1 INTRODUCTION AND PURPOSE
1.1 It is recorded that Cliqtech (Pty) Limited and its Affiliates (hereinafter referred to as “Cliqtech”) provides services and products relevant to personal fiduciary and insurance related services.
1.2 By using Cliqtech’s Services/Products, you (hereinafter referred to as “the Client”) appoint Cliqtech as a Supplier of Service/Products and accept and agree to be bound by these terms and conditions (“Terms and Conditions”) without limitation. By entering into these Terms and Conditions, the Client further acknowledges that it has read and understands the Privacy Policy, which must be read as if specifically incorporated herein.
1.3 It is recorded further that Cliqtech has accepted such appointment, subject to the terms and conditions set forth herein.
1.4 The Client will make use of Cliqtech’s Service/Products as set out in these Terms and Conditions and the relevant Transaction Agreement signed by Client.
INTERPRETATION
2.1 In these Terms and Conditions, unless the context indicates a contrary intention:
| 2.1.1 “Affiliates” | means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries (as defined in the Companies Act 71 of 2008 as amended) and associates that directly or indirectly control or are controlled by or are under common control with a Party; |
| 2.1.2 “Applicable Law” | means all law, as amended from time to time and applicable in South Africa, and includes any present or future constitution, decree, judgement, legislation, order, ordinance, regulation, statute, treaty, directive, rule, guidance or code, practice note issued by any relevant authority or regulatory body and, if applicable, applicable Data Protection Laws; |
| 2.1.3 “Business Day” | means any day that is not a Saturday, Sunday or national public holiday in South Africa, recognised as such under the Public Holidays Act, 1994 (Act No. 36 of 1994); |
| 2.1.4 “Causal Event” | means (i) a compromise or composition or threatened compromise or composition by a Party with its creditors; (ii) provisional or final liquidation of a Party; (iii) in circumstances where there is a default or cessation or a reasonable prospect of default or cessation (as the case may be) of a Party’s normal line of business; (iv) commitment of any act or omission which would, had that Party been an individual, be an act of insolvency in terms of the Insolvency Act, 1936 (as amended); (v) disposal by a Party of a material portion of its undertaking or assets which may impact on its ability to perform its obligations in terms of these Terms and Conditions; (vi) any change in the control or material change in the shareholding of either Party; (vii) a Party becomes aware that that the other Party is “financially distressed” as defined in the Companies Act 71 of 2008; (ix) a Party is contemplating, considering, discusses or agrees to any business rescue or proposes to do any of these things or (ix) any person is proposing to take, or taking, any step to apply to court or actually applies to court for the business rescue of a Party; (x) deregistration of a Party in terms of Applicable Law; |
| 2.1.5 “Commencement Date” | means the date on which these Terms and Conditions become effective, that being earlier of the following dates (i) the Signature Date of the relevant Transaction Agreement or (ii) the date on which the Client starts using the Service/Products in terms of these Terms and Conditions; |
| 2.1.6 “Confidential Information” | means any information, including Personal Information, which is by its nature or content sensitive, confidential and/or proprietary or is provided or disclosed in confidence including but not limited to information relating to the strategic objectives and planning for both its existing and future needs, information relating to the business activities, relationships, products, Service/Products, clients and staff, price information of the Service/Products, the terms of these Terms and Conditions; technical, scientific, commercial, financial and market information and trade secrets; information or material proprietary to, or deemed to be proprietary to, a Party; information designated as confidential by a Party; information acquired by the other Party solely by virtue of the provision of the Products/Services; trade secrets of a Party; all technology, software, source code and associated material and documentation; plans, designs, drawings, functional and technical requirements and specifications; information concerning faults or defects in either Party’s systems, hardware and/or software or incidents of such faults or defects; or business plans, methodologies and all information concerning either Party’s past, present or future development, their business activities; |
| 2.1.7 “Customer Base” | means a member of the Client’s Customer Base who has a valid contractual arrangement in place with the Client and (if applicable) has accepted the terms of the Service/Product with the Client (the Customer Base to be maintained and updated by the Client, and any changes to the list must be communicated by the Client to Cliqtech at such time when any changes are affected); |
| 2.1.8 “Cliqtech” | means Cliqtech (Pty) Ltd. (Registration Number: 2018/623557/07), a private company duly incorporated with limited liability according to the company laws of the Republic of South Africa. |
| 2.1.9 “Client” | means the Party using the Service/Products and thereby being bound by these Terms and Conditions, whose further details are set out in the relevant Transaction Agreement; |
| 2.1.10 “Data Protection Laws” | means any and all laws relating to the protection of data or Personal Information relevant to a Party including the Protection of Personal Information Act, 2013 as amended (“POPIA”); |
| 2.1.11 “Data Subject” | means the person to whom the Personal Information relates, and shall bear the same meaning as set out in the POPIA; |
| 2.1.12 “Disclosing Party” | means the Party who discloses Confidential Information to the other Party in terms of these Terms and Conditions; |
| 2.1.13 “Disclosing Purpose” | The primary aim of the commercial collaboration is to establish a comprehensive framework for the deployment of a digital wills platform, that assist the receiving parties’ customers in completing, signing and storing their Will. Throughout the journey the use of Smart Financial Calculators and/or customers data will identify potential financial risks, resulting in the opportunity for the customer to purchase financial service products. |
| 2.1.14 “Fees” | Means the fees and/or costs as specified in these Terms and Conditions and/or the relevant Transaction Agreement payable by the Client to Cliqtech; |
| 2.1.15 “Intellectual Property” | means all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection wheresoever in the world, including (without limitation) patents, trademarks, present and future rights of copyright, rights in and to designs, rights in and to inventions, topography rights, software and source code, including without limitation the web-based calculator and algorithms and data related thereto, rights in and to trade secrets, rights in and to trade names, business names, domain names and logos, the right to keep information confidential and private, rights in and to Know-How, rights in and to databases, including rights of extraction, and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection, prior to and as at the Commencement Date or thereafter wheresoever in the world, whether or not any of these is registered and including applications for any such rights or registration thereof and any goodwill related to or arising from such rights. For purposes of this definition, “Know-How” means all the ideas, designs, documents, diagrams, information, devices, technical and scientific data, secret and other processes and methods used in connection with a Party’s business, as well as all available information regarding research, marketing and promotion of the services of a Party, as well as all and any modifications or improvements to any of them; |
| 2.1.16 “My Business Will Platform” | means the web-based fiduciary technology platform/application/software designed, developed, implemented and fully owned by Cliqtech which is used by the Client to integrate information from its Customer Base to produce uniquely curated Wills for its Customer Base; |
| 2.1.17 “Parties” or “Party” | means the Client and Cliqtech or either Party and associated persons/entities, as the context may indicate; |
| 2.1.18 “Personal Information” | shall bear the meaning set out in section 1 of the POPIA; |
| 2.1.19 “Process” | shall bear the meaning set out in section 1 of the POPIA; |
| 2.1.20 “Receiving Party” | means the Party, other than the Disclosing Party, to the extent that it receives disclosure of any of the Confidential Information from the Disclosing Party in terms of these Terms and Conditions; |
| 2.1.21 “Service/Product” | The Services/Product to be provided by Cliqtech (or its nominated Party) in terms of these Terms and Conditions and as more fully described in the relevant Transaction Agreement hereto; |
| 2.1.22 “Terms and Conditions” | means these Terms and Conditions and any document expressly incorporated therein on Registration. |
| 2.1.23 “Transaction Agreement” | means the relevant Transaction Agreement which is the written agreement accepted by and/or signed by the Client together with any annexures/schedules thereto entered into between Cliqtech and the Client in accordance with these Terms and Conditions which sets out, inter alia, the contracting parties, the description of the Service/Products, and the Fees payable in terms of these Terms and Conditions; |
2.2 In these Terms and Conditions, unless the context indicates a contrary intention expressions importing natural persons include reference to companies, corporations and other legal personae; pronouns importing any one gender include reference to the other genders; words importing the singular include reference to the plural and visa-versa; and a reference to a Party shall include a reference to that Party’s successors and permitted assigns
2.3 The headings to the clauses of this Agreement are for reference purposes and will not affect the interpretation of these Terms and Conditions.
2.4 If any provision in a definition is a substantive provision, conferring rights or imposing obligations on either Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision of these Terms and Conditions.
2.5 When any number of days is prescribed in these Terms and Conditions, same shall be reckoned inclusively of the last day, unless the last day falls on a day which is not a Business Day, in which case the last day shall be the immediately following Business Day.
2.6 In the event that the day for payment of any amount due in terms of these Terms and Conditions should fall on a day which is not a Business Day, then the relevant date for payment shall be the following Business Day.
2.7 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2.8 Where any term is defined within the context of any particular clause in these Terms and Conditions, 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 same meaning as ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this interpretation clause.
2.9 Any reference to an enactment in these Terms and Conditions is to that enactment as at the signature date and as amended or re-enacted from time to time.
2.10 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms and Conditions shall not apply.
2.11 The expiration or termination of these Terms and Conditions shall not affect such of the provisions of these Terms and Conditions 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 clauses themselves do not expressly provide for this.
2.12 Where any term is defined within the context of any particular clause in these Terms and Conditions, 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 same meaning as ascribed to it for all purposes in terms of these Terms and Conditions, notwithstanding that that term has not been defined in this interpretation clause.
2.13 The use of the word “include”, “including”, “for example” or “such as” are not used as, and are not to be interpreted as, words of limitation and introducing an example or examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples.
2.14 “disclosing purpose” means the purpose or reason for which the parties have entered or will enter into discussions resulting in the disclosure of Confidential Information to each other.
3 STATUS OF THESE TERMS AND CONDITIONS
3.1 These Terms and Conditions shall regulate the relationship between the Parties, together with a duly executed Transaction Agreement/s which shall set out the Services/Products and payment terms. Each Transaction Agreement shall form part of, and be subject to, all terms of these Terms and Conditions.
3.2 In the event of a conflict between the provisions of these Terms and Conditions and the provisions of the relevant Transaction Agreement, the provisions of these Terms and Conditions shall prevail to the extent of such conflict, save for the duration of the Services, in which case the Transaction Agreement shall prevail.
3.3 Nothing in these Terms and Conditions or any Transaction Agreement shall be construed as to create a relationship of employment, partnership or agency between the Parties.
4 COMMENCEMENT AND DURATION
4.1 These Terms and Conditions shall commence on the Commencement Date and shall endure for an indefinite period of time, subject to a 3 (three) calendar months’ notice period for termination in terms of these Terms and Conditions and the terms set out in the relevant Transaction Agreement.
4.2 Cliqtech shall notify the Client at least 30 (thirty) days before it makes any amendments or variations to these Terms and Conditions. The Client’s continued use of the Services/Products after such amendments have been made shall indicate that the Client agrees with the amendments and agrees to be bound by them. Should the Client not wish to be bound by the amended terms, it must terminate these Terms and Conditions as contemplated by these Terms and Conditions or any relevant Transaction Agreement.
5 PRODUCTS AND SERVICES
5.1 Cliqtech shall provide the Products/Services as set out in the relevant Transaction Agreement.
5.2 The Services/Products will be rendered or provided only upon receipt of the Transaction Agreement duly signed by an authorised representative of each Party, and in accordance with these Terms and Conditions.
5.3 The Parties acknowledge that any variation of a Transaction Agreement shall not be binding unless such variation is reduced to writing and signed by an authorised representative of each Party.
5.4 The Parties acknowledge that Cliqtech will only agree to facilitate delivery Products/Services as set out in this Agreement and Annexures based on the Client facilitating that it and its Customers take all reasonable steps to facilitate that submission of accurate data in the format that is required; it is acknowledged that Cliqtech cannot be held responsible for the accuracy thereof.
5.5 In the event that the Client’s access to the My Business Will Platform ceases, or is suspended, revoked or terminated for whatever reason as set out in the Terms and Conditions or the relevant Transaction Agreement, the Client’s access to the My Business Will Platform and any rights and benefits afforded to it and its Customer Base by Cliqtech as a result thereof shall immediately cease.
5.6 The Client agrees that it shall use the Services/Products in an ethical manner and in terms of the provisions contemplated in these Terms and Conditions. Notwithstanding anything contrary set out in these Terms and Conditions, should Cliqtech in its sole discretion determine that the Client has acted in contravention of these Terms of Agreement, including without limitation, by extracting data from the My Business Will Platform in a manner which is not authorised by Cliqtech and the applicable law, the Client’s access to and use of the Services/Products including without limitation the My Business Will Platform, shall be immediately terminated and/or suspended. Such termination and/or suspension shall automatically extend to the Client’s Customer Base in which case the Customer Base shall no longer have use or access of the Services/Products or any system in respect thereof.
6 FEES AND PAYMENT
6.1 In consideration for the Service/Products to be rendered or provided to the Client, the Client shall pay Cliqtech the Fees in the manner and frequency as set out in the relevant Transaction Agreement.
6.2 Unless otherwise stated in the relevant Transaction Agreement, all amounts shall be due and payable to Cliqtech in arrears within 7 (seven) days of receipt by the Client of a tax invoice from Cliqtech.
6.3 All payments due to Cliqtech shall be without set off or deduction.
6.4 The Client shall make payment to Cliqtech electronically based on the banking information set out in the tax invoice.
6.5 If applicable, Cliqtech shall make any payments due to the Client as set out in the relevant Transaction Agreement electronically based on the banking information set out in the tax invoice as submitted to Cliqtech by the Client.
6.6 Should the Client cease to make use of the My Business Will Platform, fail to pay any amount due to Cliqtech or should the Client’s access to the My Business Will Platform cease, be revoked, suspended or be terminated for whatever reason, the Client shall no longer be entitled to its share of earnings (whether once-off, renewal, recurring, annuity or otherwise) arising from its use of the My Business Will Platform from the date of such termination, suspension, or revocation.
6.7 The Parties shall bear their own costs of and incidental to marketing and travel, unless otherwise agreed in writing.
6.8 All amounts shall be exclusive of value added tax (VAT) unless the contrary is stated.
6.9 Should the Client not dispute the relevant invoice within 5 (five) Business Days of receipt thereof, the invoice shall be deemed to have been undisputed. Should the Client dispute an invoice within 5 (five) Business Days, it shall do so in writing to Cliqtech, which notice shall include details of the invoice being disputed, the specific amount in dispute and the reasons or grounds for such a dispute. On receipt of such notice, the Parties agree to meet within 10 (ten) Business Days to resolve the dispute amicably and in good faith. Should there be no resolution in terms of this clause, the Parties shall be entitled to proceed with the dispute resolution procedures set out in these Terms and Conditions.
7 GENERAL OBLIGATIONS OF CLIQTECH
7.1 Provide the Services/Products as set out in the relevant Transaction Agreement;
7.2 Comply with the Applicable Law while rendering or providing the Services/Products to the Client;
7.3 Have all the necessary licences, approvals, certificates, authorisations and consents required for the provision or rendering of the Services/Products;
7.4 Provide the Client with all information as may be reasonably requested by the Client relating to the Services/Products and
7.5 Comply with the reasonable and lawful instructions received from the Client pertaining to the Services/Products.
8 GENERAL OBLIGATIONS OF THE CLIENT
8.1 Comply with the obligations set out in these Terms and Conditions as well as the relevant Transaction Agreement;
8.2 Act in all respects with due care and diligence and in good faith towards Cliqtech;
8.3 Promptly consider and respond to all communications, proposals, requests, documents and other information relating to the Services/Products provided by Cliqtech;
8.4 Ensure that it uses the Services/Products in terms of these Terms and Conditions;
8.5 Advise Cliqtech immediately of any infringement of Cliqtech’s copyright, intellectual property rights and confidential information;
8.6 Immediately inform Cliqtech in writing of any dissatisfaction with the Services/Products; and
8.7 Procure that Cliqtech’s staff are afforded reasonable access to the Client’s premises where necessary in order to perform the Services or provide the Products.
9 WARRANTIES
9.1 Each Party represents and warrants that:
9.1.1 By accepting these Terms and Conditions (as set out above, whether by signature or ticking a box) it is acting as principal and not as agent for an undisclosed principal;
9.1.2 The acceptance of the terms set out in these Terms and Conditions has been duly authorised by the requisite corporate action on the part of each Party, and is in compliance with each Party’s constitutional documents;
9.1.3 The signatory or person binding the Party to these Terms and Conditions is authorised to bind the Party to these Terms and Conditions;
9.1.4 All persons employed have the skills, expertise and experience necessary to carry out all of its obligations under these Terms and Conditions;
9.1.5 The requisite care and skill will be utilised by all persons performing obligations under this Agreement and will perform all duties with the utmost good faith to one another;
9.1.6 It shall ensure that it acts in an ethical and proper manner, and does not undertake any activity that would bring the name or reputation of the other Party (or its clients, suppliers etc.) into disrepute;
9.1.7 It will comply with all Applicable Laws in the performance of its duties in terms of these Terms and Conditions; and
9.1.8 It shall adhere to all applicable data protection and protection of personal information laws and regulations in place at the time.
9.2 Cliqtech undertakes that they shall not infringe or misappropriation of any third party’s intellectual property rights.
9.3 Each of the warranties set out in this clause shall be read separately from and without prejudice to and without derogation from the others.
10 SUB-CONTRACTING
10.1 Cliqtech shall be entitled to subcontract the performance of the Services or provide the Products, provided Cliqtech obtains the prior Written consent from the Client prior to engaging a Subcontractor to perform the Services or provide the Products.
10.2 Cliqtech shall be responsible and fully liable for the performance of all Services under this Agreement by its Subcontractor.
10.3 Should the Client be of the opinion that the performance or working standards of Staff employed or engaged by Cliqtech or by its Subcontractors is not satisfactory, the Client shall notify Cliqtech setting forth the reasons for such dissatisfaction. Cliqtech shall investigate such allegations and reasons and reply to the Client within 5 (five) Days from receipt of the Client’s Written notice, proposing reasonable alternatives.
10.4 Where applicable, Cliqtech may at its own discretion substitute any subcontractor. If a subcontractor (hereinafter referred to as “the retiring provider”) of Cliqtech should for any reason whatsoever cease to provide the Product/Service, which the retiring provider is obliged to render in terms of its agreement with Cliqtech, or should the retiring provider wish to cancel the agreement with Cliqtech, or should Cliqtech choose to replace such subcontractor; Cliqtech shall have the right to appoint another subcontractor (hereinafter referred to as “the new provider”) in place of the retiring provider, provided that it notifies the Client in writing of its intention to do so.
10.5 Cliqtech warrants that, to the best of its ability, that a substitution of a subcontractor will in no material way affect the provision of Products/Services already sold and will remain continuous and in compliance with the terms and conditions and service levels as set out in the affected Transaction Agreement.
11 ADVERTISING AND MARKETING
11.1 The Client shall not make or issue any formal or informal announcement, advertisement or statement to the media in connection with these Terms and Conditions or otherwise disclose the existence of these Terms and Conditions or the subject matter thereof to any other person without the prior written consent of Cliqtech.
12 BREACH
12.1 A default of these Terms and Conditions shall occur should any one of the Parties (“the Defaulting Party”):
12.1.1 Breach any of the provisions or obligations of these Terms and Conditions and fail to remedy such breach within a period of 10 (ten) Business Days after being called upon by the other Party (“the Aggrieved Party”) to do so;
12.1.2 Repeatedly breach any provision in these Terms and Conditions within a 6 (six) month period;
12.1.3 Infringe the Intellectual Property rights of the Aggrieved Party or any third party as contemplated in these Terms and Conditions;
12.1.4 Commits a Causal Event; or
12.1.5 Breach any warranty given in terms of these Terms and Conditions.
12.2 In the event of a default in terms of clause 12.1, the Aggrieved Party shall be entitled forthwith and without prejudice to any other rights which it may otherwise have, to:
12.2.1 Claim specific performance of all the Defaulting Party’s obligations under these Terms and Conditions and claim any such damages as the Aggrieved Party may suffer as a result of the default; or
12.2.2 Cancel these Terms and Conditions and claim any such damages as the Aggrieved Party may suffer as a result of the default.
13 DISPUTE RESOLUTION
13.1 Any dispute arising out of or relating to these Terms and Conditions will first be referred to the managers dealing with the specific Transaction Agreement, or their duly authorised representatives, within 10 (ten) Business Days after the dispute was notified in writing by one to the other.
13.2 Should the dispute not be resolved in terms of clause 13.1, the Parties shall refer the dispute to their respective Chief Executive Officers of the Parties or their duly authorised representatives. The Parties shall meet and discuss the matter as soon as practicable after the matter is referred to them and, in any event, within 15 (fifteen) Business Days of the referral.
13.3 If the dispute cannot be resolved within 15 (fifteen) Business Days as set out in clause 13.2, then the dispute will be submitted for arbitration in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator appointed by AFSA.
13.4 That arbitration shall be held:
13.4.1 With the Parties and their legal representatives present thereat; and
13.4.2 At Johannesburg, South Africa.
13.5 It is the intention that the arbitration shall, where possible, be held and concluded in 21 (twenty-one) Business Days after it has been demanded. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
13.6 The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential, unless otherwise contemplated herein.
13.7 The arbitrator shall be obliged to give his award in writing, fully supported by reasons. The arbitrator appointed shall also in his discretion make a decision with regard to the costs of the arbitration, including any value-added tax, charges and disbursements and fees of a like nature incurred by the successful Party in enforcing or defending any of the provisions of this Agreement, or any claim hereunder, and shall be for the account of the unsuccessful Party. In so doing, the arbitrator shall be entitled to appoint a taxation consultant and/or a taxing master to determine the amount of the fees.
13.8 Any award that is made by the arbitrator may be made an order of court of any court to whose jurisdiction the Parties are subject.
13.9 The provisions of this clause do not prevent a Party from seeking urgent and/or interim relief from a court with competent jurisdiction.
13.10 The provisions of this clause are severable from the rest of these Terms and Conditions and shall remain in effect even if this Agreement is terminated for any reason.
14 LIMITATION OF LIABILITY AND INDEMNITIES
14.1 Save for loss arising from a breach to clauses 15 and 17, neither of the Parties will be liable for any indirect, special or consequential loss or damage sustained by the other Party of whatsoever nature and howsoever arising.
14.2 The Client shall indemnify Cliqtech against all third-party claims of infringement of patent, trademark, industrial or design rights arising from the sale or provision of Services/Products or any part thereof by the Client or its Customer Base for any claim for damages whatsoever arising from a third party as regards the use of goods or services, which fall within the ambit of this these Terms and Conditions.
14.3 The aggregate sum of Cliqtech’s liability in respect of the total claim under this Agreement is limited to 20% (twenty percent) of the total actual annual revenue due to the Client of the applicable Transaction Agreement.
15 CONFIDENTIAL INFORMATION
15.1 The Receiving Party acknowledges the importance of the Confidential Information to the Disclosing Party, and recognizes that the Disclosing Party may suffer irreparable harm or loss in the event of such information being disclosed or used otherwise than in accordance with these Terms and Conditions.
15.2 The Receiving Party shall not, during the currency of these Terms and Conditions and after the termination thereof:
15.2.1 Without the prior written consent of the Disclosing Party, disclose any Confidential Information of the Disclosing Party to another person, firm or company, other than to a third party’s employees and subcontractors and then only to the extent necessary, on a need to know basis and ensuring that internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosures by such employees and subcontractors are initiated and maintained, for the purposes of these Terms and Conditions; and
15.2.2 Utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever without the prior written consent of the Disclosing Party.
15.3 The Receiving Party shall protect the Confidential Information in the manner and with the endeavour of a reasonable person protecting their own Confidential Information.
15.4 The Parties undertake, for the duration of this Agreement and after the termination thereof, to keep all details of this Agreement confidential, save where such information is intended to be communicated in the ordinary course of business.
15.5 Confidential Information excludes information or data which:
15.5.1 Is lawfully in the public domain or already in the possession of the Receiving Party from a source other than the Disclosing Party at the time of disclosure to the Receiving Party;
15.5.2 Subsequently becomes lawfully part of the public domain by publication or otherwise;
15.5.3 Subsequently becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such Confidential Information; or
15.5.4 Is disclosed pursuant to a requirement or request by operation of law, regulation or court order; provided that the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions and provided further that the information disclosed in terms of these Terms and Conditions will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party’s possession.
16 NON-CIRCUMVENTION AND NON-SOLICITATION
16.1 The Client undertakes that it shall not at any time, whether directly or indirectly, endeavour to or actually circumvent Cliqtech by dealing directly or endeavouring to deal directly, or indirectly, with any third party or contact local or international, who is introduced to the Client by Cliqtech during the course of discussions and/or whose details are disclosed to it during such discussions. The Client undertakes not to take any action which would result in it dealing with such third parties or contacts to the exclusion of Cliqtech from the Commencement Date of these Terms and Conditions
and for the duration of these Terms and Conditions, which obligation shall continue for a period of 12 (twelve) months following the termination of these Terms and Conditions.
16.2 The parties undertake that they shall not at any time, whether directly or indirectly, endeavour to or actually circumvent each other as it relates to the disclosing purpose for a period of 60 months from the date of signature of the TA unless prior written consent has been obtained.
16.3 The Client agrees that it shall not during the duration of these Terms and Conditions and for a period of 12 (twelve) months after the termination of these Terms and Conditions, whether directly or indirectly, without the written consent of Cliqtech offer employment to or cause employment to be offered to or cause to be employed any person employed or contracted by Cliqtech and engaged in the provision or receipt of the Services/Products.
16.4 The Parties further agree that the aforesaid provisions are fair and reasonable and go no further than is necessary to protect the interests of the Parties in respect of their interests and staff.
17 INTELLECTUAL PROPERTY
17.1 For purposes of this clause, the term “Client” shall include any Affiliate Client. Nothing in these Terms and Conditions or the relevant Transaction Agreement, shall be interpreted to provide Cliqtech with any less favourable rights in respect of its Intellectual Property than those rights set out in this clause 17. Nothing in these Terms and Conditions or any Transaction Agreement shall be deemed to transfer ownership of any Intellectual Property or Intellectual Property rights belonging to Cliqtech to the Client.
17.2 Ownership and title of all Intellectual Property rights in all works either first developed or created by Cliqtech prior to the Commencement Date shall be fully vested and remain vested in Cliqtech.
17.3 Ownership and title of all Intellectual Property rights in all works developed or created by Cliqtech during the duration of these Terms and Conditions, shall be fully vested and shall remain vested in Cliqtech, even if handed to the Client pursuant to these Terms and Conditions or developed during the course of Cliqtech’s engagements with the Client. In respect of such works handed to the Client pursuant to these Terms and Conditions, Cliqtech hereby grants to the Client, unless specifically otherwise provided for in a Transaction Agreement, a non-exclusive, non-transferable, non-sublicensable, royalty free and perpetual licence to use such works for the benefit of the Client.
17.4 Any modification, development or upgrade of Cliqtech’s Intellectual Property, whether undertaken in conjunction with or by suggestion of the Client, shall vest solely in Cliqtech notwithstanding the Client’s involvement therein.
17.5 The Client agrees that neither it nor its present or future employees, agents or contractors shall, during these Terms and Conditions or at any time thereafter sell, let, publish, adapt or attempt to adapt, copy or duplicate or reproduce or attempt to do so, disassemble, reverse engineer or otherwise infringe on Cliqtech’s Intellectual Property rights.
17.6 Notwithstanding anything to the contrary in these Terms and Conditions, data stored and accessed using the Services/Products, including without limitation information from the Customer Base, any system Calculators, or granular information, howsoever obtained and by whomever, which is accessible to the Client using the My Business Will Platform shall, subject to the limitations set out in the Data Protection Legislation, fully vest in Cliqtech. The Client shall not be entitled to access, modify, copy, extract, publish, adapt or attempt to adapt, duplicate or reproduce such data without Cliqtech’s prior written consent. Cliqtech may at its sole discretion use, develop and restrict the Client’s access to such data. A breach by the Client of this clause 17.6 constitutes a material breach of these Terms and Conditions.
17.7 The Client agrees, when discharging its obligations herein, to identify Cliqtech’s Intellectual Property rights as being the invention, innovation, development and proprietary property of Cliqtech.
17.8 Intellectual Property rights in all works developed or created by the Client or its staff and imparted to or handed over by the Client or its staff to Cliqtech, whether prior to or after the Commencement Date, shall remain vested in the Client. Cliqtech shall use the Client’s Intellectual Property imparted to or handed over by the Client or its staff to Cliqtech strictly in accordance with the terms of these Terms and Conditions and only for purposes of providing the Services/Products, and shall specifically not be permitted to use the Client’s Intellectual Property for the benefit of any person outside the Client without the prior written consent of the Client, which may be withheld at the Client’s sole discretion.
17.9 Neither Party shall acquire any rights, title or interest of any kind in any Intellectual Property owned by the other Party, unless expressly agreed thereto in writing and signed by each Party.
17.10 Each Party shall:
17.10.1 not do or permit any acts to be done which are calculated to prejudice, affect, impair or destroy the right, or interest of the other Party’s Intellectual Property rights; and
17.10.2 forthwith notify the other Party in Writing of any actual or threatened infringement of the other Party’s Intellectual Property rights which may come to its attention.
18 DATA PROTECTION
18.1 The Parties shall at all times comply with any and all applicable Data Protection Laws, and the Parties in particular shall ensure at all times to Process Personal Information in accordance with such legislation, and to the extent that any service provider that Processes Personal Information on behalf of the Parties will also adhere to such requirements.
18.2 In the event that Cliqtech Processes the Client’s Personal Information or the Personal Information of Data Subjects for purposes of providing the Services/Products, it is recorded that, pursuant to its obligations under these Terms and Conditions, Cliqtech may Process the Personal Information of Data Subjects in connection with and for the purposes of the provision of the Services/Products.
18.3 The Client warrants that it has obtained the necessary consents required from the Data Subjects in terms of the applicable Data Protection Laws to allow Cliqtech to lawfully Process their Personal Information for purposes of fulfilling Cliqtech’s obligations and providing the Services/Products under these Terms and Conditions. For avoidance of doubt, the Client warrants that its Customer Base is fully appraised and understands the full extent to which their Personal Information is processed by Cliqtech.
19 FORCE MAJEURE
19.1 Neither Party (“the Affected Party”) shall be liable to the other Party for any delay or failure of the Affected Party to carry out any of its obligations under these Terms and Conditions, other than a payment obligation, arising from or attributable to acts of God, war, terrorism, governmental act, fire, labour action or unrest, explosion, accident, civil commotion, failure of third-party suppliers or any other cause whatsoever beyond the reasonable control of the Affected Party (“force majeure event”).
19.2 The performance of the obligations of the Affected Party shall, subject to clause 19.3, be suspended for the duration of the force majeure event, which shall be deemed to commence only upon the date of written notice by the Affected Party to the other Party. Upon cessation of the force majeure event, these Terms and Conditions shall become fully operational, and the Affected Party shall immediately resume its performance.
19.3 If a Party is prevented from performing under this Agreement for a period of longer than 20 (twenty) days, the Party that was prevented from performing under these Terms and Conditions may give written notice of termination of these Terms and Conditions. The termination will be effective from the date of notifying the receiving Party.
20 GOVERNING LAW AND JURISDICTION
20.1 This Agreement will be governed and construed in all respects in accordance with the laws of the Republic of South Africa, and the Parties hereby consent and submit to the jurisdiction of the High Court of South Africa (Johannesburg) with regard to all litigation proceedings.
21 DOMICILIUM (NOTICES)
21.1 The Parties choose as their Domicilium Citandi et Executandi for all purposes under these Terms and Conditions, unless otherwise specified, the addresses mentioned below:
The Client
The address and domicilium details set out in the relevant Transaction Agreement.
Cliqtech
Address: 1st Floor, Unit 4, Waterfront Office Park, Ferndale, 2196
Email: zale@smartwill.co.za
For attention: Zale Hechter
21.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if given in writing, but it shall be competent to give notice by email.
21.3 Any Party may, by notice to the others, change the physical address chosen as its Domicilium Citandi et Executandi to another physical address in the Republic of South Africa, or its email address as set out by written notice given as set out herein.
21.4 Any notice to a Party which is:
21.4.1 Sent by prepaid registered post in a correctly addressed envelope to it at its domicilium citandi et executandi, shall be deemed to have been received on the 7 th (seventh) Business Day after posting (unless the contrary is proved); or
21.4.2 Delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi, shall be deemed to have been received on the Business Day of delivery; or
21.4.3 Transmitted by email to its chosen email address, shall be deemed to have been received on the 1 st (first) Business Day following the date of dispatch (unless the contrary is proved).
21.5 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall 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.
22 GENERAL
22.1 These Terms and Conditions, together with the relevant Transaction Agreement, constitutes the entire agreement between the Parties with regard to the matters dealt with herein.
22.2 Neither Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. These Terms and Conditions supersede and replace all prior commitments, undertakings or representations, whether oral or written, between the Parties in respect of the subject matter hereof.
22.3 No variation or consensual cancellation of these Terms and Conditions shall be of any force or effect unless reduced to writing and signed by the Parties hereto.
22.4 No indulgence, leniency or extension of time, which any Party may grant or show to any of the other Party, shall in any way prejudice such Party or preclude it from exercising any of its rights in the future.
22.5 No part of these Terms and Conditions may be ceded, assigned, transferred or made over to by either Party without the prior written consent of the other Party, whose consent will not be unreasonably withheld.
22.6 Without prejudice to any other provision of these Terms and Conditions, any successor in title, including any executor, heir, liquidator, judicial manager, curator or trustee, of either Party shall be bound by these Terms and Conditions.
22.7 The Parties undertake at all times to do and procure the doing of all such things, to perform all such acts and to take all such steps open to them and necessary for or incidental to the putting into effect or maintaining of the terms, conditions and import of these Terms and Conditions.
22.8 Should any provision of these Terms and Conditions be held to be invalid, unlawful or unenforceable, such provisions will be severable from the remaining provisions of these Terms and Conditions, which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties shall forthwith negotiate an amendment to remove the invalidity.
Where applicable, these Terms and Conditions may be executed and delivered by the Parties hereto in any number of counterparts, including scanned /electronic copies, each of which counterpart shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement. Notwithstanding this, the Parties agree that by using Cliqtech’s Services/Products, the Client unequivocally agrees to be bound by the provisions of these Terms and Conditions.