CORE BUSINESS ELEMENTS SUBSCRIPTION AGREEMENT
TERMS & CONDITIONS
1.1. “Agreement” means the terms and conditions set out in this document together with and any appendices hereto, and the Service Agreement Terms which are incorporated herein by this reference;
1.2. “Business Hours” means the hours of 07h00 to 16h00 on a Monday to Friday in South Africa, excluding official public holidays;
1.3. “Company” means Core Business Elements (Pty) Ltd. (2015/386611/07), whose registered office is at 58 Madeline Street, Florida, 1709;
1.4. “Consumer Price Index” means the average year-on-year percentage change in the Consumer Price Index for all urban areas as published in the Statistical News Release compiled by Statistics South Africa (or its successor in title) for the preceding 12 (twelve) months;
1.5. “Contract Year” means each successive 12 (twelve) calendar month period during the term of this Agreement, as measured from the Effective Date;
1.6. “Customer“ means the business entity or person with whom Company enters into this Agreement, and represented by the signatory hereto and whose domicilium is that reflected on the Order Form;
1.7. “Documentation” means the help files and any release related notes, guides or manuals that Company publishes specific to the agreement;
1.8. “Effective Date” means the date of acceptance of this Agreement by Company;
1.9. “Initial Registration” means the initial supply and registration of the Business and Documentation by Company, subject to receipt of payment in terms of clause 3.1;
1.10. “Subscription” means a licence to receive the scope of work as detailed in the Agreement in terms of this Agreement, subject to termination or suspension as provided for hereunder;
1.11. “Subscription Fee” means the charge to receive the Scope of work, as indicated in the Agreement;
1.12. “Use” means to load, execute, store, transmit, display or otherwise utilise the product for legitimate business purposes, subject to this Agreement.
This Agreement shall be construed and interpreted in accordance with the laws of the Republic of South Africa and phrases and words defined here shall apply to the remainder of this Agreement.
2.1. Company shall supply the scope of work and Documentation to Customer, who purchases a Subscription thereto, on and subject to the terms and conditions contained in this Agreement.
3. FEES AND PAYMENT
3.1. In consideration for the Scope of Work and Documentation, Customer shall pay Company the Subscription Fee upon Initial Registration of the Business, and thereafter on a monthly basis, as indicated in the Order Form.
3.2. Time for payment shall be of the essence of this Agreement. If any amount payable is in arrears, then, without prejudice to any other rights and remedies it may have, Company shall be entitled to suspend the performance of any of its obligations under this Agreement, including, without limitation, suspending Customer’s right to receive the scope of work and Documentation, without Company incurring any liability to Customer or any third party.
3.3. Failure to pay any amount on the due date shall entitle Company, without prejudice to any other rights or remedies it may have, to charge interest on a daily basis at 2.5% (two comma five percent) per month from the due date of payment to the actual date of payment. Unless otherwise agreed between the parties in writing, all payments under this Agreement shall be made via debit order into Company’s account, as stipulated in the Agreement, free of deduction or set-off.
4. CUSTOMER’S RIGHTS
4.1. Subject to payment in terms of clause 3, Customer shall acquire the right to:
4.1.1. Receive the scope of work and Documentation, as and when they become available; and
4.1.2. e-mail or telephone support,
for that period only in respect of which Company has received the Subscription Fee.
4.1.3. Failure to pay any amount on the due date will result in, inter alia, the suspension of Customer’s rights under this clause 4.
5. FEE INCREASES
5.1. Company shall be entitled to increase the Subscription Fee once during each Contract Year on the following terms:
5.1.1. Company will notify Customer of a price increase at least 60 (sixty) days before the increase takes effect. Customer shall be responsible for providing Company with its most current contact and billing information.
5.1.2. Where the increase in the Subscription Fee does not exceed the Consumer Price Index plus 5% (five percent), such increase shall take effect automatically upon expiry of the notice period.
5.1.3. Where the increase in the Subscription Fee exceeds the Consumer Price Index plus 5% (five percent), Customer shall be entitled to terminate this Agreement on no less than 30 (thirty) days’ written notice to Company, such notice period to expire upon expiry of the notice period indicated in 5.1.1
6. TERM AND TERMINATION
6.1. This Agreement shall commence on the Effective Date and shall continue for an initial period of 12 (twelve) months thereafter (“the termination date”). If no notice of termination is given at least 60 (sixty) business days prior to the termination date, this Agreement shall automatically be renewed for another 12 (twelve) month period on a year to year basis and the provisions hereof shall apply, mutatis mutandis, in respect of such period.
6.2. Company may terminate this Agreement summarily if –
6.2.1. Customer breaches any terms of this Agreement and fails to remedy same within 20 (twenty) business days of receipt of written notification;
6.2.2. Customer fails to pay any amount due in terms of this Agreement on the due date;
6.2.3. Customer commits an act of insolvency as defined in the Insolvency Act.
7. COMPANY RIGHTS AND OBLIGATIONS
7.1. Company shall use its reasonable endeavours to support the Scope of Work during the term of this Agreement by providing telephonic and e-mail support during Business Hours.
7.2. Company, in its sole discretion, reserves the right to issue new versions of the Scope of Work and Documentation.
8. THE CUSTOMER’S OBLIGATIONS
8.1. The Customer undertakes –
8.1.1. to adhere to the Scope of Work Licence Terms; and
8.1.2. to pay the Subscription Fee as and when same becomes due.
9. MAINTENANCE SERVICES
9.1. Company shall endeavour to provide Maintenance Scope of Work at such times as it in its sole discretion shall determine.
9.2. Customer undertakes that it shall institute any Maintenance Scope of Work in line with Company’s recommendations and keep the Scope of Work and Documentation up to date and in line with Company’s system specifications and pay all costs associated therewith. Customer shall ensure that its staff has the capability of carrying out the obligations as aforesaid.
9.3. Should Customer fail to install such Maintenance Scope of Work correctly or at all in accordance with Company’s instructions, Company shall have the right to charge for services rendered in this regard.
9.4. The Scope of Work may contain auto-update technology to provide Maintenance Scope of Work. By completing the Initial Registration, Customer consents to the transmission of standard computer information and the automatic downloading and installation of Maintenance Scope of Work.
10.1. Company makes no warranties and representations, whether express or implied, in respect of the Scope of Work, the disks or the Documentation attaching to the Scope of Work and in no event will Company be liable for direct, indirect, special, incidental or consequential damages arising out of the Use or inability to Use the Scope of Work or Documentation, even if advised of the possibility of such damage. In addition, Company specifically does not warrant or guarantee or make any representations concerning the Use of or the result of the Use of the Scope of Work and the Scope of Work is purchased at the sole risk of Customer. Any claim which Customer may have arising out of the warranty provided by Company to Customer referred to as foresaid shall be limited to Company either replacing or repairing the Scope of Work at the sole discretion of Company.
11.1. The parties choose as their domicilia citandi et executandi the addresses set out on the Order Form for the purpose of serving any documents or legal process in regard hereto.
11.2. Any notice given and any payment made by a party to the other (“the addressee”) which:
11.2.1. is delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery; provided that, if the delivery is effected by or on behalf of Customer at Company’s domicilium, the presumption shall only apply as regards Company if proof of receipt is obtained by the party effecting such delivery and duly produced as may be required to prove such delivery;
11.2.2. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by th the addressee, to have been received by the addressee on the 10(tenth) day after the date of posting.
12.1. This Agreement constitutes the entire agreement between the parties. No variation, addition or cancellation of this Agreement or any waiver of any rights shall be of any force unless reduced to writing and signed by the parties.
12.2. No indulgence, leniency or extension of time which Company may show to Customer shall in any way prejudice Company or preclude Company from exercising its rights in the future.
12.3. If any provision of this Agreement is found to be void, invalid or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision which conforms to applicable law and embodies as closely as possible the original intent of the parties.
12.4. This Agreement and all matters or disputes arising therefrom or incidental thereto shall be governed and construed in accordance with the laws of the Republic of South Africa.
12.5. Any provision in this Agreement which when reasonably read as intended to survive the termination of this Agreement shall survive, including, without limitation, the disclaimer of warranties and limitations of liability.
12.6. Customer hereby gives Company permission to send it information regarding Company’s products and services by various delivery methods, including via facsimile, e-mail and SMS.
13.1. Customer, by its signature hereto and in terms of the provisions of Section 45 of the Magistrate’s Court Act No 32 of 1944,as amended, consents to the jurisdiction of the Magistrate’s Court in relation to any action or proceeding instituted against Customer in terms of, or arising out of provisions of this Agreement, provided that Company, in its sole and absolute discretion, shall be entitled to institute any such actions or proceedings, in any division of the High Court of South Africa possessed of the requisite jurisdiction.
13.2. In the event of Company instituting legal proceedings against Customer to recover amounts due to Company or take any other legal steps arising out of this Agreement, Customer shall be liable for legal costs on the scale as between attorney and own client and/or any collection costs.