Standard Terms and Conditions

1    DEFINITIONS

In this agreement, unless inconsistent with or otherwise indicated by the context, the following terms will have the meanings assigned to them in this clause :

1.1    CORRECTION

Corrections to the SOFTWARE which relate to or affect the accuracy or correctness of results obtained from the SOFTWARE, but which do not change the basic operation of the SOFTWARE

1.2    ENHANCEMENTS

Significant changes to the SOFTWARE resulting in the addition of a feature or capability not present in the SOFTWARE prior to the introduction of the changes as well as any changes to the SOFTWARE designed to permit the use of the SOFTWARE on hardware and/or in conjunction with operating system software other than that for which the SOFTWARE was initially designed.

1.3    MAINTENANCE SERVICES

All ENHANCEMENTS, MODIFICATIONS, CORRECTIONS, UPGRADES and additional maintenance services to the SOFTWARE.

1.4    SOFTWARE LICENCE AGREEMENT

A licence agreement between TDI and the customer pertaining to the SOFTWARE and to be read in conjunction herewith.

1.5    SOFTWARE

Any and all application software provided by TDI.

1.6    UPGRADES

Changes or improvements to the SOFTWARE which relate to or affect the operating performance of the SOFTWARE or an aspect of the SOFTWARE, but which do not change the basic operation of the SOFTWARE

2    COMMENCEMENT AND TERM

2.1    This agreement will commence on the date of signature hereof and will continue in force until terminated in accordance with the provisions hereof.

2.2    Any party to this contract may terminate this agreement with 9 (nine) months written notice to such effect, hand delivered to a director of the other party.

2.3    In addition to any rights of termination which either party may have at common law, this agreement may be terminated by one party if the other party commits a breach of any of the terms of this agreement and fails to rectify the breach within a period of 30 (thirty) days of receipt of a written notice from the other party specifying the breach.

2.4    If the breach is not remedied in the permitted time, the aggrieved party may, without prejudice to any other rights which it may have, terminate this agreement with immediate effect upon further written notice to the other party.

3    LIABILITY

3.1    During the existence of this agreement, the liability of TDI for faulty execution of services rendered in terms of this agreement as well as all damages suffered by the customer, whether direct or indirect, as a result of the rendering of such services, will be limited to TDI rectifying, within a reasonable time and free of charge, any SOFTWARE errors caused by TDI as a result of such faulty execution of its services, provided that it is notified immediately of the damage or faulty execution of its services or an amount of damages limited as specified in clause 7.4 below.

3.2    This liability as set out in clause 7.1 is completely excluded if the customer attempts to correct or allows third parties to correct or attempt to correct such faulty execution of services or any damage arising therefrom without the prior written approval of TDI.

3.3    Subject to clause 7.4 hereunder, any other liability on the part of TDI arising from any cause whatsoever is specifically excluded.  Without limiting the generality of the foregoing, TDI will not be liable for any delay, failure, breakdown, damage or injury caused by :

3.3.1    Software, programs and services supplied by or obtained by the Customer without the consent or knowledge of TDI; or
3.3.2    software or programs modified by the Customer or any third party not authorized in writing to do so in terms of this agreement; or
3.3.3    the actions or requirements of any telecommunications authority or a supplier of telecommunication services or software.

3.4    In the event of the cancellation by the Customer of this agreement due to breach of contract by TDI, any liability of TDI to the Customer arising out of or in connection with such breach of contract by TDI shall be limited to an amount equal to the CHARGES paid by the Customer to TDI in the preceding 12 months.  The Customer shall not be entitled to recover any additional damages, resulting from any cause whatsoever, from TDI.


4    CONFIDENTIALITY AND RESTRAINT

4.1    Each party acknowledges that all material and information which has or will come into the possession or knowledge of the other in connection with this agreement or the performance of the obligations hereunder, consists of confidential and proprietary information, which, if disclosed to third parties, will be damaging.

4.2    Both parties therefore agree to hold such material and information in the strictest confidence, not to make use thereof other than for the performance of the obligations under this agreement, to release it only to employees or contractors requiring such information and not to release or disclose it to any other party.

4.3    Neither party will use the name of the other in publicity releases or advertising or for other promotional purposes, without securing the prior written approval of the other party thereto.

4.4    For the duration of this agreement and for 6 (six) months after termination hereof, the parties agree not to employ any employee of the other party without the prior written consent of such other party.

4.5    The parties agree that the provisions of this clause will survive the termination of this agreement.

5    INTELLECTUAL PROPERTY RIGHTS

5.1    The Customer acknowledges that any and all of the intellectual property rights including trade marks, trade names, copyright and other rights used or embodied in or in connection with the SOFTWARE including any ENHANCEMENTS and MODIFICATIONS are and will remain the sole property of TDI.

5.2    The Customer will not question or dispute the ownership of any such rights at any time during the continuation in force of this agreement or thereafter.

6    SETTLEMENT OF DISPUTES

6.1    Should any dispute arise between the parties in connection with the interpretation or application of the provisions of this agreement or its breach or termination or the validity of any documents furnished by the parties pursuant to the provisions of this agreement or its breach or termination or the validity of any documents furnished by the parties pursuant to the provisions of this agreement, that dispute will, unless resolved amongst the parties, be referred to and be determined by arbitration in terms of this clause.

6.2    Any party to this agreement may demand that a dispute be determined in terms of this clause by written notice given to the other party.

6.3    This clause will not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

6.4    The arbitration will be held :

6.4.1    In GAUTENG province;
6.4.2    with only the legal and other representatives of the parties to the dispute present;
6.4.3    in accordance with the formalities and procedures settled by the arbitrator, and may be held in an informal and summary manner, on the basis that it will not be necessary to observe or carry out the usual formalities or procedures, pleadings and discovery or the strict rules of evidence, it being the intention that the arbitration will be held and completed as soon as possible; and
6.4.4    on the basis that the arbitrator will be entitled to decide the dispute in accordance with what he considers to be just and equitable in the circumstances.

6.5    The arbitrator will be acceptable to both parties and, if the matter in dispute is principally :

6.5.1    a legal matter, a practising attorney or advocate of GAUTENG of at least 10 (ten) years’ standing;
6.5.2    an accounting matter, a practising chartered accountant of GAUTENG of at least 10 (ten) years’ standing;
6.5.3    any other matter, any suitably qualified person.

6.6    Should the parties to the dispute fail to agree whether the dispute is principally a legal, accounting or other matter within 7 (seven) days after the arbitration was demanded, the matter will be deemed to be a legal matter.

6.7    Should the parties fail to agree on an arbitrator within 14 (fourteen) days after notice having been given in terms of clause 10.2, the arbitrator will be appointed at the request of either party to the dispute by the Chairman for the time being of the Johannesburg Bar Council according to the provisions of clauses 10.5 and 10.6.

6.8    The decision of the arbitrator will be final and binding on the parties to the dispute and may be made an order of any court to whose jurisdiction the parties are subject at the instance of any of the parties to the dispute.

6.9    The arbitrator will be entitled to make such award, including an award for specific performance, an interdict, damages or a penalty or otherwise as he in his sole discretion may deem fit and appropriate and to deal as he deems fit subject to the limitation on damages stipulated in clause 7 hereof, with the question of costs, including, if applicable, costs on the attorney and client scale, and his own fees.

6.10    The provisions of this clause :

6.10.1    constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party will be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
6.10.2    are severable from the rest of this agreement and will remain in effect despite the termination of or invalidity for any reason of this agreement.

7    MISCELLANEOUS

7.1    Validity

If any provision of this agreement is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the parties agree to meet and review the matter and if any valid and enforceable means is reasonably available to achieve the same object as the invalid or unenforceable provision, to adopt such means by way of variation of this agreement.

7.2    Severability

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 remaining terms, which will continue to be valid and enforceable.  If any invalid term is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity.

7.3    Variation

No variation of or addition to this agreement will be of any force or effect unless reduced to writing and signed by both parties.

7.4    Waiver

No waiver on the part of either party of any rights arising from a breach of any provision of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

7.5    Force majeure

In the event that either party is unable to perform any obligation hereunder due to any circumstances beyond its control, including the action, intervention, or decree of any government, and such circumstances are not caused by the fault of a party and continue for a period of at least 60 (sixty) days, either party may terminate this agreement by means of written notice to the other party.

7.6    Assignment

No party to this agreement will be entitled to assign, cede or transfer any rights or obligations acquired in terms of this agreement in whole or in part to any third party or person without prior written consent of the other party, which will not be withheld unreasonably.

7.7    Notices

The parties choose the addresses set out on page one above as their domicilia citandi et executandi for all purposes under this agreement, whether in respect of the payment of money, the services or delivery of court process, notices or other documents or all other communications.

7.7.1    Any notice or communication required or permitted to be given in terms of this agreement will be valid and effective only if it is in writing.
7.7.2    Any party may by written notice to the other party change the address chosen as its domicilium citandi et executandi, to another address which is not constituted exclusively by a post office box address.  The change will become effective on the fifth business day from the deemed receipt of the notice by the addressee.
7.7.3    Any notice to a party delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi will be deemed to have been received on the day of delivery (unless the contrary is proved).
7.7.4    Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party will be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

7.8    Where, in this agreement, any approval is to be given or obtained, such approval will not be withheld unreasonably.