2. Definitions & Interpretations
2.1 Unless the context otherwise indicates, the following expressions shall have the meanings given to them:
2.1.1 “Act” means the Electronic Communications Act No. 36 of 2005;
2.1.2 “Addressee” means the Party to whom any notice is given and/or any payment is made;
2.1.3 “Affiliate” means, with respect to either Party, any other entity which is a subsidiary or a holding company or a subsidiary of the holding company of such Party. In regard to this definition, the terms "subsidiary" and "holding company" shall have the meaning assigned to them in Section 1 of the Companies Act No. 71 of 2008, but shall include any foreign entity which, had it been registered in terms of that Act, would fall within the ambit of such term;
2.1.4 “Agreement” means the terms and conditions published on the Catalytic website and includes all Schedules / Service Orders sent to the Client for electronic signature and Annexures which are referred to herein and attached to this agreement from time to time;
2.1.5 “Authorised Person” means any person in the employ of the Client and/or a person acting on behalf of the Client who is authorised by the Client to issue Service Orders to Catalytic. The Client may in writing notify Catalytic of the person or designation who has been authorised by the Client to issue Service Orders. In the absence of such notification by the Client, an employee or person acting on behalf of the Client in the issuing of Service Orders, shall be deemed to be an Authorised Person;
2.1.6 “Business Day” means any day other than Saturday, Sunday or a public holiday officially recognised as such in the Republic of South Africa;
2.1.7 “Billing Date” means the date on which the billing for the Service/s shall commence, being the date of connection or activation of the Service /s or such other date as contained in the Service Order;
2.1.8 “Charges“ means usage, call-out, once-off sale and any other charges payable as agreed between the Parties and/or as contained in the invoices rendered;
2.1.9 “Confidential Information” means any information or data in whatever form or medium whether tangible or intangible, oral or in writing, including but not limited to, documents, materials or data which by its nature or content is or should reasonably be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence or is marked as confidential information by the Disclosing Party, and of which the Receiving Party may obtain knowledge through or as a result of the relationship created in terms of this Agreement, access to the Disclosing Party and/or the Disclosing Party’s premises , or communications with the Disclosing Party’s employees, representatives or independent contractors. Without limiting the generality of the foregoing, “Confidential Information” shall include but is not limited to ideas, concepts, business plans, strategies, financial statements, pricing data, operations, inventions, discoveries, formulae, processes, designs, specifications, drawings, prototypes, sample, improvements, developments, applications, marketing data, Client names, projections, trademarks, trade names, and trade secrets, any commercial, financial, technical or strategic information, whether or not the same are or may be patented, registered, or otherwise publicly protected;
2.1.10 “Contract Term” means the term of the applicable Services as set out in relevant Service Order;
2.1.11 “Client Device” means equipment which is either rented or purchased from Catalytic by the Client and used in order to access the Service/s;
2.1.12 “Client Site” means the place and/or premises of the Client where the Services and Charges are activated, rendered and supplied to, which Client Site include, but are not limited to, any and all branches and/or alternative premises of the Client where Catalytic renders Services and Charges;
2.1.13 “Client Site Specification” or “CSS” means the document setting out the design, environmental, technical and/or operational specifications required by Catalytic at the applicable Client Site to enable Catalytic to deliver the Service in question;
2.1.14 "Client Specific Services" means any Services where
(i) the Client has imposed any specific requirements that result in an increase to Catalytic of the cost of providing such Services, included but not limited to medium, delivery route, technology specifications, non-standard service levels or a third party that Catalytic is obliged to utilise;
(ii)any Service that originates from and/or terminates at an international location; or
(iii)any service that forms part of a group of services linked together by Catalytic for feasibility purposes, and/or which are classified as ‘non-standard’ in the relevant Service Order;
2.1.15 “Disclosing Party” means either Catalytic or the Client, as the case may be;
2.1.16 “Due Date” means the date specified in the relevant invoice, or if no such date is specified, three (3) business days from the date of the invoice;
2.1.17 “Effective Date” means the date of signature of the Service Order by the Party signing last in time;
2.1.18 “ICASA” means the Independent Communications Authority of South Africa;
2.1.19 “Intellectual Property Rights” means and includes:
22.214.171.124 rights relating to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), copyright, database, domain name, circuit topography design, and/or utility model, whether registered or not, and including the benefit of all registrations or applications to register and the right to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable; and
126.96.36.199 all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may exist anywhere in the world;
2.1.20 “Licences” means the electronic communications service and electronic communications network service licences issued to Catalytic and any renewal, amendment, re-issue or equivalent thereof authorising Catalytic to provide the Services;
2.1.21 “Losses“ means all losses, liabilities, damages and claims, and all related costs and expenses suffered by either Party (including legal fees on the scale as between attorney and client, tracing and collection charges, costs of investigation, interest and penalties);
2.1.22 “MRC” or “Monthly Recurring Charge” means the monthly charges for the Services as set out in the applicable Service Order;
2.1.23 “Catalytic Equipment” means all hardware, network facilities, and/or telecommunication facilities, which Catalytic uses to provide the Services;
2.1.24 “Network” means the communication network, components and network equipment owned and/or operated by Catalytic, including points of presence, but does not include Client Devices, Client premises equipment (modems, routers etc), or any networks or network equipment not owned or controlled by Catalytic;
2.1.25 “NRC” or “Non-Recurring Charge” means the Services as set out in the applicable Service Order;
2.1.26 “Personal Information” shall bear the meaning as set out in the POPI Act and includes, but is not limited to any information provided by the Client to Catalytic that is an identifying number, symbol, e-mail address, physical address, telephone number or similar assignment relating to the Client or any Client of the Client, which is subject to protection in terms of any statute in South Africa which imposes data protection requirements from time to time;
2.1.27 “Party” means either Catalytic or the Client and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns;
2.1.28 “POPI Act” means the Protection of Personal Information Act, 4 of 2013, as may be amended from time to time;
2.1.29 “Processing” shall bear the meaning as set out in the POPI Act;
2.1.30 “RICA Act” means Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002;
2.1.31 “Service Description” means the detailed description of the nature and type of the applicable Service requested by the Client as described in the Service Order;
2.1.32 “Service Order” or “SO” means the form through which the Client accepts a quotation for services, or for any variation to a Service, setting out the details of the Service requested such as quantities, Contract Term, fees, Service Levels and Charges payable;
2.1.33 “Service/s” means the description of services to be rendered as contained in the Service Order;
2.1.34 “Service Commencement Date” means the date of the Installation certificate or activation date;
2.1.35 “Installation Certificate” or “IC” means the form provided by Catalytic to the Client after Catalytic has completed installation and testing of the Service, or any variation to a Service, as the case may be;
2.1.36 “Service Login and Escalation Schedule” means the levels of service required in relation to the provision by Catalytic of the Services;
2.1.37 “Terminating Services” means those Services that are terminated in accordance with clauses 16 and 17; and
2.1.38 “Termination Date” means the date upon which this Agreement, or the applicable Terminating Services, as the case may be, terminates for any reason whatsoever.
2.2 Unless the context indicates otherwise, an expression which indicates:
(i) any gender includes the other gender;
(ii) a natural person includes a juristic person and vice versa; and
(iii) the singular includes the plural and vice versa.
2.3 Headings are for convenience only and do not affect the interpretation of this Agreement.
2.4 In the event of ambiguity or conflict, and unless stated explicitly to the contrary in the relevant clause, the order of precedence in the interpretation of this Agreement shall be:
2.4.1 this Agreement; and
2.4.2 the Service Order/s.
2.5 The expiration or termination of this Agreement shall not affect those provisions of this Agreement that 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.
2.6 The rule of construction that this Agreement shall be interpreted against the party responsible for the drafting or preparation of this Agreement, shall not apply.
2.7 When any number of days is prescribed in this Agreement, same shall be reckoned as Business Days exclusive of the first day and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day.
2.8 A law shall be construed as any law (including common law) or statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order or any legislative measure of any government, local government, statutory or regulatory body or court as at the Effective Date and as amended or re-enacted from time to time, where applicable.
3. Agreement Commencement Date
This Agreement shall commence on the Effective Date that the Service Order was signed and shall thereafter remain in force and effect until such time and subject to the termination thereof in accordance with clauses 16 and 17.
4. Service Commencement Date
The Services shall commence on the Service Commencement Date and shall thereafter remain in force for the Contract Term agreed to by the Parties in the Service Order.
5. Provision of Services as Per Service Order
5.1 For the duration of this Agreement, the Client shall obtain the Services as it requires from Catalytic in terms of the Service Orders concluded from time to time.
5.2 Catalytic shall not be committed to supply any Services to the Client until a Service Order in respect of the required Services has been signed by both parties.
5.3 In providing the Services to the Client, Catalytic reserves the right to utilise any technology which it has available and which it considers at its discretion as most suitable and reasonable to render Services unless the applicable Service Order expressly states that specific technology will be used.
5.4 Catalytic reserves the right to utilise any spare transmission capacity provided that such use of spare capacity does not have an adverse effect on the provision of the Services to the Client.
5.5 The Services shall be used by the Client in accordance with the terms and conditions of this Agreement.
5.6 Each Service Order shall constitute an agreement between the Parties subject to and regulated by this Agreement.
6.1 The Client shall pay to Catalytic the Charges as invoiced from time to time on or before the Due Date without any set off or other deduction, including any taxes as may be imposed on the Client.
6.2.1 The following shall not be included in any Charges specified in any Service Order and shall be for the account of the Client:
188.8.131.52 Value Added Tax;
184.108.40.206 any other tax (including withholding taxes, penalties and interest on tax where applicable) which Catalytic becomes obligated to pay arising directly out of this Agreement, exclusive of taxes based on the gross income of Catalytic. The Client agrees that if any such taxes, penalties and interest are applicable, the amount to be paid to Catalytic shall be grossed up so that Catalytic receives a net amount equal to that to which it would have been entitled to under this Agreement prior to the imposition of such taxes, penalties or interest; and
6.3. Fixed Charges
6.3.1 Unless stated to the contrary in the relevant Service Order and subject to clauses 6.3.2 and 6.3.3, the MRC set out in each applicable Service Order shall be fixed for duration of the Contract Term thereof.
6.3.2 Catalytic shall be entitled to adjust the MRC in the event that any regulatory, or government imposed factors impact on such fees and charges.
6.3.3 Catalytic shall be entitled to amend the MRC from time to time and will provide the Client with thirty (30) calendar day’s written notice to that effect.
7.1 Catalytic will invoice the Client for each Charge or each Service provided under this Agreement from the Service Commencement Date thereof, which Charge or Service can include a pro-rata amount. The NRC will be invoiced following the Service Commencement Date, MRC will be invoiced in advance of the month to which it relates, and all Charges will be invoiced in arrears.
7.2 Catalytic shall, in relation to all fees due under this Agreement, provide the Client with a detailed monthly statement of account (together with all related tax invoices) setting out the amount due and payable by the Client.
7.3 All tax invoices shall be payable by the Client by the Due Date by debit order or by electronic funds transfer into Catalytic’s banking account, which details are as follows:
Bank Name: First National Bank
Account Number: 62833610381
Branch Code: 210554
Reference: invoice number
7.4 If any amount is overdue, the Client shall pay interest on the overdue amount at Catalytic Bankers prevailing prime overdraft rate of interest plus two percent (2%), compounded monthly in arrears and calculated on a three hundred and sixty five (365) calendar day year, and as certified by any representative of that bank whose appointment and designation it will not be necessary to prove, such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).
7.5 The Client is not entitled to withhold any payment for any reason whatsoever.
7.6 The Client undertakes and agrees that any and all payments due in respect of this Agreement and other amounts raised in any Service Order will be paid in South African Rand.
8. Catlaytic Obligations
8.1 Catalytic shall not do, or permit to be done, or commence any Service/s until such time as the Service Order in respect of the applicable Service/s are duly signed by all parties.
8.2 Catalytic shall not do, or permit to be done, anything in relation to the Services or Charges which may reasonably be expected to damage or materially interfere in any way whatsoever with the proper normal operation of the Client’s network.
8.3 In providing the Services and Charges, Catalytic shall comply with this Agreement and any applicable law.
8.4 Where Catalytic is or becomes aware that there is any violation or contravention contemplated in this clause 8, it will co-operate to the extent reasonably necessary and provide the Client with the necessary information to assist in identifying, preventing or remedying or rectifying such violation or contravention.
9. Client's Obligation
9.1 In making use of the Services or Charges, the Client shall:
9.1.1 comply with all requirements contained in the Client Site Requirements as signed by the Client prior to the installation of any Client Device or Catalytic Equipment at a Client Site;
9.1.2 comply with this Agreement and any applicable law; and
9.2 The Client warrants that:
9.2.1 it has obtained all necessary approvals required in relation to receipt of the Services or
Charges and shall provide a copy of same upon request; and
9.2.2 in the event that it procures Services, defined as “electronic communications network services” in the Act, for use by parties other than the Client, it has obtained a licence under the Act to supply same or is exempted from the licensing requirement, and shall provide a copy thereof upon request.
9.3 The Client shall use reasonable efforts to ensure that it, its employees, Clients and/or any other persons permitted by the Client to make use of the Services or Charges, do not by any act, or omission, damage, interfere with or impede the operation of the Service or Network provided by Catalytic.
9.4 Where the Client is or becomes aware that there is any violation or contravention contemplated in this clause 9, it will co-operate to the extent reasonably necessary and provide Catalytic with the necessary information to assist in identifying, preventing or remedying or rectifying such violation or contravention.
9.5 The Client shall, at no cost to Catalytic, provide Catalytic with adequate access to, and space within, such Client Site, data processing and communication facilities as is reasonably required for delivery of the Services or Charges. In the event that the Client is not the owner of the building/property where such access and/or space is required, it is the obligation of the Client to obtain the signature of the owner thereof before Catalytic is able to undertake any such activities.
10. Data Privacy & Protection
10.1 The Client hereby consents to the Processing by Catalytic of its Personal Information and any other information that the Client may provide to Catalytic for all purposes related to providing the Services or Charges. Should the information not be provided, the Services or Charges cannot be rendered.
10.2 Catalytic may collect Personal Information from and disclose Personal Information to other service providers of Catalytic, including credit bureaux (in order to perform credit and background checks), banks (to process transactions), research companies (that assist Catalytic to understand market trends), and collection agencies (for the collection of outstanding accounts). The Client consents to the collection and/or disclosure of its Personal Information for these purposes.
10.3 Catalytic may, from time to time, store, transfer and Process Personal Information in and to countries outside of the Republic of South Africa. Catalytic shall take all reasonable steps necessary to ensure that any Personal Information transferred outside of the Republic of South Africa is protected and is Processed as required by the POPI Act and the applicable data protection laws in that country. By submitting its Personal Information to Catalytic, the Client consents to the transfer, processing or storage of its Personal Information outside of the Republic of South Africa.
10.4 Catalytic shall-
10.4.1 use its best efforts to keep Personal Information confidential and shall not disclose any Personal Information to any other person except as required by law, save to the extent set out herein;
10.4.2 utilise reasonable technical and organisational measures in accordance with best industry practice for the purpose of complying with its obligations in terms of clause 10.4.1;
10.4.3 at all times strictly comply with the POPI Act and other applicable laws, regulation or code relating to data protection in South Africa, or other requirements enforced by any relevant industry or self-regulatory body within the Republic of South Africa in the provision of the Services; and
10.4.4 not, at any time copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use data for any purpose other than providing the Services to the Client other than with the express prior written consent of the Client.
10.5 The Client acknowledges that it is primarily responsible for complying with any data protection obligations imposed in terms of any law, including the common law, and shall obtain any consents necessary for the disclosure of Personal Information to Catalytic for the purposes of this Agreement.
10.6 The Client shall separate any Personal Information from any other Data provided to Catalytic for the purpose of providing the Service and shall designate the Personal Information as such before disclosing or otherwise making it available to Catalytic.
10.7 The Client shall immediately notify Catalytic if there is any change to its Personal Information, or to correct any errors in the Client’s account or Client information. The Client may at any time request access to, rectification or deletion of, the Personal Information held by Catalytic in relation to the Client
10.8 The Client is entitled to withdraw its consent to the Processing of its Personal Information by giving written notice to Catalytic together with the grounds therefor; provided that the lawfulness of the Processing of Personal Information before such withdrawal will not be affected or the withdrawal will not affect any processing that:
10.8.1 is necessary to carry out actions for the conclusion or performance of any agreement between Catalytic and the Client;
10.8.2 complies with an obligation imposed by law on Catalytic;
10.8.3 protects a legitimate interest of the Client; or
10.8.4 is necessary for pursuing the legitimate interests of Catalytic or a third party to whom the Personal Information is supplied.
10.9 The Client is entitled to:
10.9.1 object, by written notice to Catalytic, to the Processing of its Personal Information on reasonable grounds, unless legislation provides for such Processing;
10.9.2 lodge a complaint to the Information Regulator, established or to be established in terms of the POPI Act, regarding the alleged unlawful processing of the Clients personal information by Catalytic. The Information Regulator’s contact details will be published in the Government Gazette and/or by the Information Regulator, once it is established.
10.10 The Client indemnifies Catalytic for any breach of information as a result of the negligence and/or conduct of the Client or the conduct of a third-party operator.
11.1 The Client is responsible for ensuring that all equipment or devices, including Client Devices, used by the Client to access the Services are kept in a secure location and taking all practical steps to restrict access to the security and configuration parameters of all such equipment or devices to only those individuals who are actively involved in activities for which use of the information is required.
11.2 Client Devices
11.2.1 In the event that Catalytic provides the Client with a Client Device, it will be provided on either a purchase or rental basis, as further set out in the relevant Service Order.
11.2.2 In relation to such relevant Client Devices, the Client undertakes to ensure, at all times, that-
220.127.116.11 until such time as the full purchase price of such Client Device has been paid by the Client, the provisions of clauses
11.1 and 11.3.2 apply and are complied with in relation to the Client Device;
18.104.22.168 it and its authorized representatives shall ensure that the correct configurations of the Client Devices and other devices used to access the Network, are done; and
22.214.171.124 the configuration parameters as provided to the Client on the Service Handover Form are kept confidential.
11.3 Catalytic Equipment
11.3.1 All Catalytic Equipment shall be and remain the property of Catalytic.
11.3.2 Accordingly, where Catalytic Equipment is in the possession, or under the control, of the Client, the Client agrees:
126.96.36.199 not to remove or allow the Catalytic Equipment to be removed from the Client site without Catalytic consent;
188.8.131.52 to keep the Catalytic Equipment in good condition and complete;
184.108.40.206 not to allow the Catalytic Equipment to be encumbered by operation of law or otherwise;
220.127.116.11 to allow Catalytic to inspect the Catalytic Equipment at reasonable times;
18.104.22.168 to accept all risk in the Catalytic Equipment, taking reasonable steps to protect the Catalytic Equipment from loss and/or damage; and
22.214.171.124 to return such Catalytic Equipment to Catalytic on the termination of the Contract Term of the applicable Services, alternatively, replace such Catalytic Equipment with new equipment of the same standard, quality and specification.
11.4.1 The Client shall ensure that the Client’s Device/s, if rented, is insured for its replacement cost with a registered insurer for the Contract Term. The Client is to notify Catalytic in writing immediately if any of the Client Device(s) are lost, stolen or damaged.
11.4.2 If any of the Client Device(s) are lost or damaged, the Client shall replace such Client Device at its standard prices and rates and this Agreement shall endure. The Client shall claim its losses from its insurance at the agreed replacement value.
12. Safety & Security
12.1 Each Party agrees to comply with safety and security procedures notified to them by the other Party and with the requirements of the Occupational Health and Safety Act No. 85 of 1993.
12.2 All access to the Client’s sites by Catalytic and its employees, agents and contractors shall be in terms of the Client’s safety and security procedures, as amended from time to time.
12.3 The Parties shall each at their own cost and expense take whatever steps as are necessary to discharge their respective obligations in terms of this Agreement and applicable laws to ensure the health and safety of the other Party’s employees, agents, directors, sub-contractors and members of the public.
12.4 The Client shall be entitled to request Catalytic to remove any employee, agent or contractor from its team if it is of the reasonable opinion that such person is a security or safety risk. Any such request shall be in writing and shall stipulate the reasons for the Client believes the requested removal.
13. Force Majeur
13.1 A Party shall not be liable for a failure to perform any of its obligations in terms of this Agreement in so far as it is able to prove that:
13.1.1 such failure was due to an impediment beyond its reasonable control;
13.1.2 it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of this Agreement; and
13.1.3 it could not reasonably have avoided or overcome the impediment or at least its effects and, for purposes of this clause 13, the following events (which list is not exhaustive) shall be deemed to be impediments beyond the control of each of the Parties, namely:
126.96.36.199. war, whether declared or not, civil war, civil violence, riots and revolutions, acts of piracy, acts of sabotage;
188.8.131.52. natural disasters such as violent storms, cyclones, earthquakes, floods and destruction by lightning;
184.108.40.206. acts of authority, whether lawful or unlawful, apart from acts for which the Party seeking relief has assumed risk; and
220.127.116.11. acts and omissions of any other electronic communications provider or any utility provider, including but not limited to electricity ‘load-shedding’ activities.
13.2. Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date on which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the date on which such impediment
ceases to exist, provided that if the impediment continues for a period of more than sixty (60) consecutive calendar days, the other Party shall be entitled to terminate those Services affected by such event by written notice to the Party seeking relief.
14. Limitation of Liability
Neither Catalytic, their respective directors, shareholders, agents, beneficiaries, employees and advisors shall be liable for any loss or damage, whether direct, indirect, consequential or otherwise, suffered by the Client howsoever arising in connection with this Agreement and/or the Services or Charges rendered, whether that loss or damage arises as a result of a breach of contract (whether total, fundamental or otherwise), delict or any other cause and whether this Agreement has been terminated or not, other than as a result of the gross negligence, fraud or willful misconduct, as the case may be.
15. Suspension of Services or Charges
15.1. Catalytic may, on one (1) calendar days’ prior written notice, lawfully suspend all or part of any Service or Charge until further notice to the Client if, in Catalytic reasonable discretion:
15.1.1. the continued provision of the Service will cause Catalytic to breach an applicable law or be in contravention of its Licences;
15.1.2. the Client is in breach of any material provision of this Agreement and such breach remains unremedied notwithstanding prior written notice of breach from Catalytic; or
15.1.3. any overdue tax invoice for Services or Charges billed by Catalytic to the Client remains unpaid.
15.2. The exercise of Catalytic right to suspend the Services under this clause 15 is without prejudice to any other remedy available to Catalytic under this Agreement and does not constitute a waiver of Catalytic right to subsequently terminate this Agreement.
15.3. Where Catalytic has suspended the Services in terms of clause 15.1.1 or 15.1.3, and the Client has remedied the applicable breach to the reasonable satisfaction of Catalytic, Catalytic may not unreasonably refuse to reconnect the Services but may require the Client to pay a reconnection fee in advance as well as such other conditions that Catalytic considers reasonable in the circumstances, as a pre-condition to making the Services or Charges available again.
16.1 Termination for convenience
16.1.1 Notwithstanding the Contract Term set out in the Service Order, the Client shall be entitled in its sole discretion and without cause, to terminate one or more or all Service Orders by giving Catalytic sixty (60) calendar days’ prior written notice. The termination of these Terminating Services shall be subject to the early termination charges set out in clause 17.
16.1.2 Upon termination of all Service Orders as per clause 16.1.1, this Agreement will automatically terminate.
16.1.3 Termination of one or more Service Orders in accordance with clause 16.1.1, but not termination of all Service Orders, shall not affect any of the terms of the remaining Service Orders, which shall continue, in full force and effect, and in accordance with the terms and conditions of this Agreement.
16.1.4 In the event that the Client has not provided Catalytic with the counter-signed Client Site Specification granting permission for Catalytic to trench, install and/or to mount the required infrastructure at the Client Site within 14 calendar days from the date of receipt of the drawings of the planned route and/or mounting position in question, Catalytic shall be entitled to terminate the Service Order in question with immediate effect. All Services terminated in terms of this clause shall be subject to the early termination charges set out in clause 17.
16.2 Termination for cause
Without prejudice to any rights and remedies that may have accrued, either Party may terminate this Agreement with immediate effect upon written notice if the other Party:
16.2.1 has a court order issued against it placing it under final liquidation. For the avoidance of doubt, where a Party is undergoing business rescue in accordance with the Companies Act No. 71 of 2008, and for so long as that Party is still complying with its obligations under the Service Order and this Agreement, subject to clause 15.1.3, the other Party may not terminate the Service Order Agreement in accordance with this clause 16.2.
Either Party shall be entitled to terminate the Service Order Agreement in the event of the other Party committing a breach of any of the terms of this Agreement and failing to remedy such breach within a period of thirty (30) calendar days after receipt of written notice drawing its attention to the breach and demanding that it be remedied.
17. Early Termination
17.1 Unless stated to the contrary in the relevant Service Order, the termination fee for all Services other than Client Specific Services shall be calculated on the outstanding Charges for each of the Terminating Services as at the Termination Date thereof and will be determined as follows:
17.1.1 In the event of the Terminating Services being terminated prior to the Service Commencement Date thereof, the Client shall be liable for an amount equal to the NRC, plus 6 (six) months of the MRC;
17.1.2 In the event that the Contract Term for the Terminating Service is 24 (twenty-four) months or less, the Client shall be liable for an amount equal to 100% of the MRC for the remainder of the Contract Term for the Terminating Service;
17.1.3 In the event that the Contract Term for the Terminating Service is greater than 24 (twenty-four) months, the Client shall be liable for an amount equal to 100% of the MRC for the Terminating Service for the remainder of the first 24 (twenty- four) months (if any), and 50% of the MRC for the Terminating Service for each month thereafter; and
17.1.4 Subsequent to clauses 17.1.1 to 17.1.3, the Client further acknowledges that the Client is aware that Catalytic requires, in certain cases, the services of a third party to render the Services and/or Charges to the Client, and the Client therefore specifically agrees that it will be liable for any cancellation penalty, over and above the early termination costs as set-out above, that Catalytic will be held account for by any third party in relation to the Services and/or Charges rendered to the Client under this Agreement.
17.2 The termination fee for all Client Specific Services shall be set out in the relevant Service Order.
17.3 The amounts referred to in clauses 17.1 and 17.2 shall be in addition to all Charges payable in the ordinary course in respect of the applicable Service Order for the Terminating Services, plus any other Services which continue unchanged, as at the
18. Service Variations
If either of the Parties wishes to make a change, modification or adjustment to any element of any Services, the following procedure will apply:
18.1 The Party who requests the change will forward a change request to the other Party, setting out the details of the change request;
18.2 Catalytic will investigate the feasibility, cost implications and impact of the change request on the Services and notify the Client of the results of this impact study;
18.3 If the Client makes a decision to proceed with the change request after considering the impact study, the Client shall give Catalytic a written instruction to proceed with that change on the basis set out in the impact study; and
18.4 Such instruction shall be incorporated into a new Service Order, which is intended to supersede any previous Service Order signed by the Parties for the Service/s in question. No change will be implemented until such SO has been signed by both Parties; or
18.5 Should the Client proceed with the change as referred to in paragraph 18.3 and request additional Service/s on an existing Service Order, Catalytic will issue an additional Service Order for the Service/s in question. No change for additional Service/s will be implemented until such time as the additional Service Order is signed by both Parties.
18.6 If the Parties cannot agree upon the necessary amendments, the change request will not be implemented.
19. Dispute Resolution
19.1 In the event of any dispute arising between the Parties under this Agreement or any Service, the Parties will act in good faith to attempt to settle the dispute through discussions between senior representatives (which may include the respective CEO’s or their nominees) of the Parties within thirty (30) calendar days of a Party giving the other Party notice of the issue in dispute.
19.2 Any dispute which cannot be resolved by the Parties within the thirty (30) calendar day period, as provided in clause 19.1, shall be resolved by arbitration in the English language by a single arbitrator appointed by the Arbitration Foundation of South Africa and in accordance with the Rules of the Arbitration Foundation of South Africa. The arbitration shall be held in Pretoria.
19.3 Each Party expressly consents to any arbitration being conducted as a matter of urgency, and irrevocably authorises the other to apply, on behalf of the Parties, 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.
19.4 Either Party may appeal the decision of the arbitrator within a period of 10 (ten) Business Days after the arbitrator’s ruling has been handed down by giving written notice to that effect to the other Party. The appeal shall be dealt with in accordance with the rules of the Foundation by a panel of 3 (three) arbitrators appointed by the Foundation. The arbitrator’s decision shall be final and binding on the Parties after the expiry of the 10 (ten) Business Day period from the date of the arbitrator’s ruling, if no appeal has been lodged by any Party, and may be made an order of court at the instance of and by either Party.
19.5 Notwithstanding the provisions of clauses 19.1 to 19.3, either Party shall have the right to seek relief by way of interim relief from any court of competent jurisdiction, pending the outcome of the arbitration or at any time.
19.6 Any arbitration in terms of clause 19.2 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome
of the arbitration.
20.1 Both Parties agree and undertake:-
20.1.1 except as permitted by this Agreement, not to disclose or publish any Confidential Information;
20.1.2 except as permitted by this Agreement, not to use the Confidential Information for any purpose whatsoever without the prior written consent of the other Party;
20.1.3 to restrict the dissemination of the Confidential Information to only those of its employees who are actively involved in activities for which use of the Confidential Information is authorised and then only on a ‘need to know’ basis and to take all practical steps, both before and after disclosure, to impress upon its employees who are given access to Confidential Information, the secret and confidential nature thereof.
20.2 The Parties acknowledge that the Confidential Information disclosed by the Disclosing Party to the other Party or which otherwise comes to the knowledge of the receiving Party, the Disclosing Party has not conferred any rights of whatever nature in such Confidential Information on the receiving Party.
20.3 Confidential Information excludes information which is lawfully in the public domain at the time of disclosure or subsequently becomes lawfully part of the public domain; becomes available to the receiving Party from a source other than the Disclosing Party or is disclosed pursuant to a requirement or request by operation of law, regulation, court order or as a consequence of any judicial proceedings to which a Party is a party.
20.4 The onus to establish whether the Confidential Information falls within the exclusions referred to in clause 20.3 shall rest on the receiving Party. The information disclosed in terms of this Agreement shall 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. Any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in a Party’s possession but only if the combination itself is in the public domain or in a
20.4 The receiving Party shall protect the Confidential Information in the manner, and with the endeavour of a reasonable person protecting his own Confidential Information.
20.5 The Parties record that this clause 20 shall not be applicable where either Party discloses Confidential Information to its attorneys or auditors, provided that such disclosure is reasonably required by the Disclosing Party for the purposes of conducting its business activities.
20.6. This clause 20 is severable from the rest of this Agreement and shall remain valid and binding on the Parties for a period of five (5) years after the termination or expiration of this Agreement.
20.7 The Parties acknowledge and agree that, for the purposes of Section 64(1) of the Promotion of Access to Information Act, No. 2 of 2000, the Confidential Information is provided in confidence by the Parties.
21. Intellectual Property Rights
21.1 Nothing contained in this Agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.
21.2 Each Party indemnifies the other Party against all claims, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement, passing-off and/or unlawful competition in relation to any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the unlawful and/or unauthorised use by a Party of the Intellectual Property Rights of the other Party.
22. Domicilia & Notice
22.1 Each of the Parties choose as their domicilia citandi et executandi (domicilium) for the purposes of giving any notice, the serving of any process or for any other purpose arising from this Agreement at:
Physical Address: Building 2 ATT House, Ground Floor, Maxwell Office Park, Magwa Crescent West, Waterfall City, Midrand, 2090
Postal Address: P.O. Box 68255, Highveld Park, 0167
Email Address: firstname.lastname@example.org
Telephone Number: 087 945 0000
Physical Address: As per the Service Order Postal
Address: As per the Service Order
Email Address: As per the Service Order
Telephone Number: As per the Service Order
22.2 Each of the Parties shall be entitled from time to time, by written notice to the other to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or poste restante.
22.3 Any notice given and any payment made by any Party to the other which:
22.3.1 is delivered by hand during the normal business hours of the Addressee at the Addressee's domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee at the time of delivery;
22.3.2 is posted by prepaid registered post from an address within the Republic of South Africa to the Addressee at the Addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the Addressee on the eighth day after the date of posting.
22.4 Any communication required to be in writing in terms of this Agreement shall only be valid if either written or printed in a paper based form. No data message (as defined in the Electronic Communications and Transactions Act 25 of 2002), including an email, SMS and recorded voice message, sent by either party shall amend this Agreement or the rights and duties of the Parties in any manner, unless such a data message is reduced to paper and signed by the Parties. Data messages (as defined above) sent by either Party to the other shall be deemed to be received by the receiving Party only when the receiving Party responds thereto, and for the purpose of this clause an auto-response shall not be a response by the receiving Party.
23. Cession & Assignment
23.1 Subject to clause 23.2, no rights, duties or liabilities under this Agreement may be ceded, assigned, transferred, conveyed or otherwise disposed of by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
23.2 Catalytic is entitled to cede, transfer and make over its right, title and interest in and to any and all debts and receivables due and/or payable to Catalytic under this Agreement, both future and present arising under this Agreement, as security or otherwise. The Client hereby recognises and consents to such cession and/or transfer (including any splitting of claims that may arise) and agrees that the prohibitions of clause 23.1 shall not apply to any such cession and/or transfer.
24. Certificate of Balance
A written certificate issued and signed by any Director of Catalytic shall constitute prima facie proof of the amount and extent of any indebtedness of the Client for purposes of Summary Judgment and/or Provisional Judgment proceedings as well as for purposes of proof of a claim in an insolvent or liquidated estate or in respect of business rescue proceedings. The Client agrees that in the event that such certificate being issued, the Client shall carry the burden of proving, on a balance of probabilities, that such amount is not due and payable.
25. Credit Vetting & Surety
25.1 The Client acknowledge and agrees to Catalytic’s credit vetting process of examining and analysing the Personal Information of the Client to determine the Client’s creditworthiness.
25.1.1 The Client consents thereto that Catalytic may:
18.104.22.168 request a credit report from an authorised third-party or credit related information from an authorised third-party in respect of the Client, with which the creditworthiness of the Client may be determined;
22.214.171.124 that same credit report or credit related information may be delivered to Catalytic on Catalytic’s request;
126.96.36.199 that same credit report or credit related information may be interpreted in connection with the possible conclusion and/or execution of this agreement in determining the Client’s creditworthiness; and
188.8.131.52 that Catalytic may in its sole discretion act in accordance with its interpretation of the credit report or credit related information.
25.2. Should the Client’s creditworthiness not be to the satisfactory standard of Catalytic, the Client will be required to either sign and complete Catalytic’s surety agreement, alternatively to pay to Catalytic an deposit amount, the amount to be determined by Catalytic in its sole discretion.
26.1 The Parties shall co-operate and consult with each other in good faith regarding the implementation of the Service Order with a view to achieving the aims and objectives of the Service Order.
26.2 No Party shall be regarded as having waived, or be precluded in any way from exercising any right under or arising from this Agreement by reason of any Party having at any time granted an extension of time for, or having shown any indulgence to the other Party with reference to any payment or performance hereunder, or having failed to enforce, or delayed in the enforcement of any right of action against the other Parties.
26.3 Neither Party relies in entering into this Agreement upon any warranties, representations, disclosures or expressions of opinion which have not been incorporated into this Agreement as warranties or undertakings.
26.4 This Agreement,
26.4.1 together with all Schedules and other attachments referenced herein, constitutes the entire agreement between the parties on this subject and no variation, modification or consensual cancellation of this Agreement shall be of any force or effect unless reduced to writing and signed by both Parties;
26.4.2 supercedes any previous written or oral agreement between the Parties in relation to the matters dealt with in this Agreement and shall be the terms governing the provision of all Services contracted for by the Client, irrespective of the date upon which this agreement was concluded; and
26.4.3 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.
26.5 If any provision of this Agreement is construed to be illegal or invalid, the illegal or invalid provisions will be treated as being deleted from this Agreement and no longer incorporated, but all other provisions of this Agreement will continue to be binding on the Parties.
26.6 The validity of this Agreement, its interpretation, respective rights and obligations of the Parties and all other matters arising out of it or its termination, for any reason whatsoever shall be determined in accordance with the laws of the Republic of South Africa.
26.7 The Client agrees to provide all requested and sign all documentation required and presented by Catalytic in accordance with the RICA Act.
26.8 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.
26.9 This Agreement may be circulated for signature through electronic transmission, including, without limitation, facsimile and email, and all signatures so obtained and transmitted shall be deemed for all purposes under this Agreement to be original
signatures until such time, if ever, as original counterparts are exchanged by the parties.
26.10 The Person/s signing this Agreement confirms that they are duly authorised to sign this Agreement on behalf of the Client as a duly authorised representative, who’s authority needs not be proved by Catalytic.
26.11 The Client consents to the receipt of direct marketing from Catalytic.
26.12 The Client warrants and guarantees that the information it provides to Catalytic is true and correct; and it further specifically warrants and guarantees that it is 18 years old or older.
26.13 Catalytic informs you of your rights in terms of POPI in a summary which is available on our website, mentioned in paragraph below, you hereby agree to take cognisance thereof.
26.14 The Client may request access to / a copy of our POPI manual on written request; however a summary of the Client’s rights in terms of POPI is available on Catalytic’s website, namely www.catalytic.co.za