Unless the contrary is clearly indicated, the following words and/or phrases, when used in this Agreement, shall have the following meaning:
- “Agreement” shall mean this written document together with all written appendices, addendums, exhibits or amendments attached to it from time to
- “Commencement Date” shall mean the date on which the Contractor has given written notice that the Agreement is in This will be no later than within 2 (two) weeks from when the Agreement has been signed by both Parties.
- “Location” shall mean the physical address of the business premises of the
- “Parties” shall mean both the Customer and the
- “Payment Date” shall mean the date on which payment is due based on the terms the Contractor has approved for the
- “Payment Office” shall mean the address of the
- “Contractor’s Standard Hours” shall mean 08h00 to 17h00 on all days excluding Saturdays, Sundays and public
- “Maintenance Month” means a period of one month, commencing on the 1st day of a month and continuing until the last day of that month at which time the Contractor will invoice the Customer for Support Services
- “Currency” shall mean South African
- “Service Level Agreement Option” shall mean the service level agreement option chosen by the client, annexed hereto and marked “Addendum A”, containing specific details of the services and associated charges
- “Hardware” shall mean without limitation, the Customer’s computer terminals, laptops, tablets, smart phones, servers, switches, routers, screens, printers and peripheral equipment used to access and operate the
- “Software” shall mean operating system and computer application software installed from time to time on the Customer’s Hardware and used by the Customer for commercial operational purposes, whether incorporated in humanly intelligible media or
- “System” shall mean the Customer’s computer system, incorporating both Hardware and
- “Fixed Hours” shall mean the time allocated to the Customer for Weekly Remote System Checkups as specified by the Service Level Agreement
- “Onsite” shall mean Support Services at the
- “Remote” shall mean Support Services provided from a remote location via telephone, remote access software or
- “Bookable Time” means the time allocated to the Customer for Support Services as specified by the Service Level Agreement Option. The increments of time are allocated as follows:
- For Onsite support, time will be allocated in 30 (thirty) minute For each support call, any amount of support provided which is between 1 (one) and 30 (thirty) minutes in duration, counts as a 30 (thirty) minute increment.
1.17.1 For Remote support, time will be allocated in 15 (fifteen) minute increments. For each support call, any amount of support provided which is between 1 (one) and 15 (fifteen) minutes in duration, counts as a 15 (fifteen) minute increment.
- “CarryOver Hours” shall mean the extra time that will be allocated to the next Maintenance Month’s Bookable Time in the event that hours are not used up in a particular Maintenance Such hours to expire after ninety (90) days.
- “Support Services” shall mean:
- installation of Hardware and Software, configuration, maintenance and administration of the Customer’s System at the Location;
- as a first line of response, to provide telephonic and/or remote assistance and support to the Customer within the Response Time, provided that the Customer, at its sole cost and expense, shall be obliged to install and commission a suitable router at the Location to enable the Contractor to get remote access to the System;
- where telephonic and/or remote assistance and support proves unsuccessful, provide Onsite support at the Location;
- general consultancy for System enhancements;
- such other support of the System as may be agreed between the parties from time to time, but shall exclude proprietary hardware and/or software which requires specialized support, outside of the scope of the skillset provided by the
- “Response Time” shall mean the time which it takes for the contractor to respond to a request for support as specified by the Service Level Agreement
- “Confidential or Disclosed Information” shall mean
- any information of whatever nature, which has been or may be obtained by either of the Parties from the other, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, knowhow, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas;
- analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition;
- any dispute between the Parties resulting from this
- “Project” shall mean a nonroutine operation, with a designated start and end time, designed to accomplish a specific
- “Unlimited Telephonic and Remote Support” or “UTR” shall mean Support Services provided telephonically and remotely and invoiced on a per user basis which are not measured by time and are governed by a Fair Use Policy found at https://www.turrito.com/terms-and-conditions/. Each user must be listed in Addendum B and registered with the Contractor to qualify for The following exclusions apply:
- Training sessions (planned, groups or anything that requires more than 10 minutes dedicated instruction in total);
- New hardware or Software installations (if a new server, workstation, software rollout or IT system is required a preapproved quote will be required before any work carried out) ;
- Repeat faults as a direct result of end users ignoring recommendations provided by the Contractor;Faults with 3rd party software which the Contractor is not able to work with;
- General misuse by the Customer of the System, Hardware or Software;
- Any Projects which fall outside of normal maintenance and support, each such Project to be quoted and approved by the Customer separately;
The Customer hereby appoints the Contractor to render Support Services and the Contractor accepts this appointment, subject to the terms herein contained.
- The Contractor shall, for the duration of this Agreement, render Support Services AND/OR Unlimited Telephonic and Remote Support to the Customer and will invoice the Customer as per the Service Level Agreement
- The Contractor shall use only suitably qualified employees to render the Support Should the Customer wish to change a specific employee who is assigned to it, the Contractor will provide the necessary training and make such a change within 30 days of receiving such notice.
- The Customer will inform the Contractor of any faults on the System as soon as possible after any such fault or problem is discovered in accordance with the provisions of the Agreement and will provide the Contractor’s employees with reasonable access to the System including such personal access as may be required upon arrival of the employee of the Contractor at the
4 Procedure for requesting Support Services
The Customer will, whenever it requires Support Services, follow the procedure set out below:
- The Customer will appoint a representative or representatives who is/are authorised to request Support The Customer may replace its authorised representative or representatives from time to time by written notice to the Contractor.
- The Contractor shall not be required to provide Support Services unless requested to do so by the aforementioned representative of the
- An authorised representative of the Customer shall contact the support helpdesk telephonically, or via email, and log a request for a support
- The Customer shall provide, at its own cost, such material and information as may be legally required by the Contractor to render the Support Services, which shall include but not be limited to licensed copies of the Software, together with manuals
- The Contractor’s helpdesk will acknowledge, and respond to the request for Support Services, within the Response Time, provided same is logged within the Contractors Standard The Contractor’s helpdesk shall, should it not be able to resolve the problem immediately, advise the customer (to the extent that they may be able) of the estimated time to remedy any particular problem with the System, and keep the Customer appraised of any variation in the aforesaid estimate.
- In the event of UTR being included in the Service Level Agreement Option then Clause 1, 4.2 and
4.3 will not apply and all users, as per Addendum B, may contact the helpdesk for support providing they are registered on the Customers account. It is the responsibility of the Customer to inform the Contractor of any changes to Addendum B.
5 Afterhours support
Any support required outside of the Contractors Standard Hours will be on an adhoc basis and must be requested by the Customer and approved and booked by the Contractor. If after hours support is provided it will be charged, save where otherwise agreed, at the Contractor’s prevailing overtime rate.
- The Agreement shall commence on the Commencement
- The Agreement will continue in force for a period of 1 (one) year calculated from the Commencement Date and will thereafter automatically be renewed for a further period of
1 (one) year, unless terminated by the Customer by providing 30 (thirty) days written notice. This notice must be given 30 (thirty) days immediately prior to the end of the 1 (one) year period.
7 Charges and payment
- The Customer shall pay the Contractor the amount due as specified by the Service Level Agreement
- Time sheets, tickets and logs shall be maintained by the Contractor in respect of Support Services rendered to the
- The Contractor shall invoice the Customer in respect of Support Services rendered by it at the end of each Maintenance Each invoice will be supported by the aforementioned time sheets for that specific Maintenance Month
- In addition to the fees specified above the Contractor may invoice the Customer for:
- travelling charges incurred by the Contractor at the rate as specified in the Service Level Agreement Option which shall be measured from the Contractors office to the Location and back again; and
- Hardware and/or Software and/or any materials such items to have been quoted and duly accepted by the Customer; and
- any labour which does not fall within the bundled hours specified in the Service Level Agreement Option at the Contractors prevailing “Out Of Contract Hourly Rate” which is also specified in the Service Level Agreement Option; and
- overtime as per Clause 5 above;
- The Customer shall pay the Contractor at the latest on the Payment Date for any invoice for Support Services as well as for any other invoices issued, or amounts due, as per the statement and this Clause;
- The Customer shall pay compound interest monthly on all overdue amounts due to the Contractor at a rate of 1% per
- The Customer will not be entitled to withhold payment of any amount payable to the Contractor to satisfy any claim of the Customer arising from this or any other contract between the Parties, nor will the Customer be entitled to setoff such an amount against the amount payable to the Contractor in terms of this Agreement or any other
- The Contractor reserves the right to suspend all services to the Customer if the Customer does not make payment as per the payment terms specified in this
- All payments due to the Contractor shall be paid in the
- All prices exclude VAT, which must be paid in addition to the listed
- The Agreement is subject to an annual increase of 8%
- Any hours not used within a Maintenance Month, determined solely by the Contractors ticket system, will become CarryOver Hours
8 Breach and termination
- Without prejudice to any other remedies which either of the Parties may otherwise have in terms of the Agreement or at law, either of the Parties shall be entitled to terminate the Agreement, by written Notice to the other, in the event that:
- the Contractor infringes the copyright, trade secrets or patent of any third party, in order to meet all or some of its obligations contained in the Agreement;
- either of the Parties are finally liquidated;
- the controlling interest or ownership in either of the Parties becomes vested in a competitor of either of the For the purpose of this clause, the party who makes this allegation shall carry the burden to prove same;
- either of the Parties commits a breach of the terms and conditions of the Agreement, and fails to remedy such breach, within 7 (seven) calendar days after receiving Notice from the other party to the
- The Contractor reserves the right to terminate the Agreement if the Customer has not made payment 30 (thirty) days after the Payment
- The Customer may terminate the Agreement for any reason whatsoever by giving 2 (two) months written notice or by paying 2 (two) Maintenance Months worth of fees, as per their Service Level Agreement Option to the Contractor. The 2 (two) applicable months cannot be included the current Maintenance Proof of payment, as well as written notice of such cancellation, must be provided to the Contractor.
- The termination of the Agreement, for whatever reason, shall not affect the rights of either of the Parties:
- that may have accrued before the termination of the Agreement; or
- which specifically or by their nature survives the termination of the
9 Limitation of liability
- The liability of the Contractor for faulty execution of the Support Services rendered in terms of the Agreement as well as all damages suffered by the Customer, whether direct or indirect, as a result of the rendering of such services, will be limited to the Contractor rectifying, within a reasonable time and free of charge, any errors caused by the Contractor as a result of such faulty execution of the Support Services, provided that the Contractor is notified immediately of the damage or faulty execution of the
- This liability is completely excluded if the Customer attempts to correct or allows third parties to correct or attempt to correct such faulty execution of the Support Services or any damage arising therefrom without the prior written approval of the
- Any other liability on the part of the Contractor arising from any cause whatsoever is specifically excluded. Without limiting the generality of the aforegoing, the Contractor shall not be liable for any delay, failure, breakdown, damage or injury caused by:
- software, programs, and/or support services supplied by or obtained by the Customer without the consent or knowledge of the Contractor; or
- software or programs modified by the Customer or any third party not authorised to do so in terms of the Agreement; or
- the actions or requirements of any telecommunications authority or a supplier of telecommunications services or
- In no event will the Contractor be liable to the Customer for loss of profits or for incidental, special or consequential damages arising out of or in connection with the Maintenance and/or Support Services rendered by the Contractor in terms of the
- The Contractor cannot be held liable for the indirect or direct consequences of data loss of any kind and for any
- The Customer warrants to the Contractor that all Software is lawfully licensed to the Customer and the Customer indemnifies and holds the Contractor harmless against all and any claims in the event that such Software is not properly
- The Contractor reserves the right, at its discretion, to install monitoring software on the Hardware to automatically send selective information to the helpdesk in order to improve the Support This information is only related to the Hardware it is installed upon and does not include any private data from end users or the Customer
- The clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in the interpretation of this
- Any reference in this Agreement to the singular includes the plural and vice versa.
- Any reference in this Agreement to natural persons includes legal persons and references to any gender include references to the other genders and vice versa.
If any provision of this Agreement is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of this Agreement will not be affected thereby.
- The Parties shall hold in confidence all Confidential or Disclosed Information received from each other and not divulge the Confidential or Disclosed Information to any person, including any of its employees, save for employees directly involved with the execution of this
- The Parties shall prevent disclosure of the Confidential or Disclosed Information, except as may be required by
- Within six (6) months after the termination of this Agreement, for whatever reason, the recipient of Confidential or Disclosed Information shall return same or at the discretion of the original owner thereof, destroy such Confidential or Disclosed Information, and shall not retain copies, samples or excerpts
- It is recorded that the following information will, for the purpose of this agreement, not be considered to be Confidential or Disclosed Information:
- information known to either of the Parties prior to the date that it was received from the other party; or
- information known to the public or generally available to the public prior to the date that it was disclosed by either of the Parties to the other; or
- 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
This Agreement does not constitute either of the Parties an agent or legal representative of the other for any purposes whatsoever and neither of the Parties shall be entitled to act on behalf of, or to represent the other unless duly authorised thereto in writing.
15 Dispute resolution
- If the Parties are unable to resolve any dispute resulting from this Agreement by means of joint co operation or discussion between the individuals directly involved with the execution of this Agreement, within one week after a dispute arises or such extended time period as the Parties may in writing allow, then such a dispute shall be submitted to the most senior executives of the Parties who shall endeavour to resolve this dispute, within five (5) calendar days after it having been referred to
- Should the dispute not be resolved in the aforesaid manner, then it shall be resolved by way of arbitration in accordance with the provisions contained in this
- A dispute between the Parties relating to any matter arising out of this Agreement or the interpretation thereof shall be referred to arbitration, by either of the Parties, by way of a Notice to the other party, in which Notice particulars of the dispute are set
- Such arbitration proceedings shall be held at the Payment Office and shall be held in a summary manner, which shall mean that it shall not be necessary to observe or carry out:
- the usual formalities of procedure (e.g. there shall not be any pleadings or discovery);
- the strict rules of evidence;
- immediately and with a view to its being completed within seven (7) calendar days after it is
- The arbitrator for such arbitration proceedings shall:
- if the matter in issue is primarily an accounting matter, be an independent auditor with at least 10 years experience, agreed upon by the Parties and, failing agreement, nominated by the chairperson for the time being of the South African Institute of Chartered Accountants; or
- if the matter in issue is primarily a technical matter, be a suitably qualified person agreed upon by the Parties and, failing agreement, nominated by the chairperson for the time being of the Johannesburg Bar Council, or the Law Society for the Northern Provinces as the case may be; or
- any other matter, be a practising advocate or attorney, admitted as such in accordance with the legislation of the law governing this Agreement, with at least 10 years experience, agreed upon by the Parties and, failing agreement, nominated by the chairperson for the time being
of the Bar Council or the Law Society in the province and city which is closest to the Location, as the case may be; or
- in the event where the Parties are unable to agree whether the nature of a dispute is primarily of an accounting nature, technical nature, or any other nature, then the nature of that dispute shall be decided by a practising advocate or attorney, admitted as such in accordance with the legislation of the law governing this Agreement with at least 10 years experience, agreed upon by the Parties and, failing agreement, nominated by the chairperson for the time being of the Bar Council or the Law Society in the province and city which is closest to the Location, as the case may
- The decision of the arbitrator shall be final and binding on the Parties, who shall summarily carry out that decision and either of the Parties shall be entitled to have the decision made an order of any court with competent
- The “arbitration” clause in this Agreement shall be severable from the rest of this Agreement and therefore shall remain effective between the Parties after this Agreement has been
- No clause in this Agreement which refers to arbitration shall mean or be deemed to mean or interpreted to mean that either of the Parties shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the
Neither of the Parties shall, while this Agreement is in force, and for a period of two (2) years after this Agreement has terminated, make any offers of employment to any staff member of the other Party. In addition neither Party shall entice or try to convince any staff member of the other Party to leave his or her employment for any reason and regardless of where that staff member would become employed. For the purpose of this clause “staff member” shall include but not be limited to permanent employees, parttime employees and independent contractors. In the event that a staff member wishes to become employed at the other Party a placement fee of 12 times the monthly salary of that employee will be payable should an offer be made and accept
20 Force majeure
- Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves:
- that the failure was due to an impediment beyond its control;
- that it could not reasonably be expected to have taken the impediment and its effects upon the party’s ability to perform into account at the time of the conclusion of this Agreement; and
- that it could not reasonably have avoided or overcome the impediment or at least its
- An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive:
- war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
- natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
- explosions, fires, destruction of machines, factories and any kind of installations;
- boycotts, strikes and lockouts of all kinds, goslows, occupation of factories and premises and work stoppages;
- acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of this
- For the purposes of this clause “impediment” does not include lack of authorisations, of licenses, of permits or of approvals necessary for the performance of this Agreement and to be issued by the appropriate public
- Relief from liability for nonperformance by reason of the provisions of this clause shall commence on the date upon which the party seeking relief gives Notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than fifteen (15) days either of the Parties shall be entitled to terminate this
21 Entire agreement and variations
- This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
- No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the
- Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.
22 Assignment, cession and delegation
- The Contractor not shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the
- The Customer shall not be entitled to assign, cede, delegate or transfer any rights, or obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other person or party without the prior written consent of the Contractor, which consent shall not unreasonably be withheld or
No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this Agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right
No waiver on the part of either party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable
26 Governing law
The validity and interpretation of this Agreement will be governed by the laws of the Republic of South Africa.