3 AGREEMENT TO RENDER
THE SERVICES
3.1 The Client hereby
requests CERTECH to
render the Services and
CERTECH hereby
undertakes to render the
Services to the Client
subject to this
Agreement.
3.2 The Client hereby
consents to CERTECH
making such enquiries,
as CERTECH may deem
necessary, of any
persons and institutions
for the purpose of
considering the Client’s
said request, which
shall include but not be
limited to making
enquiries to various
credit bureaux and
banking institutions.
4 DURATION
4.1 CERTECH shall
commence rendering the
Services on the
Commencement Date and
shall continue rendering
the Services until the
Termination Date.
4.2 The Client shall
provide CERTECH with the
Client Information in
such format and at such
time(s) as CERTECH may
require.
4.3 Notwithstanding
agreement having been
reached as to the
Commencement Date, time
shall not be of the
essence in respect of
the rendering of the
Services.
5 QUOTATIONS
5.1 Any request –
whether made orally or
in writing - made by the
Client to CERTECH for
the supply of services
other than the Services
as defined in clause
1.1.20 from time to time
during the currency of
this Agreement (“the
Additional Services”)
shall be reduced to a
written quotation issued
by CERTECH to the Client
for acceptance (“the
Quotation”).
5.2 Unless otherwise
expressly varied or
stated to the contrary
in the Quotation, the
Quotation shall be
subject to terms and
conditions contained in
this document headed
‘General Terms and
Conditions’.
5.3 The Quotation shall
stipulate the price to
be paid by the Client
for the supply of the
Additional Services.
5.4 Upon receipt by
CERTECH of the Client’s
written acceptance of
the Quotation (either by
way of the Client
signing the Quotation or
accepting the Quotation
by way of written
correspondence or such
other document from the
Client), an order for
the supply of the
Additional Services
shall be deemed to have
been placed on CERTECH
by the Client (“the
Order”).
5.5 In the event of the
Quotation being accepted
by way of –
5.5.1 the Client signing
the Quotation using the
Client’s usual signature
and / or placing the
Client’s usual stamp
thereon, or
5.5.2 any form of
written correspondence
or such other document
from the Client and the
same reflects the
Client’s name as the
entity from which the
acceptance of the
Quotation emanates,
the resultant Order
shall be deemed to have
emanated from the
Client, notwithstanding
the fact that the
Quotation may have been
signed or accepted or
such order may have been
placed or signed by a
person not authorised
thereto by the Client.
6 ORDERS
6.1 Any Order placed on
CERTECH shall be subject
to terms and conditions
contained in this
document headed ‘General
Terms and Conditions’,
unless specifically
varied by CERTECH in
writing, and the terms
and conditions contained
in this document headed
‘General Terms and
Conditions’ shall at all
times take precedence
over any terms,
conditions or
stipulations contained
in any of the Client’s
documentation as may be
in conflict therewith.
6.2 Should the Client in
any way purport to
attach any conditions
which vary, amend or
conflict with the terms
and conditions contained
in this document headed
‘General Terms and
Conditions’ then,
notwithstanding anything
to the contrary so
stipulated by the
Client, the terms and
conditions contained in
this document headed
‘General Terms and
Conditions’ shall
prevail and be of full
force and effect unless
specifically varied by
CERTECH in writing with
specific reference to
the Client’s contrary
documentation.
7 OWNERSHIP
7.1 Ownership in and to
CERTECH’S Systems shall
at all times remain
vested solely in CERTECH.
7.2 All and any of the
Intellectual Property
Rights used or embodied
in or in connection with
CERTECH’S Systems are
and shall at all times
remain the property
solely of CERTECH.
7.3 Any and all rights
which the Client may
have under this
Agreement to use
CERTECH’S System and /
or the Intellectual
Property Rights shall
terminate on the
Termination Date.
7.4 The Client shall not
question or dispute the
ownership of CERTECH’S
Systems and / or the
Intellectual Property
Rights at any time
during the currency of
this Agreement or after
the termination thereof.
8 PERFORMANCE
8.1 Neither of the
Parties shall be liable
for any delay in
performing or failing to
perform any of its
obligations under this
Agreement insofar as a
Party proves that its
said delay or failure
was due to an
Impediment.
8.2 Relief from
liability for the delay
or non-performance by
reason of the provisions
of clause 8.1 shall
commence on the date
upon which the Party
seeking relief gives
notice to the other
Party of the Impediment
relied upon and shall
terminate upon the date
upon which such
Impediment ceases to
exist, provided that: if
such impediment
continues for a period
of more than 60 days
from the date of such
notice, either of the
Parties may terminate
this Agreement on notice
to the other.
8.3 CERTECH’S sole
liability for any
failure or negligence on
its part in rendering
the Services, shall be
limited to CERTECH,
within its sole and
absolute discretion -
8.3.1 in the case of it
having rendered only a
part of the Services or
part of the Additional
Services, either
rendering the remainder
of the Service or
Additional Services or
refunding to the Client
part of the amount in
fact paid to it by the
Client as consideration
therefor, and
8.3.2 in the case of it
having rendered the
incorrect Services or
incorrect Additional
Services, either
rendering the correct
Services or Additional
Services or refunding
the whole or part (as
the case may be) of the
amount in fact paid to
it by the Client as
consideration for such
incorrect Services or
Additional Services.
8.4 CERTECH shall not be
liable under any
circumstances whatsoever
for any indirect or
consequential damages of
any nature whatsoever or
any loss of profit or
special damages of any
nature whatsoever and
whether in the
contemplation of the
Parties or not, which
the Client may suffer as
a result of any failure
or negligence on the
part of CERTECH in
rendering the Services.
8.5 The Client shall not
have any claim of
whatsoever nature and
howsoever arising
against CERTECH
pertaining to the loss
of any Client
Information.
9 WARRANTIES
9.1 CERTECH does not
warrant that the
rendering of the
Services or Additional
Services or that the use
of the CERTECH Systems
in rendering the
Services or Additional
Services are suitable
for the achievement of
the Client’s intended
purpose(s), whatever
such purpose(s) may be.
9.2 The Client warrants
that all correspondence
to be sent to all and
any of the Client’s
subscribers by CERTECH
in rendering the
Services or the
Additional Services or
sent by the Client
making use of CERTECH’S
System and / or the
Intellectual Property
Rights is solicited and
complies with all
applicable laws and
regulations of the
Republic of South
Africa, including the
Electronic Transactions
and Communications Act
No. 25 of 2002.
9.3 In the event that
CERTECH is obliged -
under the prevailing
code of conduct of the
Internet Service
Providers Association of
South Africa or any
similar rules and
regulations of any
similar type body or any
other laws – to
investigate an instance
of unsolicited
correspondence having
been dispatched to any
of the Client’s
subscribers through
CERTECH’S System (“the
Complaint”), CERTECH may
charge the Client the
Administration Fee for
each report that CERTECH
compiles relating to its
investigation and
resolution of each
Complaint, regardless of
whether not the
correspondence forming
the subject matter of
the Complaint was in
fact solicited or
unsolicited.
9.4 The Client shall pay
the Administration Fee
upon presentation of
CERTECH’S invoice issued
for the same.
9.5 The Client shall not
use CERTECH’S System for
any use other than the
Designated Use.
9.6 The Client
undertakes that it will
not knowingly create,
store or disseminate any
illegal content and
commits to at all times
act lawfully in the use
of the Company’s
services and systems and
to respect copyright and
intellectual property
rights of the Company
and third parties.
10 VALUE ADDED TAX
10.1 The Client shall be
liable for payment of
VAT leviable on any
amounts payable by the
Client in terms of this
Agreement.
10.2 Any amounts payable
by the Client in terms
of this Agreement (or
any Quotation or Order)
are deemed to be
exclusive of VAT, unless
the contrary is stated.
11 PRICES
11.1 As consideration
for CERTECH rendering
the Services and / or
permitting the Client to
use CERTECH’S Systems
and / or the
Intellectual Property
Rights, the Client shall
pay CERTECH the amounts
set out in the Schedule.
11.2 CERTECH may from
time to time on no less
than 30 days’ notice to
the Client increase
those amounts set out in
the Schedule which are
payable on a monthly
basis (“the Monthly
Fees”).
11.3 The amounts
invoiced by CERTECH are
not subject to any
discounts of any nature
whatsoever.
12 PAYMENT
12.1 The Client shall
pay all amounts due to
CERTECH in terms of this
Agreement, without
deduction or set-off, by
no later than the 7th
day after presentation
of CERTECH’S requisite
invoice for the same or
the Payment Date,
whichever day is the
later.
12.2 CERTECH shall issue
monthly invoices to the
Client for payment of
the Monthly Fees.
12.3 All invoices issued
by CERTECH shall be
presented to the Client
via e-mail (at the
e-mail address stated in
the Client Information
Sheet) or telefax.
12.4 All payments due by
the Client to CERTECH in
terms of this Agreement
shall – unless the
Parties otherwise agree
that the same be paid by
way of electronic fund
transfers or cheques
deposited directly into
CERTECH’S Banking
Account - be paid by way
of a debit order
facility in favour of
CERTECH’S Banking
Account or such other
banking account as
CERTECH may direct; to
this end the Client
shall upon the signature
of this Agreement or at
anytime thereafter upon
the request of CERTECH
complete and / or sign
the necessary consent
and / or all and any
documents as may be
necessary to give effect
to this provision.
12.5 In the event of any
payment of a cheque
being dishonoured for
any reason whatsoever or
any payment by way of a
debit order being
returned, the Client
shall be liable for
payment of the Rejection
Fee.
12.6 The Client shall
pay the Rejection Fee
upon presentation of
CERTECH’S invoice issued
for the same.
12.7 CERTECH may
appropriate all payments
made by the Client to
any invoice which
CERTECH in its sole
discretion may decide.
12.8 Any amount not paid
by the Client on the due
date shall bear interest
at the Interest Rate
from the due date of
payment thereof until
date of payment.
12.9 Interest on overdue
amounts shall be
calculated on a 365 day
year (irrespective of
whether or not the year
is a leap year) and
capitalized daily.
12.10 In the event of
the Client failing to
pay in full all amounts
owing to CERTECH on the
due date of payment
thereof, CERTECH may and
the Client hereby
irrevocably authorizes
CERTECH to disclose such
failure to any credit
bureaux after having
given the Client at
least 20 business days
notice of its intention
to do so.13
CONFIDENTIALITY
13.1 Ownership in and to
the Client Information
shall at all times
remain vested solely in
the Client.
13.2 CERTECH shall keep
the Client Information
confidential, and to
this end it shall use
all reasonable
endeavours to prevent
disclosure of the Client
Information to any third
party.
13.3 CERTECH shall not
use the Client
Information for any
purpose other than to
communicate with the
Client’s clientele in
rendering the Services
or Additional Services,
or in calculating and
providing statistics and
reports to the Client.
13.4 The provisions of
clause 13.2 shall not
apply to information
which:
13.4.1 is in fact in the
public domain at the
time of the conclusion
of this Agreement;
13.4.2 comes into the
public domain after the
time of the conclusion
of this Agreement
otherwise than as a
result of the unlawful
conduct of CERTECH;
13.4.3 CERTECH is
compelled to disclose in
terms of a court order,
subpoena, search warrant
or other legal and /or
regulatory process;
13.4.4 CERTECH can show
by written record made
prior to disclosure was
made available by the
Client on a
non-confidential basis;
or
13.4.5 becomes available
to CERTECH from a source
other than the Client
and there has not been a
breach of a
confidentiality
obligation owed to the
Client by such other
source of which CERTECH
should have reasonably
been aware; or
13.4.6 it is necessary
for CERTECH to disclose
in the proper
performance of its
obligations under this
Agreement and / or
enforcing and protecting
its rights under this
Agreement, or
13.4.7 which is stolen
or unlawfully accessed.
14 TERMINATION AT
WILL
14.1 Either Party may
terminate this Agreement
on 30 days' notice to
the other Party.
15 CERTIFICATE OF
INDEBTEDNESS
15.1 A certificate
issued and signed by any
member of CERTECH, whose
signature or authority
need not be proved, in
respect of any
indebtedness of the
Client to CERTECH or in
respect of any other
fact including, but not
limited to the
generality of the
aforegoing, the fact
that the Services or
Additional Services had
been rendered, shall
serve as prima facie
evidence thereof.
16 BREACH BY THE
CLIENT
16.1 Should the Client
breach this Agreement by
failing, for any reason
whatsoever, to make
payment of the full
amount of any payment
due under this Agreement
on the due date of such
payment, CERTECH may -
without prejudice to any
alternative or
additional right of
action or remedy
available to it at law -
cancel this Agreement
with immediate effect
and claim payment from
the Client of all
amounts then owing to
CERTECH for the Services
or Additional Services
rendered up to and
including the
Termination Date and
recover from the Client
damages for such breach
and the consequent
cancellation of this
Agreement.
16.2 Should the Client
commit a breach of this
Agreement, other than a
breach of the nature
mentioned in clause
16.1, and fail to remedy
such breach within 5
days after the date of
delivery of a notice
given by CERTECH
notifying the Client of
such breach and calling
upon the Client to
remedy such breach,
CERTECH may - without
prejudice to any
alternative or
additional right of
action or remedy
available to it at law -
cancel this Agreement
with immediate effect
and claim payment from
the Client of all
amounts then owing to
CERTECH for the Services
or Additional Services
rendered up to and
including the
Termination Date and
recover from the Client
damages for such breach
and the consequent
cancellation of this
Agreement.
17 BREACH BY CERTECH
17.1 Should CERTECH
commit a breach of any
of the provisions of
this Agreement and
persist in such breach
for a period of 10 days
(or such longer period
as may reasonably be
required in the
circumstances) after
written notice shall
have been given to it by
the Client calling upon
CERTECH to remedy such
breach, the Client may -
without prejudice to any
alternative or
additional right of
action or remedy
available to the it at
law - cancel this
Agreement or claim
immediate payment and /
or specific performance
by CERTECH of CERTECH’S
obligations.
18 LEGAL COSTS
18.1 In the event of
CERTECH taking any steps
against the Client
(including, but without
limiting the generality
of the aforegoing, the
institution of legal
action) pursuant to a
breach or a repudiation
of this Agreement by the
Client, CERTECH may
recover from the Client
all costs, of whatever
nature, including legal
costs calculated on the
scale as between
attorney and client,
collection commission
and tracing agent’s
fees, incurred by
CERTECH in recovering
payment of any amount
owing to it by the
Client and / or in
regard to taking any
other steps.
19 CONSENT TO
JURISDICTION
19.1 The Client hereby
consents in terms of
Section 45 of the
Magistrate’s Courts Act
No. 32 of 1944 that any
legal proceedings
arising from this
Agreement, may be
instituted in the
Magistrate’s Court of
any district having
jurisdiction in terms of
Section 28(1) of the
said Act, provided that
CERTECH may, in its sole
discretion, institute
legal proceedings in any
division of the High
Court of South Africa,
having jurisdiction.
20 ASSIGNMENT
20.1 The Client may not
cede, assign or in any
manner make over, or
purport to cede, assign
or make over this
Agreement or any of its
rights and / or
obligations under this
Agreement, or any part
thereof, to any person
whomsoever.
20.2 CERTECH may cede to
any person whomsoever,
all or any of its rights
under and in terms of
this Agreement, and by
its signature hereto the
Client consents to such
cession. If such cession
gives rise to a
splitting of claims, the
Client hereby consents
to such splitting of
claims.
20.3 CERTECH may, on
notice to the Client,
assign all or any of its
obligations under this
Agreement to any person
whosoever, without
having to obtain the
consent of the Client
thereto.
21 WHOLE AGREEMENT
21.1 This Agreement
constitutes the whole of
the agreement between
the Parties relating to
the subject matter
thereof.
21.2 No terms or
conditions, whether oral
or written, and whether
express or implied,
other than the terms and
conditions recorded in
this Agreement shall be
of application to this
Agreement.
21.3 No Party shall be
bound by any express or
implied term,
representation,
undertaking, warranty,
promise or the like not
recorded in this
Agreement, whether or
not the same induced the
conclusion of this
Agreement and / or
whether or not the same
was negligent.
21.4 This Agreement
supersedes all and any
agreements, oral or
written, relating to the
subject matter thereof
concluded between the
Parties prior to this
Agreement.
22 NON WAIVER
22.1 No waiver of any of
the terms and conditions
of this Agreement will
be binding for any
purpose unless expressed
in writing and signed by
the Party giving the
same, and any such
waiver will be effective
only in the specific
instance and for the
purpose given.
22.2 No failure or delay
on the part of CERTECH
in exercising any right,
power or privilege will
operate as a waiver, nor
will any single or
partial exercise of any
right, power or
privilege preclude any
other or further
exercise thereof or the
exercise of any other
right, power or
privilege by CERTECH.
23 NON VARIATION
23.1 No amendment,
addition or variation or
consensual cancellation
of this Agreement or any
provision or term
thereof or of any
agreement, bill of
exchange or other
document issued or
executed pursuant to or
in terms of this
Agreement and no
settlement of any
disputes arising under
this Agreement shall be
binding upon the Parties
unless recorded in
writing and signed by
the Parties.
24 DOMICILIA
24.1 The Parties select
as their respective
domicilia citandi et
executandi for the
purpose of legal
proceedings and for the
purposes of giving or
sending any notices,
requests, demands,
consents, invoices,
statements of account,
other documents or
communications of
whatsoever nature
(collectively referred
to as “Notices”)
provided for or
necessary in terms of
this Agreement, the
following physical
addresses and telefax
numbers:
24.1.1 CERTECH
Physical address:
CERTECH’S Business
Premises
Telefax : (011) 234-1880
24.1.2 THE CLIENT
Physical address: The
address of its principal
place of
businessmentioned in the
Client Information
Sheet.
Telefax : Its telefax
number mentioned in the
Client Information Sheet
24.2 A Party may by
notice to the other
Party change its chosen
physical address to
another physical address
within the Republic of
South Africa and change
its chosen telefax
number to another
telefax number; such
change shall be
effective from the date
of receipt or deemed
receipt of the said
notice.
25 NOTICES
25.1 Any Notice required
or permitted to be given
or made in terms of this
Agreement shall be valid
and effective only if in
writing, but it shall be
competent to give notice
by telefax.
25.2 Any Notice to a
Party:
25.2.1 delivered by hand
on a business day during
ordinary business hours
at its chosen physical
address shall be deemed
to have been received on
the day of delivery; or
25.2.2 sent by telefax
to its chosen telefax
number on a business day
shall be deemed to have
been received on the
date of transmission
thereof, and if sent on
a day other than a
business day or outside
of ordinary business
hours on a business day,
the same shall be deemed
to have been received on
the 1st business day
following such date.
25.3 Notwithstanding
anything to the contrary
contained herein, a
written Notice actually
received by a Party
shall be an adequate
written Notice to it
notwithstanding that it
was not sent to or
delivered at its chosen
physical address or
chosen telefax number.
26 CO-OPERATION
26.1 Each of the Parties
undertakes to the other
to do all things
necessary or required in
order to maintain and
uphold the intent of
this Agreement.
26.2 The Parties hereby
undertake to co-operate
fully with and to
support each other and
to do all things that
may be necessary to give
full effect to the
provisions of this
Agreement.
27 SIGNATURE OF
AGREEMENT
27.1 Signature of this
Agreement by the Client
and the delivery of the
original or a copy
thereof to CERTECH shall
be deemed to constitute
an offer by the Client
to CERTECH to enter into
this Agreement (“the
Offer”).
27.2 CERTECH shall, in
the absence of it
otherwise notifying the
Client of the acceptance
of the Offer, be deemed
to have accepted the
Offer by issuing and
presenting its 1st
invoice to the Client.
28 WARRANTY OF
AUTHORITY
28.1 In the event of the
Client being a created
entity, the Client’s
Signatory, by signing
this Agreement for and
on behalf of the Client
warrants that he is duly
authorised to sign this
Agreement for and on
behalf of the Client.
29 SURETYSHIP
29.1 THE CLIENT’S
SIGNATORY - BY SIGNING
THIS AGREEMENT -
PERSONALLY BINDS HIMSELF
AS SURETY FOR AND
CO-PRINCIPAL DEBTOR
IN SOLIDUM WITH THE
CLIENT TO CERTECH FOR
THE DUE AND PUNCTUAL
PERFORMANCE BY THE
CLIENT OF ALL ITS
OBLIGATIONS ARISING OUT
OF THE AGREEMENT.
29.2 THE CLIENT’S
SIGNATORY HEREBY
EXPRESSLY RENOUNCES THE
BENEFITS AND THE LEGAL
EXCEPTIONS OF EXCUSSION,
NO VALUE RECEIVED, NO
CAUSE OF DEBT, REVISION
OF ACCOUNTS, ERRORS IN
CALCULATION, CESSION OF
ACTION AND DECLARE
HIMSELF TO BE FULLY
ACQUAINTED WITH THE
MEANING, FORCE AND
EFFECT OF ALL THESE
BENEFITS AND EXCEPTIONS.
29.3 THE CLIENT’S
SIGNATORY GIVES THE SAID
SURETYSHIP AS A
CONTINUING COVERING
SURETYSHIP. |
