The Customer has purchased ERS SmartScan Time & Attendance and/or Access control devices from ERS, both parties would like to record the level of service that
ERS will provide to the Customer for the duration of this agreement. The latest updated version of this SLA will be available on the Website and the Customer
accept the Term and Conditions every time he/she log onto the Website
1. DEFINITIONS AND GENERAL CLAUSES
In this Agreement unless the context indicates otherwise:
"Administrator Passwords" means the passwords provided by ERS to the Customer to enable the Customer to gain entry to ERS Websites;
"Agreement" means this Agreement, the Clauses and the Sub-Clauses hereof including the Annexes;
"Alert Services" means any SMS and/or email alert messages generated from the Software;
"Applicable Law" means in relation to any jurisdiction, any law, regulation, regulatory requirement, judgement, order or directive, or any other act of any Government Entity of such jurisdiction which ERS or the Customer is required to comply;
"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;
"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, customers, 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;
"Date of Purchase" means the date on which the ERS Invoice was generated.
"Date of Installation" means the date when the Equipment is fully installed by ERS at the Premises nominated by the Customer in writing.
"Date of Training" Is the date/s as agreed to between ERS and the Customer when ERS will provide training to the Customer.
"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;
"ERS Websites" is any of the website/s which ERS grants the Customer access to;
"Equipment" means the new ERS SmartScan devices used for Time and Attendance and/or Access Control , purchased from ERS by the Customer;
"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 reasonable control of the affected Party, including, without in any way limiting or derogating from the aforegoing, the following :
1. Acts of God;
2. War or armed hostilities, terrorism, insurrection or riot;
3. Government acts or priorities;
4. Fires, floods, inclement weather or earthquakes;
5. Strike or labour disputes causing cessation, slowdown or interruption of work; or
6. Inability, after due and timely diligence, to provide equipment, materials, systems, accessories or Parts;
"Governing Law" means the laws of the Republic of South Africa;
"Insurances" means any insurance and reinsurance required to be effected and maintained by ERS during the Maintenance Period during the Maintenance Period;
"Installation Date" means the date on which the installation of the Equipment, at the Premises, is completed and accepted by the Customer.
"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 will endure for a period of 48 months from the Date of Purchase on the express condition that the Customer is fully up to date with his payments in terms of this Agreement;
"Manufacturer Warrantee" means the warrantee furnished by the manufacturer of the Equipment in terms of which ERS undertakes to repair and or replace the Equipment due to a technical malfunction arising out of any installation, repair, design or manufacturing defect in the Equipment which is not attributable to any negligent or deliberate act or omission on behalf of the Customer or it's servants which occurs within the Maintenance Period of the Equipment;
"Parts" means all modules, appliances, components, parts instruments, appurtenances, accessories and other items of equipment of whatever nature as may be incorporated or installed in or attached to the Equipment and includes any substitute or replacement Parts that may be installed on the Equipment by ERS.
"Party" dependant on the context in which the term is used means either ERS or the Customer;
"Parties" means ERS and the Customer collectively;
"Premises" means the site of the Customer where the equipment was installed. There could be multiple sites.
"Personal Information" means information relating to an identifiable, living natural person or an identifiable existing juristic person;
"POPI" means the Protection of Personal Information Act 4 of 2013 and any amendments thereto;
"**" means that this clause is only applicable if POPI is applicable to this Agreement;
"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 Customer has chosen. (See Swap Out Warranty Clause). (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 Customer.)
"Services" means the servicing, maintenance, repair, replacement and upgrading of the Equipment and the hosting, maintenance and upgrading of ERS websites;
2.1. 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;
2.2. 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:
2.2.1. any one gender shall include the other two genders;
2.2.2. the singular shall include the plural and vice versa;
2.2.3. natural persons shall include corporations and vice versa;
2.3. 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;
2.4. 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;
2.5. 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;
2.6. where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail;
2.7. reference to day/s, month’s or year/s shall be construed as Gregorian calendar day/s, month/s or years;
2.8. 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;
2.9. 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;
2.10. 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 so as to limit the ambit of the provision concerned;
2.11. 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;
2.12. 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;
2.13. 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, as the case may be.
3.1 ERS warrants to the Customer that:
3.1.1 The Swap Out Warranty of any of the Equipment is valid for the period which the Customer has chosen as per SLA Agreement.
3.1.2 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;
3.1.3 The Equipment installed by ERS is in a “new manufacturer condition” with full manufacturer warranty and is suitable for the purposes for which the Customer requires it.
3.1.4 Should the Customer, after installation of the Equipment, notice any defect with the Equipment, then the Customer shall notify ERS in writing of such defect within 7 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 3 business days after receiving written notification from the Customer. After remedy by ERS of any defects and ERS demonstrating the correct function of the Equipment, the Customer shall be deemed to have accepted the Equipment as in good order and in repair.
3.1.5 It will have back up support for the Equipment.
3.1.6 It shall only utilize replacement Parts on the Equipment that are in strict accordance with the manufacturer’s specifications.
3.1.7 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.
3.1.8 *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 after concluding of this Agreement. The Equipment to be delivered and installed remains ERS’s risk until the Customer has accepted delivery of the Equipment.*
3.1.9 *The Customer may return the Equipment to ERS and receive a full refund of any consideration paid for the Equipment, if:
184.108.40.206 the Customer did not have an opportunity to examine the Equipment before delivery,
220.127.116.11 or the Customer has rejected the delivery of the Equipment,
18.104.22.168 or the Equipment has failed in the reasonable opinion of the Customer to satisfy a particular purpose which was communicated to ERS by the Customer,
22.214.171.124 within 10 business days after delivery of the Equipment by ERS to the Customer, if the goods prove to be unsuitable for a particular purpose which was communicated to ERS by the Customer, the onus being on the Customer to establish such unsuitability.*
3.1.10 *Upon return of any of the Equipment, ERS will refund to the Customer the price paid for the Equipment, less any amount that may be charged for the use of the Equipment during the time same was in the Customer’s possession and ERS may charge the Customer for necessary restoration costs to render the Equipment fit for re-stocking.*
3.1.11 *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.*
3.1.12 *If ERS repairs any Equipment and within three months after that 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 Customer the price paid for the Equipment.*
3.1.13 *The Customer will have a reasonable opportunity to examine the Equipment for the purpose of ascertaining whether or not the Customer is satisfied with the Equipment.*
3.1.14 *The Customer may rescind this Agreement if this Agreement resulted from any direct marketing, without any reason or penalty, by notice to ERS in writing, or another recorded manner and from, within five days after the later date on which this Agreement was concluded or the Equipment were delivered.*
3.1.15 *If ERS fails to perform a service to the reasonable standards contemplated in this Agreement then the Customer may require ERS to either remedy any defect in the quality of the Services performed or Equipment supplied or refund the Customer a reasonable portion of the price paid for the Services not properly performed and/or Equipment supplied.*
3.1.16 **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.**
3.1.17 **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.**
3.1.18 **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 Customer.**
3.1.19 **ERS will provide the details of the Information Officer to the Customer upon written request.**
3.1.20 **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.**
3.1.21 **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.**
3.1.22 ** 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.**
3.1.23 The parties may agree that ERS is to keep the Personal Information for a longer period.
3.2 The Customer warrants to ERS that:
3.2.1 It shall at all times ensure that the Equipment 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 during the duration of this Agreement and/or during the Swap Out Warranty Period.
3.2.2 From the Date of Installation, the Customer undertakes to protect the Equipment and take special care of the Equipment.
3.2.3 The Customer will ensure that the fingerprint scanner is cleaned regularly in accordance with the manufacturer’s specifications. Depending on the use of the scanner, the Customer shall ensure that the scanner is cleaned as often as is required. If the Customer is unsure as to how to clean the fingerprint scanner and/or how often the Equipment is to be cleaned, then the Customer will seek the advice of ERS with regards thereto.
3.2.4 It will ensure that the Administrator Password used to access the ERS websites are secured and will change the Administrator Passwords from time to time to prevent unauthorized access to the Customers information and/or website.
3.2.5 ERS shall be afforded access to the Premises to perform any or all of its obligations under this Agreement without any restraint or restrictions that may hinder ERS’s performance.
3.2.6 It shall monitor the quality of each employee’s finger scanning recognition value and when required re-scan all employees fingerprints to ensure that each employee’s fingerprint is accepted by the Equipment.
3.2.7 It shall further ensure that at all times the Equipment is:
126.96.36.199 plugged into a dedicated 220 volts standard wall plug within 5 meters from the where the Equipment is installed;
188.8.131.52 plugged into a dedicated 220 volts standard wall plug which will at no time be switched off and that the plug is not disconnected from the wall plug at any time;
184.108.40.206 connected to power cables which cables shall be maintained in a neat and proper manner;
220.127.116.11 connected to a dedicated “clean power source” (power source without any surges);
18.104.22.168 kept clean and that the fingerprint scanner is cleaned, preferably on a daily basis with a soft damp cloth. (No solvents or soap may be used to clean the scanner.);
3.2.8 It shall attend to all necessary aspects so as to enforce the proper usage of the system and shall train each employee on how to place his/her finger correctly on the fingerprint scanner.
3.2.9 It shall not withhold any payments that are due in terms of this Agreement to ERS even if there are any dispute/s between the Parties in terms of this Agreement.
3.2.10 **It has the necessary authorization to supply any and all Personal Information to the Customer. It is the Customer’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.**
3.2.11 **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. **
3.2.12 **All Personal Information it provides to ERS is accurate and not misleading.**
3.3 The Customer shall notify ERS in writing if a device is faulty or problematic as soon as the Customer has become aware thereof.
3.4 The Customer acknowledges that he 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 advices of ERS.
4. DAMAGE OF EQUIPMENT
4.1 If the Equipment is damaged by the Customer or its agents/employees or any other third party during the term of this Agreement and/or the Maintenance Period, and/or the Swap Out Warranty Period then the Customer shall telephonically notify ERS within 1 business day from the date when the damage of the Equipment occurred, which notification must be followed up in writing.
4.2 After inspecting the damage to the Equipment, ERS’s maintenance engineer will decide whether the Equipment will be repaired or replaced and the Customer will be notified accordingly. This decision of ERS’s maintenance engineer will be final and binding on the Customer.
4.3 If, in the opinion of the maintenance engineer the damage to the Equipment was caused by the Customer or its agents/employees or any other third party then the Customer shall be responsible for the costs of the Parts necessary to repair the Equipment or for the replacement of the Equipment together with the labour and traveling costs appertaining thereto.
4.4 ERS’s maintenance engineer will determine in his sole discretion if the damaged was caused by the Customer or its agents/employees or any other third party and ERS will inform the Customer of ERS’s maintenance engineer’s findings which finding shall be final and binding on the Customer.
4.5 Repair and/or Replace of Equipment, as the case may be, will only be affected once the Customer has agreed to the repairs thereto.
Swap Out Warranty
Depending on the option the Customer has chosen as per SLA agreement, ERS will endeavor to carry out the warranty chosen by the Customer.
5. MAINTENANCE PERIOD
5.1 ERS shall from the Date of Purchase, maintain and/or service the Equipment for a maximum of 48 months after the Date of Purchase. Maintenance and/or services may continue after the 48 months if both parties have agreed to thereto, in writing.
5.2 It is expressly stipulated that ERS shall suspend all support and maintenance if the Customer is in arrears with any of its payments and will only on settlement of all outstanding payments restore the support and maintenance services as provided for herein.
5.3 ERS will not be liable for any damages the Customer may suffer as a result of the suspension of the support and maintenance due to the Customer being in arrears with any of its payments.
5.4 Software licenses and Customer access to the ERS websites will be suspended if the Customer is in arrears with its payment in terms of the software licenses or any other payments in terms of this Agreement.
6. MAINTENANCE COSTS
6.1 All ongoing costs inclusive of Services, Support, Maintenance, Software and the costs as per this Agreement will be in accordance with the pricing stipulated.
6.2 The abovementioned costs are subject to increase annually up to a maximum of 2% over and above the current consumer price index applicable at the time of the increase.
6.3 ERS shall be entitled to charge additional costs not covered by this Agreement, for any work done upon the written request of the Customer or as agreed between the Parties.
7.1 ERS shall supply the Customer with Telephonic support on the telephone number +27 10 593 0593 during:
07h30 to 17h00 Mondays to Fridays:
08h00 to 12h00 Saterdays
7.2 ERS shall supply the Customer access to afterhours support on the following basis
7.2.1 WEB support when selecting the option on the ERS websites;
7.2.2 Maintaining and attending to all auto reports and auto notifications via email and/or sms.
7.2.3 Email support via the email address firstname.lastname@example.org
8. PROCEDURE FOR TELEPHONIC SUPPORT
8.1 The Customer shall, whenever telephonic support is required, adhere to the following procedure:
8.1.1 The Customer shall firstly notify ERS, by phone and/or email that a problem exists with the Equipment and must furnish full details of the problem to ERS;
8.1.2 The Customer shall provide such information as may be required by ERS to enable ERS to render the support service;
8.1.3 ERS shall, within 24 hours or as soon as reasonable possible endeavor to resolve the problem telephonically and/or via email;
8.1.4 Should ERS’s telephonic personnel not be able to resolve the problem, then ERS shall give an estimate of how long the problem may take to resolve.
8.1.5 The Customer shall perform all tasks that ERS’s suggests to pin-point the problem and assist ERS to resolve the problem as far as possible. This may include the following manual tasks:
22.214.171.124 Reset the Equipment;
126.96.36.199 Adhere to any other instructions given by ERS.
188.8.131.52 Each call will be logged by ERS and a unique support reference number will be allocated for each specific problem reported by the Customer. The support reference number will be used for any further reference in respect of the problem reported;
184.108.40.206 If the problem is not resolved in the time as specified above, then ERS’s support manager will take over the support call and may take the following steps;
220.127.116.11.1 Notify the Customer within 1 hour of this escalation and informing the Customer of the action that will be taken and the timeframe within which the problem will be corrected;
18.104.22.168.2 If the problem is Equipment related, arrange a visit to the Premises by a suitable technician as per the option the Customer has chosen in terms of Agreement;
8.2 If ERS repeatedly receives user related support calls and in its sole discretion, determines that the Customer has new untrained employees or that current employees have insufficient knowledge to use the Equipment or Software, then the Customer shall be obliged to book a training course for the relevant untrained employees and will be obliged to pay for the training at the pre-determined rate.
8.3 All telephone calls will be recorded and such recordings will be made available to the Customer upon written request.
9.1 The obligations of ERS as provided herein does not cover the costs for Services, or support services in respect of:
9.1.1 Hardware damaged as a result of any Excusable Event, catastrophe, accident, neglect, misuse, or negligence by the Customer or external causes like, but not limited to, faulty electric power supply, power failures or high tension cables running too close to communication cables;
9.1.2 GPRS failure in any way as supplied by the GSM networks;
9.1.3 Equipment failure due to Equipment that was not supplied by ERS;
9.1.4 Failure of any access Equipment or electronic locksets as well as power supply and battery back-ups of this Equipment;
9.1.5 Any third party access control device such as turnstiles, etc.
9.2 ERS shall not be responsible for any consequential damage or loss due to Equipment and/or total or partial system failure.
After installation and commissioning ERS shall be responsible for;
10.1 Training the Customer’s chosen personnel on all functionality of the Equipment and Software as set out in Agreement;
10.2 Training of, any additional, new or existing employees of the Customer, which training will be charged for at a nominal training fee rate.
10.3 Additional training will be provided at the rates applicable from time to time.
11.1 The Equipment must be insured by the Customer for the full duration of this Agreement against theft, loss, or damage, in the normal cause of operation or by accident and shall within 2 business days from the occurrence of any of the aforementioned events.
11.2 ERS will issue an invoice for the replacement of all the affected Equipment and/or Parts which will have to be paid for with 30 days of date of invoice.
11.3 The Customer will provide ERS with proof of insurance within 7 days upon written request by ERS.
12. CHANGE IN CIRCUMSTANCES
12.1 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.
13. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY INFORMATION
13.1 All of 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.
13.2 This provision shall survive termination of this Agreement.
14.1 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 or not any of the Parties have been advised as to the possibility of such damages and/or losses occurring.
15. LAW APPLICABLE
15.1 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.
15.2 Should a dispute arise from this Agreement then ERS has the right to decide to proceed with arbitration.
16.1 The Parties hereby consent to the jurisdiction of the Magistrates Court having jurisdiction over it in respect of all proceedings in connection with this Agreement. Notwithstanding the above, the Parties shall have the right to institute all or any proceedings connected with this Agreement in any Division of the High Court of South Africa having jurisdiction in the matter.
17. EXCUSABLE DELAY
17.1 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).
17.2 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.
17.3 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.
18.1 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) Business 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.
19. DISPUTE RESOLUTION
19.1 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) Business 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.
19.2 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 any 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.
19.3 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, voidability, unenforceability, termination, cancellation, expiry, or accepted repudiation of this Agreement.
19.4 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.
20. TERMINATION AND CANCELLATION
20.1 Either of the Parties, by giving notice to the other party, may terminate the Agreement if the other party breaches this Agreement more than once within a period of 30 days.
20.2 *ERS shall in writing notify the Customer not more than 80, no less than 40, business days before the expiry date of this Agreement, of any material changes that would apply if this Agreement is to be renewed, or may otherwise continue beyond the expiry date; and the options available to the Customer in terms this Agreement on the expiry of this Agreement.*
20.3 Upon cancellation of this Agreement the Customer remains liable to ERS for any amounts owed to ERS in terms of this Agreement up to the date of cancellation; and ERS may impose a reasonable cancellation penalty with respect to any Equipment supplied and/or Services provided, to ERS in contemplation of this Agreement enduring for its intended fixed term and must credit the Customer with any amount that is due to the Customer in terms of this Agreement.*
21. USE OF THE ERS WEBSITE
21.1 The Customer 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 website.
21.2 The Customer will not use any device to copy, distribute or modify the website or the information contained therein without the prior written consent of ERS.
21.3 The website and the contents of the website are owned solely by ERS.
22. COPYRIGHT, INTELLECTUAL PROPERTY AND TRADEMARKS
22.1 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.
22.2 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.
23.1 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.
23.2 If a party is uncertain as to whether or not information is confidential information such party will enquire from the other as to the nature of the information.
24.1 The terms and conditions of this Agreement shall take precedence over any other terms and conditions that may have been discussed between the Parties.
24.2 The Customer 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.
24.3 In the event that a person signing this Agreement on behalf of a legal entity and same does not have the required authority then, the said person will be held personally liable in terms of this Agreement.
24.4 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.
25. DOMICILIUM CITANDI ET EXECUTANDI AND NOTICES
ERS chooses domicilium citandi et executandi for all purposes under this Agreement at:
Eco Fusion 5
1004 Teak Close
Highveld Ext. 70
Email address: email@example.com
Telephone: 01 0593 0593
Fax: 0861 223438
26.1 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;
26.2 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 days prior written notice to that effect.
26.3 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 after the date of posting.
26.4 Any notice by telefax to a party at its telefax number shall be deemed, unless the contrary is proved, to have been received on the first business day after the date of successful transmission.
26.5 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 e-mail.
27.1 The Customer 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.
28.1 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.
29. WHOLE AGREEMENT AND AMENDMENT
29.1 This Agreement constitutes the whole of the Agreement between the Parties relating to the subject matter hereof and no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the Parties hereto or their duly Authorised Representatives. 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.