SC-Wiki24

• 1.1 In this Agreement, the words hereunder will have the meanings assigned to them below:
  • 1.1.1 “Agreement” means these Standard Terms and Conditions and any Application Form, Schedules, Annexures and attachments hereto;
  • 1.1.2 “Service Schedule” means the Service Specification Schedule attached hereto wherein the details and costs of the Service/s are specified;
  • 1.1.3 “Customer” means the party specified as Customer on the Application Form to which these Standard Terms and Conditions are attached;
  • 1.1.4 “Customer Support Schedule” means the schedule containing customer support information which may be obtained from SupportCALL on request;
  • 1.1.5 “Effective Date” means, notwithstanding the date of signature of this Agreement, the date when the Service/s is commissioned by SupportCALL for use by the Customer irrespective of whether or not the Customer uses the Service/s;
  • 1.1.6 “SupportCALL” means SupportCALL (Pty) Ltd, with registration number 2018/324778/07;
  • 1.1.7 “Initial Period” means the initial contract term of the Service/s, as set out in the Service Schedule (Schedule 1) hereto;
  • 1.1.8 “Proprietary Information” means any and all trade secrets and data/information of a proprietary and/or confidential nature, including data/information that the parties should reasonably have known to be proprietary or confidential;
  • 1.1.9 “Service/s” means all the service/s provided by SupportCALL as specified in the Schedules to this Agreement, including all software and equipment necessary for the provision of the Service/s;
  • 1.1.10 “VAT” means Value-Added Tax as defined in the Value-Added Tax Act 89 of 1991.

The clause headings contained in this Agreement are for reference purposes only and shall not be used in the interpretation of this Agreement. Words importing any one gender includes the other gender, the singular includes the plural and vice versa, and natural persons includes juristic entities and vice versa.

• 2.1 The Effective Date of this agreement is the date upon which the signatory of this agreement takes delivery of service.
• 2.2 If at any time during the currency of the Agreement, the Customer upgrades the service, then the Effective Date in respect of the Service/s as upgraded shall be the date when the upgraded Service/s first commences.
• 2.3 The duration period of each of the Service/s shall be the Initial Period.
• 2.4 Either party hereto shall be entitled to terminate this Agreement by way of 30 (thirty) days prior written notice of termination to be effective at the end of the Initial Period. Failing such notice of termination, the duration of the Service shall thereafter automatically renew for successive periods of 1 (one) year each on terms and conditions set out in the Agreement and Schedules, subject to 30 (thirty) days prior written notice of termination effective at the end of the then current 1 year period, and subject to an escalation in fees per clause 3.7 of the Standard Terms and Conditions.

• 3.1 All Service/s provided are to be billed as of the Effective Date. In the event of a single Service consisting of a number of components, billing will commence for each respective component of that Service as and when each component of that Service goes live.
• 3.2 Customer is responsible for and agrees to pay to SupportCALL all fees for the Service/s specified in the Service Schedule in South African currency, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
• 3.3 All prices specified in the Service Schedule exclude:
  • 3.3.1 VAT and any other taxes and duties including any regulatory surcharge, which Customer becomes obligated to pay by virtue of this Agreement.
• 3.4 Invoicing will be processed and delivered in advance, and all invoices for Services shall be settled monthly within 30 days of the date of invoice.
• 3.5 In the event of any dispute arising as to the amount or calculation of any fee or charge to which SupportCALL is entitled, the dispute shall be referred for determination to SupportCALL’s auditors. They shall act as experts and their decision shall be final and binding on SupportCALL and Customer. The cost of the determination shall be paid on demand by the party against whom the determination is made, or as determined by the said auditors.
• 3.6 Any amount falling due for payment by Customer to SupportCALL in terms of or pursuant to this Agreement which is not paid on its due date shall bear interest calculated from the due date for payment thereof until date of payment, at a rate equal to the prime overdraft rate plus two percent (2%) charged by First Rand Bank Limited from time to time, monthly in arrears.
• 3.7 SupportCALL shall be entitled from time to time on 30 (thirty) days prior written notice thereof to Customer to increase the monthly fees referred to in the Service Schedule, provided that:
  • 3.7.1 SupportCALL shall not be entitled to increase the monthly fees during the first 1 (one) year of this Agreement; and
  • 3.7.2 SupportCALL shall not increase the fees on more than one occasion in any subsequent 12 (twelve) months period of this Agreement.

• 4.1 Customer shall comply strictly with all restrictions imposed on computer networks through which any information and/or data transmitted by Customer passes.
• 4.2 Customer shall not commit nor attempt to commit any act or omission which directly or indirectly:
  • 4.2.1 damages in any way SupportCALL’s technical infrastructure or any part thereof;
  • 4.2.2 impairs or precludes SupportCALL from being able to provide the Service/s in a reasonable and businesslike manner;
  • 4.2.3 constitutes an abuse or malicious misuse of the Service/s; Or is calculated to have the above-mentioned effect.

In such an event, should SupportCALL incur expenses to remedy the situation, SupportCALL reserves the right to charge the Customer the amount necessary to cover SupportCALL’s additional expenditure. Notwithstanding the above, SupportCALL reserves the right to take any other appropriate action it may deem necessary to remedy the situation.

• 4.3 Customer is prohibited from modifying any equipment (including but not limited to router equipment) utilized by Customer to receive any of the Service/s, in any way whatsoever, including the changing of any of the settings of such equipment.
• 4.4 Customer shall at all times adhere to and ensure compliance with the Customer Support Schedule.
• 4.5 Under no circumstances may Customer resile from this Agreement or withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against SupportCALL, its servants, its agents or any other persons for whom it may be liable in law (and in whose favour this provision constitutes a stipulation alteri) if SupportCALL interrupts the Service to Customer as it would be entitled to do if Customer is in default of any of its obligations under this Agreement to SupportCALL or in the circumstances contemplated in clause 6.4 below.
• 4.6 Customer may not at any time use the Service in contravention of any South African law. In particular, Customer undertakes to familiarize itself and ensure that it is kept continuously appraised of all South African law in force from time to time which has any bearing on the Service and/or its use. Customer acknowledges that SupportCALL has no obligation to assist Customer in this regard.

• 5.1 Save as expressly set out in this Agreement, SupportCALL does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Service/s and all warranties which are implied or residual at common law are hereby expressly excluded.
• 5.2 Without limitation to the generality of 5.1 above, SupportCALL does not warrant or guarantee that the information transmitted by or available to Customer by way of the Service/s:
  • 5.2.1 will be preserved or sustained in its entirety;
  • 5.2.2 will be delivered to any or all of the intended recipients;
  • 5.2.3 will be suitable for any purpose;
  • 5.2.4 will be free of inaccuracies or defects or bugs or viruses of any kind; or
  • 5.2.5 will be secured against intrusion by unauthorized third parties.

SupportCALL assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 5.

• 6.1 Except as otherwise expressly provided herein to the contrary, SupportCALL shall not be liable to Customer or any third party for any loss or damage of whatsoever nature and/or howsoever arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss of property or of profit, business, goodwill, revenue, data or anticipated savings) or for any costs, claims or demands of any nature whether asserted against SupportCALL or against Customer by any party, arising directly or indirectly out of the Service/s, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be.

Any specifications, descriptive matter, drawings, and other documents which may be furnished by SupportCALL to Customer from time to time:
* **7.1** do not form part of this Agreement and may not be relied upon, unless they are agreed in writing by both parties hereto to form part of this Agreement;
* **7.2** shall remain the property of SupportCALL and shall be deemed to have been imparted by it in trust to Customer for the sole use of Customer. All copyright in such documents vests in SupportCALL. Such documents shall be returned to SupportCALL on demand.

• 8.1 Subject to the provisions of clause 8.3 to the contrary, if Customer hereto breaches any of the terms or conditions of this Agreement and fails to remedy such breach or pay such amount, as the case may be, within 7 (seven) days after the receipt of written notice from SupportCALL, SupportCALL shall have the right to:
  • 8.1.1 suspend or terminate the Services;
  • 8.1.2 treat as immediately due and payable all outstanding amounts which would otherwise become due and payable over the unexpired period of the Agreement, and to claim such amounts as well as any other amounts in arrears including interest and to cease performance of its obligations hereunder as well as under any other contract with the Customer until Customer has remedied the breach; and/or
  • 8.1.3 cancel this Agreement;

SupportCALL reserves the right to claim damages in any event without prejudice to SupportCALL’s rights.

• 9.1 Notwithstanding anything set out in Clause 10 below, all SupportCALL intellectual property (including, without limitation, copyright, trademarks, designs and patents) relating to or used in connection with the Service/s provided under this Agreement shall belong to SupportCALL. Customer undertakes that it shall at no time, have any right, title or interest in the intellectual property and agrees that it shall not (or permit any third party to) reverse engineer, decompile, modify or tamper with the equipment or software owned by SupportCALL, or any of its third-party suppliers. SupportCALL shall notwithstanding anything to the contrary, have no right, title or interest in any intellectual property that belongs to the Customer and/or that the Customer has the lawful entitlement to.
• 9.2 Customer warrants that it shall not use the Service/s to produce, host or present any content in contravention of any person’s intellectual property rights, and in particular warrants that it shall recognize, acknowledge and use any content in accordance with any third party’s intellectual property rights. Customer furthermore warrants that it has received all necessary permissions to make use of any intellectual property relating to 3rd parties.

• 10.1 Each party will keep in confidence and protect Proprietary Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement. Either party acknowledges that unauthorized disclosure or use of Proprietary Information may cause substantial economic loss. All printed materials, containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for either party’s authorized use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
• 10.2 Each party shall ensure that its employees comply with its obligations under this section 10.
• 10.3 This section 10 shall survive termination or cancellation of this Agreement.
• 10.4 This Agreement does not transfer to either party title to any intellectual property contained in any Proprietary Information of the other party.

• 11.1 Customer shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third party unless consented to in writing by SupportCALL.

• 12.1 The parties agree that in the event of a breach of this Agreement by Customer which causes SupportCALL to suffer damages of any nature whatsoever, SupportCALL shall not be required to attach any of Customer’s hardware in execution, and shall be entitled to retain a lien over such hardware in reduction of any debt due by Customer to SupportCALL.

• 13.1 SupportCALL shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond the control of SupportCALL, provided that SupportCALL makes all reasonable efforts to perform.
• 13.2 It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of SupportCALL and the force majeure provisions shall apply:
  • 13.2.1 a PSTS provider fault that affects the Service/s; and/or
  • 13.2.2 the non-performance, inability to perform or delay in performance by the PSTS provider relating to the provisioning of equipment, services and/or facilities to SupportCALL that affects the Service/s; and/or
  • 13.2.3 acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm or fire.

• 14.1 This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with South African law by a South African court having jurisdiction.

• 15.1 For all purposes, including but not by way of limitation, the giving of any notice, the making of any communication and the serving of any process, Customer chooses its domicilium citandi et executandi (“domicilium”) at the physical address appearing on the application form to which these Standard Terms and Conditions are attached. SupportCALL chooses its domicilium citandi et executandi (“domicilium”) at 1 South Street, Volksrust, South Africa. Either party shall be entitled from time to time to vary its domicilium and shall be obliged to give notice to the other within ten (10) days of the said change. Any notice which either party may give to the other shall be posted by prepaid registered post or hand delivered to the other party’s domicilium and shall be presumed, unless the contrary is proved by the party to whom it is addressed, to have been received by that party on the tenth (10th) day after the date of posting or on the day of delivery as the case may be.

• 16.1 No variation, amendment or consensual cancellation of this Agreement or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by a duly authorized representative from both SupportCALL and Customer.
• 16.2 The parties acknowledge having read and understood this Agreement and are not entering into this Agreement on the basis of any representations not expressly set forth in it.
• 16.3 Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between Customer and SupportCALL or not.
• 16.4 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against either party hereto in respect of its right under this Agreement, nor shall it operate so as to preclude either of the parties thereafter from exercising its rights strictly in accordance with this Agreement.
• 16.5 In the event that any provision of this Agreement conflicts with any statute, ruling or order of any governmental or regulatory body from time to time, then such provision of this Agreement shall be controlled by the statute, ruling or order.
• 16.6 Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.
• 16.7 In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall