Contract Agreement

SERVICE LEVEL AGREEMENT

 

PREAMBLE

WHEREAS Bahati IT Group Trading CC is the provider of Managed Services, Security and Networking Solutions

1       PARTIES AND PREAMBLE

1.1         The Parties to this Agreement are –

1.1.1           Bahati IT Group Trading CC (“BahatiGroup”); and

1.1.2           [●] (the “Client”)

1.2         WHEREAS –

1.2.1           BahatiGroup is a provider of, inter alia, Managed IT Services, Security and Networking solutions; and whereas

1.2.2           the Client is desirous of entering into an agreement with BahatiGroup for the provision and use of BahatiGroup’s services and solutions.

1.3         NOW THEREFORE, the Parties agree as follows:

2. DEFINITIONS AND INTERPRETATION

In this Agreement, unless stated otherwise or required by the context, the following words and phrases shall have the meanings ascribed to them below and cognate expressions shall bear corresponding meanings. Defined terms and words are signified in the text of the Agreement by the use of capital initial letters.

2.1         “Agreement” means this Service Level Agreement signed by the Parties which consists of these Terms and Conditions together with the signed Schedule attached thereto as well as any subsequent Schedules that may be agreed and signed between the Parties.

2.2         “Availability” means that at measurable levels the Service is operable and useable for the required functions and Services;

2.3         “BahatiGroup” means for the purposes of this Agreement, Bahati IT Group Trading CC (Registration Number 2009/113361/23) a close corporation incorporated in terms of the laws of the Republic of South Africa, and shall wherever the term be utilised in this Agreement, include where appropriate, any party to which BahatiGroup cedes or assigns any of its rights or obligations under this Agreement, as well as any of its employees, agents, assigns, directors, personnel or sub-contractors.

2.4         “Business Hours” means Monday to Friday between the hours 07h00 and 18h00 and excludes all public holidays as gazetted by the government of the Republic of South Africa from time to time. Any reference to time shall be based upon South African Standard Time. Any agreement between the parties which deviates from this definition must be set out in the Schedule.

2.5         “Cancellation Fee” means an amount determined by BahatiGroup, being a reasonable amount, taking into account all relevant factors, including but not limited to the remaining term of this Agreement;

2.6         “Client” means the party named in 1.1.2 above (and its legal successors and legally permitted assignees);

2.7         “Commencement Date” means the date on which this Agreement is executed by the last Party signing;

2.8         “Day” shall be construed as a calendar day 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. Any agreement between the parties which deviates from this definition must be set out in the Schedule.

2.9         “Effective Date” means the date on which BahatiGroup commences with installation of the Services agreed to herein, notwithstanding the date of signature of this Agreement, or such other date as agreed between the Parties in writing;

2.10       “Effective Month” means the calendar month within which the Effective Date falls;

2.11       “Fault Management” means the methodologies and processes utilised to manage a fault causing a failure in a Service or product offered by BahatiGroup and includes, at BahatiGroup’s sole discretion, call logging, fault escalation and fault resolution, which could include third parties or external suppliers whose products or equipment are utilised by the Client where BahatiGroup has no control over the TTR by such third party or supplier;

2.12       “Fixed Period” shall bear the meaning ascribed thereto in clause 3.1 of this Agreement;

2.13       “Minimum Specifications” ]the lowest set of technical requirements required by BahatiGroup to provide acceptable performance of its Services on any given device, application or programme utilised by the Client and includes, but is not limited to, hardware and software specifically designed and licensed for commercial use, up-to-date operating systems, access to sufficient power and cabling resources. Hardware and software designed for home use is specifically excluded from the Services provided by BahatiGroup;

2.14       “Monitoring” means the Client’s network or equipment monitored by BahatiGroup in terms of the Services provided;

2.15       “Parties” means collectively or separately and individually, depending on the context, BahatiGroup and the Client and “Party” shall have a corresponding meaning;

2.16       “Persistent Breach” means a repeated failure by an external supplier of BahatiGroup which prevents BahatiGroup, through no fault of its own, from being able to meet its service level obligations towards the Client in any 3 (three) consecutive calendar months;

2.17       “Personal Data” means any data subject’s personal information which BahatiGroup may require to collect, process and store in terms of data protection laws applicable in the Republic of South Africa;

2.18       “QoS” or “Quality of Service” means the right of BahatiGroup to prioritise the level of service it applies to any of the Services utilised by the Client, where in its sole discretion such prioritisation is necessary to ensure the maximum level of data flow necessary for the Client to perform optimally in the event of, but not limited to, a Fault Management methodology or process;

2.19       “Schedule” means the signed document so titled and annexed to this Agreement and forming an integral part thereof, which collectively describes, inter alia, the Parties, the Sites at which the Services will be provided, a description of the Equipment, Services to be provided, the levels of the Services, the pricing and payment terms of the Services provided, the commencement and/or the effective date of the Services; the Client’s bank account details and any special and additional information the Parties agree to as well as any subsequent amendments or additions that the Parties may agree to in writing;

2.20       “” means inter alia, Fixed Fee Support Services; Block Hour Support Services, MyGlue, Office365 or Microsoft 365; email security; email and calendaring; the provision of software; hardware and software installation; helpdesk services; and must be read in conjunction with the terms and conditions of the Services as set out in the Schedule;

2.21       “Specified Functionality” means functions of BahatiGroup as described in the Schedule;

2.22       “Support” means the support services as set out by BahatiGroup from time to time;

2.23       “TTR” means time to repair and is the maximum time agreed between the Parties for a fault to be resolved but explicitly excludes any delays or extensions to the TTR where BahatiGroup has to rely on a third party or an external supplier, whether of the Client or of BahatiGroup, before it is able to attend to and/or resolve a fault referred to it by the Client.

2.24       This Agreement incorporates the Schedule, which Schedule will have the same force and effect as if set out in the body of this Agreement.

2.25       In this Agreement –

2.25.1         clause headings and the heading of the Agreement are for convenience only and are not to be used in its interpretation;

2.25.2         an expression which denotes –

2.25.2.1           any gender includes the other genders;

2.25.2.2           a natural person includes a juristic person and vice versa;

2.25.2.3           the singular includes the plural and vice versa;

2.25.2.4           a Party includes reference to that Party’s estate, heirs, executors, administrators, trustees, liquidators, successors in title and assigns allowed at law, who shall be bound as if they had signed this Agreement in the first instance; and

2.25.2.5           a reference to a consecutive series of two or more clauses is deemed to be inclusive of both the first and last mentioned clauses.

2.26       Any reference in this Agreement to –

2.26.1         “laws” means all constitutions; statutes; regulations; by-laws; codes, ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any Governmental Body; and the common law, and “law” shall have a similar meaning; and

2.26.2         “person” shall mean any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality.

2.27       The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.

2.28       Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in the Agreement, shall be given effect to as if it were a substantive provision in the body of this Agreement.

2.29       Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.

2.30       Unless otherwise provided, defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.

2.31       A reference to any statutory enactment shall be construed as a reference to that enactment as at the Signature Date and as amended or substituted from time to time.

2.32       Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.

2.33       Except to the extent that any provision of this Agreement expressly provides otherwise, if the only day or the last day for the exercise of any right, performance of any obligation or taking (or procure the taking of) any action in terms of any provision of this Agreement falls on a day which is not a business day, such right shall be capable of being exercised, or such obligation performed or action taken on the immediately succeeding business day.

2.34       The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.

2.35       No provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement.

2.36       The use of any expression in this Agreement covering a process available under South African law, such as winding-up, shall, if either of the Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction.

2.37       Any reference in this Agreement to “this Agreement” or to any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document, as amended, varied, novated or supplemented from time to time.

2.38       In this Agreement, the words “clause” or “clauses”, “annexure” or “annexures” and “schedule” or “schedules” refer to clauses of, annexures to and schedules of this Agreement.

3. COMMENCEMENT, DURATION, CANCELLATION

3.1         This Agreement will commence on the Commencement Date and will endure for a period of 12 (twelve) months from the Commencement Date (the “Fixed Period”), after which it shall automatically renew for a further period of 12 (twelve) months (the “Renewal Period”) on the same terms and conditions that applied to the Fixed Period, unless otherwise agree to in writing by the Parties, with the exception that the renewal will be subject to a price increase in line with BahatiGroup’s annual price adjustment applicable at the time.

3.2         Upon expiry of the Renewal Period, the Agreement will continue on a month to month basis, at the prevailing BahatiGroup fee for the Services, unless otherwise agreed to between the Parties in writing, until either of the Parties terminates the Agreement in terms of clause 3.3 herein.

3.3         Should the Client elect not to renew the Agreement after the Fixed Period, the Client must give BahatiGroup no less than 60 (sixty) days’ notice prior to the end of the Fixed Term of its intention to terminate the Services;

3.4         Either Party may cancel the Agreement after expiry of the Renewal Period by giving the other Party no less than 30 (thirty) days’ notice of its intention to cancel the Agreement;

3.5         Should the Client cancel the Agreement during the Fixed Term or subsequently during the Renewal Period, for any reason whatsoever, BahatiGroup will charge the Client a Cancellation Fee as provided for herein. The Cancellation Fee will be determined by BahatiGroup and will be payable by the Client immediately upon cancellation.

4. OWNERSHIP

4.1         BahatiGroup shall at all times remain the owner of its equipment employed in the provision of the Services.

4.2         BahatiGroup shall remove any of its equipment from the Client location upon termination of the Agreement.

4.3         If for any reason the BahatiGroup equipment cannot be removed from the Client location, the Client shall pay BahatiGroup for the replacement cost of the Equipment that cannot be removed.

4.4         Any equipment, property and materials made available to BahatiGroup by the Client, or purchased by BahatiGroup with funds provided by the Client for the performance of the Services shall be the property of the Client and shall be marked accordingly. Upon termination or expiration of the Agreement, BahatiGroup shall make available to the Client an inventory of such equipment and materials and shall dispose of them in accordance with the Client’s instructions.

4.5         The Client shall, at its own expense, insure the equipment, property and materials referred to in clause 4.4 above for their full replacement value.

5. PURCHASE PRICE

5.1         The Client agrees that it is purchasing BahatiGroup’s Services under this Agreement, for the purchase price which was set out in a Quotation signed and accepted by the Client and which Purchase Price reflects mutatis mutandis in the Schedule and shall be of full force and effect.

5.2         The said purchase price shall be paid in monthly instalments with the first instalment due upon commencement of this agreement.

5.3         Each payment thereafter shall be due as set out in the Schedule.

6. BILLING PROVISIONS

6.1         All fees payable are, unless otherwise specified, exclusive of Value Added Tax (“VAT”) at the prescribed rate at the prevailing time, which VAT shall be added to the relevant Fee.

6.2         Services shall be charged against the Client’s account in the books of BahatiGroup in accordance with the terms and conditions as set out in the Schedule.

6.3         Any additional or supplemental services provided by BahatiGroup, which are outside the terms of this Agreement, including but not limited to, any maintenance provided beyond normal business hours and services in excess of the account purchased herein, shall be charged to Client as an additional charge in accordance with the terms and conditions as set out in the Schedule.

6.4         Any additional billing charges will be invoiced at the end of each month, with payment expected within 7 (seven) days, unless otherwise specified by BahatiGroup.

6.5         The Client shall, in addition to the other amounts payable under this agreement, pay any tariffs or levies or otherwise, however designated, which are levied or imposed by reason of the services provided pursuant to this Agreement. Without limiting the foregoing, the Client shall promptly pay to BahatiGroup, an amount equal to any such tariff of levy actually paid or required to be collected or paid by BahatiGroup.

6.6         BahatiGroup, reserves the right to refuse or suspend Services under this Agreement in the event the Client has failed to pay any invoice within 30 (thirty) days of said invoice date, whether it be an invoice for Services provided under this Agreement or any other agreement between the parties.

6.7         BahatiGroup will invoice the Client monthly as set out in the Schedule for all Services rendered for the month in advance.

6.8         The Client shall pay the invoice either by direct bank electronic transfer or by debit order within 7 days of receipt of the invoice thereof.

6.9         Unless otherwise agreed by BahatiGroup, all payments to be made by the Client to BahatiGroup under this Agreement shall be made by way of debit order automatically deducted from the Client’s designated bank account and transferred directly into a bank account nominated from time to time by BahatiGroup in writing. Should the debit order fall on a non-processing day then the debit order will go through on the next possible processing day.

6.10       If BahatiGroup has agreed to receive payment of any Fees from the Client by electronic funds transfer, and if payment has not been duly made within 7 (seven) days from the due date of payment of any Fees, then the Client hereby consents to BahatiGroup debiting all such amounts that are and may in the future become due, owing and payable hereunder by way of debit order against the Client’s bank account specified in the Schedule.

6.11       BahatiGroup shall be entitled in its discretion to increase any of its Fees, provided that such increase is reasonable. BahatiGroup undertakes to provide the Client with 1 (one) calendar months’ notice of any such increase via email to the address provided to BahatiGroup.

6.12       BahatiGroup may perform a credit information search on the Client at a credit information bureau of BahatiGroup’s choice and monitor the Client’s payment behaviour by researching the Client’s record at one or more credit information bureaux and use new information and data obtained from a credit information bureau in respect of the Client’s future applications. BahatiGroup may record the existence of the Client’s account with any credit information bureau, record and transmit details of how the Client has performed in terms of this Agreement, reflecting how the account has been conducted by the Client and how it has met its obligations in terms of this account. In the event of any non-payment by the Client which is not timeously remedied in the reasonable opinion of BahatiGroup, BahatiGroup may either adversely list the Client at any credit information bureau and/or hand such debt over to BahatiGroup’s debt collectors.

6.13       All payments to be made by the Client to BahatiGroup in terms of this Agreement shall be made free of any set-off, deduction or withholding of whatsoever nature (including, without limitation, any taxes) and without demand into the account given by BahatiGroup or to such address or account in South Africa as BahatiGroup may from time to time notify in writing to the Client.

6.14       BahatiGroup reserves the right to suspend and/or terminate the Services under this Agreement in respect of non-payment and/or overdue account, including Cancellation Fees.

7. CONDITIONS OF SERVICE

7.1         The Client’s network is eligible for monitoring and maintenance by BahatiGroup under this Agreement provided it is in a satisfactory condition as determined by BahatiGroup and the BahatiGroup serviceability requirements and site environmental conditions are met.

7.2         BahatiGroup reserves the right to inspect the network upon the commencement of the term of this Agreement for the purpose of creating a diagram of the network and/or conducting a diagnostic test of the network. Unless stated otherwise, the said inspection shall be charged against the account using the BahatiGroup standard hourly billing rates.

7.3         BahatiGroup, shall not be responsible to Client for loss of use of the network or for any other liabilities arising from alterations, additions, adjustments or repairs which have been made to the network other than by an authorised representative of BahatiGroup.

7.4         BahatiGroup shall not be responsible to the Client for faults or failures arising from the Client’s use of, inter alia, devices, cables, networking equipment not designed for use in the Client’s business environment.

7.5         BahatiGroup, reserves the right to suspend or terminate this Agreement if in its sole discretion, conditions at the service site pose a health or safety threat to any BahatiGroup representative.

8. OBLIGATIONS OF BAHATIGROUP

8.1         General

8.1.1           BahatiGroup shall perform the Services with all reasonable care, diligence and skill in accordance with generally accepted professional techniques and standards.

8.1.2           Where the Services include the exercise of powers to certify, decide or otherwise exercise discretion in regard to an agreement between the Client and Others, then the BahatiGroup shall act in respect of that agreement as an independent professional.

8.2         Designated representative

8.2.1           When, or if so required, BahatiGroup shall designate in writing a person to act as its representative, such person shall have complete authority to receive instructions from and give information to the Client on behalf of BahatiGroup.

8.2.2           BahatiGroup reserves the right to change its designated representative from time to time, within its sole discretion.

8.3         BahatiGroup actions requiring Client’s prior approval

8.3.1           BahatiGroup will require the Client’s specific written instruction before taking, inter alia, any of the following actions:

• user deletion;
• off boarding of a user and/or on boarding a new user;
• accessing users profile/company data;
• changing user/share permissions;
• backing up of user documents;
• setting up a user who has brought their own device for use in company operations;
• destruction of data;
• scrapping and recycling of devices;
• donation of devices;
• sharing of data outside of the organization;
• Affecting changes to Multi-factor Authentication protocols and rules.
• Requests to pull call recordings.
• Conduct Employee investigations.

8.3.2           Should the Client require or request any non-standard Services from Bahati Group, the decision by BahatiGroup to do so will be at its absolute discretion and in the event it elects to provide such non-standard services, it will be against the written instruction and authorisation from the Client and wherein the Client indemnifies and holds harmless BahatiGroup, its representatives, agents and employees against any damage or loss that may be suffered.

8.4         Co-operation with others

8.4.1           Should BahatiGroup ever be required to perform the Services in co-operation with others, BahatiGroup may make recommendations to the Client in respect of the appointment of such others. BahatiGroup shall, however, only be responsible for its own performance and the performance of its Sub-Contractors unless otherwise provided for.

8.5         Notice of change by BahatiGroup

8.5.1           On becoming aware of any matter which will materially change or has changed the scope, cost or timing of the Services, BahatiGroup shall give notice thereof to the Client, save that BahatiGroup is empowered to make minor changes or variations within the overall programme or budget and within such parameters as are defined by the Client, provided that such changes are reported timeously to the Client.

8.6         Specific responsibilities of BahatiGroup

8.6.1           BahatiGroup will provide remote and/or on-site services under the following conditions using the following billing rates;

8.6.1.1             one fixed fee for unlimited support within BahatiGroup business hours as set out in the Schedule;

8.6.1.2             If any work needs to be done outside of business hours this will be charged for at afterhours rates as set out in the Schedule.

8.6.1.3             If any work needs to be done outside of the time period covered by the one fixed fee as set out in the Schedule, the Client will be billed according to BahatiGroup’s standard billing fees.

8.6.2           If Services are requested by Client outside of business hours, BahatiGroup, shall provide such Service subject to the availability of its representatives, according to the terms and conditions set forth in this Agreement.

8.6.3           BahatiGroup, shall monitor, advise, and provide supplemental Services as defined in this Agreement during business hours, and in accordance with BahatiGroup’s network policies then in effect.

8.6.4           BahatiGroup shall provide scheduled maintenance in accordance with this Agreement.

8.6.5           All Services defined in this Agreement shall be provided during regular business hours.

8.6.6           BahatiGroup shall be obligated to provide service only at the service site(s) defined in this Agreement as outlined in the Schedule and reserves the right to charge for any work completed at any other site outside of the scope of the Agreement, at its standard billing rates.

8.6.7           BahatiGroup is obligated to provide the Client with a higher-priority response for emergency service requests.

8.7         Upon Termination or Cancellation

8.7.1           Upon termination all data held by BahatiGroup shall be deleted within a reasonable time frame.

8.7.2           Data stored on services like backups shall be deleted after 30 days from date of cancellation of this agreement.

8.7.3           Data on ITGlue shall be exported and sent to customer, after that the account and Data shall be deleted.

 

9. OBLIGATIONS OF THE CLIENT

9.1         The Client undertakes to –

9.1.1           promptly notify BahatiGroup of any events/incidents that could impact the Services defined within this Agreement and/or any supplemental service needs, and for BahatiGroup to respond in a timely manner via phone, email, remote access, and/or on-site Services as defined in this Agreement.

9.1.2           utilise the agreed processes, protocols and channels that have been put in place to contact BahatiGroup for Services support.

9.1.3           provide BahatiGroup’s representatives with full access to the network in order to affect the necessary monitoring and/or supplemental services.

9.1.4           at all reasonable times (and on reasonable notice given by BahatiGroup) allow BahatiGroup unrestricted access to the its premises to enable BahatiGroup to perform the Services;

9.1.5           provide adequate workspace, heat, light, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by BahatiGroup’s representatives.

9.1.6           inform BahatiGroup of any modification, installation, or service performed on the network by individuals not employed by BahatiGroup in order to assist BahatiGroup in providing an efficient and effective network support response.

9.1.7           observe and comply with all Minimum Specifications required for the delivery of Services.

9.1.8           designate a managerial level representative to authorise all network support services.

9.1.9           whenever possible, ensure that said representative shall be present whenever a BahatiGroup service representative is on-site and that the contact information of such representative shall be outlined in the Schedule and that it remains the Client’s responsibility to inform BahatiGroup of any changes made to this representation by providing a 30 (thirty) day notice period in advance.

9.2         If the Client desires to relocate, add or remove locations, the Client shall give appropriate notice to BahatiGroup of its intention to relocate by providing a notice period of 60 (sixty) days in advance.

9.3         BahatiGroup reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by Client. Such right includes the right to refuse service to network at the relocation and/or new site.

10     SERVICE LIMITATIONS

In addition to other limitations and conditions set forth in this Agreement, the following service and support limitations are expressed:

10.1       The cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this agreement. BahatiGroup will provide consultative specification, sourcing guidance and/or time and material/project offerings payable on delivery (COD) for any items purchased under R2, 500. For items over R2,500 a 70% deposit will be required, unless otherwise stated. Any software items will be strictly cash up front.

10.2       Except as otherwise stated in the Schedule of this Agreement all of the following items are excluded from the scope of this Agreement:

10.2.1         all server, network device and software;

10.2.2         preventative maintenance on equipment;

10.2.3         cable installations;

10.2.4         project work not outline in the Schedule;

10.2.5         Manufacturer (OEM) warranty parts and labour/services.

10.3       Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. BahatiGroup’s maintenance Services within this Agreement are predicated upon the Client’s support and commitment to providing time/scheduling for network device reboots with its staff and/or users support.

10.4       Virus mitigation within the scope of this Agreement is predicated on Client satisfying recommended backup schemes and having appropriate Anti-Virus Software with current updates.

10.5       Restoration of lost data caused by systems/hardware failure is outside the scope of this Agreement.

10.6       This Agreement and maintenance Services herein are contingent on Client’s permission of BahatiGroup having secure remote access into Client’s network (E.g. VPN, Telnet, SSH, RAS or other solution expressly approved by BahatiGroup). Depending on the remote access solution used, additional charges may apply to the contract.

10.7       Support services required or requested outside the scope of this agreement may not be exchanged for days or services within this Agreement. Outside the scope of managed services are available and will be provided on either a time and material, or project basis.

10.8       Recycling / End of life equipment – Client can contact BahatiGroup should they have old laptops, desktops, switches, screens, printers or any IT related equipment no longer in use or needed by the Client. BahatiGroup will destroy and recycle all equipment.

11. LIMITATION OF LIABILITY

11.1       The Client expressly agrees that the obligations of BahatiGroup under this Agreement, including and without derogating from the generality thereof, the provision of the Services, are for the purpose of minimising the impact or risks posed to:

11.1.1         business continuity and efficiency;

11.1.2         network and ancillary electronic equipment and data integrity; and

11.1.3         loss, or damage caused as a result of the lack of management or maintenance of the underlying systems and Services, (hereinafter collectively referred to as the “Events”). Furthermore, BahatiGroup gives no warranty or guarantee that its personnel or Services will be able to prevent or minimise such Events.

11.2       Considering clause 11.1 above and given that the nature of the Services may contain inherent risks and uncertainty, notwithstanding anything else to the contrary, BahatiGroup its directors, employees or other representatives will not be liable, whether in contract or in delict, for any reason whatsoever, in relation to the Services. This limitation of liability does not apply when such loss arises from the grossly negligent or intentional acts or omissions of BahatiGroup. It is recorded that in the context of this Agreement, gross negligence shall be regarded as an extreme departure from the standard of a reasonable person which departure must demonstrate complete obtuseness of mind or total failure to take care.

11.3       The Client hereby indemnifies and agrees to hold BahatiGroup and its directors, employees or other representatives harmless against any claim of whatsoever nature which may be brought against BahatiGroup by any party at any time in relation to any act or omission for which it is not liable in terms of this clause 11.

11.4       Under no circumstance shall BahatiGroup its directors, employees or other representatives be liable whatsoever for any direct or consequential loss or damage, or for loss of profits which the Client may sustain, whether or not such loss or damage was foreseen at the time of entry into this Agreement.

11.5       The Client hereby acknowledges and agrees that it is liable to insure its equipment, property and materials utilised in the provision of Services in terms of this Agreement and that any failure to do so will in no way impose any obligation or liability upon BahatiGroup in respect of the Services.

11.6       The Client hereby acknowledges and agrees that BahatiGroup its directors, employees or other representatives shall not be liable for a delay in Services due to the loss or damage of any equipment, property and materials owned by the Client and/or any delay caused by the replacement or repairing of such equipment, property and materials.

11.7       The Client hereby expressly agrees to indemnify and defend at its sole expense: BahatiGroup, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client’s use of all services, software or hardware provided or serviced hereunder, including, but not limited to, claims based on 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.

12. DATA COLLECTION AND PRIVACY STATEMENT

12.1       The Client hereby authorises BahatiGroup to collect, process and store any personal information or special personal information from the Client or from any third party whatsoever, insofar as it is necessary for the Parties to enter into to this Agreement and/or for the provision by BahatiGroup of the Services.

12.2       The Client acknowledges that BahatiGroup may disclose its information where:

12.2.1         it is necessary or required to enable BahatiGroup to provide the Services;

12.2.2         it is expressly or impliedly agreed to by the Client;

12.2.3         it is necessary to protect the interests of BahatiGroup in respect of any complaint or dispute;

12.2.4         it is required or permitted by law;

12.2.5         it is necessary, in the sole discretion of BahatiGroup, to obtain a credit reference from a credit bureau for any credit management or collection process that it may undertake.

12.3       The Client further acknowledges that BahatiGroup may disclose the Client’s information where:

12.3.1         that information is used within the BahatiGroup to carry out the Services and/or to make contact with the Client about other services which BahatiGroup deems may be of interest to the Client.

12.4       The Client confirms that it has read and agrees to the BahatiGroup External Privacy Statement which is available on the website: Privacy Statement (ZA) – Bahati Group

13. CESSION AND ASSIGNMENT

13.1       Despite the provisions of clause 29 of this Agreement, the Client expressly agrees that BahatiGroup shall have the right to cede and/or transfer and/or assign all or any portion of its rights and obligations under this Agreement to any other suitably qualified party, provided that such cession and/or transfer and/or assignment is pursuant to BahatiGroup discharging the Services.

13.2       The Client expressly agrees that it has no objection to the right of cession and assignment afforded to BahatiGroup in the manner set out in this Agreement, and expressly agrees that the rights and obligations which the respective Parties have and enjoy under this Agreement shall apply mutatis mutandis (apply in the same manner with the necessary changes) to any third party to whom BahatiGroup has ceded and assigned any of its rights and/or obligations.

13.3       The Client further agrees that all indemnities and waivers of liability stipulated in this Agreement in favour of BahatiGroup shall likewise apply mutatis mutandis and shall be of full force and effect insofar as the Client is concerned, to and in favour of BahatiGroup and any other third party to whom BahatiGroup has ceded and/or assigned and/or transferred any or a portion of its rights and obligations in the manner contemplated in this Agreement.

13.4       As provided for in clause 29 of this Agreement, the Client shall not be entitled to cede or assign any of its rights and obligations under this Agreement to any third party unless written consent has been provided by BahatiGroup to the Client.

13.5       BahatiGroup shall be entitled to deal with the Client only. BahatiGroup will not deal with any company or person who alleges that they represent the Client. Any company or person alleging to represent the Client in any manner shall be disregarded by BahatiGroup.

14. SUB-CONTRACTORS

14.1       The Client shall have no contractual relationships with BahatiGroup Sub-Contractors in respect of any of the Services provided by BahatiGroup unless agreed to in writing between the Parties. However, if a Sub-Contractor is found by the Client to be incompetent, the Client may request BahatiGroup either to provide a Sub-Contractor with qualifications and experience acceptable to the Client as a replacement, or to resume the performance of the relevant part of the Services himself.

14.2       BahatiGroup shall advise the Client without delay of the variation or termination of any subcontract for performance of all or part of the Services.

15. BREACH

15.1       Should the Client be in default of any payment due in terms of this Agreement or be in breach of any other provision of this Agreement, and remain in default after having been afforded a period of 7 (seven) days written notice to remedy such breach, or within the aforementioned 7 (seven) day period, BahatiGroup shall be entitled, without any prejudice to any alternative or additional right of action or remedy to –

15.1.1         suspend the rendering of any Services in terms of this Agreement unless BahatiGroup has elected to cancel this Agreement in the manner contemplated in this clause 15 and shall not be obliged to render any Service until the amounts outstanding have been paid in full; and/or

15.1.2         claim immediate payment of all amounts, whether then due for payment or not under this Agreement, which rights shall all be in addition to BahatiGroup’s right to cancel the Agreement as per this clause 15. A certificate signed by a person employed by BahatiGroup shall be prima facie (face value) proof of the amount due, owing and payable by the Client;

15.1.3         cancel this Agreement without further notice in which case BahatiGroup shall, in addition to the rights afforded it in this clause 15, become entitled to:

15.1.3.1           secure immediate possession of any BahatiGroup equipment; and

15.1.3.2           claim, as liquidated damages, payment of the balance of the total Fees for the unexpired portion of this Agreement.

15.2       Should BahatiGroup be in breach of any other provision of this Agreement, and remain in default after having been afforded a period of 7 (seven) business days’ written notice to remedy such breach, the Client shall be entitled, without prejudice to any alternative or additional right of action or remedy to:

15.2.1         cancel this Agreement; and/or

15.2.2         claim specific performance, with or without damages.

15.3       Notwithstanding anything to the contrary herein contained and this Agreement being cancelled for whatsoever reason, any rights that have accrued, including any benefit in favour of the Parties, even if not accrued, shall survive any cancellation and be of full force and effect.

15.4       BahatiGroup shall be entitled to recover from the Client all reasonably incurred and properly documented costs, expenses and payments, including costs of an attorney, as a result of the Client’s breach of the Agreement.

15.5       The Client shall not be entitled to cancel the Agreement or claim damages as a result of a delay in performance by BahatiGroup due to:

15.5.1         floods;

15.5.2         riots, civil disturbance, war;

15.5.3         strikes;

15.5.4         power failures, externally imposed rolling blackouts (currently known as load shedding);

15.5.5         unavailability of components of whatsoever nature for the BahatiGroup Equipment, Alarm system and/or ancillary equipment; and/or

15.5.6         Force Majeure and/or any other circumstances beyond the control of BahatiGroup or its Sub-Contractors.

15.6.      Force Majeure

15.6.1         The failure of a Party to fulfil any of its obligations under the Agreement shall not be considered to be a breach of, or default under, this Agreement provided such inability arises from an event of Force Majeure, and that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures in order to meet the terms and conditions of this Agreement, and has informed the other Party as soon as possible about the occurrence of such an event.

15.6.2         In the event that the performance of the Services has to be suspended on the grounds of Force Majeure, the time for completion shall be extended by the extent of the delay plus a reasonable period for the resumption of work or, if the speed of performing certain Services has to be reduced, the time for their completion shall be extended as may be necessary in the circumstances.

15.6.3         During the period of its inability to perform the Services as a result of an event of Force Majeure, BahatiGroup shall be entitled to continue to be paid under the terms of the Agreement and shall be reimbursed for additional costs reasonably and necessarily incurred by BahatiGroup in suspending, delaying and re-activating the performance of the Services.

16. SURETY

16.1       BahatiGroup reserves the right to call on any person signing on behalf of the Client in a representative capacity confirming the acceptance of the terms and conditions set out in this Agreement, by his/her signature, to bind him- or herself, under renunciation of the benefits of excussion and division (meaning the surety cannot require BahatiGroup to first proceed against the client before proceeding against the surety and that the debt of the surety is not divided between it and the Client), as a surety and co-principal debtor in solidum (as one) with the Client for the payment by him to BahatiGroup of all amounts which may at any time become owing to BahatiGroup by the Client from any cause whatsoever and howsoever arising.

17. DOMICILIUM AND NOTICES

17.1       The Parties hereby appoint the address appearing in the Schedule as its chosen domicilium citandi et executandi (place of notice) at which address each Party shall be entitled to deliver all court notices, court pleadings and processes and any other documentation, provided that a Party may change its domicilium to another physical address in the Republic of South Africa, provided that such physical address is not a post office box or poste restante, or may change its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 business days after receipt of the notice of the change.

17.2       All notices to be given in terms of this Agreement will be given in writing and will –

17.2.1    be delivered by hand or sent by email;

17.2.2    if delivered by hand during Business Hours, be presumed to have been received on the date of delivery. Any notice delivered after Business Hours or on a day which is not a business day will be presumed to have been received on the following business day; and

17.2.3    if sent by email during Business Hours, be presumed to have been received on the date of successful transmission of the email. Any email sent after Business Hours or on a day which is not a business day will be presumed to have been received on the following business day.

17.3       Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause 17.

18. RESOLUTION OF DISPUTES

18.1       Settlement

18.1.1         The Parties shall negotiate in good faith with a view to settling any dispute or claim arising out of or relating to the Agreement and may not initiate any further proceedings until either Party has, by written notice to the other, declared that such negotiations have failed.

18.1.2         Any dispute or claim arising out of or relating to the Agreement which cannot be settled between the Parties shall in the first instance be referred by the Parties to either mediation or arbitration as provided for in this clause 17.

18.2       Mediation

18.2.1         If the Agreement does not provide for dispute resolution by adjudication, not earlier than ten working days after having advised by the other Party, in terms of Clause 17.1, that negotiations in regard to a dispute have failed, an aggrieved Party may require that the dispute be referred, without legal representation, to mediation by a single mediator. The mediator shall be selected by agreement between the Parties, or, failing such agreement, by the person named for this purpose in the Agreement. The costs of the mediation shall be borne equally by the Parties.

18.2.2         The mediator shall convene a hearing of the Parties and may hold separate discussions with any Party and shall assist the Parties in reaching a mutually acceptable settlement of their differences by way of mediation. The Parties shall record such settlement agreement in writing and shall be bound by the said agreement.

18.2.3         The mediator is authorised to end the mediation process whenever in his/her opinion further efforts at mediation would not contribute to a resolution of the dispute between the Parties.

18.2.4         If either Party is dissatisfied with the mediator’s opinion or should the mediation fail, then such Party may require that the dispute be referred to arbitration or litigation in a competent civil court within three calendar months of the mediator’s decision being issued or the mediator declaring the mediation to have ended, as provided for in the Agreement. Claims not brought within the time periods set out herein will be deemed to be waived.

18.3       Arbitration

18.3.1         Arbitration, where provided for in the Agreement, shall be by a single arbitrator in accordance with the provisions of the Arbitration Act of 1965 as amended and shall be conducted in accordance with such procedure as may be agreed between the Parties or, failing such agreement, in accordance with the Rules of the Arbitration Foundation of Southern Africa (“AFSA”) which are current at the date the arbitrator is appointed.

18.3.2         The arbitrator shall be mutually agreed upon or, failing agreement, shall be nominated by the person named in the Contract Schedule.

19. 19. GENERAL WARRANTIES

19.1       Each of the Parties hereby warrants to and in favour of the other that –

19.1.1         it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;

19.1.2         this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;

19.1.3         the execution of this Agreement and the performance of its obligations hereunder does not and shall not:

19.1.3.1           contravene any law or regulation to which the Party is subject;

19.1.3.2           contravene any provision of that Party’s constitutional documents; or

19.1.3.3           conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it; and

19.1.4         to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all its obligations in terms of this Agreement;

19.1.5         it is entering into this Agreement as principal (and not as agent or in other capacity);

19.1.6         the natural person who signs and executes this Agreement on its behalf is validly and duly authorised to do so;

19.1.7         no other party is acting as a fiduciary for it; and

19.1.8         is not relying upon any statement or representation by or on behalf of any other Party, except those expressly set forth in this Agreement.

19.2       Each of the representations and warranties given by the Parties in terms of clause 18.1 shall:

19.2.1         be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;

19.2.2         continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and

19.2.3         prima facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.

20. BENEFIT OF THE AGREEMENT

20.1       This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.

21. APPLICABLE LAW AND JURISDICTION

21.1       This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.

21.2       Subject to clause 17, the Parties consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Division, Johannesburg in any dispute arising from or in connection with this Agreement.

22. INDEPENDENT ADVICE

22.1       Each of the Parties to this Agreement hereby acknowledges and agrees that –

22.1.1         it has been free to secure independent legal and other professional advice (including financial and taxation advice) as to the nature and effect of all of the provisions of this Agreement and that it has taken such independent advice or has dispensed with the necessity of doing so; and

22.1.2         all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are in accordance with the Party’s intentions.

23. WHOLE AGREEMENT

23.1       This Agreement read together with the applicable Schedule constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.

23.2       This Agreement supersedes and replaces any and all agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.

23.3       In the event of any conflict between this Agreement and any other document that may be presented by the Parties at any time, the terms and conditions of this Agreement shall prevail and be duly implemented, unless otherwise provided herein.

24. VARIATIONS TO BE IN WRITING

24.1       No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.

25. NO INDULGENCES

25.1       No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from this Agreement and no single or partial exercise of any right by either Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from this Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of either Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any right, power or privilege.

26. NO WAIVER OR SUSPENSION OF RIGHTS

26.1       No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by that Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.

27. PROVISIONS SEVERABLE

27.1       All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

28. CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS

28.1       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 clauses themselves do not expressly provide for this.

29. NO ASSIGNMENT

29.1       Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by either Party without the prior signed written consent of the other, save as otherwise provided herein.

30. EXCLUSION OF ELECTRONIC SIGNATURE

30.1       The reference in clauses 24 and 26 to writing signed by a party shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.

31. COSTS

31.1       Except as otherwise specifically provided herein, each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.

32     SIGNATURE

32.1      By Ticking you agree to the terms and services and signing on the quote approval through Kaseya Quote Manager.

32.2       This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.

32.3       The persons signing this Agreement in a representative capacity warrant their authority to do so.

32.4       The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.