Standard Terms and Conditions

Legal

THUSA Standard Terms and Conditions -- the terms that govern all client engagements with THUSA.

These are the Standard Terms and Conditions of THUSA which govern all client engagements with THUSA. These are updated from time to time and available from the THUSA website at www.thusa.co.za with most recent dated version of these taking precedence.

DEFINITIONS

  1. “BUSINESS DAY” means any day other than a Saturday, Sunday or public holiday in South Africa.
  2. “CHARGES” means all amounts payable by THE CLIENT to THUSA for the provision of the DELIVERABLES, as contemplated by clause 9.
  3. “COMPANIES ACT” means the Companies Act 71 of 2008.
  4. "CONTROL” bears the meaning assigned thereto in section 2(2) the Companies Act.
  5. “DELIVERABLES" means any and all works of service, licensing, authorship, products and materials developed, written, prepared, assembled, integrated, modified, procured, supplied or otherwise provided by THUSA in relation to the STATEMENT OF WORK.
  6. “INTELLECTUAL PROPERTY” means intellectual property of any kind, whether registered or unregistered, and whether or not capable of registration.
  7. “PARTIES” means THE CLIENT and THUSA and “PARTY” means any one of them as the context requires.
  8. "PERSONNEL" means employees, agents, contractors and subcontractors.
  9. "RELATED” bears the meaning assigned thereto in the Companies Act.
  10. “STATEMENT OF WORK” means a document or email (whether described as a ‘Statement of Work’, a ‘Deal Sheet’, an approved “Quotation”, an “Order”, or otherwise) and agreed to by the Parties and which describes DELIVERABLES to be provided by THUSA to THE CLIENT on the terms and conditions of THE AGREEMENT.
  11. “THE AGREEMENT” means any referring services agreement, annexure, email, approved quotation, order form, and/or invoice along with and including the latest version of these Standard Terms and Conditions.
  12. “THE CLIENT” means any party (including its subsidiaries, divisions, business units, successors-in-title, employees, appointed representatives and its assigns) engaging with THUSA to provide services and/or licensing and/or equipment and/or infrastructure on a once off and/or recurring basis.

  13. “THUSA” means:

    Thusa Business Support (Pty) Ltd with registration 2006/024453/07 and headquartered at 6 Nokwe Avenue, Umhlanga Ridge, Durban, 4319, South Africa; and/or

    Thusa Nextgen Services (Pty) Ltd with registration 2018/071234/07 and headquartered at 6 Nokwe Avenue, Umhlanga Ridge, Durban, 4319, South Africa.

    Whichever respective entity has entered into THE AGREEMENT with THE CLIENT as the Service Provider.

  14. "VAT" means Value-Added Tax in terms of the Value-Added Tax Act, no. 89 of 1991 with any applicable amendments as published.

INTERPRETATION

  1. Any reference in THE AGREEMENT to:

    1. a clause is, subject to any contrary indication, a reference to a clause of THE AGREEMENT;
    2. a person is a reference to any natural or juristic person, firm, company, corporation, government, state, agency or organ of a state, association, trust or partnership (whether or not having separate legal personality);
    3. any statute, regulation or other legislation is a reference to that statute, regulation or other legislation as amended or substituted from time to time;
    4. a document or instrument includes the document or instrument as ceded, delegated, novated, altered, supplemented or replaced from time to time;
    5. “including” or “in particular” does not limit the meaning of the preceding general words.
  2. Headings are included in THE AGREEMENT for the purpose of convenience only and will not be used in its interpretation.
  3. Unless the context indicates otherwise, in THE AGREEMENT a reference to the singular includes the plural and vice versa and a reference to any gender includes the other genders.
  4. When any number of days is prescribed in THE AGREEMENT it refers to Business Days. The number excludes the first and includes the last day unless the last day falls on a day which is not a Business Day, in which case the last day will be the immediately preceding Business Day. Any reference to times of the day must be interpreted as references to South African time unless the context indicates otherwise.
  5. If a definition in THE AGREEMENT is substantive, conferring rights or imposing obligations, or both, on a Party, effect will be given to it as if it were a substantive term in the body of THE AGREEMENT.
  6. The termination or expiration of THE AGREEMENT will not affect those terms in THE AGREEMENT which expressly provide that they will operate after termination or expiration or which of necessity must continue to have effect after termination or expiration, notwithstanding that the terms do not expressly provide this.
  7. In the event of any conflict between these Standard Terms and Conditions with any other THUSA Document, the provisions hereof will take precedence. The exception being in instances where THE CLIENT and THUSA have a duly signed MASTER SERVICES AGREEMENT in which instance the conflicting provisions of the MASTER SERVICES AGREEMENT take precedence.
  8. If any covenant, clause, obligation or provision of this Agreement, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement (other than such covenant, clause, obligation or provision) and the application of such covenant, clause, obligation or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each remaining covenant, clause, obligation and provision of this agreement shall be separately valid and enforceable to the fullest extent as permitted by law.

1. INTRODUCTION

  1. THE CLIENT wishes to outsource the provision and/or supply of the DELIVERABLES to THUSA.
  2. THE PARTIES have concluded an Agreement (THE AGREEMENT) under which THUSA will provide the DELIVERABLES to THE CLIENT.

2. DURATION

THE AGREEMENT shall commence on the date specified, or alternatively on the date of acceptance of THE STATEMENT OF WORK, and shall remain in effect until termination or otherwise for as long as is needed to satisfy the STATEMENT OF WORK.

3. PROVISION OF THE DELIVERABLES

  1. THUSA shall provide the DELIVERABLES to THE CLIENT on the terms and conditions of THE AGREEMENT.
  2. For the avoidance of doubt, the provisions of these Standard Terms and Conditions, read with the applicable STATEMENT OF WORK, and that Statement of Work’s respective documents of reference, shall govern the provision of any stated DELIVERABLES by THUSA for the particular STATEMENT OF WORK.
  3. All DELIVERABLES remain the property of THUSA until paid for in full.

4. DELIVERY AND ACCEPTANCE

  1. Acceptance of any of the DELIVERABLES will be regarded as complete, when such DELIVERABLES or such part of the DELIVERABLES would have successfully satisfied any relevant acceptance criteria as set out in the STATEMENT OF WORK and in the absence of such acceptance criteria, on agreement between the PARTIES.
  2. DELIVERABLES delivered and not objected to in writing by THE CLIENT within 2 (two) Business Days of delivery shall be presumed to be correct. The said presumption shall shift the onus of demonstrating the manner in which it is incorrect or defective to THE CLIENT.
  3. Risk in any DELIVERABLES will transfer to THE CLIENT on delivery of these to THE CLIENT. THE CLIENT is therefore obliged to have the appropriate measures in place to protect and insure the delivered items against loss and/or damage.

5. STATEMENTS OF WORK

  1. In the event that THE CLIENT requires THUSA to provide DELIVERABLES, THE CLIENT shall agree with THUSA a STATEMENT OF WORK.
  2. THUSA shall not commence with the provision of DELIVERABLES without having first agreed a STATEMENT OF WORK with THE CLIENT.

6. VARIATIONS TO STATEMENTS OF WORK

  1. STATEMENTS OF WORK may not be varied, save only for the increasing of quantities of DELIVERABLES to be provided under the respective STATEMENT OF WORK.
  2. In the event that the requirements of THE CLIENT necessitate a variation subject to clause 6.1 in a STATEMENT OF WORK, THE CLIENT shall notify THUSA of the required change (Change Notice).

  3. Within 5 (five) days of delivery of a Change Notice by THE CLIENT:

    1. if the variation to the STATEMENT OF WORK described in the Change Notice cannot be implemented by THUSA, then THUSA shall give THE CLIENT notice of its inability to implement the variation and the STATEMENT OF WORK shall not be varied; or
    2. the STATEMENT OF WORK shall be deemed to be varied by the Change Notice and THUSA shall implement the revised STATEMENT OF WORK and applicable charges which THE CLIENT shall pay.

7. THUSA’S GENERAL OBLIGATIONS

  1. THUSA warrants, represents, and undertakes to THE CLIENT that it will provide the DELIVERABLES:

    1. to a high degree of skill, expertise, experience and competence;
    2. with the utmost skill, care, diligence, and professionalism; and
    3. in accordance with the reasonable instructions of THE CLIENT as given in writing from time to time and following acknowledgment and acceptance by THUSA.
  2. THUSA will perform its obligations under THE AGREEMENT in accordance with the time schedule(s) as and where set out in the relevant STATEMENT OF WORK, save that THUSA will not be liable under this clause if it is unable to meet such obligation within the timeframe stated as a direct result of any act or omission by THE CLIENT and THUSA has used its best endeavors to advise THE CLIENT of such act or omission. In the event of such delay, any time deadlines detailed in the relevant STATEMENT OF WORK shall automatically be extended by a period equal to the period of that delay or on such terms otherwise agreed upon and this shall not constitute a breach of THE AGREEMENT.

8. THE CLIENT’S GENERAL OBLIGATIONS

  1. THE CLIENT warrants, represents, and undertakes to THUSA that it will:

    1. provide access, services, equipment, information, and input as is required for THUSA to perform its obligations under THE AGREEMENT;
    2. ensure that the facilities, at which place THUSA would perform onsite works relating to THE AGREEMENT, meet all legislative health and safety requirements;
    3. advise THUSA immediately of any changes which may impact THE AGREEMENT in any way whatsoever; and
    4. pay the charges owing to THUSA promptly within the timeframes as described in THE AGREEMENT.

9. CHARGES

  1. The Charges payable by THE CLIENT to THUSA for the DELIVERABLES shall be described in the STATEMENT OF WORK for those DELIVERABLES.

  2. The Charges:

    1. shall be stated exclusive of value-added tax or other ad valorem type/similar tax which shall be added (at the applicable rate);
    2. shall be fixed and firm, and not subject to any variation (except escalation) or revision of any kind other than by agreement between THE PARTIES; and
    3. Unless otherwise stated shall, for recurring Services and Licensing based DELIVERABLES, be subject to escalation annually in March of each year at a rate of the greater of 7 (seven) percent or the average of the South African Consumer Price Index for the preceding 12 (twelve) months.

  3. In the event that the STATEMENT OF WORK fails to describe the Charges:

    1. the Charges for the relevant DELIVERABLES shall be the same as the Charges most recently charged by THUSA to THE CLIENT for the provision of DELIVERABLES similar to the relevant DELIVERABLES, mutatis mutandis; or
    2. if the provisions of clause 9.3(a) cannot be applied, the Charges shall be the lowest amount charged by THUSA to its other clients for DELIVERABLES most similar to the relevant DELIVERABLES, mutatis mutandis, and THUSA shall immediately upon demand provide THE CLIENT with any proof reasonably required by THE CLIENT that the provisions of this clause 9.3(b) have been complied with.

10. INVOICING AND PAYMENT

  1. All invoices are due for payment on presentation or alternatively by the due date stated thereupon.
  2. THE CLIENT shall not be entitled to claim set-off or deduction in any respect of any payments due to THUSA in terms of THE AGREEMENT.
  3. Payment to THUSA shall be made in South African Rand by electronic funds transfer into the bank account nominated by THUSA in writing for that purpose.
  4. THE CLIENT undertakes to validate that the bank account details received are indeed those of THUSA.
  5. In the event that THE CLIENT is induced by fraud to believe that THUSA has nominated an account (the Fraudulent Account) which THUSA has not in fact nominated, payment by THE CLIENT into the Fraudulent Account shall not be deemed to discharge THE CLIENT’S obligation to make payment to THUSA.
  6. Where payment of any invoice or part thereof is not made in accordance with the payment terms described herein, THUSA shall be entitled to charge cumulative interest, calculated daily on the outstanding and overdue amount at the prevailing prime rate of its bankers plus three percent from the date the amount has become due until the date it has been settled in full. THUSA further reserves the right to suspend services and/or collect any DELIVERABLES already supplied the moment payment for any invoice in relation to THE AGREEMENT is in arrears.

11. PAYMENT DISPUTES

  1. In the event that THE CLIENT bona fide disputes any invoice or part thereof, then, upon THE CLIENT notifying THUSA in writing of the dispute and notwithstanding the provisions of clause 10, the disputed amount shall not become due (or shall be deemed not have become due) and the respective DELIVERABLES shall not be provided until the dispute is resolved.
  2. THE PARTIES undertake to engage with each other in good faith to resolve any disputed amount as contemplated in clause 11.1. In the event that THE PARTIES are unable to resolve the dispute amongst themselves, the dispute shall be determined by a court of competent jurisdiction or, at the election of the Service Provider, by arbitration as contemplated herein.
  3. For the avoidance of doubt, and in light of the disputed amount not having become due, the failure by THE CLIENT to pay a disputed amount shall not constitute a breach of THE AGREEMENT. Similarly, THUSA suspending and/or not providing and/or recovering the DELIVERABLES already supplied relating to the unpaid disputed amount shall not constitute a breach of THE AGREEMENT.

12. CONFLICT OF TERMS

  1. In the event of a conflict between these Standard Terms and Conditions and of a STATEMENT OF WORK, then the provisions of these Standard Terms and Conditions shall prevail to resolve the extent of the conflict unless the STATEMENT OF WORK expressly provides that any particular provision of these Standard Terms and Conditions is not to apply, in which case the provision of the STATEMENT OF WORK shall apply.
  2. In the event of a conflict between these Standard Terms and Conditions and a duly signed MASTER SERVICES AGREEMENT, the provisions of the MASTER SERVICES AGREEMENT will take precedence and shall apply in terms of the conflicting clause(s).

13. NON-SOLICITATION AND RESTRAINT

  1. In this clause:

    1. “End Date” means the date of termination of THE AGREEMENT;
    2. “Interested” means interested or concerned, directly or indirectly, whether as proprietor, partner, shareholder, consultant, employee, agent, financier, shareholder or in any other business capacity whatsoever;
    3. “Restrained Parties” means THE CLIENT, its directors (if applicable), shareholders (if applicable), members (if applicable) and senior management;
    4. “Territory” means the Republic of South Africa;

  2. THE CLIENT undertakes to and for the benefit of THUSA that each of the Restrained Parties will not:

    1. alone;
    2. through any entity in which it has any Interest or control;
    3. together with another person; and/or
    4. as principal or agent, for the duration of THE AGREEMENT and for a further period of 2 (two) years after the End Date (Restraint Period):
    5. employ or enter into a contract for the services or attempt to solicit the employment or services of any individual who is an employee of THUSA.
  3. THE CLIENT will procure that the Restrained Parties other than THE CLIENT itself agree in writing to be irrevocably bound by the provisions of this clause, and shall produce proof of same to THUSA immediately upon written demand by THUSA.

  4. THE CLIENT acknowledges, and will procure that the other Restrained Parties acknowledge, that it/they agree(s) to the restraints set out in this clause in consideration of:

    1. the existence of relationships between the Restrained Parties and THUSA’s personnel pursuant to THE AGREEMENT;
    2. the Restrained Parties’ exposure and access to THUSA’s personnel and Intellectual Property.

  5. THE CLIENT acknowledges and agrees, and shall procure that each of the Restrained Parties acknowledges and agrees, that:

    1. it is entering into the restraints set out in this clause freely and voluntarily;
    2. each of the restraints imposed on it in terms of this clause are fair and reasonable as to the subject matter, area and duration and are reasonable and necessary for the protection of the proprietary interests of the Service Provider; and
    3. should it dispute that the provisions are reasonable or contend that they are unreasonable then the onus of proving such unreasonableness will rest on it.

  6. Each of the restraint undertakings set out in this clause must be regarded as distinct, severable and separately and independently enforceable in all respects, including in relation to:

    1. each month of the Restraint Period;
    2. each province, state, area, district, town and location forming part of the Territory; and
    3. the identity and classification of the Service Provider’s personnel,

    regardless of the manner in which such undertakings have been grouped together or aligned grammatically. If any restriction in this clause is found to be unenforceable but would be valid if a part of it was to be deleted, or the Restraint Period or scope of the Territory was to be reduced, or the ambit of the definition of Personnel was to be reduced, the restriction will continue to apply but read with the changes required to make it valid and enforceable.

  7. THE CLIENT agrees, and shall procure that the other Restrained Parties agree, that it will abide by both the letter and spirit of this clause, and shall not do anything intended or designed to circumvent the provisions of this clause and/or to establish direct business relationships between it and the Personnel during the Restraint Period.

14. INFORMATION PROCESSING

  1. THE CLIENT warrants that it is familiar with Protection of Personal Information Act 4 of 2013 (POPI) and the meaning of terms defined in POPI. Terms contained in this clause (capitalized or otherwise) shall, unless otherwise defined, bear the meaning assigned to them in POPI.
  2. THE CLIENT expressly consents to THUSA collecting and processing its personal information and/or special personal information for the purposes of performance under THE AGREEMENT, the implementation of THE AGREEMENT, and purposes reasonably related and ancillary thereto (the Described Uses).

  3. THE CLIENT expressly consents to THUSA:

    1. processing and further processing its personal information and/or special personal information, including collecting, recording, organising, disseminating, and making the personal information and/or special personal information available, for the Described Uses;
    2. collecting its personal information and/or special personal information directly from THE CLIENT and/or from any other source;
    3. retaining records of its personal information and/or special personal information for so long as THUSA reasonably deems it necessary;
    4. giving its personal information and/or special personal to any person who provides services to THUSA or acts as a third party vendor or to whom THUSA has transferred or proposes to transfer any of its rights and duties as contained in THE AGREEMENT; and
    5. sharing personal information with THUSA’s service providers, as necessary.
  4. THE CLIENT accepts the contents of this clause as adequate notification of the collection and processing of the personal information and the special personal information by THUSA and, insofar as it is necessary, consents to THUSA failing to provide full notification in terms of section 18 of POPI, which consent is permitted in terms of section 18(4) of POPI.

  5. THE CLIENT acknowledges that:

    1. THUSA will at all times remain responsible for determining the purpose of and means of processing THE CLIENT’s personal information;
    2. THUSA is and/or may be required by various laws to collect some personal information; and
    3. it gives THUSA its personal information voluntarily.

  6. THE CLIENT undertakes that:

    1. it will comply with all of the provisions of POPI in the processing of any personal information of third parties;

    2. without limiting the generality of the aforegoing, it will:

      1. secure the integrity and confidentiality of any third-party personal information, obtained by it, by taking appropriate technical and organisational measures to prevent:

        1. loss, damage to or unauthorised destruction of personal information; and
        2. unlawful access to or processing of personal information;
      2. have due regard to generally accepted information security practices and procedures;
      3. process and/or make use of personal information strictly within the ambit of consent provided by the person to who the personal information relates; and
      4. process personal information in a reasonable manner that does not infringe the privacy of any individual; and
    3. any third-party personal information provided to THUSA, for the purposes of THE AGREEMENT or otherwise, is or will be lawfully obtained, lawfully processed, and lawfully provided to THUSA.

15. FORCE MAJEURE

  1. Neither Party shall be held liable or responsible to the other Party or be deemed to have defaulted under or breached THE AGREEMENT for failure or delay in fulfilling or performing any term of THE AGREEMENT when such failure or delay is caused by or results from causes beyond the reasonable control of the non-performing Party, including fires, floods, earthquakes, embargoes, shortages, epidemics, quarantines, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labour disturbances, acts of God or acts, omissions or delays in acting by any governmental authority.
  2. The non-performing Party shall notify the other Party of such force majeure within 10 (ten) days after such occurrence by giving written notice to the other Party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary and the non-performing Party shall use commercially reasonable efforts to remedy its inability to perform; provided, however, that in the event the suspension of performance continues for 60 (sixty) days after the date of the occurrence, and such failure to perform would constitute a material breach of THE AGREEMENT in the absence of such force majeure, either Party may terminate the affected STATEMENT OF WORK without penalty pursuant by written notice to the other Party.

16. INDEMNITY AND LIMITATION OF LIABILITY

THE CLIENT indemnifies THUSA, its officers, directors, employees, and agents, and holds them harmless, against any Losses of THE CLIENT and/or any third parties and/or any other person, of whatsoever nature and howsoever arising in connection with THE AGREEMENT and/or the provision of any DELIVERABLES. The provision of this clause shall not apply in instances where THUSA is found to have acted with gross negligence or unlawfully in the performance of their duties for the respective DELIVERABLES.

17. INSURANCE

Each Party is obliged to have their own insurances and shall not rely on the other Party’s insurances for any purpose(s) whatsoever.

18. RELATIONSHIP BETWEEN PARTIES AND PERSONNEL

  1. The Parties are independent contracting parties. Nothing in THE AGREEMENT shall be construed as giving rise to a relationship of principal and agent, joint venture, pooling arrangement, partnership, employer and employee, or any other relationship of any kind.
  2. Neither Party shall have the right to bind the other Party to any Third Party.
  3. THUSA Personnel shall be always regarded as employees, agents or subcontractors of THUSA and no relationship of employer and employee shall arise between THE CLIENT and any THUSA Personnel under any circumstances regardless of the degree of supervision that may be exercised over the THUSA Personnel by THE CLIENT.

19. INTELLECTUAL PROPERTY

  1. Each Party shall retain its rights in respect of its Intellectual Property, and neither Party shall, absent agreement to the contrary, obtain any rights in and to the other Party’s Intellectual Property.
  2. The provisions of this clause shall apply mutatis mutandis in respect of any of THE CLIENT’s Intellectual Property to which THUSA is directly or indirectly exposed.
  3. In the event that either Party reasonably requires access to the other’s Intellectual Property for the purposes of THE AGREEMENT, the other shall grant to that Party a non-transferable, non-exclusive, royalty-free licence to utilise that Intellectual Property only to the extent necessary to perform under THE AGREEMENT.
  4. Immediately upon termination of THE AGREEMENT, each Party shall return to the other Party all materials containing the other Party’s Intellectual Property.

20. CONFIDENTIALITY

  1. Each Party must treat as strictly confidential all information received or obtained as a result of entering into or performing THE AGREEMENT, including any information which relates to:

    1. the terms of THE AGREEMENT;
    2. the negotiations relating to THE AGREEMENT;
    3. the subject matter of THE AGREEMENT; or
    4. any of the other Parties.
  2. If either of the Parties is uncertain about whether any information is to be treated as Confidential Information, it will be obliged to treat such information as Confidential.

  3. A Party may disclose information which would otherwise be confidential if and to the extent:

    1. agreed between the Parties;
    2. required by law;
    3. required by any securities exchange or regulatory or governmental body to which that Party is subject, wherever situated, whether or not the requirement for information has the force of law; or
    4. the information has come into the public domain through no fault of that Party.
  4. The Parties’ obligations of confidentiality under THE AGREEMENT shall survive the termination of THE AGREEMENT for a period of 5 (five) years after the End Date.

21. BREACH AND TERMINATION

  1. If a Party (Defaulting Party) breaches a provision of THE AGREEMENT and fails to remedy that breach within a period of:

    1. 10 (ten) days if the Defaulting Party is THUSA; or
    2. 10 (ten) days if the Defaulting Party is THE CLIENT,

    of being requested to do so in writing by the other Party, the other Party may, without prejudice to any other rights which it may have in law:

    1. cancel the STATEMENT OF WORK to which the breach relates.
  2. If the incident of breach relates to the non-payment of any invoice THUSA may elect to summarily suspend the provision of services and/or recover any DELIVERABLES provided in respect of the STATEMENT OF WORK.
  3. Any termination of THE AGREEMENT will be without prejudice to any claim a Party may have in respect of any prior breach of the terms of THE AGREEMENT by the other Party.
  4. On termination of THE AGREEMENT the ownership of all DELIVERABLES will vest in THUSA until fully paid for. To that extent THUSA shall be entitled to remove same from the possession, and/or from under the control, and/or from the use of THE CLIENT.
  5. In the event that any of the deliverables and property referred to above are in electronic form and contained on non-detachable storage devices, THE CLIENT, at their costs, will provide THUSA with unencrypted copies of same on appropriate media and will irretrievably destroy and delete the copies so held.
  6. If THE AGREEMENT is terminated by THE CLIENT, THE CLIENT will pay to THUSA all outstanding charges (duly apportioned if applicable) relating to the work undertaken by THUSA up until the date of such termination. THE CLIENT will also pay the costs of any goods and materials ordered by THUSA in relation to work for which THUSA has paid or is legally obliged to pay for on behalf of THE CLIENT. In this case, on receipt of such goods or materials, THUSA will promptly deliver such goods and materials to THE CLIENT or otherwise as THE CLIENT may direct.
  7. Should THE AGREEMENT be cancelled or terminated by THE CLIENT after any work has been completed, cancellation charges may be applicable and will be determined by the amount of work and resources used up to the date of cancellation.
  8. THE CLIENT is liable for any obligation accrued at the date of termination or suspension of services, including the payment of any costs or charges that may arise in connection with such termination or suspension, and the payment of all outstanding charges, damages, set up costs and monthly charges for use of services prior to the said termination or suspension These charges will be calculated and given to THE CLIENT within 14 (fourteen) days of cancellation for immediate payment.

22. EFFECT OF TERMINATION

  1. Subject to clause 22.2, THUSA shall cease providing DELIVERABLES immediately upon termination of THE AGREEMENT.
  2. If so required by THE CLIENT and provided THE CLIENT remains up to date with all payments due to THUSA, THUSA shall continue to provide DELIVERABLES for a period, not exceeding 90 (ninety) days, specified by THE CLIENT and be paid for such DELIVERABLES in accordance with the respective STATEMENT OF WORK and shall furthermore during that period, if so required by THE CLIENT, facilitate the handover of the provision of the DELIVERABLES to an alternate Service Provider at a pre-agreed handover cost to THE CLIENT.

23. NOTICES AND DOMICILIA

  1. For the purposes of THE AGREEMENT, THE CLIENT is required to appoint a representative to represent their interest that is duly authorised. This will be presumed to be the person who concluded THE AGREEMENT with THUSA.
  2. Any written consent required to be given by either party in terms of THE AGREEMENT, must be given by an Executive Director in the case of THUSA, and by a Manager, Partner, Member or Director, where applicable and duly authorised on the part of THE CLIENT.
  3. Any notice, consent, approval or other communication in connection with this Agreement must be in writing and in English.
  4. Each of the parties chooses its registered domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from THE AGREEMENT at the addresses set out in THE AGREEMENT.
  5. Each of the parties shall be entitled from time to time, by written notice sent to the other to vary its domicilium to any other address within South Africa which is not a post office box.

  6. Unless the contrary is proved, any notice will:

    1. if delivered by hand be deemed to have been received by the addressee on the date of delivery;
    2. if sent by email, be deemed to have been received once the email enters an information system outside the control of the Party sending it.
  7. Notwithstanding anything to the contrary in this clause, a written notice or communication actually received by a Party will be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address.

24. MUTUAL SUPPORT

  1. The Parties shall use their best endeavours to give effect to THE AGREEMENT.
  2. If a Party requires the consent of another Party in order to obtain any licence, consent or approval, the other Party will give that assistance provided that it is reimbursed with the reasonable costs of providing that assistance.

25. COSTS

Each Party is responsible for its own costs in connection with THE AGREEMENT including the negotiation, preparation, execution, and implementation of THE AGREEMENT.

26. DISPUTE RESOLUTION

  1. Any dispute arising from or in connection with THE AGREEMENT will, at the election of THUSA, be finally resolved by arbitration in accordance with the Rules of the Association of Arbitrators (Southern Africa) (Rules) or its successor current at the date of the dispute arising.
  2. In the event that THE CLIENT wishes to institute proceedings in respect of a dispute, it shall first give THUSA 10 (ten) days’ notice of the dispute in order for THUSA to make its election as to whether the dispute must be resolved by arbitration. Should THUSA fail to make an election within those 10 (ten) days, THUSA shall be deemed to have elected that the dispute must be resolved by arbitration.

  3. The arbitrator will be a person mutually agreed on or, in the absence of agreement, appointed by the Association of Arbitrators (Southern Africa) or its successor, subject to the provisos that:

    1. articles 3 and 4 of the Rules relating the issuing of a notice of arbitration and response will not be prerequisites to the making of the appointment; and
    2. the arbitrator so appointed must be a practising senior counsel, a retired judge or an attorney with at least 15 (fifteen) years’ experience in practice.
  4. Subject to the provisions in clauses 26.1 and 26.3, the arbitration proceedings will be conducted in accordance with the provisions of the Arbitration Act, 1965, or its successor.
  5. A written notice by a Party to the other Parties that a dispute be submitted to arbitration will be deemed to be a legal process for the purposes of interrupting extinctive prescription.
  6. Nothing in this clause will prevent a Party from obtaining urgent relief in any court of competent jurisdiction and to this end the Parties consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, KwaZulu-Natal Local Division, Durban.

27. GENERAL

  1. THE AGREEMENT is governed by and must be interpreted and construed in accordance with the laws of the Republic of South Africa.
  2. THE AGREEMENT is the entire agreement between the Parties in regard to its subject matter.
  3. Neither party may cede or assign its rights under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld.
  4. Neither party shall be bound by any express or implied term, undertaking, representation, warranty, promise or the like not explicitly included or recorded in THE AGREEMENT or a STATEMENT OF WORK, whether it induced the contract or whether it was negligent or not, or both.
  5. Subject to clause 6, a variation, amendment or consensual cancellation of THE AGREEMENT or any of its terms will not be binding or have any force and effect unless it is recorded in writing and acknowledged in writing by the Parties.
  6. Any indulgence by a Party to another Party, or failure strictly to enforce the terms of THE AGREEMENT, must not be construed as a waiver or be capable of founding an estoppel.
  7. If any part of THE AGREEMENT is for any reason whatsoever, including a decision by any court, any legislation or any other requirement having the force of law, declared or becomes unenforceable, invalid or illegal, the Parties must negotiate and effect an amendment of THE AGREEMENT such that it is lawful and enforceable, retaining its essential terms or, failing such agreement between the Parties, as far as possible THE AGREEMENT must be interpreted so as to exclude the offending provision but retain the essential terms of THE AGREEMENT.
  8. Each Party confirms that it is acting as principal in its own right and not as agent for any other person or for any other Party.
  9. In the event that THUSA institutes legal proceedings against THE CLIENT for the recovery of damages, the payment of any amounts outstanding or for any other reason associated with THE AGREEMENT, THE CLIENT shall pay THUSA’s legal costs on an attorney and client scale, to include all collection charges.
  10. THE CLIENT will not publish, use, or allow the publication or the use of any advertising, sales promotions, press releases or publicity material regarding THUSA without securing the prior written approval of THUSA.

Version 202501