XPAND IT GENERAL TERMS OF BUSINESS
Xpand IT Proprietary Limited, registration number 2012/060017/07, (“Xpand IT”) provides IT support and outsourced IT solutions to their customers. These General Terms of Business (these “Terms”) read together with the applicable service level agreement (each an “SLA”) will govern your relationship with Xpand IT as a customer and user of the Xpand IT services. Depending on your relationship with Xpand IT you may sign more than one SLA; these Terms must be read together with each SLA that you conclude and each SLA read with these Terms will be a separate and distinct contract. If there is any conflict between the terms of these Terms and those contained in any SLA, the terms and conditions of the SLA shall prevail. If the parties agree in a SLA to amend any of these Terms, such amendment shall only apply to that particular SLA, unless the amendment expressly states that such amendment will apply to these Terms and all SLAs. By signing these Terms, you agree to the following terms and conditions:
- COMMENCEMENT AND DURATION
1.1) These Terms commence on the earlier of: (i) the date of signature of these Terms by the last party; (ii) the start date of the relevant SLA; or (iii) the date on which Xpand IT first provided the Services to you (the “Effective Date”), and will continue indefinitely thereafter unless otherwise terminated according to these Terms.
1.2)Each SLA shall contain its own start date and end date.
1.3) Either party may terminate these Terms at any time upon thirty (thirty) days’ written notice if there are no current SLA’s in effect.
1.4) Termination of these Terms will not affect the validity of any SLAs, which shall continue in full force in accordance with their terms and the terms of this SLA, which shall continue to apply to such SLA, unless terminated in accordance with their specific terms.
2. SERVICES AND SERVICE LEVELS
2.1) Each SLA will set out the services to be rendered by Xpand IT to you (“Services”).
2.2) Xpand IT will provide the Services according to the service levels agreed by you and Xpand IT as detailed in the SLA.
3. CHARGES AND PAYMENTS
3.1) The charges for the Services will be set out in the SLA and will be payable, without set-off, monthly in advance unless agreed differently in the SLA.
3.2) You will be responsible for any taxes, duties or levies (including value added tax (“VAT”) and, where applicable, withholding taxes) which Xpand IT becomes obligated to pay by virtue of these Terms but excluding taxes based on the net income of Xpand IT. All charges are exclusive of VAT, withholding taxes or other taxes.
3.3) The charges payable shall automatically increase in line with the Consumer Price Index plus 2% or such other amount as may be agreed between the parties with effect from the anniversary of the Effective Date of the applicable SLA. Notwithstanding such increase Xpand IT may adjust the charges of the applicable SLA, in line with prevailing market factors such as increased labour and operating costs, from time to time upon 30 days’ prior written notice to you. Such charge adjustments shall not be implemented for periods already paid in advance by you. Should you not accept the revised charges, you may terminate the applicable SLA on 30 days’ notice to Xpand IT.
3.4) Charges for services not covered by these Terms, services performed outside the specified periods of coverage, products provided by Xpand IT outside of these Terms and travel and per day expenses not specifically included in the charges set out in the SLA will be invoiced separately at Xpand IT’s prevailing rates in effect at the time such services are provided.
3.5) All other charges are payable no later than 30 days from invoice date. Interest may be charged on any amount overdue from due date until date of payment at a rate of 2% above the prime bank overdraft rate of interest from time to time quoted by Xpand IT’s Bankers, compounded monthly in arrears.
4. EXCLUSIONS
The Services provided to you by Xpand IT will be subject to the exclusions that are set out in the applicable SLA.
5. INTELLECTUAL PROPERTY RIGHTS
5.1) “Intellectual Property Rights” means all intellectual property rights of whatsoever nature including, corporate identification, trademarks, trade names, service marks, designs, brand names, logos, slogans, emblems copyright, patents, inventions, designs, know-how, improvements, processes, get-ups, specialised technical information or expertise (whether registered or not).
5.2) Any Intellectual Property Rights created prior to the Effective Date shall vest exclusively with the party or parties who created same. These Terms do not transfer any Intellectual Property Rights to either party.
5.3) Any Intellectual Property Rights derived, produced or developed by Xpand IT expressly and exclusively for you shall vest in you, provided that Xpand IT has received the agreed charges in respect thereof.
5.4) All Intellectual Property Rights generally developed in the provision of the Services shall vest in Xpand IT.
6. UNDERTAKINGS AND WARRANTIES
6.1) Xpand IT shall ensure that: (i) the Services will be performed by appropriately experienced and suitably qualified personnel in a proper and professional manner, in accordance with good industry practice and its own established internal procedures; and (ii) it will observe all statutory health and safety requirements imposed on it in terms of applicable legislation to the Services.
6.2) Xpand IT shall pass through to you all warranties in respect of products or Services which it has in turn been given by the original equipment manufacturer or its supplier and which it is able to give.
6.3) Except as expressly stated in these Terms, Xpand IT gives no other warranties, express or implied, by operation of law or otherwise.
7. CUSTOMER’S OPERATIONAL RESPONSIBILITIES
In order to receive the full benefit of the Services from Xpand IT you will be required to perform functions as detailed in the applicable SLA.
8. RISK
All risk of loss or damage to any products supplied by Xpand IT will pass to you upon delivery thereof to yourpremises. Ownership (excluding licensed software) and the release by Xpand IT of any domain names and access shall pass to you only as and when Xpand IT has received payment in full in respect of such products and full settlement of your account.
9. TRANSFER OF EMPLOYEES AND NON-SOLICITATION
9.1) Where Xpand IT provides you with full-time onsite resources under a SLA, you agree that upon termination of the SLA and unless otherwise agreed, the employment of those resources shall be transferred to you and you will ensure that: (i) such employment contains the same or better terms and conditions of employment as their current employment contract with Xpand IT; and (ii) you will continue to comply with all applicable labour legislation in relation to such employment.
9.2) Save as set out in clauses 9.1 above, neither party shall during the term of any SLA and for 12 months thereafter without the other party’s prior written consent, employ, canvass or solicit for direct or indirect employment any employee of the other party, which shall for these purposes include such party’s agents, consultants, contractors, sub-contractors and their respective personnel.
10. BREACH, SUSPENSION, TERMINATION AND DISPUTES
9.3) If, during the period in clause 9.2, a party employs any employee of the other party then that party shall pay a placement fee of 25% of the gross annual package exclusive of bonuses and incentives (where applicable) to the other party within 14 days of such party’s employee’s acceptance of such placement.
10.1) If any party commits a material breach of these Terms or the associated SLA and fails to remedy such breach within 14 days of receipt of written notice requiring it to do so, the non-defaulting party shall be entitled, without prejudice to any other rights that it may have under these Terms or in law, to terminate the SLA to which the breach relates or claim immediate specific performance of all of the defaulting party’s obligations, in either event without prejudice to its rights to claim damages. Notwithstanding that a party terminates an SLA in accordance with this clause, these Terms will remain in effect and continue to apply to all SLAs still in effect.
10.2) If you fail to pay the charges for any SLA, Xpand IT may suspend the Services on written notice to you.
10.3) Termination or cancellation of these Terms will not affect any rights or duties arising under it with respect to Confidential Information, Intellectual Property Rights or payment of charges.
10.4) Disputes must first be attempted to be resolved between your senior representative and one appointed by Xpand IT. If after a period of 14 days, attempts to resolve the dispute are unsuccessful then either party may exercise the rights that they enjoy in law.
10.5) Xpand IT’s total liability under these Terms and any SLA shall be limited to the accumulative total of the invoices paid by you under the relevant SLA in the 3 months immediately preceding the cause of action. Save that where such claim is in respect of any goods supplied, Xpand IT’s total liability shall not exceed the cost of such goods.
10.6) Irrespective of the cause of action, in no event shall Xpand IT be liable to the other for any incidental, consequential, or any other indirect loss or damages, or for any lost profits, revenues, or data, or for any exemplary or punitive damages.
11. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
11.1) “Confidential Information” means all information or data which by its nature or content is identifiable as confidential or proprietary to the party disclosing the information (“disclosing party”) or any person acting on its behalf or which may come to the knowledge of the party receiving the information (“receiving party”) by whatsoever means and shall include the content of these Terms.
11.2) The parties acknowledge that, in performing their obligations in accordance with these Terms, they may come into possession of Confidential Information relating to each other’s business or financial or other affairs that is not in the public domain.
11.3) For the duration of any SLA and for 5 (five) years after their expiration or termination, the receiving party shall not use, reproduce, or otherwise disclose to any third party except the receiving party’s employees, subcontractors and professional advisors who reasonably require such information for the performance of their obligations under these Terms or an SLA, any Confidential Information without the disclosing party’s prior written consent. In addition, both parties agree to take commercially reasonable measures to protect all Confidential Information and to ensure that all Confidential Information is not disclosed, reproduced, distributed, or used in violation of the provisions of these Terms (which measures shall be at least equal to that which the receiving party takes to protect its own similar proprietary or confidential information, and in no event less than measures meeting a reasonable standard of care).
11.4) Notwithstanding anything to the contrary, the obligations of both parties set forth in this clause 11.4 shall not apply to any information that i) is or becomes a part of the public domain through no wrongful act of the receiving party; ii) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof directly or indirectly to the receiving party; iii) is developed by the receiving party completely independent from all of any Confidential Information; or iv) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice, if reasonably possible, such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
11.5) Within 7 days following a written request by the disclosing party, the receiving party shall return all tangible forms of the Confidential Information to the disclosing party and shall delete or remove from its records all of the Confidential Information to the extent that it is lawfully able to do so.
12. PROTECTION OF PERSONAL INFORMATION
12.1) Each party will comply with the provisions of all any applicable data protection or data privacy laws applicable in South Africa from time to time (“Data Protection Laws”), that apply in relation to any personal information processed in connection with these Terms or an SLA, and will render such assistance and co-operation as is reasonably necessary or reasonably requested by the other party, including, but not limited to, the provision of information regarding the existence, applicability and extent of application of Data Protection Laws to personal information.
12.2) You acknowledge that Xpand IT may be required to process personal information which you have provided to in order to provide products and/or services to you as set out in an SLA. Accordingly, you hereby consent to Xpand IT processing personal information provided by you for the purposes of providing the products and/or services.
12.3) Xpand IT shall ensure that it maintains the confidentiality of your personal information and that it has appropriate organisational and technical measures in place to prevent against loss of, damage to, or unauthorised destruction of personal information, and unlawful access to personal information.
13. SUB-CONTRACTORS
Xpand IT shall have the right to sub-contract such persons as it in its reasonable discretion considers necessary to enable it to fulfil its obligations. Xpand IT shall remain responsible for the performance of its obligations under these Terms by any of its sub-contractors.
14. NOTICES
14.1) The parties choose as their address for receipt of all notices (legal or otherwise) under these Terms the respective addresses contained on the signature page.
14.2) Notices given in terms of these Terms shall be delivered by hand or sent by email and shall be deemed to have been received on the date of delivery or transmission (as the case may be) if same takes place during business hours, or if not, on the next business day.
14.3) Notwithstanding anything to the contrary in these Terms, any notice or communication actually received by a party shall be adequate notice or communication.
15. FORCE MAJEURE
15.1) If a party is delayed, hindered or fails to perform all or any of its obligations under these Terms or an SLA (“affected party”) as a result of any cause beyond its reasonable control (“force majeure event ”), the affected party shall not be in breach of these Terms or the SLA or otherwise liable to the other party for any such failure or delay in the performance of such obligations and shall be relieved of those obligations to the extent that its ability to perform those obligations has been directly affected by the force majeure event. Upon cessation of the force majeure event, the affected party shall immediately resume performance of the affected obligations.
15.2) If such force majeure event continues for more than 30 days and the parties are unable to agree on a manner of avoiding its consequences within that period, either party may terminate the affected SLA immediately on written notice.
16. GENERAL
16.1) No agreement varying, adding to, deleting from or cancelling these Terms (including this clause) shall be effective unless reduced to writing and signed by or on behalf of you and Xpand IT.
16.2) You agree that Xpand IT may, either itself or through a credit bureau, carry out credit assessments on you prior to the Effective Date and on an annual basis following the Effective Date to assess your credit worthiness. You further agree to provide Xpand IT with such information as Xpand IT may reasonably request to allow it to conduct such credit assessment. Xpand IT may be required to collect, process and share personal information as may be reasonably necessary for the purpose of conducting credit assessments. If your personal information is collected and processed by Xpand IT, Xpand ITshall ensure that use reasonable efforts to protect and secure your personal information.
16.3) You may not subcontract, cede, delegate or transfer any of your rights or obligations under these terms without the prior written consent of Xpand IT, which consent shall not be unreasonably withheld.
16.4) Any indulgence given shall not constitute a waiver of your or Xpand IT’s rights. No indulgence granted by a party shall constitute a waiver of any of that party’s rights under these terms; accordingly, that party shall not be precluded, as a consequence of having granted such indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.
16.5) If any provision of these Terms shall be held illegal or unenforceable, such provision shall be severable and shall in no way affect the validity or enforceability of the remaining provisions.
16.6) These Terms shall be governed by the laws of the Republic of South Africa.
16.7) These Terms constitute the entire agreement between the parties with respect to the subject matter hereof. These Terms will supersede all other terms and conditions submitted by either party, or all and any written and oral communications between the parties.
16.8) The signatories warrant that they are authorised to enter into, and sign, these Terms. Either party may request from the other party proof of such authority.