Terms and Conditions
Terms and Conditions
1. DEFINITIONS
In this Agreement, the words detailed hereunder will have the meanings assigned to them unless inconsistent with the context of this Agreement. All Schedules to this Agreement are incorporated herein and are an integral part hereof:
1.1. “This Agreement” means this Service Level Agreement
1.2. “Effective Date” means the date upon which the service will commence.
1.3. “Westech Systems cc” means Lateral Westech Systems cc t/a Westech Systems cc.
1.4. “Services” means the Support Services listed in Schedule A hereto.
1.5. “Customer” means Client
2. EFFECTIVE DATE
This Agreement shall become effective on, and with effect from, the date that the service first commences and will continue in effect until terminated according to its terms. Should the Effective Date occur after the date of signature of this Agreement, nothing herein contained shall be construed as to give either party the right to cancel or rescind
this Agreement before the Effective Date.
3. TERM
The initial term of this Agreement shall be no less than two years, commencing on the Effective Date. This agreement will be renewed every January with an annual renewal fee of no less than 10%, which is for annual escalation. Thereafter this Agreement will be automatically renewed for successive two year term unless, and until, either party terminates this Agreement in terms hereof.
4. CHARGES AND PAYMENTS
4.1. The charges for Services stated on Schedule A, are those in effect on the Effective Date and may be revised from time to time with mutual consent upon 30 (thirty) days prior written notice to the Customer, but revision of charges shall not be implemented for periods already paid in advance by the Customer.
4.2. Charges for Services shall be invoiced and paid monthly in advance unless otherwise agreed in writing. All payments shall be effected without deduction prior to the month commencing.
4.3. All other charges outside of the contracted agreement are payable no later than 7 (Seven) days from invoice date unless otherwise agreed in writing by both parties.
4.4. Westech Systems cc shall be entitled to impose a late payment charge equal to 2% (two percent) above the prime overdraft rate charged by Westech Systems cc’ bankers as applicable from time to time on all late payments. Any such late payment charge shall be paid immediately by the Customer upon receiving written notification from Westech Systems cc of the amount thereof and that it has exercised its rights in terms hereof.
5. TAXES
The Customer will pay any Value Added Tax which Westech Systems cc becomes obligated to pay by virtue of this Agreement. All charges referred to in clause 6 and in Schedule A, attached hereto, are exclusive of Value Added Tax.
6. CUSTOMER’S RESPONSIBILITIES
6.1. The Customer has sole responsibility for use of the Equipment and Software, including operating procedures, audit controls, accuracy and security of input and output data, restart and recovery routines, and other procedures necessary for the Customer’s intended use of the Equipment and Software.
6.2. The Customer will maintain back-up data necessary to replace critical
Customer data in the event of loss or damage to such data from any cause. Any new data critical data added to the backup must be advised upon from the clients side so that Westech’s records can be updated.
7. WARRANTIES AND DISCLAIMERS
7.1. Any work carried out by Westech carries a 48 hour warranty. Any problems must be reported within the 48 hour period to avoid being billed again. All software and hardware warranties are carried by the hardware or software distributors and must be escalated to them.
7.2. Because not all errors in Software can or need be corrected, Westech Systems cc does not warrant that all Software defects will be corrected. Similarly, Westech Systems cc does not warrant that the functions contained in the Software will meet the Customer’s requirements or that the Software will operate in all combinations selected for use by the Customer.
8. LIMITATION OF LIABILITY
Westech Systems cc will, in no event, accept liability for:
8.1. Incidental, indirect, special or consequential damages or loss, including, but not limited to, loss of use, revenues, profits or savings or;
8.2. Claims, demands or actions against the Customer by any person, or payments made by or due from the Customer to third parties or;
8.3. Loss of or damage to the Customer’s data from any cause.
The Customer shall not be liable for any support hours required in order to rectify problems due to the direct damage or loss, of the equipment or software caused by Westech Systems cc.
8.4 Westech accepts no responsibility for any loss caused by power failures of any kind and telecommunications failures of any kind. Westech accepts no responsibility for any 3rd party service providers in any way or form what so ever.
9. TERMINATION, SUSPENSION, CANCELLATION or REPLACEMENT
9.1. Either party may terminate this Agreement by written notice 30 (Thirty) days from the 1st of any given month.
9.2. Westech Systems cc may elect to suspend the Services without written notice to the Customer if any payment under this Agreement is overdue by more than 2 (two) days.
9.3. Westech Systems cc may further elect to terminate this Agreement in the following circumstances:
9.3.1. In the event of the Customer failing to make payment in respect of any invoiced amount which is more than 30 (thirty days) overdue; or
9.3.2. If the Customer is sequestrated, placed into liquidation or under judicial management. Such termination shall be effected upon Westech Systems cc furnishing the Customer with 7 (seven) days written notice.
9.4. Notwithstanding suspension of the Services or termination of this Agreement, the Customer shall pay Westech Systems cc all outstanding amounts in respect of the Services rendered during the duration of this Agreement.
9.5 Westech may from time to time place permanent staff at the customer’s site. Westech will have technical staff on standby in the event that the staff member takes leave or sick leave. The customer will be responsible to inform helpdesk@westech.co.za when assistance is required.
9.6 The customer may not approach or employ the staff directly, failing which, the customer will be liable for a placement fee of 20% of annual salary.
9.7 Should this contract be terminated all hours in credit will fall away automatically with immediate effect
9. This agreement shall survive any termination of services by the receiving party and endure until such time as the confidential information comes into the public domain through no fault of the receiving party, its agents or employees.
10. NOTICES
10.1. All notices required by this Agreement to be given by either party shall be in writing and shall be sent to its address as provided hereunder.
10.2. All notices to be given to Westech Systems cc will be addressed to;
The Director
Westech Systems cc
Building 3 Sunninghill Office Park
1st Floor
011 519 4900
011 519 4901
P.O Box 7545 77
Sandton 2146
10.4. Notices given in terms of this Agreement shall be sent by registered mail or delivered by hand or sent by facsimile. Notices delivered by hand or sent by facsimile shall be deemed to have been received on the date of delivery or transmission (as the case may be) if same takes place during normal business hours, or if not, on the next following business day. Notices delivered by registered mail shall be deemed to be received 14 (fourteen) days after posting.
10.5. The parties may, by 14 (fourteen) days written notice, change their nominated address or facsimile number for the purposes of this Section 12, to any other address within the Republic of South Africa
11. FORCE MAJEURE
Neither party shall be liable for failure to fulfill its obligations in terms of this Agreement when such failure can be attributed to causes beyond its reasonable control including:
11.1. The failure or delay of any supplier,
11.2. War, civil unrest, acts of insurrection;
11.3. Fires, floods, earthquakes;
11.4. Acts of God; or
11.5. Strikes or lock outs.
12. OTHER PROVISIONS
12.1. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
12.2. This Agreement will be governed by the laws of the Republic of South Africa.
12.3. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. The terms and conditions of this Agreement will supersede all other terms and conditions submitted by the Customer, and all and any written and oral communications between the parties.
12.4. Westech Systems cc may cede its rights under this Agreement including, without limitation, the right to receive payments, without the Customer’s consent. Westech Systems cc will not assign its obligations under this Agreement, which consent may not be withheld unreasonably. The Customer will not cede, assign or transfer its rights or obligations under this Agreement without prior written consent of Westech Systems cc, which consent may not be withheld unreasonably.
12.5. This Agreement may be modified or added to only by a written addendum signed by a duly authorized representative of each party.
12.6. Each paragraph and provision of this Agreement is severable, and if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.
12.7. The terms and conditions appearing in Schedule A hereto are hereby incorporated into the Agreement. In the event of any conflict between the terms and conditions of this Agreement and those appearing in Schedule A, the terms and conditions of this Agreement shall prevail
13. DISPUTE RESOLUTION
13.1. In the event of any dispute or difference arising between the parties relating to or arising out of this Agreement including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the parties shall forthwith enter a process of conciliation in order to attempt to resolve such dispute or difference. At least one member of the Board of Directors/Principal for each party shall be actively involved at all times in the conciliation process.
13.2. In the event that such dispute or difference cannot be resolved by way of conciliation within 30 (thirty) days of such process commencing, either party may declare a formal dispute, which dispute shall be finally settled, at the option of Westech systems, by the courts of South Africa or by a single arbitrator mutually appointed by the Customer and Westech Systems cc. Arbitration proceedings shall be conducted in accordance with the rules of the Arbitration Foundation of South Africa, and shall be held in Johannesburg, South Africa.
13.3. The provisions of this clause shall continue to be binding on the parties, notwithstanding any termination or cancellation of this Agreement.
The Customer acknowledges having read and understood this agreement (including the attached schedule) and is not entering into this agreement on the basis of any representations not expressly set forth in it.
