Agreement of Terms and Conditions
Client Company Name
(also referred to in this agreement as “The Client”)
1. Elected Domicilium Citandi Et Executandi. The parties to this agreement have chosen the below mentioned addresses as their domicilium citandi et executandi:-
NBConsult Company Address
Any written notice to NBConsult in connection with this agreement should be sent to the abovementioned address and marked for the attention of NBConsult.
Client Company Name
Any written notice from NBConsult to “The Client” in connection with this agreement should be sent to the abovementioned address and marked for the attention of The Chief Executive Officer.
2. Address for Service of Legal Documents. The parties have chosen their domicilium citandi et executandi, as detailed in point 1. above, to which documents and legal proceedings in connection with this agreement are to be served. Written notices from either of the parties of this agreement shall be deemed to have been duly served 14 (fourteen) days after being posted by registered post to the party’s elected domicilium citandi et executandi.
Either party may change their domicilium citandi et executandi to another within the Republic of South Africa by sending notice in writing to the other party to the specified address in point 1. In the case of either party wishing to change the telefax number specified in point 1. In this agreement no communication notice to the other party will be necessary.
3. Engagement and commencement date. Engagement will commence on a date and at a time agreed upon by the parties during normal business hours. The engagement will commence and complete within a time frame agreed upon between NBConsult and “The Client”. Upon acceptance of the signed proposal, an engineer will be scheduled at the earliest convenient date to implement the installation of agreed upon services. Any delivery date provided to “The Client” will be regarded as a proposed date, with NBConsult making all reasonable efforts to deliver on that date. If, however, NBConsult is unable through forced circumstances to deliver on the proposed date, NBConsult will take all reasonable steps to inform “The Client” in good time of the delay in delivery and arrange a new proposed delivery date.
4. Billing -. Invoices will be raised on project milestones. All work that is not included in the proposal is deemed out of scope. All depicted costs are EXCLUSIVE of VAT (if applicable). Following SOW signing, NBConsult or “The Client” may initiate a change, in writing. The change will be assessed, and any impact will be identified. As a result, the price, scope and schedule impact (if any) will be documented. The Project Change Request will be processed for “The Client’s” authorisation or closure. If NBConsult and “The Client” are unable to agree on the documented change, the scope within this Scope of Work (SOW) remains.
5. NBConsult’s employees, contractors or associates. During the term of this agreement, unless expressly agreed to in writing by NBConsult, “The Client” will undertake to neither approach, nor to hire, either directly or through an intermediary, in any way whatsoever, any of NBConsult’s employees, contractors or associates (whether for full-time, part-time or consultancy employment). This undertaking will continue in force for a period of two (2) years following the termination and/or expiration of this agreement. Failure to comply with this proviso will constitute just cause for immediate termination of this agreement and incur damages to “The Client” equal to two times the total yearly remuneration of the employee/s, contractor/s or associate/s implicated.
6. Access to “Client” environment. The client will be responsible for providing active access to the environment. NBConsult will accordingly not be liable for this and “The Client” must ensure that adequate and systematic backups are made regularly.
7. Loss of data. NBConsult will accordingly not be liable for any loss of “The Client’s” data, nor for restoration of “The Client’s” lost data, nor any other circumstance of loss resulting from “The Client’s” non-compliance with the terms of this agreement. Furthermore, if “The Client’s” system is offline /interrupted during maintenance, NBConsult will not be held responsible for “The Client’s” lost data, or any other circumstance of loss resulting from “The Client” not complying with this clause.
8. Client assistance. Should “The Client” assist with the installation of any goods or services, including software, NBConsult will not be liable for any damage caused or losses suffered as a result of “The Client’s” assistance with the installation.
9. Adherence to recommendations. “The Client” agrees to adhere to NBConsult’s recommendations, including but not limited to, advising NBConsult promptly in writing of any violation or suspected imminent violation of security. “The Client” indemnifies NBConsult against any loss, harm or damage suffered, including third party claims, arising out of any violation of security caused by the acts or omissions of “The Client” or anyone associated with “The Client”.
10. Suspension and/or termination of services. NBConsult reserves the right to suspend the service to “The Client” with reasonable notice in the following circumstances: –
10.1. If “The Client” has failed to make payment in terms of this agreement.
10.2. If “The Client” does not comply with the terms of this agreement.
10.3. If “The Client” commits a material breach of the agreement, NBConsult may temporarily suspend “The Client’s” access or use of the service following formal communication until conflict resolution has been achieved. In this circumstance, NBConsult may claim payment of all outstanding fees and charges due in terms of the signed agreement.
11. Liability. NBConsult will not be liable for any loss or damage caused by “The Client” or any other third party. NBConsult may be liable to a claim not exceeding 2.5x the total value of the disputed SOW for any viruses, destructive materials or any other data or code(“harmful material”) proven to be the fault of NBConsult by negligence or other means, which can cause harm to or otherwise impede in any manner, the operation of a computer system, network, handset or mobile device. “ “The Client” further indemnifies NBConsult against any claim resulting from any of the following:-
11.1. The use of “The Client’s” data by a third party.
11.2. The loss of “The Client’s” data.
11.3. Any non-compliance or breach of the agreement by “The Client”.
11.4. NBConsult excludes all liability howsoever caused as a result of any use of third party contractors’ goods or services.
11.5. Unless the law provides otherwise, NBConsult shall under no circumstances be liable for any special, indirect, consequential, economic or related damages to “The Client” which may arise pursuant to this agreement (or any act or omission arising during the course and scope of fulfilling its obligations in terms of this agreement), including, without limitation, any damages arising due to any loss of profits or loss of business.
12. “Confidential Information” – general. The term, “Confidential Information”, shall, for the purposes of this agreement, include without limitation, either of the agreement parties’ information of a financial, client, technical, commercial or scientific nature, It shall further include without limitation, either of the agreement parties’: know-how, trade secrets, processes, machinery, designs, drawings, technical specifications and data in whatever form, communicated to the receiving party or required by the receiving party from the disclosing party during the course of business discussions/transactions. Regarding disclosure of the aforementioned described and defined “Confidential Information”, the following applies: –
12.1. The parties agree to disclose “Confidential Information” to one another to the extent that may be required to progress and facilitate business discussions/transactions. The parties acknowledge that the “Confidential Information” is a valuable, special, secret and unique asset proprietary to the disclosing party.
12.2. The parties both agree that they will not, during the course of their business discussions/transactions with one another, or thereafter for a period of 1 (one) year, disclose the “Confidential Information” to any third party for any reason or purpose whatsoever without the prior written consent of the disclosing party, save in accordance with the provisions of this agreement.
12.3. Notwithstanding anything to the contrary contained in this agreement, the parties agree that the “Confidential Information” may be disclosed by the receiving party to its professional advisors, agents and consultants on a need-to-know basis, provided that the receiving party takes whatever necessary steps to ensure such professional advisors, agents and consultants agree to abide by the terms of this agreement to prevent the unauthorised disclosure of the “Confidential Information” to third parties.
12.4. The receiving party agrees: not to utilise, exploit, or in any other manner whatsoever, use the “Confidential Information” disclosed pursuant to the provisions of this agreement for any purpose whatsoever otherwise than as contemplated in this agreement, without the prior written consent of the disclosing party; that the unauthorised disclosure of the “Confidential Information” to a third party may cause irreparable loss, harm and damage to the disclosing party. Accordingly, the receiving party indemnifies and holds the disclosing party harmless against any loss, action, expense, claim, harm or damage of whatever nature suffered or sustained by the disclosing party pursuant to a breach by the receiving party of the provisions of this agreement.
12.5. All “Confidential Information” disclosed by the disclosing party to the receiving party is acknowledged by the receiving party to be proprietary to the disclosing party and no rights of any nature will confer to the receiving party from “Confidential Information” received from the disclosing party.
12.6. The receiving party undertakes not to use the “Confidential information” for any purpose other than that for which it has been disclosed and in accordance with the provisions of this agreement.
12.7. The parties agree that they shall protect the “Confidential Information” disclosed pursuant to the provisions of this agreement, using the same standard of care that each party applies to safeguard its own proprietary, secret or confidential information, and that the information shall be stored and handled in such a way as to prevent any authorised disclosure thereof.
13. Return of material containing or pertaining to “Confidential Information”. The disclosing party may at any time request the receiving party to return any material containing, pertaining to, or relating to “Confidential Information” that was disclosed pursuant to the terms of this agreement. In addition, the disclosing party may request the receiving party to furnish a written statement to the effect, that upon such return, the receiving party has not retained in its possession or under its control, either directly or indirectly, any such material. Alternatively, on express request of the disclosing party, the receiving party will destroy such “Confidential Information” material and furnish the disclosing party with a written statement to the effect that all such material has been destroyed. The receiving party shall comply with the request by the disclosing party to either return or destroy the “Confidential Information” within 7 (seven) days of receipt of such request.
14. Excluded “Confidential Information”. The obligations of the parties pursuant to the provision of this agreement will not apply to any “Confidential Information” that:-
14.1. is known to, or is in the possession of, the receiving party prior to the disclosure thereof by the disclosing party;
14.2. becomes publicly known otherwise than pursuant to breach of this agreement by the receiving party; is disclosed by the receiving party to satisfy the order of a court of competent jurisdiction, or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances the receiving party shall advise the disclosing party to take whatever steps it deems necessary to protect its interests in this regard; provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and the receiving party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances;
14.3. is disclosed to a third party pursuant to the prior written authorisation of the disclosing party; is received from a third party in circumstances that do not result in a breach of the provisions of this agreement.
15. Arbitration. Any dispute arising from or in connection with this agreement will be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”), by an arbitrator who has been agreed upon between the parties. If the parties fail to agree upon an arbitrator within 7 (seven) days of the dispute arising, an arbitrator or arbitrators appointed by the president of AFSA will be utilized. Nothing in this clause will prevent either party from obtaining urgent and interim relief in the courts pending the outcome of the arbitration.
16. Representations and warranties. Each party represents and warrants that it has the authority necessary to enter into this agreement, and to do all things necessary to procure the fulfilment of its obligations in terms of this agreement. The disclosing party warrants that: disclosure of the information to the receiving party will not result in a breach of any other agreement to which it is a party; disclosure will, to the best of its knowledge and belief, not infringe the rights of any third party; and the disclosing party hereby indemnifies and holds the receiving party harmless against any liability for third party claims on such a basis.
17. Amendments. No amendment, interpretation or waiver of any of the provisions of this agreement will be effective unless reduced to writing and signed by the correctly authorized representatives of both parties.
18. Enforcement. A failure to enforce or to require the performance at any time of any of the provisions of this agreement shall not be construed to be a waiver of such provision and shall not affect either the validity of this agreement, or any part hereof, or the right of any party to enforce the provisions of this agreement.
19. The entire agreement. This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement and supersedes all prior agreements between the parties, whether written or oral, with respect to the subject matter of this agreement.
20. The governing law. This agreement, and the relationships of the parties in connection with the subject matter of this agreement, shall be governed and determined in accordance with the laws of the Republic of South Africa.
21. Description. The parties agree to enter into discussions of a confidential nature relating to NBCONSULT providing IT Consulting Services to “The Client”.
22. Recording of terms and conditions. The parties wish to record the terms and conditions upon which they are prepared to disclose “Confidential Information” to one another.
For: NBConsult By (signature) __________________________________________________________________________________
By (print name): Name Surname
Office Title: Office Title
For: “The Client”: Client Name
By (signature): __________________________________________________________________________________
By (print name): Name Surname
Office Title: Office Title