Terms and Conditions


SUPPLY AND DISTRIBUTION AGREEMENT

 

BETWEEN

 

 

 

CONNECT-IT

(Original Brands CC trading as CONNECT-IT, and as identified herein as “CONNECT-IT”)

 

AND

THE CONNECTOR AGENT

(as identified herein as the “CA”)

 

 

 

TABLE OF CONTENTS

1.  
2. PARTIES  
3. DEFINITIONS  
4. INTERPRETATION  
5.  
6.  
7.  
8.  
9. DELIVERY  
10.  
11.  
12.  
13. SERVICE  
14. TRAINING  
15. TITLE  
16.  
17.  
18. CONFIDENTIALITY  
19.  
20. INDEMNITY  
21.  
22.  
23.  
24.  
25.  
26. WAIVER  
27.  
28. NOTICES  
29. SEVERABILITY  
30.  
31. NO PARTNERSHIP  
SCHEDULE 1: THE AGREEMENT PARTICULARS  
SCHEDULE 2: THE PRODUCTS AND PURCHASE PRICE LIST  
SCHEDULE 3: THE DISCOUNT FRAMEWORK  

 

 

 

1. PREAMBLE

  1. CONNECT-IT designs, produces and sells the Products.
  2. The CA wishes to purchase the Products from CONNECT-IT for on-sale to the Customers. 
  3. This Agreement governs the terms and conditions upon which the CONNECT-IT will supply the Products to the CA and the CA will re-sell the Products to the Customers.

 

 

 

2. PARTIES

This Agreement is made and entered into by the following parties, which are collectively hereinafter referred to as the “Parties”:

  1. Original Brands CC trading as CONNECT-IT, a close corporation established in
    accordance with the laws of South Africa, having registration number 2002/085045/23,
    with customs Import and Export number 21003855 and registered address in Centurion,
    South Africa (hereinafter referred to as the “ CONNECT-IT ”); and
  2. The CONNECTOR AGENCY (CA) identified in the Agreement Particulars

 

 

 

3. DEFINITIONS

In this Agreement, unless inconsistent with or otherwise indicated by the context:-
  1. “Agreement” means this Agreement including all schedules, annexures and appendices hereto;
  2. “Agreement Particulars” means the particulars specified in Schedule 1 hereto;
  3. “Business Day” means any day that is not a Saturday, Sunday or Public Holiday in the Republic of South Africa;
  4. "Commencement Date" means the date that the Connector Agent activates the agreement by way of acceptance of this agreement and payment of the initial order;
  5. “Confidential Information” shall mean all tangible and intangible information, in any format or material embodiment, whether proprietary or not, which  CONNECT-IT  has an interest in keeping confidential and which, by its nature, is or ought to be reasonably identifiable as confidential, and to which the CA  will gain access, whether in writing or in electronic form or pursuant to discussions between the Parties, or which may come to the CA’s  knowledge through examination, testing, visual inspection or analysis, but excluding:
    1. Information which is disclosed to the CA  by the CONNECT-IT but which was and can be demonstrated to have been, lawfully in the CA’s  possession or known to CA  prior to its disclosure; or
    2. is or comes into the public domain otherwise than through any act or default of the CA  or through any disclosure by any person acquiring the same from CONNECT-IT  or the CA;  or
    3. is disclosed to the CA  by a third party having no obligations of confidence to CONNECT-IT  in respect thereof, and has not been disclosed to that third party in consequence of a breach of confidence;
  6. “Connectors” means a component that is shaped, configured or dimensioned to connect elongate members or sheet members, and which is identified in Schedule 2 hereto;
  7. “Connecting Members” means elongate members or sheet members, typically extruded from Aluminium, which are configured to be connected together by the Connectors and which are identified in Schedule 2 hereto;
  8. "Connector Agency" (“CA”) means the Party identified in the Agreement Particulars;
  9.  “Customer” means a third party as described in the Agreement Particulars;
  10. “Discount Framework” means a framework for the discount to be applied to the Purchase Prices in accordance with the value of an Order placed by the CA for each of the Connectors and Connecting Members, as set out in Schedule 3 hereto;
  11.  “Intellectual Property” means any creation emanating from the mind and which may also manifest into tangible subject matter, which is capable of being protected by law from use by any other person, whether in terms of South African law or foreign intellectual property law, and any rights in such creation, including but not limited to patents, inventions, copyright, registered and unregistered designs, Trade Marks, know-how, trade secrets, confidential information and all other rights and interests of a similar nature in any part of the world, whether registered or not, and all rights to apply therefore;
  12. “Minimum Initial Order” means the amount set out in the Agreement Particulars;
  13. “Monthly Net Sales” means the net sales revenue per calendar month, generated by the CA through the sale of the Products to Customers in arms’ length transactions, excluding any Taxes and bona fide discounts given;
  14. “Order” means an order placed on the CONNECT-IT by the CA for the production and supply of Products, which the CA may from time to time require;
  15. “Parties” means the CA and CONNECT-IT; and “Party” means any one of them, as indicated by the context; and
  16. “Products” means the Connectors and/or the Connecting Members, as indicated by the context;
  17. “Purchase Price” means initially, in relation to each Product, the price set out in Schedule 2 hereto, excluding Taxes, which is the price at which the Products shall be offered for sale by the CONNECT-IT to the CA before applying any discount according to the Discount Framework;
  18. "Substitute Product" means:
    1. a product with the same or similar shape and/or configuration as a Connector or a Connecting Member or a composite article constructed from the Products; or
    2. a product with the same or similar function or use as a Product; or
    3. a product that is a replica of a Product; or
    4. a product that is substitutable for a Product; or
    5. a product that is capable of assembly in substantially the same manner as the Products; or
  19. a product that would be directly or indirectly competitive in the market with a Product or a composite article constructed from the Products;
  20. “CONNECT-IT’s Trade Mark” means the Trade Marks proprietary to CONNECT-IT and associated with its company or business name and/or the Products, being CONNECT-IT and/or any Trade Marks adopted by CONNECT-IT from time to time during the term of this Agreement;
  21. “Taxes” means all VAT, income, excise, regional services and other taxes of whatever nature (other than taxes generally asserted on the net income of the Parties) as well as all levies, imposts, duties, clearance charges, withholding taxes or fees of whatever nature;
  22. “Trade Mark” means any sign capable of being represented graphically, used  in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services of another person; and
  23. “VAT” means value-added tax as defined by the Value-Added Tax Act 89 of 1991.

 

 

 

4. INTERPRETATION
 
In this Agreement, unless the context requires otherwise:
  1. words importing any one gender include the other two genders, the singular includes the plural and vice versa, and references to natural persons includes created entities (whether or not having a legal personality);
  2. headings are used for convenience only and shall not be used in the interpretation of this Agreement;
  3. words or phrases defined in clause 3 shall, where they appear in any other grammatical form, have a meaning corresponding to the defined meaning;
  4. when any number of days is prescribed in this Agreement, same shall be reckoned as Business Days exclusively of the first and inclusively of the last Business Day.
  5. the expiration or termination of this Agreement shall not affect those provisions of this Agreement that expressly provide that they shall operate after any such expiration or termination, or which necessarily must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
  6. where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail; and
  7. 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 that term has not been defined in clause 3.

 

 

 

5. TERM AND TERMINATION OF THIS AGREEMENT

  1. This Agreement shall come into force on the Commencement Date, shall remain in force for a period of 1 (one) year. There will be a renewal of 1 (one) year at the discretion of CONNECT-IT, which is subject to reasonable performance by the CA. This renewal will not be unreasonably withheld by CONNECT-IT.
  2. Notwithstanding clause 5.1:
    1. In the event that a Party (the “Defaulting Party”) has a final judgment obtained against it and such judgment remains unsatisfied for a period of 10 (ten) Business Days after the other Party (the “Non-defaulting Party”) becomes aware of such judgment and the judgment creditor has or acquires the right to levy execution against any property of the Defaulting Party and the Defaulting Party fails to take timeous steps to appeal or rescind or stay such execution, the Non-defaulting Party shall be entitled, in addition to any other remedies available to it under any applicable law, to give the Defaulting Party 1 (one) month’s written notice of termination of this Agreement; and
    2. If a Party (the “Defaulting Party”) is placed in liquidation or sequestration, whether provisional or final (and whether voluntary or compulsory), or becomes insolvent, or is placed under business rescue, or makes an assignment for the benefit of its creditors and/or is unable to pay its debts as they become due or is subject to a scheme of arrangement or compromise, the other Party (the “Non-defaulting Party”) shall be deemed to have given 1 (one) month’s written notice of termination of this Agreement, provided that if the Defaulting Party is de-registered or finally wound up, this Agreement shall terminate upon the date of such de-registration or winding up.
  3. The termination of this Agreement for whatever reason, shall not affect the provisions which specifically provide for their survival after the termination of this Agreement or which by their very nature are intended to survive termination of this Agreement.

 

 

 

6. EXCLUSIVITY OF SUPPLY AND SALE

  1. The CA undertakes to use its best endeavours to create and satisfy the market for the Products amongst the Customers
  2. The CA shall purchase the Products exclusively from CONNECT-IT at the Purchase Prices and re-sell these to the Customer.   
  3. The CA acknowledges that the Products are designed and manufactured to fit and lock with other genuine Products.  If some or all of the components used are not genuine Products, the fit of the Products, as well as the quality, stability and functionality of any resulting article will be compromised, thereby damaging the reputation of CONNECT-IT and CONNECT-IT’s Trade Mark. Accordingly, the CA is obliged to formally advise Customers wishing to utilise the Product with a component which is not genuine that neither CONNECT-IT nor the CA can be held responsible for a compromised result.
  4. The CA acknowledges that certain features and designs of the Products are protected by Intellectual Property in various countries.  During the term of this Agreement and save as otherwise permitted by the provisions of this Agreement, the CA  shall not:
    1. manufacture, sell, distribute any Substitute Product for sale or use by a third party; or
    2. assist any other person to do any of the acts prohibited in clauses 6.4.1;
  5. CONNECT-IT hereby grants to the CA a non-exclusive licence to use the CONNECT-IT’s  Trade Marks strictly for the purpose of advertising, promoting, marketing and offering for sale the Products to the Customers on the terms set out in this Agreement. Any rights or goodwill arising from the CA use of CONNECT-IT’s Trade Marks shall vest in and inure to the benefit of CONNECT-IT.
  6. The CA  shall not, and shall not permit any third party, to:
    1. cause or permit anything to be done (or, as the case may be, not done) which may damage or endanger CONNECT-IT’s Intellectual Property;
    2. use CONNECT-IT’s Trade Marks:
      1. as a business name or company name;
      2. in a manner that will prejudice the distinctiveness or validity of the goodwill of CONNECT-IT therein;
      3. in connection with any products or services other than the Products;
      4. incorporated into any Trade Mark of the CA, whether or not such Trade Mark is used in connection with the performance of this Agreement;
    3. use any name, trade-mark, logo, design or symbol so resembling any of CONNECT-IT Trade Marks as to be likely to cause confusion or deception;
    4. challenge the validity or enforceability of or CONNECT-IT’s entitlement to use any of CONNECT-IT Intellectual Property or CONNECT-IT’s Trade Marks;
    5. use any Trade Mark so resembling any of CONNECT-IT’s Trade Marks as to be likely to cause confusion or deception.

 

 

 

7. ACKNOWLEDGEMENT OF THE CA
 
  1. The CA has represented to CONNECT-IT that it possesses the skills and expertise and other resources including the necessary infrastructure to conduct the business successfully.
  2. The CA acknowledges that the business should be successful if it is properly managed, employs skilled labour, enforces effective governance and time management practises and generally conducts the business in a professional and efficient manner.
  3. The CA accordingly agrees to use its best endeavours to conduct the business in an efficient, professional and diligent manner in accordance with the provisions of this Agreement, all applicable laws, regulations and best industry practices.

 

 

 

8. ORDERING AND SUPPLY OF PRODUCTS
 
  1. The terms and conditions contained herein supersede and cancel any/all previous terms and conditions given either verbally or in writing in respect of the offer for sell the Products by CONNECT-IT.
  2. Orders for the Products to be produced and supplied by CONNECT-IT  to the CA  in terms of this Agreement will be placed electronically in writing through CONNECT-IT’s web portal only,  

 

 

 

9. DELIVERY

  1. While CONNECT-IT will endeavour to deliver the Products within a reasonable time after an Order is accepted,  CONNECT-IT  shall not incur any liability whatsoever for failure to deliver Products ordered, provided delivery is made within a period of 3  (three ) months from the date of the acceptance of the Order on the web portal.
  2. Notwithstanding clause 9.1, CONNECT-IT shall not be responsible for loss suffered by the CA as a consequence of delays in delivery or for non-delivery resulting from, but not limited to, breakdown of machinery, strikes, labour disputes, war, riot, civil commotion, acts of God, acts of terrorists, shortages of components or materials, delays in delivery by suppliers of Products and services to CONNECT-IT, transport delays, government regulations or any other cause.
  3. The CA shall only be released from its obligations in terms of an accepted Order if there is a delay in delivery in excess of three (3) months from date of acceptance of Order. 
  4. CONNECT-IT shall be entitled to make deliveries in parts.
  5. All risk in respect of Products sold by CONNECT-IT, and all risk in respect of delivery of such Products shall pass to the CA:
    1. In the event of delivery of Products being effected by rail, road, sea or air transport by a carrier: on acceptance of the Products by the carrier or any representative of the carrier, the CA shall be entitled to nominate the carrier or agent responsible for transport of and/or storage of the Products as the CA's agent. CONNECT-IT will not be liable for any damage to the Products, loss of Products or any consequential damage of any nature occasioned after the Products have been delivered to the carrier or the carrier’s agent.
    2. In the event of CONNECT-IT effecting delivery of Products: upon acceptance of Products by the CA, the CA’s carrier or any representative of the CA.
    3. In the event of the CA collecting Products from the CONNECT-IT’s premises using its own or its agents transport: upon collection of the Products at CONNECT-IT’s premises. Such collection shall be entirely at the CA’s risk and the CA shall be responsible for all damage of whatsoever nature caused as a result of or during collection. The CA will be responsible for loading the Products onto the transport means, provided that CONNECT-IT may, if so requested, assist the CA with such loading, at the sole risk of the CA.

 

 

 

10. PRICES AND PAYMENT

  1. The prices payable for Products produced, supplied and delivered by CONNECT-IT   in terms of this Agreement will initially be the Purchase Prices specified in Schedule 2 hereto, before applying any discount according to the Discount Framework. 
  2. The Purchase Price of Products sold directly to Customers in their originating form and not as part of a manufactured product will be sold at the Purchaser Price as specified in Schedule 2 hereto.
  3. The Purchase Prices shall be subject to increase by CONNECT-IT at any time, provided that CONNECT-IT shall give the CA 1 (one) month’s written notice of such increase.
  4. The Purchase Prices shall be subject to discount according to the Discount Framework.  The applicable discount will be calculated according to the discount framework placed in a single Order.
  5. The CA will make payment to CONNECT-IT in respect of any specific Order, upon order on the web portal. For purposes hereof, "payment" means the actual credit of such funds to the designated bank account of CONNECT-IT.
  6. Orders for the Products will be placed by the CA, in South African Rand, and will indicate separately the amount of VAT or other Taxes applicable on the sale of the Products.  All payments to be made by the CA in terms of this Agreement will be made, free of any deductions or set-off whatsoever. 
  7. Unless expressly stipulated otherwise in writing, the Purchase Prices quoted shall be exclusive of any costs associated with transportation and delivery from CONNECT-IT’s premises, such as packaging for transit, warehousing, freight costs, and any Taxes.  Any costs incurred for the transportation and delivery of Products shall be for the CA’s account and is not included in the Purchase Price of the Products unless otherwise agreed by CONNECT-IT in writing prior to or at the time of acceptance of the CA’s Order on the web portal.
  8. The CA shall be responsible for ensuring that all necessary documentation, permits or certificates are obtained for export of the Products and shall be liable for all costs associated therewith.
  9. CONNECT-IT shall bear the cost and expense of its performance under this Agreement, unless otherwise stated. CONNECT-IT shall only be liable for other expenses incurred by it if it has specifically agreed thereto, in writing.

 

 

 

11. STOCK, WAREHOUSING AND FORECASTS
 
  1. The CA  will upon Commencement Date, place an Order for Products for a value of not less than the Minimum Initial Order to activate the Discount Framework in schedule 3.  The CA shall at all times ensure that it has stock of the Products on hand to a value of not less than 1.5 times (one and a half times) the average value of the CA’s Monthly Net Sales for the preceding 3-month (three-month) period.   
  2. Once the CA has taken delivery of the Products it shall warehouse the Products for on-sale to the Customer, in a safe and secure location, protected from sun, rain and other damage by the elements.  CONNECT-IT shall not be liable for damage to or defects in Products not properly warehoused and in accordance with this clause 11.2
  3. Reasonable quantities of stock of the Products shall be warehoused by CONNECT-IT to ensure continuity of supply to the CA, having regard to the varying nature of the business and difficulties associated with accurately forecasting requirements for the Products.

 

 

 

12. DEFECTIVE PRODUCTS AND RETURNS
 
  1. CONNECT-IT shall devote its best efforts to the adequate and diligent production and supply of the Products.
  2. CONNECT-IT warrants that the Products supplied to the CA will comply with the specifications relating thereto and warrants each Product against defective materials and workmanship.
  3. The CA  sole remedy in the case that Products supplied by CONNECT-IT are found to be defective at the instance of the CA, shall be to require CONNECT-IT to replace, at CONNECT-IT's own cost, including transport cost, any such defective Products within a period of 15 (fifteen) Business Days, provided that such defective Products will be safely stored at the CA’s  premises for this period during which period a representative of CONNECT-IT will be entitled to access the premises for purposes of inspecting such Products to confirm that they are defective.
  4. In the event that CONNECT-IT proves that there are no defects in such Products, the CA shall pay CONNECT-IT the cost of the Products with which such Products were replaced and the delivery costs which have been incurred by CONNECT-IT in replacing the Products.
  5. The CA shall be entitled to return either defective Products as provided for above or incorrect deliveries of Products purchased from CONNECT-IT, for a refund of the purchase price at which the Products were actually purchased from CONNECT-IT, subject to the written consent of CONNECT-IT and subject to the payment of a 15% (fifteen percent) handling fee on such purchase price.

 

 

 

13. SERVICE

  1. The CA will act as liaison between the Customers and CONNECT-IT, in order for CONNECT-IT to ensure that the Customers are satisfied with the Products and are informed with regard to the use, assembly and applications for the Products.
  2. The CA shall provide services to the Customers in relation to the cutting, shaping and dimensioning of the Connecting Members and shall be entitled to levy a market-related charge to Customers for the services so provided.

 

 

 

14. TRAINING

CONNECT-IT shall, at its discretion, provide training to assist relevant technical and sales personnel of the CA, with regard to the function, application and assembly of the Products, in order to enable such personnel to promote and market the Products.  CONNECT-IT shall have no other obligations to the CA in terms of training and/or technical support/assistance and the CA shall be obliged to ensure that its personnel are adequately trained and shall be liable for all expenses associated therewith.

 

 

 

15. TITLE

Ownership of the Products will remain with CONNECT-IT until payment for such Products has been made in full, notwithstanding delivery to or collection by the CA of the Products, after which ownership of the Products will pass to the CA.

 

 

 

16. INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY
 
  1. The CA shall notify CONNECT-IT in writing as soon as it becomes aware of any actual, threatened or potential claim by a third party against it, alleging that the possession, use or sale of a Product by the CA infringes the Intellectual Property or other rights of that third party ("Claim"). The CA shall, as soon as reasonably practicable, specify the nature of the Claim in reasonable detail.
  2. In the event of a Claim against the CA:
    1. the CA shall consult CONNECT-IT in deciding how it will respond to and/or defend the Claim against it;
    2. notwithstanding the outcome of the consultation process contemplated by clause 16.2, the CA shall be entitled to decide, in its sole discretion, how it will respond to and/or defend the Claim against it, provided that it shall exercise reasonable efforts to avoid any prejudice to CONNECT-IT and/or CONNECT-IT Intellectual Property. The CA shall notify CONNECT-IT of its decision within a reasonable amount of time after CONNECT-IT has been notified in writing of the Claim and has received reasonably detailed particulars of the Claim; and
    3. On request by the CA, CONNECT-IT shall provide all reasonable assistance to enable the CA to respond to and/or defend any such Claim and the CA shall indemnify CONNECT-IT against any costs, fees, including reasonable attorneys’ fees, out-of-pocket expenses, liability or Losses that CONNECT-IT may incur in offering such assistance. 

 

 

 

17. INFRINGEMENT OF SUPPLIER’S INTELLECTUAL PROPERTY
 
  1. If, during the term of this Agreement, the CA becomes aware of any actual, threatened or suspected infringement or illegal use of any item of the Intellectual Property pertaining to, embodied in or associated with, the Products by any third party ("Infringing Third Party"), the CA shall immediately notify CONNECT-IT in writing of such actual, threatened or suspected infringement or illegal use, specifying the nature of the infringement or illegal use in reasonable detail ("Infringement Notice") .CONNECT-IT shall be entitled to take whatever steps, including legal action, to bring such infringement to an end and recover any damages suffered as a result of the infringement, and the CA shall co-operate fully with CONNECT-IT in whatever steps or measures CONNECT-IT may decide to take to bring any infringement or illegal use to an end, provided that the CA shall be indemnified against all costs associated therewith.

 

 

 

18. CONFIDENTIALITY
 
  1. Confidential Information will be disclosed to and received by the CA on the express condition that it will be used only for the Purpose, and that the CA will not otherwise use or attempt to use the Confidential Information or any part of it for the CA’s exclusive advantage or gain, or the advantage or gain of any other person, directly or indirectly.
  2. The CA will keep secret and confidential the Confidential Information and will not at any time, either during the continuance of its engagement with CONNECT-IT or after the termination of such engagement, without the prior written consent of CONNECT-IT:
    1. disclose, divulge, make known or in any way communicate to any person in any part of the world, other than to employees of the
    2. CA who have a need to know the Confidential Information for the Purpose, or to employees of CONNECT-IT who have a need to know the Confidential Information; or 
    3. use or attempt to use in any manner which might cause or be calculated or likely to cause injury or loss to CONNECT-IT; (any of the Confidential Information which the CA has acquired or received or created or will acquire or receive or create while engaging with CONNECT-IT.)
  3. The CA shall at all times take or cause to be taken such reasonable precautions as may be necessary to maintain the secrecy and confidentiality of the Confidential Information and to prevent its disclosure including, without limitation, the following:
    1. The CA shall disclose the Confidential Information only to employees of the CA on a “need to know” basis;
    2. The CA shall ensure that it notifies employees to whom any of the Confidential Information has been disclosed, of the confidential nature of the information and the CA’s obligations under this Agreement;
    3. The CA shall not copy any material (whether on paper, microfilm, audio or video tape, cassette or disc, laser disc, computer software, magnetic tape, disc or cassette or any other medium of storing or recording information) or things (including tooling, patterns, moulds, dies, jigs, fixtures, and other aids to production) comprising or containing any of the Confidential Information, nor reproduce the Confidential Information in any manner, except as may be strictly necessary for the Purpose;
    4. The CA shall use all reasonable endeavours to ensure that the Confidential Information does not fall into the hands of an unauthorised third party;
  4. The CA will immediately upon demand by CONNECT-IT deliver to CONNECT-IT or if requested by CONNECT-IT destroy (and certify to CONNECT-IT the proper destruction of) all (or such parts as may be specified by CONNECT-IT) material (whether documents, microfilm, audio or video tape, cassette or disc, laser disc, computer software, magnetic tape, disc or cassette or any other medium of storing or recording information) and things (including tooling, patterns, moulds, dies, jigs, fixtures, and other aids to production) comprising or containing any of the Confidential Information, which are in its possession, power or control.
  5. Notwithstanding any other provision of this Agreement, the CA shall be authorised to disclose the Confidential Information to a third party where it is required by law to be disclosed by the CA, but only to the extent of such order and the CA shall inform CONNECT-IT of such requirement prior to making any such disclosure.

 

 

 

19. BREACH

Should a Party be in breach of any of the terms or conditions hereof and fail to remedy such breach within 10 (ten) Business Days of the receipt of notice, then the aggrieved Party shall be entitled at such Party's option to institute proceedings immediately for enforcement of the terms of this Agreement or alternatively and without further notice to declare this Agreement cancelled all of which may be done without prejudice to any claim the aggrieved Party may have for damages arising from breach of contract or any other cause.

 

 

 

20. INDEMNITY

The CA shall indemnify and continue indemnifying CONNECT-IT from any and all direct, indirect and consequential loss, liability, damage, claim, cost and expense (including without limitation reasonable attorneys’ fees) arising from or in connection with any breach by the CA of any term or condition of this Agreement.

 

 

 

21. CESSION AND ASSIGNMENT
 

The rights and obligations of the Parties are personal and may not be ceded, assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of the other Party.

 

 

 

22. FORCE MAJEURE
 
  1. If one of the Parties is prevented by force majeure from performing any of its obligations under this Agreement, that Party will promptly inform the other Party in writing of the circumstances amounting to force majeure, and such non-performance will then be excused.  The first-mentioned Party will keep the other Party informed in writing of developments which may affect the matter and will where reasonably possible remedy the non-performance promptly after that Party becomes able to do so.
  2. If conditions of force majeure persist for more than 2 (two) calendar months, the Party to which such performance was owed may terminate this Agreement with immediate effect on written notice to the other Party.
  3. Force majeure will for the purposes of this clause include acts of nature, statutes, ordinances, proclamations and decrees of national and regional governments and other civil or military authorities, and acts of third parties such as riots, strikes, arson, and malicious damage to property.

 

 

 

23. NO REPRESENTATION
 

No Party may rely on any representation which allegedly induced that Party to enter into this Agreement, unless the representation is recorded in this Agreement.

 

 

 

24. GOVERNING LAW
 

This Agreement shall be governed in all respects by the laws of the Republic of South Africa.

 

 

 

25. WHOLE AGREEMENT
  1. This document constitutes the whole of the agreement (to the exclusion of all else) between the Parties relating to the subject matter hereof.
  2. No amendment, alteration, addition, variation or consensual cancellation of this document will be valid unless in writing and signed by the Parties.

 

 

 

26. WAIVER
 
  1. No waiver of any of the terms or 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.
  2. No failure or delay on the part of either Party 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 of further exercise thereof or the exercise of any other right, power or privilege.

 

 

 

27. CHOSEN ADDRESS
 

Each Party chooses as its address for citation, service of legal processes, execution or any other purpose connected with this Agreement, his address set out here in which it shall be entitled to vary on notice provided that such address shall remain within the same magisterial district.

 

 

 

28. NOTICES
 
  1. CONNECT-IT choose as its addresses and contact numbers for all purposes in terms of this Agreement, the following addresses and contact numbers:
    1. Postal Address: Postnet Suite 11, Private Bag X8, Elarduspark, Gauteng, South Africa 0047;
    2. Physical Address: Block D  Futurum Office Park, cnr Jean & Lenchen Avenues;
    3. Attention Person: Legal Head;
    4. E-mail Address: legal@connect-it.cc;
  2. The CA chooses as its addresses and contact numbers for all purposes in terms of this Agreement, the addresses and contact numbers set out in the Agreement Particulars in Schedule 1 hereto.
  3. Any formal notice, request instruction or other document to be given hereunder, other than normal day to day correspondence between the Parties, shall be delivered or sent by registered post, facsimile transmission or e-mail address to the contacts set out hereunder as their chosen address. Any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) on the seventh (7th) Business Day following posting and (if sent by facsimile transmission or by e-mail) upon the expiration of 24 hours after dispatch.

 

 

 

29. SEVERABILITY

In the event that any of the provisions of this Agreement are found to be invalid, unlawful or unenforceable, such terms shall be severable from the remaining terms, which shall continue to be valid and enforceable.

 

 

 

30. DISPUTE RESOLUTION
 
  1. A dispute concerning or arising out of this Agreement exists once a Party notifies the other Party in writing of the nature of the dispute and requires it to be resolved under this clause.
  2. In the first instance, the senior management of the Parties shall meet to attempt to resolve the dispute in an amicable way, failing which the Parties must refer any dispute to be resolved by:
    1. mediation; failing which
    2. arbitration.
  3. Within 10 (ten) Business Days of notification of the dispute, the Parties must seek an amicable resolution to the dispute by referring it to designated and authorised representatives of each of the Parties to negotiate and resolve it by signing an agreement. If negotiation fails, the Parties must refer the dispute for resolution by mediation under the rules of the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead) (”AFSA“).
  4. If mediation fails, the Parties must refer the dispute within 10 (ten) Business Days for resolution by arbitration (including any appeal against the arbitrator’s decision) by one arbitrator (appointed by agreement between the Parties) as an expedited arbitration in Sandton under the then current rules for expedited arbitration of AFSA. The arbitrator shall be, if the matter in dispute is principally:
    1. a technical matter, an independent technical expert of not less than 10 (ten) years’ experience in the relevant technical area;
    2. an accounting matter, an impartial chartered accountant of not less than 10 (ten) years’ standing; or
    3. a legal matter, an impartial practicing advocate of not less than 10 (ten) years’ standing.
  5. If the Parties cannot agree on any arbitrator within a period of 10 (ten) Business Days after the referral, the arbitrator will be appointed by the Secretariat of AFSA. The periods for negotiation or mediation may be shortened or lengthened by written agreement between the Parties.
  6. This clause 30 will not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process, for which purpose the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.
  7. This clause 30 is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified, or cancelled for any reason or cause.

 

 

 

31. NO PARTNERSHIP
 

Nothing herein contained shall be construed so as to create or deem a partnership between the Parties hereto or to deem one Party as a representative of or employee of the other and neither Party shall be entitled to bind the other, whether in contract or otherwise.

 

Signed by the Parties hereto, in acknowledgement that they have read the terms and conditions of this Agreement; that they understand all such terms and conditions and that they agree to be bound thereby, the signatories warranting, by their signature hereto, that they are duly authorised to sign this Agreement: