Terms and Conditions

 

1. STANDARD OF CARE

   1. For the duration of this Agreement, each Party shall:

      1. carry out their duties and functions with due care, skill and diligence, in a professional and workmanlike manner and in conformity with the requisite standards;

      2. use its best endeavors to protect and promote the business of the other Party and to preserve the other Party’s reputation and goodwill;

      3. act with honesty, integrity and in good faith in relation to the other Party; and

      4. avoid any material conflict between its own interests and those of the other Party, in particular:

         1. shall not derive any personal economic benefit to which it is not entitled pursuant to this Agreement, from such Party or from any other person in circumstances where that benefit is obtained in conflict with the interests of such Party; and

         2. shall notify such Party, at the earliest practical opportunity, of the nature and extent of any direct or indirect material interests that it may have in conflict with such Party.

2. TERMINATION AND BREACH

   1. This Agreement may be terminated by either Party upon 30 days written notice to the other Party.

   2. Notwithstanding the provisions of clause 6.1 above and provided that such breach was not due to, or resultant from, circumstances that were beyond the control of the defaulting Party, should a Party commit a material breach of any provision of this Agreement and fail to remedy such breach within fourteen (14) days of receiving written notice from the other Party, then the non-defaulting Party shall be entitled, without prejudice to its other rights in law, to cancel this Agreement or to claim specific performance of the other Party’s obligations.

   3. Notwithstanding termination of this Agreement, the Parties agree to see to completion, any and all specific projects that have been agreed to between the Parties, including fulfilling all obligations therein and making payment in relation to all fees/monies due and payable.

   4. Should the Company terminate the Agreement before conclusion of a Service/s that NTS has commenced, the Company will be obligated to pay the full amount due to NTS, had the Service/s been concluded.

3. CONFIDENTIALITY

   1. For the purpose of this Agreement the following expressions shall have the meanings set opposite them respectively:

      1. "Disclosing Party" shall mean the Party disclosing Confidential Information under this Agreement to the other Party (hereinafter called the "Receiving Party").

      2. “Confidential Information” as used in this Agreement means, in respect of either Party, all non-public, confidential or proprietary information or materials disclosed or otherwise acquired by the Receiving Party from the Disclosing Party, whether or not such information is written or oral or labeled or otherwise identified as confidential or proprietary by the Disclosing Party. Such information includes, without limitation, information related to the Disclosing Party’s trade secrets, trademarks, knowhow, technologies, techniques or systems or processes, existing or future products, clients’ names, client lists, financial information, accounting statements or audits, and other information relating to the business or products of the Disclosing Party. Confidential Information does not include information which (a) is or becomes generally available to the public other than as a result of a disclosure in breach of any term of this Agreement, (b) was known by the Receiving Party without any restriction as to disclosure or use prior to receiving the same directly or indirectly from the Disclosing Party, (c) was lawfully received by the Receiving Party from a third party without an obligation of confidentiality, or (d) was independently developed by the Receiving Party without reference to or use of the Confidential Information.

   2. Permitted Purpose. The Receiving Party and its Representatives (as defined below) shall only use the Confidential Information delivered to it by the Disclosing Party solely for the purpose of the performance of obligations set out in this Agreement (“Permitted Purpose”). No other use of the Confidential Information is permitted without the prior written consent of Disclosing Party.

   3. Protection of Confidential Information. From the date of its disclosure until 10 years after the date of termination or expiration of this Agreement, the Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature. The Receiving Party shall further restrict disclosure of such Confidential Information to those of its directors, officers, employees, agents and advisors, including lawyers, accountants and financial advisors (collectively known as the “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the Receiving Party and who are bound by a duty of confidentiality no less protective of the Disclosing Party’s Confidential Information than this Agreement.

   4. Legal Compulsion. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the Disclosing Party reasonable prior written notice, to the extent such notice is not prohibited by law, to permit the Disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

   5. Notice of Unauthorized Use, Disclosure. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in every reasonable way for the Disclosing Party to regain possession of the Confidential Information and prevent further unauthorized use or disclosure.

   6. Ownership. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party and the Receiving Party shall not acquire any license, intellectual property rights or legal or equitable interest in the Disclosing Party’s Confidential Information except for the limited right to make copies as necessary, and in accordance with this Agreement, for the Permitted Purpose.

4. DATA PROTECTION

   1. Each Party confirms that it has implemented, and agrees to follow its own appropriate administrative, technical, and physical safeguards and other appropriate measures to protect the security, confidentiality and integrity of any data and personal data it obtains and to prevent the misuse and wrongful disclosure thereof.

   2. Both Parties agree to fully comply with any respective obligations under the Applicable Data Protection Laws. “Applicable Data Protection Laws” shall mean POPIA, the GDPR, as well as any other applicable data protection or privacy laws of any other country where applicable.

5. INDEMNITY

   1. The Company hereby acknowledges and represents that the Company, to the exclusion of NTS, shall be responsible in relation to all damage that may be incurred from and/or in connection with the Service/s.

   2. The Company hereby holds NTS harmless against all loss, damages, costs and or expenses which the Company may suffer or incur while carrying out the Service/s in terms of this Agreement and indemnifies NTS against any and all claims which may be brought against NTS by a third party in respect of any loss, liability,  damage, cost and or expense of any nature whatsoever as a consequence of, or which may arise from, or be attributable to any acts (or omissions) on the part of the Company or its employees.

   3. The Company shall indemnify and hold harmless NTS on demand against any claims, liabilities, losses, costs, proceedings, damages or expenses arising out of or in connection with any breach by the Company of any of the provisions of this Agreement.

6. ADDRESSES FOR LEGAL PROCESSES AND NOTICES

   1. Any legal process to be served on either Party may be served on it at the address specified by either party from time to time or via email to the email address known to the other Party and each Party chooses that address as its domicilium citandi et executandi for all purposes under this Agreement.

   2. Any notice or other communication given by, or to, either Party will only be valid and effective if given in writing. Notice served via email will be deemed to have been received on the day of transmission if transmitted during normal business hours or, alternatively, if such communication is transmitted after normal business hours, to have been received on the next business day after transmission. 

7. GENERAL PROVISIONS

   1. Variation. No variation, addition to or cancellation of this Agreement and no waiver of any right in terms of this Agreement shall be of any force and effect unless reduced to writing and signed by, or on behalf of, both Parties to this Agreement.  

   2. Applicable Law and Jurisdiction. This Agreement shall be governed by and construed under the Laws of South Africa. The courts of South Africa shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

   3. Warrant of Authority. Each Party warrants to the other that it has the power, authority and legal right to sign and perform in terms of this Agreement and that this Agreement has, where necessary, been duly authorised by all necessary actions of that Party, its directors, or its trustees and that this Agreement is valid and binding on each of the Parties.