STANDARD ISSUER TERMS AND CONDITIONS

Infointeg (PTY) Ltd Trading as Intellicred
  1. Introduction
    1. This document contains the standard legal terms and conditions that will govern our relationship with you, including in relation to software that we may licence to you and services that we may provide to you. This document should be read in conjunction with our Commercial Terms for any specific products or services as well as our Privacy Policy located at https://www.Intellicred.com/privacypolicy.aspx .
    2. In this document, the terms “we” or “our” refers to Intellicred (Proprietary) Limited (“Intellicred”). The terms “you” or “your” refers to you, the person making use of any Intellicred products or services, including where you act as an Issuer as contemplated by clause 2.1.21.
    3. Our software and services offering is very diverse and additional legal terms and conditions may apply to some specific software or services. Those additional terms and conditions will form part of your agreement with us where you make use of those software products or services.
    4. We both acknowledge and agree that our relationship shall at all times be governed by the principle of good faith, and we each undertake to exercise our responsibilities towards each other with an appropriate degree of professionalism and consideration.
    5. Nothing contained in this document shall be construed as constituting or establishing any partnership, joint venture or agency relationship between Intellicred and you. Under no circumstances will you have any authority, whether express or implied, to incur any liability, give any warranty, make any representation or assume any obligation whatsoever on behalf of Intellicred, unless we have expressly agreed to that in a document that has been signed by both Intellicred and you.
    6. In the event of any conflict between a provisions of this document and your own standard procurement agreement where accepted by us, then the provisions of this document shall prevail to the extent of that conflict.
    7. We may modify and update our standard legal terms and conditions from time to time. Any and all changes to these terms and conditions will be posted on the website through which we offer our products and services. You will be deemed to have accepted and agreed to be bound by any changes to these terms and conditions where you purchase or use our products or services after those changes have been posted.
  2. INTERPRETATION
    1. In this document, unless the context expressly indicates otherwise, the following words and expressions shall have the meanings given to them below:
      1. “Affiliate” means a person, business or organisation who is an affiliate, member or associate of yours;
      2. “Agreement” means these standard legal terms and conditions, any annexures or schedules hereto, any other documents expressly incorporated by reference, any Intellicred Commercial Terms that are subject to these standard terms and conditions as well as amendments or revisions to any of these documents that are accepted in writing by us;
      3. “acceptance testing” means the carrying out by you of tests stipulated by us (under the supervision of Intellicred if either of us so wishes) for the purposes of testing any software in accordance with the provisions of section 7;
      4. “API” means “Application Programming Interface” being a software programme that specifies how different software systems should interact with each other;
      5. “bespoke intellectual property” means any new intellectual property developed by Intellicred where it is expressly agreed in terms of the Commercial Terms providing for that development that the intellectual property shall be developed exclusively for you and that ownership of all intellectual property rights arising pursuant to that development shall be assigned to you;
      6. “Business Day” means any day excluding a Saturday, Sunday and any official public holiday in the territory in which you are resident;
      7. “Cancellation Fees” means any Cancellation Fees expressly provided for in any Commercial Terms accepted by you, failing which all amounts due and payable to Intellicred by you for products supplied, work performed and services rendered up to and including the date of receipt of any valid written notice of cancellation from you plus the full amount of any monthly charges due in respect of the month in which any such date falls;
      8. “change in control” means the conclusion of any agreement which results in a factual change in control of you / your business after the coming into effect of this Agreement and will include any of the following events:
        1. a change in the beneficial ownership of interests or shares in you / your business resulting in a change to the natural or legal persons, or groups thereof, holding more than 50% of the total interests or shares in you / your business or having the right to exercise more than 50% of the votes at any meeting of the owners;
        2. a merger, acquisition or consolidation to which you / your business is a party in which your owners do not own or retain, directly or indirectly, at least a majority of the beneficial interest or shares of the merged, acquired or consolidated entity; or
        3. the conclusion of an agreement for the sale or disposition by you / your business of all, or substantially all, of your / its assets.
      9. “Client-Device” means any unique computing device excluding a Server;
      10. “Commercial Terms” means the commercial terms, including prices, applicable to specific Intellicred products or services contained in any written document, web page or proposal which shall, at all times, be and remain subject to these standard terms and conditions unless the context expressly indicates otherwise;
      11. “Confidential Information” means information that is confidential or proprietary in nature including without being limited to:-
        1. information relating directly or indirectly to us or either of our businesses, including details of trade secrets, know-how, strategies, ideas, operations, compliance, information, processes, methodologies and practices;
        2. works of authorship or products that are written and prepared by either of us including but not limited to software, data, diagrams, charts, reports, specifications, inventions and working papers of similar materials of whatever nature or on whatever media;
        3. any confidential information exchanged during the negotiations relating to this Agreement and all copies, notes or records thereof (in any form) made or generated by either of us (or our representatives);
        4. the terms of any agreement reached by us or proposed by either of us (whether agreed to or not) in connection with this Agreement; and
        5. any financial, social or personal information relating to a third party which is disclosed by us to you or which you access by means of any of our products or services;
      12. “development services” means all services rendered by Intellicred in the process of developing software for you including but not limited to consulting, drafting, analysis, design, programming and testing
      13. “End-User” means an individual natural person or a unique user profile that is able to access or use any software, which may include, but not be limited to your customers, clients or staff, depending on the software;
      14. “Equipment” means any equipment supplied by us to you including computer hardware, devices and peripherals;
      15. “Force Majeure” will include, but not be limited to, acts of God, fire, flood, civil commotion, acts of war, acts of terrorism, malicious denial of service attacks, acts of government or statutory authority, breakdown or failure of energy supplies, telecommunications services providers, communications lines and network operator’s radio access networks;
      16. “host” means to directly or indirectly provide the right to access a dedicated or shared server under the root access control of Intellicred onto which any software has been installed and that can accept requests from connected devices as part of a client-server architecture and the words “hosted” and “hosting services” will be construed accordingly unless the context clearly indicates otherwise;
      17. “intellectual property” means any type of intangible property or intellectual property right recognised in law, whether or not registered, including but not limited to copyright, patents, proprietary material, trademarks, design, know-how, trade secrets, new proprietary and secret concepts, methods, techniques, processes, adaptations, ideas, technical specifications and testing methods;
      18. “Intellicred” means Infointeg Pty Ltd;
      19. “Intellicred Group” means Intellicred, and any of our subsidiaries or holding companies;
      20. “Intellicred software” means any software licensed by Intellicred to you;
      21. “issue” means to supply Intellicred certificates, seals and other similar outputs of Intellicred software to third parties and “Issuer” shall mean any person authorised by Intellicred to act in such capacity;
      22. “maintenance and support services” means modification of any software following installation or acceptance testing where applicable so as to correct faults detected or arising thereafter, including by the provision of remote support via Intellicred’s designated support channels as more fully described in any support Commercial Terms and the provision of Updates where applicable, but excluding the development of any new functionality and the rectification of any faults arising as a result of any of the events described in paragraph 9.7;
      23. “Nominated Account” means Intellicred’s banking account, the details of which will be provided by us to you in writing and which we will be entitled to change from time to time on written notice to you;
      24. “Operating Environment” means the recommended or minimum operating environment on or through which any software is intended to be accessed or used including any third party software, middleware, hardware, devices and network and connectivity infrastructure that may be specified or stipulated by us from time to time;
      25. “Personal Data” means information identifying and describing an identifiable individual, including, but not limited to information relating to their name, age, gender, reproductive status, marital status, national, ethnic or social origin, sexual orientation, physical or mental health, disability, conscience, belief, culture, language and birth of the individual; educational, criminal or employment history of the individual, financial status or information relating to financial transactions in which they have been involved and any identifying number, address or contact information of the individual;
      26. “Personnel” means any employee, agent, contractor or sub-contractor of Intellicred, or any other person who performs any activity for or on behalf of us;
      27. “Prime Rate” means the publicly quoted prime rate of interest per annum charged from time to time on unsecured loans by the bankers at which Intellicred’s Nominated Account is held;
      28. “Server” means a computing device onto which software has been installed that can accept requests from connected devices as part of a client-server architecture;
      29. “services” means, unless the context indicates otherwise, any and all services for which Intellicred may be responsible to you, including but not limited to research or information verification services, consulting and project management services, training, software customisation or development services, hosting services and maintenance and support services;
      30. “software” means, unless the context indicates otherwise, any software developed, customised, installed, licensed or supplied by Intellicred and may include Intellicred software and bespoke intellectual property developed for you;
      31. “Standard Rates” means Intellicred’s prevailing standard rates for our respective service categories and Personnel;
      32. “Updates” means any patches, enhancements and improvements to any Intellicred software which Intellicred in its sole and unfettered discretion agrees to make available as part of its maintenance and support services and where not licensed by it separately;
      33. “User Documentation” means any written material that describes the features or capabilities of any software including any instructional manuals supplied therewith whether in paper or electronic format; and
      34. “VAT” means value added tax at the rates specified in the Value-Added Tax Act, 89 of 1991 (as amended).
    2. If any definition contains a substantive provision conferring rights or imposing obligations on anyone, effect will be given to it as if it were a substantive provision in the body of this Agreement.
    3. Where any number of days is prescribed in this Agreement, this will be calculated exclusive of the first day and inclusive of the last day unless the last day falls on a Saturday, Sunday or Public Holiday in the territory in which you are resident, in which case the last day will be the next succeeding Business Day and, where any day referred to in this Agreement falls on a day that is not a Business Day, that reference will be taken to mean the first Business Day following any such day.
    4. Expressions defined in this Agreement shall bear the same meanings in any annexures hereto and any Commercial Terms made subject to this Agreement to the extent that they do not themselves contain their own definitions of such expressions.
    5. A reference to a Party includes a Party’s successors in title and permitted assigns.
    6. The rule of construction that an ambiguity in a contract or any provision thereof will be interpreted against the Party responsible for the drafting thereof shall not apply in the interpretation of this Agreement.
    7. The expiration or termination of this Agreement will not affect such of the provisions of this Agreement which by virtue of their nature must continue to have effect after such expiration or termination notwithstanding that the clauses themselves do not expressly provide for this.
    8. This Agreement will be governed, construed and interpreted in accordance with the laws of the state of California, USA, excluding its choice of law rules. If you reside in a country where Californian law is excluded from applying, your country’s laws will apply to any disputes related to these terms.
  3. WARRANTIES
    1. The warranties set forth in this section are exclusive and in lieu of all other warranties pertaining to Intellicred software or services, whether statutory, express or implied, all of which are expressly excluded. Any implied, statutory or common law warranty regarding the performance of Intellicred software which may not be excluded in law shall immediately lapse and be of no force or effect where any such software is modified or altered in any manner by any person other than Intellicred, including whether by attachment, infiltration or plug-in of any other software application or virus.
    2. Intellicred warrants that we own the Intellicred software and/or have sub-licensed the Intellicred software and/or acquired the right to re-license the Intellicred software and/or have obtained valid licenses for all third party software and API’s used in or by the Intellicred software; and that all services rendered by us will be rendered in a professional and workmanlike manner with an appropriate degree of professionalism and skill.
    3. Intellicred licenses and supplies the Intellicred software and services “as is” and does not warrant that the operation thereof will be uninterrupted or error free nor that any particular application it licenses will be compatible with any other software application other than those expressly identified and contemplated in any development specification agreed to by us. No warranty is given nor is to be implied as to the suitability of the Intellicred software or any related service for any particular purpose notwithstanding that any such purpose may be known or ought reasonably to have been known by us.
    4. Both of us warrant that we will comply with all applicable law, including provincial, national or international statutes, regulations, regulatory guidelines, rules, codes, directives, circulars and/or judicial or administrative interpretations to which we may be subject in the performance of any of our obligations in terms of this Agreement.
    5. Intellicred cannot and does not warrant that your organisation will be immune from reputational harm caused by persons who forge your logos or other identifying marks, seals or certificates. Visitors to the websites of your Affiliates should be educated to identify the verifying characteristics of a genuine website certificate or seal that has been issued by you or under your authority.
    6. We also make no warranty that operation of any software developed or supplied by us, including any Intellicred licensed software or bespoke intellectual property, will be completely error-free, nor that any particular website or web application that we licence or develop will be compatible with any particular web browser or other software other than those expressly identified by us in writing or as contemplated in any development specification approved of by us. Except as may be recorded in any Commercial Terms, we expressly exclude any warranty that any Intellicred software or bespoke intellectual property has been developed to manage to a particular minimum number of queries, visits or transactions.
    7. No warranty, condition, undertaking, term, or otherwise is given or to be implied as to the suitability of any services rendered or software developed or supplied by us for you for any particular purpose including compliance with any legal obligation to which you may be subject, or for use under any specific conditions, notwithstanding that any such purpose or conditions may be known or made known to Intellicred and all such warranties, conditions, undertakings and terms are hereby expressly excluded.
    8. Each of us hereby warrants in favour of the other that it knows of no facts or reasons which would preclude it from lawfully concluding this Agreement and the person accepting this Agreement on behalf of you warrants that he or she is duly authorised to do so and has all necessary permissions and consents required to enable him or her to do so.
    9. You acknowledge that Intellicred has delegated the authority to enter into this Agreement and to offer binding Commercial Terms on its behalf to specific persons only and a copy of any relevant Intellicred delegation of authority document will be made available to you on request. You acknowledge that you will be entitled to review any relevant Intellicred delegation of authority document prior to concluding this Agreement or accepting any Commercial Terms and that we will not be precluded (or legally “estopped”) from denying the authority of any person purporting to act on our behalf where in fact that person was not authorised by us to do so.
  4. ACCEPTANCE OF STANDARD TERMS
    Where you accept the terms and conditions of this Agreement, you will be deemed to have accepted the provisions of any Commercial Terms as being subject to the terms and conditions of this Agreement.
  5. Intellicred SOFTWARE LICENSING
    1. Where expressly contemplated and provided for, and against full and up to date payment of all license fees, we will grant you a non-exclusive, non-transferable and non-perpetual license to use the Intellicred software and User Documentation on the terms and conditions set out in this section 5 subject always to the specific provisions of any accepted Commercial Terms, product specification or agreement entered into between us relating to any particular Intellicred software. You acknowledge that you obtain no moral rights or rights of ownership to the Intellicred software or User Documentation whatsoever.
    2. Where use of any Intellicred software is licensed:
      1. on a pay-per-usage and/or per-search basis, then you shall be responsible for all usage and search charges that accrue against your account irrespective of whether all such usage or searching was authorised by you or not; and/or
      2. on a hosted basis, then your right to access and use the Intellicred software shall endure only for as long as you meet all of your payment obligations to us.
      3. on a per Server basis, then you may install the Intellicred software only on those Servers for which a valid Intellicred software Server license has been obtained;
      4. on a Client-Device basis, then you may access and use the Intellicred software only on those Client-Devices for which a valid Client-Device license has been obtained;
      5. on an Enterprise basis, then you may access and use the Intellicred software on an unlimited number of Client-Devices owned or possessed by you; and/or
      6. on an End-User basis, then you may only permit access and use of the Intellicred software by those End-Users for whom a valid End-User license has been obtained.
    3. Intellicred software will be deemed to have been installed if a means for executing, loading or running the Intellicred software has been added to a user profile, device or login script, or if any End-User may directly or indirectly load, execute, run or otherwise access or use the Intellicred software.
    4. You shall access and use the Intellicred software in object code format only and shall not copy, modify, translate or create derivative works based on the Intellicred software or User Documentation, nor dissemble, decompile or reverse engineer the Intellicred software, whether in whole or in part, or otherwise attempt to derive any source code subject to our copyright, nor will you permit, whether directly or indirectly, any third party to do so; nor will you sell, lease, encumber, sub-license, transfer or assign the Intellicred software or User Documentation; nor shall you exploit the Intellicred software or User Documentation for commercial gain under any circumstances whatsoever and shall use it for your own purposes only; nor shall you remove or alter any proprietary notices, logos or labels on or in the Intellicred software or User Documentation.
    5. The Intellicred software component parts may not be separated for use on different devices or hardware items other than as expressly agreed to in writing. Where any Intellicred product, certificate or seal contains a verification or product key, you are strictly prohibited from separating the key from the associated software and from transferring the key to an unauthorised third party for any purpose whatsoever.
    6. Nothing contained in this Agreement will convey any title or proprietary rights to you in or over the Intellicred software or any customisation thereof carried out for you.
    7. You shall notify us immediately in the event of any claim being threatened or made against you alleging that the supply, use or possession of the Intellicred software as provided by us to you, or any part of it, constitutes an infringement or alleged infringement of any third party’s intellectual property rights. In such cases, Intellicred shall have the option, at its own expense, to defend any such action or claim instituted against you provided that where we exercise this option to defend the matter, we shall have sole control over the defence of any such action or claim, which shall include all settlement negotiations and we shall be entitled to use your name in connection with any such proceedings and you will give all reasonable assistance required of you by us in defending any such action or claim.
    8. It is acknowledged and understood by you that certain components of the Intellicred software may be developed using open source Intellicred software and open standard technologies. If the Intellicred software is held to constitute an infringement of any third party’s intellectual property rights or, as part of the settlement negotiations of any action concerning an infringement then, and in that event, Intellicred may at its sole option and expense procure for you the rights to continue using the Intellicred software; modify the Intellicred software so that it is non-infringing, without detracting from its overall performance and functionality; or substitute for the infringing Intellicred software other non-infringing computer programs having the same capability as the Intellicred software. We may, having used all reasonable endeavours to resolve an infringement in the manner set out above, terminate this agreement forthwith by notice in writing to you.
    9. It is understood and acknowledged by you that Intellicred software is not intended to guarantee or ensure compliance with any common law, statutory or regulatory requirement or obligation to which you may be subject. Use of the Intellicred software is entirely at your risk of and you acknowledge that you should seek legal advice before making any business or legal decisions based on any content or procedure detailed in the Intellicred software.
    10. Where you are expressly authorized and permitted as an Issuer to offer to make Intellicred software or services available to your own End-Users, you acknowledge and agree that your End-Users will be required to accept and observe the Intellicred End-User Terms and Conditions that are provided by us to your End-Users at the time that they access our software or services and as updated by us in writing from time to time in our reasonable discretion, and you acknowledge and agree that you shall not be entitled to grant your End-Users any rights or privileges regarding the use of our software or services that conflict with or are any more substantial than the rights contained in the prescribed End-User Terms and Conditions.
  6. PAYMENT AND RATES/CHARGES
    1. Unless specifically recorded to the contrary in any accepted Commercial Terms or payment schedule:
      1. all fees and charges that may fall due for payment by you to us in terms of this Agreement including any charges provided for in any Commercial Terms or a schedule of our prevailing Standard Rates are indicated exclusive of any sales tax or valued added tax, and any taxes or levies due on any such fees and charges (including, but not limited to, any importation or withholding tax) will be paid by you; and
      2. where any particular services to be rendered or offered by us are expressed as a fixed amount or number of hours per month, such amount or number of hours will be capable of being utilised and applied in one calendar month only and any number of hours or any portion thereof not fully utilised and applied in any one month will not result in any credit to you nor be capable of being accumulated, utilised or applied in any other month nor applied to any other category of service.
    2. You undertake to pay all fees and charges arising in terms of this Agreement and, subject to any contrary provision in an agreed Commercial Terms, you will pay any invoice arising from this Agreement on presentation thereof by transferring the invoiced amount to the Intellicred Nominated Account and time of payment will be of the essence.
    3. Many of our software products and services require payment in advance. Some amounts may be payable by you in arrears, including ‘out of bundle’ purchases where you use more than your budgeted subscription for Intellicred products. You acknowledge and agree that we will not ‘cap’ your usage of our products or services notwithstanding any particular product or service volumes associated with a subscription package selected by you. If you fail to pay any invoice in accordance with clause 6.2, we will be entitled to withhold, or immediately suspend, the supply of any products or services, including hosting services and to either suspend or finally terminate your right to access and make use of any Intellicred software and to charge interest on any sums outstanding from the invoice date until the date of payment at a rate of 3% above the Prime Rate, such interest to accrue on a daily basis and to be compounded monthly in arrears.
    4. You acknowledge and agree that, without us in any way derogating from our responsibility to render all services in a professional and workmanlike manner, we shall retain the unfettered discretion to designate appropriate persons to execute and perform any or all of our responsibilities in terms of this Agreement based on our human resource capacity from time to time, the nature of the work to be performed and the degree of skill and experience required. You acknowledge and agree that the actual number of hours of service to be performed by us in terms of any maintenance and support services or in respect of any monthly retainer amount agreed to may vary or be reduced from the anticipated or budgeted number of hours where we reasonably appoint Personnel having a different level of skill and seniority than the Personnel that were previously intended to be utilised to execute and perform its responsibilities in any particular month.
    5. We will endeavour to complete any agreed customisation and development services in accordance with the estimate of hours or charges that may be contained in the applicable Commercial Terms relating to those services. Where reasonable grounds exist, we may notify you of an increase to the charges payable by you in respect of any agreed specification or Commercial Terms provided that, unless your prior written consent is first obtained, the amount of any such increase to the charges for a fixed cost development project may not exceed the amount of the agreed tolerance or contingency budget provided for, where applicable, or where the tolerance or contingency budget is expressed as a percentage or number of hours, an equivalent amount based thereon determined in accordance with our Standard Rates.
    6. You acknowledge and agree that non-delivery or non-performance by any of your customers or any third party other than us shall not give you any right to delay, withhold or set off any payment that falls due to us.
    7. In the event that you wish to cancel any particular services to be rendered or being rendered by us at any stage, you will be required to deliver a written notice of cancellation to us, on receipt of which any agreed Cancellation Fees will immediately become due and payable.
    8. Where the number of End-Users required by you to access and use any software increases at any time from the number of End-Users contemplated and provided for in any accepted support Commercial Terms, then we each acknowledge and agree that we may be required to allocate increased time and resources to the provision of support to such increased number of End-Users and, in that event, we will both agree upon a reasonable and appropriate additional monthly support fee to be charged by us for the provision of support to that increased number of End-Users.
  7. ACCEPTANCE OF SOFTWARE
    1. It is your exclusive responsibility to ensure that the functional and technical requirements and parameters of any software or information system to be customised or developed by us for your benefit are fully documented in any software specification drawn by us or any third party and that any of your particular requirements are comprehensively recorded therein. The consequences of any failure so to do, financial or otherwise, will be for your sole account and you shall be bound to accept our reasonable interpretation and understanding of the requirements.
    2. Once we determine that the customisation or development of any software or module thereof has been completed, we will notify you in writing and provide you with an opportunity to test the software in an operating environment that reasonably replicates the intended installation environment recorded in any technical development specification or that is reasonably determined by us to be appropriate for testing purposes.
    3. You will carry out and complete acceptance testing (and in accordance with any testing plan stipulated by us) following the receipt of a notification in terms of paragraph 7.1 (or a notification in terms of paragraph 7.5 as the case may be) and, within 10 Business Days of receipt of any such notification, shall advise us of the results of acceptance testing in writing.
    4. During acceptance testing, any observed deviation between the specified operation, appearance or performance of the software and the actual operation, appearance or performance thereof shall be categorised as follows:
      1. Category 1: a deviation which severely corrupts the integrity of all data processed by the software or prevents the software from functioning at all or otherwise renders it completely inaccessible to users;
      2. a deviation which renders the software partially inaccessible to users or which causes some of the functionality to be inaccessible or which executes tasks in a manner that deviates from the specified manner and which produces an objectively incorrect result to any such task;
      3. Category 3: a deviation which performs or executes tasks in a manner than deviates from the specified manner but produces a correct result to any such task and does not affect a user’s ability to access the software or any of its functionality; and
      4. Category 4: any other observation which does not constitute a deviation from the required specification, relates only to the appearance, look or feel of the software or is trivial in nature.
    5. Once all category 1 and 2 errors reported during the 10 (ten) day period referred to in paragraph 7.3 have been rectified by us or, in the case of a category 3 error, once a reasonable work-around has been made available to you (whose acceptance thereof shall not be unreasonably refused); we will notify you that you may re-test the software and the provisions of paragraphs 7.1, 7.3 and 7.4 of this Agreement will apply in respect of that re-testing except that the period referred to in paragraph 7.3 will be reduced to 5 Business Days in respect of that further testing.
    6. The software will have passed acceptance testing where no verifiable category 1, 2 or 3 errors are reported by you during the period provided for testing (or re-testing as the case may be) in terms of paragraph 7.3.
    7. For the avoidance of doubt it is recorded that all category 4 errors and any errors reported to us outside the period allotted for the completion of acceptance testing in terms of paragraph 7.3, or any extension thereof granted by us in writing, shall be dealt with and addressed at our discretion and on such terms and conditions as we may determine appropriate including terms relating to the invoicing for any further services on a time and materials basis according to the Intellicred Standard Rates or as part of the maintenance and support services where applicable.
    8. Where we provide maintenance and support services to you, the reporting of any faults will be in accordance with the fault categorisation specified in any accepted maintenance and support services Commercial Terms, failing which in accordance with the fault categorisation system provided for in 7.4.1 to 7.4.4 above.
    9. Unless otherwise agreed in writing, after acceptance of any bespoke intellectual property and payment of all sums due by you, we agree to assign in writing the copyright in the bespoke intellectual property to you with the exclusion of any expressly retained copyright or third party copyright incorporated into the bespoke intellectual property.
  8. INTELLECTUAL PROPERTY
    1. All intellectual property rights of every nature arising in and to Intellicred software, including but not limited to all source code and interface designs, shall remain the sole and exclusive property of Intellicred and its licensors.
    2. Subject to the provisions of 8.3, 8.4 and 8.5 below, all title and risk to any intellectual property including copyright in and to the source code of any bespoke intellectual property and all related documentation and materials will pass to you upon full payment of all amounts due to us in respect thereof.
    3. Where we incorporate the intellectual property of any third party into any bespoke intellectual property or Intellicred software, we will ensure that we have all necessary permissions and consents required to enable us do so. Ownership of any third party intellectual property incorporated into any bespoke intellectual property will not pass to you and we will ensure that you will be licensed to make use of that third party intellectual property on terms and conditions to be made available to you by us. You agree to indemnify us fully in respect of any failure on your part to comply with the terms of this Agreement, or to abide by the terms of any specific licences granted to you in respect of any such third party intellectual property.
    4. Except as set out in this section, you acknowledge and agree that we will exclusively own and retain all rights in the know-how, methodologies, tools and processes that we use in the normal course of our business or that have been designed or created for the purposes of carrying out the services.
    5. You acknowledge that we have development frameworks, templates and software libraries (“the Intellicred Library Materials”) and other pre-existing intellectual property which we may use as a basis for the creation and development of bespoke intellectual property for you. For the avoidance of doubt, no intellectual property rights in the Intellicred Library Materials or any other of Intellicred’s pre-existing intellectual property rights will transfer to you.
    6. You agree to immediately bring to our attention any infringement or suspected infringement by any person of any of our intellectual property rights or third party copyright of which you are or become aware and you will at our written request and expense take such action or assist us in taking such action as we may deem appropriate to protect these intellectual property rights.
    7. You agree that you shall be liable for, and shall indemnify us fully against all third party claims for, damages, liabilities, costs and expenses which we may incur or sustain including the costs of defending any suit arising from the use of any material, data or content provided by, or on behalf of you, to us or hosted by you within any Intellicred application server, or any act or omission by you, your employees or agents on the attorney and own client scale.
    8. You grant, license and consent to us using without charge any of your intellectual property rights to the extent necessary for the purposes of this Agreement and performance of the services by us.
    9. Where we grant you a licence to access or use any Intellicred software, such licence to access or use any Intellicred software will at all times be and remain subject to the applicable terms and conditions of license contained in section 5 above.
  9. Intellicred RESPONSIBILITIES
    1. In addition to any other obligations contained elsewhere in this Agreement, Intellicred undertakes in favour of you that we will:
      1. render the services in a professional and workmanlike manner and using appropriately skilled and experienced Personnel as required by the nature of the services and at all times have and maintain sufficiently skilled and experienced staff to render the services and fill any vacancies that may arise within a reasonable period;
      2. in the event that we engage any third party to perform any duty or obligation conferred upon it in terms of this Agreement, ensure that third party will be sufficiently qualified and shall possess the required expertise, experience and knowledge to fulfill the relevant duties and obligations in a professional and workmanlike manner; and
      3. make all reasonable efforts to ensure that the services are carried out in a timely manner.
    2. Without derogating from the above, you acknowledge and agree that Intellicred is not a professional auditing, forensic, private investigating or fraud examining service. Where we provide information verification services to you, we will do so based upon information supplied by third parties or websites that we reasonably determine to be credible.
    3. You furthermore acknowledge and agree that where Intellicred software is used to display or certify any particular information or status related to your Affiliates, we cannot and do not guarantee that the most recent information or status relating to any particular Affiliate will be correctly displayed within the Intellicred software or any certificate or seal generated by the software. The correct display of information or status relating to Affiliates is at all times dependent on you updating the relevant systems with the most up to date information. We cannot and do not guarantee that we will receive real-time or “live” information or status updates from any third parties and you acknowledge and agree that we shall not be responsible for any delays, failures, inaccuracies, losses, deletion or destruction of any data resulting from your actions or omissions or the actions or omissions of third parties.
    4. Unless expressly indicated to the contrary, where Intellicred provides any cost and time estimates to you in respect of any aspect of any services to be rendered on a time and materials basis, including in respect of any deliverable required to be produced by Intellicred, you acknowledge and agree that such estimates are provided to assist with planning and resource allocation and are based on anticipated resource utilisation and working days comprising of 8 hours. Intellicred will use all reasonable efforts to meet such estimates however the actual charges for any such services or aspects thereof may differ based on the actual time and materials utilised in respect thereof.
    5. In the event that you do not promptly carry out or perform reviews or promptly sign-off or approve stages, items, specifications, deliverables and the like as reasonably required in terms of any project or agreed project or services plan or does any other thing or omits to do anything that results in project delays or service delivery interruptions or that requires increased allocation of any Intellicred resources including Personnel, then Intellicred will have the right and discretion to continue charging for the allocation and commitment of its resources to any such project or service for the duration of any such delay or, alternatively, to remove or withhold our resources, in either which event Intellicred will, notwithstanding the provisions of paragraph 9.1, endeavor, but not be obliged, to meet the project or services resource requirements at a later date.
    6. In addition to and notwithstanding any other right or obligation arising under this Agreement, Intellicred will take all appropriate technical and organisational security measures to ensure that where any Personal Data is provided to it in terms of this Agreement for processing by Intellicred Personnel it will be protected against loss, destruction and damage, and against unauthorised or accidental access, processing, erasure, transfer, use, modification, disclosure or other misuse.
    7. In respect of Personal Data we will:
      1. comply with any lawful request or direction made or given by any of your authorised representatives;
      2. use Personal Data only for the purposes of fulfilling our obligations under this Agreement and to comply with your lawful instructions from time to time in connection with such Personal Data, and will not retain Personal Data for any longer than is necessary for these purposes; and
      3. not disclose Personal Data without your written authority (except for the purposes of fulfilling our obligations under this Agreement), and immediately notify you if we become aware that a disclosure of Personal Data may be required by law.
    8. Unless expressly provided for to the contrary in any accepted Commercial Terms, you consent and agree to us, and our authorised service providers, caching data and other information, including Personal Data, in the memory of any software system we make available to you and/or your authorised End-Users for up to 30 days.
    9. These terms and conditions should be read in conjunction with our prevailing Privacy Policy and as updated from time to time in our sole discretion. Without derogating from the above, you recognise and agree that when you access or use any Intellicred software or system, we may we may collect technical and other user data, including the type and version of operating system and browser used, Internet protocol addresses, the website pages visited and the time spent on the Intellicred website. This data may be used, for example, to identify software compatibility problems, or it may be analyzed to improve our website design. We may also log your location in order to identify your time zone for time-sensitive tasks like the sending of daily emails. We may gather additional data using cookie technology. “Cookies” are files that are stored by your browser on your computer’s hard drive. Cookies may be used, for example, to limit the amount of times you see a particular advert or to help remember your personal settings and preferences. If you block cookies from being stored on your computer, the functionality of the software may be negatively affected. Intellicred, or third party service providers acting on our behalf, may use the technical and other user data we collect to analyze and improve our website design, the functionality, speed or responsiveness of the software and to help us measure the performance of our online advertising campaigns.
    10. You agree that we may process and disclose anonymous or aggregated Personal Data, including in relation to your End-Users and that, where any Intellicred software or bespoke intellectual property acts as an API or interacts with another API, including third party API’s, we may pass and retrieve data, including Personal Data, between the different software systems and third parties that interact via those APIs.
    11. Where information about you or your End-Users that you have authorised a social media platform (like Facebook, Twitter, Google+ and others) to share with us is governed by the privacy policies of that platform, we shall only process and retain such information as we are permitted to in terms of those policies or in accordance with the express permission that you may give us.
    12. Where we make use of third party service providers (like Tineye) to help us provide services to you, including for the purposes of retrieving or delivering information, records, notifications or other messages to you or your End-Users or for hosting or providing any component of our services to you, we require such third parties to maintain the confidentiality of any Confidential Information we provide to them for these purposes. Some of these third parties may be situated outside of your country and you consent to your Confidential Information and that of your End-Users being transferred cross-border so that Intellicred can provide or enable the requested services to you. In this regard, we engage only with reputed third party service providers who have security and privacy policies and procedures providing at least the same level of protection as we do ourselves.
    13. Unless expressly provided for to the contrary in any accepted Commercial Terms, you agree that where we are responsible for the maintenance of any software application not located under our direct physical control, you will provide us with root access to the servers hosting that application in order to enable us to meet our obligations to you. You also agree that any maintenance and support services provided by us will exclude the repair of any fault, error or malfunction resulting from:
      1. your breach of the provisions of the Agreement;
      2. any Force Majeure event;
      3. misuse or incorrect handling or operation of any software by you, your servants, agents and/or sub-contractors;
      4. electrical power failures including fluctuations in power or humidity control;
      5. use of any software other than in the ordinary course of your activities;
      6. relocation of any hardware on which the Software has been installed without the written agreement of Intellicred;
      7. operator error on your part or any person permitted by yout to access or use any software;
      8. the acts or omissions of any person not being a duly authorised employee, sub-contractor or agent of Intellicred or any third party not authorised by us to act in terms of this Agreement;
      9. faults arising in any hardware or software supplied to or obtained by you from any person or entity other than Intellicred;
      10. the actions, omissions or service interruptions of any utilities provider or third party service provider, including a telecommunications service;
      11. your incorporation or attachment of any program, plug-in or device to any software;
      12. changes to any software made by you or any person not authorised to do so in writing by us;
      13. changes implemented or made by you or any person authorised by you to any certificates, seals or other outputs of any Intellicred software, including but not limited to changes that occur as a result of any revocation, suspension or cancellation of any such seal, certificate or other output implemented by you, changes to logo’s, lists, administrative data, including seal, certification and revocation lists, all of which such changes you acknowledge cannot be reversed and may require complete seal, certificate or other software output re-issue;
      14. failure to provide a suitable Operating Environment for any software or accessing or using any software other than on the specified or recommended Operating Environment for same;
      15. the unauthorised use of any of your user ID/s or password/s;
      16. faults arising in any products or materials not directly or indirectly supplied by Intellicred;
      17. any failure by you to backup data used in, produced by or otherwise associated any software;
      18. use of any software for any other purpose other than that for which it was designed; or
      19. any other exclusions expressly outlined elsewhere in this Agreement or in any Commercial Terms.
    14. Repair of any faults arising as a result of any of the circumstances provided for in of any of the sub-paragraphs of 9.7 may be undertaken by Intellicred at our discretion and may be subject to additional time and material charges in accordance with our prevailing Standard Rates.
  10. CHANGE CONTROL
    1. If at any time during the course of this Agreement you wish to change, including by reducing, expanding or modifying, the scope or requirements of the specifications of any software to be developed by Intellicred or any services to be rendered or provided by us, you will supply us with the full details of all such requested changes in writing.
    2. Should the scope of any services be required to change for any reason, exception reporting may be carried out by Intellicred and may result in formal change control and exception planning.
    3. We will exercise our reasonable endeavours to accommodate your requests or any requirements for changes or modifications but will not be obliged under any circumstances to accept or concede to any such request or requirement.
    4. Where changes or modifications to the services are agreed to, including any changes to the specifications of any software to be developed by Intellicred, an amended service description or specification document and revised testing plan will be produced at your expense.
    5. Where the requested changes or modifications are accepted by Intellicred, Intellicred may, at our option, either quote you a fixed price for implementing the requested changes or modifications or estimate the cost on a time and materials basis in accordance with our Standard Rates.
  11. YOUR RESPONSIBILITIES & UNDERTAKINGS
    1. In addition to any other obligations elsewhere contained in this Agreement, you agree that you will:-
      1. make available suitably qualified and experienced personnel to fulfill your obligations under this Agreement;
      2. co-operate fully with Intellicred so as to enable us to exercise our rights and fulfill our obligations in terms of this Agreement;
      3. nominate, at our request, an authorised representative to liaise directly with us in respect of any particular matter where required;
      4. provide all required or relevant information or data to us in a timely manner or in accordance with any agreed timetable where applicable and in a complete and accurate form, and implement and maintain appropriate back-up systems and procedures for all of your own information and data;
      5. direct any person in possession of relevant information controlled by you and required by us to deliver same to us without delay;
      6. ensure that we are provided with timely responses to requests for information or assistance;
      7. provide us with access to your premises and computer systems whenever reasonably required, including access to reasonable office facilities where we require same for use by our staff;
      8. ensure that you are lawfully permitted to provide us with access to any property, including any intellectual property, materials, information or data which you make available to us in terms of this Agreement;
      9. refrain from acting, or from omitting to act, in any way where such action or omission by you would result in us breaching the terms and conditions of any third party suppliers annexed to this Agreement and with whom we engage in order to supply any products or services to you, including but not limited in relation to the receipt, disclosure or use of personal or financial information, irrespective of whether those terms and conditions have been separately signed or accepted in writing by you;
      10. take all reasonable precautions to ensure that your premises complies with all relevant health and safety legislation for so long as Intellicred Personnel members are on site and take steps to ensure that your own staff, contractors and visitors abide by the site safety and security rules; and
      11. pay all amounts that may fall due to Intellicred free of any deduction, set off, exchange or compromise.
    2. Where any software to be developed by Intellicred for you is intended to replace any alternative systems or processes used by you or your own customers for any purpose, you will ensure that such alternative systems or processes are retained and kept available until all of the functionality that is required to be provided by the software has passed final acceptance testing.
    3. At all times, Intellicred Personnel members will remain subject to the conditions of employment, and management of Intellicred whether their activities are carried out at your premises or not.
    4. We each agree that, for a period of one year after our completion of any particular services to you, neither of us will hire or engage, nor offer to hire or engage, directly or indirectly, whether as an employee, consultant, independent contractor or in any other capacity, any of the other’s employees or Personnel members who were directly involved in the receipt or rendering of any such services. If any such employee / Personnel member enters into any contract of employment or any other agreement of engagement, service or association with the other one of us within the aforementioned period without the original employing party’s prior and express written consent thereto, then the new employee agrees to pay to the original employing party on commencement of any such engagement a penalty amount equal to the gross amount that the original employee / Personnel member would receive if employed on a full time basis for one year by the original employing party at their last remuneration level. Both of us agree that the restraint and non-solicitation provisions contained herein are reasonable as to the duration and subject matter thereof.
    5. You agree to indemnify and hold Intellicred harmless in respect of all claims, penalties, liabilities, costs or expenses that are made or imposed against Intellicred by any party as a result of any unlawful or negligent act or omission by you, or any breach by you of the provisions of this Agreement including any action or omission by you which results in us being in breach of the terms and conditions of our third party supplier agreements as contemplated and provided for in terms of clause 11.1.9.
  12. LIABILITY
    1. Under no circumstances shall our cumulative and aggregate liability to you at any time exceed in respect of direct losses, no matter how many claims are made, whatever the basis of such claims, whether in respect of any software, including Intellicred software and bespoke intellectual property, or any services, and whether such claims arise in contract, in delict or otherwise, an amount equal to the cumulative amount of fees and charges which you have paid to us in respect of that software or those services at the time the circumstances giving rise to any such claims arise.
    2. You agree that where visitors to any website fail to properly identify the verifying characteristics of a genuine website certificate or seal that has been issued by you or under your authority using Intellicred software or services, we shall have no liability to you or any other person for any loss or harm suffered as a consequence, including but not limited to as a result of payments being made to any person other than the intended recipient.
    3. Under no circumstances shall we be liable for any indirect, incidental or consequential damages or reputational harm whatsoever (including but not limited to loss of profits, business, revenue, data or goodwill) and howsoever arising, including whether in respect of any software or any services, suffered by you or any third party and arising in any way in connection with this Agreement, nor for any of your liability to any third party, including any circumstances or consequences arising by virtue of our exercising any of our rights in accordance with the provisions of paragraph 6.3. We shall furthermore have no liability for any failure to meet any of our obligations in terms of this Agreement which result directly or indirectly from the failure or interruption of software or services provided by third parties.
    4. Without in any way derogating from the provisions of paragraph
    5. we shall have no liability to you or any third party for any loss or harm suffered as a result of any of the events or circumstances described in paragraphs 9.13.1 to 9.13.18.
    6. You alone are responsible for virus-checking any programs, macros, data files or other material accessed through the Internet or received by you from us. We shall have no liability for any viruses uploaded to any software or to any of your information systems by third parties or by your employees or agents.
    7. You agree that you are in a better position than us to foresee and estimate any loss you may suffer in connection with this Agreement or any of our services and that our fees and charges have been agreed to after taking full account of the limitations and exclusions contained in this section.
  13. CESSION, ASSIGNMENT AND SUBCONTRACTING
    1. Save for rights arising in intellectual property expressly assigned by us to you where all amounts due to us in respect thereof have been paid in full, all of your rights and obligations under this Agreement are personal to you and may not be ceded, assigned, transferred, charged, sub-licensed, sub-contracted or otherwise delegated, transferred or disposed of in whole or in part without our prior written consent.
    2. We reserve the right to sub-contract any of the services that we are contracted to perform to any member of the Intellicred Group provided we will at all times be responsible to you for fulfilment of all of our obligations in terms hereof.
    3. Except as provided for above, neither of us shall assign, transfer or make over any of our obligations in terms of this Agreement without the written consent of the other party, which consent will not be unreasonably withheld.
  14. CONFIDENTIALITY
    1. Subject to paragraphs 14.2 and 14.3, and save as otherwise expressly provided for in this Agreement, neither of us will during the operation of this Agreement nor thereafter disclose to any person or use for any purpose any Confidential Information made available to us (the “Recipient Party”) by the other (the “Disclosing Party”) other than where it:
      1. discloses such Confidential Information to such of its employees or professional advisers (which may include lawyers, accountants and auditors) who have a need to know such Confidential Information for the proper performance of their duties, provided that the Recipient Party has given prior written instructions to its employees and/or professional advisors as to the restrictions on use and disclosure contained in this Agreement; or
      2. uses such Confidential Information in the proper exercise of its rights and the performance of its obligations under this Agreement.
    2. The Recipient Party will use its reasonable endeavours to minimise the risk of unauthorised disclosure or use of the Confidential Information and undertakes to take proper care and all reasonable measures to protect the confidentiality of the Confidential Information using a standard of care which is no less than that standard of care which it applies for the protection of its own Confidential Information.
    3. Subject to clause 14.6, the restrictions on use and disclosure of Confidential Information under clause 14.1 will not apply to any Confidential Information which the Recipient Party can prove:-
      1. was already known to it prior to its receipt thereof from the Disclosing Party; or
      2. was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the Disclosing Party; or
      3. was in the public domain at the time of receipt by the Recipient Party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause or any obligations of confidence owed by the Recipient Party to the Disclosing Party; or
      4. is required to be disclosed by law, regulation, order or regulators.
    4. Confidential Information will be subject to the obligations of confidence irrespective of whether that Confidential Information is communicated orally or in writing by the Disclosing Party or its authorised representatives or obtained through observations made by representatives of the Recipient Party.
    5. Confidential Information will not be exempted under clause 14.3 from restriction under this Agreement by reason only that:
      1. some or all of its features (but not the combination and/or principle thereof) are or become public knowledge or are in the possession of or become available to the Recipient Party as mentioned in clause 14.3; or
      2. such information could be derived or obtained from information which is or becomes public knowledge or is in the possession of or becomes available to the Recipient Party as mentioned in clause 14.3 if to obtain or derive such information would require substantial skill, labour or expense.
    6. For the avoidance of doubt, no provision of this Agreement should be construed in such a way that the Disclosing Party is deemed to have granted its consent to the Recipient Party to disclose the whole or any part of the Confidential Information in the event that:
      1. the Recipient Party receives a request for the whole or any part of the Confidential Information in terms of the provisions of the Promotion of Access to Information Act, 2 of 2000, as amended (“the PAIA Act”); or
      2. the Disclosing Party has previously disclosed any of its Confidential Information to a third party in terms of the provisions of the PAIA Act or any other law or court order.
    7. Subject to the provisions of clause 14.8, and subject to any other rights the Disclosing Party may have in law, the Parties agree that the disclosure of Confidential Information by the Recipient Party, otherwise than in accordance with the provisions of this Agreement, will entitle the Disclosing Party to institute action for breach of confidence against the Recipient Party as envisaged by section 65 of the PAIA Act.
    8. We each acknowledge that the provisions of clause 14.7 will not be construed in such a manner as to exclude the applicability of any other ground of refusal contained in the PAIA Act which may be applicable in the event that the Recipient Party receives a request for the whole or any part of the Confidential Information in terms of the PAIA Act.
    9. You acknowledge that where any of our products or services, including third party products or services that we make available to you, enable you to access or interrogate any Confidential Information or data pertaining to a third party, you will refrain from doing so for any purpose unless you have the express written consent of that third party for that purpose recorded and stored in a manner that shall be accessible by us for subsequent reference, or that you are expressly entitled to do so without such consent in terms of any applicable legislation. Without derogating from the aforegoing, you further acknowledge where any of our products or services, including third party products or services that we make available to you, enable you to access or interrogate any registry data or any data held by any association which regulates the provision of information, you will refrain from doing so unless you either
      (i) are a member of the registry and/or relevant association; or
      (ii) are acting as an agent of member and requesting the data on behalf of that specific member or
      (iii) are requesting the data on behalf of and with the consent of the person to which the data relates and, in all such cases, you acknowledge and agree that you shall cease accessing or using such data where you cease to be a member of the registry or association, cease to act as an agent of a member or where the person withdraws his or her consent.
    10. In addition to and notwithstanding any other right or obligation arising under this Agreement, you will take all appropriate technical and organisational security measures to ensure that where any Personal Information is accessed by you by means of any of our products and services, it will be protected against unauthorised or accidental access, processing, erasure, transfer, use, modification, disclosure or other misuse.
    11. This section dealing with confidentiality will survive termination of this Agreement.
  15. TERMINATION
    1. In the event that either of us commits a breach of any of the material terms and conditions of this Agreement and, in the case of a remediable breach, remains in default for a period of 10 Business Days after receipt of a written notice from the other party calling for that breach to be remedied, then the other party shall be entitled, without prejudice to any other rights it may have hereunder or in law, to claim specific performance or to cancel and terminate this Agreement.
    2. Either one of us may immediately terminate this Agreement at any time by giving the other party written notice of such termination:
      1. if a final and unappealable judgment against the other party remains unsatisfied for a period of 15 Business Days or more after it comes, or ought reasonably to have come, to the attention of that other party;
      2. the other party commits any act of insolvency as contained in Section 8 of the Insolvency Act 24 of 1936, as amended;
      3. the other party makes any arrangement or composition with its creditors generally or ceases or threatens to cease trading; or
      4. the other party is, other than for the purposes or reconstruction or amalgamation, placed under voluntary or compulsory liquidation or under judicial management or under the equivalent of the foregoing.
    3. We shall be entitled to immediately terminate the provision of any or all services to you in the event that:
      1. you cease trading;
      2. there is a change in control of you / your business which results or shall result in control of you / your business falling under any person whom we reasonably regard as being its competitor or as being likely to negatively affect our reputation or goodwill; or
      3. you, your contractors and staff or any End-User make use of any Intellicred software, systems or facilities for any purpose which violates the terms and conditions of this Agreement or which we reasonably determine to be detrimental to our good name and reputation.
    4. Any termination pursuant to the provisions of 15.3 will be without prejudice to any claim that either party may have against the other, including for damages, in respect of any breach or any prior breach of the terms and conditions of this Agreement.
    5. Except as provided for in paragraphs 15.1 to 15.3 above, under no other circumstances shall the supply of any products and services by Intellicred be capable of being terminated on less than 60 days’ written notice to us, subject always to any expressly agreed or minimum duration (if any) of any particular services or software licences (including any Intellicred software licences) to be supplied by us to you and subject further to any early Cancellation Fees provided for in any written Commercial Terms accepted by you. Prepaid purchases of any products and services will not be refunded to you irrespective of whether you made full, partial or no use of those products or services prior to terminating.
  16. FORCE MAJEURE
    1. If either of us is prevented or restricted directly or indirectly from carrying out all or any of our obligations under this Agreement, including any service to be rendered by us, by reason of any Force Majeure then that party shall be relieved of such obligations during the period that the Force Majeure and its consequences continue but only to the extent that it is so prevented and in which circumstances it shall not be liable for any delay or failure in the performance of such obligations or for any losses or damages whether general, special or consequential which the other party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given by the affected party, where reasonably possible, of its inability to perform.
    2. Any party invoking Force Majeure will upon the termination or cessation of the event giving rise thereto immediately give written notice thereof to the other party. Should that Force Majeure event continue for a period of more than 30 days then either party will be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.
  17. DISPUTE RESOLUTION
    1. 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 or the relevant services where applicable, within 1 week of any such dispute arising, or such extended period of time as the parties may allow in writing, then that dispute shall be submitted to the most senior executives of the parties who will endeavour to resolve this dispute within 5 Business Days of it having been referred to them.
    2. Should a dispute not be resolved in the aforesaid manner, then the parties hereby expressly agree to the non-exclusive jurisdiction of the federal or state courts of Santa Clara County, California, USA. Where the courts in your country will not permit you to consent to the jurisdiction and venue of the courts in Santa Clara County, California, USA, then your local jurisdiction and venue will apply to such disputes related to these terms.
    3. Notwithstanding the provisions of 17.1 and 17.2, neither party will be prohibited from making application to any Court of competent jurisdiction for urgent injunctive relief at any time.
  18. NOTICES
    1. Any notice given in terms of this Agreement shall be in writing and shall
      1. if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
      2. if posted by prepaid registered post be deemed to have been received by the addressee on the 8th day following the date of such posting; or
      3. if sent by facsimile machine or electronic mail, be deemed, until the contrary is proved by the addressee, to have been received within 1 hour of transmission where transmitted during the hours of 08h00 – 16h00 of any business day or at noon on the following business day where transmitted outside of such business hours.
    2. Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of us from the other including by way of email or facsimile transmission shall be adequate written notice or communication to such party.
  19. ENTIRE AGREEMENT
    1. The terms and conditions contained in this Agreement constitute all of the standard terms and conditions agreed to between us and no other agreements, representations or warranties are binding on us other than as may be expressly provided for herein.
    2. You expressly warrant that you have not been induced to enter into this Agreement by any prior representations, whether oral or in writing, except as expressly contained in this Agreement and you hereby waive any claim for breach of any representations which are not contained herein.
  20. WAIVER AND RELAXATION
    1. No latitude, extension of time or other indulgence which may be given or allowed by either one of us to the other in respect of the performance of any obligation hereunder or the enforcement of any right arising from this Agreement and no single or partial exercise of any right by either one of us will under any circumstances be construed to be an implied consent by such party or operate as a waiver or a novation of, or otherwise affect any of that party’s rights in terms of or arising from this Agreement or prevent such party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
    2. The waiver by either one of us of a delay, breach or default in any of the provisions of this Agreement, or disagreement by the other party, will not be construed as a waiver of any succeeding delay, breach, default or provision of this Agreement. No failure of a party to exercise any right to it hereunder, or to insist upon compliance by the other party of any obligation hereunder, or comply with any provision of this Agreement, shall constitute a waiver of the parties’ rights to demand exact compliance with the terms hereof.
  21. SEVERABILITY
    In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, those terms will be severable from the remaining terms, which will continue to be valid and enforceable.
  22. VARIATION
    No addition to or variation, amendment, cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination will be of any force or effect unless reduced to writing and signed by each of our duly authorised representatives.
  23. ELECTRONIC ACCEPTANCE
    This Agreement may be entered into by electronic means, including by the acceptance of the terms of this Agreement where hyperlinked into other documents.