Terms of Engagement
New Era Solutions renders the Services to the Client on the basis set out in these Terms of Engagement. The Client agrees that these Terms of Engagement bind the Client. The Client Representative warrants that he or she is duly authorised to represent the Client and bind it to these Terms of Engagement.
In the event that the Client Representative lacks sufficient authority to bind the Client to these Terms of Engagement, the Client Representative agrees that he or she shall be jointly and severally liable with the Client for the Client’s performance in terms of these Terms of Engagement.
Interpreting These Terms
These Terms of Engagement contain a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary contains many of these words and phrases (others are set out in these Terms of Engagement’ body and are designated by terms in quotation marks).
Duration and Termination
- the Services described in each Proposal in effect at the time of such notice have been fully rendered and the associated fees paid in full; or
- the remaining Proposal/s in effect at the time of such notice have been terminated in accordance with these Terms of Engagement‘s provisions and the Client has paid any fees due to New Era Solutions as at the date of the notice in full.
Effect of Termination
In the event these Terms of Engagement are terminated for any reason whatsoever, the following clauses and their subsidiary clauses shall survive termination:
- Prohibition on Interference and Solicitation;
- Governing Law and Jurisdiction; and
- Domicilium and Notices.
Should there be additional or new Services required by the Client, the Project Definition Document may be amended or wholly replaced by the Parties, provided that each amended or replacement version of the Project Definition Document shall be effected in writing and be signed by both Parties‘ representatives.
Project Definition Document amendments or replacements may, at New Era Solutions‘ discretion, require consequential changes to New Era Solutions‘ fees payable and delivery timeframes for the Services described in the amended or replacement Project Definition Document. New Era Solutions shall notify the Client of any such changes in writing and Services based on such amended or replacement Project Definition Document shall commence on acceptance of such changes by the Client.
Each version of the Project Definition Document shall become binding on the Parties upon signature of each version of the Project Definition Document by both Parties and shall be governed by the terms of the main body of these Terms of Engagement.
The Project Definition Document, as amended and signed by the Parties‘ representatives from time to time, shall specify the Services to be rendered by New Era Solutions pursuant to these Terms of Engagement, as well as any other responsibilities of the Parties.
To the extent a conflict or inconsistency arises between the Project Definition Document, as amended from time to time, and the main body of these Terms of Engagement in respect of the Services‘ description, the Project Definition Document‘s provisions shall prevail to the extent of the inconsistency.
The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in these Terms of Engagement shall be construed as obliging New Era Solutions to render all such Services as a single, indivisible service.
Certain of the Services set out in the Project Definition Document and which are to be provided by New Era Solutions to the Client in terms of these Terms of Engagement may be Outsourced Services provided that appointing, managing and/or terminating 3rd Party service providers to render Outsourced Services shall not be materially detrimental to New Era Solutions’s performance of its obligations and/or compromise the service levels agreed to in these Terms of Engagement.
New Era Solutions may, in its discretion, at any time and from time to time –
- sub-contract any of the Services to a new 3rd Party service provider as Outsourced Services and/or;
- change the identity of any 3rd Party service provider rendering Outsourced Services.
New Era Solutions hereby undertakes to ensure that the standard of the Services it shall render to the Client in terms of these Terms of Engagement shall be in accordance with the Project Definition Document and Service Level Agreement or, in the absence of the Project Definition Document or Service Level Agreement, in accordance with relevant industry standards.
The Client shall, as consideration for the Services to be rendered by New Era Solutions in terms of these Terms of Engagement and described in a Proposal and Project Definition Document, effect payment to New Era Solutions of its fees which are set out in the Proposal.
New Era Solutions may require deposits, payable in advance, for the Services and such deposits shall be reflected in the Proposal. New Era Solutions shall not be required to render Services subject to deposits until such time as the deposits are paid in full.
The Client shall pay the fees, to New Era Solutions, in the amounts and on the terms stated in New Era Solutions ‘s interim and final invoices issued to the Client from time to time. In the event that New Era Solutions‘ invoices do not state New Era Solutions‘ payment terms, invoices are payable within one month of the invoice’s date.
The Client agrees to reimburse New Era Solutions for all reasonable disbursements incurred by New Era Solutions for the purposes of carrying out the Services to the Client. New Era Solutions will obtain written authorisation from the Client prior to incurring any disbursements which will be additional to the fees as set out in the Proposal.
In the event of the Client failing to timeously effect payment of any amount due to New Era Solutions in terms of these Terms of Engagement, New Era Solutions shall, furthermore, be entitled to suspend the provision of the Services in terms of these Terms of Engagement for any period in which any payment remains outstanding.
Should the Client unreasonably delay the Services for any reason whatsoever, New Era Solutions reserves the right to bill the Client for such Services. This will be based upon the resources that have been scheduled according to the agreed project plan. If the delay is more than 20 days and the Services are to be reinstated. The Client will be liable for a reinstatement fee, which may be up to 5 man days per affected resource, according to the agreed project plan.
New Era Solutions reserves the right to charge a 100% cancellation fee, which shall be specified in the Proposal where appropriate, should the Client unilaterally terminate these Terms of Engagement in a manner and/or for a reason not expressly provided for in these Terms of Engagement.
The Client agrees that it shall pay all New Era Solutions‘ expenses in recovering any amounts the Client owes New Era Solutions, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
New Era Solutions retains ownership of all Intellectual Property Rights in the Bespoke Content until such time as the Client pays New Era Solutions’s fees, in full. In the interim, New Era Solutions shall grant the Client a non-exclusive Content License in respect of the Bespoke Content.
The Client may, subject to New Era Solutions’s agreement, pay an agreed premium fee in order to obtain an exclusive Content License in respect of the Bespoke Content. Any applicable premium fees will be set out in an appropriate Project Definition Document.
New Era Solutions Content
The Client’s Content
3rd Party Content
The Parties acknowledge that the applicable 3rd Party shall retain ownership of all Intellectual Property Rights in the 3rd Party Content and is licensed on terms and conditions determined by the 3rd Party concerned.
Intellectual Property Notices
Except to the extent these Terms of Engagement may permit, neither Party may –
- remove and/or tamper with the copyright, trademark and other proprietary notices contained on or in Intellectual Property licensed to that Party and shall reproduce such notices on all copies of such Intellectual Property;
- save as provided for in these Terms of Engagement, reproduce or modify licensed Intellectual Property; or
- cause or permit any 3rd Party to discover the source code of any software constituting either Party’s Intellectual Property except where the Party concerned as permission to do so; or
- rent, lease or otherwise distribute any Intellectual Property or its direct derivatives to any 3rd Parties.
New Era Solutions and the Client hereby appoint those persons identified in the Client Details as their representatives for purposes of these Terms of Engagement. The persons so nominated by New Era Solutions and the Client shall liaise with each other in relation to all matters pertaining to the Parties‘ performance in terms of these Terms of Engagement.
Any notice or communication, which either Party may provide to the other Party other than by the agency of the respective representatives identified in the Client Details, shall be invalid and ineffectual.
The Receiving Party shall not, without the prior written consent of the Disclosing Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Disclosing Party) disclose Confidential Information to any person, and/or make use of Confidential Information for any purposes other than in connection with the rendering of the Services.
The Receiving Party may disclose Confidential Information to its officers, employees and sub contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
The Receiving Party shall inform any officer, employee or sub contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any 3rd Party (other than those persons to whom it has already been disclosed in accordance with the terms of these Terms), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this clause, by the person to whom it is disclosed.
Notwithstanding the provisions of this clause, either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding, the details of its financial performance, its financial performance forecast and the Party’s strategic planning.
Prohibition on Interference and Solicitation
- solicit with the intention of or actually persuading or causing; and/or
the other Party’s employees, representatives and/or agents, whether by furnishing those employees, representatives and/or agents with information, advice or any other means –
- to terminate employment or any other contractual relationship with the other Party; and/or
- to engage in a Restricted Activity.
The restrictions described in this clause are, notwithstanding that they have been grouped together or linked grammatically, separate and divisible. Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
New Era Solutions invests a substantial amount of money in employing and training its employees, representatives and agents to render its Services. This investment would be lost should the Client breach the terms of this Prohibition on Interference and Solicitation clause. In the event that the Client breaches the terms of this clause, the Client agrees that it will be liable to New Era Solutions for a penalty of R1 250 000 (one million, two hundred and fifty thousand Rand).
Disclaimers and Limitation of Liability
To the fullest extent permissible by law, New Era Solutions disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.
The Client agrees that neither New Era Solutions or the New Era Solutions’ Associates shall be liable for any Losses however arising and whatever the cause, in particular pursuant to and in furtherance of these Terms of Engagement.
The Client irrevocably waives any claims it may have against New Era Solutions arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or these Terms of Engagement more than 1 year after the cause of action relating to such claim or legal action arose.
The Client hereby indemnifies New Era Solutions and New Era Solutions’ Associates from any Losses, which may arise as a result of the Client‘s unlawful conduct, wilful misconduct, negligence and/or gross negligence.
Subject to any other provision of these Terms of Engagement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these Terms of Engagement and unreasonably fail to remedy such breach within (10) ten days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
- cancel these Terms of Engagement, provided the breach in question is a material breach going to the root of these Terms of Engagement; or
- claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
- in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Terms of Engagement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Terms of Engagement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Should any dispute, disagreement or claim arise between the Parties (called hereafter “the dispute”) concerning these Terms of Engagement, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other in writing to a meeting and to attempt to resolve the dispute within 5 (five) days from date of the written invitation.
If the dispute has not been resolved by such negotiation, the Parties shall submit the dispute to AFSA administered mediation, upon the terms set by the AFSA Secretariat.
Failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
Governing Law and Jurisdiction
These Terms shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the South Gauteng High Court, Johannesburg.
An Interrupted Party shall be relieved of its obligations in terms of these Terms during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
In the event that an Interruption Event exceeds –
- 20 consecutive days and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of these Terms; or
- 3 consecutive months and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate these Terms and shall only remain liable for performance under these Terms which fell due immediately prior to the Interruption Event.
Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Terms of Engagement except with the prior written consent of the other Parties.
If any clause or term of these Terms of Engagement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of these Terms of Engagement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these Terms of Engagement.
Domicilium and Notices
The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Terms of Engagement, their address and contact details set out in the Client Details in respect of each Party’s representative.
Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
- on the same day, if delivered by hand;
- on the same day of transmission if sent by telefax with receipt received confirming completion of transmission;
- on the third day after dispatch, if sent by prepaid courier.
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 it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
No indulgence, which either Party (“the Grantor”) may grant the other (“the Grantee(s)”), shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of these Terms of Engagement.
If these Terms of Engagement refer to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Agreement will also be applicable to and binding on that party’s liquidator or trustee, as the case may be.
Unless these Terms of Engagement indicate to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
Where in these Terms of Engagement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example 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.
Where these Terms of Engagement specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
The words and phrases in the Glossary bear the meanings assigned to them and related expressions bear corresponding meanings.
“AFSA” means the Arbitration Foundation of South Africa;
“Confidential Information” means any information or data of any nature, tangible or intangible, oral or in writing and in any format or medium, which by its nature or Content is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence, and which the Disclosing Party or any person acting on behalf of the Disclosing Party may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. Without limitation, the Confidential Information of the Disclosing Party shall include the following even if it is not marked as being “confidential”, “restricted” or “proprietary” (or any similar designation) –
- information relating to the Disclosing Party‘s business activities, business relationships, products, services, processes, data, and Staff, including agreements to which the Disclosing Party is a party;
- the Disclosing Party‘s technical, scientific, commercial, financial and market information, methodologies, formulae and trade secrets;
- the Disclosing Party‘s architectural information, demonstrations, plans, designs, drawings, processes, process maps, functional and technical requirements and specifications, and the data relating thereto;
- Intellectual Property that is proprietary to the Disclosing Party or that is proprietary to a 3rd Party, including but not limited to 3rd Party Products and data relating to the customers of the Disclosing Party; and
- where the Disclosing Party is the Client, demographic and other data relating to any of the Client‘s staff or potential staff, which data may be disclosed to New Era Solutions by the Client in order for New Era Solutions to render the Services to the Client in terms of these Terms.
- Confidential Information excludes information or data which –
- is lawfully in the public domain at the time of disclosure thereof to the Receiving Party; or
- subsequently becomes lawfully part of the public domain by publication or otherwise; or
- is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or
- is disclosed pursuant to a requirement or request by operation of law, regulation or court order but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed;
provided that –
- the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions; and
- the information disclosed will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party‘s possession; and
- any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in a Party‘s possession, but only if the combination itself is in the public domain or in a Party‘s possession; and
- The determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images);
“Content License” means a perpetual, irrevocable, worldwide, royalty-free and sub-licensable license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute the subject matter of the license for the limited purpose of enabling the Parties to give effect to these Terms of Engagement;
“Intellectual Property” means the expression and/or representation of an intellectual and/or creative process and includes, but not be limited to, any text, images, data, multimedia, ideas, source code, concepts, know-how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions and includes Content –
- Created, invented and/or developed by New Era Solutions at the Client‘s specific instance and request of pursuant to a Proposal (“Bespoke Content“); and
- Developed independently and/or owned by Client (“Client’s Content“); and/or
- Developed independently and/or owned by New Era Solutions (“New Era Solutions’ Content“); and/or
- Developed and owned by any 3rd Party (“3rd Party Content“);
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Losses” means all Losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
“New Era Solutions” means New Era Solutions (Pty) Ltd, a company duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 1997/008785/07;
“Outsourced Services” means Services outsourced to and rendered by 3rd Party service providers to the Client;
“Prescribed Services” means any services rendered by a Party in the ordinary course of the Party’s business from time to time;
“Restricted Activity” means –
- to be associated, engaged, interested or concerned with a Restricted 3rd Party in a Restricted Capacity;
- to render Prescribed Services to the Client in a Restricted Capacity;
- to engage with, solicit with the purpose of transacting with, or competing with a Party’s customers;
- directly or indirectly interfere with a Party’s contractual relationships with the Party’s customers, whether or not for the benefit of a Restricted 3rd Party;
- disclosing or making use of a Party’s Confidential Information in breach of these Terms of Engagement; or
- in any manner competing unlawfully with a Party;
“Restricted Capacity” means as a principal, agent, partner, representative, shareholder, consultant, advisor, employer, employee, service provider or in any other like capacity, and whether alone or jointly with or as agent for any Restricted 3rd Party, either directly or indirectly;
“Terms of Engagement” means these terms and conditions, as amended from time to time; and