INDEPENDENT CONTRACTOR AGREEMENT

Entered into between:

INSPIRE-D BUSINESS DESIGN (PTY) LTD

Registration Number: 2012/211432/07

Owner and operator of inspiredmarketing.co.za and inspiredpublications.co.za

(hereinafter referred to as ‘INSPIRED’)

and

[THE INDEPENDENT CONTRACTOR]

(whose particulars are set out in the ‘Contractor Schedule’ as an annexure to this agreement)

(collectively referred to as “the parties”)

IT IS THEREFORE AGREED AS FOLLOWS:

1           INTERPRETATIONS

1.1         The clause headings in this agreement have been inserted for convenience only and will not be taken into consideration in its interpretation.

1.2         This agreement, together with the Contractor Schedule, constitutes the whole agreement between the parties with regard to the subject matter hereof and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this agreement and/or the Contractor Schedule, and the parties will not be entitled to rely, in any dispute regarding this agreement and/or the Contractor Schedule, on any terms, conditions or representations not expressly contained in this agreement.

1.3         The validity, application and interpretation of this agreement will be governed by the laws of the Republic of South Africa.

1.4         Any reference to the singular includes the plural and vice versa.

1.5         Any reference to natural persons includes legal persons and vice versa and references to any gender include references to the other genders and vice versa.

1.6         If any provision in this clause 1 and clause 2 is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in this clause 1 and clause 2, effect shall be given thereto as if such provision were a substantive provision in the body of the agreement.

2           DEFINITIONS

2.1         “the INSPIRED System” means INSPIRED marketing communications software, services, websites and 3rd party software applications provided by the contractor based on, and in terms of, the INSPIRED System;  with the sole purpose of supplying marketing communications software and services to organisations, managers and other persons in accordance with the guidelines set out in the INSPIRED System itself.

2.2         “the INSPIRED Service Agreement” means the unique service agreement and suite of marketing communications software, services, websites and 3rd party software applications detailed within the INSPIRED Service Agreement which is operated under licence or owned by INSPIRED and the intellectual property of INSPIRED and which currently constitutes the names and contents of the INSPIRED Service Agreement (specifically including, but not limited to, materials, text, diagrams, concepts, methods, algorithms and statistical equations indicated or implied therein), as well as the marketing toolkit namely the “Inspired Marketing Toolkit”; the software support guide namely the “Platform Skills Guide”; and, the contractor agreement namely the “Independent Contractor Agreement”. It is recorded that the titles of the said software, services, toolkits, guides and agreements and the contents thereof may be changed by INSPIRED as INSPIRED develops its marketing communication business.

2.3         “bug” means a defect, inoperability, fault or shortcoming.

2.4         “client” means a client of the contractor.

2.5         “confidential information” means information which is not available to the general public on request and which is disclosed by the client to the contractor (whether directly or indirectly via an contractor) in the course of, or as a result of, the client receiving service as set out in the INSPIRED Service Agreement by the contractor.

2.6         “disabling devices” means any intentional disabling devices in software which corrupts, disables or impedes the operation of, or causes the contamination of, hardware or software. This includes but is not limited to ‘viruses’, ‘time bombs’ or ‘Trojan Horses’.

2.7         “the Contractor Schedule” means the summary of the contractor obligations which forms an annexure to this agreement. The Contractor Schedule and this agreement form one agreement and save for clause 1.2 above and wherever the context would expressly indicate to the contrary, the term “this agreement” shall be deemed to be reference to this agreement plus the Contractor Schedule.

2.8         “website” means the websites which have been established by INSPIRED in order to facilitate the contractor’s execution of the INSPIRED Service Agreement and the operation of the contractor’s (as well as other persons contracting with INSPIRED on terms similar to those in this agreement) business in connection therewith, as well as to provide the general public access to certain information pertaining to, and related to, INSPIRED software and services.

2.9         “added services” means any marketing communications software, services, websites and 3rd party software applications, apart from the current INSPIRED System, which INSPIRED obtains the rights to use and to license its contractors to use whether by virtue of INSPIRED having purchased; obtained license to or otherwise acquired rights to such software and methods.

2.10     “working days” means any day except a Sunday, a Saturday and a public holiday within the Republic of South Africa.

3           LICENCE TO USE THE INSPIRED SYSTEM

3.1         Subject to the contractor complying fully with the terms of this agreement, INSPIRED hereby grants the contractor a limited, non-exclusive, non-transferrable licence to use the INSPIRED System for the purposes of supplying marketing communications software and services on behalf of INSPIRED.

3.2         The contractor acknowledges that he is receiving only a limited licence to use the INSPIRED System in the manner stipulated in clause 3.1 above, and that INSPIRED shall retain all rights and title in and to the INSPIRED System. In amplification hereof:

3.2.1        INSPIRED will retain ownership over the published materials (digital and printed) related to INSPIRED System which INSPIRED made available to the contractor, as well as any copies of such materials, save where same have been sold to the contractor and/or clients;

3.2.2        INSPIRED will retain all right, title and interest in and to the contents of the software, services, websites and 3rd party software applications save in so far as:

3.2.2.1       Such contents are derived from a source other than the INSPIRED System and/or the INSPIRED services;

3.2.2.2       Such contents are details and information pertaining to the contractor or clients;

3.2.2.3       Such contents are within the public domain.

3.2.3        All intellectual property in the INSPIRED Service Agreement, including but not limited to the text, diagrams, algorithms, equations, methods, concepts and ideas incorporated in the INSPIRED Service Agreement (in so far as same are not the intellectual property of other persons); the names “Inspire-d”, “Inspire-d Business Design”, “Inspired Marketing”, “Inspired Education” and the INSPIRED trade mark shall be, and continue to remain, the sole property of INSPIRED despite the contractor’s and the client’s use thereof. The contractor shall not question or dispute the ownership of such Intellectual Property at any time during the continuation in force of this agreement or thereafter. The contractor’s use of the INSPIRED System, related printed and digital materials pursuant to its rights granted in terms of clause 3.1 above will not entitle the contractor to any rights in and to the said INSPIRED System, related printed and digital materials over and above rights granted in terms of this agreement and the use thereof is only permissible so long as this licence is of force and effect.

3.2.4        The moral rights in and to the INSPIRED System and the contents of the system which are not excluded by virtue of clauses 3.2.2.1 and/or 3.2.2.2 and/or 3.2.2.3, remain vested with INSPIRED during the continuation in force of this agreement and thereafter. The contractor’s use of the INSPIRED System and printed and digital materials related thereto, as aforesaid, will not result in the vesting of any moral rights in and to the INSPIRED System in the contractor.

3.3         The contractor shall not:

3.3.1        modify, translate or create derivative works based on the INSPIRED System or its contents;

3.3.2        reverse assemble, decompile or reverse engineer the software on which the services and websites are based, whether in whole or in part, or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats, programming of the software on which the INSPIRED System is based or any files contained in it or generated by the software on which the INSPIRED System is based;

3.4         The contractor is authorised to use the INSPIRED System only in terms of, and for the purposes set out in, clause 3.1 above and for no other purpose.

3.5         The contractor shall not be entitled to sub-licence any persons to use any part or all of the INSPIRED System.

3.6         The contractor may not use and/or exploit the INSPIRED System in any manner or for any purpose (whether for non-commercial purposes or for commercial gain under any circumstances) save in the circumstances and manner specified in clause 3.1 above, unless INSPIRED consents thereto in writing.

3.7         It is specifically recorded that INSPIRED shall enter agreements similar or identical to this agreement with other persons who wish to enter a contractual relationship with INSPIRED for the purpose of using and/or supplying the INSPIRED System for the purpose set out in clause 3.1 above.

4           USE OF WEBSITES

4.1         It is recorded that the software, services and websites have been acquired and/or created and/or set up by INSPIRED for the purpose of facilitating the contractor’s supply of the INSPIRED Service Agreement.

4.2         It is further recorded that the website comprises a section which is open to access by the general public as well as access to licenced 3rd party software applications which may only be accessed by persons who enter a contractual relationship with INSPIRED on terms similar to this agreement (which includes the contractor).

4.3         The contractor shall be provided with a password to access to the part of the website and licenced 3rd party software applications which only he and INSPIRED may access. This part of the website and any other licenced 3rd party software application is the part which shall be used by the contractor as a database and publishing facility and as a means to manage his clients Service Agreement, subject to clause 8 below.

4.4         The contractor shall be obliged to:

4.4.1        Keep his password confidential, the contractor acknowledging that if the password is disclosed to any other person such person shall have the ability to access the Contractor’s part of the INSPIRED System at will.

4.4.2        Issue instructions to INSPIRED to render invoices in terms of clause 8 below. The manner of issuing billing instructions shall be either by way of issuing the instruction via the website or licenced application, alternatively via any other method instituted by INSPIRED in its sole discretion. A billing method instituted by INSPIRED must be followed exactly by the contractor when issuing billing instructions in order for such billing instructions to be valid. INSPIRED shall be obliged to issue invoices in terms of clause 8 below in response to validly issued billing instructions.

4.5         Once this agreement is terminated then:

4.5.1        the contractor and the clients of the contractor may no longer use the part of the website and software applications referred to in clause 4.3 above and INSPIRED is authorized to take such necessary and reasonable steps in order to prevent the contractor’s or the clients of the contractor’s further use of the said part of the INSPIRED System;

4.5.2        the contractor may no longer supply the INSPIRED System;

4.5.3        the contractor may no longer make any use whatsoever of the INSPIRED System (save that the portion of the website created for access thereto by the general public may still be accessed by the contractor).

4.5.4        the contractor shall, within 10 (ten) working days of delivery of written demand by INSPIRED, deliver to INSPIRED:

4.5.4.1       the name, physical and postal addresses, telephone and fax numbers and email addresses of all of the clients;

4.5.4.2       all materials in the possession of the contractor which pertain to the INSPIRED System.

4.5.5        INSPIRED may license any other person to supply the INSPIRED System in relation to the clients in the place of the contractor.

4.5.6        The contractor shall not be entitled to any compensation in the event that another person supplies the INSPIRED System in relation to the clients.

4.6         If after the termination, expiry or lapsing of this agreement, for any reason whatsoever, or if this agreement is held to be void or invalid for any reason whatsoever then, without prejudice to any other remedy which INSPIRED may have:

4.6.1        If the contractor makes any use of the INSPIRED software, services and the websites then the contractor shall be liable to INSPIRED for fees in terms of clause 9 and 10 below.

4.6.2        Fees falling due in terms of clause 4.6.1 above shall be regarded as pre estimated liquidated damages suffered by INSPIRED as a result of the conduct of the contractor.

4.6.3        If the contractor’s continued use of the INSPIRED System is pursuant to the contractor disputing a termination of this agreement by INSPIRED, then:

4.6.3.1       If the termination is confirmed (whether by court, arbitrator, mediator or by agreement) then fees shall fall due in terms of clause 4.6.1 above and same shall be deemed to be pre estimated liquidated damages suffered by INSPIRED as a result of the conduct of the contractor, as per clause 4.6.2 above, but

4.6.3.2       If the termination is not confirmed (whether by court, arbitrator, mediator or by agreement) then the fees shall fall due in terms of clause 9 and 10 for the duration of the dispute, notwithstanding such dispute and the attempted termination of this agreement.

4.6.4        This clause 4.6 shall be regarded as a separate and severable agreement and shall be unaffected by the termination and/or expiry and/or lapsing and/or voidness and/or invalidity of this agreement and shall remain of force and effect notwithstanding the aforesaid.

4.7         INSPIRED does not warrant to the contractor that the INSPIRED System (including any 3rd party software application) is fit for any particular purpose and shall not be liable for any loss suffered by the contractor or a client of the contractor which may result from:

4.7.1        The contractor, or a client of the contractor’s, use of the INSPIRED System;

4.7.2        The presence or activity or any disabling device or any bug on the INSPIRED System;

4.7.3        The disclosure of confidential information to third parties as a result of the presence or activities of a disabling device, any bug or the activities of hackers. Such a disclosure of confidential information will not be a breach of clause 7 below.

5           JOINING, ON-BOARDING AND TRAINING FEE

5.1         The contractor shall be charged an initial joining fee (hereinafter referred to as a “Joining Fee”). The amount due as a Joining Fee is set out in the Contractor Schedule.

5.2         The Joining Fee shall be due and payable against signature of this agreement.

5.3         It is recorded that the Joining Fee covers costs of materials needed to train contractor as well as the costs incurred and services rendered in registering the contractor on the INSPIRED System and registering the contractor with the administrative systems operated by INSPIRED.

5.4         In the event that the contractor requests further training from INSPIRED, which is over and above the training initially given to the contractor by INSPIRED, then INSPIRED shall be entitled to charge for its services rendered in providing such further training. INSPIRED shall determine (in its sole discretion) the applicable fee that it shall charge for such further training.

6           EXCLUSION OF LIABILITY

6.1         INSPIRED does not warrant that the INSPIRED System is fit for any particular purpose. In particular, and without limiting the generality of the aforesaid, INSPIRED does not warrant that the client’s receipt of the INSPIRED System as set out in the INSPIRED Service Agreement shall produce any particular results for the client or for any other person.

6.2         Subject to clause 6.3 below, INSPIRED shall not be liable to the contractor for any loss suffered by a client or the contractor as a result of, or in connection with, a client or the contractor using the INSPIRED System, or the contractor providing services in terms of the INSPIRED Service Agreement, howsoever such loss may have arisen, including but not limited to, loss which arises from any defect in the INSPIRED System offered by way of the INSPIRED Service Agreement, or loss which is caused by the negligent act or omission of INSPIRED, its agents or employees.

6.3         Clause 6.2 shall not apply to any breach of clause 7 by INSPIRED.

6.4         INSPIRED is not liable to the client or any other person for any loss caused by any act or omission by the contractor.

7           CONFIDENTIALITY

7.1         It is recorded that as a necessary part of the client using the INSPIRED System the client will disclose certain information to the contractor while providing service to the client.

7.2         The contractor is entitled to and shall disclose this information to INSPIRED without notifying the client. Once disclosed to INSPIRED this information shall become confidential information as defined in clause 2 above.

7.3         INSPIRED is entitled to make use of confidential information for the purpose of statistical analysis and the production of statistics. INSPIRED is entitled to make use of these statistics as it seems fit, which use shall include, but not be limited to, disclosure to the general public; disclosure to any person; the sale of statistical information and the right to profit by such sales and the right to use such statistical information to develop any product or method or any other thing. The contractor has no claim to any monies accruing to or received by INSPIRED, or any other person, pursuant to INSPIRED’s use of confidential information in terms of this clause 7. The contractor shall procure that his clients waive any rights which they may have which are in conflict with this clause 7 or which may entitle them to the aforesaid monies.

7.4         Save as permitted in clause 7.3 above, INSPIRED shall not intentionally disclose the confidential information to any person other than:

7.4.1        the client;

7.4.2        the contractor;

7.4.3        those persons employed with the client or the contractor who are required to know the said confidential information for the purpose of their employment with the client or the contractor.

7.5         As an exception to clause 7.4 above, INSPIRED may disclose confidential information to a third party in order to effect compliance with any law.

8           PAYMENTS

8.1         All invoices rendered by the contractor to his client must be rendered by INSPIRED on behalf of the contractor. In this regard INSPIRED will invoice on the following basis:

8.1.1        If the contractor correctly follows the billing instructions instituted by INSPIRED (as per clause 4.4.2 above) then INSPIRED shall be obliged to issue an invoice for and on behalf of the contractor to the client in question, reflecting the fees the contractor has instructed INSPIRED to bill the client in question.

8.1.2        The contractor retains the sole discretion to determine the rate, over and above the amounts due to INSPIRED, at which he bills his clients.

8.2         All payments by the client to a contractor who supplies the client with the INSPIRED System supplied by the contractor must be paid directly to INSPIRED, who collects such monies for and on behalf of the contractor as the agent of the contractor.

8.3         INSPIRED is entitled to institute legal proceedings against a client to collect monies due to the contractor, for and on behalf of the contractor, should the client fail to make due payment of any amounts due. Should INSPIRED institute legal proceedings to collect such monies then the contractor shall be liable to INSPIRED for its legal fees on an attorney and client scale.

8.4         INSPIRED shall pay over monies received from clients of the contractor, and that fall due for payment, within 21 (twenty one) working days of receipt and after deducting fees due in terms of clauses 5, 9 and 10.

9           SOFTWARE AND SERVICE FEES

9.1         The contractor is liable to INSPIRED for software and service fees (hereinafter referred to as the “Service Fee”) for the granting of the right to use, and the usage of, the INSPIRED System.

9.2         This Service Fee shall be set out by INSPIRED in a Cost Estimate or Quote document (and which Cost Estimate or Quote has been accepted and signed off by the contractors’ client and the contractor), as well as any other INSPIRED services fees relating to benefits the contractor derives as a result of the contractor’s use and supply of the INSPIRED System.

9.3         INSPIRED shall be entitled to deduct the Service Fee from payments received in terms of clause 9.2 above.

9.4         In the event that, in breach of clause 8 above, any monies are paid directly to the contractor by virtue of the contractor’s use of the INSPIRED System then, without prejudice to any rights which INSPIRED has in law, INSPIRED shall be entitled to payment of a Service Fee in connection with the monies in question within 10 (ten) working days of the date of the contractor’s invoice (if invoiced), alternatively the date of receipt of such monies by the contractor, whichever date is the earlier.

10       CONTRACTOR AND MATERIALS COST

10.1     The contractor shall be liable to INSPIRED for services and materials which may be requested by the contractor from time to time. These costs are hereinafter referred to as the “Contractor Costs”. The payment of contractor costs is set out in the Contractor Schedule.

10.2     There may be an initial Contractor Cost for set up services and materials which shall be due and payable up front, against signature of this agreement, and thereafter contractor costs shall be due and payable, in advance, on or before the date the services and materials are supplied.

11       PERFORMANCE QUOTA

11.1     The contractor shall generate a reasonable client sales turnover supplying the INSPIRED System. This sales turnover is hereinafter referred to as the “Performance Quota”.

11.2     This quota shall be agreed upon, from time to time, by INSPIRED and the contractor and recorded in the Contractor Schedule.

11.3     Should the contractor not achieve the Performance Quota for a period exceeding 3 (three) months, then INSPIRED may, in its sole discretion, terminate this agreement.

12       FEE INCREASES

12.1     INSPIRED has the sole discretion to stipulate a reasonable increase in the Joining Fee and/or the Service Fee and/or the Contractor Costs supplied on the following terms:

12.2     An increase may automatically be effected, without prior notice to the contractor, effective from 1 January each year;

12.3     In addition to 12.1 above, INSPIRED shall increase 3rd party vendor fees as-and-when such fees are increased. INSPIRED shall notify the contractor immediately upon receiving notification from the vendor of such increase, and such increases shall become effective on the date and under same terms and conditions of such increase as set by the vendor.

13       VAT

INSPIRED is a VAT vendor and VAT shall be charged by INSPIRED on the fees referred to in clauses 5, 9, 10 and 11 above and such VAT shall be payable by the contractor.

14       DURATION

14.1     This agreement shall commence from date of signature hereof by both parties.

14.2     INSPIRED may terminate this agreement on 60 (sixty) day written notice.

14.3     The contractor may terminate this agreement on 60 (sixty) day written notice.

15       ADDED PROGRAMS AND OTHER PROGRAMS AND METHODS

15.1     The contractor is entitled to do business with and/or work for and/or provide services to any other person on such terms and the contractor deems fit, save that in doing so the contractor may not breach the terms of this agreement.

15.2     Where INSPIRED obtains added software, services, website and 3rd party software application, hereinafter referred to as the “INSPIRED Added System”, then INSPIRED may, though is not obliged to, make such added system available to the contractor for use on the same terms and conditions of this agreement, as if it were the INSPIRED System, save where INSPIRED has, in its sole discretion, stipulated additional or amended terms or conditions pertaining to the use of such added system. The contractor is not obliged to make use of an INSPIRED Added System.

15.3     Unless INSPIRED stipulates to the contrary, as per clause 15.2 above:

15.3.1    the terms and conditions of the contractors’ usage of an INSPIRED Added System shall be deemed to be the same as those of his terms and conditions of use of the INSPIRED System; save that

15.3.2    the contractor shall not be liable for any additional fees by virtue of its use of an INSPIRED Added System, unless stipulated to the contrary by INSPIRED.

15.4     The contractor is entitled to make use of any other marketing communications system and/or method in its sole discretion, subject to the following limitations:

15.4.1    Save where such system or method is an INSPIRED Added System, the contractor may not represent to any person, or make use of such system or method in a way which reasonably may create the impression, that such system or method is the, or part of the, INSPIRED System or that such system or method is an, or part of an, INSPIRED Added System.

15.4.2    The contractor in using such system and/or method must state to its clients that such system and/or method is not part of the INSPIRED System or an INSPIRED Added System.

15.4.3    Where the contractor makes use of an INSPIRED Added System it must not represent to any person, or make use of such Added System in a way which reasonably may create the impression that, the Added System is, or is part of, the original INSPIRED System.

15.4.4    Where a contractor makes use of an INSPIRED Added Program it must represent that same is done under Licence from INSPIRED.

16       COMPETING NETWORKS

16.1     It is recorded that there are various persons who have and/or shall contract with INSPIRED on the same and/or similar terms as the contractor and consequently such persons shall, together with INSPIRED and the contractor, form an informal network of businesses. This network does not constitute an association of persons or partnership and has no legal personality.

16.2     For the duration in force of this agreement, the contractor (and a director, member, shareholder, ultimate beneficial shareholder, trustee or beneficiary of the contractor if the contractor is not a natural person) may not belong to any association of persons; any partnership; any business network analogous to that referred to in clause 16.1 above and/or any corporate group, which is a competitor with INSPIRED.

17       RELATIONSHIP BETWEEN INSPIRED AND THE CONTRACTOR

17.1     The contractor is neither an employee nor an agent of INSPIRED but is an independent contractor operating its own business through the use of the INSPIRED System provided by INSPIRED in terms of this agreement.

17.2     The contractor is obliged to represent to its clients that it is an independent contractor operating its own business and that its relationship with INSPIRED is as set out in clause 17.1 above.

17.3     When the contractor contracts with clients the contractor is obliged to contract on terms which:

17.3.1    are approved by INSPIRED, and which

17.3.2    facilitate INSPIRED exercising its rights granted in terms of this agreement which shall include, but not necessarily be limited to:

17.3.2.1   the right to use confidential information and profit thereby in terms of clause 6 above;

17.3.2.2   the right to manage the invoicing of clients and the collection of monies due by clients to the contractor in terms of clauses 5, 8, 9, 10 and 11 above.

18       POLICIES

  • It is recorded that INSPIRED shall have the discretion to stipulate policies and procedures to govern the contractors business which operate in terms of this agreement. These policies and procedures are herein referred to as the “Policies”.
  • The Policies may be changed by INSPIRED, on notice to the contractor, whenever INSPIRED elects and on such terms as INSPIRED elects, in its sole discretion.
  • Policies may not be stipulated by INSPIRED which conflict with this agreement.
  • Save where 18.3 is applicable, the contractor is obliged to comply with the Policies.

19       ACCREDITATION

  • INSPIRED shall subject the contractor to an accreditation process in order to accredit the contractor to act in accordance with the terms of this agreement.
  • The terms of the accreditation process and its duration shall be stipulated by INSPIRED in its sole discretion and the contractor shall be notified thereof.
  • INSPIRED reserves the right to refuse to accredit the contractor, in its sole discretion.
  • Should INSPIRED refuse to accredit the contractor then written notice thereof to the contractor same shall be deemed to be a cancellation of this agreement. In this regard cancellation shall be deemed to be effective from the date of delivery of the notice refusing accreditation.
  • The contractor may not contract with clients until it has been issued with written notice of its accreditation by INSPIRED.

20       PAYMENTS FREE OF SETOFF

20.1     All payments made by the contractor to INSPIRED in terms of clause 5, 8, 9, 10 and 11 above must be made free from set off and any deduction whatsoever.

21       EXPENSES

21.1     All expenses incurred by the contractor in acting in terms of this agreement and/or in running its business, including travel and marketing costs, shall be for the contractor’s own account and INSPIRED shall have no liability therefor.

21.2     Any expenses incurred by INSPIRED in acting in terms of this agreement shall be for INSPIRED’s own account, subject to INSPIRED’s entitlement to levy fees and recover expenses on the terms set out as set out in this agreement.

21.3     Clauses 21.1. and 21.2. above do not include either party’s liability for the legal costs of the other party pursuant to an order of a court and/or arbitrator flowing from such party relying upon and/or exercising its rights and/or obligations in terms of this agreement.

22       CESSION AND ASSIGNMENT

Neither party may cede or assign this contractor agreement, contractor schedule or service agreement without the other parties prior written consent.

23       JURISDICTION

The parties consent to the jurisdiction of the Magistrates Court for the adjudication of any dispute which may arise in connection with or in terms of this agreement.

24       DISPUTE RESOLUTION

24.1     Should a dispute arise between the parties either party may refer the dispute to arbitration. Referral to arbitration will not be binding on the other party unless such party agrees to arbitration.

24.2     Referral to arbitration will be by way of written notice delivered to the address of the other party as in terms of clause 27. The parties will be bound to follow arbitration once the other party, by way of written notice delivered to the referring party in terms of clause 27, agrees to the referral.

24.3     Within fourteen days of the parties agreeing to follow arbitration, calculated from the day after the date when the notice agreeing to arbitration is delivered, the parties must agree in writing to an arbitrator to arbitrate the dispute, failing which the president of the Law Society of the Cape of Good Hope will appoint an arbitrator. The said nomination shall be final and binding.

24.4     The arbitrator appointed in terms of clause 24.3 above must be independent and unbiased.

24.5     The arbitrator must stipulate in writing all the procedures and time periods to be followed in the arbitration. The parties are obliged to follow and comply with these time periods and procedures.

24.6     The Arbitration will be conducted in accordance with the provisions of the Arbitration Act 42 of 1965 or any statutory modification or re-enactment thereof from time to time.

24.7     Should this agreement be cancelled, terminated or declared invalid it will not affect the validity and applicability of this clause.

25       BREACH

25.1     In the event of either party ("the defaulting party") breaching any term of this agreement after having received 5 (five) working days written notice to remedy such breach then the other party ("the aggrieved party") shall have the right, notwithstanding anything to the contrary herein contained, and without prejudice to any other rights the aggrieved party may have, to cancel this agreement.

26       VARIATION AND WAIVER

26.1     No agreement varying, adding to, deleting from, or cancelling this agreement and no waiver of any right under this agreement shall be effective unless reduced to writing and signed by or on behalf of the parties.

26.2     No relaxation by a party of any of its rights in terms of this agreement at any time shall prejudice or be deemed to be a waiver of its rights, unless it is a written waiver, and the waiver shall relate only to the specific instance in question and thereafter the party granting the waiver shall be entitled to exercise its rights thereafter as if such waiver or relaxation had not taken place.

27       DOMICILIUM ADDRESS

27.1     INSPIRED selects as its domicilium citandi et executandi for the service and delivery of all documents of whatsoever nature relating to this agreement (hereinafter referred to as the "domicilium address"), including but not limited to any court or arbitration process, the following address:

The contractor selects as its domicilium address the address reflected in the Contractor Schedule.

27.2     Each party shall be entitled at any time to change its service address to any other physical address, provided that such change will take effect only upon delivery or deemed delivery of notice thereof to the other party.

27.3     A notice in terms of or in relation to this agreement will be deemed to be delivered if it is delivered by email, by hand or by pre-paid registered post to the service address.  Pre-paid registered post will be deemed to be received 4 (Four) calendar days after posting.

27.4     Any document relating to arbitration or court proceedings will be deemed to have been validly delivered if it is delivered at the service address.

27.5     If a document is actually received by a party, regardless of how and where such document was delivered, it will be deemed to have been delivered in terms of this clause at date of receipt of the document.

27.6     Deliveries by hand must be made during business hours.

28       SEVERABLE

28.1     Each and every clause and sub-clause in this agreement shall be severable from the other clauses and sub-clauses in this agreement and in the event of any clause or sub-clause being held invalid by any competent Court for any reason same shall not affect the validity of the remaining clauses or sub-clauses in this agreement.

 

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