1.             INTERPRETATIONS AND DEFINITIONS

1.1          Word importing:

1.1.1       any one gender include the other gender;

1.1.2       the singular include the plural and vice versa; and

1.1.3       the singular includes created entities (corporate and unincorporated) and vice versa.

1.2          Unless the context otherwise indicates, the following expressions shall have the meanings given to them hereunder and cognate expressions shall have corresponding meanings:

1.2.1       “Act” means the Electronic Communications Act No 36 of 2005, as amended;

1.2.2       “Affiliate” means, the holding company, subsidiary, associated and/or related company of BCSnet, including their successors, permitted assigns, employees and agents as the case may be;

1.2.3       “Agreement” means this master services agreement and includes a reference to all schedules and annexures hereto;

1.2.4       “BCSnet”” means BCSnet (Pty) Limited a company duly registered under the company laws of the Republic of the South Africa with registration number 1998/008872/07 and having its principal place of business at 2^nd Floor Simgos House, 162 Anderson Street, Johannesburg 2001.

1.2.5       “Business Day” means any day other than Saturday, Sunday or a public holiday officially recognized as such in the Republic of South Africa;

1.2.6       “Customer” means _______ (Pty) LTD, a company duly registered under the company laws of the Republic of the South Africa with registration number:  and having its principal place of business at _______________

1.2.7       “Customer Order Form” or “COF” means the form through which the Customer accepts a quotation for services, setting out the details of the Services requested such as quantities, fees, Service Levels and charges payable;

1.2.8       “Due Date” means the date specified in the relevant invoice, or if no such date is specified, the date of payment which is thirty (30) Days from the date of the invoice;

1.2.9       “Effective Date” means the date of signature of this Agreement by the Party signing last in time;

1.2.10    “Intellectual Property Rights” means and includes:

1.2.10.1         rights in and in relation to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), copyright, database, domain name, circuit topography design, and/or utility model, and including the benefit of all registrations or applications to register and the right to apply for registration of any forgoing items and all rights in nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof) and wherever in the world enforceable

1.2.10.2         all other intellectual property rights and forms of protection of a similar nature or having equivalent or similar effect and which may subsist anywhere in the world;

1.2.11    “Licences” means the electronic communications service and electronic  communications network service licenses issued to BCSnet on 16 January 2009, following the conversion, in the terms of the Act, and any renewal, amendment, re-issue of equivalent thereof authorizing BCSnet to provide the services;

1.2.12    “MRC” or “Monthly Recurring Charge” means the monthly charges for the services as set out in applicable COF;

1.2.13    “Network”  means the communication network components owned and operated by BCSnet, including points of presence (“PoP”), but does not include customer premises equipment (modems, routes etc), or any networks or network equipment not owned or controlled by BCSnet;

1.2.14    “ NRC” or “ Non- Recurring Charge” means installation fee for the Service as set out in applicable COF;

1.2.15    “ Party” means either of the signatories to this Agreement and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns;

1.2.16    “Services Description” means a schedule containing the detailed description of the nature and type of each different Service requested by the Customer, which is provided by BCSnet, as attached to Schedule , from time to time;

1.2.17    “Services” means any BCSnet services provided to the Customer under a Customer order form;

1.2.18    “Service Commencement Date” means the date on the Service handover Form;

1.2.19    “Service Handover Form” or “SHF” means the form provided by BCSnet to the Customer after BCSnet has completed installation and testing of the service;

1.2.20    “Service Levels” means the levels of service required in relation to the provision by BCSnet of the Service as fully set out in Schedule 1 to this Agreement

1.2.21    “Terminating Services” means those Services that are terminated in accordance with clause 15.1.3 below;

1.2.22    “Termination Date” means the date upon which this agreement terminates for any reason whatsoever.

1.3          headings are for convenience only and so not affect the interpretation of this Agreement.

1.4          In the event of ambiguity or conflict between any of the constituent parts of the Agreement, the order of precedence in the interpretation of the Agreement shall be:

1.4.1               The Master Services Agreement; and

1.4.2               The Schedules.

1.5          the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract shall not apply.

1.6          any reference to an enactment is to that enactment as at Signature Date and as amended or re-enacted from time to time.

1.7          If any provision in a definition is a substantive provision imposing rights or obligations on any Party effect shall be given to it as if it were a substantive provision in the body of the Agreement.

1.8          When any number of days is prescribed in this Agreement, same shall be reckoned exclusive of the first day and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day.

1.9          Reference to day/s, month/s or year/s shall be construed as calendar day/s, month/s or year/s.

1.10        a law shall be construed as any law (including common law) or statute, constitution, 

decree, judgment, treaty, regulation, directive, by-law, order or any legislative measure

of any government, local government, statutory or regulatory body or court.

2.             INTRODUCTION

2.1          The Customer hereby appoints BCSnet to provide the Services, subject to the terms and conditions contained in this Agreement, which appointment BCSnet hereby accepts.

2.2          BCSnet shall be entitled to appoint any of its Affiliates to provide the services on written notice to the Customer to such effect, provided that BCSnet shall be and remain liable with such appointee for the due and proper performance by it of all of its duties, functions and obligations under this Agreement.

3.             COMMENCEMENT DATE AND DURATION

3.1          This Agreement shall commence on the Effective Date and shall there after remain in force indefinitely, subject to the remaining provisions of this Agreement.

3.2          The commencement of the Services to be provided shall be in terms of each individual COF that is completed by the Customer and will be effective from the Service Commencement Date for the duration specified in the COF

4.             PROVISION OF SERVICES

4.1          BCSnet hereby agrees that it will as from the Effective Date, and thereafter continue throughout the duration of this Agreements to, supply the Services as requested by the Customer from time to time, in accordance with the terms and conditions of this Agreement.

4.2          For the duration of this Agreement, the Customer shall obtain the services as it requires from BCSnet in terms of this Agreement and the COF’s concluded from time to time.

4.3          BCSnet shall not be committed to supply any services to the Customer until a COF in respect of the required services has been signed by the Customer.

4.4          In providing the Services to the Customer pursuant to each of the COF, BCSnet reserves the right to utilize any technology which it has available and which it considers at its discretion as the most suitable and reasonable to render Services.

4.5          BCSnet reserves the right to utilize any spare transmission capacity that it has installed for the Customer for the purpose of providing services to other BCSnet customers, provided that such use of spare capacity does not have an adverse effect on the provision of the Services to the Customer.

4.6          The Services shall be used by the Customer in accordance with the terms and conditions of this Agreement.

4.7          The Customer shall endeavour to ensure that the Services are not used in a manner which constitutes an infringement of any rights of BCSnet or any third party, or any illegal, fraudulent or any unauthorized activities.

4.8          The Customer shall further endeavour to ensure that it and its customers do not by any act or omission, damage, interfere with or impede the operation of the Service or Network provided by BCSnet.

4.9          Where the Customer is aware that there is any violation or contravention contemplated in this clause 5, it will co-operate and provide BCSnet with the necessary information to assist in identifying, preventing or remedying or rectifying such violation or contravention.

4.10        Where the Customer has a customer that has a service requirement that is not covered by an existing COF, the additional or alternate requirement of that customer will be addressed on a case by case basis, provided that this requirement is brought to the attention of BCSnet promptly.

4.11        Each COF shall constitute an agreement between the Parties subject to and regulated by this Agreement.

5.             FEES AND CHARGES

5.1          All payments payable by the Customer in terms of the COF shall be paid in full without deduction or demand, free of exchange, to BCSnet at its domicilium on or before due date, and the Customer shall not be entitled to withhold any part of such payments or to make anything but the full payments due to BCSnet in terms of the COF. The Customer acknowledges and agrees that any breach of the whole or any part of this Clause 6 shall be a breach of this Agreement and BCSnet shall be entitled to terminate this Agreement and to enforce whatever rights it has against the Customer in terms of this Agreement.

5.2          Charges or fees for the provision of the Service shall be paid to BCSnet in accordance with the COF.

5.3          BCSnet shall be entitled to adjust the monthly fees and charges as a result of any regulatory, economical, or government imposed factors that impact on such fees and charges.

5.4          The rates payable by the Customer to BCSnet as set out in the COF hereof shall escalate annually on the annual anniversary date of the Commencement Date of the COF to such rates as may be agreed between the parties.  Failing mutual agreement, then the rates payable for the following twelve month period shall escalate by the average between CPI and CPIX as determined by STATS SA. Any charges incurred by BCSnet in the provision of the Service/s will be increased when increases are applied by the suppliers of these services and products to BCSnet.

5.5          In the event of any dispute arising as to the amount or calculation of any fee or charge which is payable by Customer; the dispute shall first be referred to the Financial Directors of the Parties. Should the dispute not be resolved within 7 working days, then the matter shall be referred for determination to independent auditors. They shall act as experts and their decision shall be final and binding on BCSnet and Customer. The Party at fault, as determined by the independent auditors, shall make payment towards the expenses for the engagement of the independent auditors’ services.

6.             INVOICING

6.1          BCSnet will invoice the Customer for each Service provided under this Agreement from the Service Commencement date.

6.2          BCSnet shall, in relation to all fees due under this Agreement, provide the Customer with a detailed monthly statement of account (together with all related tax invoices) setting the amount due and payable by the Customer.

6.3          BCSnet may include on any invoice any amount not previously billed for calendar months prior to the current month.

6.4           All payments to be made in terms of this Agreement shall be made by the Client to BCSnet by way of Electronic Fund Transfer on the ^1st of the month predating the month in which the Service is to be rendered, as invoiced by BCSnet in advance reflecting the amounts so payable, without deduction or set-off of any amount of whatsoever nature or for whatsoever reason, and in South African currency. In the event that the 1st falls on a public holiday or a weekend, the amounts payable will be due on the first working day thereafter;

6.5          If any amount is overdue, the Customer shall pay interest on the overdue amount at prime rate plus 5% (five percent), such interest to run from the date upon which payment of the relevant amount became due until payment thereof has been made in full (together with interest).

6.6          Invoices shall be provided electronically to the Customer by no later than 3 (three) days after the invoice date.

7.             THE CUSTOMER’S OBLIGATIONS

The Customer shall ensure that, in making use of the Services, it shall:

7.1          comply with this Agreement and such other terms and conditions as BCSnet may notify to the Customer for the purpose of continuous and secure provision of the Services or to comply with any applicable law;

7.2          procure that the Customer’s customers do not infringe the rights of any person, including but not limited to, intellectual property rights and rights of confidentiality;

7.3          not do anything which is unauthorized or illegal under any applicable law; and

7.4          adhere to applicable laws and obtain such permissions and approvals necessary for the Customer to use the Services thereunder.

7.5          Shall not commit nor attempt to commit any act or omission which directly or indirectly:

7.5.1.          Damages in any way to BCSnet's technical infrastructure or any part thereof in the Customer’s possession;

7.5.2.          Damages in any way the technical infrastructure of any third party supplier used by BCSnet to provide any part of the Services, including Telkom and / or Vodacom;

7.5.3.          Impairs or precludes BCSnet from being able to provide the Service/s in a reasonable and businesslike manner;

7.5.4.          constitutes an abuse or malicious misuse of the Service/s;

7.5.5.          Or is calculated to have the abovementioned effect.  In any such event, should BCSnet or any third party supplier used by BCSnet to provide the Services incur expenses to remedy the situation, BCSnet reserves the right to charge the Customer the expenses so incurred. 

7.6.       Is prohibited from selling, reselling or otherwise dealing with the Service/s in any manner whatsoever, except for purposes of its own business.  Without limitation to the aforegoing, any consideration, which Customer may receive whilst acting in breach of this prohibition, shall be forfeited to BCSnet.

8.             RETAINED RESPONSIBILITIES

8.1          In connection with the Services provided by BCSnet under this Agreement and any COF, the Customer undertakes to provide to BCSnet or retain responsibility for, as applicable, the functions and requirements listed in the relevant Services description.

8.2          BCSnet’s non-performance of any particular obligation under this Agreement shall be excused if and to the extent such BCSnet non-performance results from the Customer failing to perform its retained responsibilities.

9.             BCSNET’S OBLIGATIONS

BCSnet shall not do , or permit to be done, anything in relation to the services which may reasonably be expected to damage or materially interfere in any way whatsoever with the proper normal operation of the Customer’s network.

10.          SAFETY AND SECURITY

10.1        Each Party agrees to comply with safety and security procedures notified to them by the other Party and with the requirements of the Occupational Health and Safety Act.

10.2        All access to the Customer sites by BCSnet and its employees, agents and contractors shall be in terms of the Customer’s safety and security procedures, as amended from time to time.

10.3        The Parties shall each at their own cost and expense take whatever steps as are necessary to procure and discharge their respective obligation and rights in terms of this Agreement and applicable laws to ensure the health and safety of the other Parties’ employees, agents, directors, sub-contractors and members of the public.

10.4        The customer shall be entitled to request BCSnet to remove any employee, agent or contractor from its team if it is of the reasonable opinion that such person is a security or safety risk. Any such request shall be in writing and shall stipulate the reasons why the Customer believes the requested removal is necessary.

11.          FORCE MAJEURE

11.1        A Party shall not be liable for a failure to perform any of its obligations in terms of this Agreement in so far as it is able to prove that:

11.1.1            such failure was due to an impediment beyond its reasonable control;

11.1.2            it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of this Agreement; and

11.1.3            it could not reasonable have avoided or overcome the impediment or at least its effects and, for purposes of this clause 12, the following events (which enumeration is not exhaustive) shall be deemed to be impediments beyond the control of each of the Parties, namely:

11.1.3.1         war, whether declared or not, civil war, civil violence, riots and revolutions, acts of piracy, acts of sabotage;

11.1.3.2         natural disasters such as violent storms, cyclones, earthquakes, floods and destruction by lightning;

11.1.3.3         acts of authority, whether lawful or unlawful, apart from acts for which the Party seeking relief has assumed risk; and

11.1.3.4         acts and omissions of any third party telecommunications provider or any utility.

11.2.     Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date on which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the date on which such impediment ceases to exist, provided that if the impediment continues for a period of more than 30 (thirty) consecutive days, the other Party shall be entitled to terminate this Agreement by written notice to the Party seeking relief.

12.          LIMITATION OF LIABILITY

12.1.     BCSnet shall not be liable to the Customer, its employees, agents or sub-contractors or any third party for any loss or damage of whatsoever nature and however arising (including consequential, indirect, punitive, special or incidental loss or damage which shall include but shall not be limited to loss of property or loss of profit, business, goodwill, revenue or anticipated savings) or any costs, claims or demands of whatsoever nature and howsoever arising, whether out of breach of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability, in delict or otherwise, whether asserted against BCSnet or against the Customer by any third party and whether based on or in relation to this Agreement, any Services performed or performed or undertaken under or in connection with this Agreement, the rendering or non-rendering of the Services, their withdrawal or suspension, or otherwise.

12.2.   Without limiting the provisions of the clause13.1 in any way, BCSnet shall not be liable to the Customer for:

12.2.1.        the failure of BCSnet for any reason whatsoever to supply and/or deliver and/or provide installation of any equipment  on the required date, but no later than 2 (two) days thereafter or at all;

                                                                   and/or

12.2.2.        the interruption, suspension or termination of the Services due to third party action and which scope falls outside the scope of BCSnet’s direct control.

12.2.3         loss damage arising as a result of lost data, damaged or corrupted data or a delay in transmissions.

12.3.     BCSnet’s liability to the Customer for death or injury resulting from BCSnet’s gross negligence or the negligence of its employees, agents or sub-contractors shall be limited to the extent of the proceeds paid in terms of any insurance policy held by BCSnet. BCSnet shall investigate each claim on its own merits prior to the insurance company which holds the insurance policy paying the amount claimed. Payment shall be based on the merits of the claim and shall not be determined by the amount covered by the insurance policy. BCSnet shall not be liable to the Customer for any failure or refusal on the part of the relevant insurance company to pay a claim.

12.4.     Without in any way limiting or derogating from above provisions, the Parties agree that the total amount of BCSnet’s liability arising out of the performance of its obligations under and in terms of this Agreement and whether in contract, delict, breach of statutory duty or otherwise, shall, during the term of this Agreement, be limited to the fees paid by the Customer in respect of a 3 (three) month period.

12.5.     Except as provided in this clause 13 in no event shall BCSnet, be liable to the Customer for indirect or consequential loss or damage or loss of profits, business, revenue, goodwill or anticipated savings of an indirect nature.

12.6.     Nothing contained in this clause 13 shall limit the Customer’s liability in respect of charges incurred for Services.

12.7.     These limitations on liability apply to the benefit of BCSnet, its Affiliates and third parties whose networks are connected to the Network.

13.          SUSPENSION OF SERVICES

13.1        BCSnet may lawfully suspend, withdraw all or part of any Service under Service at any time until further notice to the Customer if, in BCSnet’s reasonable discretion:

13.1.1            the continued provision of the Service will cause BCSnet to breach an applicable law or be in contravention of its Licenses;

13.1.2            the customer is in breach of or otherwise is not complying with any of the provisions of this Agreement; and

13.1.3            Any overdue tax invoice for charges billed by BCSnet to the Customer remains unpaid.

13.2         The exercise of BCSnet’s right to suspend the Services under this clause 14 is without prejudice to any other remedy available to BCSnet under the Agreement and does not constitute a waiver of BCSnet’s right to subsequently terminate the Agreement.

13.3         Where BCSnet has suspended the services in terms of clause 14.1, BCSnet may:

13.3.1.        refuse to reconnect the Services unless precluded by any law or order of court; and

13.3.2.        if it agrees to reconnect the Services, require the Customer to pay a reconnection fee in advance as a pre-condition to making the services available again.

14.          TERMINATION

14.1      Termination for convenience

14.1.1            Either Party shall be entitled to terminate the Agreement by providing the other Party with 60 (sixty) days’ prior written notice to that effect.

14.1.2            Termination in accordance with clause 15.1.1 above shall not affect the term of any COF, which shall continue, in full force and effect, in accordance with the terms and conditions of this Agreement as if this Agreement had not been terminated, until the end of the term of the COF .

14.1.3            Notwithstanding the Contract Term set out in the COF, the Customer shall be entitled in its sole discretion and without cause, to the terminate one or more COF’s (the “Terminating Services”) by giving BCSnet 30 (thirty) days’ prior written notice, which termination shall be subject to the early termination charges set out in clause 17 below.

14.2        Termination for cause

Without prejudice to any rights and remedies that may have accrued, Either Party may terminate this Agreement by providing the other Party with 30 (thirty) days written notice of its intention to do so if the other Party:

14.2.1            Ceases to trade (either in whole, or as to any part involved in the performance of this agreement);

14.2.2            Becomes insolvent, has a receiver, administrative  receiver, administrator or manager appointed of the whole or any part of its assets or business; or

14.2.3            Makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, is unable to pay its debts under any applicable law relating to bankruptcy or the relief of debtors.

14.3      Breach

                   14.3.1        In the event that there is a breach by any Party of any of the terms of this Agreement, either Party shall be entitled to provide the Party in breach with a written notice of 30 (thirty) days to remedy such breach.

                   14.3.2               Either Party shall be entitled to terminate this Agreement, where either Party:

                  14.3.2.1.     commits a material breach of any its obligations under this Agreement which is

                                    incapable of remedy; or

                  14.3.2.2      fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this Agreement after having been required  in writing to remedy or desist from such breach within a period of 30 (thirty days.

15.          SERVICES VARIATIONS

If either the Parties wishes to make a change, modification or adjustment to any element of any Service, the following procedure will apply:

15.1        The Party who requests the change will forward a change request to the other Party, setting out the details of the change request;

15.2        BCSnet will investigate the feasibility, cost implications and of the change request on the services and notify the Customer thereof (“Impact Study”);

15.3        If the Customer makes a decision to proceed with the change request after considering the Impact Study, the Customer shall give BCSnet a written instruction to proceed with that change on the basis set out in the Impact Study. That instruction shall be binding on the Parties and the Agreement shall be deemed to be amended accordingly;

15.4        If the Parties cannot agree upon the necessary amendments, the change request will not be implemented.

16.          EARLY TERMINATION COSTS

16.1        The termination fee shall be calculated on the outstanding fees and charges for each of the Terminating Services as at the Termination Date and will be determined as follows:

16.1.1              in the event that the Terminating Services are terminated prior to the Service Commencement Date thereof, the Customer shall be liable for the lower of the actual costs incurred by BCSnet in implementing the Service or the “NRC”, plus 6 (six) months of the MRC;

16.1.2              In the event that the Terminating Services are terminated subsequent to the Service Commencement Date thereof and the Contract Term for the Terminating Services is 12 (twelve) months or less; 100% of the fees and charges for the remainder of the Contract Term of the Terminating Services;

16.1.3              In the event that the Terminating Services are terminating subsequent to the Commencement Date thereof and the Contract Term for the Terminating Services is greater than 12 (twelve) months; 100% of the fees and charges for the Terminating Services for the remainder of the first 12 (twelve) months (if any) and 50% of the fees and charges for the Terminating Services for each month thereafter.

16.2      The amounts referred to in clause 17.1 above shall be in addition to all fees and charges payable in the ordinary course in respect of the applicable COF for the Terminating Services, plus any other Services that continue unchanged, as at the Termination Date.

17.          DISPUTE RESOLUTION

17.1         In the event of any Dispute arising between the Parties under this Agreement or any Service, the Parties will act in good faith to attempt to settle the Dispute through discussions between senior representatives (which may include the respective CEO’s) of the Parties within 30 (thirty) days of a Party notice of the issue in dispute.

17.2      Any Dispute which cannot be resolved by the Parties within the 30 (thirty) days period, as provided in  this clause 18, shall be resolved by arbitration in the English language by a single arbitrator appointed by the Arbitration Foundation of South Africa and in accordance with the Rules of the Arbitration Foundation of South Africa.

17.3.     Notwithstanding the provisions of this clause 18, either Party shall have the right to seek relief by way of interim relief from any court of competent jurisdiction.

18.          CONFIDENTIALITY

18.1        Subject to clauses 19.2 to 19.4, each Party must:

18.1.1            use the other Party’s confidential information only for the purposes of this Agreement and must keep confidential and not disclose to any person the other Party’s confidential information; and

18.1.2            not make press or other public announcements or issue press releases about the Services, the Agreement or the transactions related to it without the approval of the other Party (“Announcement”).

18.2        Clause19.1.1 does not apply to confidential information that is in the public domain other than such information that has entered the public domain as a result of a breach of this Agreement or any obligation of confidence.

18.3         A party may disclose the confidential information of the other Party if that disclosure is to the employees, contractors or professional advisers of that Party or its affiliates who have a need to know that information in relation to provision of the Services and who have agreed to keep it confidential.

18.4         A  Party may disclose confidential information of the other Party or make an Announcement that is required in accordance with any applicable law.

19.          INTELLECTUAL PROPERTY RIGHTS

19.1        Nothing contained in this agreement shall be construed to confer or be deemed to confer on either Party the Intellectual Property Rights of the other Party.

19.2        Each party indemnifies the other party against all crimes, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claims of infringement of any patent, trade secret, copyright, trademark, service mark, trade name or similar proprietary right of any third party, which claim arises directly or indirectly out of the infringement by a Party of the intellectual Property Rights of the other Party.

20.          CESSION AND ASSIGNMENT

20.1        Subject to the clause 23.3, no rights, duties or liabilities under this Agreement may be ceded, assigned, transferred, conveyed or otherwise disposed of by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld.

20.2         Notwithstanding the provisions of clause 21.1 above, BCSnet is entitled to cede, transfer and make over its right, title and interest in and to and all debts and receivables due and/or payable to BCSnet under this Agreement, both future and present arising under this Agreement, as security or otherwise. The Customer hereby recognizes and consents to such cession and/or transfer (including any splitting of claims that may arise) and agrees that the prohibitions of clause 21.1 hall not apply to any such cession and/or transfer.

21.          DOMICILIA AND NOTICES

21.1         Each of the Parties choose as their domicilla citandi et executandi (domilium) for the purposes of  

 giving any notice, the serving of any process or for any other purpose arising from this Agreement at:

21.2         Each of the Parties shall e entitled from time to time, by written notice to the other to vary its

 domicilium to any other address within the republic of South Africa which is not a post office box or poste restante.

21.3         Any notice given and any payment made by any Party to the other (“the addressee”) which:

21.3.1            is delivered by hand during the normal business hours of the addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;

21.3.2            is posted by prepaid 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, until the contrary is proved by the addressee, to have been received by the Addressee on the eighth day after the date of posting.

21.4        Where in terms of this Agreement any communication is required to be in writing, the terms ‘writing’ shall  include communications by electronic mail and/or facsimile. Communications by electronic mail or facsimile shall, unless the contrary is proved by the addressee, be deemed to have been received by the addressee twenty four (24) hours after the time of the transmission.

22.          GENERAL

22.1        The Parties shall co-operate and consult with each other in good faith regarding the implementation of this Agreement with a view to achieving the aims and objectives of this Agreement.

22.2        No Party shall be regarded as having waived, or be precluded in any way from exercising any right under or arising from this Agreement by reason of any Party having at any time granted an extension of time for, or having shown any indulgence to the other Parties with reference to any payment or performance hereunder, or having shown any indulgence to the other Parties with reference to any payment or performance hereunder, or  having failed to enforce, or delayed in the enforcement of any right of action against the other Parties.

22.3        Neither Party relies in entering into this Agreement upon any warranties, representations, disclosures or expressions of opinion which have not been incorporated into this Agreement as warranties or undertakings.

22.4        No variation, modification or consensual cancellation of this Agreement shall be of any force or no effect unless reduced to writing and signed by both Parties.

22.5        This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.

22.6        If any provision of this Agreement is construed to be illegal or invalid, it will not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal or invalid provisions will be treated as being deleted from this Agreement and no longer incorporated, but all other provisions of this Agreement will continue to be binding on the Parties.

22.7        The validity of this Agreement, its interpretation rights and obligations of the Parties and all other matters arising out of it or its termination, for any reason whatsoever shall be determined in accordance with the laws of the Republic of South Africa.

22.8        Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.

22.9        Each party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.

22.10      Each signatory hereto warrants that he/she has due authority to do so.