Cerebra

INTERPRETATION

1.1. The headnotes to the clauses of this Agreement are inserted for reference purposes only and shall in no way govern or affect the interpretation hereof.
1.2. Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:

“this Agreement”

these terms and conditions and any annexures hereto, as amended from time to time;

“Client”

the Party specified in the Proposal;

“Cerebra”

Cerebra Communications CC, a close corporation duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 2006/202514/23;

“Cerebra’s Associates”

Cerebra’s officers, servants, agents or contractors or other persons in respect of whose actions Cerebra may be held to be vicariously liable;

“Parties”

Cerebra and the Client;

“Proposal”

any document or correspondence from Cerebra to the Client describing the Services actually or proposed to be rendered by Cerebra to the Client;

“Services”

the Services to be rendered by Cerebra to the Client,
1.3. Where any term is defined within the context of any particular clause in this 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 this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
1.4. Unless inconsistent with the context, an expression which denotes any gender includes the other genders; a natural person includes an artificial person and vice versa; and the singular includes the plural and vice versa.
1.5. Unless inconsistent with the context or save where the contrary is expressly indicated:
1.5.1. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement;
1.5.2. a reference to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "Business Day" shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to "business hours" shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any Business Day. Any reference to time shall be based upon South African Standard Time;
1.5.3. when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;
1.5.4. in the event that the day for payment of any amount due in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for payment shall be the subsequent Business Day;
1.5.5. in the event that the day for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;
1.5.6. any reference in this Agreement to an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time;
1.5.7. any reference in this Agreement to this Agreement or to any other Agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other Agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented;
1.5.8. no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a party to this Agreement;
1.5.9. a reference to a Party includes that Party’s Permitted Successors.
1.6. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
1.7. Where in this Agreement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
1.8. The use of the word "including" followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
1.9. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.10. The appendices and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such appendices and schedules.

INTRODUCTION

1.11. Cerebra has been invited to submit the Proposal to the Client in anticipation of being appointed to render the Services.
1.12. This Agreement governs any Services until such time as Cerebra and the Client enter into a further agreement at which time this Agreement shall terminate and be superseded by that subsequent agreement.
1.13. By accepting and/or receiving the Services, the Client agrees to be bound by this Agreement.

APPOINTMENT AND DURATION

1.14. This Agreement commences on the Proposal’s delivery to the Client and governs the Services and matters ancillary to the Services.
1.15. This Agreement shall, save for clauses 7, 8, 9 and 11 as well as such other clauses which are intended to survive termination as set out below, terminate when the Services cease.

THE SERVICES

1.16. Cerebra shall, during the currency of this Agreement, render such Services as are required by the Client and as Cerebra agrees to.
1.17. The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Cerebra to render all such Services as a single, indivisible service.

Code and Intellectual Property ownership

1.17.1. The Client acknowledges that the Drupal and WordPress content management systems are licensed under the GNU General Public License, version 2 and/or version 3, respectively, and confirms that it has reviewed and is familiar with the terms of these licenses.
1.17.2. Recognising that Cerebra may not be legally empowered to assign the intellectual property rights in and to the code to the Client, Cerebra shall, in the absence of an existing license or where necessary, grant Client a license bespoke software and/or other programming code (“Code”) which Cerebra develops for the Client in terms of and for the purposes of this Agreement on such terms as will enable the Client to enjoy the same or similar rights Cerebra has in and to the Code, subject to any limitations imposed on Cerebra in respect of the Code.
1.17.3. The Client shall be entitled to request a complete and current copy of the Code from Cerebra in such formats as the Client may reasonably require, once the Client has made payment in full for the Code. The preparation and delivery of copies of the Code to the Client shall be at the Client’s expense.
1.17.4. In the event the Client wishes to take advantage of Code Cerebra does not ordinarily support or provide, the Client shall detail its requirements in writing and submit those requirements to Cerebra for consideration and, in the event that Cerebra agrees (in its sole discretion) to provide such additional services, such agreement shall be recorded in an addendum to this Agreement and signed by the Parties.

Third party services

1.17.5. The Services may incorporate the use of third party websites and/or services.
1.17.6. The Client acknowledges that Cerebra does not render legal services and that the Client shall remain solely responsible for familiarising itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those third party websites and/or services.

Outsourced services

1.17.7. As at the commencement of this Agreement, certain of the Services may be outsourced (the “Outsourced Services”) by Cerebra to third party service providers (the “Service Provider/s”);
1.17.8. Cerebra shall be entitled at any time and from time to time to change the identity of any Service Provider and/or to sub-contract any of the Outsourced Services to a new Service Provider and/or to delegate to one or more existing or new Service Provider all or any part of its obligations to provide any particular Service to the Client in terms of this Agreement.
1.17.9. The Client acknowledges that the Service Providers’ terms and conditions of service shall govern the provision of the outsourced services as between Cerebra and such Service Provider. The Parties further record and agree that Cerebra shall, at anytime during the term of this Agreement, be entitled to appoint and/or terminate the services of such Service Providers provided that such appointment and/or termination of Service Providers shall not be materially detrimental to Cerebra’s performance of its obligations and/or compromise the service levels agreed to in terms of this Agreement.

SERVICE LEVELS

1.18. Cerebra hereby undertakes to ensure that the standard of the Services it shall render to the Client in terms of this Agreement shall be in accordance with relevant industry standards.
FEES
1.19. The Client shall, as consideration for the Services to be rendered by Cerebra in terms of this Agreement, effect payment to Cerebra of fees at the rates set out in the Proposal.
1.20. The Client shall pay the fees, to Cerebra, in the amounts and on the terms stated in Cerebra’s interim and final invoices issued to the Client from time to time. In the event that Cerebra’s invoices do not state Cerebra’s payment terms, invoices are payable within one month of the relevant invoice’s date.
1.21. Unless otherwise agreed in writing, the fees shall escalate at the rate of 10% per annum on the anniversary of the commencement date of this.
1.22. In the event of the Client failing to timeously effect payment of any amount due to Cerebra in terms of this Agreement, Cerebra shall, furthermore, be entitled to suspend the provision of the Services in terms of this Agreement for any period in which any payment remains outstanding.
1.23. Cerebra reserves the right to charge a reasonable cancellation fee should the Client unilaterally terminate the Services or this Agreement in a manner and/or for a reason not expressly provided for in this Agreement.
1.24. The Client agrees that it shall pay all Cerebra’s expenses in recovering any amounts the Client owes Cerebra, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.

CONFIDENTIALITY

1.25. Subject to clause Error: Reference source not found, each of the Parties shall at all times treat all information in connection with and/or relating to the other Party, its business and all matters incidental thereto and which was if in writing, marked 'confidential' or similarly; and/or if disclosed orally, was confirmed at the time of such disclosure as constituting confidential information and was confirmed in writing within 14 days as constituting confidential information, (“the Confidential Information”), as strictly confidential and shall not, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of such other Party) disclose such Confidential Information to any Party, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.
1.26. Each Party may disclose Confidential Information to its officers, employees and sub?contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof. Each Party shall inform any officer, employee or sub?contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Agreement), on the basis that the disclosing Party is responsible for any disclosure, in breach of this 1.24, by the person to whom it is disclosed.
1.27 Notwithstanding the stipulations of clause 1.25, Confidential Information shall not include, and the provisions of clause 1.25 shall not apply to a Party in connection with, any information which:
1.27.1 is or becomes generally available to the public other than as a result of disclosure by such Party in violation of this clause 1.24;
1.27.2 is or was independently developed by such Party or on its behalf by persons having no access to such information;
1.27.3 was in such Party’s possession before such information was disclosed to it in terms of and/or pursuant to this Agreement;
1.27.4 is required to be given, made or published by law or under the rules and regulations of any relevant Stock Exchange or any applicable regulatory authority, in which case, the Party liable to so give, make or publish same shall give the other Party reasonable written notice thereof, along with drafts or copies thereof, as soon as is reasonably practicable, and, in the case of any disclosure required in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (as amended) (“the PAI Act”), the Party liable to make such disclosure shall, insofar as it shall be able, apply the principles of Chapter 4 of the PAI Act in order to avoid and/or limit the extent of any such disclosure; and
1.27.5 is required to be disclosed by either Party to any provider of finance (“the Bank”) in order for the Bank to take informed decisions regarding Cerebra, provided that such Party shall use its reasonable endeavours to procure that the Bank shall keep such information confidential.

PROHIBITION ON SOLICITATION OR INTERFERENCE

1.28 Neither Party shall knowingly, for the duration of this Agreement and for a period of 1 year after this Agreement terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative and/or agent of the other Party who was involved in the implementation or execution of this Agreement to terminate his employment with that Party and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the other Party.
1.29 Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.

LIABILITY

Disclaimers and limitation of liability

1.29.1 To the fullest extent permissible by law, Cerebra disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.
1.29.2 The Client agrees that Cerebra is unable to, and is not required to guarantee a particular result or set of results.
1.29.3 The Client agrees that neither Cerebra or the Cerebra’s Associates shall be liable in respect of any loss, damage or damages however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.
1.29.4 The Client irrevocably waives any claims it may have against Cerebra arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or this Agreement more than 1 year after the cause of action relating to such claim or legal action arose.
1.29.5 Cerebra's liability to the Client pursuant to the provisions of 1.29.2 shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.
Indemnity
1.29.6 The Client hereby indemnifies Cerebra and Cerebra’s Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, wilful misconduct and/or gross negligence.

BREACH

1.30 Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within fourteen days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to -
1.30.1 cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or
1.30.2 claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
1.30.3 in either event without prejudice to the Aggrieved Party’s right to claim damages.
1.31 Either Party shall be entitled to summarily terminate this Agreement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of this Agreement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.

GOVERNING LAW AND JURISDICTION

1.32 This Agreement shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the South Gauteng High Court, Johannesburg.
1.33 The Client consents to the jurisdiction of the Magistrates Court in respect of any claim arising out of or pertaining to this Agreement or the Services even though any claim Cerebra may have against the Client exceeds the monetary jurisdiction of the Magistrates Court.

FORCE MAJEURE

1.34 If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.
1.35 Any Party invoking force majeure shall, upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.

ASSIGNMENT

1.36 Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement except with the prior written consent of the other Parties.

SEVERABILITY

1.37 If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.

DOMICILIUM AND NOTICES

1.38 The Parties choose domicilium citandi et executandi ("domicilium") for all purposes arising from or pursuant to this Agreement, their address and contact details set out in the Proposal, where applicable.
1.39 Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other parties of such change.
1.40 All notices, demands, communications or payments intended for any Party shall be made or given at such Party's domicilium for the time being.
1.41 A notice sent by one Party to another Party shall be deemed to be received:
1.41.1 on the same day, if delivered by hand;
1.41.2 on the same day of transmission if sent by telefax with receipt received confirming completion of transmission;
1.41.3 on the third day after despatch, if sent by prepaid courier.
1.42 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

GENERAL

1.43 This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof.
1.44 No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
1.45 No addition to, variation or consensual cancellation of this Agreement, or this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
1.46 No indulgence, which any of the Parties (“the Grantor”) may grant to any other or others of them (“the Grantee(s)”), shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
1.47 The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.