1.1 These terms and conditions (the "Agreement") will apply to the relationship between you ("You") and VAST Networks Proprietary Limited, registration number: 2014/090297/07 ("VAST Networks" or "us"), including your use of the VAST Networks Voucher Management System (the "VMS"), which, among other things, enables the issuing of Vouchers by VAST Networks to its clients and, facilitates the processing of orders from its clients.
1.2 We have defined important terms and phrases in clause 3 of this Agreement. If you encountered a capitalised term or phrase, and you are unfamiliar with its meaning, please refer to the list of defined terms and phases in clause 3.
1.3 You must agree to the terms of the Agreement, as amended from time to time, to access or use the VMS, or to purchase or sell any Vouchers. You understand that this Agreement is a legal contract between you and VAST Networks. If you do not agree with the terms of this Agreement, you must immediately cease all use of VMS and notify VAST Networks in writing.
2. Important Clauses
If you are a consumer, as defined in the Consumer Protection Act 68 of 2008 ("Consumer Protection Act"), we have a duty to point out certain important terms to you. The paragraphs which contain these important terms and the reasons why they are important are set out below.
2.1 Limitation of risk, legal responsibilities and liability. Clauses 3.3, 4.2, 6, 7, 10, 12, 13, 15, 16, 19.5, 20 and 21 of this Agreement are important because they limit and exclude obligations, liabilities and legal responsibilities that we may otherwise have to you. As a result of these clauses, your rights and remedies against us are limited and excluded. These clauses also limit and exclude your right to recover or make claims for any losses, damages, liability or harm you or others may suffer.
2.2 Assumption of risk, legal responsibilities and liability by you. Clauses 3.3, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20.8, 21 and 22 of this Agreement are important because you take on risk, legal responsibilities and liability.
2.3 You will also be responsible for, and you accept, damages, harm, and injury which may be suffered by you and others in relation to what is stated in these clauses.
2.4 Acknowledgements of fact by you. Clauses 10, 188.8.131.52, 19.1 and 22.3 of this Agreement are important because they each contain statements which are acknowledgements of fact by you. You will not be able to deny that the statements are true.
3.1 In our Agreement, unless expressly stated otherwise or required by the context, the following words and expressions have the following meaning:
means, in relation to a Party, all other parties which directly or indirectly (whether through one or more intermediaries or otherwise) Control, or are Controlled by, or are under common Control with, that Party or its successors-in-title from time to time;
means an annexe to the Agreement or an annexe to the Vast Voucher Channel Partner Application;
3.1.3 "Best Industry
includes, in relation to an obligation, undertaking, activity or a service, the exercise of the degree of skill, speed, care, diligence, judgment, prudence and foresight and the use of practices, controls, systems, technologies and processes, which would be expected from a skilled, experienced and market leading service provider that is an expert in performing the same or similar obligation, undertaking, activity or service and utilising and applying skilled resources with the requisite level of expertise;
3.1.4 "Business Day"
means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;
3.1.5 "Business Rescue"
has the meaning assigned thereto in section 128(1)(b) of the Companies Act;
means any claim, action, demand, suit or legal proceeding;
3.1.7 "Companies Act"
means the Companies Act, 71 of 2008, as amended;
shall have the meaning given to it in clause 18.2;
in relation to any party, means (i) the holding or beneficial ownership of 50% or more of the ordinary shares (or other like instruments) in that party's issued share capital (or like ownership structure), or the holding of a participation interest of 50% or more in that party where it is unincorporated; or (ii) the right or ability to direct or otherwise control or exercise 50% or more of the voting rights attaching to that party's issued ordinary shares (or other like instruments), or the right or ability to direct or otherwise control or exercise the voting rights attaching to a participation interest of 50% or more in that party; or (iii) the right or ability to appoint or remove 50% or more of the board of directors of that party (or such other body legally representing such party) or to appoint or remove individuals able to exercise 50% or more of the votes exercisable at the meetings of board of directors or such party; or (iv) the right or ability to direct or generally manage, or to cause the direction or general management of, affairs of such party, and the terms "Controls" and "Controlled" shall have a corresponding meaning;
3.1.10 "Data Protection
means any data protection or data privacy laws applicable in the Republic of South Africa from time to time, including but not limited to the Protection of Personal Information Act 4 of 2014, the Electronic Communications and Transactions Act 26 of 2005 and the Consumer Protection Act 68 of 2008;
3.1.11 "Destructive Code"
means any "viruses", "trojan horses", computer code, malware, instructions, devices or other Materials that (i) are designed to damage, disrupt, disable, harm or otherwise impede or impair in any manner, including aesthetic disruptions or distortions, the operation or use of any of the VAST Networks Infrastructure or the VAST Networks Materials; or (ii) would permit an unauthorised party to access the VAST Networks Infrastructure or the VAST Networks Materials to cause such disablement or impairment;
3.1.12 "Discount Margin"
means the difference between the standard price per megabyte for a Voucher, as amended by VAST Networks from time to time (and as indicated in Annexe A of the Vast Voucher Channel Partner Application) and the Voucher Fee payable by you in relation to each Voucher, which Discount Margin is stated in Annexe A of the Vast Voucher Channel Partner Application;
3.1.13 "Effective Date"
means the date on which VAST Networks and you signed the Voucher Channel Partner Application;
has the meaning assigned thereto in section 128(1)(f) of the Companies Act, and "Financial Distress" shall have a corresponding meaning, to the extent that these provisions have come into effect;
3.1.15 "Force Majeure"
is an event of fire, lightning, explosion, flood, hurricane, act of God, war, terrorism, civil disorder, epidemics, plagues, strikes, or any other event beyond the control of the Party affected by the event, provided in all cases that the affected Party has taken all steps and precautions which could reasonably be expected for it to have taken in order to prevent such act or event occurring and in order to mitigate and minimise the effects of the event and furthermore that the affected Party is not at fault. Where you are the affected Party, a Force Majeure Event shall not include strikes, lock-outs, or labour disputes by or between you or any of your Personnel;
means information technology and telecommunications infrastructure and systems, including computer and telecommunications networks, equipment, hardware, software, middleware, firmware, data, databases, peripherals, terminals and components;
3.1.17 "Intellectual Property
means (without limitation) all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection anywhere in the world, including (without limitation) patents, trademarks, present and future rights of copyrights, rights in and to designs, rights in and
to inventions, topography rights, rights in and to trade secrets, rights in and to: trade names, business names, domain names and logos, the right to keep information confidential and private, rights in and to know how, rights in and to databases (including rights of extraction), and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection as at the Effective Date or in the future anywhere in the world. whether or not any of these is registered and including applications for any such rights or registration thereof;
means all laws; statutes: regulations; by-laws; codes (including the Code of the Advertising Standards Authority); ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings, or awards; policies, voluntary restraints, guidelines, directives, compliance notices, abatement notices, and agreements with, requirements of, or instructions by any governmental body, regulator, court or other authority: and the common law, and "Law" shall have a similar meaning;
means any actual loss, liability, damages, penalty, fine, expense and cost;
means all products, goods, software, software documentation, documentation, literature, materials, tools, data, information, databases, modules, components, compilations of data, methodologies, processes, policies, procedures, techniques, models, configurations, protocols, routines, interfaces (including API interfaces), reports, plans, notes, files, diagrams, manuals, templates, schematics, correspondence, designs,
circuit designs, algorithms, specifications, records, equipment, hardware, servers, computers, platforms, computer code, derivative works, and works of authorship, and irrespective of the form and format of the foregoing and whether tangible or intangible;
means the parties to the Agreement, being you and VAST Networks and "Party" shall mean any one of us as determined by the context;
means information relating to any person, including but not limited to: (i) information relating to the race, gender, sex, marital status, national, ethnic or social origin, colour, age, disability, language and birth of the person; (ii) information relating to the education or the medical, financial, criminal or employment history of the person; (iii) information relating to the financial affairs of the person; (iv) credit card details and transactional data; (v) any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person; (vi) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; (vii) the views or opinions of another individual about the person; (viii) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person; and (ix) any other information which may be treated or defined as "personal information" in terms of any applicable Laws, including Data Protection Legislation;
means, in relation to a party, the individual
partners, directors, officers, employees, representatives, agents, independent contractors, subcontractors, suppliers, licensors, product providers, and service providers of that party. For purposes of clarity, VAST Networks' Personnel shall not include you or any of your Personnel;
means to collect, receive, records, organise, collate, store, develop, retrieve, consult, use, disseminate or perform any other act or action, including any other act or action which may be treated or defined as "process" or "processing" in terms of any applicable laws (including Data Protection Legislation). The words "Processed" and "Processing" shall have a corresponding meaning;
3.1.25 "Rand" or "R"
means South African Rand, the lawful currency of the Republic of South Africa;
means a redemption by a Subscriber or other person of a Voucher in order to access and use the WiFi Network in the manner prescribed in clause 12.2, and "Redeem" and "Redeemed" shall have a corresponding meaning;
means any person that uses, intends to use, or subscribes to use, the VAST Networks Platform, including any person that redeems or activates a Voucher;
means all information, including Personal Information, relating to any and all Subscribers;
means the Republic of South Africa;
3.1.30 "VAST Networks
means any data, including (i) Personal Information, supplied to you or your Personnel by
or on behalf of VAST Networks, and (ii) Personal Information Processed by or on behalf of VAST Networks or its Personnel; and (iii) all Subscriber Information, and (iv) the Confidential Information of VAST Networks;
3.1.31 "VAST Networks
means the Infrastructure used by VAST Networks, any of the Affiliates of VAST Networks, or any of their respective Personnel;
3.1.32 "VAST Networks
means all Materials and Intellectual Property Rights that are the property of VAST Networks, its affiliates, and/or its licensors, or which are made available by VAST Networks to you, including the WiFi Network, the VMS, the VAST Networks Data, the VAST Redemption Platform and the Subscriber Information;
3.1.33 "VAST Redemption
means the system operated by VAST Networks which, among other things, enables the Redemption of Vouchers on the Wi-Fi Network;
means value-added tax levied in terms of the Value-added Tax Act, 89 of 1991, as amend
means a voucher represented by a unique alphanumeric short code issued by VAST Networks to you, that, after activation and Redemption by a Subscriber, enables that Subscriber to use the WiFi Network;
3.1.36 "Voucher Fee"
means the amount payable by you to VAST Networks in relation to Voucher, being the value of the Voucher (as indicated on VMS in relation to the denomination of the Voucher) less the Discount Margin; and
3.1.37 "WiFi Network"
means the electronic communications network established and/or operated by VAST Networks for the purposes of providing communications services, including for the purposes of providing communications services to the Subscribers;
3.2 In the Agreement, headings will not be used in the interpretation of Agreement and, unless expressly stated otherwise or otherwise required by the context:
3.2.1 references to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time;
3.2.2 words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
3.2.3 references to a "person" include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
3.2.4 references to a "subsidiary" or a "holding company" shall be references to a subsidiary or holding company as defined in the Companies Act;
3.2.5 if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
3.2.6 any definition, wherever it appears in the Agreement, shall bear the same meaning and apply throughout t the Agreement unless otherwise stated or inconsistent with the context in which it appears;
3.2.7 technical terms that are not defined in the Agreement will have the generally understood meaning in the information technology industry;
3.2.8 if there is any conflict between any definitions in the Agreement then, for purposes of interpreting any clause of the Agreement, the definition appearing in that clause or paragraph shall prevail over any other
conflicting definition appearing elsewhere in the Agreement;
3.2.9 where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
3.2.10 where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the next succeeding Business Day;
3.2.11 any provision in the Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by the Agreement s shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of the Agreement, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
3.2.12 where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
3.2.13 references to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT, it being recorded by the Parties that the price payable for Vouchers shall be inclusive of VAT;
3.2.14 the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply. The words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples, or the use of examples, shall not be construed as limiting the meaning of the general wording preceding it.
3.3 Each provision of the Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party
responsible for the drafting or preparation of the Agreement (i.e. the contra proferentem rule), shall not apply.
4.1 VAST Networks has appointed you, with effect from the Effective Date and on a non-exclusive basis, to distribute and sell the Vast Vouchers in accordance with the terms and conditions of the Agreement. You hereby accept this appointment.
4.2 Nothing in the Agreement prevents or restricts VAST Networks from appointing any other person to distribute and/or sell the Vouchers or permitting any other person to use VMS.
Notwithstanding the date of signature, this Agreement shall be deemed to have commenced on the date specified in the Vast Voucher Channel Partner Application and shall endure for the period specified in the Vast Voucher Channel Partner Application, unless terminated earlier in accordance with the further provisions of this Agreement.
6. Nature of the relationship between the parties
6.1 The Parties enter into this Agreement as independent parties and nothing in this Agreement, whether expressed or implied will:
6.1.1 be construed as creating a partnership between the Parties;
6.1.2 constitute either Party as an agent or representative of the other Party; or
6.1.3 entitle either Party to bind or attempt to bind the other Party, or to portray to any third party that it has the authority to bind the other Party or to confer any obligation on the other Party.
6.2 You hereby indemnify and shall keep VAST Networks indemnified and hold VAST Networks harmless from and against all and any Claims, Loss, demands, liability, costs and expenses of whatsoever nature, which VAST Networks may at any time sustain or incur by reason or in consequence of this clause 6 by you and/or an Affiliate of yours.
7. Changes to this agreement
7.1 Without limiting or derogating from VAST Networks' rights under the Agreement, VAST Networks may, in its sole and absolute discretion, amend the contents of this Agreement (including Annexe A of the Vast Voucher Channel Partner Application) on 30 days' notice to you. For the avoidance of doubt and without limiting or derogating from VAST Networks rights under the Agreement, VAST Networks may, pursuant to this clause 7.1, remove, add or alter the category, nature, pricing, Validity Period, Discount Margin and denomination of Vouchers.
7.2 VAST Networks will not make the changes contemplated in clause 7.1 without giving you the right to terminate the Agreement on 20 Business Days' notice to VAST Networks, provided you are entitled to do so in terms of the Consumer Protection Act. Any right to termination that you exercise pursuant to this clause 7.2 will always be in accordance with the provisions of the Consumer Protection Act, and you must ensure that you comply with such time periods that VAST Networks may specify in relation to your termination.
Obligations of VAST networks
VAST Networks will provide information that you reasonably request for the purposes of assisting you to perform your obligations under the Agreement.
9.1 In addition to, and without limiting, the other obligations which you may have in terms of the Agreement, you will:
9.1.1 comply with all applicable Laws, and with such rules, guidelines and other requirements that VAST Networks may advise you of from time to time;
9.1.2 ensure that all of your Personnel (including, without limitation, your sales personnel and representatives) are familiar with the terms and conditions applicable to the Vouchers, including, without limitation, the manner in which the Vouchers may be Redeemed by Subscribers;
9.1.3 not knowingly use any VAST Networks Materials in a manner not expressly authorised by VAST Networks;
9.1.4 co-operate with VAST Networks and provide such assistance and information as may be reasonably requested by VAST Networks from time to time;
9.1.5 in the performance of the Agreement, not knowingly or intentionally carry out any act or omission which may be materially adverse to the image or brand of VAST Networks, the VAST Networks Platform, the WiFi Network or the VAST Networks Materials;
9.1.6 not enter into any agreement with a third party for activities, services, obligations and undertakings that are substantially to those contemplated in this Agreement; and
9.1.7 unless expressly agreed by VAST Networks, ensure that any Vouchers provided to Subscribers prominently displays the phrase "powered by VAST Networks".
Representations and Warranties
10.1 You undertake, represent and warrant to VAST Networks that:
10.1.1 you have the requisite authority to enter into this Agreement and perform your obligations under this Agreement;
10.1.2 you are free and able to grant the rights and perform the obligations undertaken by you in this Agreement;
10.1.3 you have obtained all necessary Approvals required for you to enter into this Agreement and to perform your obligations under this Agreement
10.1.4 you will not use the VAST Networks Materials or VAST Networks Infrastructure or any other facilities or resources made available by or on behalf VAST Networks for any purpose other than to the extent strictly necessary for the purposes of this Agreement;
10.1.5 you will not intentionally or negligently introduce, or permit the introduction of, any Destructive Code into the VAST Network Materials or the VAST Networks Infrastructure or any part of the foregoing, and you will implement and maintain adequate procedures, policies, controls, systems and technology to prevent the introduction of any Destructive Code into the VAST Network Materials or the VAST Networks Infrastructure, or any part of the foregoing;
10.1.6 you will implement and maintain adequate procedures, policies, controls, systems, methodologies, and technology to ensure that your Personnel
10.1.7 do not use the VAST Network Materials or the VAST Network Infrastructure or any other facilities or resources made available by or on behalf VAST Networks for any purpose other than to the extent strictly necessary for the purposes contemplated in the Agreement;
10.1.8 you will not infringe or misappropriate the rights, including the Intellectual Property Rights, of any person or entity; and you will not cause VAST Networks or the Personnel of VAST Networks to infringe or misappropriate the rights, including the Intellectual Property Rights, of any person or entity;
10.1.9 you will perform all of your obligations under the Agreement in a timely and professional manner in accordance with the highest industry standards; and
10.1.10 your Personnel are suitably qualified, trained and experienced to perform your obligations in terms of the Agreement and will exercise professionalism and due care, skill and diligence in the performance of any of your obligations in the Agreement;
10.1.11 you will comply with all relevant Laws and regulatory requirements, including applicable Data Protection Laws; and
10.1.12 you are lawfully entitled to provide and make available the Vouchers to third parties (including, without limitation, Subscribers) on the terms and conditions in the Agreement.
11.1 In addition to, and without limiting or derogating from, the other obligations that you may have in terms of the Agreement, you agree that you will use your best endeavours to promote the sale of Vouchers, including, without limitation:
11.1.1 developing and displaying in-store merchandising and branded point of sale material relating to the Vouchers; and
11.1.2 ensuring that all of your sales personnel and representatives are familiar with the terms and conditions of the Vouchers.
12.1 Advance Amount Payments
12.1.1 VAST Networks may issue Vouchers to you by means of the VMS, subject to the further provisions of the Agreement.
12.1.2 You will adhere to the procedure set out in this clause 12.1.2 where you wish to purchase Vouchers from VAST Networks:
184.108.40.206 you may make a payment to VAST Networks in order to acquire a corresponding credit on VMS (the "Advance Amount");
220.127.116.11 you will, via VMS, indicate the quantum of the Advance Amount and VAST Networks shall issue an invoice which reflects the Advance Amount payable by you within 30 days (the "Advance Amount Invoice");
18.104.22.168 you understand and agree that you are paying the Advance Amount in consideration for future services from VAST Networks, which future services shall be limited to the future issuance of Vouchers by VAST Networks to you;
22.214.171.124 following receipt of confirmation that you have paid the Advance Amount Invoice in full, VAST Networks shall indicate a corresponding credit balance for you on VMS (the "VMS Credit Balance");
126.96.36.199 you may, via VMS, place an order with VAST Networks for a number of Vouchers (the "Order");
188.8.131.52 following receipt of a valid Order, provided that the value of your Order does not exceed your VMS Credit Balance and subject to VAST Network's further rights under the Agreement, VAST Networks shall review your Order and may issue you with a list of the ordered Voucher(s) (a "Voucher List"). The Voucher List will include a Voucher Code for each Voucher ordered by you;
184.108.40.206 the Voucher List shall be delivered by VAST Networks either via File Transfer Protocol ("FTP") to a FTP server designated by you for this purpose, or encrypted email to you, in the form of a batch file. The batch files will be encrypted using the Pretty Good Privacy ("PGP") encryption standard.
220.127.116.11 the VMS shall automatically notify VAST Networks that the delivery of the Voucher List is complete, which notification shall be deemed to be prima facie evidence of a successful delivery; and
18.104.22.168 all risk in and to the Voucher List comprising the Vouchers shall pass to you upon the generation of delivery notification by the VMS (as contemplated in clause 22.214.171.124).
12.2 Voucher Redemption
12.2.1 You must communicate to any person to whom you provide a Voucher (including, without limitation, Subscribers) that they will need to follow the process detailed in clause
12.2.2 below in order to receive and activate their Voucher and before it can be Redeemed. You agree that you will use your best endeavours to ensure that you, or any person who provides a Voucher to a Subscribers, communicates the processed detailed in clause
12.2.2 below to each Subscriber to whom you provide a Voucher.
12.2.2 The Voucher receipt and Redemption process will be as follows:
126.96.36.199 you will provide a person with a Voucher;
188.8.131.52 you will manage the issuing of Vouchers to Subscribers in accordance with the instructions and directions of VAST Networks;
184.108.40.206 you are required to procure, at your sole expense, all Infrastructure, facilities, software, equipment and services as may be required in order for you to use the VMS, and you must fully test your deployment and implementation of the VMS to ensure that the issuing of Vouchers takes place seamlessly and without any errors;
220.127.116.11 the Voucher must be Redeemed by the Subscriber on the WiFi Network. For purposes of clarity, a Voucher is deemed to be Redeemed when the applicable numeric Voucher pin is captured by a Subscriber on the VAST Redemption Platform;
18.104.22.168 a Voucher must be Redeemed by the Subscriber within three years from the date that the Subscriber acquires the Voucher, failing which the Voucher and all associated codes shall expire;
22.214.171.124 a Redeemed Voucher shall allow the Subscriber access to the WiFi Network for the period indicated on VMS in relation to that Voucher at the time you place an Order (the "Validity Period"), which Validity Period (including the Voucher denominations to which the Validity Period is applicable) shall be determined by VAST Networks in its sole discretion from time to time, or until the data allocated to that Voucher (as indicated on the face of that Voucher) is utilised, whichever is the first to occur;
126.96.36.199 all persons that Redeem any Vouchers must:
188.8.131.52.1 follow VAST Networks registration procedures and register on the Wi-Fi Network when redeeming a Voucher; and
184.108.40.206.2 agree to all terms and conditions and privacy policies applicable to the use of the Wi-Fi Network.
12.3 You are solely responsible for ensuring that your activities, including, without limitation, the provision of the Vouchers to Subscribers, comply with applicable Laws (including the Consumer Protection Act, No 68 of 2008).
12.4 To the maximum extent permitted by Law, and without limiting or derogating from the further provisions of this Agreement, you agree that you will bear the risk of any Loss or Claims arising from the incorrect provision of a Voucher code by you or your Personnel to a person (including, without limitation, a Subscriber).
13.1 Each invoice issued in terms of this Agreement by VAST Networks, including Advance Amount Invoices, shall be payable within 30 days of the date of such invoice to a South African bank account nominated by VAST Networks from time to time.
13.2 Where any amount payable by you to VAST Networks under this Agreement is not paid on the due date, it will bear interest at the rate of interest from time to time published by the South African Reserve Bank as the prime lending rate calculated on a daily basis from and including the due date for payment until the amount in default and all interest on it is paid in full by you.
13.3 Notwithstanding any other provision in this Agreement, VAST Networks may, in its sole and absolute discretion, and without limitation or derogating from VAST Networks' further rights under this Agreement, reject any Order submitted by you in the event that you have failed to pay any amount due under this Agreement.
13.4 You may not:
13.4.1 withhold payment (or authorisation) of any invoice which details or relates to any amounts which are payable to VAST Networks; and
13.4.2 deduct, withhold or set-off from any payment any sums owed by you to VAST Networks.
13.5 All taxes, duties, levies, insurance or any other statutorily imposed charges, to the extent that these are applicable, will be payable by you.
14.1 Subject to the further provisions of this clause 14, all rights, title, ownership and interest (including Intellectual Property Rights) in and to any Materials, which belong to any of the Parties, and/or their vendors and/or licensors (as the case may be) shall at all times remain the sole property of such Party, and/or their vendors and/or licensors.
14.2 You will not acquire any rights, title, ownership or interests (including Intellectual Property Rights) in or to the VAST Networks Materials and, without derogating from its further obligations in the Agreement, shall at all times only use the VAST Networks Materials to the extent strictly necessary for the purposes of performing your obligations under the Agreement and in accordance with such terms and conditions as VAST Networks may prescribe to you, or inform you of, from time to time.
14.3 Any and all proceedings relating to any of the Intellectual Property Rights of VAST Networks shall be exclusively handled by VAST Networks and it shall solely determine the course of actions in respect of any opposition, infringement or alleged infringement thereof, unfair competition or any other claim or counterclaim brought or threatened in respect of the use or registration of any of the Intellectual Property Rights of VAST Networks.
14.4 You agree that you will not intentionally take any action to challenge or interfere with, directly or indirectly, the validity of the Intellectual Property Rights in or to the VAST Networks Materials, or with VAST Networks' use, ownership, or registration of such Intellectual Property Rights.
14.5 Any and all proceedings relating to any of the Intellectual Property Rights of VAST Networks or the VAST Networks Materials shall be exclusively handled by VAST Networks and it shall solely determine the course of actions in respect of any opposition, infringement or alleged infringement thereof, unfair competition or any other claim or counterclaim brought or threatened in respect of the use or registration of any of the Intellectual Property Rights of VAST Networks or the VAST Networks Materials.
14.6 For the avoidance of doubt, the provisions of this clause 14 shall survive the expiry or termination of the Agreement of whatever reason.
Limitation of Liability
15.1 To the fullest extent permitted by law and subject to clause 15.2, 15.3 and 15.4, the cumulative maximum liability of VAST Networks to you, whether in contract or delict (including negligence) for all breaches of this Agreement and all other events, acts, Claims, omissions and causes of action of whatever nature and however arising, relating to or arising directly or indirectly from this Agreement, shall be limited in the aggregate to R1 000 000 (one million Rand).
15.2 Subject to clause 15.3, neither Party shall be liable to the other Party for incidental, special, indirect, or consequential loss or damage (including but not limited to loss of data, profit, reputation, goodwill, business or anticipated savings) howsoever arising, except with respect to loss or damage arising in terms of clause 18 (Confidentiality) or clause 19 (Data Protection).
15.3 Without limiting or derogating from VAST Networks' rights under this Agreement, but to the maximum extent permitted by law, nothing in this Agreement shall limit or exclude your liability in relation to any non-payment of the Voucher Fees.
15.4 Nothing in this Agreement shall limit or exclude the liability of either Party for any matter to the extent to which such liability cannot be lawfully excluded or limited.
16.1 To the fullest extent permitted by law, you irrevocably agree to indemnify and hold harmless VAST Networks, its Affiliates and both their respective Personnel (each an "Indemnified Party") and to keep the Indemnified Party held harmless, from and against all Claims, and Losses arising out of or in connection with any Claims, made or instituted against the Indemnified Party by any third party (including, without limitation, for the infringement or misappropriation of any Intellectual Property Rights), where such Claim arise in relation to, or as a result of:
16.1.1 any use of the VAST Networks Materials by you in a manner not authorised by this Agreement or otherwise in breach of this Agreement;
16.1.2 use of Materials provided, disclosed or made available by or on behalf of you or your Personnel; and/or
16.1.3 any breach of, non-fulfilment, or non-compliance with any of the obligations, representations, warranties or undertakings contained in clause 10 (Representation and Warranties),14 (Intellectual Property) and/or 19 (Data Protection).
16.2 For the avoidance of doubt, the provisions of this clause 16 shall survive the expiry or termination of this Agreement of whatever reason.
17.1 If a
party (the "Defaulting Party") commits a material breach of this Agreement and fails to rectify such breach within 14 (fourteen) calendar days, or such shorter period as may be reasonable in the circumstances, (the "Remedy Period") after the receipt of a notice in writing from the other Party (the "Aggrieved Party") requiring such breach to be remedied within the Remedy Period, the Aggrieved Party shall have the right to terminate this Agreement on written notice to the Defaulting Party at any time within 14 (fourteen) days after expiry of the Remedy Period.
17.2 Without limiting or derogating from its further rights under the Agreement, VAST Networks shall have the right to terminate the Agreement with immediate effect on a written notice to you upon the occurrence of any of the following events:
17.2.1 you purchase any Vouchers from a third party for the purposes of selling or otherwise providing the Vouchers to any other person; or
17.2.2 you, if you are a juristic entity, undergo a change in Control.
17.3 A Party shall have the right to terminate the Agreement with immediate effect on a written notice to the other Party upon the occurrence of any of the following events:
17.3.1 the other Party commits an act of insolvency as defined in the Insolvency Act, No. 24 of 1936, or, being a corporate body, commits an act which would be such an act of insolvency if committed by a natural person;
17.3.2 the other Party becomes insolvent or is declared bankrupt or takes steps to place itself or is placed in provisional or final liquidation or under provisional or final receivership or judicial management or administration, or enters into or attempts to enter into any scheme similar to or in the nature of a composition, compromise or scheme of arrangement, release or novation with any or all of its creditors;
17.3.3 when such other Party assigns the whole or substantial part of its business undertaking or assets to a third party by agreement, order of court or otherwise, or ceases to carry on its business;
17.3.4 when such other Party winds up either compulsorily or voluntarily or merges into another business;
17.3.5 the other Party, being a corporate entity, takes steps to de-register itself or is de-registered;
17.3.6 it becomes aware (i) that the other Party is Financially Distressed; or (ii) that the other Party is contemplating, considering, discusses or agrees to any Business Rescue of that Party or proposes to do any of these things; or (iii) that any person is proposing to take, or taking, any step to apply to court or actually applies to court for the Business Rescue of the other Party; or
17.3.7 the other Party ceases trading or conducting business in the ordinary course thereof.
17.4 From expiry or termination of this Agreement for any reason, the Parties will provide to each other such co-operation, information or assistance that may be reasonably required to facilitate the orderly termination of the activities under this Agreement, including such co-operation, information and assistance as may be reasonably required to reconcile outstanding and unredeemed Vouchers, and the return of Confidential Information of each Party.
17.5 The expiration or termination of the Agreement shall be without prejudice to any other rights or remedies that the Parties may be entitled to under this Agreement or at Law, and shall not affect any accrued rights or liabilities of the Parties, nor the coming into or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
17.6 The expiration or termination of the Agreement shall not affect such of the provisions of the Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this. For the avoidance of doubt, these provision shall include, but are not limited to, this clause 17.6 as well as clauses
18.1 The provisions of this clause 18 are subject to the provisions of clause 19 (Data Protection).
18.2 Neither Party shall publish, reproduce, circulate or otherwise distribute or disclose any oral, written, graphic or machine readable information provided by the other Party, including, but not limited to, information which relates to forecasts, sales, results, status of third party relationships, the Agreement, prices, general business, commercial, scientific, marketing financial or technical information, trade secrets, marketing strategies, designs, current or prospective customers, any other terms, material or communication related to the Agreement or any material or information furnished to it by the other Party which is marked "confidential" or otherwise marked to indicate its proprietary nature or which under the circumstances surrounding disclosure, the receiving Party ought to reasonably understand such information to be confidential (collectively "Confidential Information"). For purposes of clarity (i) the obligations of each Party in terms of this clause shall survive the termination of the Agreement for any reason; and (ii) the VAST Networks Materials shall be deemed to be the Confidential Information of VAST Networks.
18.3 The Parties each acknowledge that the unauthorised disclosure of the other Party's confidential Information may give rise to substantial damage to such Party and constitutes a material breach of this Agreement.
18.4 A Party's Confidential Information shall only be used by the other Party in its performance hereunder, and it shall not be disclosed by such other Party, except to those employees or agents of such other Party who:
18.4.1 have a need to know (and then only to the extent that each such person has a need to know);
18.4.2 are aware that the Confidential Information should be kept confidential;
18.4.3 are aware of the disclosing Party's undertaking in relation to such information in terms of this Agreement; and
18.4.4 have been directed to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential or signed appropriate confidentiality and non-disclosure agreements.
18.5 The Parties agree that they shall each take all commercially reasonable measures to protect the confidentiality of, and avoid disclosure or use of, Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the degree of care that the receiving Party utilises to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care and the standards required by applicable Laws. A Party that receives Confidential Information will promptly notify the disclosing Party in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the disclosing Party's Confidential Information which may come to the receiving Party's attention.
18.6 Notwithstanding the foregoing, a Party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement to such Party's professional advisors in connection with tax audits, legal advice or related matters, in all cases provided that such persons are subject to appropriate confidentiality undertakings.
18.7 Subject to clause 19, the obligations of a Party in this clause 18 shall not apply to any Confidential Information to the extent to which: (i) it is or becomes available to the public through no breach of this Agreement or wrongful act of that Party; (ii) it is already in the possession of that Party and not subject to any agreement of confidence; (iii) it is received by that Party from a third party without restriction for the benefit of such Party and without breach of this Agreement; or (iv) it is independently developed by the Party without reference to the other Party's Confidential Information and by persons who do not have access to such other Party's Confidential Information.
18.8 A Party may disclose the other Party's Confidential Information pursuant to a requirement of a duly empowered government agency or a court of competent jurisdiction or otherwise as may be required by law after due notice and a reasonable opportunity to intervene is given to the Party whose Confidential Information is subject to disclosure.
18.9 Notwithstanding whether the Party receiving the Confidential Information uses the Confidential Information in accordance with this Agreement or not (including modifying or amending the Confidential Information), all Confidential Information shall remain the property of the Party disclosing the Confidential Information and its disclosure shall not confer on the receiving party any rights of the disclosing party (or its agents), including Intellectual Property Rights, over the Confidential Information whatsoever beyond those contained in this Agreement.
18.10 Upon termination or expiration of this Agreement, a Party shall return, destroy or delete all of the other Party's Confidential Information and so certify in writing at such other Party's direction.
18.11 Without prejudice to any other rights or remedies of the party disclosing the Confidential Information, the party receiving the Confidential Information acknowledges and agrees that damages would not be an adequate remedy for any breach by it of the provisions of this clause 18 and that the disclosing party shall be entitled to seek the remedies of specific performance and other equitable relief for any threatened or actual breach of any such provision by the receiving party or its employees or agents and no proof of special damages shall be necessary for the enforcement of the rights under this clause 18.
19.1 You agree that you will comply, and shall ensure that its Personnel shall comply, with all the applicable Data Protection Legislation. Without limiting the generality of the aforegoing, you warrant, represent and undertake that any collection, storage, disclosure, transfer or use of the VAST Networks Data and/or any Personal Information will comply with all applicable national, provincial, municipal or other laws governing the collection, processing, storage or use of Personal Information.
19.2 In addition to, and without prejudice to, or limiting the generality of your further obligations in this Agreement, you and each of your Affiliates shall take all reasonable and appropriate technical and organisational precautions and measures necessary to secure the integrity and confidentiality of the VAST Networks Data and any Personal Information, and to prevent any (i) loss of, damage to, or unauthorised destruction of the VAST Networks Data and any Personal Information; or (ii) unauthorised or unlawful access to or Processing of the VAST Networks Data and any Personal Information.
19.3 The measures referred to in clause 19.2 above that you are required to take shall include:
19.3.1 identifying, and conducting your own regular assessments to identify all reasonably foreseeable internal and external risks to the Personal Information in your possession or control ("Data Risk Assessments");
19.3.2 establishing and maintaining appropriate safeguards against the risks identified and regularly verifying that such safeguards are effectively implemented;
19.3.3 updating and aligning your safeguards to address the risks and deficiencies identified during and/or pursuant to Data Risk Assessments;
19.3.4 regularly verifying that the safeguards are effectively implemented and that the updated and aligned safeguards are effectively implemented;
19.3.5 ensuring that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
19.3.6 providing VAST Networks with copies and details of the results of all Data Risk Assessments within five (5) Business Days after they are requested by VAST Networks; and
19.3.7 having due regard to applicable laws (including Data Protection Legislation), Best Industry Practice, and generally accepted information security practices and procedures which may apply to you or which are required in terms of specific industry or professional laws, rules and regulations.
19.4 You and each of your Affiliates must:
19.4.1 provide VAST Networks with all assistance and co-operation requested by VAST Networks in relation to any requests or complaints received from any person or entity, including requests for the deletion, updating or correction of Personal Information; and
19.4.2 immediately notify VAST Networks where there are reasonable grounds to believe that the VAST Networks Data has been accessed or acquired by an unauthorised person. In such event you must immediately:
220.127.116.11 comply with all instructions and directions given by VAST Networks;
18.104.22.168 take all measures necessary to determine the scope of the compromise and to restore the integrity of the VAST Networks infrastructure,
22.214.171.124 provide all information which may be requested by VAST Networks, co-operate fully with VAST Networks in relation to any notifications which may be made by VAST Networks to any regulator, data subjects (as defined in any applicable Data Protection Legislation) or any other person; and
19.4.3 co-operate fully with VAST Networks in relation to any investigations that VAST Networks may initiate or which may be initiated by an investigator or other authority.
19.5 You hereby indemnify VAST Networks and hold VAST Networks harmless against any and all Claims or Loss arising from a breach by you, an Affiliate of yours or any of your Personnel of clause 18 of this Agreement, this clause 19 and/or arising from the unauthorised Processing of, access to, use and/or disclosure of any Personal Information by you, your sub-contractors, sub-processors and/or any of your or their Personnel.
20.1 Neither of the Parties shall be liable for a failure to perform any of its obligations, save for its payment obligations, under this Agreement insofar as it proves:
20.1.1 that the failure was due to a Force Majeure beyond its control;
20.1.2 that it could not reasonably be expected to have taken the Force Majeure and its effects upon the Party’s ability to perform into account at the time of the conclusion of this Agreement; and
20.1.3 that it could not reasonably have avoided or overcome the Force Majeure or at least its effects.
20.2 The Party affected by the Force Majeure shall, within 1 (one) day or as soon as possible notify the other Party in writing of the estimated extent and duration of such inability to perform its obligations.
20.3 On cessation of the circumstances resulting in the Force Majeure, the Party affected by such Force Majeure shall, within 1 (one) day or as soon as possible notify the other of such cessation.
20.4 If as a result of the Force Majeure, the performance by either Party of such Party's obligations under this Agreement is only partially affected, such Party shall nevertheless remain liable for the performance of those obligations not affected by the Force Majeure.
20.5 If the Force Majeure continues for a period of 6 (six) months or less from the date of notification thereof contemplated in clause 20.3, any and all obligations outstanding shall be fulfilled by the Party who has been unable to perform due to the Force Majeure, save to the extent that such fulfilment is no longer practically possible or is not required by the other Party.
20.6 If the Force Majeure continues for more than 6 (six) months from the date of any notification thereof pursuant to clause 20.3 and:
20.6.1 notice of cessation as contemplated in clause 20.4 has not been issued; and
20.6.2 such Force Majuere prevents the affected Party from performing its obligations in whole or in part during that period,
the other Party shall be entitled (but not obliged) to terminate this Agreement by giving no less than 30 (thirty) days written notice to the affected Party after the expiry of such 6 (six) month period to that effect, provided that such notice shall be deemed not to have been given if a notice of cessation issued in terms of clause 20.4 is received or deemed to be received by the unaffected Party prior to the expiry of such 30 (thirty) day notice period.
20.7 For the purposes of this clause 20 “Force Majeure” does not include lack of authorisations, licences, permits or approvals necessary for the performance by you under this Agreement.
21.1.1 Any written notice (including documents in legal proceedings i.e. your domicilia citandi et executandi) in connection with this Agreement may be addressed:
126.96.36.199 in the case of VAST Networks to:
Vast Networks, Ground Floor
Silverstream Office Park
10 Muswell Road
and marked for the attention of Andre Joubert; and
188.8.131.52 in your case, to the address you provided on the Vast Voucher Channel Partner Application;
21.1.2 The notice shall be deemed to have been duly given:
184.108.40.206 5 (five) Business Days after posting 14 (fourteen) Business Days if the address is not in the Republic of South Africa), if posted by registered post (airmail, if available) to the Party's address in terms of clause 21.1.1;
220.127.116.11 on delivery, if delivered to the Party's physical address in terms of either sub-clause 21.1.1 before 17h00 on a Business Day, or if delivered on a Business Day but after 17h00 on that Business Day or on any day other than a Business Day, it will be deemed to have been given at 08h30 on the first Business Day after it was delivered; and
18.104.22.168 on despatch, if sent to the Party's then fax number or e-mail address before 17h00 on a Business Day or if sent on a Business Day but after 17h00 on that Business Day, or on any day other than a Business Day, it will be deemed to have been given at 08h30 on the first Business Day after it was sent,
unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
21.1.3 A Party may change that Party's address or fax number or e-mail address for this purpose by notice in writing to the other Party, such change to be effective only on and with effect from the 7th (seventh) Business Day after the giving of such notice.
21.1.4 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to that Party notwithstanding that it was not sent to or delivered at that Party's chosen address in sub-clause 21.1.1.
21.2 entire contract
This Agreement contains all the provisions agreed on by the Parties with regard to the subject matter of the Agreement and supersedes and novates in its entirety any previous understandings or agreements between the Parties in respect thereof, and the Parties waive the right to rely on any alleged provision not expressly contained in this Agreement.
21.3 Cession and Delegation
21.3.1 You may not, without the prior written consent of VAST Networks, cede any or all of your rights and/or delegate any or all of your obligations under this Agreement.
21.3.2 VAST Networks may cede any or all of its rights and/or delegate any or all of its obligations under this Agreement to any person and without your consent, provided VAST Networks shall seek your consent in instances where such a cession and/or delegation would be to your detriment.
21.4 applicable Law
This Agreement is to be governed, interpreted and implemented in accordance with the Laws of the Republic of South Africa.
The grant of any indulgence, extension of time or relaxation of any provision by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor.
21.6 variation, cancellation and waiver
No contract varying, adding to, deleting from or cancelling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.
21.7 no representations
A Party may not rely on any representation which allegedly induced that Party to enter into this Agreement, unless the representation is recorded in this Agreement.
21.8 no stipulation for the benefit of a Third Person
Save as is expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of a third person (i.e. a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.
21.9 jurisdiction of South African courts
Without limiting or derogating from either Parties' rights under applicable Law, the Parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg for any proceedings arising out of or in connection with this Agreement.
21.10.1 Each Party shall bear that Party's own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing and implementation of this Agreement.
21.10.2 Any costs, including all legal costs on an attorney and own client basis and VAT, incurred by a Party arising out of or in connection with a breach by another Party shall be borne by the Party in breach.
21.11 signature in counterparts
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and which together shall constitute one and the same Agreement.
21.12 good faith
The Parties shall at all times act in good faith towards each other and shall not bring any of the other Parties into disrepute.
Each of the Parties undertakes at all times to do all such things, perform all such acts and take all such steps, and to procure the doing of all such things, within its power and control, as may be open to it and necessary for and incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
22. Application of the Consumer Protection Act
22.1 A transaction (as defined in the Consumer Protection Act) between you and VAST Networks may or may not fall under the provisions of the CPA depending upon whether certain values set out in clause
22.2 in respect of you (“Threshold Values”) are below a certain value at the time the transaction is entered into.
22.3 The Threshold Values are your asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by publication in the Government Gazette from time to time.
22.4 VAST Networks’ duties towards you may vary depending upon whether the transaction in question is subject to the Consumer Protection Act, and VAST will act upon the information given to it by you in this regard. Consequently:
22.4.1 you warrant that any statement made to VAST Networks in respect of your Threshold Values is accurate.
22.4.2 if you claim that your asset value and/or annual turnover is below the Threshold Values, or otherwise that the Consumer Protection Act applies to the transaction in question, VAST Networks may at its insistence require you to provide it with financial statements as proof thereof.
22.5 If you misstate the Threshold Values in such a way that VAST Networks considers for a period that the transaction is subject to the Consumer Protection Act when it is not, all provisions of this Agreement that do not apply to transactions subject to the Consumer Protection Act shall retroactively apply to the transaction in question, and you will be liable for any damage sustained by VAST Networks resulting from such misstatement.