Agreements – General Terms & Conditions
(incorporating limitation of liability)
HOW GENERAL TERMS APPLY
These general terms and conditions of service (“General Terms”) shall apply between ITBLUE Solutions (Pty) Ltd (“ITBLUE ”, “Service Provider”) and the individual or entity (“THE CLIENT”, “ CLIENT ”) to whom ITBLUE provides any information technology services.
Any service order concluded between ITBLUE and the CLIENT for therein specified services (“Service Order”) shall be subject to these General Terms. Some services are subject to Additional Terms and Conditions as may be agreed upon from time to time between the parties (“Additional Terms”). The parties agree that each Service Order and any Additional Terms are each incorporated into these General Terms.
This Agreement shall prevail over any term and condition contained in any documentation the CLIENT may supply or in any other documentation.
1.1 In this Agreement, clause headings and sub-headings are for convenience and shall not be used to interpret such Agreement unless the context clearly indicates a contrary intention.
1.2. Any expression which denotes any gender includes the other gender.
1.3. The following expressions shall bear the meanings assigned to them below:
1.3.1 “Agreement” means a Service Order, read with any Additional Terms, where applicable and subject to these General Terms and any written amendments made from time to time;
1.3.2 “Business Day” means any day other than a Saturday, Sunday, or official public holiday in the Republic of South Africa;
1.3.3 “Effective Date” means the earlier of: the date of acceptance by the Client of the ITBLUE quotation, duly executed by the Client, whereafter it shall be regarded as a Service Order for the Services specified in such quotation, or the date of actual commencement of service delivery by ITBLUE to the Client;
1.3.4 “Entity” includes any association, business, close corporation, sole propriety, company, concern, enterprise, firm, partnership, joint venture, person, trust, undertaking, voluntary association and any other similar entity;
1.3.5 “Equipment” means any computer equipment, training equipment and/or any equipment utilized by Service Provider in the delivery of the Services;
1.3.6 “Company” means a company with limited liability incorporated and registered under the laws of the Republic of South Africa
1.3.7 “Client Representative” means the person appointed by CLIENT to liaise with the Service Provider on a day-to-day basis in respect of services provided by ITBLUE to CLIENT.
1.3.8 “Industrial Action” means any labour protest action; strike; lock-out; and any general retardation of work, whether unprotected or protected by legislation and as further comprehensively defined by the South African Labour Relations Act, 66 of 1995 and other relevant regulatory legislation.
1.3.9 ” Intellectual Property ” means any computer software, material, name, concept, training material, training instruments, copyright in documents, patentable or non-patentable inventions, discoveries and improvements, patent, trademark, trade name, drawings, designs, operational analysis, technology and know-how or other intellectual property;
1.3.10 “Month” means a calendar month, being one of the 12 (twelve) periods into which a year is divided.
1.3.11 “Customer Relationship Director” means the person appointed by ITBLUE to liaise with CLIENT in respect of services provided by the Service Provider to CLIENT in terms of this Agreement.
1.3.12 “Services” mean information technology and related services provided by the ITBLUE to CLIENT and as described in a Service Order or elsewhere in this Agreement;
1.3.13 “Tax Invoice” means an invoice as defined in the Value Added Tax Act, No. 89 of 1991, as amended;
1.4 Unless the context clearly requires a different interpretation, any reference to:
1.4.1 the singular includes the plural and vice versa; and
1.4.2 natural persons includes juristic persons and vice versa.
1.5 Confidential Information means any information designated by the party disclosing such information (“Disclosing Party”) as “confidential” or “proprietary” or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure.
1.6 Personal Information means information which is subject to the South Africa’s Protection of Personal Information Act.
1.7 Customer Data means all data of the Client that ITBLUE may have access to in the course of providing Services in accordance with this Agreement. The parties acknowledge and agree that ITBLUE has no ownership rights to Customer Data.
- GENERAL CLAUSES
2.1 Entire Agreement: The parties agree that each Service Order and any Additional Terms are each incorporated into these General Terms. In the event that there are conflicting terms, the order of precedence shall be as follows: Services Order, any Additional Terms and these General Terms.
The parties agree that the General Terms and Additional terms may be amended by ITBLUE by giving THE CLIENT 14 working days’ notice of such amendments by email. Should the CLIENT not respond to said e-mail within the notice period, the parties agree that the amendments will be deemed to have been accepted.
2.2 Severability: If a court of competent jurisdiction determines that any term or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.
2.3 Binding Effect: This Agreement shall be binding upon, and shall insure to the benefit of, all the parties hereto including but not limited to directors, organisational representatives, legal representatives, personal representatives and/or administrators, as the case may be.
2.4 Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.
2.5 Assignment: This Agreement will remain in force notwithstanding any changes in name and / or change in ownership of either party.
2.6 Force Majeure: Neither Party shall be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shut down of the network and related network systems/services.
2.7 Attorneys‘ Fees: In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys’ fees.
2.8 Exclusions: Except where specified the following falls outside the scope of this Agreement:
2.8.1 The cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this Agreement. ITBLUE will provide consultative specification, sourcing guidance and/or time and material/project offerings.
2.8.2 Manufacturer warranty parts and manufacturer labour/services are subject to the manufacturer’s terms and conditions and are excluded from the scope of this Agreement.
2.8.3 In so far as ITBLUE is dependent on other external suppliers in providing its support services to THE CLIENT, ITBLUE will assist THE CLIENT in managing the support process with these parties.
2.8.4 ITBLUE acts as a representative, where applicable, for computer software suppliers and the parties agree that the supplier’s terms and conditions will apply.
2.8.5 To the extent and in so far as ITBLUE cannot control the time frame for correcting any bugs or errors or delivery of any service by an external supplier, any delay shall not constitute a breach of this Agreement.
2.9 Additional Services: Support services required or requested outside the scope of this Agreement may not be exchanged for days or services within this Agreement. Outside of scope support services are available and will be provided by an amendment to the Service Order or an additional Services Order.
2.10 Changes to IT Infrastructure: Any changes, additions or repairs which have been made to the IT infrastructure, other than by authorized representatives of ITBLUE shall invalidate any implied or implicit responsibility that ITBLUE may have in terms of this Agreement.
2.11 Working Environment: The CLIENT shall provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by ITBLUE’s representatives for any services agreed to. ITBLUE reserves the right to suspend this Agreement if in its sole discretion; conditions at the service site pose a health or safety threat to any ITBLUE representative.
2.12 Technical Terms: Due to the rapid evolution of information technology and terminology, it is not practicable to document every term for every service and every change in technology. The parties agree that terminology in general use for a specific service will be used will be used in the context of this Agreement.
2.13 Notices: Any business communications in connection with these General Terms may be provided by email. Any legal notices relating to these General Terms must be provided in writing and sent to the receiving party at the address set out in this Agreement. All notices will be sent by a commercial delivery courier service or mailed in a manner that requires signature by the recipient.
2.14 Third-Party Beneficiaries: This Agreement is solely entered into between and may be enforced only by ITBLUE and CLIENT. This Agreement will not be deemed to create any third-party rights or obligations.
2.15 Agency: Nothing contained in this Agreement or otherwise shall make representations, authorise, empower either Party as an agent of the other Party or any manner create an obligation or responsibility whatsoever, express, or implied, on behalf of or in the name of the other Party.
2.16 Relationship: ITBLUE shall be and shall act as an independent contractor in terms of these General terms and no employee, agent, or sub-contractor of ITBLUE shall be deemed to be an employee of the CLIENT for any purpose whatsoever. ITBLUE shall comply, at its own expense, with the provisions of all applicable statutory requirements and with all laws applicable to ITBLUE as an employer.
2.17 Invalid Provisions: If any provision of this Agreement is prohibited by law or held to be invalid, illegal, or unenforceable, the remaining provisions hereof shall be unaffected, and this agreement shall continue in full force and effect as if such prohibited, illegal or invalid provision had never constituted a part hereof, and the invalid, illegal or unenforceable provision shall be automatically amended to the extent necessary to make it valid, enforceable and legal.
2.18 Relaxation and Indulgence: No extension of time or waiver or relaxation or indulgence of any of the provisions or terms of this Agreement shall operate as an estoppel against a party in respect of any of its rights under this Agreement nor be deemed to be a waiver of its rights under the Agreement or preclude such party at any time thereafter from requiring strict compliance with the terms of this agreement.
2.19 Where appropriate, meanings ascribed to defined words and expressions in clause 1 of this Agreement shall impose substantive obligations on the Parties. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
2.20 If any provision in a definition is a substantive provision conferring rights or imposing obligations 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 in the body of this Agreement.
2.21 When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
2.22 The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule (i.e. the rule that a general word or clause is restricted in meaning to the same class as the specific words which precede it) shall not be applied in the interpretation of such general wording or such specific example/s.
2.23 The terms of this Agreement having been negotiated, the contra proferentem rule (i.e. that words should be interpreted against the stipulator) shall not be applied in the interpretation of this Agreement.
2.24 Any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation in South Africa as at the Effective Date, and as amended or substituted from time to time .
3.1 CLIENT appoints ITBLUE who accepts such appointment to provide the Services set out in Service Orders, subject to the terms and conditions set out in this Agreement.
3.2 ITBLUE warrants that it has sufficient knowledge and expertise in all aspects of the Services specified in the Service order and has the level of skill and experience to perform the Services.
3.3 ITBLUE shall use its knowledge and skill in performing all its obligations in terms of this Agreement.
4.1 Notwithstanding the date of signature, this Agreement shall commence on the Effective Date and shall continue until final delivery of the Services as set out in the Service Order, excluding such clauses by their nature intended to survive the termination of the Agreement.
4.2 Notwithstanding the provisions of clauses 4.1 and 5, either Party may cancel this Agreement prior to the termination date specified in the Service Order in its sole discretion and for any reason whatsoever, by giving the other Party at least 60 (sixty) days’ written notice, subject furthermore to clause 6.7.
Either Party shall have the right to terminate this Agreement under any of the following conditions:
5.1 Should application be made for the sequestration, winding-up, liquidation, compromise, placing in curatorship, placing under administration, dissolution or deregistration of either of the parties or any of its assets in each case whether compulsorily or voluntarily, provisionally or finally.
5.2 Should either party call a meeting in order to propose a resolution, the passing of a resolution, or the making of an application, or an order is applied for or an order is granted, in each instance, to authorize the implementation of any business rescue proceedings in respect of the party or its assets pursuant to the provisions of the Companies Act of 2008 The appointment of any receiver, liquidator, curator, administrator, business rescue practitioner, trustee or similar officer in respect of a party or any or all of its assets or revenues in accordance with applicable law, whether on a temporary or permanent basis.
5.3 If this Agreement was concluded as a result of direct marketing, The CLIENT may terminate this Agreement within five (5) business days of the conclusion of this Agreement, or the goods that were the subject of this Agreement were delivered.
5.4 Should the CLIENT not pay ITBLUE within thirty (30) days from receipt of ITBLUE’s invoice and/or otherwise materially breaches this Agreement.
5.5 Should ITBLUE fail to perform its obligations under this Agreement and such failure continues for a period of thirty (30) days after written notice of the default.
5.6 All hardware and software installed by ITBLUE that was required to carry out support services, will remain the property of ITBLUE and will be surrendered and returned to ITBLUE upon termination.
5.7 Upon termination any services provided by ITBLUE may be cancelled without further notification, including the responsibility to ensure that backups remain available.
- FEES AND PAYMENTS
6.1 Fees: Customer will pay any fees set forth in any agreed Services Order. Payment is due monthly in advance, by way of debit order or if alternative arrangement is made in terms of any Services Orders.
6.2 Ad Hoc Services: Any additional services which fall outside the terms of a Service Order, including but not limited to, any maintenance or support provided beyond the agreed to hours and services, shall be charged to the CLIENT as an additional charge.
6.2 Late Payment: CLIENT will be notified in the event payment has not been received in accordance with the terms of this Section 6.1.
6.3 Disputed Invoices: The CLIENT will notify ITBLUE of any disputed invoice in writing within fifteen days of date of the applicable invoice. Such notification will include a description of the nature and extent of the dispute. In the event of an invoice being partially disputed, the undisputed amount will remain due and payable. The parties will work together in good faith to resolve any such dispute promptly.
6.4 Interest on Outstanding Amounts : CLIENT agrees that ITBLUE is entitled to charge interest on all amounts outstanding for more than 30 days from date of invoice. Such interest will be calculated monthly and charged at 3% above ITBLUE’s banker’s prime interest rate until the debt is settled. All payments will firstly be allocated to interest, then to items paid by ITBLUE and then to amounts charged for services.
6.5 Suspension of Services: ITBLUE reserves the right to suspend the service under this Agreement in the event that the CLIENT has failed to pay any invoice within thirty (30) days of due date, whether it is an invoice for services provided under this Agreement or any other agreement between the parties.
6.6 Fee Increases: Service fees payable in terms of Service Orders shall be reviewed on an annual basis, or, in the event that a supplier of equipment or software or software that is used to deliver services set out in a Service Order has increased their selling prices, such increases shall be caried over to the CLIENT. CLIENT will be notified by email of any such changes and if no response is received from the Client within 14 days it will be deemed to have been accepted. The emails in terms of this section 6.6 will be deemed as a valid amendment to the Service Order.
6.7 Fees payable upon early termination:
6.7.1 Any work already performed by ITBLUE in terms of this Agreement shall be payable by CLIENT up until the termination date specified in the cancellation notice.
6.7.1 In the event that THE CLIENT terminates this Agreement for any reason other than a breach of the terms herein, THE CLIENT shall NOT be entitled to a refund of any monies extended in advance in respect of the month or part thereof for which services by ITBLUE were last performed.
6.8 Collection of Fees : In the event any action is taken to pursue collection of any fees payable hereunder, CLIENT will reimburse ITBLUE with such collection, including reasonable legal fees.
Both Parties warrants that all information made available to either Party including but not limited to intellectual property, contracts signed, materials developed, trade secrets, financial and other details, assistance or advice given or requested, operating methods and costs, will be kept as strictly confidential and will not be divulged to any third parties without the written permission of the owner of the confidential information. The Parties, their employees, contractors or agents, will maintain the utmost secrecy in respect of all such information.
- DATA PROTECTION
8.1 The Parties agree that The CLIENT remains ultimately accountable as the responsible party for ensuring that South Africa’s Protection of Personal Information Act (POPIA) and any related data protection legislation are complied with.
8.2 Where the Client in terms a Service Order requires ITBLUE to act as an operator, The Client will provide ITBLUE with a mandate which will be recorded in the Service Order. ITBLUE agrees to use its best endeavours to comply with the mandate provided by the Client. The CLIENT agrees to make the necessary resources available to ITBLUE to fulfil such mandate.
8.3 In the absence of a mandate that is recorded in a Service Order, ITBLUE will have no obligation to the CLIENT in terms of the POPIA.
- LIMITATION OF LIABILITY
9.1 The CLIENT hereby indemnifies and agrees to defend, at its sole expense, ITBLUE, its employees, agents, representatives, directors and shareholders from and against any claims arising from the CLIENT’S use of services, software or hardware provided or serviced in this Agreement, including, but not limited to, claims arising from software licensing violations, copyright infringement, trademark infringement and patent infringement. In addition, the CLIENT agrees to pay any judgment and costs associated with such claim.
9.2 ITBLUE makes, and THE CLIENT receives, no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are expressly excluded. In no event shall ITBLUE or any of its directors, employees or other representatives be for any special, incidental, indirect, or consequential damages of any kind including, without limitations, those resulting from loss of data, income, profit, and on any theory of liability, arising out of or in connection with the services or use thereof even if it has been advised or has knowledge of the possibility of such damages.
9.3 To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, ITBLUE’s maximum liability to THE CLIENT for direct damages for anything giving rise to any legal action shall never exceed an amount equal to the total fees already paid by the CLIENT to ITBLUE for the services related to the claim. The aggregate amounts for all claims will not be greater than the amount received by ITBLUE during the 4 (four) months immediately preceding the date of the claim. THE CLIENT expressly agrees to this limitation of liability.
9.4 To the extent permitted by applicable law, ITBLUE will not be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from this Agreement.
- NON-SOLICITATION OF EMPLOYEES
10.1 Neither party shall, without the prior written consent of the other, solicit for employment the current or former employees, agents or sub-contractors of the other, or otherwise retain the services of such persons during the currency of this Agreement and/or any Service Order and for a period of two years thereafter.
10.2 The Client agrees for a period of 6 months after completion of a Service Order not to approach, solicit or endeavour to employ or require services from any staff or resources of ITBLUE without prior consent from ITBLUE in writing. It is understood that three months’ worth of the employee’s salary in the amount as paid by ITBLUE immediately prior to termination of service will be payable to ITBLUE by The Client in this case. .
11 CHOICE OF LAW AND SETTLEMENT OF DISPUTES
11.1 Any disputes arising from or in connection with this Agreement which cannot be resolved between the parties within 14 working days shall, if so, required by either party by giving written notice to that effect to the other, be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA. There shall be a right of appeal as provided for in article 22 of the aforesaid rules.
11.2 Each party to this agreement –
11.3 Expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency; and
11.4 Irrevocably authorises the other to apply, on behalf of all parties to such dispute, in writing, to the secretariat of AFSA in terms of article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.
11.5 The law of South Africa shall apply to the interpretation of this agreement and in the determination of any dispute and any arbitration shall be held in Cape Town, South Africa.