MODEM COMPUTER SERVICES cc t/a IN THE NET TECHNOLOGIES
STANDARD TERMS AND CONDITIONS OF CONTRACT
For purposes of these standard terms and conditions the following words shall have the assigned meanings:
1.1 “Agreement” means any agreement in terms of which the Client appoints Modem to provide the Services and in which reference is made to these standard terms and conditions and shall include a quotation for the Services which is subsequently accepted by a Client;
1.2 “the Client” means the party that enters into an Agreement with Modem for the provision of the Services;
1.3 “Client Software” means any and all software programmes and applications devised and compiled by the Client which are the exclusive intellectual property of the Client;
1.4 “Client System” means the Client’s host computer system, including the Client Software and all computer hardware employed by the Client, in respect of which Modem has been appointed to provide the Services;
1.5 “Commencement means the date from which Modem is to commence rendering the Services to the
Date” Client in terms of an Agreement;
1.6 “Confidential means all proprietary and/or other confidential information relating to
Information” either Party’s business activities or processes, or to the Software or Client Software, which is retained for the exclusive use of such Party and does not form part of the public domain.
1.7 “Modem” shall be a reference to Modem Computer Services CC t/a In The Net Technologies, registration number 1991/026364/23, including its employees, agents and duly authorized representatives.
1.8 “the Initial Period” shall mean the period from the Commencement Date to the Termination Date;
1.9 “Parties” shall mean Modem and the Client collectively, and “Party” shall be a reference to one of the Parties;
1.10 “the Services” shall mean all internet hosting and other services rendered with respect to the Client System, and all computer hardware and materials supplied, by Modem to the Client at the Client’s specific instance and request as detailed in an Agreement;
1.11 “the Software” shall mean any and all computer software programmes , websites and/or applications devised and compiled by Modem which remain the exclusive intellectual property of Modem unless purchased by the Client and then up until the purchase price has been paid in full;
1.12 “Source Code” shall mean the base code of the Software, whether stored on or in any magnetic or optical medium, in any computer memory of whatsoever kind or in eye-readable form, from which it is possible to discern the logic, algorithms, internal structure, operating features and any other design characteristic of the Software;
1.13 “Termination Date” shall mean the date specified in the Agreement as the date on which the Services will terminate or, in the absence of any such specified date, the date on which Modem completes the Services.
The Client appoints Modem, with effect from the Commencement Date to render the Services, which appointment Modem accepts.
3.1 The Agreement will endure for the Initial Period, which may be extended by agreement between the Parties by way of a written document to that effect signed by both Parties.
3.2 Unless otherwise provided in such written extension, the terms and conditions of this Agreement shall be applicable mutatis mutandis to such extended period.
4. RIGHTS & OBLIGATIONS OF THE PARTIES
4.1 Modem shall, with effect from the Commencement Date, render the Services.
4.2 Unless otherwise agreed to in writing by the Parties, Modem shall not provide any services other than the Services as defined in the Agreement.
4.2.1 Modem will ensure that qualified and competent personnel are deployed to the Client for purposes of providing the Services.
4.3 The Client will provide Modem with all necessary access to its business premises and the Client System in order to allow Modem to effectively provide the Services.
4.3.1 The Client will promptly inform Modem of any faults or problems in the Software or Client Software and of any complaints about the Services in order to allow Modem to remedy any such faults or problems.
5. FEES AND PAYMENT
5.1 The fees payable by the Client to Modem for the Services shall be in accordance with the Agreement.
5.2 Unless otherwise specified by Modem in writing, whether in the Agreement or otherwise, Modem’s invoices are payable immediately upon delivery to the Client and the Client hereby undertakes to effect payment in full of all Modem’s invoices immediately upon receipt thereof.
5.3 All payments due to Modem shall be effected in a manner and form specified in writing by Modem from time to time. Modem specifically reserves the right as to the form of payment acceptable to it.
5.4 Modem’s invoices will set out the Services provided, the hours spent for providing the Services and the applicable charge in accordance with the Agreement.
5.5 The Client will pay to Modem compound interest at a rate of 2% above Modem’s banker’s prevailing prime interest rate on any amounts owing by the Client to Modem for the entire period during which such amounts remain in arrears.
5.6 The Client will not be entitled to withhold payment of any amount payable to Modem to satisfy any alleged claim of the Client arising from this Agreement or any other contract between the Parties, nor will the Client be entitled to set-off such an amount against the amount payable to Modem in terms of this Agreement or any other contract.
6. LIMITATION OF LIABILITY AND WARRANTIES
6.1 Modem’s liability for faulty execution of the Services rendered in terms of this Agreement as well as for all damages suffered by the Client, whether direct or indirect, as a result of the rendering of the Services, will be limited to Modem rectifying, within a reasonable time and free of charge, any Software errors caused by Modem as a result of such faulty execution of the Services and/or any complaints by the Client as to the rendering of the Services, provided that Modem is notified immediately of the damage or faulty execution of the Services.
6.2 This liability of Modem shall be totally excluded if the Client attempts to correct or allows third parties to correct or attempt to correct such faulty execution of the Services or any damage arising there from without Modem’s prior written approval.
6.2 Modem will not be liable for any loss of data which may occur while providing the Services and the Client shall be responsible for ensuring that adequate back-ups of its data are made and that such back-ups are of adequate nature and quality to allow Modem full restoration of lost data. Modem records that it will not work on any Client System if there is only one copy of the data contained on the Client System and the Client warrants by entering into this Agreement with Modem that more than one such copy does in fact exist and indemnifies Modem against any and all losses suffered in the event of no such copies in fact existing.
6.3 Any other liability on Modem’s part arising from any cause whatsoever is specifically excluded. Without limiting the generality of the aforegoing, Modem shall not be liable for any delay, failure, breakdown, damage, loss or injury caused by, inter alia:
6.3.1 alternative software, programmes and/or support services supplied by or obtained by the Client without Modem’s knowledge or consent; or
6.3.2 any modifications to the Software or the Client Software by the Client or any third party not authorized to do so in terms of this Agreement or otherwise authorized by Modem in writing; or
6.3.3 the actions, requirements or interruption of services of any telecommunications authority or supplier of telecommunications or software.
6.4 Apart from 6.1 above, under no circumstances will Modem be liable to the Client for loss of profits or for incidental, special or consequential damages arising out of or in connection with the Services rendered by Modem, whether flowing directly or indirectly from this Agreement and whether due to acts or omissions constituting negligence or otherwise of Modem or its employees, agents or of any other person for whom Modem may be held liable in terms of this Agreement, including the delivery, installation, servicing, performance or use of the Software.
6.6 Modem does not provide any warranty, express or implied, as to either the fitness or suitability of the Software for any particular purpose, nor does Modem warrant that the Software or any parts thereof will be error free, operate without interruption, or (except as otherwise provided for herein) will be compatible with any hardware or Client Software possessed or to be possessed by the Client.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 The Client and Modem acknowledge that, unless specified to the contrary in an Agreement, any and all intellectual property rights including, inter alia, trademarks, trade names, copyrights and other rights used or embodied in or in connection with the Software and the Client Software are and will remain the sole property of Modem and the Client respectively.
7.2 The Parties warrant that, to the best of their respective knowledge, the Client Software and the Software respectively do not infringe upon or violate any patent or copyright of any third party.
7.3 The Client shall not cause nor permit the reverse engineering, disassembly or decompilation, whether directly or indirectly, of the Software and may only enhance the applications of the Software subject to the terms and conditions of this Agreement and only then with the prior written consent of Modem.
7.4 The Client shall not attempt to imitate or enhance upon the functions of the Software and shall further not attempt to combine the Software with any other computer software programmes of whatsoever nature or source, without the prior written consent of Modem.
7.5 The Client acknowledges that Modem will be the exclusive owner of all right, title and interest in and to any and all derivative works of the Software and further undertakes to execute any and all documentation deemed necessary by Modem’s attorneys in order to perfect such exclusive ownership right in and to Modem.
8.1 The Parties shall, for the duration of this Agreement and forever after, hold in confidence all Confidential Information received from each other and shall not divulge such Confidential Information to any other third party, including any of their respective employees, aside from those employees directly involved with the execution of this Agreement, without the prior written approval of the other Party.
8.2 The Parties shall employ their best efforts to prevent disclosure of the Confidential Information, except as may be required by law.
8.3 Each Party shall exercise the same degree of care in protecting the Confidential Information of the other Party as it would use in protecting its own Confidential Information and will use the other Party’s Confidential Information only for the limited purpose for which such Confidential Information is disclosed and will further limit access thereto to its employees with a genuine need to know, and will take all diligent and reasonable action, by instruction, agreement or otherwise, with respect to its employees that are permitted access to the Confidential Information, in whole or in part, to comply fully with the recipient’s obligations under this Agreement.
8.4 Title in or the right to possess Confidential Information as between the Parties shall remain vested in the Party which furnished such Confidential Information to the other Party. Neither Party shall furnish to the other Party any Confidential Information which it does not have the right to furnish and indemnifies the receiving Party against any claim or liability arising from breach of such obligation.
8.5 Neither Party shall make any copies of Confidential Information received from the other Party, except as may be permitted or reasonably required for the purposes of this Agreement , and any copies so made shall be treated as original Confidential Information.
8.6 Within 30 (thirty) days of termination of this Agreement due to whatever reason, the Parties shall either return the other Party’s Confidential Information or, at the behest of the relevant Party, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof.
8.6.1 For purposes of this Agreement, the following information will not be considered to be Confidential Information:
8.6.2 information known to either of the Parties prior to the date that it was received from the other Party; or
8.6.3 information known to the public or generally available to the public prior to the date that it was disclosed by either Party to the other; or
8.6.4 information which becomes known to the public or which becomes generally known to the public subsequent to the date that it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the recipient of such information; or
8.6.5 information which either of the Parties authorizes the other Party in writing to disclose.
8.7 Any breach of the terms of this clause 8 shall entitle the aggrieved party to terminate this Agreement forthwith, notwithstanding the provisions of clause 10 hereunder, and to immediately proceed against the Infringing party for any and all damages suffered by the aggrieved party as a consequence of the other parties’ breach as aforesaid plus interest at the maximum rate permitted by law and legal costs on the attorney and client scale.
8.8 This clause 8 shall survive the termination, cancellation or expiration of this Agreement and shall remain binding on the Parties ad infinitum.
9 RESTRAINT OF TRADE
9.1 The Client shall not for the duration of this Agreement and any extensions thereof and for a period of 2 (two) years after termination of this Agreement due to any reason whatsoever, make any offers of employment to or solicit for employment any of Modem’s employees who is or was involved in the execution of this Agreement.
9.2 This clause 9 shall survive the termination, cancellation or expiration of this Agreement and shall remain binding on the Parties ad infinitum
10.1 Modem provides the Services to the Client as an independent contractor and this Agreement will not be construed as creating a partnership, joint venture or employment relationship between the Parties or as creating any other form of legal association that would impose liability on one Party for the act or failure to act of the other Party.
10.2 This Agreement does not constitute either of the Parties an agent or legal representative of the other for any purposes whatsoever and neither of the Parties shall be entitled to act on behalf of or to represent the other unless duly authorized thereto in writing.
11.1 Should the Client breach this Agreement by failing, without valid reason, to fully pay Modem’s invoices in accordance with clause 5 above within 5 (five) days after receiving written demand from Modem, then Modem shall be entitled, without prejudice to its other rights in law, to immediately cancel this Agreement and to proceed against the Client for all amounts owing to Modem, plus interest as per clause 5.6 from date of the Client’s receipt of Modem’s invoice to date of payment, as well as damages flowing from the Client’s breach as aforesaid, plus all Modem’s legal costs incurred to recover any such amounts from the Client on the attorney and client scale.
11.2 Should the Client breach any other provision of this Agreement and fail to remedy such breach within 10 (ten) days after having received written notice from Modem calling on it to do so, then Modem shall be entitled, without prejudice to its other rights in law, to cancel this Agreement forthwith and to proceed against the Client for all damages resulting from the Client's breach as aforesaid, plus interest at the maximum rate permitted by law and legal costs on the attorney and client scale.
11.3 The Client shall have reciprocal rights in terms of Clause 11.2 against Modem.
11.4 In addition to its aforegoing rights, in the event of non-payment by the Client, Modem shall be entitled to suspend and/or cancel any of the Services forthwith and without notice and the Client shall have no recourse or claim against Modem in such an event.
12 DOMICILIA AND NOTICES
12.1 The Parties choose as their respective domicilia citandi et executandi for all purposes under this Agreement, and whether in respect of court process, notices or other documents or communications of whatever nature, the addresses and facsimile numbers as contained in the Agreement.
12.2 Any notice or communication required or permitted to be given in terms of the Agreement shall be valid and effective only if in writing.
12.3 Either Party may by notice in writing to the other change its domicilium citandi et executandi to another address, and such change of address shall become effective on the seventh day after receipt of such notice by the other Party.
12.4 Any notice to a Party contained in a correctly addressed envelope and:-
12.4.1sent by prepaid registered post to such Party at its domicilium citandi et executandi; or
12.4.2delivered by hand at its domicilium citandi et executandi during ordinary business hours, shall be deemed to have been received, in the case of the former on the seventh business day after posting, and in the case of the latter, on the day of delivery provided such day is a business day, failing which on the first succeeding business day.
12.5 Any notice successfully transmitted to the other party’s fax number as recorded under 12.1 shall be deemed to have been received by the other Party on the same day of such transmission and a properly generated fax transmission report reflecting such transmission shall be prima facie proof of such notice having been successfully transmitted.
12.6 Notwithstanding anything to the contrary contained in the Agreement, a written notice or communication actually received by a Party shall be an adequate written notice to it notwithstanding that it was not sent to nor delivered at its chosen domicilium citandi et executandi.
13 TRANSFER, CESSION AND ASSIGNMENT
13.1 Neither Party shall be entitled to transfer nor cede any rights nor assign any obligations created in terms of this Agreement in whole or in part without the prior written consent of the other Party, provided that such consent shall not be unreasonably withheld.
14 FORCE MAJEURE
14.1 Modem shall not be liable for any failure to perform any of its obligations in terms of this Agreement in the event that:
11.1.1such failure was due to an impediment beyond its control;
14.1.2Modem could not reasonably have been expected to have taken the impediment and its effects upon Modem’s abilities to perform into account at the time of conclusion of this Agreement; and
14.1.3Modem could not reasonably have avoided or overcome the impediment or its effects.
14.2 An impediment as aforesaid may result from, inter alia,:
14.2.1war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
14.2.2natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
14.2.3explosions, fires, destruction of machinery, factories and other installations;
14.2.4labour unrest, including boycotts, strikes and lock-outs of all kinds, go-slows, occupation of premises by employees and work stoppages;
14.2.5acts of authority, whether lawful or unlawful, apart from acts from which Modem has assumed the risk by virtue of any other provision of this Agreement.
14.3 Relief from liability for non-performance under this clause 14 shall commence on the date upon which Modem gives notice 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 (sixty) days either of the Parties shall be entitled to terminate this Agreement and such termination shall not constitute a breach of this Agreement.
15 ENTIRE AGREEMENT
15.1 This Agreement constitutes the entire agreement between the Parties and neither Party will be entitled to rely on any terms, conditions or representations not expressly contained in this Agreement.
15.2 No variation of or addition or amendment to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of both the Parties.
15.3 Modem has not given any warranty or made any representation to the Client other than those expressly set out in this Agreement.
16.1 No indulgence, relaxation, leniency or extension by either party of any of its rights in terms of this Agreement shall be construed as a waiver of such right by that party. Both parties’ rights in terms of this Agreement being specifically reserved at all times.
17.1 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remainder of this Agreement, which will remain valid and enforceable.
18.1 The clause headings in this Agreement have been inserted for convenience only and will not be taken into account in the interpretation of this Agreement.
18.2 Any reference in this Agreement to:
18.2.1the male gender shall include a reference to the female gender and vice versa;
18.2.2the singular shall include a reference to the plural and vice versa;
18.2.3natural persons shall include legal persons and vice versa.
19.1 Both parties hereby consents to the jurisdiction of the Magistrate’s Court in respect of any disputes which may arise from this Agreement, notwithstanding that the monetary amount of such dispute exceeds the applicable maximum jurisdiction for the Magistrates’ Court.
19.2 The contents of 19.1 shall in no way limit Modem’s rights to proceed out of the High Court of South Africa in respect of any such dispute should Modem so choose.