ERS - Terms & Conditions

DEFINITIONS
In this Agreement unless the context indicates otherwise:

1.1. "Administrator Passwords" means the passwords provided by ERS to the Customer to enable the Customer to gain entry to ERS Websites.

1.2. "Agreement" means this agreement, and all anexure/s hereto.

1.3. "Alert Services" means any SMS and/or email alert messages generated from the Software.

1.4. "Annexures A" means Invoice for service and equipment accepted by the Client.

1.5. "CPA" means the Consumer Protection Act 68 of 2008 and any amendments thereto.
"*" means that this clause is only applicable if the CPA is applicable to this Agreement;

1.6. "Confidential Information" means, in relation to the obligations of either party, all information (whether in written, oral or electronic format and whether disclosed directly or indirectly) designated as such by the other party together with such other information which relates to the business, affairs, clients, products, programs, developments, operations, processes, trade secrets, design rights, know-how and personnel of that other Party which might reasonably be regarded as the confidential information of that other Party;

1.7. "Date of Purchase" means the date on which the ERS Invoice was generated.

1.8. "Date of Installation" means the date when the Equipment is fully installed by ERS at the Premises nominated by the Customer in writing.

1.9. "Date of Training" Is the date/s as agreed to between ERS and the Client when ERS will provide training to the Client.

1.10. "Direct Marketing" means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of promoting or offering to supply, in the ordinary course of business, any goods or services to the person;

1.11. "Duration of this Agreement" this Agreement commenced on the Date of Purchase and shall endure for a fixed period of ________ Months and shall terminate in accordance with Annexure "A".

1.12. "ERS Websites" is any of the website/s which ERS grants the Customer access to;

1.13. "Equipment" means the ERS Bio Time & Attendance and/or Access Control Devices, purchased from ERS by the Client as is listed in Annecure "A" of this Agreement.

1.14. "Excusable Delay" means delay or non-performance by either Party of any of its obligations in terms of this Agreement, where such delay is as the result of any cause or matter beyond the control of any of the Parties.

1.15. "Governing Law" means the laws of the Republic of South Africa;

1.16. "Maintenance Period" means the period for which ERS has an obligation to maintain and/or service the Equipment, being the period commencing on the Date of Purchase and shall endure for the Duration of this Agreement from the Date of Purchase on the express condition that the Client is fully up to date with any payments in terms of this Agreement.

1.17. "Maintenance Engineer" means ERS maintenance engineer, or any approved 3rd party maintenance engineer appointed by ERS

1.18. "Parties" means ERS and the Client collectively.

1.19. "Premises" means the site/s elected by the client where the equipment is to be installed by ERS.

1.20. "Parts" means all modules, appliances, components, parts instrument, appurtenances, accessories and other items of whatever nature as may be incorporated or installed or attached to the Equipment and includes any substitute or replacement Parts that may be installed on the Equipment by the Maintenance Engineer.

1.21. "Personal Information" means information relating to an identifiable, living natural person or an identifiable existing juristic person.

1.22. "POPI" means the Protection of Personal Information Act 4 of 2013 and any amendments thereto;
"**" means that this clause is only applicable to POPI.

1.23. "Software" means the Software as listed in Annexure "A" of this Agreement.

1.24. "Swap Out Warranty" means the exchange of the Equipment by ERS, with new Equipment of the same type and model, or used Equipment of the same type and model and of similar age and condition as to the Equipment being swapped taking into consideration the Swap Out Warranty Option the Client has chosen; and (The swap out or exchange of the Equipment or any Parts are at the sole discretion of ERS, if the Equipment becomes inoperable due to damage or technical failure which could not be attributable to the Client.)

1.25. "Services" means the servicing, maintenance, repair, replacement and upgrading of the Equipment and the hosting, maintenance and upgrading of ERS websites;

1.26. "CPI" means the Consumer Price Index as specified by STATS SA on the website http://www.statssa.gov.za

INTERPRETATION

If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it appears only in the Definitions clause, effect shall be given to it as if it was a substantive provision of this Agreement;
The headings of the clauses in this agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this agreement nor any clause hereof. Unless the context clearly indicates a contrary intention, words importing:
1. any one gender shall include the other two genders;
2. the singular shall include the plural and vice versa; and
3. natural persons shall include corporations and vice versa;
any reference in this agreement to “date of signature hereof” shall be read as meaning a reference to the date of last signature of this agreement;
any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;
when any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday;
where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
reference to day/s, month’s or year/s shall be construed as Gregorian calendar day/s, month/s or years;
the use of any expression in this agreement covering a process available under South African law such as a winding-up (without limitation eiusdem gener is) shall, if any of the parties to this agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
the contra proferentem rule shall not apply and accordingly none of the provisions hereof shall be construed against or interpreted to the disadvantage of the party responsible for the drafting or preparation of such provision;
the eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word “including” and specific examples, such examples shall not be construed to limit the ambit of the provision concerned;
where any term is defined within the context of any particular clause in this agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement, notwithstanding that the term has not been defined in this interpretation clause;
the expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this; and
any reference in this agreement to a party shall, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee.

WARRANTIES

ERS warrants to the Customer that:
1. The Swap Out Warranty of any of the Equipment is valid for the period which the Client has chosen as per Annexure "A" of this Agreement.
2. If ERS decides to enforce the Swap Out Warranty of any of the Equipment and/or Parts or any portion thereof, then the manufacturer warranty, and ERS’s service obligations attaching to the Equipment and/or Parts shall automatically transfer from the Equipment installed to the Swapped Out Equipment and/or Parts, as if the Equipment and/or Parts had not been swapped;
3. The Equipment installed by ERS is in a “new manufacturer condition” with full manufacturer warranty and is suitable for the purposes for which the Client requires it.
4. Should the Client, after installation of the Equipment, notice any defect with the Equipment, then the Client shall notify ERS in writing of such defect within 30 (thirty) days of the Date of the Installation, whereupon ERS shall either Swap Out the defective Equipment and/or Parts and/or repair the defective Equipment and/or Parts, within 5 (five) business days after receiving written notification from the Client. After remedy by ERS of any defects and ERS demonstrating the correct function of the Equipment, the Client shall be deemed to have accepted the Equipment as in good order and in repair after signing the ERS Job Card.
5. It will have back up support for the Equipment.
6. It shall only utilize replacement Parts on the Equipment that are in strict accordance with the manufacturer’s specifications.
7. All personnel used by ERS will be ERS’s employees, contractors, sub-contractors, or agents, and the entire management, direction, and control of all such persons will be the responsibility of ERS.
8. * ERS is responsible to deliver the Equipment or perform the Services on the agreed date and at the agreed time, if any, or otherwise within a reasonable time (normally 10 work days, depending on stock availability and shipping) after conclusion of this Agreement. The Equipment to be delivered and installed remains ERS’s risk until the Client has accepted delivery of the Equipment.*
9. * The Client may return the Equipment to ERS and receive a refund of any consideration paid for the Equipment, if:
  1. the Client did not have an opportunity to examine the Equipment before delivery; on grounds which are reasonable in the circumstances.
  2. or the Client has rejected the delivery of the Equipment,
  3. or the Equipment has failed in the reasonable opinion of the Client to satisfy a particular purpose which was communicated to ERS by the Client, and ERS cannot prove otherwise*
10. * Subject to 3.1.9 Upon return of any of the Equipment, ERS will refund to the Client the price paid for the Equipment, less any amount that may be charged for the use of the Equipment during the time same Equipment was in the Client’s possession and ERS may charge the Client for necessary restoration costs to render the Equipment fit for re-stocking.*
11. * The Equipment is reasonably suitable for the purposes generally intended, is of good quality, in good working order and free of any defects; is useable for a reasonable period of time, having regard to the use to which such Equipment would normally be put in compliance with the applicable standards set under the Standards Act 29 of 1993.*
12. * If ERS repairs any Equipment and within 3 (three) months after such repair, and the failure, defect or unsafe feature has not been remedied then ERS will in its sole discretion be entitled, to replace the faulty Equipment or refund the Client the price paid for the Equipment.*
13. * The Client will have a reasonable opportunity to examine the Equipment for the purpose of ascertaining whether or not the Client is satisfied with the Equipment.*
14. * If ERS fails to perform a service to the reasonable standards contemplated in this Agreement then the Client may require ERS to either remedy any defect in the quality of the Services performed or Equipment supplied.*
15. ** ERS will secure the integrity and confidentiality of Personal Information in its possession or under its control by taking appropriate, reasonable technical and organizational measures to prevent loss of, damage to or unauthorized destruction of Personal Information and unlawful access to or processing of Personal Information.**
16. ** ERS has taken reasonable measures to identity all reasonably foreseeable internal and external risks to Personal Information in its possession or under its control, establish and maintain appropriate safeguards against the risks identified, regularly verify that the safeguards are effectively implemented and ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.**
17. ** If there are reasonable grounds to believe that the Personal Information has been accessed or acquired by any unauthorized personnel, then ERS shall notify the Information Regulator, the person’s whose Personal Information might have been accessed and the Client.**
18. ** ERS will provide the details of the Information Officer to the Client upon written request.**
19. ** ERS will not retain any Personal Information any longer that is necessary for achieving the purpose for which the information is required however it may be retained for a longer period for historical, statistical or research purposes.**
20. ** ERS will destroy all Personal Information in a manner that prevents the reconstruction thereof as soon as reasonably practicable if it is no longer authorized to retain the Personal Information or after the said purpose has been achieved and**
21. ** ERS cannot be held liable by any employee and/or related party of the Client for information loaded onto the system by the Client. It is the sole responsibility of The Client to adhere to all POPI requirements regarding their employee/s.**
22. The parties may agree that ERS is to keep the Personal Information for a longer period, by written consent by the client.
The Client warrants to ERS that:
1. It shall always ensure that the Equipment and/or parts is used in the manner and for the purpose for which it is designed and shall not make any alteration or modification to the Equipment and/or Parts during the duration of this Agreement and/or during the Swap Out Warranty Period.
2. From the Date of Installation, the Client undertakes to protect the Equipment and take care of the Equipment, subject to reasonable wear and tear.
3. It will ensure that the Administrator Passwords used to access the ERS websites is secured and will change the Administrator Passwords from time to time to prevent unauthorized access to the Clients information and/or website.
4. ERS shall be afforded access to the Premises to perform any or all of its obligations under this Agreement, such access always subjected to the Client's security and confidential policies and procedures in place at the time.
5. It shall monitor the quality of each employee’s finger / facial scanning recognition value and when required re-scan all employees` fingerprints / faces to ensure that each employee’s fingerprint / face is accepted by the Equipment.
6. It shall further ensure that at all times the Equipment is:
  1. connected to a dedicated 220 volts "clean power source" (power source without any surges); and will at no time be switched off and that the plug is not disconnected from the wall plug at any time.
  2. connected to power cables which cables shall be maintained in a neat and proper manner;
  3. kept clean and that the fingerprint scanner is cleaned, preferably daily with a soft damp cloth. (No solvents or soap may be used to clean the scanner.);
7. It shall attend to all necessary aspects as adivsed by ERS to enforce the proper usage of the system and shall train each employee on how to place his/her finger / face correctly on the fingerprint / facial scanner.
8. It has the necessary authorization to supply all Personal Information to the ERS. It is the Client’s responsibility to obtain such authorization and to update the Personal Information as soon as it is no longer accurate and complete and shall inform ERS of any update.
9. **It has obtained all Personal Information lawfully and in a reasonable manner that does not infringe the privacy of the person and that it has informed the person as to the reasons why the Personal Information is required; and **
10. **All Personal Information it provides to ERS is, to the Client's knowledge, accurate and not misleading.**
The Client shall notify ERS in writing if a device is faulty or problematic as soon as the Client has become aware thereof, the Client must request a ticket number for reference purposes.
The Client acknowledges that it understands that on average up to 3% of all fingerprints are not measurable and cannot be identified due to, inter alia, skin defects and such individuals will have to be scanned on a regular basis and may even have to be identified through alternative means as per the advice of ERS.
The Client will affect payment of all invoices submitted in terms of this Agreement, if a portion of the invoice is disputed, then the Client will still affect payment of the undisputed portion of the invoice. If any amount is disputed by the Client on an invoice, then the Client shall notify ERS thereof within 5 (Five) business days after receipt of the invoice and both Parties will proceed to amicably attend to resolve this dispute as a matter of urgency.
For any additional services that is required or is necessary, ERS will first provide the Client with a quotation which the Client will have to accept in writing before the additional services is to be attended to.

DAMAGE OF EQUIPMENT

If the Equipment and/or Parts is damaged by the Client or its agents/employees during the term of this Agreement and/or the Maintenance Period, and/or the Swap Out Warranty Period then the Client shall telephonically notify ERS within 1 (one) business day from when the damage of the Equipment was noticed, which notification must be followed up in writing.
A joint inspection of the damage to the Equipment and/or Parts will be done by the maintenance engineer and a duly authorised representative of the Client. This inspection will be scheduled within 48 (Forty-eight) hours after a call has been logged by the Client with ERS, the parties will agree on the time when its maintenance engineer attends at the relevant site for the inspection. If the duly authorised representative of the Client is not present at the time of the inspection, then with the consent of the Client the maintenance engineer will proceed with the inspection on his own and will decide whether the Equipment and/or Parts will be repaired or replaced, and the Client will be notified accordingly. Where the decision of the maintenance engineer will result in the Equipment and/or Parts being repaired or replaced and such repair or replacement will be covered by the warranty chosen by the Client under this Agreement, then the decision of the maintenance engineer will be final and binding on the Client. Where the decision of the maintenance engineer will result in the Equipment and/or Parts being repaired or replaced and such repair or replacement will not be covered by the warranty chosen by the Client under this Agreement, then a written quotation will be submitted by ERS to the Client for the repair or replacement of the damaged Equipment and/or Parts, which repair or replace will only be affected once the Client has accepted the quotation in writing.
Subject to the provisions contained in clause 4.2, if the damage to the Equipment and/or Parts was caused by the Client or its agents/employees then the Client shall be responsible for the costs of the Equipment and/or Parts necessary to repair or for the replacement of the Equipment and/or Parts together with the labour and traveling costs appertaining thereto.
Subject to the provisions contained in clause 4.2, the maintenance engineer will determine if the damaged was caused by the Client or its agents/employees where after ERS will inform the Client of the maintenance engineer’s findings. If the Client disagrees with the engineer’s findings, the provisions of clause 23 shall apply.
If such repair and/or replacement is not covered by the warranty chosen by the Client under this Agreement then the repair and/or replacement of Equipment and/or Parts will only be affected once the Client has agreed to in writing to bear the costs of the repairs.

SWAP OUT WARRANTY
Depending on the option the Client has chosen as per Annexure “A” to this Agreement, ERS will carry out the warranty chosen by the Client.

MAINTENANCE PERIOD

ERS shall from the Date of Purchase, maintain and/or service the Equipment for a maximum of 48 (forty-eight) months after the Date of Purchase for the Duration of this Agreement. Maintenance and/or services may continue after the 48 (forty-eight) months if both Parties enter an extended Service Level Agreement.
Parts carry manufacturer warranties as set out below:

Period: 1 (one) Year:
Power Supply, Aerials, Maglock, Door Closure, No Touch Sensor, Emergency Switch, Wireless Receiver and Remotes (excluding battery), Timer relay, Bypass alarm, Rain cover, Explorer case, Lithium Charger, Lithium Battery, Mobile inverter
Period: 3 (three) Months:
RF Cards, Wireless Router, Network Switch, Back-up Battery
Manufactures Warranties:
Turnstile, Smart ID card printer.
All items not listed will carry a standard 3-month warranty.

Subject to the Client’s right as set out in clause 3.5 and 3.6, it is expressly stipulated that ERS shall suspend all support and maintenance if the Client is in arrears with any of its payments and will only on settlement of all undisputed outstanding payments due and payable restore the support and maintenance services as provided for herein.
Subject to the Client’s right as set out in clause 3.5 and 3.6, ERS will not be liable for any damages the Client may suffer because of the suspension of the support and maintenance due to the Client being in arrears with any of its undisputed payments.
Subject to the Client’s right as set out in clause 3.5 and 3.6, Software licenses and Client access to the ERS Websites will be suspended if the Client is in arrears with its payment in terms of the software licenses in terms of this Agreement.

MAINTENANCE COSTS

All ongoing costs for the Services, Software, and the costs as per this Agreement will be in accordance with the pricing stipulated in Annexure “A”.
The abovementioned costs are subject to increase annually with a minimum of the current consumer price index applicable at the time of the increase.
ERS shall be entitled to charge additional costs not covered by this Agreement, for any work done upon the written request of the Client or as agreed to in writing between the Parties.

SUPPORT

ERS shall supply the Client with the following comprehensive support services during operational hours:
1. Email support via the email address support@ersbio.co.za
2. WEB support when selecting the option on the ERS Websites.
3. Telephonic support on the telephone number +27 10 593 0593.
ERS Standard operating hours are:
1. Monday to Friday 08:00-17:00 (SAST)
2. Saturday 08:00 - 12:00 (SAST)
3. RSA Public Holidays Closed

PROCEDURE FOR SUPPORT

The Client shall, whenever support is required, adhere to the following procedure:
1. The Client shall firstly notify ERS, by phone and/or email that a problem exists with the Equipment and/or Parts and/or Software and must furnish full details of the problem to ERS.
2. The Client shall provide such information as may be required by ERS to enable ERS to render the support service.
3. ERS shall, within 6 (six) working hours or as soon as reasonably possible endeavor to resolve the problem telephonically and/or via email.
  1. If the problem is not resolved in the time as specified above, then ERS’s support team leader will take over the support call and may take the following steps.
    1. Notify the Client within 1 (one) hour of this escalation and informing the Client of the action that will be taken and the timeframe within which the problem will be corrected.
  2. If the problem is not resolved within 12 (twelve) working hours after the first escalation, then ERS’s support manager will take over the support call and may take the following steps.
    1. Notify the Client within 1 (one) hour of this escalation and informing the Client of the action that will be taken and the timeframe within which the problem will be corrected.
4. Notify the Client within 1 (one) hour of this escalation and informing the Client of the action that will be taken and the timeframe within which the problem will be corrected.
  1. Reset the Equipment;
  2. Adhere to any other instructions given by ERS.
5. Each call will be logged by ERS and a unique support reference number will be allocated for each specific problem reported by the Client. The support reference number will be used for any further reference in respect of the problem reported; and
6. If the problem is Equipment related, arrange a visit to the Premises by a suitable technician as per the option the Client has chosen in terms of Annexure "A"
If ERS repeatedly receives user related support calls and in its sole discretion, determines that the Client has new untrained employees or that current employees have insufficient knowledge to use the Equipment or Software, then at ERS’s recommendation the Client shall be obliged to book a training course.
All telephone calls will be recorded, and such recordings will be made available to the Client upon written request and can be used in any disputes.

EXCEPTIONS

The obligations of ERS as provided herein does not cover the costs for Services, or support services in respect of:
1. Equipment and/or Parts damaged because of any Excusable Event, catastrophe, act of God, accident, neglect, misuse, or negligence by the Client or external causes like, but not limited to, faulty electric power supply, power failures or high-tension cables running too close to communication cables.
2. GPRS/4G failure in any way as supplied by the GSM networks.
3. Equipment and/or Part failure due to Equipment and/or Parts that was not supplied by ERS.
4. Failure of any access Equipment and/or Parts or electronic locksets as well as power supply and battery back-ups of this Equipment and/or Parts; or
5. Any third-party access control device such as turnstiles, etc.; and
ERS shall not be responsible for any consequential damage or loss due to Equipment and/or Parts and/or Software for total or partial failure.

TRAINING

After the Date of Installation ERS shall be responsible for:
1. Training the Client’s chosen personnel on all functionality of the Equipment and Software as set out in Annexure “A”.
2. Training of, any additional, new, or existing employees of the Client will be at the training facility of ERS. Should training be required away from the training facility of ERS then additional costs will be payable by the Client, however before the training is to be scheduled the Client first needs to accept the written quotation for such Training.

DEVELOPMENT

ERS constantly strives to improve and enhance the Software offering to the Client.
1. Development releases is done in a 3 (three) or 6 (six) or 12 (twelve) month duration cycle.
2. All requests will be scheduled within a future planned release depending on priority and severity determined by ERS; Clients will be notified within 30 (thirty) days when their request will be scheduled for development.
3. All development will be released according to a set procedure that includes a development, testing and release phase and once signed-off will be released in accordance with the set procedure.

INSURANCE

The Equipment must be insured by the Client for the full duration of this Agreement against theft, loss, or damage, in the normal cause of operation or by accident or catastrophe or act of God and shall be reported in writing to ERS within 2 (two) business days from the occurrence of any of the aforementioned events.
ERS will issue an invoice for the replacement of all the affected Equipment and/or Parts which shall be paid for within 30 (thirty) days of date of invoice; and
The Client will provide ERS with proof of insurance within 14 (fourteen) days upon written request by ERS.

CHANGE IN CIRCUMSTANCES

If the circumstances surrounding the fulfilment of this Agreement should alter materially from those prevailing at the time of signature of this Agreement, then the Parties undertake to renegotiate such of the terms and provisions of this Agreement as may be necessary in good faith to ensure that this Agreement remains fair and equitable to each of the Parties.

CONFIDENTIALITY AND PROTECTION OF PROPRIETARY INFORMATION

All the details of this Agreement including information given by either Party to the other Party as pursuant to this Agreement shall be deemed to be confidential and shall not be given in any form whatsoever to a third party, without the prior written consent of the other Party.
This provision shall survive termination of this Agreement.

INDEMNITY

In no event shall either Party be liable to the other for any incidental, consequential or any other indirect loss or damages (including but not limited to loss of profits or revenues or loss of data), nor for exemplary or punitive damages. These limitations of liability shall apply regardless of the form of action and regardless of whether any of the Parties have been advised as to the possibility of such damages and/or losses occurring.

LAW APPLICABLE

This Agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters arising in connection with this Agreement shall be determined in accordance with such laws.

JURISDICTION

The Client hereby consents, in terms of Section 45 of the Magistrates’ Court Act of 1994 as amended to the supplier instituting any proceedings arising of this contract in the Magistrates’ Court for the district of Tshwane otherwise having jurisdiction in terms of Section 28 of the Magistrates’ Court Act notwithstanding the fact that such proceedings are otherwise not within the jurisdiction of the court.

LEGAL COSTS

Should it be necessary for ERS to instruct an attorney or any other collection agents to collect any amounts, all taxable legal fees, collection commissions and tracing fees as between attorney and own client shall be borne by the client and all payments made shall firstly be allocated towards such fees and charges thereafter to interest and finally to capital.

INTEREST

The client shall pay interest on all overdue amounts at the prime overdraft rate per annum of ERS financial institution namely First National Bank calculated on the daily balance and capitalized monthly. The client further agrees that in the event of his/her default in any respect towards ERS, 30(thirty) day after notification was given, ERS will cease all work and access to the system until all monies and interest due to ERS have been paid in full.

DUTY OF GOOD FAITH

The Client and/or its Personnel shall not be entitled to claim or receive any benefits or rewards, other than specifically provided for in this Agreement. The Client confirms that it or any of its Personnel have not given or received any benefit of any nature whatsoever, nor shall they give any benefit of any nature whatsoever, which can be construed as an unlawful inducement to enter into this Agreement or any other agreement emanating from this Agreement and that they have ensured that all anti-corruption laws, internal processes and anti- corruption preventative measures have been complied with, prior to signature of this Agreement.
The Client shall further ensure that all such anti-corruption laws, internal processes and anti- corruption preventative measures which may apply to it under any law or company policy will continue to be complied with for the duration hereof.
The Client shall, as and when requested, provide ERS with a detailed report on any gifts, incentives or consideration given by the Client or its Personnel to ERS or any of its Personnel during the particular contract year.
ERS shall be entitled terminate this Agreement with immediate effect in the event that the Client is in breach of this clause (Duty of Good Faith).

EXCUSABLE DELAY

In the event of any act beyond the control of the Parties, such as war, warlike operation, rebellion, riot, civil commotion, fire, accident, or (without regard to the foregoing enumeration) of any circumstances arising or action taken beyond the reasonable control of the Parties hereto preventing them or hither any of them from the performance of any obligation hereunder (any such event hereinafter called a "force majeure event") then the Party affected by such force majeure event shall be relieved of its obligations hereunder during the period that such force majeure continues (excluding payment obligations).
The Party’s relief is only to the extent so prevented and such Party shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage which the other Party may suffer due to or resulting from the force majeure, provided always that a written notice shall be promptly given of any such inability by the affected Party.
Any Party invoking force majeure shall upon termination of such force majeure give prompt written notice thereof to the other Party. Should the force majeure continue for a period of more than 60 (sixty) days, then either Party has the right to cancel this Agreement.

BREACH

Should a Party (“the Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (“the Aggrieved Party”) shall be entitled to require the Defaulting Party to remedy the breach within 30 (thirty) days of delivery of a written notice requiring it to do so, or within any other reasonable time as may be agreed upon by the Parties.

DISPUTE RESOLUTION

If a dispute between the Parties arises out of or is related to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If, after 20 (twenty) days from the date upon which the dispute was declared by a Party by written notice, the dispute is not resolved the matter shall be determined in accordance with the provisions set out below.
Save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, or in the event of either Party instituting urgent action against the other in the court of competent jurisdiction, any dispute arising from, or in connection with, this Agreement will finally be resolved by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa (the “Foundation”) or its successor, by an arbitrator or arbitrators appointed by the Foundation.
This clause will be severable from the rest of the provisions of this Agreement so that it will operate and continue to operate notwithstanding any actual or alleged voidness, void ability, unenforceability, termination, cancellation, expiry, or accepted repudiation of this Agreement.
Neither Party shall be entitled to withhold performance of any of their obligations in terms of this Agreement pending the settlement of nor shall decision in any dispute arising between the Parties and each Party in such circumstances continue to comply with their obligations in terms of this Agreement.

TERMINATION AND CANCELLATION

Neither Party shall be entitled to withhold performance of any of their obligations in terms of this Agreement pending the settlement of nor shall decision in any dispute arising between the Parties and each Party in such circumstances continue to comply with their obligations in terms of this Agreement.
Upon cancellation of this Agreement because of the Client’s breach, the Client remains liable to ERS for any amounts due and payable and owed to ERS in terms of this Agreement up to the date of cancellation.
Both Parties shall be entitled to cancel this agreement prior to the expiry date by giving the other party 2 (two) months written notice.

USE OF THE ERS WEBSITE

The Client agrees that it will not use any device, Software or any other instrument that may interfere or attempt to interfere with the proper working of the ERS Website.
The Client will not use any device to copy, distribute or modify the ERS Website or the information contained therein without the prior written consent of ERS.
The ERS Website and the contents of the ERS Website are owned solely by ERS.

COPYRIGHT, INTELLECTUAL PROPERTY AND TRADEMARKS

The Parties shall not acquire any right, title or interest which would entitle the Parties to use the name, service marks, trademarks, or logos of the other Party. The Parties undertake in favour of one another not to perform any act which would injure the reputation or goodwill attaching to their respective names and trademarks or which could prejudice their rights in and to such names and trademarks.
All copyright and other intellectual property rights vested in any information, data, books records, and/or documentation the one Party supply the other will remain the property of the Party that supplied such information, data, books records, and/or documentation. The Party receiving such information, data, books records, and/or documentation shall only be entitled to use information, data, books records, and/or documentation in accordance with this Agreement.

CONFIDENTIALITY

Notwithstanding the cancellation or termination of this Agreement, the Parties shall not disclose to any person or entity any confidential information without the other Party’s written consent, subject to disclosure requirements required by a regulator or a court or other regulators requirements in which case must inform the other party that they are disclosing and what they are disclosing.
If a Party is uncertain as to whether information is confidential information such Party will enquire from the other as to the nature of the information.

GENERAL

The terms and conditions of this Agreement shall take precedence over any other terms and conditions that may have been discussed between the Parties.
The Client may order additional Services under this Agreement by signing additional schedule/s. All additional Services shall be governed by the terms and conditions of this Agreement. The additional Services shall come into effect on the date agreed to by the Parties.
No extension of time or other relaxation of any rights in terms of this Agreement granted by either Party to the other shall be construed as a waiver by that Party of, or in any way prejudice, that Party’s rights in terms of this Agreement.
No variation, addition, deletion, or agreed cancellation of the agreement will be of any force or effect unless in writing and signed by or on behalf of the parties hereto.

DOMICILIUM CITANDI ET EXECUTANDI AND NOTICES
ERS chooses domicilium citandi et executandi for all purposes under this Agreement at:
Office 4
117 Sovereign Drive
Route 21 Corporate Park
Irene
Centurion
Email address: info@ersbio.co.za
Telephone: 01 0593 0593

NOTICES

Any notice given under this Agreement shall be in writing and delivered by hand to an address as listed above; otherwise emailed or faxed to the address or number listed above.
The Parties shall be entitled to change the particulars of their addresses and contact numbers, as listed above, to any other address or contact number in the Republic of South Africa by giving 20 (twenty) days prior written notice to that effect.
Any notice to a Party delivered by hand during the normal business hours of the addressee at the addressee's domicilium shall be deemed to have been received by the addressee at the time of delivery; or posted by prepaid registered post in a correctly addressed envelope from an address within the RSA to the addressee at the addressee's domicilium shall be deemed to have been received by the addressee on the 7th day after the date of posting.
The Parties record that whilst they may correspond via email during the currency of this Agreement for operational reasons, no formal notice required in terms of this Agreement, nor any amendment or variation to this Agreement may be given or concluded via email.

ASSIGNMENT

The Client shall not be entitled to assign, cede, sub-contract, delegate or in any other manner transfer any benefit and/or obligations in terms of this Agreement, without the prior written consent of ERS, which consent shall not be unreasonably withheld.

SEVERABILITY

Should any of the terms and conditions of this Agreement be held to be invalid, unlawful, or unenforceable, such terms and conditions shall be severable from the remaining terms and conditions which shall continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.

WHOLE AGREEMENT AND AMENDMENT

This Agreement constitutes the whole of the Agreement between the Parties relating to the subject matter hereof. Amendments made to this agreement will be notified to the client 30 (thirty) days prior to it taking effect. By accessing the software, the client accepts any and all amendments made to the Service Level Agreement. Any document executed by the Parties purporting to amend, substitute or revoke this Agreement or any part hereof, shall be titled an "Addendum" to the applicable Service Agreement and assigned a sequential number to be included in the title.

DATA PROTECTION

The Client shall comply with all Data use and Data protection requirements as may be applicable to the Products and/or Services and/or Information provided to ERS under this Agreement and as are dictated by any applicable legislative requirements and the requirements of all applicable codes of conduct, as they may apply to the Client.
In this clause, the following terms have the meanings given to them in the Protection of Personal

Information Act, 4 of 2013:
(a) operator;
(b) personal information; and
(c) processing.

Data Protection and Data Privacy
(a) Without prejudice to the obligations set out in this clause 22 (Data Protection) the Parties acknowledge and agree that each Party will remain solely responsible for complying with
their respective obligations under applicable privacy and protection of personal information laws governing ERS Data. Neither Party will be responsible for investigating the steps that
the other Party is taking to comply with such laws. ERS may on reasonable notice request from the Client, a copy of the Client’s privacy and access to information policy, to determine
the controls in place and measures to ensure compliance with Applicable Law relating to data protection and privacy.
(b) The Client shall, and shall procure that each of its Affiliates:
(i) comply with all applicable data protection and privacy laws;
(ii) comply with the ERS Policies relating to data integrity and security, as notified to the Client in writing as at the Commencement Date as such ERS policies may change;
(iii) not access, use or process ERS Data except to the extent reasonably necessary in performance of its obligations under this Agreement;
(iv) not do any act that puts ERS at risk of ERS Data being disclosed;
(v) implement the Client’s applicable technical and security measures to preserve the integrity of ERS Data; and
(vi) comply with the Client policies in order to prevent any unauthorised or unlawful access, accidental or unauthorised destruction, corruption, loss, alteration or disclosure
or other prohibited processing of ERS Data by the Client
(c) On ERS’s written request, the Client will provide ERS with the information that it has regarding ERS Data in its possession, including information regarding the processing methodologies
used by the Client in respect of the same, to enable ERS to comply with its obligations under this clause and the applicable privacy, protection of personal information and access to information laws.
(d) Each Party shall procure that its Affiliates and Subcontractors (if any) contractually agree in writing to comply with obligations in relation to the processing ofData which are equivalent to those agreed by the Client.
In conjunction with its obligations in terms of clause (Subcontracting and Third-Party Contracts) of the Agreement, the Client shall notify ERS in the event it wishes to subcontract any of its obligations in terms of the processing of ERS’s Data to any Third Party.
(e) Each Party shall not, and shall procure that its Affiliates and Subcontractors shall not, delete or remove any copyright, database right or other intellectual property notices contained within or relating to data or other materials received from the other Party.
(f) Each Party shall procure that the other Party’s Data and any other Data relating to other ERS Affiliates or Client Affiliates (as applicable) is stored separately from data relating to the Party or
other members of ERS Affiliates or Client Affiliates (as applicable) or any Third Party.
(g) Each Party agrees that it shall acquire no rights in Data, information, software or other materials obtained by it as a result of this Agreement except as expressly set out in this Agreement or any Annexure.
(h) The Client shall not transfer ERS Data across a country border to enable the Client to comply with its obligations under this Agreement or for any other reason,
without ERS’s prior written consent. In the event that ERS consents to any such transfer, the Client shall ensure that the transfer is conducted in accordancewith ERS’s standard terms for the transfer of Data.
(i) Each Party will co-operate with and assist the other Party in relation to all access to information requests made by third parties, including data subjects,
under applicable law. Such co-operation and assistance will include providing all available information to the other Party in order for the other Party to respond to the relevant information request and for the other Party to comply with the applicable law.
(j) In the performance of the Services and its rights and obligations under this Agreement, the Client must secure the integrity and confidentiality of ERS’s personal
information, or personal information that is being processed by ERS belonging to Third Parties, by taking appropriate, reasonable technical and organisational measures to prevent:
(i) loss of, damage to or unauthorised destruction of personal information; and
(ii) unlawful access to or processing of personal information.
(k) The Client will take reasonable measures to:
(i) identify all reasonably foreseeable internal and external risks to personal information in its possession or under its control;
(ii) establish and maintain appropriate safeguards against the risks identified;
(iii) regularly verify that the safeguards are effectively implemented; and
(iv) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
(l) The Client will only process ERS’s personal information, or personal information being processed by ERS on behalf of Third Parties, with ERS’s knowledge and authorisation and will treat personal information which comes to its knowledge as confidential.
(m) The Client will notify ERS immediately where there are reasonable grounds to believe that personal information has been accessed or acquired by any unauthorised person.
(n) The Client must assist ERS, at it’s own cost, with any investigation or notice to the Regulator or data subjects with regards to
personal information being accessed or acquired by any unauthorised person or a compromise in the Service Provider’s security safeguards.
(o) The Client must, at ERS’s direction and request, assist ERS in responding to any directions by the Regulator to publicise any compromise to the integrity or confidentiality of personal information; and/or
(p) The Client hereby indemnifies ERS against any civil or criminal action or administrative fine or other penalty or loss as a result of the Client’s breach of this clause