This Agreement states the terms and conditions by which OfficeOnCall will provide and Customer will receive any or all of the Services provided by OfficeOnCall. Each Order Form (with exhibits, if any, attached) submitted, accepted and executed by both parties is hereby incorporated by reference herein.
(a) “Customer and OfficeOnCall Technology” respectively means each Party’s proprietary technology, including Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by each Party or licensed to it from a third party) and also including any derivatives, improvements, enhancements or extensions of any Technology conceived, reduced to practice or developed during the term of this Agreement by each Party.
(b) “Initial Term” means the minimum term for which OfficeOnCall will provide Service(s) to Customer, as indicated on the Order Form(s).
(c) “Renewal Term” means any service terms following the Initial Term as indicated in Clause 4 (b).
(d) “Services(s)” means the specific administration and/or office support service(s) provided by OfficeOnCall pursuant to this Agreement as more fully defined and described in the Order Form or any Proposal or Quotation which terms shall be incorporated herein by reference.
(e) “Start Date” means the date OfficeOnCall will begin providing the Service(s) to Customer as indicated on the Order Form(s).
(f) “OfficeOnCall” means You’re Welcome Administration (Proprietary) Limited, registration number: 2005/011300/07, a company with limited liability duly incorporated as such in terms of the Companies Act, with principle place of business at Aintree House GF01, Epsom Downs Office Park, 13 Sloane Street, Bryanston, 2194.
3. Delivery of Services:
By submitting an Order Form(s), Customer agrees to take and pay for (i) the requested Service(s) during the Initial Term and for any Renewal Term and any Additional Services where such services are not included within the scope of the requested Services as described in the Order Form(s).
4. Term: (a) Term Commencement:
The term for each Service will commence on the Start Date as indicated on the Order Form. (b) Renewal Term(s): Upon expiration of the Initial Term, the term shall be extended automatically for a period of thirty (30) days (“Renewal Term”), unless and until either party gives the other no less than thirty (30) days’ written notice of termination. The termination of any Service will not affect Customer’s obligations to pay for other Service(s).
5.1 Fees and Payment Terms:
Fees and expenses: Customer shall pay all fees and disbursements due according to the prices and terms listed in the Order Form or quoted and accepted prices or reasonable prices related to any Services provided by OfficeOnCall to Customer, in accordance with then current OfficeOnCall prices and policies as revised from time to time.
5.2 Payment Terms:
On the Start Date for each Service, Customer will be billed (the “Initial Bill”) an amount equal to (i) all non-recurring charges indicated in the Order Form(s) and (ii) the monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of each calendar month of the term. Monthly recurring charges for all months will be billed (the “Recurring Bill”) in advance of the provision of the Services. All other charges for Services received and expenses incurred for Additional or other Services during a month will either be billed immediately or at the end of the month in which the Services were provided. Payment for all fees is due upon receipt of each OfficeOnCall invoice.
All payments will be made in Z.A.R. Rand. Notwithstanding anything to the contrary in this Agreement, OfficeOnCall expressly reserves the right to alter, change or amend its billing practices including prices in its sole discretion, including but not limited to the date on which such billing will occur and the types of charges that will be included in such bills.
5.3 Late payments:
Any payment not received within fifteen (15) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a “Payment Default”) will accrue interest at a rate of fifteen point five percent (15.5%) per annum, or the highest rate allowed by applicable law, whichever is lower for a period of twenty (20) calendar days (“Payment Default Period”). It being recorded that should Customer remain in Payment Default after the Payment Default Period, OfficeOnCall shall immediately institute legal action against Customer, subject to the terms of this Agreement and permissible interest in terms of legislation as amended from time to time may be claimed.
Customer shall also pay to OfficeOnCall all expenses incurred by OfficeOnCall in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including but not limited to attorneys fees on an attorney own client scale, permissible collection charges and costs and the fees of any collection agency retained by OfficeOnCall.
5.4 Value Added Tax:
OfficeOnCall is a registered V.A.T. Vendor and all payments due to OfficeOnCall shall include permissible V.A.T. as amended from time to time.
6. Intellectual Property Ownership and Copyright protection:
This Agreement does not transfer from OfficeOnCall to Customer any OfficeOnCall Technology, and all right, title and interest in and to OfficeOnCall Technology will remain solely with OfficeOnCall and vice versa. Each party shall at all times during the term of this Agreement have and retain any and all rights of copyright or patent or other intellectual property right or protection they may own or have applied for in any material in whatever form they may exist relating in any way to the Services rendered in terms of this Agreement.
7. Confidentiality of material:
Any information, data, report, record or other material given to or prepared or assembled by OfficeOnCall under this Agreement shall not be made available to any individual or organisation by OfficeOnCall without the prior written consent of Customer, provided that consent shall not be unreasonably withheld.
8.1 Limited Warranties:
Any guarantee in the Order Form, this Agreement or made verbally is null and void if Customer fails to follow any Rules, Regulations, advice or other policies of OfficeOnCall, laws or otherwise breaches this Agreement in any respect.
OfficeOnCall does not monitor or exercise control over the content of the information transmitted through its facilities. The Services and any Additional Services are provided on an “as is” basis and Customer’s use of the Services and information aforesaid is at its own risk. Except as provided in the Order Form(s) or this Agreement, OfficeOnCall does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title and any warranties arising from a course of dealing, usage, or trade practice. OfficeOnCall does not warrant that the Services will be uninterrupted, error-free, or completely secure.
OfficeOnCall does not and cannot control the flow of information to or from OfficeOnCall's network and other portions of the Internet or telecommunication services and devices. Such flow depends in large part on the performance of Internet or telecommunication services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof) or telecommunication. OfficeOnCall cannot guarantee that such events will not occur. Accordingly, OfficeOnCall disclaims any and all liability resulting from or related to such events.
9.1 Customer Obligations:
Warranties of Customer: Customer represents and warrants that (i) Customer is at least eighteen (18) years of age; (ii) Customer possess the legal right and ability to enter into this Agreement, (iii) all information submitted on the Order Form is correct in every respect, and (iv) the performance of its obligations and use of the Services (by Customer, its customers, staff and users) will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other OfficeOnCall customer’s use of OfficeOnCall Services, Customer assumes all risks related to processing of transactions related to electronic commerce.
Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulations in terms of current legislation as amended from time to time.
10.1 Limitations of Liability:
OfficeOnCall shall not be liable for any loss of data resulting from delays, corruption of data, non-deliveries, mis-deliveries, misrepresentations, erroneous information or service interruptions. Customer shall be solely responsible for the selection, use and suitability of the Services and OfficeOnCall shall have no liability therefore. Except to the extent of OfficeOnCall's gross negligence or wilful misconduct, neither OfficeOnCall nor its sub-contractor’s or suppliers will be liable for unauthorised access to OfficeOnCall's or Customer’s transmission facilities or premise equipment or for unauthorised access to or alteration, theft or destruction of Customer’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of OfficeOnCall's or its sub-contractors' or suppliers' negligence.
Except for the parties’ indemnity obligations in Clause 11, in no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect, or consequential damages, including but not limited to, lost revenue, lost profits, loss of goodwill, replacements goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), advice, product liability, strict liability or otherwise.
OfficeOnCall may in the discharge of its Services to Customer delegate the performance of any Services to third parties including suitable sub-contractors or professionals (“Third Party Vendor/s”) within their sole discretion unless otherwise notified. OfficeOnCall may assign this Agreement in whole or part. Neither OfficeOnCall nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products/Services. Customer expressly acknowledges and agrees that use of Third Party Products/Services is at Customer’s sole risk. To the maximum extent permitted by applicable law, neither OfficeOnCall nor any Third Party Vendor will be legally responsible for any damages, whether direct, indirect, or consequential, arising from the use or inability to use any Third Party Product/Services.
Customer agrees to indemnify and hold OfficeOnCall harmless against any losses, costs, expenses, claims, damages, liabilities, penalties, actions, proceedings or judgments, resulting from any claim, suit, action, application or any proceeding brought by any third party against Customer or its affiliates related to or arising out of this Agreement, provided that OfficeOnCall or its employees, agents, representatives or Third Party Vendors have not been negligent or committed any wilful act or omission.
12.1 Termination and breach:
Termination without cause: This Agreement may be terminated by either party at any time after the Start Date for any or no reason upon either party giving to the other no less than thirty (30) days’ prior written notice of termination. Irrespective of which party terminates this Agreement pursuant to this Clause 12.1, any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
12.2 Termination for Cause:
In addition to any other rights it may have under this Agreement or applicable law, OfficeOnCall may immediately terminate this Agreement or suspend service at their sole discretion, effective without notice, in the event of (i) Payment Default after the Payment Default Period, or (ii) Customer’s breach or failure to comply with any other obligation of Customer, or (iii) any breach of warranty in terms of this Agreement. Customer may terminate this Agreement if OfficeOnCall breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by OfficeOnCall under this Clause 12.2 all remaining monthly recurring and other charges specified on the applicable Order Form(s) or outstanding invoices for the balance of the then current term shall immediately become due and payable.
OfficeOnCall reserves the right to institute legal action if necessary after termination in terms of this Clause 12 for the recovery of any arrear fees and disbursements or damages.
13. Reports of Customer and inspection:
Customer acknowledges that OfficeOnCall cannot effectively perform Services under this Agreement without full, comprehensive, accurate and honest access to documents, information and records etc. of Customer. Therefore, Customer agrees to furnish OfficeOnCall on a timely basis and upon request all records, documents, information and other documentation or information necessary for OfficeOnCall to perform the Services under this Agreement.
The terms and conditions of this Agreement shall apply solely to the Services selected by Customer on the Order Form and Additional Services accepted by OfficeOnCall. Any Services not selected, or any services not listed in the Order Form, or that fails to meet the requirements of this Agreement shall not be accepted by OfficeOnCall and shall not be within the scope of OfficeOnCall's responsibilities under this Agreement. Without limiting the foregoing, Customer acknowledges that OfficeOnCall is not providing any investment advice or financial service or insurance advice or retirement advice or securities service to Customer and that Customer is responsible for the management, decision making and investment of its assets and business. OfficeOnCall is not a Financial Institution as defined in the Financial Services Board Act No. 97 of 1990 or an Authorised Financial Services Provider and does not render “advice” as defined in the Financial Advisory and Intermediary Services Act No. 37 of 2002.
All employees and representatives of OfficeOnCall providing Services to Customer will be deemed for purposes of all compensation and employee benefits to be employees or representatives of OfficeOnCall and not employees or representatives of Customer.
16. Company to be formed:
If an individual enters into this Agreement as an agent or trustee of or for the benefit of a company or close corporation or a trust not yet formed which is to be the Customer, whether the party be described as trustee or as agent for the said company or close corporation or trust or not, then: (a) if proof satisfactory to OfficeOnCall has not been submitted to OfficeOnCall within thirty (30) days of the date of first signature of this Agreement or the Order Form whichever is signed first, that the company or close corporation or trust has been formed (registered) and has effectively ratified and adopted this Agreement, or lawfully accepted this Agreement as binding on it, the party concerned shall be personally liable hereunder as Customer; (b) until the company or close corporation or trust has become the Customer hereunder the party concerned shall be liable for all obligations imposed on the Customer hereunder.
The authorised representative(s) or any person(s) signing this Agreement in a representative capacity (the “Surety/ies”) does hereby bind himself jointly and severally as surety for and co-principal debtor in solidum with Customer to OfficeOnCall for the due fulfilment and performance by Customer of all its obligations to OfficeOnCall arising out of or pursuant to this Agreement, including any renewal thereof. The Surety hereby renounces the benefits of cession of action, excussion and division as well as all benefits arising from the legal exceptions non numeratae pecuniae, non causa debiti, error calculi, with the full force meaning and effect whereof the Surety hereby declares himself to be fully acquainted.
If the signature of the spouse of a Surety as contemplated in terms of the Matrimonial Property Act No. 88 of 1984 is not appended to this Agreement, then the signature of the Surety alone constitutes a warranty that the Surety is a person who has the necessary contractual capacity to be bound by this suretyship without such consent. If there are two or more Sureties OfficeOnCall shall be entitled to sue any Surety it elects and no other Surety may join in such action without the consent in writing from OfficeOnCall.
18. Consent to Jurisdiction of the Magistrates Court:
In terms of Section 45 of the Magistrate’s Court Act No. 32 of 1944, Customer and Surety consents to the jurisdiction of the Magistrate’s Court otherwise having jurisdiction in respect of any action to be instituted against Customer and/or Surety by OfficeOnCall in terms hereof irrespective of the amount of any claim. It shall nevertheless be entirely within the discretion of OfficeOnCall as to whether to proceed against Customer and/or Surety in such Magistrate’s Court or any other court having jurisdiction.
Any obligation of Customer to OfficeOnCall at any time shall be determined and conclusively proved by a certificate under the signature of any one director or manager of OfficeOnCall (alternatively, at the election of OfficeOnCall) and shall be deemed to be prima facie proof. It shall not be necessary to prove the appointment, authority or signature of the person signing any such certificate.
20. Warranties by individuals signing on behalf of legal entities:
Every natural person signing on behalf of any juristic person personally warrants that the signing of this Agreement by the natural person on behalf of the juristic person concerned, is within the scope of its powers, objects and authority and does not contravene any provisions of any legislation. If any juristic person intended to be bound by this Agreement is not bound by this Agreement for any reason whatsoever including but not limited to a breach of any warranty contained in this Agreement then the person signing on behalf of that juristic person shall be bound as Surety in the place of such juristic person and he shall conclusively be deemed to have signed this Agreement in his personal capacity.
21. Notices and Domicilium:
The Parties select as their respective domicilia citandi et executandi the physical addresses set out on the Order Form or these terms and Conditions. Likewise the Parties choose all the addresses set on the Order Form or these terms and Conditions for the purposes of giving or sending any other notice provided for or required hereunder, or such other physical address or fax number as may be substituted by notice given as herein required.
22. The National Credit Act:
This Agreement concluded between OfficeOnCall and Customer is not a credit agreement/facility in that OfficeOnCall did not undertake to defer the Customer’s obligation to pay any part of the cost of the Services rendered or to repay to OfficeOnCall any part of an amount in respect of the Services rendered, nor did the parties agree that any charges, fee or interest would be claimed in respect of any amount owing, and therefore the National Credit Act N0 34 of 2005 is not applicable to this Agreement.
23. Rules of interpretation:
In this Agreement: (a) words importing the singular include the plural and vice versa, (b) words importing any one gender include the other gender, (c) reference to a natural person include artificial persons and vice versa, (d) if any word or phrase is defined in any clause, that word or phrase shall bear the same meaning wherever used in this Agreement, (e) if any provision in a definition is a substantive provision conferring rights or imposing duties on any Party, notwithstanding that it is only in the definition Clause, effect shall be given to it as if it were a substantive provision of this Agreement, (f) the clause headings are intended for convenience only and shall not affect the construction or interpretation of this Agreement, (g) the rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply, (h) any reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” shall be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time.
24. General: Signature:
The Parties hereby acknowledge that no agreement shall come into place on the terms set out in this Agreement unless and until all Parties to this Agreement have signed same. Invalidity: If any provision of this Agreement is judged to be invalid, the validity of any other provision shall not be affected and the invalid provision shall be deemed to be deleted; provided however that the Parties shall use their reasonable endeavours to achieve the purpose of the invalid or unenforceable provision by a new legally valid provision. Entire Agreement: This Agreement sets forth the entire understanding of the Parties with regard to the subject matter hereof and supersedes all prior discussions, memoranda of understanding, protocols of intent and similar writings with regard hereto. The Parties waive the right to rely on any alleged express provision not contained in this Agreement.
No Representations: None of the Parties may rely on any representation which allegedly induced that Party to enter into this Agreement, unless that representation is recorded in this Agreement. Variation, termination and waiver: No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of all the Parties.
Indulgences: No indulgence granted by a Party nor the partial exercise by any Party of any power, right or privilege shall constitute a waiver or abandonment of any Party’s powers, rights or privileges under this Agreement and that Party accordingly shall not be precluded, as a consequence of having granted that indulgence or partially exercised any power, right or privilege, from the exercise of that, or any other power, right or privilege, which may have arisen in the past or which may arise in the future. Cession and delegation: None of the Parties may cede their rights nor delegate their obligations without the prior written consent of any other Parties, which consent shall not be unreasonably withheld, save as expressly permitted in this Agreement.
The interpretation, construction and effect of this Agreement and the rights and obligations of the Parties hereto shall be governed by the laws of the Republic of South Africa. Survival of terms: The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the Clause themselves do not expressly provide for this.
Counterparts: This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Prevailing terms: If there is any conflict between these terms and conditions and the Order Form, the terms and conditions shall prevail. Independent: OfficeOnCall and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between OfficeOnCall and Customer.
Successors and Assigns: Except as otherwise provided herein, this Agreement shall bind and endure to the benefit of and be enforceable by the Parties and their successors and assigns.