Terms of Engagement
1.1 an expression which denotes any gender includes the other gender; a natural person includes an artificial or juristic person and vice versa; the singular includes the plural and vice versa
1.2 the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
1.2.1 “this Agreement” this document together with all of its schedules, as amended from time to time;
1.2.2 “Business Day” any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.2.3 “Commencement Date” in respect of each Schedule, the commencement date set out therein,or, if there is no commencement date set out therein, the date of signature thereof by the Party which signs it last
1.2.4 “Client” means <<Enter Full Name of client>>;
1.2.5 “Client’s Premises” the premises of the Client as set out in the schedules attached hereto as Annexure(s);
1.2.6 “Data” the personal information of the Client or any partner, director or other officer of the Client as defined in the ECT and/or RICA;
1.2.7 “Epicor” Epicor (Epicor Software (UK) Ltd, 1 The Arena, Downshire way, Bracknell, Berks RG12 1PU, England) is in the business of manufacturing, producing, distributing and licensing the use of certain computer software programs and related documentation for financial, accounting, enterprise resource planning and other applications;
1.2.10 “Intellectual Property” intellectual property of all kinds and descriptions, together with all rights vesting therein, whether statutory or at common law, including, without limitation, all Proprietary Information, all trade secrets, know- how, copyrighted works, trademarks (whether registered or not), designs (whether registered or not), inventions (whether patented or not), software programs, procedures, methodologies, data and flow charts and all statutory registrations and applications therefor and all improvements, developments and customizations of the aforegoing as at the Signature Date;
1.2.11 Parties” New ERA Solutions and the Client and “Party” shall mean either one of them as the context may indicate;
1.2.12 “Prime Rate” a rate of interest per annum which is equal to the published minimum lending rate of interest per annum, compounded monthly in arrears and calculated daily, charged by New ERA Solution’s principal bankers on the secured overdrawn current accounts of its most favoured corporate clients in the private sector from time to time. In the event of a dispute as to the rate so payable, the rate shall be certified by any manager or assistant manager of any branch of the said bank, whose authority and designation it shall not be necessary to prove and whose decision shall be final and binding on the Parties
1.2.13 “Personal Information” shall have the meaning ascribed in terms of POPI;
1.2.14 “POPI” shall mean the Protection of Personal Information Act No. 4 of 2013;
1.2.15 “Proprietary Information” means any and all know how, trade secrets and data/information of a proprietary and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential;
1.2.16 “Schedule” the schedule to be compiled by New ERA Solutions and signed by the Client, which contains the specific details of the relevant Service, and the additional terms and conditions applicable thereto, which, as and when they are executed, shall be attached hereto and consecutively numbered as Annexure A, B, C etc.;
1.2.17 “Services” the services to be provided by New ERA Solutions to the Client in terms of this Agreement and as more fully described in the Schedule(s) as attached as Annexures to this agreement;
1.2.18 “Signature Date” the date of signature of this Agreement by the signatory which signs it last in time;
1.2.19 “Site” the site/s at which the Services are to be performed by New ERA Solutions, which Site may be the Client’s Premises or a venue other than the Client’s Premises, as provided for in the schedule(s) attached hereto as Annexures;
1.2.20 “SLA” a Service Level Agreement attached hereto as an Annexure and in addition such other SLA’s that may be attached to the relevant Schedule and which shall contain details of the qualitative and quantitative levels of service to be provided by New ERA Solutions to the Client in connection with the Service;
1.2.21 “VAT” value added tax levied in terms of the Value Added Tax Act, 89 of 1991, as amended.
1.3 any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;
1.4 if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
1.5 where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day and if the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day and any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be;
1.6 the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s; and
1.7 the terms of this Agreement having been negotiated, the contra proferentem rule shall not be applied in the interpretation of this Agreement.
2.1 New ERA Solutions is the supplier of and has expertise in providing the Services.
2.2 The Client requires New ERA Solutions to, and New ERA Solutions is willing to provide the Services to the Client in accordance with the terms and conditions set out in this Agreement and attached schedules.
3.1 This Agreement shall commence on the Signature Date and shall continue in force until the rights and obligations of the Parties under all Schedules executed hereunder will have finally terminated.
3.2 Each Schedule shall commence on the Commencement Date and shall, subject to the other provisions of this Agreement, endure for the duration set out in the Schedule and, to the extent that no duration is specified in the Schedule, it shall endure for an initial period of 1 (One) year (“Initial Period”), where after it shall automatically renew for successive 1 (One) year periods (“Renewal Periods”).
3.3 Subject to any provisions to the contrary which may be contained in a Schedule, notwithstanding the provisions of clause 3.2, either Party may terminate a Schedule by furnishing the other with not less than 3 (Three) months prior written notice of such intention, provided that such termination shall only be effective upon expiry of the Initial Period or the then current Renewal Period.