Master Services Agreement
Trusted By
1. DEFINITIONS AND INTERPRETATION
The following terms will have the meanings assigned to them hereunder and cognate expressions will have corresponding meanings, namely:
1.1 “Ad Hoc Rate” means the rate charged by Netsurit for Ad Hoc Work performed under the Agreement as set out in the applicable Proposal/s;
1.2 “Ad Hoc Work” means any services or work carried out which does not fall within Netsurit’s responsibilities as specifically defined or set out in the Agreement;
1.3 “Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, Controls or is Controlled by, or is under the Common Control with the party in question. For the purpose hereof, “Control” means the beneficial ownership of the majority in number of the issued share capital of any entity (or the whole or majority of the entity’s assets) and/or the right or ability to directly or otherwise control the entity or the votes attaching to the majority of the entity’s issued share capital, and “Controlled” or “Under Common Control” shall have a similar meaning;
1.4 “Agreement” means this this Master Services Agreement as read with the Proposal/s signed and accepted by the Client and the applicable Terms of Service;
1.5 “Applicable Laws” means all legislation (including provincial ordinances, and national and provincial regulations), municipal by-laws, the common law, and all directives, decisions, declarations, determinations, guidelines, rules, rulings and other instruments of competent government authorities applicable to the Services, the rendering thereof and/or to the performance or subject matter of the Agreement (as applicable);
1.6 “Business Day” means any day of the week, excluding a Saturday, a Sunday or an official public holiday in South Africa or such other jurisdiction in which Netsurit and/or the Client may be registered (as the case may be);
1.7 “Business Hours” are the hours of operation of Netsurit being 8am to 5pm weekdays;
1.8 “Client” means the client of Netsurit that has elected to subscribe for Services either by signing a Proposal or otherwise accepting the Services as contemplated in clause 2.2 as read with clause 13.3 to the extent applicable;
1.9 “Confidential Information” means any information of a confidential nature relating to, or disclosed (whether in writing, orally or by any other means and directly or indirectly) in connection with, any part, detail or aspect of the negotiation and implementation of the Agreement, the arrangements contemplated under the Agreement and the business of either Party. For avoidance of doubt, Confidential Information does not include any information which is, or becomes, generally available to the public other than as a result of a disclosure by either Party or any of its employees or representatives of such Confidential Information received from the other in breach of the Agreement;
1.10 “Content” means data, content or other materials stored, backed-up, hosted, displayed, transmitted, routed, virtualised, processed or communicated using a Service;
1.11 “CPIX” means the consumer price index excluding bond interest as published by the Central Statistical Service of South Africa or such replacement body as may be constituted from time to time;
1.12 “Data” means any data, including, but not limited to, personal information as defined in the POPIA, and any proprietary or confidential information, supplied by the Client to and stored, collected, collated, accessed, retained or processed by Netsurit for the purposes of providing the Services to the Client, irrespective of the media or form;
1.13 “Effective Date” means the first day upon which the provision of the Services (as per the Agreement) shall commence or has already commenced, as the case may be, as set out in the Proposal/s;
1.14 “Fees” means the fees and charges levied by Netsurit for the Services to be rendered by Netsurit in terms of the Agreement, which fees and charges are set out in the Proposal/s;
1.15 “Intellectual Property” means rights in and in relation to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), rights in get-up, copyright (including rights to derivative works), database, domain name, circuit, design, and/or utility model, and including in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world, registered or unregistered;
1.16 “Master Service Agreement” means the terms and conditions of the master service agreement as contained in this document;
1.17 “Netsurit” means Netsurit Proprietary Limited or such Affiliate, as the context may indicate;
1.18 [“Netsurit Minimum Standard/s” means those standards applied and required by Netsurit as communicated by Netsurit to the Client from time to time on reasonable notice;
1.19 “Parties” means Netsurit and the Client, and “Party” means either one of them as the context may indicate;
1.20 “POPIA” means the Protection of Personal Information Act, 2013 (Act 4 of 2013) and the regulations promulgated thereunder, and shall include such other equivalent data protection laws, whether promulgated in South Africa or in a foreign jurisdiction, as may be applicable to the Parties;
1.21 “Project Based Work” means any work which is not contemplated in the Scope of Services and which is project-based in nature;
1.22 “Proposal/s” means the proposal/s provided by Netsurit to the Client in respect of the Services, signed and accepted by the Client;
1.23 “Scope of Services” is the scope of Services to be provided by Netsurit to the Client, as specified in the Proposal/s;
1.24 “Service/s” means the services to be rendered by Netsurit to the Client in terms of the Agreement as set out in the Agreement, including the Scope of Services;
1.25 “Service Levels” means the service levels referred to in clause 6;
1.26 “South Africa” means the Republic of South Africa.
1.27 “Terms of Service” means, individually and collectively, the terms and conditions applicable to the use of each Service.
1.28 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words will prevail.
1.29 Expressions defined in the Agreement will bear the same meanings in all appendices and annexures to the Agreement, which do not themselves contain their own definitions.
1.30 The rule of construction, that the contract will be interpreted against the Party responsible for the drafting or preparation of the Agreement, will not apply.
1.31 The clause headings contained in the Agreement are for reference purposes only and will not be used in the interpretation of the Agreement.
1.32 If any provision of the Agreement, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.33 Unless otherwise stipulated in the Proposal, the Agreement will be governed by, and interpreted in accordance with, the laws of South Africa.
1.34 In the event of a conflict between provisions that appear in different documents, the order of precedence will be the applicable Proposal, Terms of Service and this Master Services Agreement.
2. SCOPE OF AGREEMENT
2.1 The Agreement shall govern the relationship between Netsurit and the Client for as long as Netsurit is providing Services to the Client under and pursuant to any Proposal/s, read with any applicable Terms of Service.
2.2 The Client’s access to and use of the Services is conditional upon the Client’s acceptance of and compliance with the Agreement. By [clicking on “I agree” when prompted; and/or] signing the Proposal/s; and/or ordering or purchasing and/or accessing and using the Services, the Client acknowledges and agrees that it has read, understands and accepts the terms of the Agreement as binding upon the Client.
2.3 Should any order placed by the Client with Netsurit contain terms and conditions, the Agreement shall govern such order and the Client’s terms and conditions shall be deemed to be non-applicable.
3. DURATION
3.1 The terms and conditions of this Agreement will be binding on the Parties with effect from the Effective Date and will thereafter endure for the initial period set out in the Proposal/s (the “Initial Period“).
3.2 Unless otherwise contemplated by the Proposal, on expiry of the Initial Period, the Agreement shall be deemed to be extended by the Parties on a month to month basis (such period hereinafter referred to as a “Renewal Period“) on the same terms and conditions set out in the Agreement, save as otherwise agreed between the Parties and save for the applicable Fees which shall escalate annually at the prevailing CPIX rate during the Renewal Period.
4. SCOPE OF SERVICES
4.1 Netsurit will provide the Client with the Services in accordance with, and subject to, the terms and conditions of the Agreement.
4.2 The Service Levels associated with the Agreement provides guidelines on how Services are to be delivered and details targets and metrics for specific Services.
4.3 If the provision of the Services commenced on a date prior to the beginning of a calendar month, the Client will be billed a “pro-rata” rate (from the date upon which the provision of the Services commenced until the day prior to commencement of the calendar month following the Effective Date).
4.4 The Client shall be entitled to request a variation to the Scope of Services provided that: (i) the cost and time consequences of the variation shall be agreed by the Parties and recorded in writing as an addendum to the Agreement; (ii) a notice period of 1 (one) calendar month will apply to any such variation to the Scope of Services, which period can be waived by mutual consent between the Parties; and (iii) if the Parties are unable to agree on the cost and time consequences of the variation within 5 (five) Business Days of the date on which the Client requested such variation, Netsurit shall not proceed with the variation.
4.5 Netsurit may make changes to Services through updates and upgrades that offer new features, functionality and efficiencies (“Enhancements“) without detracting from the agreed purpose of the Services to be rendered to the Client. Some, but not all, Enhancements will be provided at no additional charge. Netsurit reserves the right to add new Services and Enhancements and to replace or discontinue Services or Enhancements at any time. Netsurit will use commercially reasonable efforts to provide the Client with notice of any material changes. The Client agrees that Netsurit may, and the Client hereby authorises Netsurit, at any time and from time to time, to interact remotely with any deployed Service in order to test, troubleshoot or update such Service.
5. RESTRICTIONS IN RESPECT OF SERVICE USE AND CONTENT
5.1 The Client may not, nor may it permit, facilitate or authorise any third party to: (i) use any Service other than as permitted under the Agreement or the applicable Terms of Service; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Service or its specifications; (iii) access or use any Service in any manner that could damage, disable, overburden or otherwise interfere with or disrupt such Service or any networks or security systems related thereto; (iv) reverse engineer, decompile, disassemble or otherwise attempt to extract the source code from any Service, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Service; (vi) alter any disabling mechanism which may reside in a Service; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Services, or directly or indirectly permit any unauthorised third party to use or copy the Service; (viii) conduct, disclose or publicise the results of any form of benchmarking of the Services; (ix) extract portions of any Netsurit software or device files for use in other applications; (x) register or remotely manage any Service through any management portal other than the Client’s portal; or (xi) access any Service to (a) build a competitive service akin to the such Service; or (b) copy any, or build a Service using, similar ideas, features, functions, or graphics of the Service.
5.2 Use of the Services and Content must at all times be in compliance with all Applicable Laws. The Services and Content may not (i) be used to send any unsolicited commercial email or invitation; (ii) be used to request, collect, store, transmit or disclose any unencrypted personally identifiable data (such as payment card numbers or identity numbers) in violation of POPIA; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically or otherwise objectionable, hateful, tortious, libellous, defamatory, slanderous or otherwise in violation of Applicable Laws; (iv) infringe or misappropriate any Intellectual Property rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Laws; (vi) contain or be used to transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Services; (vii) violate the terms of any licence agreement or other agreement or Terms of Service to which the Client is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence (“Minors“), or to harm Minors in any way, or that would subject Netsurit to any Applicable Law governing children’s privacy or otherwise related to protecting Minors.
5.3 In the event that Netsurit reasonably believes any Service use or Content: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of the Services or any computer, network and/or system used to provide or support the provision of the Services; or (iii) may otherwise subject Netsurit to liability, Netsurit reserves the right to refuse or disable access to the Service or Content. Netsurit will use reasonable efforts to contact the representative appointed by the Client in accordance with clause 9.1 prior to taking such action. Notwithstanding the foregoing, Netsurit may restrict access to any Service or Content without prior notice as necessary to comply with Applicable Law or protect against threats to Netsurit’s network or any Service.
5.4 Unauthorised use of the Services will not be supported by Netsurit, and any warranties given by Netsurit will be void, if the Services are modified in any way or used in a manner for which they are not intended.
5.5 The Client agrees to immediately notify Netsurit of any unauthorised use, copying or disclosure of the Service or Content, of which the Client becomes aware and agrees to immediately take such actions as are reasonable and necessary to end and prevent any such use, copying, or disclosure. The Client acknowledges and agrees that any breach of this clause will cause immediate and irreparable injury to Netsurit, and in such event, Netsurit may seek and obtain injunctive relief, without bond or other security, in addition to other remedies available to it under the Agreement or in law.
6. SERVICE LEVELS
6.1 The Service Level commitments applicable to the Services ordered by the Client and provided by Netsurit are set forth in the Terms of Service for each Service, read with any relevant Proposal/s. Service Levels do not apply during periods of force majeure or scheduled maintenance (“Excused Outages”). If Netsurit does not meet the Service Level set forth in any Service Terms for reasons other than Excused Outages, a credit will be issued to the Client upon the Client’s written request, subject to clause 6.2 below. Netsurit’s maintenance log and trouble ticketing systems will be used for calculating any Service Level events in accordance with the Service Level set forth in the applicable Terms of Service, read with any relevant Proposal/s.
6.2 To request a credit pursuant to clause 6.1 above, the Client must, within 20 (twenty) Business Days after the incident that the Client alleges rendered the Service Level in question as not being met, submit to the Client’s Representative (defined below) a written request containing sufficient detail to identify the said incident and the affected Service. In no event will the total credits issued to the Client in any given month exceed the monthly recurring charges for the affected Service during that month. The Client’s sole remedies for any outages, interruptions, failures to deliver or defects in Services are contained in the Terms of Service (if any) applicable to the affected Service(s).
7. PROJECT BASED SERVICES AND ADDITIONAL PURCHASES
7.1 Notwithstanding any other provision of the Agreement, Netsurit will not be obliged to perform any Project Based Work, and no such work forms part of the Services to be provided by Netsurit under the Agreement.
7.2 Where Netsurit is willing to undertake Project Based Work, it will provide the Client with a written Proposal, calculated on a time and materials basis, and which Proposal must be accepted by both Parties before the required work can commence.
7.2.1 When ordering any hardware, software, services or labour not included in a current Proposal, a formal purchase order must be submitted to Netsurit who will produce a corresponding signed quote. Any quote signed and accepted by a legally authorised representative of the Client shall be deemed a Proposal for purposes of the Agreement.
7.2.2 If financing for is secured from a finance house, Netsurit requires the necessary documented guarantees from the finance house, and not from the Client, before any additional purchases will be ordered.
8. FEES AND PAYMENT TERMS
8.1 The Fees payable for performing the Services shall be set out in the relevant Proposal/s and shall be paid by the Client to Netsurit free from deductions or set-off into the bank account nominated by Netsurit in writing for this purpose.
8.2 For the duration of the Agreement, the Fees will escalate annually at a rate equal to the prevailing CPIX as at each annual anniversary of the Effective Date.
8.3 During the Renewal Period, the Netsurit Ad Hoc Rate may be increased from time to time provided that Netsurit will notify the Client (in writing) not less than one (1) calendar month prior to any increase in the Ad Hoc Rate.
8.4 Payment Terms
8.4.1 Unless otherwise agreed by the Parties in a Proposal, Netsurit will invoice the Client monthly in advance for the Services, and will require payment by no later than the first (1st) day of the month in which the Services will be rendered, via a debit order initiated by Netsurit in accordance with the form issued by Netsurit to the Client.
8.4.2 Where Services provided by Netsurit as part of the applicable Proposal are not payable monthly in advance, Netsurit will invoice the Client not later than the 5th (fifth) day of the month following the month in which the Services were rendered and/or goods were supplied and the Client shall make payment in respect of such invoice to Netsurit free of exchange, deduction or set-off as follows:
8.4.2.1 where Netsurit is satisfied that the Client has sufficient credit insurance as provided by Credit Guarantee (or such other chosen trade credit insurance partner approved by Netsurit acting reasonably), withing 30 (thirty) days of the invoice date; and
8.4.2.2 where sufficient credit insurance has not been granted as provided by Credit Guarantee (or such other chosen trade credit insurance partner approved by Netsurit acting reasonably) (i) on the date of order for hardware and software purchases; and (ii) withing 7 (seven) days of the invoice date for services rendered.
8.4.3 All goods supplied to the Client remain the property of Netsurit until fully paid for in accordance with clause 0. The Client hereby grants Netsurit the right to remove any goods not paid for in full in accordance therewith. [Risk of loss of such goods shall pass to the Client on dispatch of the goods to the Client.]
8.4.4 [Desktop and laptop computers purchased from Netsurit will be installed at the Client to a “network ready” state free of charge. “Network Ready” will be defined as the first two (2) hours of labour and the Client will be billed as Ad-Hoc Work at the Ad-Hoc Rates set out in clause 8.7.2 below for any additional work over and above the initial two (2) hours. However, if more than 3 computers are purchased at a time the work will be scoped and conducted as Project Based Work.]
8.4.5 A return credit will only be considered if purchased items are returned to Netsurit in full working order and complete with original packaging within 3 (three) Business Days of delivery by Netsurit.
8.4.6 The Client agrees that it will not withhold any payments owing to Netsurit (or reverse any debit order drawn by Netsurit) due to perceived non-performance by Netsurit or one of its employees.
8.4.7 If the Client disputes any Fee or other charge in terms of the Agreement, the Client shall, not later than 15 (fifteen) days after receipt of the relevant invoice, serve a notice containing details of such dispute, failing which the Fee or charge shall be deemed accepted by the Client.
8.4.8 Within 10 (ten) Business Days of receipt of a notice under clause 8.4.7, Netsurit shall furnish the Client with such additional documents and material reasonably be required to verify the disputed amount(s). Should the amount remain disputed, such matter shall be referred for resolution in accordance with clause 21.2 of the Agreement.
8.5 Any amount falling due for payment by the Client to Netsurit in terms of, or pursuant to, the Agreement, which is not paid on the due date for such payment, will bear interest at a rate equal to the prime overdraft rate charged by Standard Bank from time to time, plus 2% (two per cent), calculated monthly in arrears from due date to the date of payment in full.
8.6 In addition, [any balance outstanding for more than 30 (thirty) days may result in suspension of all support services. Fees will continue to accrue during any such suspension. Netsurit may terminate the provision of any or all of the Services at its discretion, effective immediately, for non-payment that is not substantially cured within 60 (sixty) days after the Client’s receipt of written notice thereof].
8.7 Ad-hoc Charges
8.7.1 Any Ad-Hoc Work will be charged extra at the Ad-Hoc Rate.
8.7.2 Ad-Hoc Rates are charged during Netsurit’s Business Hours for the resources set out in the Proposal at rates which shall be adjusted as per clause 8.3 of the Agreement.
8.7.3 Any Ad-Hoc Work performed outside of Netsurit’s Business Hours will be charged at double the Ad-Hoc Rates outlined in clause 8.7.2 above.
8.7.4 All Ad-hoc Work performed will be billed in 30 (thirty) minute intervals for remote support and 60 (sixty) minute intervals for on-site callouts.
8.7.5 The Client may request work to be done by a certain level of resource, but Netsurit, as the IT specialist, may assign another level of resource dependant on the work required, and the Client hereby agrees to pay the Ad-Hoc Rate of the resource utilised after consultation with, and agreement by, the Client.
8.7.5.1
8.8 Taxes
8.8.1 The Client may be subject to import duties and taxes, which are levied when the Service arrives at the destination that the Client specified or the Service is otherwise received. Any charges for customs clearance are the Client’s responsibility, as Netsurit has no control over such charges and cannot foresee the amount charged (if any). As customs policies vary from country to country, the Client should contact the customs office in the country where the Client has Netsurit ship Services in order to be fully informed. The Client shall be considered the importer of record and must therefore comply with all applicable laws and regulations of such jurisdiction.
8.8.2 The Client will pay and be solely liable for all taxes including sales, use, excise and any other taxes, duties or charges with respect to Netsurit’s sale of the Services to the Client, but excluding taxes based on Netsurit’s net income or gross receipts and taxes from which the Client is exempt by law as shown by a valid tax exemption certificate. The Client agrees to indemnify and hold Netsurit harmless in the event Netsurit is required to pay such taxes, duties or other charges for which the Client is responsible.
9. OBLIGATIONS OF THE CLIENT
9.1 The Client will provide Netsurit with a primary representative (“Representative”) who will act as the principal point of contact for the Client and who is authorised to act on behalf of the Client. This Representative will also act as the point of contact in emergency situations. An alternate emergency contact will also be designated by the Client.
9.2 The Client shall:
9.2.1 timeously provide to Netsurit, free of cost, all Data and assistance reasonably required for the provision of the Services (and which is not otherwise to be provided by Netsurit under the Agreement); and
9.2.2 not obstruct the rendering of the Services;
9.2.3 comply with Applicable Laws related to the Client’s activities under the Agreement and not cause Netsurit or its Affiliates to be in violation of Applicable Laws. In this regard, the Client will respond to Netsurit’s request for information to the extent reasonable and related to Netsurit’s efforts to ensure compliance with Applicable laws; and
9.2.4 maintain and comply with policies and procedures which are (i) substantially consistent with its obligations under the Agreement and (ii) in compliance with all Applicable Laws and regulations applicable to the Client and Netsurit.
9.3 The Client hereby warrants that it has read, understood and accepts, and, where applicable, shall adhere to and/or uphold, Netsurit’s Privacy Notice, Acceptable Use Policy (i.e. Netsurit’s Terms and Conditions of Use and Service, inclusive of Netsurit’s Website Privacy Policy) and Website Disclaimer.
9.4 For the avoidance of doubt, the Client is responsible for and agrees to pay Netsurit the Fees, on the due date for payment of such Fees, in South African currency (or such other currency stipulated in the Proposal), without deduction or set-off of any amount of whatsoever nature, or for whatsoever reason.
10. FEEDBACK AND USE OF DATA
10.1 In the event that the Client provides Netsurit with reports, comments, suggestions, ideas or other feedback regarding the Services or Netsurit’s business, whether written or oral (collectively “Feedback“), the Client hereby grants Netsurit a worldwide, irrevocable, transferable, perpetual, royalty-free right and license to use the Feedback to improve the Services, develop new Services and for any other purpose, including in all media now known and later developed. Feedback is strictly voluntary and Netsurit is not required to hold it in confidence.
10.2 Notwithstanding any other provision in the Agreement or otherwise, Netsurit may evaluate and process use of Services and Content in an aggregated and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable (referred to as “Aggregate Data“). Netsurit may use such Aggregate Data to improve the Services, develop new Services, understand and/or analyse usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarising the foregoing, and generally for any purpose related to Netsurit’s business. Netsurit does not share Aggregate Data. Netsurit retains all Intellectual Property rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any Client, individual or user.
10.3 Operational data concerning use of the Services, including but not limited to, information servers automatically record relating to the access and use of the Services, such as IP address, authentication tokens, machine identification, access logs, device settings and the Client’s portal settings (collectively, “Log Data”) are processed by Netsurit to provide and the Services, develop new Services and operate and improve Netsurit’s business and the Client agrees that Netsurit may use such Log Data for such purposes.
10.4 If a Service is being used during a trial or evaluation, this Agreement and the applicable Terms of Service (except for the payment obligation) will apply for the purpose and term of such authorised evaluation or trial period only, and not for the term of the provision of the Services. Netsurit reserves the right to terminate any such evaluation use of the Service at any time in Netsurit’s sole discretion.
11. SUBCONTRACTING AND THIRD PARTIES
11.1 In the event that Netsurit requires the Services or part thereof to be carried out by or with the assistance third persons, Netsurit shall be entitled, without the prior approval of the Client, to appoint suitable subcontractors, provided that any such subcontractors have confirmed, in writing, their acceptance of, and agreement to the provisions the Agreement.
11.2 Netsurit shall remain fully responsible for the proper performance of the Services in accordance with the terms of the Agreement and Netsurit shall ensure that all persons engaged in the provision of the Services render such Services in accordance with the terms of the Agreement.
11.3 The Client may employ third party services (“Third Party Applications“). In such circumstances, the Client agrees that all Third Party Applications are provided by the third party, not Netsurit, pursuant to a separate agreement between the Client and the third party provider. Netsurit does not endorse, support or control any Third Party Applications. Accordingly, Netsurit makes no representation or warranty with respect to any Third Party Application and Netsurit expressly disclaims all liability in relation to the Client’s use of any Third Party Application.
11.4 Certain Services may involve or allow the use of third party technology, the use of which is subject to such third parties’ licence terms. These terms are included as appendices to the applicable Terms of Service and/or Proposal, and the Client’s use of a Service is deemed to constitute the Client’s express consent to all such applicable terms. As to all such third party technology: (i) it is provided by Netsurit on an “as is” basis, without warranty of any kind, and (ii) Netsurit will not be liable for damages of any kind, including direct, indirect, incidental, special, exemplary, punitive, or consequential damages, nor will Netsurit indemnify the Client for any claims related to any third party technology. Except as may be provided in the third party licence terms, or in any separate agreement between the Client and the provider of the applicable third party technology, the Client’s sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the third party technology is to cease its use.
12. DOCUMENTATION
Documents which may be furnished by Netsurit to the Client from time to time:
12.1 will not form part of the Agreement and may not be relied upon, unless it is agreed in writing by the Parties that such documents will form part of the Agreement; and
12.2 will remain the property of Netsurit and will be deemed to have been supplied by it to the Client in confidence and for the sole use of the Client. All copyright in such documents will vest in Netsurit.
13. WARRANTIES
13.1 Netsurit warrants that the Services will be performed in a professional manner consistent with industry standards reasonably applicable to such services.
13.2 Each Party warrants to the other that:
13.2.1 it is duly authorised to enter into the Agreement and that doing so will not be in breach of its constitutional documents or any agreement concluded with a third party; and
13.2.2 for the duration of the Agreement, it shall comply, and it shall ensure that all of its employees, directors, officers, agents and sub-contractors comply, with all laws and regulations which may be applicable its performance of the obligations contemplated by the Agreement.
13.3 Without limiting the generality of clause 13.2, where the Client has accepted the Services on behalf of a separate legal entity, the Client represents and warrants that it has the authority to bind that entity to the Agreement and reference to the Client shall be to that legal entity.
13.4 The Client warrants that its use of the Services shall be at its sole risk and that it understands and accepts that the Services shall be provided on an “as is and as available” basis.
13.5 Save as provided in clause 13.1 and 13.2 and otherwise expressly set out in the Agreement, Netsurit does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the Services, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, data security, quiet enjoyment, title, non-infringement of third‑party Intellectual Property and/or any warranties arising out of any course of dealing, course of performance or usage of trade. All warranties which are implied or residual at common law are hereby expressly excluded, and the Client acknowledges that it has not been induced to enter into the Agreement by any warranty, guarantee or representation, which is not expressly set out in the Agreement. Without limiting the generality of the foregoing, Netsurit expressly disclaims any warranties, express or implied, that (i) the Services will function uninterrupted, be secure or be available at any particular time or location; (ii) the Content accessible to the Client shall be accurate or complete; (iii) any errors or defects in the Netsurit website will be corrected; (iv) the Netsurit website, the operation of the Services, any Proposal, Netsurit’s software and hardware and Netsurit’s communications and/or any other component comprising Services will be free of errors, viruses or other harmful components or that any such errors, viruses or other harmful components will be remedied; and/or (v) the Services and/or the results of using the Services will meet the Client’s requirements.
13.6 The Client accepts that Services may be subject to limitations, delays and other issues inherent in the use of the internet and electronic communications. Netsurit shall not be responsible for any such delays, delivery failures or other damages resulting therefrom.
13.7 No warranty is given at any time to the Client by Netsurit in relation to any software and/or hardware installed by the Client, or by Netsurit on behalf of the Client, regarding the legality, licensing, usability, stability, suitability, performance, durability, security or accuracy of such software and/or hardware. Netsurit further cannot be held accountable for the accuracy of any software and/or hardware installation audit conducted by Netsurit on behalf of the Client. For the sake of clarity, it will be the Client’s sole responsibility to ensure that it obtains such software licences as may be required in relation to the software which it uses, and that it complies with the terms and conditions of such licences.
13.8 The Client hereby warrants that it understands and accepts that it is the Client’s sole and exclusive responsibility to:
13.8.1 determine the accuracy, reliability and credibility of any information regarding the Services and/or the quality, suitability and security of the Services; and
13.8.2 comply with any legal obligations when using the Services which may be imposed by copyright, privacy, data protection and/or defamation laws and/or any Applicable Laws that may be applicable to the Client.
13.9 The Client acknowledges and agrees that Netsurit makes no promise or guarantee that the Client will obtain or receive any minimum revenue or profit as a result of this Agreement or using the Services.
14. LIMITATION OF LIABILITY AND INDEMNITY
14.1 The Client hereby agrees to indemnify and defend and hold harmless, Netsurit, its licensors and Affiliates, and the officers, directors, employees and representatives of each of them (each a “Netsurit Indemnified Party“), from and against all damages and costs incurred as a result of a third party claim and the Client will indemnify and hold any and all Netsurit Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by the Client in settlement in connection with any such claim, to the extent the claim arises out of (i) the Client’s breach of this Agreement; (ii) the Client’s negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against a Netsurit Indemnified Party; (iii) any of exclusions referenced in clause 14.5; (iv) Client’s failure to secure Content, any personally identifiable information or Confidential Information in accordance with this Agreement, any applicable Business Associate Agreement, and Applicable Law.
14.2 The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defence; and (iii) giving sole control of the defence and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
14.3 Without limiting the generality of clauses 13 and 14.1 above:
14.3.1 Where Netsurit has made a recommendation to the Client and the implementation of such recommendation is not carried or is delayed for any reason not directly or solely attributable to Netsurit, Netsurit shall not be liable for any loss suffered by the Client as a result of such failed or delayed implementation.
14.3.2 Netsurit shall not be liable for any software failures where “failure” shall, for the avoidance of doubt, include: (i) a software’s inability to prevent a breach in respect of which a remedy has not yet been developed in the market; and (ii) a failure by the software to perform a function for which it was programmed to fulfil.
14.3.3 Netsurit shall not be liable for any failure to perform a Service as a direct or indirect result of the actions or omissions of the Client or its staff.
14.3.4 While exclusions in relation to the Services may be listed in the Scope of Services, it is expressly recorded and agreed that this list of exclusions is not exhaustive and Netsurit shall not be held liable for any failure to perform any Service which may be excluded from the Services notwithstanding such exclusion does not specifically appear in the Scope of Services.
14.4 Notwithstanding the foregoing, Netsurit agrees to defend the Client from and against third party claims that a Service in the form supplied to the Client under the Agreement infringes or misappropriates a third party’s patent, copyright or trademark rights as a result of an act or omission on the part of Netsurit and Netsurit will indemnify and hold the Client harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Netsurit in settlement in connection with any such claims. For the avoidance of doubt, Netsurit’s indemnification obligations in this regard will not apply to (i) claims of infringement to the extent based on the Client’s combination of the Service with other Services, services, software or marks if the infringement could have been avoided by the use of such Service not in such combination; (ii) any modifications to the Service not made by Netsurit; (iii) any damages incurred as a result of the Client’s failure to use any update to the Service that Netsurit provides; or (iv) use of a Service in a manner that does not conform to its specifications. If Netsurit determines that a Service is or may be subject to an infringement claim, Netsurit may, at its option: (a) procure for the Client the right to continue using the Service in accordance with the Agreement or (b) replace or modify the Service so it becomes non-infringing. If Netsurit determines that neither of these options is commercially practicable, Netsurit may terminate the Agreement or any Service upon written notice to the Client. This clause 14.5 represents the Client’s sole and exclusive remedy and Netsurit’s sole and exclusive liability for any infringement claims based on the Services.
14.5 The Client hereby indemnifies Netsurit against, and holds Netsurit harmless from, any claim, demand, liability, cost or expense, of whatsoever nature, including without limitation legal costs, by any third party arising directly or indirectly out of such third party’s relationship with the Client, or the provision or use of the Services, or from the suspension or withdrawal of the Services, or in relation to any matter for which the liability of Netsurit is excluded in terms of this clause 14.
14.6 In the event of a negligent act or omission on the part of Netsurit resulting in a breach by Netsurit of its obligations under the Agreement which directly results in a loss being suffered by the Client, Netsurit’s liability shall be limited to the lower of (i) the total value of the Fees received by Netsurit under the Agreement (excluding expenses and fees for Ad Hoc Work) for the 12 (twelve) month period immediately preceding the act or omission; or (ii) the amount of any insurance cover which it or the Client has in place for this purpose.
14.7 Subject to clause 14.9, in no event will either Party be liable to the other hereunder for any loss of profits, goodwill, revenue, production, anticipated savings, use or contracts, or other any type of indirect or consequential loss, damage, injury or expense.
14.8 Nothing in the Agreement or otherwise shall exclude or limit either Party’s liability for: (i) fraud; (ii) death or personal injury resulting from that Party’s negligence; (iii) disclosure of Confidential Information or Personal Information; (iv) any liability which cannot be excluded by law.
15. FORCE MAJEURE
15.1 Any delays in or failure to perform in relation to any part of the Services shall not constitute default or give rise to any claims for damages if and to the extent such delay or failure is caused by an event of force majeure, which shall include, but not be limited to, decrees of government, acts of God, strikes or other concerted acts of workers, fires, floods, explosions, riots, civil commotion, war, rebellion and sabotage or other similar occurrences beyond a Party’s control. An event will only be considered a “force majeure event”:
15.1.1 if such event is beyond a Party’s control;
15.1.2 where the affected Party could not reasonably have provided against the event before entering into the Agreement;
15.1.3 where the affected Party could not reasonably have avoided or overcome the event; and
15.1.4 where the event is not substantially attributable to the other Party.
15.2 Should a force majeure event continue for more than 40 (forty) Business Days, either Party shall be entitled to terminate the Agreement on written notice to the other Party.
16. BREACH, TERMINATION AND SUSPENSION
16.1 If either Party (a “Defaulting Party”):
16.1.1 breaches any of the terms or conditions of the Agreement and fails to remedy such breach within 7 (seven) Business Days (or such longer period agreed to by the Parties) after the receipt of a written notice from the other Party requiring the breach to be remedied; or
16.1.2 commits any act of insolvency; or
16.1.3 endeavours to compromise generally with its creditors or does or causes anything to be done which may prejudice the other Party’s rights hereunder or at all; or
16.1.4 allows any judgment against it to remain unsettled for more than 21 (twenty-one) Business Days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end; or
16.1.5 is placed in liquidation or under business rescue (in either case, whether provisionally or finally) or, being an individual, his or her estate is sequestrated or voluntarily surrendered,
the non-defaulting Party shall be entitled, notwithstanding anything to the contrary in the Agreement and without prejudice to any of its other rights in law, to claim specific performance in terms of the Agreement or to immediately cancel the Agreement on written notice to the Defaulting Party, in either event without prejudice to its right to claim damages.
16.2 Where the Client is the Defaulting Party, Netsurit shall be entitled to treat as immediately due and payable all amounts in arrears, including interest thereon, and to suspend performance of its obligations hereunder as well as under any other contract until the breach has been remedied, notwithstanding the date for payment thereof set out in the Agreement.
16.3 Upon termination of the Agreement, Netsurit shall issue the Client with a final invoice in respect of any Fees payable in terms of the Agreement in respect of Services rendered to the Client, but for which Netsurit has not issued an invoice, which invoice shall become immediately due and payable.
16.4 Where the Agreement is terminated prior to the Initial Period either (i) by Netsurit as a result of the Client’s breach [] Netsurit shall be entitled to issue a final invoice to the Client for (i) an amount equal to the monthly Fee[MW1] [L2] provided for in the Proposal, multiplied by the number of months remaining in the Initial Period as at the date of termination for Services payable monthly in advance; and (ii) the amounts payable for other Services and/or goods provided up to the effective date of termination. Such invoice shall become due and payable immediately on the date of delivery thereof to the Client.
16.5 Netsurit may, in addition, terminate the Agreement, at any time, without cause, upon [30 (thirty)] days’ written notice. In addition, Netsurit may terminate providing a particular Service, at any time, without cause, upon [30 (thirty)] calendar days’ written notice, without terminating the Agreement. In the event of termination of the Agreement, Netsurit will provide a final invoice in respect of amounts due, owing and payable for Services rendered and good supplied at the effective date of the termination. Any Services terminated will be excluded from invoices issued by Netsurit following the effective date of such Service termination.
16.6 Without prejudice to any other rights accorded to Netsurit in terms of the Agreement, if the Client fails to pay any amount on the due date for such payment or breaches any of the other terms of the Agreement, Netsurit will be entitled upon written notice to the Client and without any liability or obligation whatsoever, to discontinue the provision of the Services to the Client until such non-payment or breach is remedied to Netsurit‘s satisfaction.
16.7 To the extent that termination of this Agreement also leads to termination of the Services, Netsurit reserves the right to permanently and irrevocably delete or disable access to all related accounts and Content from any remotely located servers owned by Netsurit or under Netsurit’s control, without liability for such deletion, immediately upon the termination of such Services.
17. CONFIDENTIALITY
17.1 The Parties agree to be bound by the terms of any reciprocal confidentiality and non-disclosure agreement (“NDA”), which may have been concluded between them prior to, or simultaneously with, the conclusion of the Agreement.
17.2 In addition to the terms of any NDA between them, as referred to in clause 17.1 above, the Parties agree as follows:
17.2.1 the Client agrees and warrants to Netsurit that it will at all times keep all Confidential Information, including the terms and conditions of the Agreement, confidential and will not disclose the same to any other third party (save to the Client’s legal advisors and accountants, solely for the purposes of obtaining professional advice thereon);
17.2.2 each Party acknowledges that it will exchange such Confidential Information with the other as is reasonably necessary for such other Party to perform its obligations under the Agreement. All information relating to the Agreement provided by either Party to the other, whether oral or written, will be deemed to be Confidential Information and deemed to be proprietary information, unless indicated to the contrary in writing.
17.2.3 Netsurit further undertakes that it will not at any time or in any manner other than to the extent necessary to provide the Services, divulge or communicate to any third party, any Confidential Information, and acknowledges the Client’s proprietary interest in such information.
17.3 Each Party agrees to return or destroy all of the original Confidential Information and any copies and reproductions (both written and electronic) in its possession or under its control and in the possession of any third party to whom he has disclosed such Confidential Information:
17.3.1 at any time upon the other Party giving written notice to do so; and/or
17.3.2 within 5 (five) days of the termination of this Agreement for any reason whatsoever;
and neither Party shall be entitled to retain any copies thereof, it being recorded that all rights, title, interest and copyright in and to any such Confidential Information shall throughout the currency of this Agreement and thereafter subsist in and continue to subsist in the disclosing Party.
17.4 In the event of a conflict between the provisions of the Agreement and any NDA concluded between the Parties, the more onerous provisions relating to the subject matter hereto shall prevail.
17.5 Each Party will ensure that their respective employees, agents, sub-contractors and/or representatives agree to be bound by the provisions of this clause 17 which shall survive the termination of the Agreement.
17.6 For the avoidance of doubt, the aforegoing obligations set out in this clause 17 will not apply to any information which –
17.6.1 is lawfully in the public domain at the time of disclosure to the Party concerned;
17.6.2 subsequently becomes lawfully part of the public domain by publication or otherwise;
17.6.3 subsequently becomes available to a Party from a source other than the other Party which is lawfully entitled without any restriction on disclosure to disclose such information to the Party receiving such information; or
17.6.4 is disclosed pursuant to any requirement or request by operation of law, regulation of court order.
18. SECURITY
18.1 The Client is to ensure that Netsurit’s employees and, if applicable, sub-contractors are given reasonable authorised access to premises and equipment in order that the Services may be delivered and maintained in accordance with the terms of the Agreement.
18.2 The Client is to ensure that Netsurit’s employees and, if applicable, sub-contractors are given necessary access to the software and systems in order that the Services may be delivered and maintained in accordance with the terms of the Agreement. This access includes, for example, remote access to servers.
18.3 [Netsurit will ensure that its employees are made aware of the Client’s formal security policies and will also ensure ongoing compliance with these policy statements. The Client will provide Netsurit with up to date information on its security policies and will keep Netsurit informed about any changes to these policies.]
18.4 Netsurit has implemented and maintains physical, technical and administrative measures designed to help secure Content under Netsurit’s control against accidental or unlawful loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and the Client acknowledges and agrees that, despite the reasonable measures employed by Netsurit, the Services and Content are not guaranteed against all security threats or other vulnerabilities.
18.5 The Client acknowledges and agrees that the Client is responsible, and in no event will Netsurit be responsible, for any physical, administrative, or technical controls related to Services or Content not under the exclusive control of Netsurit, including but not limited to access to, inter alia, the Client’s location(s), passwords or other access credentials, LAN or internet connectivity.
19. DATA PROTECTION
19.1 The Client acknowledges and agrees that, in order for Netsurit to provide the Services to all Netsurit clients (including, but not limited to the Client), Netsurit shall retain and process all Data submitted by the Client, subject to Netsurit complying with the POPIA.
19.2 The Client acknowledges and accepts that it is solely responsible for ensuring the accuracy and completeness of all Data submitted by it to Netsurit for the purposes of the Agreement and for checking the accuracy, completeness and relevance of any information provided to it by Netsurit pursuant to any Service rendered in terms of this Agreement.
19.3 The Client acknowledges and accepts that, by submitting any Data to Netsurit via any means for the purposes of receiving the Services, the Client consents to Netsurit using and processing such Data for the purposes and on the terms and conditions set out in the Agreement.
19.4 Netsurit shall not disclose any Data to a third party (other than for the purpose of performing the Services pursuant to this Agreement) without the prior consent of the Client.
19.5 Netsurit may from time to time update this clause 19 to ensure consistency with future developments, industry trends and/or changes in legal or regulatory requirements.
20. INTELLECTUAL PROPERTY
20.1 The copyright and other Intellectual Property rights created by or licensed to (i) either Party; (ii) any of its Affiliates; (iii) a consultant or sub-contractor employed by that Party in connection with the Agreement or one of its Affiliates; or (iv) any employee of any of the foregoing (as the case may be) prior to the date of commencement of the Services or otherwise outside the engagement contemplated by the Agreement (hereinafter referred to as the “Pre-Existing IP”) will remain vested in that Party, such Affiliate or such third party.
20.2 For the avoidance of doubt, Pre-Existing IP shall, in the case of Netsurit, include all Intellectual Property made available by Netsurit to the Client in providing the Services under and pursuant to the Agreement. Any software supplied by Netsurit as incorporated into any Service, is licensed, not sold. Except for the limited rights granted herein and in the applicable Terms of Service, Netsurit and Netsurit’s licensors retain all right, title, interest and Intellectual Property Rights in such software and the Services, and all copies thereof.
20.3 To the extent that any Pre-Existing IP is embedded in or otherwise material to the rendering of the Services, each Party shall have a perpetual, non-terminable, irrevocable, non-exclusive, transferable licence to use, copy and communicate the other Party’s Pre-Existing IP for any purpose in connection with the Services and the resultant works which licence shall immediately terminate on the termination of the Agreement for any reason whatsoever.
20.4 The Client acknowledges, however, that Netsurit shall have no liability to the Client arising from the use of the Pre-existing IP otherwise than in connection with the Services and as restricted herein.
20.5 The provisions of this clause 20 shall survive the termination of the Agreement.
21. DISPUTE RESOLUTION
21.1 Should any dispute or claim arise out of, or relating to, the Agreement, including, but not limited to, the interpretation, breach, termination or invalidity of it (“Dispute“), the Parties shall use all reasonable endeavours to resolve the Dispute amicably within a period of 30 (thirty) days from the date on which the Dispute arose (or such longer period as may be agreed between the Parties).
If the Dispute is not resolved amicably within the period contemplated in clause 21.1 above, either Party shall be entitled to refer the Dispute to arbitration on written notice to the other Party. The Parties may agree on the arbitration procedure and on the arbitrator and, failing such agreement within 5 (five) Business Days of the written notice referring the Dispute to arbitration, the arbitration shall be conducted in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”) in force at the time of the Dispute. The appointing authority in terms of the AFSA rules shall be the Association of Arbitrators (Southern Africa).
21.2 Nothing in this clause 21 shall preclude a Party from seeking interim or urgent relief from a magistrates’ court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction, in South Africa. This clause will be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1944, provided, nevertheless, that any Party will have the right, at its sole option and discretion, to institute proceedings in any other competent court.
22. ADDRESSES FOR NOTICES
22.1 Each of the Parties choose their service address for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from the Agreement as being: (i) in the case of Netsurit, at info@netsurit.com; and (ii) in the case of the Client, at the email and addresses provided by the Client to Netsurit via the Netsurit website, the Proposal, or otherwise.
22.2 The Parties hereby consent to the serving of any legal process to be effected by way of email.
22.3 Any notices to any Party will be sent via email. Unless the contrary is proved, any notice transmitted by email will be deemed to have been received on the same day of transmission; provided that if such day is not a Business Day, then such notice shall be deemed to have been received on the first Business Day following the day of transmission.
22.4 Each of the Parties will be entitled from time to time, by written notice to the other to vary its service address to any other address which is not a post office box or poste restante, provided that the change will become effective only 10 (ten) Business Days after service of the notice in question.
22.5 Notwithstanding the above, any notice given in writing in English, 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.
23. GENERAL PROVISIONS
23.1 Nature of Relationship
In performing the Services, Netsurit shall be acting as an independent contractor and this Agreement shall not be construed as creating any relationship of agency, partnership, joint venture or employment between the Parties.. It is accordingly recorded that Netsurit and its employees are not employees of the Client for the purposes of the Labour Relations Act, 1995 (Act 66 of 1995, as amended), the Basic Conditions of Employment Act, 1997 (Act 75 of 1997, as amended), the Unemployment Insurance Act, 1996 (Act 30 of 1996, as amended), the Employment Equity Act, 1998 (Act 55 of 1998, as amended) and/or any other relevant legislation that may normally be applicable to an employer/employee relationship.
23.2 Cession
Neither Party will be entitled to cede its rights or assign its obligations in terms of the Agreement to any third party, without the prior written consent of the other Party, which consent may not be unreasonably withheld.
23.3 No Variation Or Amendment
23.3.1 No amendment or consensual cancellation of the Agreement or of any agreement or other document issued or executed pursuant to, or in terms of, the Agreement will be binding unless recorded in a written document signed by a legally authorised representative from both Netsurit and the Client.
23.3.2 No extension of time or waiver or relaxation of any of the provisions of the Agreement will operate as an estoppel against Netsurit, nor will it operate so as to preclude Netsurit thereafter from exercising its rights strictly in accordance with the Agreement.
23.4 Prohibition Against Soliciting Or Hiring Personnel
23.4.1 Unless otherwise agreed in writing between the Parties, neither Party will solicit or employ, in any capacity whatsoever, including as independent sub-contractors, the employees (including sub-contractors) of the other Party during the term of the Agreement and for a period of twenty-four (24) months from the date of termination of the Agreement or the termination of the employee’s contract.
23.4.2 The Parties will take such steps as are necessary to ensure that their subsidiaries, associates or representatives comply with the provisions of this clause.
23.5 Terms of Agreement Prevail and Surviving Provisions
23.5.1 The Agreement will constitute the whole of the agreement between Netsurit and the Client relating to the subject matter hereof. If anything in any agreement, enquiry, specification, order, acceptance, correspondence or other documentation issued in relation to the subject matter of the Agreement is in conflict of any of the terms of the Agreement, then the terms of the Agreement will prevail, subject to clause 1.34 above.
23.5.2 In the event of any expiration, termination or cancellation of the Agreement, the provisions of any clause which is intended to continue and survive such expiration, termination or cancellation will so continue and survive.
23.5.3 Termination of the Agreement for any cause shall not release either Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission prior to such termination.
23.6 General Co-operation
The Parties shall co‑operate with each other and execute and deliver to the other Party such other instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights and the intended purpose of the Agreement.
23.7 Stipulatio Alteri
The provisions of clauses 17 and 18 above and any other provisions of the Agreement shall, by way of a stipulatio alteri, constitute a contract for the benefit of each of the Parties’ Affiliates, which shall be capable of acceptance at any time by any of them by written notice to that effect to the other Party. Prior to acceptance, no Party may withdraw the benefit of this stipulation without the written consent of the other Party.
23.8 Updates to the Agreement
23.8.1 Netsurit may from time to time update the terms of this Master Service Agreement, including to ensure consistency with future developments, industry trends and/or changes in legal or regulatory requirements. In such event, Netsurit shall post the updated Master Service Agreement on Netsurit’s website and/or by sending a message to the Client’s Representative. The Client is responsible for checking the Netsurit website regularly and for maintaining a current electronic address for the Client’s account in order that Netsurit may notify the Client of any important updates.
23.8.2 The updated Master Services Agreement will be effective 30 (thirty) days from the updated version being placed on the Netsurit website or, where notice is issued, the date of notice to the Client, whichever is the later, unless the Client notifies Netsurit that it objects to such amendment within such 30 (thirty) days. Should a notice of objection be issued, the Client and Netsurit will meet in good faith to agree to any changes to the amended Master Service Agreement.
23.8.3 By continuing to participate as a client without objection after such 30 (thirty) day period, the Client shall be deemed to have agreed to and accepted the updated Master Services Agreement.
23.9 Signature
[Clicking on “I agree” when prompted; and/or] Signing the Proposal/s; and/or ordering or purchasing and/or accessing and using the Services, certifies that the Client has read and understood the Agreement (including all appendices and annexures) and agree to be bound by its terms and conditions. The Parties further agree that the Agreement supersedes any prior agreements, commitments or representations of any kind, whether oral or written, made between them in relation to the subject matter hereof.
