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ContinuitySA RaaS – Terms & Conditions

Table of Contents

  1. Definitions. 2
  2. Basis of the Agreement 4
  3. Duration.. 5
  4. Charges and Payment 5
  5. Termination and Withdrawal 6
  6. Confidentiality and Security. 6
  7. Protection of Personal Information.. 6
  8. Maintenance.. 6
  9. Limited Warranty and Exclusion of Implied Terms. 6
  10. Limitation of Liability. 6
  11. Force Majeure.. 6
  12. Applicable Law and Jurisdiction.. 6
  13. Entire Agreement 6
  14. Assignment 6
  15. Non-solicitation.. 6
  16. Severability. 6
  17. Dispute Resolution.. 6
  18. Title to the Intellectual Property. 6
  19. Notices. 6
  20. The Work Area Recovery Services. 6
  21. Facilities. 6
  22. Testing and Planned Incidents. 6
  23. Standby Use Charges. 6
  24. The Company’s Obligations. 6
  25. The Client’s Obligations. 6
  26. Express Warranty by Client 6

 

 

1.                 Definitions

  • In this Agreement the parties defined in the heading shall retain such definitions and the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings:

(i) any and all information obtained by a Party from the other Party which by its nature should be treated as confidential or is marked as such which may come into its possession or into the possession of any of its employees, agents or contractors, as a result of or in connection with this Agreement;

(ii) any and all information which has been or which may be derived or obtained from any such information described in (i) above; and

(iii) any dispute between the Parties resulting from this Agreement;

  • Additional Facilities and Services” means such facilities and services required by the Client in addition to the Services specified in the Service Schedule and which have been agreed to between the Company and the Client in writing;
  • “Agreement” means these Terms and Conditions, including its schedules and annexures;
  • Authorised Representatives” means the Client’s personnel or representatives who have been nominated by the Client and approved by the Company;
  • “Business Day” means 08h30 to 17h00 on any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
  • “Charges” means the Subscription Charges, the Variable Charges and such other charges as are specified in any Services Terms or Service Schedule;
  • Client Data” means any information or data stored by the Client in the Data Storage Facilities including, but not limited to, the Client’s client names and addresses, the Client’s traffic, usage or billing data (such as the originating and destination numbers and IP addresses, date, time and duration of voice or data transmissions, and other data necessary for the establishment, billing or maintenance of the transmission), data containing personal information of the Client, its employees or authorised users of the Services, and other data provided to or obtained by the Company, its affiliates and agents, in connection with the provision of Services;
  • Client Equipment” means all Client owned or provided equipment;
  • Client’s Premises” means the Client’s premises for which the Services are provided as specified in the Service Schedule;
  • “Client” means the company or Authorised Representative described as the Client on the Service Schedule Signature Page, and who purchases Services from the Company pursuant to a Service Schedule;
  • Company Personnel” means the Company’s personnel or representatives who have been nominated by the Company;
  • “Company’s Premises” means any of the Company’s premises including those described in the Service Schedule;
  • “Company” means ContinuitySA (Proprietary) Limited, as described as the Company on the Service Schedule Signature Page, together with its successors and/or assigns;
  • “Confidential Information” means and includes:
  • “Consumer Price Index” means the year-on-year consumer price index rate for all urban areas as compiled and published monthly by Statistics South Africa or anybody authorised in its stead in terms of the Statistics Act No 66 of 1976, as amended, or any statute replacing such Act, to compile and publish national statistics;
  • Data Storage Facilities” means the electronic storage space allocated to the Client by the Company as part of the Services;
  • “Data” means whatsoever information the Client uses, in addition to the Services, or other information in whatsoever form the Client allows to be present at the Company’s premises;
  • Dedicated WAR Services” means the WAR service dedicated to and for the sole use by the Client as is more fully described in the Service Contract and elsewhere in these Service Terms;
  • Effective Date” means the date upon which a Service Schedule takes effect;
  • Equipment” means any and all equipment used by the Company to provide the Services”;
  • “Force Majeure Event” has the meaning given to such term in clause 1;
  • “Intellectual Property Rights” means all intellectual property rights of any kind whatsoever and however embodied, including without limitation, copyright, patents, trademarks, rights in designs, trade names, Know-how, whether or not registered and including applications for any such right or registration thereof, trade secrets, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these;
  • “Invoke Notice” means notification by the Client to the Company, in accordance with the Company’s notification procedures as notified by the Company to the Client from time to time, that the Client’s own service is inoperable as a result of an Unplanned Incident and “invoking” (i.e. requesting) the provision of WAR Services;
  • “Know-how” means any methods, techniques, processes, discoveries or inventions, specifications, recipes, formulae, designs, plans, drawings, data or other technical information and business processes used by the Company and the Client;
  • Manager” means the designated manager for the time being of the Client, acting in his capacity as the authorised agent and representative of the Client, whose identity shall be communicated, in writing, by the Client to the Company from time to time;
  • Minimum Availability” means the number of days per Unplanned Incident specified in the Service Schedule for which the relevant WAR Services, which have been purchased by the Client, may be used by the Client without incurring costs in addition to Subscription Charge;
  • “Minimum Period” means the period specified in the Service Schedule commencing on the Services Commencement Date;
  • Normal Office Hours” means the Company’s normal office hours, being the hours from 08h30 to 17h00, Monday to Friday excluding statutory public holidays in the Republic of South Africa;
  • “Parties” means the parties to this Agreement, and “Party” shall mean any one of them as the context requires;
  • Payment Interval” means the interval for payment of the Subscription Charges, as set out in the Service Schedule;
  • Personal Information” means any information provided or supplied by the Client to the Company and/or stored on the Company’s equipment and/or premises on behalf of the Client, including in terms of any Service Schedule, including Client Data, information that is an identifying number, symbol, contact details, physical address or similar assignment relating to the Client or any identifiable, living or existing customer, client of or third party relating to the Client, that is subject to protection under law (including in terms of the Protection of Personal Information Act);
  • Planned Incident” means any event, the timing of which is planned by the Client, which may adversely affect the Client and where the Client elects to use the WAR Service;
  • “Prime Overdraft Rate” means the publicly quoted prime rate of interest (nominal annual, compounded monthly in advance), ruling from time to time at which Standard Bank of South Africa Limited lends on overdraft, such rate to be calculated on the basis of a 365 (three hundred and sixty five) day year, irrespective of the fact that the applicable year may be a leap year, as certified by any manager or director of Standard Bank of South Africa Limited whose authority, qualification and appointment need not be proved;
  • Priority Ranking” shall have the meaning given to such term in clause 2;
  • “Project Design and Initiation Charge” means a non-recurring charge payable on or before the date of signature of a Service Schedule in respect of consultancy and/or technical support, necessary to enable implementation of the Services in question;
  • “Service Desk” means the Company’s support contact centre where service requests are logged by the Client;
  • “Service Schedule” means a binding contract between the Parties for the supply of Services;
  • “Service Terms” means additional terms and conditions specific to the type of Services to be supplied pursuant to a Service Schedule;
  • “Services Commencement Date” means the date when the Company is to commence with the provision of Services pursuant to and as specified in the relevant Service Schedule;
  • “Services” means the services to be provided by the Company to the Client in terms of and as more fully described in the applicable Service Terms and Service Schedule/s;
  • Software” means all computer programs, computer software and documents of any kind which may be necessary to enable the Client to utilise the Services;
  • Standby Use Charges” means the charges payable by the Client for WAR Services calculated in accordance with clause 1;
  • Standby Use” means the use of the WAR Services by the Client for a Test or as a result of a Planned Incident or an Unplanned Incident affecting the Client’s own service;
  • “Subscription Charges” means those charges described as such in the Service Terms and/or a Service Schedule; and
  • Syndicated WAR Services” means the WAR service provided by the Company, which is shared by a number of Clients (i.e. “syndicated”) as is more fully described in the Service Schedule, and elsewhere in these Services Terms;
  • Test” means the pre-planned simulation of all or part of the WAR Services as specified in the Service Schedule;
  • Unplanned Incident” means an event, the timing of which is not planned by the Client, affecting the Client’s services which results in an unexpected reduction in the standard of those services, and as a result of which the Client elects to use the Company’s WAR Services;
  • “Variable Charges” means those charges specified in the Service Terms and Service Schedule which are determined by usage or payable for additional services not covered by the Subscription Charges.
  • WAR Services” means the Dedicated WAR Services and/or Syndicated WAR Services, as the context so requires, together with all associated power backup (diesel generator and UPS systems), air-conditioning, security and access control systems, fire detection and suppression systems, that the Company shall provide to the Client, for disaster recovery use at the Company’s Premises in the event of a Planned Incident, Unplanned Incident or Test;
  • WAR” means Work Area Recovery.
  • General interpretation
    • In addition to the definitions in clause 1, unless the context requires otherwise:
      • a reference to any one gender, whether masculine, feminine or neuter, includes the other two;
      • any reference to a person, includes, without being limited to, any individual, body corporate, unincorporated association or other entity recognised under any law as having separate legal existence or personality;
      • any word or expression defined in and for the purposes of this Agreement shall if expressed in the singular include the plural and vice versa and a cognate word or expression shall have a corresponding meaning;
      • references to a statutory provision include any subordinate legislation made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Agreement or any transaction entered into in accordance with this Agreement;
      • references in this Agreement to “clauses”, “sub-clauses” and “Annexures” are to clauses and sub-clauses of, and Annexures to, this Agreement;
      • no rule of construction shall be applied to the disadvantage of a Party to this Agreement because that Party was responsible for or participated in the preparation of this Agreement or any part of it;
      • unless otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.
    • All the headings and sub-headings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpreting it.

2.                 Basis of the Agreement

  • From time to time the Client may wish to obtain Services from the Company.
  • The Client hereby appoints the Company in accordance with the provisions and subject to the conditions to provide those Services to the Client which the Parties may agree are to be provided pursuant to one or more Service Schedules, which shall incorporate any relevant Service Terms, and the Company accepts such appointment.
  • If the Client wishes to procure Services from the Company and the Company wishes to supply Services to the Client, the Parties shall seek to agree and execute a Service Schedule.
  • The terms agreed between the Parties shall be recorded in writing and signed by the Parties and once signed shall constitute a Service Schedule between the Parties. Upon the Parties executing a Service Schedule the Company must commence carrying out the Services in accordance with the terms and conditions of the Service Schedule and the terms and conditions of any Service Terms incorporated (typically by reference) into the Service Schedule and this Agreement. A Service Schedule will constitute a separate binding agreement between the Parties that incorporates the terms and conditions of any relevant Service Terms specifically incorporated, and this Agreement.
  • The Parties agree that no employment relationship will come into existence between the Client and the Company and that the Company is acting as an independent contractor.
  • The Company reserves the right to vary the Service Terms and/or the Services at any time and shall notify the Client in advance of any material variations.
  • The Company reserves the right to alter the Company’s Premises to such other premises of an equal or better standard as the Company may require from time to time and shall notify the Client in advance of any such alteration.

3.                 Duration

  • This Agreement shall commence on the Effective Date and shall continue thereafter indefinitely unless and until terminated by either Party in accordance with this Agreement.
  • The Service Schedule shall commence, and the Company shall commence with the provision of Services, on the Services Commencement Date of the Service Schedule and continue for the Minimum Period. The term of the Service Schedule shall automatically extend for twelve (12) months (the “Extended Term”) at the end of the Minimum Period and at the end of each Extended Term, unless either party gives written notice to the other party, not later than ninety (90) days before the end of the Minimum Period or the relevant Extended Term, to terminate the Service Schedule at the end of the Minimum Period or the relevant Extended Term, as the case may be.
  • Clauses 6 and 15 shall endure for a period of twelve (12) months after termination of this Agreement.

4.                 Charges and Payment

  • The Charges which the Client shall pay the Company for the provision of the Services shall be specified in the Service Schedule.
  • The Subscription Charges will be fixed for each year in advance and shall be payable without deduction, demand or set-off no later than five (5) Business Days in advance of the Payment Intervals specified in the Service Schedule.
  • The Charges shall be increased annually by the Consumer Price Index (calculated using the latest information available to the Company) on not less than thirty (30) days written notice prior to the anniversary date of this Agreement and such increase shall take effect on the anniversary date of the Services Commencement Date.
  • If any input costs or third party charges, used in or impacting on the calculation of any charges specified in a Service Schedule, increase by more than the most recently published Consumer Price Index then the Company may notify the Client of such increases and propose an increase in the Charges.
  • If the Parties are unable to agree a reasonable increase in the Charges pursuant to and in the circumstances contemplated in clause 4 above, then the Company reserves the right to terminate a Service Schedule on not less than thirty (30) days written notice to the Client. Should the Company terminate a Service Schedule as per this clause, the Client will only be liable for the Subscription Charges due up until the termination date of the Service Schedule.
  • Any renewal period or extension of the term of the Service Schedule shall be subject to an increase as per clauses 3 and 4.4 above.
  • The Variable Charges may vary from month to month depending on increases imposed by third party suppliers from time to time. The Variable Charges shall be invoiced monthly in arrears and are payable within thirty (30) days from the date of the invoice.
  • Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may: (i) charge interest on such sum at the Prime Overdraft Rate plus two percent (2%) from the due date for payment until the date of payment; (ii) if, despite written demand, the Client fails to remedy its breach in payment, to suspend the provision of any or all Services until payment has been made in full and for these purposes the Company may require the Client to vacate the Company’s Premises and the Company shall have the right to deny the Client access to any of the Company Premises until payment of all outstanding sums are received by the Company; and/or (iii) if the failure continues for more than ten (10) Business Days after receiving a notice from the Company to pay the Company may terminate this Agreement or any or all Service Schedules.
  • All telephone and telecommunications charges including but not limited to calls arising from or in connection with the Client’s use of the Services, shall be chargeable to the Client at actual cost plus a ten percent (10%) administration overhead recovery.
  • All consumables including but not limited to paper, stationery, food and beverages shall be chargeable to the Client at actual cost plus ten percent (10%) administration overhead recovery.
  • All Charges are stated exclusive of taxes, which will be charged at the prevailing rate. Any increases in any taxes including the prescribed rate of Value Added Tax (“VAT”) shall result in an increase of the Charges and the Client shall be liable for such increases. Any such increases shall not be applied retrospectively unless so mandated by the relevant Government authority.

5.                 Termination and Withdrawal

  • Either Party shall have the right to terminate this Agreement in whole or in part by giving the other Party not less than ninety (90) days written notice, provided that this Agreement shall only terminate once all obligations under all Service Schedules have been fulfilled in accordance with their terms and Minimum Periods.
  • The termination of this Agreement or a Service Schedule, however arising, shall be without prejudice to the rights and duties of the Parties accrued prior to termination. The terms and conditions which expressly or implied have effect after termination shall continue to be enforceable notwithstanding termination.
  • Either Party may terminate the Service Schedule by immediate notice to the other if the other Party commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the same within ten (10) Business Days of written notice from the other Party demanding such remedy.
  • A Party shall have the right at any time by giving notice in writing to the other Party (the “Defaulting Party”) to terminate any or all Service Schedules forthwith if the Defaulting Party:
    • makes a declaration of a moratorium in respect of any indebtedness of such Party; or
    • makes or proposes any arrangement or compromise with or any assignment for the benefit of its creditors; or
    • ceases to carry on business; or
    • is provisionally or finally wound-up other than a voluntary liquidation implemented for the purposes of reconstruction or amalgamation; or
    • is placed under judicial management, whether provisionally or finally; or
    • is placed under business rescue.

6.                 Confidentiality and Security

  • Each Party shall hold in confidence all Confidential Information received from the other Party (“the Disclosing Party”) and shall not disclose or publish the Confidential Information to any person, including any of its employees, sub-contractors, vendors and other third parties who are in association with it and may have access to any Confidential Information, for any reason or purpose whatsoever without the prior written consent of the Disclosing Party which consent may be withheld in their sole and absolute discretion, provided that the Company shall be entitled to disclose the Confidential Information of the Client to the extent necessary for it to provide Services.
  • Each Party shall prevent disclosure of Confidential Information except as may be required by law or by any applicable regulatory authority. The Party so obliged shall immediately notify the Disclosing Party of the requirement and the extent thereof. The Disclosing Party shall be entitled to object to the disclosure and to seek to limit the nature and extent of any Confidential Information to be disclosed on such terms as may be lawful and reasonable in the circumstances.
  • After the termination of this Agreement, the recipient of Confidential Information shall immediately return the Confidential Information to the Disclosing Party or, at the discretion of the Disclosing Party, destroy such Confidential Information, and shall not retain copies, examples or excerpts.
  • It is recorded that the following information will, for the purposes of this Agreement, not be considered Confidential Information:
    • information known to the recipient Party prior to the date that it was received from the Disclosing Party;
    • information known to the public or generally available to the public prior to that it was disclosed by either of the Parties to the other;
    • information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the recipient of such information; or
    • information which either of the Parties, in writing, authorises the other to disclose; or
    • information which is developed independently by either of the Parties in circumstances that do not amount to a breach of the provisions of this Agreement.
  • Without prejudice to any other rights or remedies which either Party may have, each Party acknowledges and agrees that damages would not be an adequate remedy for any breach by either Party of the provisions of this clause 6 and either Party shall be entitled to the remedies of interdict, specific performance and other equitable relief for any threatened or actual breach of any such provision by the other Party or any other relevant person.
  • The Client shall use its best endeavours to ensure that its employees, subcontractors and any other persons nominated by the Client to act on its behalf comply with the security arrangements made by the Company with regard to the care and protection of data and data media, entry onto and exit from the premises of the Company, conduct on such premises, search and inspection of vehicles and persons in the mutual interests of the Parties and their employees.

7.                Protection of Personal Information

  • The Client authorises the Company to process Personal Information supplied by the Client to the Company for the purposes specified in the Service Contracts.
  • The Client expressly agrees and acknowledges that:
    • if the Company processes any Personal Information in the course of rendering the Services, the Company does so for and on behalf of the Client, who, for the purposes of the Protection of Personal Information Act, is the “responsible party”;
    • the Client is primarily responsible for complying with any data or personal information obligations imposed in terms of any law in respect of Personal Information, including the Protection of Personal Information Act;
    • the Client will obtain all necessary consents for the disclosure of the Personal Information to the Company and the Client will only provide the Company with Personal Information where the Client has obtained the voluntary, specific and informed consent of the person to whom the Personal Information pertains to disclose the Personal Information; and
    • the Client will immediately instruct the Company to destroy and/or delete any Personal Information as and when required.
  • It is the Client’s responsibility to ensure that Personal Information is processed in accordance with all relevant laws, including the Protection of Personal Information Act. Without detracting from this obligation of the Client, the Company agrees to use its best efforts to:
    • keep Personal Information confidential and not disclose any Personal Information to any person other than as required by law or in the course of the proper performance of its duties;
    • maintain appropriate security measures to prevent the loss of, damage to or unauthorised destruction of Personal Information and unlawful access to or processing of Personal Information in accordance with best industry practice;
    • notify the Client immediately if there are reasonable grounds to believe that Personal Information held by the Company has been accessed or acquired by an unauthorised person; and/or
    • only use the Personal Information to render the Services or with the prior written consent of the Client.
  • The Client indemnifies and will keep the Company indemnified at all times against any claim, liability, loss, cost or damages (including reasonable lawyers’ fees and expenses) however so arising, suffered by the Company, which directly or indirectly arise in connection with any breach of this clause 7 by the Client, its representatives, employees and/or agents or any claim made by any third party against the Company in relation to the Client’s obligations in terms of this clause 7.

8.                Maintenance

  • The Company may, from time to time, suspend the Services in order to carry out scheduled and emergency maintenance. The Company shall provide the Client with as much notice of any scheduled or emergency maintenance as is reasonably possible and shall endeavour to perform scheduled maintenance in such a way as to cause minimal disruption to the Client.
  • The Company shall arrange reasonable regular preventative maintenance for the Equipment used by the Company in providing the Services in accordance with reasonable recommendations made by suppliers of such Equipment.

9.                Limited Warranty and Exclusion of Implied Terms

  • Where any Services are stated in the Service Schedule to be subject to a specific service level, the Company shall provide those Services in such a manner as will ensure that the achieved service level in respect of those Services is equal to or better than such specific service level.
  • Where any Services are not subject to a specific service level, the Company warrants and undertakes that the Services will be provided with reasonable skill and care.
  • With the exception of the warranty and undertaking contained in clause 2, all warranties, undertakings, conditions or terms which may be implied or incorporated into this Agreement by law, custom, trade usage or otherwise are hereby expressly excluded to the maximum extent permitted by law (including any implied warranties of merchantability or fitness for a particular purpose). In particular, but without limitation, the Company does not warrant that the Services will be provided to a standard higher than that specified in the Service Schedule.
  • The Company has no direct control over the availability of bandwidth over the entirety of the Internet or a shared network and that, while the Company will use reasonable endeavours to facilitate the Services, the Company shall not be responsible for delays caused by unavailability of bandwidth.
  • The Company does not warrant that configuration of telecommunications and bandwidth services will be performed by the respective third-party service providers. The Company will use its reasonable endeavours to ensure that such configuration of telecommunications lines and services can occur.

10.              Limitation of Liability

  • Nothing in this Agreement or a Service Schedule shall exclude or limit either Party’s liability for: (i) fraud, (ii) death or personal injury resulting from that Party’s negligence or wilful misconduct; or (iii) any liability which cannot be limited or excluded by law.
  • Other than in respect of clause 1 and subject to clause 10.3, each Party’s maximum aggregate liability to the other whether in contract, negligence, strict liability, delict, tort, product liability, under statute or otherwise arising out of or in connection with any and all Service Schedules, will in respect of any and all acts, omissions, defaults or events be limited to the value of the Subscription Charges paid by the Client in the twelve (12) months preceding the date that the cause of action arose.
  • The Company shall not be liable for any loss or damage resulting from:
    • unavailability of the Services due to disruption of or any failure or fault in communication apparatus, lines and systems (including a failure in any third party’s point-of-presence or network), due to any circumstance that is beyond the reasonable control of the Company, except where such liability, loss or damage is due to the sole negligence of the Company;
    • the acts or omissions of other providers of telecommunications services or faults or failures in their apparatus;
    • the acts or omissions of third party contractors which are out of the reasonable control of the Company;
    • suspension of the Services for the performance of routine or emergency maintenance;
    • suspension of the Services in accordance with clause 8;
    • any failure of non-Company equipment;
    • the use of or any defect in or failure of the Client equipment or any software loaded thereon or any changes to the foregoing;
    • the transmission or storing of content by or on behalf of the Client using the Client equipment or the Company equipment;
    • any failure of the Client to provide anything which the Client has agreed to provide under this Agreement including, for the avoidance of doubt, security codes, software, hardware, and/or third party maintenance services;
    • any Force Majeure Event affecting the Company’s performance of this Agreement;
    • any breach of security which occurs notwithstanding the Company’s compliance with its security obligations as set out in any Service Schedule;
    • any failure (including any inherent security weakness) in any third party software used to provide the Services;
    • any error or omission of the Client; or
    • any event or circumstance which is out of the reasonable control of the Company;

in each case whether or not the Company has been notified of the possibility or likelihood of such loss or damage occurring.

  • Neither Party shall have any liability to the other for any special, incidental, indirect or consequential damages arising out of its breach of this Agreement including any loss of profits or for any loss of working time, savings, business, wasted expenditure, cover or data in each case whether or not that party has been notified of the possibility or likelihood of such loss or damage occurring.
  • Communications and bandwidth services that form part of the Services are subject to the terms and conditions of the respective third-party service providers.
  • If any of the exclusions set out at clauses 3 or 10.4 is not upheld the limit on liability at clause 10.2 shall in any event apply.
  • The Client shall arrange insurance cover for all property of the Client brought to or into the Company’s Premises, and in any event, the Client shall accept, and hold the Company harmless from and indemnified against, all liability for such property brought to or into the Company’s Premises. The Client shall also arrange third party and public liability insurance.
  • The Client hereby certifies that all Client personnel recognize the inherent hazards and aspects that exist on the Company Premises that the Client:
    • Enters the Company Premises entirely at his/her own risk and therefore the Client waives any claim of whatsoever nature against the Company, its employees, agents and/or mandataries in respect of any loss, damage and/or injury whether same is the result by way of defective equipment or materials supplied by the Company or by any third party;
    • The Client hereby indemnifies the Company, its employees, agents and/or mandataries against any claims from the Client’s employees and/or from any other person, arising and being caused in the manner set out above.

11.              Force Majeure

  • The Company shall have no liability to the Client under this Agreement, Service Terms or any Service Schedule if it is prevented from or delayed in performing its obligations under this Agreement, Service Terms or the Service Schedule or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control (each a “Force Majeure Event”), including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
  • If any Force Majeure Event prevents or materially delays performance under a Service Schedule and continues in effect for a period of more than three (3) consecutive months, then the Client shall have the right to terminate the Service Schedule immediately by giving written notice to the Company of such termination at any time prior to the cessation of such Force Majeure Event.
  • The Company (on whom the onus shall rest) shall give written notice of the Force Majeure Event to the Client as soon as reasonably possible after the commencement of the Force Majeure Event, specifying the nature and date of commencement thereof.
  • The Company shall endeavour with due diligence to resume compliance with its obligations under this Agreement and do all that it reasonably can to overcome or mitigate the effects of the Force Majeure Event and resume proper performance of its obligations under this Agreement.
  • The Company shall give written notice of the cessation of any Force Majeure Event within five (5) Business Days after such cessation.

12.              Applicable Law and Jurisdiction

  • The validity of this Agreement and a Service Schedule, its interpretation, implementation, enforcement, the respective rights and obligations of the Parties and all other matters arising in any way out of it, or its expiry or earlier termination for any reason, shall be governed and construed in accordance with the laws of the Republic of South Africa.
  • The Parties hereby submit to the jurisdiction of the High Court of the Republic of South Africa for the purposes of enforcing any award made by an arbitrator under clause 17.

13.              Entire Agreement

This Agreement supersedes any prior oral or written agreements concluded between the Parties.  No alterations, amendments, modifications or cancellation hereof shall be of force and effect unless reduced to writing and signed by the duly authorised representatives of the Parties. It is specifically recorded that the relevant Service Terms may be replaced from time to time in accordance with the terms of the Service Schedule, and their replacements shall be reduced to writing and signed by both Parties.

14.              Assignment

Neither Party shall have the right to cede its rights or delegate its obligations in terms of this Agreement to any third party, without the other Party’s prior written consent, which consent shall not unreasonably be withheld.

15.              Non-solicitation

Each Party undertakes not to solicit for employment any member of staff of the other Party for the duration of this Agreement and for twelve (12) months after the termination of this Agreement.

16.              Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, competent tribunal or arbitrator, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby, Agreement shall be of full force and effect.  Notwithstanding the foregoing, the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the relevant provision.

17.              Dispute Resolution

  • A dispute concerning or arising out of this Agreement or any Service Schedule exists once a Party notifies the others in writing of the nature of the dispute and requires it to be resolved under this clause. The Parties must refer any dispute to be resolved by:
    • negotiation; failing which
    • mediation; failing which
  • Within ten (10) Business Days of notification, the Parties must seek an amicable resolution to the dispute by referring it to designated and authorised representatives of each of the Parties to negotiate and resolve it by the Parties signing an agreement resolving it within fifteen (15) Business Days.
  • If negotiation fails, the Parties must by notice in writing from one Party to the other refer the dispute for resolution by mediation.
  • The Parties may agree on the mediation procedure and on the mediator and, failing agreement within five (5) Business Days of the notice referred to in clause 3, the mediation shall take place in accordance with the United Nations Commission on International Trade Law (“UNCITRAL”) Model Conciliation Rules and the mediator shall be appointed by Tokiso Dispute Settlement (Proprietary) Limited (or its successor or body nominated in writing by it in its stead) (“Tokiso”).
  • If mediation fails, the Parties must, by notice in writing from one Party to the other, refer the dispute for resolution by arbitration.
  • The Parties may agree on the arbitration procedure and on the arbitrator and, failing agreement within five (5) Business Days of the notice referred to in clause 5, the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute. The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa).
  • Unless agreed otherwise the mediation and the arbitration shall be administered by the Parties. The number of mediators shall be one (1) and the number of arbitrators shall be one (1). The place of the mediation and the arbitration shall be Johannesburg, South Africa.
  • The periods for negotiation or mediation may be shortened or lengthened by written agreement between the Parties.
  • This clause will not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process, for which purpose the parties irrevocably submit to the jurisdiction of the South Gauteng High Court.
  • This clause 17 is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified, or cancelled for any reason or cause.

18.              Title to the Intellectual Property

Each Party shall retain all right, title and interest in and to all Intellectual Property Rights which vested in that Party prior to the Effective Date or which are developed by or on behalf of that Party independently of any of the other Parties.  Each Party acknowledges that it has no claim of any nature whatsoever in and to the Intellectual Property Rights of the other Party except insofar as it is necessary to give effect to the provisions of this Agreement.  All benefits arising out of the use of any Intellectual Property Rights of a Party pursuant to this Agreement shall inure to the benefit of such Party.

19.              Notices

  • The Client and the Company choose as their domicilium citandi et executandi and for the purposes of all notices, consents, demands or communications intended for them pursuant to or in connection with this Agreement, the addresses (for the purposes of such notices only) and numbers set out next to their name on the Service Schedule Signature Page.
  • Any notice given in connection with this Agreement shall be valid only if given in a written, paper-based form and:
    • if delivered by hand, shall be deemed to have been duly received by the addressee on the date of delivery, provided a signed receipt is obtained for same, and correctly addressed and delivered; or
    • if posted by prepaid registered post, shall be deemed to have been received ten (10) Business Days after the date of posting;

and in either case, any notice to the Company shall be copied to: The Chief Executive Officer, ContinuitySA (Proprietary) Limited, Address: Waterfall Corporate Campus, Building 5, 74 Waterfall Drive, Waterfall City, Gauteng, 2090.

  • Notwithstanding anything to the contrary contained in this Agreement, a written notice or other 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 address.
  • A Party may, by written notice to the other Party, change its address for purposes of clauses 1 or 19.2 (as applicable) to any other address (other than a post office box number), provided that such change shall become effective from and after the fifth (5th) Business Day after the delivery of such notice in accordance with this clause.

20.              The Work Area Recovery Services

  • The Company shall make the WAR Services available to the Client within two (2) hours of receiving an Invoke Notice from the Client. The WAR Services shall be made available to the Client for the period of Minimum Availability specified in the Service Schedule, subject to the Company having received, from the Client, payment (in full) of all Charges then due.
  • The Priority Ranking between clients for the use of the Syndicated WAR Services, listed from highest to lowest priority, shall be:
    • Standby Use resulting from an Unplanned Incident, for the Minimum Availability of the Syndicated WAR Services stated in the Service Schedule;
    • Standby Use resulting from an Unplanned Incident, extending beyond the Minimum Availability of the Syndicated WAR Services stated in the Service Schedule;
    • Scheduled Test use within the allowance stated in the Service Schedule;
    • Standby Use resulting from a Planned Incident.
  • The Syndicated WAR Services shall, subject to the Priority Ranking set out in clause 2, be available for use by the Client on a first come, first served basis. This means that where two or more different clients issue an Invoke Notice, the client from whom the Company receives an Invoke Notice first, will have right of access to the Syndicated WAR Services. When a client issues an Invoke Notice, a declaration number will be allocated. This number acts as a key to identify the client and the exact date and time when its Invoke Notice was made, thus enabling the Company to clearly identify the sequence of calls. If the Client issues an Invoke Notice when the Syndicated WAR Services are already in use by another client then:
    • should the Syndicated WAR Services have sufficient capacity to accommodate the Client, the additional capacity shall be available for use by the Client;
    • should the capacity of the Syndicated WAR Services be exhausted by prior allocation, the Company shall use reasonable commercial endeavours to provide alternate Syndicated WAR Services and facilities for the Client in the interim.
  • After the period of Minimum Availability, the Client may continue to use the Syndicated WAR Services on the condition that the Company’s Premises will be vacated by the Client within one (1) hour of the Company giving written notice to the Client if the Company determines that another client has a valid, equal or higher priority claim for the Syndicated WAR Services. Such notice will be addressed to the Manager or a senior Client staff member on site.
  • In the case of the Client’s own service being degraded or inoperable or if the Client anticipates such a degradation or inoperability as a result of a Planned Incident, the Company shall use its reasonable endeavours to make the Syndicated WAR Services available for use by the Client subject to the requirements of the Company’s other clients and having regard to the agreed list of priorities set out in clause 2. The Company may also, at its sole discretion, make the Syndicated WAR Services available for use by the Client for other purposes having regard to the Priority Ranking set out in clause 20.2.
  • Additional Test use over and above the use for Tests specified in the Service Schedule, or other use of the Syndicated WAR Services, such as a Planned Incident, may be arranged to take place at times which are mutually satisfactory to the Company and the Client, subject to payment by the Client of all Charges then due, in accordance with the Priority Ranking identified in clause 2.
  • The Syndicated WAR Services may only be used by the Client for purposes of Test, Unplanned Incidents and Planned Incidents occurring on, relating to or affecting the Client’s Premises.
  • Although the Company may make provisional arrangements, with telecommunications and service providers, to reconfigure or redirect the Client’s telecommunications lines and services to the Company’s Premises for use with the Services, the Company does not under any circumstances warrant that such reconfiguration or redirection will be performed by telecommunications or service providers. The Company will use its reasonable endeavours to ensure that such reconfiguration or redirection of telecommunications lines and services can occur, but it is the sole responsibility of the Client to conclude such arrangements for its own benefit.

21.              Facilities

  • The Company will provide the following shared facilities in conjunction with the WAR Services:
    • WAR power generation services;
    • rest areas;
    • a kitchen area; and
    • ablution facilities.
  • Should the Services, required by the Client to successfully complete a Test, include: (i) Additional Facilities and Services; or (ii) services of a higher level than the WAR Services reflected in the Service Schedule; then the Company may levy an additional amount for such Additional Facilities and Services, or such other services required by the Client, which amount shall be payable by the Client.

22.              Testing and Planned Incidents

  • Notwithstanding any other provisions of this Agreement, if a Test or part of a Test in which the Services are being used, is cancelled with less than fourteen (14) days’ prior written notice to the Company:
    • if the cancelled day(s) is/are part of annual Tests, the Company reserves the right to deduct the cancelled days from the remaining annual entitlement of Tests as laid down in the Service Schedule;
    • if the cancelled day(s) is/are not part of the annual Tests, the Company reserves the right to recover the costs of the cancelled day(s) from the Client at the prevailing test day rate plus ten thousand rand (R10,000) per cancelled day.
  • For additional Test use, the Company may, at its discretion, levy a daily charge at the rate set out in the Service Schedule.
  • For a Planned Incident, the Company may at its discretion levy a daily charge at the rate set out in the Service Schedule.
  • Tests and Planned Incidents conducted outside Normal Office Hours by prior agreement with the Company will be charged at then current Charges.

23.              Standby Use Charges

  • There is no additional charge for the provision of WAR Services in respect of an Unplanned Incident up to the Minimum Availability period. For Standby Use beyond the Minimum Availability period, the additional Standby Use Charges shall be R100 excluding VAT per WAR seat per day or part thereof.
  • The above Standby Use Charges do not include the charges for call out, technical support, operator support, media and additional facilities not otherwise specified elsewhere in these Service Terms.
  • If the Client wishes to use the WAR Services in terms of clause 20 for a purpose not specified in the Priority Ranking in clause 2, and such use is agreed to by the Company, then the Company shall notify the Client of the Charges for such additional use and such Charges must be agreed to by the Client before such additional use of the WAR Services commence.
  • Additional consultancy and technical support services can be made available by the Company to the Client at the Company’s then current rates plus reasonable out-of-pocket expenses, for which the Client has given its prior consent.

24.              Additional Charges

  • The following charges are applicable:
    • Test Days are charged at two thousand five hundred rand (R2,500) per day for each Test Day;
    • Planned Incidents are charged at one hundred rand (R100) per WAR seat per day or part thereof, subject to a minimum charge of two thousand five hundred rand (R2,500) per day;
    • Unplanned Incidents beyond the Minimum Availability period are charged at one hundred rand (R100) per WAR seat per day or part thereof, subject to a minimum charge of two thousand five hundred rand (R2,500) per day;
    • Site usage, technical support, and operational support provided by the Company during Tests, Planned Incidents and Unplanned Incidents shall be charged at the following hourly rates:
Details Office Hours After Hours Sundays / Public Holidays
Site usage R 675 R 900
Cleaning services R 85 R 104
Security guard R 325 R 400
Receptionist R 221 R 272
Technician R 650 R 845 R 1 040
Senior technician R 850 R 1 105 R 1 360
Technical consultant R 1395 R 1 814 R 2 232
Project manager R 1 145 R 1 489 R 1 832

These rates are exclusive of Value-Added Tax and may be increased by the Company from time to time. The charges fall within the category of Variable Charges.

  • Parking is charged at R50 excluding VAT per parking bay per day or part thereof.

25.              The Company’s Obligations

  • The Company shall:
    • maintain the WAR Services in a fully functional condition which will at all times be consistent with the WAR Services that were presented to the Client at the Services Commencement Date, with the exception of fair wear and tear. Generic facilities such as the generator, UPS, fire prevention and detection, security and electricity at the Company’s Premises will be secured, checked and maintained by the Company as part of its weekly and monthly operational functions, as the case may be;
    • schedule the Syndicated WAR Services based on the Priority Ranking as set out in clause 2, and in accordance with the existing schedules of Tests or Standby Use by clients;
    • provide access to such persons listed as authorised to the Company’s Premises, in accordance with clause 1.11.4;
    • comply with the Occupational Health and Safety Act No. 85 of 1993 and ensure that its personnel adhere to all reasonable Occupational Health and Safety Regulations as applicable from time to time; and
    • arrange reasonable regular preventative maintenance for the Equipment used by the Company in providing the Services, in accordance with reasonable recommendations made by suppliers of such Equipment.
  • The Client shall have the option to arrange its own engineering and maintenance for the Equipment used in providing the Services for the duration of any period during which the Client is using such Equipment. Any costs in this regard shall be for the account of the Client.
  • The decision of the Company as to which Client has priority in terms of clause 2 is final and binding on the Client and the Company shall not be liable for damages sustained by the Client, consequential or otherwise, if the Services are unavailable as a result of:
    • the use of the Syndicated WAR Services by another client with a higher priority (as set out in clause 2) than the Client, or the prior use of the Services by another client with the same priority as the Client; or
    • the Client’s failure to perform its obligations as stated in clause 26.
  • The Company shall provide the Client with prior notice of any planned maintenance and/or upgrades to the Company’s facilities which may materially affect the Client’s ability to successfully invoke the Services.
  • The WAR Services, specified in the Service Schedule, shall be located in a secure area and available for inspection by the Authorised Representative(s) at the Services Commencement Date.

26.              The Client’s Obligations

  • The Client shall:
    • at all times maintain secure copies of its programs and data at a secure location separate from the building housing its own computer systems, and readily accessible to it in the event of an Unplanned Incident;
    • within six (6) months of the Services Commencement Date, schedule at a mutually agreed time with the Company, a Test or Tests and carry out such Tests within such agreed time. Thereafter the Client shall in each subsequent year carry out Tests as defined in these Service Terms, at a mutually agreed time, and complete such Tests within the time limits agreed to between the Company and the Client;
    • ensure that, by making use of the Tests provided for, the Client’s recovery requirements are satisfied by the Services specified in the Service Schedule;
    • be responsible for the proper and professional use of the Services by its employees, agents and/or sub-contractors and fault reporting in accordance with the procedures as notified and laid down by the Company from time to time;
    • be responsible for the prevention of illegal use of the Company’s Services and Equipment, including but not limited to, information theft, hosting inappropriate websites and/or fraudulent activities;
    • provide properly trained persons on site at all times when the Services are in use by the Client, its employees, agents and/or sub-contractors to carry out all functions relating to the use of the WAR Services;
    • ensure the compliance of its employees, contractors and agents with reasonable instructions as issued to the Client, its employees, agents and/or sub-contractors from time to time, for the use of the Services and other facilities provided by the Company in terms of the Service Schedule;
    • provide the Data and software in a form and condition suitable for use on the Company’s Equipment and, unless otherwise agreed in writing by the Company, only use on the Company’s Equipment a version of the operating system currently supported by the manufacturer. This shall include by way of example, but is not limited to, licensed copies of all software and/or the agreement of the supplier of such software that these products may be used on the Company’s Equipment, together with any necessary security passwords for use of the Data and software;
    • be responsible for and make good all damage caused to the Services or to any other property or Equipment in the custody or control of the Company, wherever located, to the extent that the Client, its employees, contractors or agents cause such damage;
    • if it issues an Invoke Notice, use all reasonable efforts to reinstate its existing service or create a new installation with the intention of minimising the duration of use of the Services;
    • provide to the Company at the Services Commencement Date of the Service Schedule and keep up to date at all times:
      • a list of Additional Facilities and Services that may be required;
      • a list of communication facilities required;
      • a list of those of the Client’s personnel authorised to issue an Invoke Notice together with their identity numbers and call back telephone numbers for authentication of the Invoke Notice; and
      • a list of those Client’s personnel authorised to access the Company’s Premises together with identity numbers.
    • unconditionally indemnify the Company against any and all actions, claims, costs, demands, damages, liability and expenses arising from:
      • the use by the Client of any Intellectual Property Rights or industrial property or Equipment of the Company with regard to item(s) which the Client may bring to/onto the Company’s Premises and which falls outside the Services offered by the Company; or
      • the use of the Services or the Company’s Premises by the Client, its employees, servants, agents and/or sub-contractors; or
      • the injury or death of any person as a result of any negligent act or omission of the Client, their employees, servants, agents and/or sub-contractors;
    • provide such evidence as the Company may reasonably require verifying, to the Company’s satisfaction, the proper entitlement of the Client to qualify for Standby Use due to an Unplanned Incident;
    • on termination of the Service Schedule, for whatever reason, forthwith return to the Company, at the Client’s expense, all operational and service documentation as used from time to time relating to the provision and use of the Services.

27.              Express Warranty by Client

  • The Client warrants that:
    • it is not aware, and should not reasonably be aware, of any current or impending incident, which could result in the Client invoking an Unplanned Incident and making use of the Company’s WAR Services within three (3) months of the Services Commencement Date; and
    • the Services subscribed for by it are sufficient to satisfy its recovery requirements.