Party’s obligations under the Agreement and then only on a “need to know” basis;
- it shall initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to confidential information, its secret and confidential nature;
- subject to the right to make the confidential information available to its Personnel under clause 3.1, it shall not at any time use any confidential information of the Disclosing Party or directly or indirectly disclose any confidential information of the Disclosing Party to third parties;
- all written instructions, drawings, notes, memoranda and records of whatever nature relating to the confidential information of the Disclosing Party which have or shall come into the possession of the Receiving Party and its Personnel, shall be and shall at all times remain the sole and absolute property of the Disclosing Party and shall promptly be handed over to the Disclosing Party when no longer required for the purposes of an Order.
- Effect of termination. On termination or expiry of an Order, the Parties will deliver to each other or, at the other Party’s option, destroy all originals and copies of confidential information in their possession.
- Exceptions. These obligations shall not apply to any information which—
- is lawfully in the public domain at the time of disclosure;
- subsequently and lawfully becomes part of the public domain by publication or otherwise;
- subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose the confidential information; or
- is disclosed pursuant to a requirement or request by operation of law, regulation or court order.
- Indemnity. The Receiving Party hereby indemnifies the Disclosing Party against any loss or damage which the Disclosing Party may suffer as a result of a breach of this clause by the Receiving Party or the Receiving Party’s Personnel.
- Right of use. All notes and any other literature or printed material supplied in the course of providing the Services are supplied solely for the use of full-time Personnel of Customer in the course of their normal duties. Customer undertakes that it shall not, without the prior Written consent of Resolve, make such literature or material available to any contractors, consultants or consulting organisations which have been or may be employed by Customer.
- Survival. This clause is severable from the remainder of the Agreement and shall remain valid and binding on the Parties, notwithstanding any termination, for a period of 5 (five) years after the effective date of termination.
Neither Party shall during the currency of any Order, or for a period of 12 (twelve) calendar months following termination, directly or indirectly solicit, offer employment to, employ or contract in any manner with any Personnel of the other Party who were involved in the implementation or execution of the Order unless otherwise agreed by both Parties in writing.
- INTELLECTUAL PROPERTY INFRINGEMENT
- Defence. Resolve will defend Customer against any claims made by an unaffiliated third party that any Goods or Services infringe its patent, design, copyright or trade mark and will pay the amount of any resulting adverse final judgment (or settlement to which Resolve consents). Resolve will reimburse Customer with all costs reasonably incurred by Customer in connection with assisting Resolve with the defence of the action. Customer shall promptly notify Resolve of the claim in writing and Resolve shall have sole control over its defence or settlement.
- Consequences of successful claim by third parties. Should any third party succeed in its claim for the infringement of any intellectual property rights, Resolve shall, at Resolve’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 refund to Customer all Fees paid by Customer to Resolve under the relevant Order with regard to the infringing item in the preceding 12 (twelve) calendar month period.
- Exclusion. Resolve 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.
- Survival. This clause 17 shall survive termination of the Agreement.
- LIMITATION OF LIABILITY
- Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, unless otherwise agreed in an Order, each Party’s maximum liability for direct damages for anything giving rise to any legal action shall be an amount equal to the total fees already paid or due and payable by Customer to Resolve in respect of the Order for the period 12 (twelve) months preceding the claim. The maximum amount shall be an aggregate amount for all claims arising out of the Order during its currency.
- INDIRECT DAMAGES EXCLUDED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS PERSONNEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES (WHETHER FORESEEABLE OR UNFORESEEABLE) OF ANY KIND (INCLUDING LOSS OF PROFITS, LOSS OF GOODWILL, DAMAGES RELATING TO LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE, DAMAGES RELATING TO DOWNTIME OR COSTS OF SUBSTITUTE PRODUCTS) ARISING FROM THE AGREEMENT.
- Exclusions. The limitation contained in this clause 18 shall not apply to any breach by a Party of the other Party’s proprietary or confidential information or intellectual property.
- Resolve not liable for Customer default. Resolve shall not be liable for any loss or damage of whatsoever nature suffered by Customer arising out of or in connection with any breach of the Agreement by Customer or any act, misrepresentation, error or omission made by or on behalf of Customer or Customer’s Personnel. Resolve accepts no liability whatsoever for service interruptions, accidents or any operational aspect of Customer.
- Appointment. The Parties shall each appoint a suitably qualified and responsible person to act as their Representative.
- Function. The Representatives’ responsibilities include the management and coordination of the Goods and Services and the discussion and management of any changes.
- Replacement. Either Party may, on 7 (seven) calendar days’ written notice to the other, appoint an alternative Representative who is suitably qualified and responsible.
- STEERING COMMITTEE
- Steering Committee. The Parties may elect to establish a Steering Committee if the undertaking in terms of an Order so warrants, in which case the Steering Committee will be constituted in accordance with the terms of clause 3, within 30 (thirty) calendar days of the Effective Date of such Order, or such longer period as the Parties may agree to in writing.
- Functions. The functions of the Steering Committee shall be—
- to provide a means for a high-level joint review of issues relating to all aspects of the Agreement;
- to provide a forum for joint strategic discussion;
- to provide a means of agreeing Orders;
- in certain circumstances, pursuant to the dispute resolution procedure set out in clause 23, to provide a means of resolving disputes or disagreements between the Parties;
but the Steering Committee shall not concern itself with the day to day management of the provision of Goods and Services under Orders.
- Constitution of Steering Committee. The Steering Committee shall be constituted and shall function as follows—
- the Steering Committee shall comprise the representatives of the Parties as agreed by the Parties from time to time in writing. The representatives shall be authorised to make decisions at Steering Committee meetings on behalf of the respective Parties;
- the initial chairperson of the Steering Committee shall be agreed by the Parties in writing;
- any appointment, removal or replacement of representatives by a Party shall be by written notice to the other Party and shall be effective as soon as notice is received by the other Party;
- the Steering Committee may from time to time co-opt additional persons to sit on the Steering Committee, whether in a voting or monitoring capacity;
- subject to the terms of the Agreement, the members of the Steering Committee may adopt procedures and practices for the conduct of the activities of the Steering Committee as they consider appropriate from time to time;
- the Steering Committee shall meet on at least a quarterly basis during the currency of Orders and, in addition, the Steering Committee shall meet (on reasonable notice) on the request of any Party or to conduct any other ad hoc function contemplated in the Agreement. The time and place for meetings shall be determined by the Steering Committee;
- duly appointed alternate representatives shall be entitled to attend meetings of the Steering Committee and shall have the right to speak but no alternate shall be entitled to vote if his principal is present at that meeting;
- a quorum for a meeting of the Steering Committee shall be one representative of each of the Parties;
- each member of the Steering Committee shall be entitled to one vote;
- all matters will be decided by consensus;
- where the Steering Committee decides it is appropriate, meetings may also be held by telephone or another form of telecommunication, by which each participant can hear and speak to all other participants at the same time.
- Minutes of meetings. All business transacted at meetings of the Steering Committee shall be recorded and Signed by a member of the committee representing each of the Parties and these minutes shall be circulated to the members within 14 (fourteen) calendar days of each meeting.
- BREACH AND TERMINATION
- Breach. Should either Party (“Defaulting Party”)—
- commit a material breach of an Order and fail to remedy the breach within 14 (fourteen) calendar days of having been called on in writing by the other Party to do so;
- fail to pay any invoice that is more than 60 (sixty) calendar days outstanding;
- effect or attempt to effect a compromise or composition with its creditors; or
- be provisionally or finally liquidated or placed under judicial management,
- Breach. Should either Party (“Defaulting Party”)—
then the other Party who signed the relevant Order (“Innocent Party”) may, in its discretion and without prejudice to its rights in the Agreement or in law, terminate the specific Order to which the event relates on written notice to the Defaulting Party.
- EFFECT OF TERMINATION
- Amounts due to Resolve become due and payable. On termination of any Order for any reason, all amounts due to Resolve for Services rendered or Goods ordered prior to termination shall become due and payable even if they have not been invoiced. The amounts may not be withheld for any reason, unless the arbitrator directs otherwise.
- Duties on termination. On termination, cancellation or expiry of any Order—
- the provision of all Services under the Order shall forthwith cease and Resolve shall vacate the Site unless Resolve is required to render additional services on-Site under a separate Order; and
- each Party will deliver to the other Party, or at the other Party’s option destroy (and procure the delivery or destruction by Third Party Contractors of) all originals and copies of confidential information and proprietary materials in its or their possession or under its or their control.
- Survival. The expiry or termination of an Order shall not affect the enforceability of the terms which are intended to operate after expiry or termination.
- DISPUTE RESOLUTION
- Steering Committee. Any dispute which arises between the Parties shall, in the first instance, be addressed by means of joint co-operation or discussion between the individuals directly involved in the execution of the Agreement and, if unresolved, within 5 (five) days be escalated to the most senior executive(s) of the Parties who shall endeavour to resolve the dispute.
- Disputes relating to the calculation or quantum of any payments. Any dispute between the Parties about the calculation or quantum of any payment shall be referred to a mutually agreed practising chartered accountant (“Accountant”).
- Technical disputes. Any dispute between the Parties of a technical nature, (which includes a dispute relating to acceptance testing, commissioning and any Deliverable concerning the interpretation of any specifications or requirements or relating to the functions or capabilities of the Services), shall be referred to an independent technical expert having appropriate expertise with respect to the dispute (“Technical Expert”).
- Accountant and the Technical Expert. The Accountant and the Technical Expert shall be appointed by agreement or, failing agreement, within 3 (three) Business Days by Resolve. The Accountant and Technical Expert shall act as experts and not as arbitrators. The Accountant and Technical Expert will be requested to give their decision as soon as practicable but no later than 5 (five) Business Days after the dispute is referred. The decision of the Accountant and the Technical Expert shall (in the absence of clerical or manifest error) be final and binding on the Parties. The outstanding payment, as determined by the Accountant, shall be paid by the Party as determined by the Accountant, on demand by the other Party. The fees and all associated costs of the Accountant and the Technical Expert shall be borne by the Parties equally.
- Failure to resolve. Should the Parties be unable to agree on whether a dispute is technical or not within 5 (five) Business Days, or if they are unable to resolve a dispute, the dispute will be finally resolved in accordance with the Rules of AFSA, by an arbitrator or arbitrators appointed by it.
- Demand for arbitration. Either Party may demand that a dispute be referred to arbitration by giving Written notice to that effect to the other Party.
- Urgent interim relief. Nothing in the Agreement shall preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction.
- Arbitration terms. The arbitration referred to in clause 5 shall be held—
- at Johannesburg in the English language; and
- immediately and with a view to its being completed within 21 (twenty-one) calendar days after it is demanded.
- Right of appeal. The Parties irrevocably agree that the submission of any dispute to arbitration is subject to the Parties’ rights of appeal. Either Party may appeal the arbitration ruling by giving Written notice to the other Party to the arbitration within 20 (twenty) calendar days of the ruling being handed down. The appeal shall be dealt with in accordance with the rules of AFSA by a panel of 3 (three) arbitrators appointed by AFSA.
- Parties to be bound. The Parties irrevocably agree that on expiry of the 20 (twenty) calendar day period for appeal or the handing down of the ruling of the appeal panel, as the case may be, as contemplated in clause 9, the decision in arbitration proceedings—
- shall be final and binding on the Parties;
- shall be carried into effect; and
- may be made an order of any court of competent jurisdiction.
- Costs. The costs of any reference to arbitration will be borne by the unsuccessful Party, unless otherwise determined by the Parties or the arbitrator, irrespective of which Party referred the dispute to arbitration.
- Severability. This clause 23 is severable from the rest of the Agreement and shall remain valid and binding on the Parties notwithstanding any termination of any Order.
- Collection proceedings. Resolve retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment.
- NOTICES AND DOMICILE
- Notices. All notices, authorisations and requests given or made in connection with an Order must be sent by hand, pre-paid registered post or facsimile to the addresses and numbers set out in the relevant Order. By providing such contact information, each Party consents to its use for purposes of administering the relevant Order by the other Party and other parties that help a Party administer the relevant Order.
- Use of e-mail. The Parties record that, whilst they may correspond via e-mail during the currency of the Agreement for operational reasons, no formal notice required in terms of the Agreement, nor any amendment or variation to the Agreement may be given or concluded via e-mail.
- Domicile. Each Party chooses as domicilium citandi et executandi (its domicile for the purpose of being served summons and execution levied) for all purposes under an Order the physical address specified for the Party as set out in the relevant Order.
- Change of addresses and numbers. Each Party may by giving written notice to the other Party, change the addresses and numbers set out in the relevant Order to any addresses and numbers in the Republic of South Africa, provided that the change shall only take effect 14 (fourteen) calendar days after delivery of the written notice.
- Deemed delivery. Notice shall be deemed to have been given—
- if delivered by hand to a responsible person during Business Hours to the designated physical address, on the date of delivery;
- if sent by pre-paid registered post in a correctly addressed envelope to the designated postal address, on the 7th (seventh) Business Day after the date of posting; or
- if sent by fax to the designated fax number, on the 1st (first) Business Day following the date of successful transmission.
- Notice actually received. If a notice or communication is actually received by a Party, adequate notice or communication shall have been given.
- FORCE MAJEURE
- Parties not liable for force majeure. Neither Party shall be liable for any failure to fulfil its obligations under the Agreement if and to the extent the failure is caused by any circumstances beyond its reasonable control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions or acts of God.
- Party affected to notify other Party. Should any event of force majeure arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) calendar days of the notice to negotiate in good faith alternative methods of fulfilling its obligations under an Order, if any. In addition Resolve shall continue to provide and Customer shall continue to pay for those Goods and Services not affected by the event of force majeure.
- Right to terminate. Should either Party be unable to fulfil a material part of its obligations under an Order for a period in excess of 60 (sixty) calendar days due to circumstances or force majeure, the other Party may at its sole discretion cancel the relevant Order forthwith by Written notice.
- ASSIGNMENT AND SUBCONTRACTING
- No assignment. Neither Party shall be entitled to cede, assign, delegate or otherwise transfer (other than an assignment by Resolve to any successor of all or substantially all of the business or assets of Resolve) the benefit or burden of all or any part of the Agreement without the prior Written consent of the other Party.
- Affiliate exception. Notwithstanding the terms of clause 1, it is expressly recorded that Resolve shall be entitled to cede and assign all rights and obligations under the Agreement to an Affiliate without the prior written consent of Customer, provided that Resolve shall notify Customer within a reasonable time of the event occurring.
- Resolve’s Third Party Contractors. Resolve may sub-contract or delegate its obligations under the Agreement to Third Party Contractors, provided that Resolve shall remain liable for performance of the Third Party Contractors. Resolve shall not be required to disclose the terms (including payment terms) of any sub-contract entered into with respect to Resolve’s obligations under the Agreement.
- RELATIONSHIP AND DUTY OF GOOD FAITH
- No employment relationship. Notwithstanding anything to the contrary contained in the Agreement, whether express or implied, each Party enters into the Agreement as an independent contractor. The Agreement does not create any other relationship, including employment, partnership, agency, trust or joint venture relationship. The relationship between Customer and Resolve and its Personnel shall not be deemed to be one of employer/employee. Resolve specifically agrees that Customer shall not in any way be liable to Resolve or its Personnel under the provisions of any legislation purporting to create or recognise an employment relationship.
- No temporary employment service. Unless otherwise agreed in Writing, nothing in the Agreement shall be construed as constituting a temporary employment service as contemplated in section 198 of the Labour Relations Act, 1995.
- No partnership. Nothing in the Agreement shall be construed as creating a partnership 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. Without limiting the generality of the foregoing, when any Resolve Personnel is required to act in an executive capacity on behalf of Customer, Resolve cannot accept responsibility for his omissions or acts and Customer shall, therefore, indemnify Resolve against all costs, claims, damages and expenses which may arise in connection with such act.
- Good faith. The Parties shall at all times owe each other a duty of good faith and shall, in all dealings with each other and in respect of the Services act according to the standard.
Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Resolve to provide goods or services of any kind or nature whatsoever to any person or entity as Resolve in its sole discretion deems appropriate. Resolve may employ, modify, disclose, and otherwise exploit Resolve’s intellectual property (including providing services or creating programming or materials for other customers or itself, providing services which are competitive with any Deliverables, irrespective of their similarity to the Deliverables), subject to the Parties confidentiality obligations.
- Entire agreement. The Agreement constitutes the entire agreement between Customer and Resolve in respect of the subject matter of the Agreement.
- Variation. No amendment or modification to the Agreement shall be effective unless in Writing and Signed by authorised signatories of both Customer and Resolve.
- Waiver. No granting of time or forbearance shall be, or be deemed to be, a waiver of any term of the Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach.
- Severability. If the whole or any part of a term of the Agreement is void or voidable by either Party or unenforceable or illegal, the whole or that part (as the case may be) of that term, shall be severed, and the remainder of the Agreement shall have full force and effect, provided the severance does not alter the nature of the Agreement between the Parties.
- Governing law and jurisdiction. The Agreement shall be governed and construed according to the laws of the Republic of South Africa and Customer agrees to submit to the exclusive jurisdiction of the South African courts.
- Costs. Each Party shall be responsible for its own legal and other costs relating to the drafting and negotiation of the Agreement.
- Publicity. Neither Party will make or issue any formal or informal announcement or statement to the press in connection with the Agreement, without the prior written consent of the other Party.
- Right to reference. Customer hereby consents to the use by Resolve of Customer’s name and a general description of the Goods or Services in any proposals or other similar documents which Resolve may issue or submit from time to time.
- Counterparts. The Agreement may be executed in any number of counterparts, each of which will be an original, and such counterparts together will constitute one and the same instrument. Execution may be effected by delivery of facsimiles of Signature pages (and the Parties will follow such delivery by prompt delivery of originals of such pages)