STANDARD TERMS OF SERVICE

DIRAC DELTA SYSTEMS CC

(Registration Number: 2011 / 029307 / 23)                

              

1. DEFINITIONS

1.1. In this Agreement, clause headings and sub-headings are for convenience and shall not be used to interpret such Agreement, unless the context clearly indicates a contrary intention.
1.2. Any expression which denotes any gender includes all others genders.
1.3. The following expressions shall bear the meanings assigned to them below:
1.4. “Agreement” means this agreement together with all annexures and/or schedules as may be amended from time to time;
1.5. “Service Provider” means Dirac Delta System (Pty) Ltd a company duly registered under the laws of the Republic of South Africa under registration number: 2025 / 410283 / 07;
1.6. “Company” means the Company as per Annexure A hereto;
1.7. “Services” mean the services provided by the Service Provider to Company and as described in this Agreement and in the annexures hereto;
1.8. “Business Day” means any day other than a Saturday, Sunday, or official public holiday in the Republic of South Africa;
1.9. “Effective Date” means the date as per Annexure A hereto;
1.10. “Entity” includes any association, business, close corporation, sole propriety, company, concern, enterprise, firm, partnership, joint venture, person, trust, undertaking, voluntary association and any other similar entity;
1.11. “Equipment” means any computer equipment and/or any equipment or subscription service utilized by Service Provider in the delivery of the Services;
1.12. “Company Representative” means the person appointed by Company to liaise with the Service Provider on a day to day basis in respect of services provided by the Service Provider in terms of this Agreement;
1.13. “Industrial Action” means any labour protest action; strike; lock-out; and any general retardation of work, whether unprotected or protected by legislation and as further comprehensively defined by the South African Labour Relations Act, 66 of 1995 and other relevant regulatory legislation;
1.14. "Intellectual Property" means any computer software, material, name, concept, training material, training instruments, copyright in documents, patentable or non-patentable inventions, discoveries and improvements, patent, trademark, trade name, drawings, designs, operational analysis, technology and know-how or other intellectual property;
1.15. “Month” means a calendar month, being one of the 12 (twelve) periods into which a year is divided;
1.16. “Parties” means Company and the Service Provider and “Party” means either Company the Service Provider as the case may be;
1.17. “Service Provider Representative” means the person appointed by the Service Provider to liaise with Company on a day-to-day basis in respect of services provided by the Service Provider to Company in terms of this Agreement;
1.18. “Tax Invoice” means an invoice as defined in the Value Added Tax Act, No. 89 of 1991, as amended;
1.19. Unless the context clearly requires a different interpretation, any reference to:
1.20. the singular includes the plural and vice versa; and
1.21. natural persons includes juristic persons and vice versa.
1.22. Where appropriate, meanings ascribed to defined words and expressions in clause 1.3 of this Agreement shall impose substantive obligations on the Parties.
1.23. Words and phrases defined in the main body of this Agreement shall bear the same meanings in the annexures and/or schedules to this Agreement where such words or phrases are not specifically defined.
1.24. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
1.25. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
1.26. 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.
1.27. The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule (i.e., the rule that a general word or clause is restricted in meaning to the same class as the specific words which precede it) shall not be applied in the interpretation of such general wording or such specific example/s.
1.28. The terms of this Agreement having been negotiated, the contra proferentem rule (i.e., that words should be interpreted against the stipulator) shall not be applied in the interpretation of this Agreement.
1.29. Any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Effective Date, and as amended or substituted from time to time.

 

2. APPOINTMENT

2.1. The Company hereby appoints the Service Provider to provide the Services as per Annexure A hereto.
2.2. The Service Provider:
2.3. warrants that it has sufficient knowledge and expertise in all aspects of the Services and has the level of skill and experience to perform the Services. The Service Provider shall use its best endeavours, care, and skill in performing all its obligations in terms of this Agreement; and
2.4. has the means and resources required to provide the Services as set out in this Agreement.

 

3. DURATION

3.1. This Agreement will commence on Signature Date.
3.2. Subject to Clause 4 the Services will commence a maximum of 1 (one) month from the Effective Date, or such further period as the Service Provider may prescribe on Signature Date, for the allocating of the necessary resources to carry out the Services.
3.3. The scope of the Services and their implementation schedule shall be recorded in Annexure A hereto (‘the Schedule’).
3.4. Subject to Clause 4 hereto, the Termination Date shall be as per Annexure A.
3.5. Notwithstanding the provisions of clause 3.4, either Party may terminate this Agreement prior to termination date, by giving the other Party 30 (thirty) days written notice, starting on the first day of the following calendar month.
3.6. Any work already performed by the Service Provider in terms of this Agreement shall be paid for by the Company up until the end of the notice period as referred to in clause 3.5 above, inclusive of the full cost for any subscription services taken out by the Service Provider on behalf of the Company.

 

4. OBLIGATIONS

4.1. The Service Provider shall provide the Services as per the Annexure A hereto.
4.2. Any amendments to the Services subsequent to the Signature Date which amendment will effect the scope or Schedule of the Services shall be agreed to by the parties and recorded in writing. The Company confirms that the Schedule of the Services and costing will be affected by such amendment, which amended Schedule and costing the Company shall be entitled to review and accept prior to commencement of the Services.
4.3. Service Provider Conduct and Obligations:
4.3.1. The Service Provider shall retain the Microsoft Partner Admin Link or Claimed Partner of Record for all Azure or Office 365 subscriptions and shall ensure such information shall be correctly secured and maintained.
4.3.2. All Services to be rendered by the Service Provider to the Company in terms of this Agreement must comply with all the reasonable instructions by the Company and shall furthermore comply with all the security and other regulations and procedures as may apply.
4.4. Company Conduct and Obligations:
4.4.1. While the majority of the Services shall be implemented remotely, in the event that the Service Provider requires access to the Company’s physical premises, the Company shall permit the Service Provider access the premises during business hours between 07:00 – 18:00 from Monday to Friday.
4.4.2. Should the Company require Services on Saturday, Sunday, Public Holidays or outside of normal business hours, additional charges shall apply to those Services rendered and included in the invoices issued to the Company by the Service Provider.
4.4.3. Any notice issued to the Company by the Service Provider requesting deliverables or further information in terms of this Agreement shall be attended to by the Company in writing within 5 (five) working days receipt thereof, should the Company fail to address the written notice, the deliverable shall be construed as have been consented to and the Service Provider shall not be held liable for any delay caused by the Company’s failure to attend to the notice timeously.
4.5. Should the Company whether directly or indirectly cause delay or amend the Schedule subsequent to the Signature Date:
4.5.1. The Service Provider shall recover from the Company charges in addition to those as at Annexure A in the event of impact on the Schedule;
4.5.2. The Company will be liable for 75% of the burn rate of the affected resources; and
4.5.3. The Company accepts the Service Provider will endeavour, but not be obligated to procure the same resources as prior to the amendment of the Schedule.

 

5. DATA PROTECTION AND PRIVACY

5.1. The Service Provider shall, for the duration of this Agreement and thereafter maintain information security practices and procedures which apply to the Services.
5.2. While the Service Provider shall implement, on request and if applicable to the Services, the necessary security measures, such as anti-virus installation, the Service Provider will not be held liable for any unauthorised access or breach of the Company’s data system should the data breach be as a result of the Company or its assignees.
5.3. In the event that there is a a) loss of data or b) unauthorised access to the data or system of the Company, or the data and system of the Service Provider which may impact the Services or the Companies system, the Service Provider shall:
5.3.1. notify the Company of such potential, suspected or actual loss of data or unauthorised access;
5.3.2. provide report on the cause of the loss of data or unauthorised access as well as the effect it may have on the Company;
5.3.3. the Company shall cooperate with the Service Provider in providing all information and access necessary to establish the origin/cause of the loss of data or unauthorised system access;
5.3.4. comply with all applicable privacy and data protection laws governing Company's or any other individual's or entity's data; and
5.3.5. to the extent such breach was caused by the Service Provider, provide written account of remedial action to secure the data and system as well as preventative measures for future unauthorised access or data loss.
5.4. Should the Service Provider be employed to provide data storage and data back up services the Company undertakes to continue to maintain an internal data back up system. The Service Provider shall not be held liable should there be any loss of data due to the Company’s failure to maintain such internal function.

 

6. FEES AND REMUNERATION

6.1. The Company agrees to pay the Service Provider the fee as per the Annexure A hereto.
Payment Specifics
6.2. Should the Company employ the Service Provider for services to be rendered on a monthly basis the Service Provider shall issue the Company invoices for the services on a monthly basis and in accordance with Annexure A.
6.3. Invoices shall be payable within 30 (thirty) days from issuing.
6.4. The fees include any costs, expenses and expenditure made by the Service Provider in respect of the Services and no additional moneys shall be payable to the Service Provider by the Company.
6.5. Out of the remuneration provided in this clause, the Service Provider shall be responsible for its own payroll expenses such as salaries, wages, etc.
6.6. Should any dispute arise relating to the amount of the charges to which the Service Provider is entitled, such dispute shall be determined in accordance with the dispute resolution clause provided for in this Agreement.
6.7. Should the Company fail to make payment of the issued invoices within the prescribed period the Service Provider will be entitled to charge interest on all overdue payments in terms of this Agreement. Interest on such arrears shall be calculated at the prime rate charged from time to time by First National Bank plus 2% (two percent) per annum.
6.8. The Directors of the Company shall bind themselves as sureties and co-principle debtors for all debts arising out of this Agreement by the Company to the Service Provider, which surety shall be annexed hereto as annexure B.

 

7. RELATIONSHIP

7.1. Nothing contained in this Agreement or otherwise shall authorize, empower or constitute the Service Provider as an agent of the Company in any manner; authorize or empower the Service Provider to assume or create an obligation or responsibility whatsoever, express or implied, on behalf of or in the name of the Company; or authorize or empower the Service Provider to bind the Company in any manner or make any representation, warranty, covenant, agreement or commitment on behalf of the Company.
7.2. This Agreement is for the delivery of the Service Provider’s Services as specified under this Agreement and nothing in this Agreement shall be deemed or construed to create, or have been intended to create a partnership, joint venture, employment, franchise, agency or other similar relationship between the Parties hereto. In furtherance of and without limiting the foregoing, the Service Provider shall not hold itself out to be the Company and the Service Provider is not and shall not hold itself out to be or be deemed to be the legal representative or agent of the Company, for any purpose whatsoever; and the Service Provider shall not act or bind the Company in any way or represent that the Company is in any way responsible for the Service Provider' acts or omissions.

 

8. TERMINATION, CANCELLATION AND BREACH OF AGREEMENT

8.1. This Agreement will commence on the Effective Date and remain in full force and effect for the duration of the Agreement subject to the Parties right of termination.
8.2. If a Party (the “Defaulting Party”) is in default or breach of any obligation which arises in terms of the Agreement and that Defaulting Party fails to remedy such default or breach within 14 (fourteen) Business Days after receipt of a written notice given by the other Party (the “Aggrieved Party”) calling upon the Defaulting Party to remedy such default or breach, then the Aggrieved Party may, without prejudice to any other rights which it may have in terms hereof or at law:
8.2.1. claim specific performance;
8.2.2. cancel this Agreement, such cancellation to be effective immediately on receipt by the Defaulting Party of a written notice to that effect; or
8.2.3. claim any money due and payable in terms of this Agreement and claim damages from the Defaulting Party.
8.3. Either party may terminate this Agreement by giving 30 (thirty) calendar days’ notice to the Company, commencing from the first day of the calendar month, provided that nothing shall preclude either Party from terminating this Agreement summarily for any cause recognized in law as sufficient.
8.4. Should this Agreement be terminated by mutual agreement between the Company and the Service Provider, the obligations of the Company shall be limited to the payment of such amounts of work done by the Service Provider, and failing such agreement, shall not exceed such amounts as may be due and payable for Services rendered in compliance with this Agreement, up to the date that this Agreement is terminated, inclusive of such subscription fees incurred by the Service Provider for the complete period of the subscription regardless of termination of the Agreement.
8.5. The Service Provider may summarily terminate this Agreement if the Company is liquidated, whether provisionally or finally; has an execution levied against its assets; is investigated or found guilty by any official prosecution/investigative authority in regards to fraud or dishonesty or any criminal act and/or civil liability.
8.6. Should this Agreement be terminated by the Service Provider in terms of clause 7.2 or 7.5 hereof, the Service Provider shall be entitled to recover from the Company Provider the costs of such action including normal collection charges and legal fees on attorney and own client scale.

 

9. PRE-ESTIMATED LIQUID DAMAGES

9.1. In the event of this Agreement being cancelled due to the Company’s negligence or failure to perform, the Company will be liable to the Service Provider for pre-estimated liquid damages suffered as a result thereof.
9.2. A certificate signed by a member or other duly authorised agent/representative of the Service Provider pertaining to the pre-estimated liquid damages shall be valid as a liquid document and shall for all purposes, including the right to obtain provisional sentence, be sufficient proof of the amount of damages.
9.3. The Company will not be entitled to retain any payment due to the Service Provider in terms of this Agreement due to dispute or otherwise.

 

10. CONFIDENTIALITY

10.1. The Service Provider warrants that all information made available to it by the Company, including but not limited to any contracts signed, materials developed, trade secrets, financial and other details, assistance or advice given or requested, operating methods and costs, will be kept as strictly confidential and will not be divulged to any third parties without the written permission of the Company. The Service Provider and its employees, contractor’s, suppliers and/or agents, will maintain the utmost secrecy in respect of all such information.
10.2. The Company warrants that all information made available to it by the Service Provider, including but not limited to any contracts signed, materials developed, trade secrets, financial and other details, assistance or advice given or requested, operating methods and costs, will be kept as strictly confidential and will not be divulged to any third parties without the written permission of the Service Provider. The Company and its employees, contractor’s, suppliers and/or agents, will maintain the utmost secrecy in respect of all such information.

 

11. NON CIRCUMVENTION

11.1. During the delivery of the Services the Company will be introduced to the employees and other business assets by the Service Provider. This is considered proprietary to the Service Provider. The Company undertakes not to circumvent the Service Provider in any manner during the duration of this Agreement or after its termination.
11.2. The Company agrees that their respective principals, corporations, divisions, subsidiaries, employees, agents, attorneys or consultants (hereinafter collectively called “Associates”) will not make any contact with, deal with or otherwise be involved in any transaction with any trust, traders corporations or individuals introduced by the Service Provider either corporately or individually, including their Associates without prior permission provided in writing by the Service Provider.
11.3. This Agreement is binding to all parties, their principals, their assignees, their nominated heirs, associates and trustees, which are directly or indirectly involved.

 

12. COMPANY PROPERTY

12.1. Upon termination of this Agreement, the Service Provider shall return to the Company all property belonging to the Company, including but not limited to any books, documents, manuals, specifications, and technical data.

 

13. CONTRACT MANAGEMENT

13.1. The Company
13.2. The Company has assigned a Representative to co-ordinate and provide overall guidance in terms of strategy, policy standards and priorities as deemed appropriate for the provision of the Services by the Service Provider and as a single point of contact.
13.3. Service Provider
13.4. The Service Provider will appoint a representative, who from the Effective Date, shall have overall responsibility for managing and coordinating the performance of the Service Provider’s obligations under this Agreement and who will have the authority to act for and on behalf of the Service Provider in respect of all matters relating to this Agreement.

 

14. WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY

14.1. The Service Provider shall exercise all reasonable skill, care, and diligence in the execution of the Services and shall carry out all its obligations in accordance with international professional standards. The Service Provider shall in all professional matters act as a faithful advisor to the Company and, in so far as any of its duties are discretionary, act fairly between the Company and third parties.
14.2. The Service Provider hereby accepts liability for and indemnifies and holds the Company harmless against all claims, demands, fines, penalties, actions, proceedings, judgments, damages, losses, costs, expenses, or other liabilities, caused whether negligently or otherwise, by the non-compliance of the Service Provider and/or its employees of their duties and obligations under this Agreement, in delict for breach of statutory duty or otherwise.

 

15. FORCE MAJEURE

15.1. If any Party is prevented or delayed in performing any obligation under this Agreement for any reason beyond the reasonable control of that Party, then that Party shall be excused from performing or timeously performing that particular obligation for the duration of that prevention or delay.
15.2. Any Party so prevented or delayed shall inform the other in writing of that prevention or delay as soon as reasonably possible after the circumstances causing such prevention or delay has arisen.
15.3. The Parties shall do everything reasonably possible to prevent, avoid or limit the duration or effects of any such prevention or delay. Upon termination of the circumstances giving rise to any such prevention or delay, the Party so prevented or delayed shall forthwith give written notice to the other Party.
15.4. While any such prevention or delay continues, the Parties shall continue to comply with their obligations under this Agreement which are not affected by it, to the extent that they are able lawfully to do so, subject to the right of the other Party not prevented from continuing with all its obligations under this Agreement to cancel this Agreement by giving written notice of such termination to the other Party.
15.5. For the purpose of this Agreement, “Force Majeure” shall mean any circumstances beyond the reasonable control of the Party concerned and shall include but not be limited to:
15.5.1. the inconsistent and/or inadequate supply of electricity by the official South African energy supplying body;
15.5.2. war, revolution, riots, mob violence, sabotage, epidemics, pandemics, accidents, breakdown of machinery or facilities where such are not part of a Party’s equipment or under a Party’s control
15.5.3. Industrial Action by workers, agents, or employees;
15.5.4. earthquakes, floods, fires or other natural physical disasters.

16. DISPUTE RESOLUTION

16.1. In the event of any dispute or difference arising between the Parties out of, or in relation to, or in connection with this Agreement, or the interpretation thereof, or its termination, both while in force and after its termination, the Party claiming such dispute or difference shall, subject to any of its rights, forthwith advise the other in writing thereof. The dispute shall be referred to the applicable authorities of the Service Provider and the Company who shall within 14 (fourteen) days of receipt of such notice, meet and negotiate in good faith in order to resolve such dispute or difference, in a “round table” setting.
16.2. Should the Parties fail to resolve such dispute or difference within 14 (fourteen) days of their first meeting or such longer period as the Parties may agree, any Party may refer such dispute or difference to formal mediation proceedings.
16.3. Should both the round table discussions and the formal mediation fail to lead to the dispute being resolved within a reasonable and/or agreed upon time frame, any Party may refer such dispute or difference to arbitration in accordance with the provisions of the Arbitration Act, Act No 42 of 1965, as amended and as amplified or limited by this clause.
16.4. Any Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party.
16.5. This clause shall not preclude any Party from obtaining relief from a court of competent jurisdiction.
16.6. The arbitration shall be held:
16.6.1. In Cape Town in the English language;
16.6.2. Immediately in an informal manner on such basis as the arbitrator may determine with a view to it being completed within 90 (ninety) days after it is demanded.
16.7. The Parties irrevocably agree that the decision in arbitration proceedings:
16.7.1. shall be final and binding upon the Parties;
16.7.2. shall be carried into effect; and
16.7.3. may be made an order of any court of competent jurisdiction.
16.8. This clause is severable from the rest of this Agreement and will remain valid and binding on the Parties notwithstanding any termination of this Agreement.
16.9. The Company hereby agrees to be responsible for any and all costs incurred by the Service Provider in the dispute resolution process, and the Company agrees to accept liability of the costs incurred by the Service Provider, should the Company be the unsuccessful party upon conclusion of the dispute resolution process.

 

17. DOMICILIA CITANDI ET EXECUTANDI

17.1. The Service Provider chooses as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court processes, notices or other documents or communication of whatsoever nature (including the exercise of any option) the following addresses:

SERVICE PROVIDER
Telephone: +27 10 824 6501
Email: info@diracdelta.co.za

The Company chooses as its domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court processes, notices or other documents or communication of whatsoever nature (including the exercise of any option) the address as at Annexure A hereto.
17.2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing. It shall be competent to give such notice by email, if applicable.
17.3. Either Party may give notice to the other Party to change the physical address chosen as its domicilium citandi et executandi to another physical address in South Africa, provided that such change shall become effective on the 7th (seventh) day from the deemed receipt of the notice by the other Party.
17.4. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered to the address chosen as the domicilium citandi et executandi.

 

18. SEVERABILITY

18.1. Each of the provisions of this Agreement shall be considered as separate terms and conditions and in the event that, this Agreement is affected by legislation or any amendment thereto, or if the provision herein contained are by virtue of that legislation or otherwise, held to be illegal, invalid, prohibited or unenforceable, than any such provisions shall be ineffective only to the extent of the illegality, prohibition or unenforceability and each of the remaining provisions thereof shall remain in full force and effect as if the illegal, invalid, prohibited, or unenforceable provision was not a part thereof.

 

19. ENTIRE AGREEMENT

19.1. This Agreement constitutes the entire contract between the Parties with regard to the matters dealt with in this Agreement and no representations, terms, conditions or warranties not contained in this Agreement will be binding on the Parties.

 

20. VARIATION AND CANCELLATION

20.1. No agreement varying, adding to, or deleting from or cancelling this Agreement will be effective unless reduced to writing and signed by or on behalf of both Parties.

 

21. INDULGENCES

21.1. No indulgences granted by the Service Provider shall constitute a waiver of any of its rights under this Agreement. Accordingly, the Service Provider will not be precluded as a consequence of having granted such indulgence, from exercising any rights against the Company which may have arisen in the past or which may arise in the future.

 

22. GOVERNING LAW

22.1. Notwithstanding the place of signature, this Agreement will be construed, executed, and delivered in accordance with the laws prevailing in the Republic of South Africa.

 

23. CESSION AND ASSIGNMENT

23.1. The Service Provider shall be entitled to cede and assign its rights and obligations in terms of this Agreement without the written consent of the Company.

 

24. CONTROLLING LANGUAGE

24.1. The original of this Agreement has been drafted and executed in the English language. This Agreement may be translated into any other language, but only this Agreement in the English language version shall be deemed the original document. If any conflict arises between the English version and any version in any other language into which this Agreement has been translated, the English language version shall have the controlling authority.