SOFTWARE AS A SERVICE AGREEMENT

 

entered into by and between 

AUXILIUM CONSULTORUM (PTY) LTD

Registration number: 2011/148303/07 

(“Auxcon”) 

and 

THE PERSON WHOSE DETAILS ARE ENTERED ON AUXCON’S ONLINE ONBOARDING REGISTER THROUGH THE ONBOARDING PROCESS OR THE EXISTING CLIENT TO WHOM THESE TERMS ARE PUBLISHED WITHOUT IT HAVING NOTIFIED AUXCON OF TERMINATION IN TERMS HEREOF

 

(“the Client”)

 

 

(collectively herein referred to as “the Parties 

 

 

TERMS AND CONDITIONS UNDER THE SAAS AGREEMENT:

 

1.      DEFINITIONS:

 

1.1   “agreement / SaaS agreement” – means this Software as a Service agreement entered into by and between Auxcon and the Client, consisting of 17 pages, including 2 Schedules.

 

1.2   “Add-on services” – mean additional services that the Client may elect, in addition to the use of Auxcon’s software under license, including those specified in Schedule 1.

 

1.3   “Auxcon” – means Auxilium Consultorum (Pty) Ltd with registration number: 2011/148303/07.

 

1.4   “the Client” – means all existing Clients of Auxcon as at date of notification and publication of these terms, as well as any person (“new Client”) performing and completing the onboarding process, whose details appear on the records produced pursuant to completion of said onboarding process, which records are retained by Auxcon, including a juristic person or a firm of legal practitioners.

 

1.5   “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 identifiable as confidential and/or proprietary to the party disclosing same (“the Disclosing Party”) to the other party (“the Receiving Party”), or confidential and proprietary to a third party, or which information is provided or disclosed in confidence, and which information is provided or disclosed to the Receiving Party in performance under this agreement; provided that the following is explicitly excluded from confidential information:

 

1.5.1         Information that is lawfully in the public domain at the time of disclosure thereof;

1.5.2         Information that subsequently becomes part of the public domain in a lawful manner.

1.5.3         Information that becomes available from a source other than one of the parties which is lawfully entitled to be in possession of such information and without restriction on disclosure thereof to another party.

1.5.4         Information that is disclosed pursuant to a requirement or request by operation of law, or a obligation imposed by law, regulation or court order; provided that in such circumstances the Receiving Party shall notify the Disclosing Party in writing of the relevant obligation to disclose and allow the Disclosing Party to take action to protect its rights to the extent such party deems in its interests; provided further that the Disclosing Party will disclose only that portion of the information which it is legally required to disclose; and provided further that the Receiving Party shall use all reasonable endeavours to protect the confidentiality of such information in the widest extent possible and shall only use the information for a lawful purpose.

 

1.6   “CPA” – means the Consumer Protection Act 68 of 2008.

 

 

1.7   “effective date” – means, in respect of new Clients, the date of acceptance of the terms and conditions contained herein, through the online onboarding process, by making an election to accept same, or in respect of existing Clients, the seventh day after notification of these terms to the Client and publication thereof on Auxcon’s website.

 

1.8   “force majeure event” – means act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared, civil war, revolution, civil commotion or other civil strife, riot, strikes, destroyed or delayed due to piracy, blockade, embargo, sanctions, epidemics, pandemics, lockdowns; act of any Government or other authority, compliance with Government orders, demands or regulations

 

1.9   “go live / going live” – means  access granted to the Client to the online portal.

 

1.10 “go-live date” – means the date, after the onboarding process, on which the Client is granted access to its Auxcon online portal.

 

1.11 “intellectual property” – means the software created by or on behalf of Auxcon, and the system developed by or on behalf of Auxcon, including the copyright relating to the software;

 

1.12 “intellectual property rights” – mean the rights associated with the software, including but not limited the copyright applicable to software programs developed by or on behalf of Auxcon, as well as rights pertaining to the intellectual property in terms of statute or common law in any jurisdiction.

 

1.13 “minimum requirements” – mean the compatibility requirements the Client’s computer hardware, software and/or systems must have, to access the software, as set out in Schedule 2 to this agreement.

 

1.14 “onboarding process” – means the online registration and onboarding process conducted by the Client at web.auxconlegal.com/onboarding/register, whereby all the Client’s details are collected and whereby the Client registers, creates a password and accepts the terms and conditions of the SaaS agreement.

 

1.15 “online portal” – means a designated platform within the hosted software programme, linked to a unique user of the Client, which is accessed by the user via a username and password.

 

1.16 “parties” – mean Auxcon and the Client collectively.  “Party” shall refer to either of the two parties in the context of the relevant clause or provision of this agreement.

 

1.17 “the services” ­– mean the rendering of basic practice management services, accounting services, debtor management and billing management to legal practitioners, as more comprehensively described in Part A) of Schedule 1 to this agreement, which includes making available to the Client the use of the software by way of a license and the provision of related software support services, and where the Client opts to make use of add-on services described in Part B) of Schedule 1, such add-on services shall be included under the services.

 

1.18 “signature date” – means the date on which the terms and conditions applicable to this agreement have been accepted by the Client as part of the onboarding process, or upon the expiry of 7 (seven) days after the Client had been notified of these terms and conditions.

 

1.19 “the software” – means the software which Auxcon developed or caused to be developed to perform the services through the system, in which Auxcon holds proprietary rights and of which it is the lawful owner.

 

1.20  “the system” – means collectively the software and the combined employment of ancillary systems to support said software, inter alia cloud based hosting of the software, cloud based storage and security systems and electronic communications systems.

 

1.21 “staff” – means any person in the employ of either party, whether permanently employed or as independent contractor, sub-contractor or other party representative.

 

1.22 “third party” – means a person, contractor or entity other than a party to this agreement.

 

1.23 “third party software” – means the software supplied by parties other than the parties to this agreement.

 

1.24 “user” – means a single natural person to whom a license for the use of the software is issued. 

 

1.25 “VAT” – means Value Added Tax as levied under the Value Added Tax Act 89 of 1991 (as amended).

 

1.26 “website” – means www.auxcon.co.za. 

 

 

2.      RECITALS:

 

2.1   Auxcon is the proprietor of the software and is in the business of inter alia, providing the Services.

 

2.2   The Client is desirous to make use of the Services and has elected to engage Auxcon to provide the Services.

 

2.3   The Parties have agreed to govern their relationship in terms of this agreement, upon such terms and conditions as are set out hereinafter.

 

2.4   In respect of all new Clients, this agreement is entered into through the onboarding process and shall therefore become effective once the Client has completed his/her full personal details, registered for the services and accepted the terms and conditions of this agreement on the online onboarding platform of Auxcon, which acceptance is indicated by ticking the option bearing the description “I have read and considered the terms and conditions of the SaaS agreement and accept same”, or any similar description which refers to the terms and conditions contained in this agreement.

 

2.5   in respect of existing Client’s, these terms and conditions shall become applicable seven days after notification of these terms had been given to the Client and published on Auxcon’s website, subject to the Client’s right to terminate the agreement with Auxcon as provided for in clause 6.2 below.

 

2.6   It is expressly agreed, whether through the onboarding process or through notification to the Client and publication thereof on Auxcon’s website (subject to the Client’s right to give notice of termination as provided for in clause 6.2 below), that these terms and conditions shall replace all previous terms and conditions relating to the use of the software and may be amended from time to time, subject to notification to the Client and publication on Auxcon’s website.

 

 

3.      INTERPRETATION:

 

3.1     Unless the context clearly denotes otherwise, any word referring to:

 

3.1.1         One gender, includes the other gender;

3.1.2         The singular includes the plural and vice versa;

3.1.3         Natural persons include artificial/juristic persons and vice versa;

 

3.2     When any number of days is prescribed in this agreement, it shall exclude the first day and include the last day, unless the last day falls on a Saturday, Sunday or public holiday within the territory, in which case the last day shall be the next succeeding business day;

 

3.3     Where reference is made to business days, it shall exclude a Saturday, Sunday and any South African public holiday.

 

3.4     It is agreed between the parties that the contra proferentem rule shall not be applicable to this agreement where its interpretation is disputed.

 

 

4.      ENGAGEMENT OF AUXCON:

 

4.1   The Client herewith engages Auxcon to render the services, as specified in this clause.

 

4.2   Auxcon shall, as from the effective date, provide the selected services to the Client as detailed in Schedule 1 to this agreement.

 

5.      DURATION:

 

5.1          This agreement shall commence on the effective date and shall endure indefinitely until terminated by either party on no less than one calendar month’s written notice.

 

5.2          This clause 5 does not affect Auxcon’s right to cease or suspend services as provided for in clause 7 below, whilst the agreement remain in force and effect.

 

6.      NOTICE OF AMENDMENTS TO TERMS AND CONDITIONS

 

6.1 The Client acknowledges that Auxcon may from time-to-time amend the terms and conditions applicable to the SaaS agreement by notifying the Client and by publishing same on its website.

 

6.2 The Client agrees to be bound by these terms and conditions, or any amendments to these terms from date of publication thereof on Auxcon’s website, save where the Client has given notice of termination of this agreement to Auxcon, as provided for in clause 5.1 above, within seven (7) days from date of notification as provided for in 6.1 above, in which event the latest accepted version of these terms shall apply during the termination notice period.

 

7.      AUXCON’S RIGHT TO CEASE AND/OR SUSPEND THE SERVICES AND USE OF SOTWARE

 

7.1         The Client acknowledges that the services are rendered, for as long as Auxcon’s software license fees, disbursements and other charges in terms of this agreement are paid.

 

7.2         Auxcon shall be entitled to suspend the services and use of software to the Client, at its sole and exclusive election, if a Client is in arrears with its fees, disbursements and/or charges for any period exceeding 30 (thirty) days post the due date for payment.

 

7.3          Auxcon may specifically, in the event of suspension and/or cessation of the services as provided for in this clause 7, suspend the Client’s license in respect of the use of the software and discontinue the Client’s access to the software.

 

7.4          A cessation or suspension of the services to the Client by way of operation of this agreement shall not affect the validity of this agreement and shall not constitute a termination of the agreement.  The Client specifically acknowledges and agrees that cessation or suspension of the services and termination of access to the software in terms of this clause will not constitute a repudiation of any term of this agreement on the part of Auxcon and the Client shall remain responsible to perform in terms of this agreement, including payment of Auxcon’s applicable fees in relation to the Services and software license.

 

7.5          The rights of Auxcon set out above are in addition to any other right Auxcon may have in terms of this agreement, or in law, to recover any arrear amounts due to it.

 

8.      AUXCON’S PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS

 

8.1   Auxcon is the owner and holder of all proprietary rights in the software and in the Intellectual Property which forms part thereof.

 

8.2   None of Auxcon’s rights referred to in 8.1 above shall be transferred by way of this agreement and the software and Intellectual Property shall remain the exclusive property of Auxcon. 

 

8.3   The Client shall not under any circumstances, whether by way of action or omission, cause, permit or allow anything which would infringe Auxcon’s rights referred to in this clause 8, or which results in any other prejudice to Auxcon in respect of such rights.

 

8.4   The Client shall specifically not, for the duration of this agreement and thereafter, without the prior written consent of Auxcon:

 

8.4.1         Either directly or indirectly register the software or any Intellectual Property forming part thereof, anywhere in the world, or directly or indirectly use or register any Intellectual Property Rights confusingly similar to the software;

8.4.2         Claim or seek to obtain any proprietary rights in respect of the software;

8.4.3         Incorporate and/or combine the software with other intellectual property or systems; and/or

8.4.4         Notwithstanding the operation of clause 15.2, alter or amend the software in any way.

 

8.5   The Client shall immediately cease to use all intellectual property of Auxcon, including the software, upon termination of this agreement for whatever reason.

 

8.6   This clause 8 shall survive termination of this agreement.

 

9.      USE OF SOFTWARE UNDER LICENCE

 

9.1          The Client shall obtain no right title or interest, whether proprietary in nature or otherwise, in the software or any of Auxcon’s Intellectual Property Rights, by operation of this agreement.  

 

9.2          The Client is only entitled to use the software for as long as the services are due to be provided by Auxcon to the Client in terms of this agreement.

 

9.3              The Client’s entitlement to the use of the software is based on a non-exclusive licence granted by Auxcon to the Client for the duration of this agreement, and subject to Auxcon’s right to cease or suspend the services to the Client as provided for in clause 7 above.

 

9.4              The license provided by Auxcon to the Client shall be for one User.  Further users shall attract additional license fees.

10.   PRICING AND PAYMENT FOR THE SERVICES

 

10.1        The Client, if it becomes a Client after the effective date, agrees to the pricing in relation to the services, including the software license fees displayed on the portal during the onboarding process and the pricing of any add-on products or services that the Client elects during the onboarding process, or which the Client elects to add over the duration of this agreement.  Save where same is expressly indicated to the contrary, all fees and charges reflected in this agreement excludes VAT.  Notwithstanding any provision in this clause, the pricing in respect of the services, including the software license fees and any add-on service, shall at all times be the pricing as published on the website of Auxcon, which is deemed to be incorporated in this agreement by reference, subject to increases in terms of this agreement.

 

10.2        The Client shall, from the go-live date, pay Auxcon all fees and charges due in in respect of the software license and any add-on services it elects, without deduction or set-off, monthly in advance on the first day of each and every consecutive month, irrespective of the date on which an invoice is rendered by Auxcon to the Client.

 

10.3        Payments shall only be made via electronic funds transfer (EFT),debit order, or via the PayPal platform, whenever the latter option is available on Auxcon’s onboarding portal, or the online portal.

 

10.4        The Client furthermore acknowledges that its election of any add-on service via Auxcon’s onboarding portal, or via the online portal shall constitute acceptance of the concomitant increase in monthly fees as reflected on the online portal at the time, which shall apply from date of such acceptance.

 

10.5        Auxcon shall increase its license fees, services fees and/or other charges or tariffs annually, at the beginning of April of the relevant year, based on inflationary considerations and may otherwise, in addition to increased based on inflationary considerations, increase its fees and charges to this agreement from time-to-time on at least 60 (sixty) days’ written notice to the Client; provided, however, that the Client may elect to give notice of termination of this agreement in terms of clause 5.1 above, within 7 (seven) days of delivery of a notice of increase as aforesaid, in which event the increased charges shall not apply during the termination notice period.

 

11.    GOING LIVE

 

11.1   The Client shall go live immediately after the effective date.

 

11.2  Auxcon shall:

 

11.2.1      Grant the Client access to the online portal;

11.2.2      Provide reasonable assistance with training on the system if required by the Client.

 

12.   VIABILITY, SECURITY AND DATA PROTECTION

 

12.1       The parties acknowledge and agree that any data of the Client as managed by Auxcon in performance of the services, remains the property of the Client.

 

12.2       The Client acknowledges and agrees that it has established the viability of the product in relation to the proposed management of its data by Auxcon and that its connectivity and computer specifications conform to the Minimum Requirements.

 

12.3      The Client acknowledges and agrees that it shall remain responsible for the protection of its data, including personal information as defined in the Protection of Personal Information Act 4 of 2013 (“the POPIA”).  Auxcon shall at all times act in accordance with its POPIA manual, which is available on its website.

 

 

12.4      Auxcon hosts the product in the cloud, using a cloud service provider and, as at the effective date, specifically  Microsoft Azure.  The Client warrants that it is familiar with the terms of the Microsoft Customer Agreement relating to the use of Microsoft Azure, which can be found on Microsoft’s website, which is incorporated herein by reference and the Client furthermore agrees that the latest version thereof applicable/available from time-to-time shall mutatis mutandis apply to this agreement.

 

12.5      The Client acknowledges and agrees that any interruptions in the services caused by the Microsoft Cloud Services platform, or other platform from which the service is hosted, is beyond the control of Auxcon and Auxcon shall not be liable for any such interruptions or ‘down-time’ caused.  Any interruptions caused as aforesaid which is due to no fault on behalf of Auxcon shall not constitute breach of this agreement by Auxcon, although Auxcon shall use its best endeavours to maintain the Services.

 

12.6      The Client’s data is protected by the security systems in place through Microsoft and Microsoft Azure.  Auxcon does not provide any additional security and this remains the sole responsibility of the Client.  The Client acknowledges and agrees that it will be responsible for protection of its data and that it shall maintain its own security mechanisms (i.e. anti-virus programs, firewalls, internal personnel access control etc.).

 

 

12.7      Auxcon shall only manage the Client’s data and will not be responsible for any loss of data as a result of hacking, spoofing, phishing or any other cyber-attack, due to inadequate security systems being in place and/or managed by the Client and any concomitant financial loss which may be caused by such data loss.

 

 

12.8      Auxcon agrees not to divulge any of the Client’s information or data collected or processed in terms of this agreement and furthermore that it will not use the Client’s data for any purpose other than in performance of the services and execution of this agreement in general.

 

12.9      Auxcon may compile statistical information related to the performance of the services for purposes of improving the services, provided that such information or data does not identify the Client or any of the Client’s personal information.

 

12.10   The Client as owner of its own data shall be liable for its accuracy, quality, integrity, reliability and appropriateness.  Auxcon shall specifically not accept any liability in respect of books of account of the Client where inaccurate information is given to it, or where the Client’s books of account do not balance as at the go-live date.

 

 

 

13     GENERAL OBLIGATIONS OF AND COOPERATION BY THE CLIENT

 

 

13.1        The Client undertakes to furnish all relevant information and to grant access to all information concerning the Client’s operations to the extent required by Auxcon to perform its obligations and to render the Services or any part thereof,  which information shall be processed by Auxcon subject to the relevant sub-clauses under clause 12.

 

13.2        All communication concerning any matter covered under this Agreement between Auxcon and the Client shall be addressed to the relevant party and delivered to the domicilia of said party.  In the event that the Client is a juristic entity, the Client elects for this purpose the representative(s) identified through the onboarding process to liaise with Auxcon.  Communication may be delivered to the elected domicilium address of the respective party, or such party’s elected electronic mail address.

 

13.3        All communication containing instructions or complaints concerning the execution of the Services shall be reduced to writing.  The Client shall immediately bring to Auxcon’s attention any matter or conduct which may interfere with the performance of the Services by Auxcon or concerning any mal-performance by Auxcon of the Services or failure by Auxcon’s management and/or personnel in the performance of their Services.

 

13.4        The Client furthermore undertakes to implement all reasonable management structures, administrative policies, financial structuring and policies and production policies and matters ancillary to the execution of the Services, as and when required to be implemented by Auxcon.

 

13.5        The Client further undertakes to issue appropriate instructions to its personnel, employees and contractors to co-operate with Auxcon, its management and its personnel, and to implement any directives proposed by Auxcon which are reasonably necessary to execute the Services.

 

13.6        The Client shall make available to Auxcon such office space and amenities as Auxcon may reasonably require to implement, maintain and execute the Services, where on-site attendances at the Client’s premises by Auxcon are necessary.

 

13.7        The Client shall ensure that a suitably qualified representative from each of its Third Party service providers, including Third Party Software operators, is available to the extent required by Auxcon where third party software or systems interferes with the services.

 

14     INDEMINTIES AND LIMITATION OF LIABILTY

 

14.1          The Client indemnifies Auxcon from any damage caused or suffered as a result of data loss or financial loss due to reasons described in clauses 12.6, 12.9, and this clause 14, as well as any claims instituted by third parties (including the Client’s own clients) relating to such losses.

 

14.2          The Client furthermore indemnifies Auxcon from any damages suffered by it, or losses made by it due to the improper use of the software, or non-compliance with generally accepted accounting practices, or non-compliance with statutory provisions relating to accounting practices, including but not limited to penalties, fines and/or interest charged to the Client by a statutory or other body due to non-compliance with statute or regulations.

 

14.3          In addition to the abovementioned sub-clauses, Auxcon will not under any circumstances be liable to the Client for direct or indirect, or consequential losses, including but not limited to loss of profit or other incidental or consequential damages arising from the inability to use the software, whether the claim is based on contract, delict, breach of statutory duty, principles of indemnity or otherwise, save where same is attributable to wilful or grossly negligent conduct on the part of Auxcon.

 

14.4          Auxcon’s liability in terms of this agreement shall in any event at all times be limited to the amount paid by the Client for the services in the directly preceding three months in respect of the relevant services elected by the Client.

 

14.5          Auxcon shall not be liable to the Client for any error in the software, or impaired functionality thereof, where the Minimum Requirements in Schedule 2 have not been met. 

 

14.6          Auxcon shall furthermore not be liable to rectify any errors or malfunctions pertaining to the software caused by defective hardware, malfunctioning backups and/or data corruption unrelated to the system, defective, malfunctioning or interfering third party software applications, unauthorised modifications made to the system, and any negligent action or omission on the part of the Client.

 

14.7          Auxcon shall take no responsibility for any loss or damages suffered by the Client as a consequence of sharing of usernames and passwords by the Client or any of the Client’s users with third parties.

 

 

15     WARRANTIES

 

15.1           Auxcon warrants to the Client that it is the proprietor of the software and that it has the right to grant a license in respect of the use of the software to the Client.

 

15.2           The Client warrants that it shall not copy, translate, adapt, modify, sell, lease, sublicence, decompile, disassemble or reverse engineer any portion of the software or write and develop any derivative software, or attempt to do the aforesaid, or allow any party to attempt or do so on behalf of the Client, without the prior written consent of Auxcon.  The Client acknowledges and agrees that any changes to the software made by it in contravention of this clause shall become the property of Auxcon.

 

15.3           The Client warrants that it shall take all reasonable steps to protect Auxcon’s Intellectual Property and that it shall not disclose or allow to be disclosed any information regarding the system, including documentation or features thereof, save where the prior written consent of Auxcon had been obtained.

 

15.4           Auxcon warrants that it shall not disclose any information, whether financial or otherwise, of the Client to third parties without the Client’s prior written consent.

 

15.5           Auxcon gives no warranty that the software and/or the system will be completely error free.  Auxcon however undertakes to remedy any errors in the software or the system upon the Client notifying Auxcon and demonstrating the nature and extent of the error alleged.

 

15.6           Auxcon gives no warranty that the software and/or the system will be fit for purpose and will meet the Client’s requirements.  The Client remains responsible to assess the viability of the software and the system in relation to its requirements.

 

16     BREACH

16.1 Notwithstanding the further provisions of this Agreement, should a Party commit a breach of this Agreement and fail to remedy such breach within 14 (fourteen) days of written notice requiring such breach to be remedied, then the Party giving the notice shall be entitled, at its option, either to cancel this Agreement or the respective Order and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any.

16.2 The provisions of clause 16.1 shall apply mutatis mutandis in the event of:

16.2.1     a Party being or taking steps to be liquidated, dissolved, or placed under business rescue, or sequestrated;

16.2.2       a Party stops or threatens to stop performance in terms of the agreement, save where Auxcon exercises its rights in terms of clause 7 above;

16.2.3    infringement or threatened infringement of Auxcon’s intellectual property or intellectual property rights as a result of the Client’s direct or indirect behaviour.

16.2.4     a party committing any act which would amount to an act of insolvency if it had been a natural person;

16.2.5     The provisions of clause 16 shall survive the termination of this Agreement for any reason whatsoever.

16.2.6     In the event that the Client fails to pay Auxcon any amount which is due in terms of this Agreement on due date, or committing any other breach of this contract and Auxcon as a result thereof instructs an attorney to institute legal action against the Client, Auxcon, if successful, shall be entitled to payment of all the legal costs occasioned thereby, including attorney and own Client costs, collection charges and tracing fees;

16.2.7     In addition to clause 16.2.6, if the Client fails to pay Auxcon any amount which is due in terms of this Agreement and which is not the subject of a pending dispute in terms of clause 18 below, Auxcon shall be entitled to act in terms of clause 7 above and suspend the managed services to the Client, and may also disable the license/ use of the software on 5 (five) days’ notice to the Client, without prejudice to any of Auxcon’s rights to take steps to recover any arrear amount(s) due to it;

 

17     NOTICE AND DOMICILIA

 

17.1 Where notice is required in terms of this agreement, or in law, the parties nominate the following addresses as their domicilia citandi et executandi:

 

17.1.1      The Client:

Physical address: The Client’s physical address elected as part of the onboarding process, or in respect of existing Clients, any subsequent amendments thereto applicable as at the effective date.

e-mail address: the e-mail address elected and used by the Client as part of the onboarding process, or in respect of existing Clients, any subsequent amendments thereto applicable as at the effective date.

 

17.1.2      Auxcon:

Physical address: 520 Spuy Street, Sunnyside, Pretoria.

e-mail address:     rosemarie@auxcon.co.za  

 

17.2 Any party may, by written notice to the other party, change its domicilium address(es) above.  The change shall be deemed effective on the business day following the delivery of written notice of the change to the abovementioned address(es).

 

17.3 Notice by way of electronic mail shall be sufficient for notice in terms of this agreement and in law generally, save where a provision contained in statue requires notice to a physical address or service by way of a messenger of court.

 

17.4 Notice delivered to the physical address by hand shall be deemed delivered on the actual day and at the actual time of delivery thereof.

 

17.5  Notice by way of electronic mail shall be deemed delivered on the date of transmission of the electronic mail, save where same is transmitted outside of normal business hours or on a day other than a business day, in which event it shall be deemed delivered on the next business day.

18.   ARBITRATION 

18.1 Upon declaration of a dispute by either of the Parties arising from the interpretation and/or execution of this Agreement, the Parties shall endeavour to settle any dispute between them amicably, through without prejudice consultation.

18.2 A dispute as referred to in clause 18.1 above shall be declared by delivery of a written notice of the dispute to the other Party, clearly stipulating the nature and grounds of the dispute.

18.3 If differences and disputes cannot be settled amicably, or if either party refuses and/or fails to participate in the process stipulated in clause 18.1 and 18.2 aforesaid within 5 (five) business days from date of declaration of the dispute, the dispute shall then be referred to and finally settled by arbitration on the terms to follow:

18.3.1      the party demanding arbitration shall, immediately upon expiry of the 5 (five) day period referred to in clause 18.3 deliver a notice initiating arbitration to the other Party, which notice shall constitute institution of a civil claim for purposes of interrupting prescription where a dispute pertains to a claim sounding in money.

18.3.2      The Parties shall appoint an arbitrator, being a practising advocate with no less than 15 (fifteen) years’ experience as practising legal practitioner.

18.3.3      The parties shall each propose at least two persons who conform to the criteria in 18.3.2 above to preside as arbitrator and shall endeavour to agree on an arbitrator from the list of proposed persons.

18.3.4      Should the parties fail to agree on an arbitrator in terms of clause 18.3.3 within 10 (ten) days, the chairperson and/or manager of the Group 33 advocates’ chambers in Pretoria may be approached by either of the Parties for the immediate appointment of an arbitrator, provided that the arbitrator conforms to the criteria set out in clause 18.3.2.

18.3.5      The arbitration will be held in Pretoria, South Africa at a venue to be dictated by the appointed arbitrator.

18.3.6      All parties, including the arbitrator, shall use their best endeavours to finalise the arbitration within 60 (sixty) calendar days from date of appointment of the arbitrator.  Without derogating from the aforesaid, the arbitration shall in any event be finalised by no later 90 (ninety) days from date of appointment of the arbitrator.

18.3.7      The arbitrator shall have the authority to dictate the arbitration process which should be practicable in the circumstances in order to promptly finalise the arbitration in compliance with clause 18.3.6 above.

18.3.8      The arbitrator shall have no power or authority to add to or detract from the agreements of the Parties.

18.3.9      The Parties shall share the costs of the arbitrator equally and shall ensure that any invoice delivered by the arbitrator is paid within 48 hours.  Should a party (“the uncooperative party”) fail to contribute to the costs of the arbitrator, the other party (“the paying party”) may effect payment of the total costs of the arbitrator, or any portion thereof as invoiced by the arbitrator, and may recover said contribution from the uncooperative party if the arbitration award is in the paying party’s favour.  Should the paying party be unsuccessful in the arbitration and an award in respect of costs is made against it, any amount paid on behalf of the uncooperative party shall be deducted and/or set-off from the costs of the arbitration so awarded and quantified by way of clause 18.3.10 below.

18.3.10    The costs of the arbitration shall be borne by the unsuccessful party on an attorney and own client scale, and may be taxed by the taxing master of the Court of competent jurisdiction once the arbitration award  (or any preliminary or injunctive relief granted) is made an order of Court.

18.3.11    The arbitrator shall have the authority to grant any temporary, preliminary, or injunctive relief in a form substantially similar to that which would otherwise be granted by a Court of law.

18.3.12    The resulting arbitration award or injunctive relief may be made an order of Court in a Court of competent jurisdiction and may be enforced as such.

18.4 Clauses 18.1 to 18.3 (including sub-clauses) above shall not apply in respect of:

18.4.1      Urgent proceedings/applications;

18.4.2      Proceedings whereby interdictory relief is sought;

18.4.3      Collection of software license fees and other fees and charges due to Auxcon in performance of the services;

which may be instituted in any court of law within the Territory with competent jurisdiction.

19.   EXCUSED PERFORMANCE:

19.1 Delay or failure to comply with, or breach of any of the terms and conditions of this Agreement, if occasioned by or resulting from a force majeure event, or any circumstances of like of different nature beyond the reasonable control of the Party so failing will not be deemed to be a breach of this Agreement, nor will it subject either Party to any liability to the other.

19.2 Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (Thirty) days, the Parties will consult with each other regarding the future implementation of this Agreement. If no mutually acceptable arrangement is arrived at within a period of 14 (Fourteen) days thereafter, either Party will be entitled to terminate the Agreement forthwith on written notice.

19.3 Auxcon will be excused from performing any of its obligations under this agreement in the event that the Client or any of its Third Party service providers, whether through an act or omission and whether wilfully or negligently, obstructs, prevents or hinders Auxcon to perform its obligations. 

19.4 Clause 19.3 above shall apply mutatis mutandis to the event where Third Party Software or any of the Client’s hardware malfunctions or fails to an extent that it prevents, hinders or obstructs Auxcon to perform its obligations.

19.5 When an event occurs as provided for in this clause 19 (“an Excusable Event”), Auxcon shall provide the Client with notice thereof, and to the extent that said Excusable Event is capable of being remedied and does not constitute a force majeure event, shall request the client to remedy said Excusable Event, whereafter Auxcon’s obligation to perform in terms of this agreement shall be suspended.

19.6 Where Auxcon has to incur additional costs or disbursements, or has to expend additional man-hours of its Staff as a result of an Excusable Event referred to in 16.5 above being remedied by the Client, the Client shall be liable to Auxcon for such additional costs which can actually be quantified, and a market related hourly tariff in respect of its Staff members.

19.7 The Client shall still be liable toward Auxcon in terms of its payment obligations under this agreement pursuant to an Excusable Event, which does not constitute a force majeure event, and notice delivered by Auxcon to the Client as provided for in clause 19.5 above.

19.8 Auxcon, in addition to not being liable to perform or fulfil any obligation towards the Client upon the occurrence of an Excusable Event, including a force majeure event, shall not be liable to for any losses or damage suffered by the Client arising out of such failure to perform due to the occurrence or existence of any Excusable Event.

 

20.   GENERAL

 

20.1 Non-waiver:

 

20.1.1      Any leniency or relaxation of any term of this agreement provided by one party to the other, or any indulgency provided by one party to the other, shall not be construed as a waiver of rights.

 

20.1.2      A party shall be entitled to exercise its rights notwithstanding a delay, failure or omission, alternatively, any relaxation, leniency or indulgence granted, provided that it is not expressly prohibited by a term of this agreement or in law.

 

20.2 Non-variation:

 

20.2.1      This agreement constitutes the entire agreement between the parties in relation to the subject matter thereof. 

 

20.2.2      Neither party shall be entitled to rely on any representation, discussion or oral offer and/or acceptance of an offer which is not expressly included in this agreement.

 

20.2.3      Any addition, deletion or amendment to any provision of this agreement (including this clause 20.2.3) shall only be of effect once it is amended by Auxcon through notification to the Client and publication on the website, as provided for in this agreement.

 

20.3 Warranty of authority

 

Where the Client is a juristic person, any person representing or purporting to represent such Client in the onboarding process or otherwise in execution of this SaaS agreement, warrants that he has due authority to do so and acknowledges that he may be personally liable in terms of this agreement should this warranty be breached.

 

20.4 Limitation of Auxcon’s liability

 

Auxcon shall not be liable for any damage suffered by the Company or any of its representatives or associated persons, including but not limited to commercial damages such as loss of profit, save where such damages are caused by wilful conduct or gross negligence on the part of Auxcon.

 

20.5 Severability

 

20.5.1      Each term and/or condition in this agreement shall be severable from every other term and/or condition contained in this agreement.

 

20.5.2      The invalidity of a single term or condition shall neither affect the validity of a clause in which such term or condition is contained, nor the validity of this agreement in its entirety.

 

20.6 Governing Law

 

This agreement shall be governed by the laws of the Republic of South Africa and South African dispute resolution fora shall have jurisdiction over the enforcement, interpretation and execution of this agreement and disputes which may result therefrom.

 

20.7 Cession, delegation and assignment

 

20.7.1      The Client shall not cede any of its rights or delegate any of its obligations (“assign”) or otherwise transfer any of its rights and/or obligations in terms of this agreement without the prior written consent of Auxcon.

 

20.7.2      Auxcon shall be entitled to assign, transfer, sub-contract and/or dispose of any of its rights and/or obligations under this agreement to any Third Party on 90 (ninety) days’ written notice to the Client.

 

20.8 Counterparts

 

20.8.1      This agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument.

20.8.2      The agreement shall be deemed concluded and binding on the parties once the terms and conditions have been accepted by the Client through the onboarding process, provided that Auxcon confirms the engagement of the Client by going live.

 

20.9 Consumer Protection Act (CPA)

 

20.9.1      Where the CPA applies to any Client, nothing in this agreement is intended to or must be understood to unlawfully restrict or exclude rights of the Client, or obligations on the part of Auxcon as provided for in the CPA.

 

20.9.2      The Client acknowledges and agrees that it had the opportunity to consider the terms and conditions contained in this agreement and to ask for any explanation of any terms and/or condition to this agreement before the Client accepted said terms and conditions through the onboarding process.

 

20.9.3      The Client’s attention is specifically drawn to the fact that certain terms and conditions of this agreement:

 

20.9.3.1  Limits Auxcon’s risk and liability, and that of its staff members.

20.9.3.2  May create a risk or liability for the Client.

20.9.3.3  Compels the Client to indemnify Auxcon.

20.9.3.4  Serves as an acknowledgement of a fact by the Client.

 

20.9.4      The Client is therefore required to carefully consider every term and condition before signing this agreement, and to obtain independent legal advice where it requires same.  The Client acknowledges that it has done so by accepting the terms and conditions of this agreement.

 

20.10                   Confidentiality and non-disclosure

 

20.10.1    The Parties acknowledge that confidential information may be exchanged between them in execution of this agreement.

 

20.10.2    The Parties undertake to one another that it shall take all reasonable steps, and procure that such steps be taken by its Staff, to safeguard the confidential information received.

 

20.10.3    Neither of the Parties shall disclose, divulge or transmit any of the confidential information received in execution of this agreement to any third party without the prior written consent of the party to whom the confidential information belongs.

 

20.10.4    Neither of the Parties shall use or allow any third party to use the confidential information for commercial or other gain, without the prior written consent of the party to whom the confidential information belongs.

 

20.10.5    Upon termination of this agreement, the Parties shall return each other’s confidential information in its possession to the extent possible, and shall furthermore confirm in writing and under oath, upon request of the relevant party, that all confidential information and any copy thereof in the possession of such party had been deleted or destroyed.

 

20.10.6    The operation of this clause 20.10 together with the definition of confidential information, shall have perpetual operation and shall survive the termination of this agreement.

 

20.11                  Surviving provisions

 

Any provision of this agreement which contemplates performance subsequent to any termination or expiration of this agreement, will survive such termination or expiration and will continue to be of full force and effect and binding on the Parties.

 

20.12                  Good faith

Each party agrees and undertakes to the other party to act in good faith in performance of its obligations and enforcement of its rights, and in their respective dealings under or in connection of this agreement.

            

 

Schedule 1– Description of Services

A)       ACCESS TO SOFTWARE AND USE OF THE SYSTEM

 

1.       The services shall include access to the software and use of the system.

2.      Auxcon undertakes to provide the following support services:

                                                                         i.    Maintain and manage an online support help desk facility during normal office hours (08:00 to 16:30 on Mondays to Thursdays and 08:00 – 14:30 on Fridays, excluding public holidays).

                                                                        ii.     Provide telephone support relating to the system.

                                                                      iii.    Provide remote support via TeamViewer, Teams and AnyDesk.

                                                                      iv.     Provide on-site support at the applicable support rates which the Client will be quoted for.

                                                                       v.    All support related issues caused by third party software or systems, rebuilding of systems, hardware related issues including non-compliance with minimum requirements, any issue which does not arise from the system of Auxcon shall be excluded from the support services provided by Auxcon. 

3.       Auxcon undertakes to maintain the system as follows:

                                                                         i.     provide regular feedback to the Client regarding system developments and enhancements.

                                                                        ii.     Perform systematic software testing and evaluation to keep system errors to a minimum.

                                                                       iii.     Introduce new products from time-to-time.

 

B)     ADD-ON SERVICES

The following services are available to the Client and will only apply if the Client elects to make use of these additional service offerings, at an additional cost as indicated on the online portal and/or the website:

 

1.      A Reconciliation Service, which includes allocating payments received by the legal practitioner to the relevant invoice rendered; provided that Auxcon shall require access to the legal practitioner’s bank statement, which the legal practitioner or firm consents to if it elects this option.  It further includes sending semi-monthly statements of account to the Client’s clients and attending to enquiries by the Client’s clients.

 

2.      An Invoicing service which includes attending to account requests and enquiries made by the Client’s clients, invoice capturing and invoice processing.

 

3.       An Ad-hoc collections service, which includes attending to requests and enquiries by the Client’s clients, personalised collections in accordance with instructions from the Client.

 

4.      Auxcon and its employees undertakes to treat information provided by the Client as strictly confidential and shall use all financial information of the Client for the sole purpose of providing practice management services to the Client.

 

5.      Auxcon shall not be liable for any damages, loss or prejudice the Client may suffer, of any nature whatsoever, as a result of the Client’s failure to provide accurate financial information as set out herein, or additional information requested by Auxcon.  The Client indemnifies and holds Auxcon harmless against any claim which may arise due a failure by the Client to comply with its obligations to provide accurate financial and/or other information.

 

 

Schedule 2 – Minimum Requirements

 

The Client acknowledges that its hardware, software, connectivity and web browser(s) must conform to the following requirements to ensure that the system is viable and can operate effectively and optimally:

 

1.      A stable network / internet connection with adequate upload and download speeds

2.      A compatible web browser.  In this regard Auxcon recommends the Google Chrome browser for optimal compatibility.  Browsers that are specifically not supported are the following:

2.1 Safari;

2.2 Firefox;

2.3 Microsoft Edge

 

3.      Should the Client elect to use one of the unsupported browsers, Auxcon cannot guarantee optimal usage of the services and will not take responsibility for any restrictions or accessibility issues.