Terms and Conditions SA
DUDOBI (PTY) LTD GENERAL TERMS AND CONDITIONS
Last updated: 20 March 2025
1. INTERPRETATION
In the Agreement –
1.1 “Acceptance Tests” means the acceptance tests to be conducted by both Parties pursuant to the rendering of the Professional Services, which acceptance tests are set out in the Project Plan or Scoping Document;
1.2 “Agreement” means the Service Order, the Scoping Document, these General Terms and conditions and all annexures attached hereto from time to time, all as may be amended from time to time;
1.3 “Applicable Laws” means (i) the Consumer Protection Act No. 68 of 2008 and all regulations promulgated thereunder from time to time (“CPA”); (ii) POPIA; (iii) any other statute, regulation, by law, ordinance or subordinate legislation in force from time to time to which a Party is subject; (iv) any binding court order, judgement or decree to which a Party is subject; (iv) any applicable industry code, policy or standard enforceable by law to which a Party is subject; (v) any applicable direction, policy, rule or order that is binding on the Party in question and that is made or given by any regulatory body having jurisdiction over the Party in question or any of such Party’s assets, resources or business to which a Party is subject;
1.4 “AWS Environment” means the cloud computing resources and services provided by Amazon Web Services, Inc (“AWS”) and utilised by the Client;
1.5 “Business Day” means any day in the RSA other than a Saturday, Sunday or a public holiday as recognised under the laws of the RSA;
1.6 “Client” means the Client whose details are set out in the Service Order;
1.7 “Client Data” means any data of the Client that is processed by Dudobi in the performance of its obligations under the Agreement, including information of employees, clients, potential clients and products of the Client;
1.8 “Dudobi” means Dudobi (Pty) Ltd (Registration No. 2012/093718/07);
1.9 “Dudobi Help Desk” means the ITIL-compliant help desk set up and operated by Dudobi, the details of which will be communicated to you and via which all Service Requests must be logged;
1.10 “Effective Date” means the effective date of the General Terms as set out in the Service Order;
1.11 “Excusable Events” means (i) the Client’s failure or delay in carrying out its obligations in terms of the Agreement; (ii) Client’s failure or delay in logging Service Requests at the Dudobi Help Desk in accordance with the Dudobi call logging procedure as communicated to you; (iii) Client’s breach of the Agreement; (iv) an event of force majeure in terms of clause 16 of these General Terms; (v) any telecommunication infrastructure and/or communication line faults; (vi) power failure or interruption; (vii) problems arising from the Client’s information technology environment; (viii) Dudobi being unable to access any system necessary to enable it to carry out its obligations in terms of the Agreement; (ix) the failure of any hardware, software, systems or networks and/or the non-availability of any services and/or resources of any third party relied upon to render the Services; (x) the unlawful access by any third party of any component of Dudobi’s systems or infrastructure (xi) unavailability of the AWS Environment;
1.12 “Fees” means the fees and charges for the Services, as set out in the Service Order and any other fees and charges as may be charged by Dudobi to the Client from time to time;
1.13 “General Terms” means the general terms and conditions as set out herein and all annexures hereto from time to time, all as amended from time to time;
1.14 “Hosted Services” means the Hosted Services to be rendered by Dudobi to the Client as set out in the Service Order;
1.15 “Hosted Services Commencement Date” means the date on which the Hosted Services commence, being the date on which the Service Order is signed by the last signing of the Parties;
1.16 “Hosted Services Fees” means the fees and charges charged by AWS to operate the Client’s AWS Environment, which fees and charges are based on the Clients’ consumption of the AWS environment, as set out in clause 5.2, and which fees and charges are for the account of the Client;
1.17 “Intellectual Property” means all intellectual property of any nature owned and/or controlled directly or under licence by Dudobi, the Trademarks and Dudobi’s rights, title and interest in and to all technology, trade secrets, logos, processes, procedures, functionalities, methods, trade names, copyright whether registered or not;
1.18 “Managed Services” means the Managed Services to be rendered by Dudobi to the Client as set out at dudobi.com/managed-services/;
1.19 “Managed Services Commencement Date” means the date on which the Managed Services commence being the date on which the AWS Environment goes live;
1.20 “Managed Services Fees” means the fees and charges payable by the Client to Dudobi in consideration for the provision of the Managed Services, and which fees and charges are set out in the Service Order;
1.21 “POPIA” means the Protection of Personal Information Act No. 4 of 2013 and all regulations promulgated thereunder from time to time;
1.22 “Processing” shall bear the meaning as set out in POPIA, and “Process” shall have a correlating meaning;
1.23 “Professional Services” means the professional services to be rendered by Dudobi to the Client, as set out in the Service Order and Scoping Document;
1.24 “Professional Services Fees” means the fees and charges payable by the Client to Dudobi in consideration for the provision of the Professional Services and which fees are set out in the Service Order;
1.25 “Project Plan” means the project plan agreed between the Parties in writing setting out inter alia, the Professional Services to be rendered by Dudobi, any specifications for the rendering of the Professional Services, acceptance test data and the manner in which the Acceptance Tests will be conducted;
1.26 “Scoping Document” means the written scoping document setting out the scope of the Professional Services to be rendered by Dudobi to the Client, and the fees and charges in respect there, services to be rendered and work to be delivered (“Deliverables”) and other provisions applicable to the Professional Services to be rendered, as agreed between the Parties in writing;
1.27 “Services” means collectively the Professional Services, the Hosted Services and the Managed Services;
1.28 “Service Order” means the service order setting out the Services to be rendered to the Client and the Fees payable in respect thereof, as agreed between the Parties in writing;
1.29 “Service Request” means a request for Services as logged at the Dudobi Help Desk;
1.30 “Parties” means collectively Dudobi and the Client, and “Party” means either of them;
1.31 “RSA” means the Republic of South Africa;
1.32 “SLA” means the service level agreement set out at dudobi.com/service-priority-levels/, which SLA set outs the levels at which Dudobi will render the Managed Services;
1.33 “Termination Date” means the date of termination of the Agreement for any reason whatsoever;
1.34 “Trademarks” means any trade marks, marks, logos, designs and trade names owned and/or used by Dudobi, whether registered or not;
1.35 “VAT” means value-added tax as levied in terms of the Value-Added Tax Act 89 of 1991 (as amended);
1.36 The terms “Operator”, “Personal Information”, and “Responsible Party” shall bear the meanings set out in POPIA.
2. INTRODUCTION
The Agreement sets out the terms and conditions upon which Dudobi will render the Services to the Client.
3. COMMENCEMENT AND DURATION
3.1 General Terms will commence on the Effective Date and shall continue indefinitely thereafter.
3.2 Professional Services shall commence on the commencement date, therefor as set out in the Service Order and will, subject to provisions of the General Terms, terminate once the Professional Services have been delivered. The Professional Services shall be deemed to be delivered once the AWS Environment goes live.
3.3 Hosted Services shall commence on the Hosted Services Commencement Date and will, subject to provisions of the General Terms, continue for the period subscribed for thereto by the Client from time to time (“Subscription Period”). Should the Client terminate the Hosted Services at any time prior to expiry of the then Subscription Period, the Client shall pay to Dudobi 100% of the fees owing for the remainder of the Subscription Period.
3.4 Managed Services: The Managed Services will commence on the Managed Services Commencement Date and will, subject to provisions of the General Terms, continue for the initial fixed period set out in the Service Order (“Initial Period“). At the end of the Initial Period, the Managed Services shall continue indefinitely, unless terminated with effect from the date of expiry of the Initial Period or anniversary of such Initial Period as the case may be, by either Party giving the other thirty (30) days written notice of termination, which notice may only be given thirty days prior to each anniversary of the Managed Services Commencement Date.
4. SERVICES
4.1 Professional Services
- 4.1.1 Description: Dudobi may, from time to time, render certain professional services to the Client. The scope of the services to be performed, fees to be charged, and materials to be delivered (“Deliverables”) and other provisions applicable to the professional services to be rendered will be agreed in writing between the Parties and recorded in the Service Order and Scoping Document.
- 4.1.2 Delivery and Acceptance Tests: Acceptance Tests shall be conducted by both Parties pursuant to rendering of the Professional Services on the basis set out in the Project Plan. Each Party shall provide (and shall procure that its personnel shall provide) all such assistance and support as may be reasonably requested by the other Party leading up to and during the performance of Acceptance Tests. The Professional Services shall be deemed to have been delivered once the services go into production in a live environment.
- 4.1.3 Recommencement Fee. Dudobi may impose a recommencement fee in the event of a delay in the rendering of the Professional Services of more than 30 (thirty) days; the fee will be based on Dudobi’s standard fee at such time.
4.2 Managed Services
- 4.2.1 Description: Dudobi will, subject to Excusable Events, render Managed Services in accordance with the SLA. Dudobi shall not be obliged to provide support where the Client is unable to access or use the Managed Service as a result of an error occurring on the Client’s systems.
- 4.2.2 Support Requests: The Dudobi Help Desk shall be the only route for Support Requests.
4.3 Hosted Services
- 4.3.1 AWS Environment: The Client shall use Amazon Web Services in compliance with Amazon’s terms of service. The Client will be responsible for and maintain the confidentiality of login credentials and other access information for the Hosted Services and Managed Services and access to the AWS Environment.
5. FEES AND PAYMENT
5.1 Fees: The fees and charges payable in respect of the Services are set out in the Service Order.
5.2 Hosted AWS Fees: Hosted Services (AWS) Fees are based on the Client’s measured usage of the AWS Environment as set out on the AWS invoice and the AWS usage reports generated by AWS therefor (collectively the “AWS invoice”). Notwithstanding the quantity of AWS Services that may be indicated in a Service Order, such quantity is an estimate only, and the Client will be invoiced by Dudobi based on the AWS Invoice and is liable for payment of the amount in the AWS Invoice. AWS rates are subject to change by AWS without notice. AWS fees for the AWS Environment are levied in USD which will be converted to ZAR at the prevailing rate and invoiced to the Client.
5.3 Invoice and Payment:
- 5.3.1 The Client shall pay the full amount set out in each invoice by no later than 30 (thirty) days after the date of the invoice.
- 5.3.2 Where services are rendered on a time and material basis, such services will be charged at Dudobi’s standard rates for such services at such time.
5.4 Increase: Dudobi may, on the 1st of August of each year, increase all fees and charges payable in terms of the Agreement by the higher of 10% or the most recent CPI. For the purposes of this clause, CPI means the consumer price index for all items as measured by Statistics South Africa (or such successor index as may replace it) and published in the Government Gazette.
5.5 New Services: Should the Client require Dudobi to provide any new services, such services and the fees payable therefor shall be agreed between the Parties in writing, and failing agreement, be charged by Dudobi in accordance with Dudobi’s standard rates, charges and fees for such services at the time the services are rendered.
5.6 VAT: Fees payable by the Client to Dudobi in terms of this Agreement are exclusive of VAT and any other statutory levies, taxes and imposts as may be levied thereon from time to time. The Client shall accordingly be liable for VAT and all rates, taxes, and government or statutory levies as may be imposed in respect of the supply of Services from time to time.
5.7 Set-off and Late Payment: The Client may not withhold payment of any amount due under the Agreement and is further not entitled to set off any payment due to Dudobi by the Client against invoices. In the event that the Client fails to make due and timeous payment of any amount owing to Dudobi under the Agreement (i) Dudobi shall be entitled to suspend the provision of the Services in respect of which there has been late payment, from the due date until the date on which payment thereof (plus interest) has been received by Dudobi in full; and (ii) such amount shall bear interest at the prime rate from the due date until the date on which payment thereof has been received by Dudobi in full. For the purposes of this clause, the prime rate shall mean the prime bank overdraft rate as charged by First National Bank to its corporate clients in respect of overdraft facilities, calculated and compounded monthly in arrear, as certified by any manager of such bank whose appointment it shall not be necessary to prove.
5.8 Dispute: If the Client, at any time, acting in good faith, disputes any invoice, it shall notify Dudobi in writing within with7 (seven) days of such dispute, specifying in detail the reasons for the dispute. Should the Parties be unable to resolve such dispute, such dispute shall be referred for resolution in accordance with clause 20
6. AUTHORISED REPRESENTATIVES
Each Party shall, by no later than the Effective Date, appoint the person who shall be responsible for the overall management and implementation of the Agreement on the behalf of the appointing Party (“Authorised Representative”). The Authorised Representatives are deemed to have full authority and power to bind the Party who appointed him or her in all aspects relating to the Agreement.
7. CLIENT’S OBLIGATIONS
7.1 IT Systems: Client shall (i) obtain and maintain all networks, hardware, software and systems (collectively “IT System”) and any ancillary services needed to connect to, access or otherwise use any of the Service’s and ensure that if applicable, each component of the IT System meets the minimum system guidelines and specifications as supplied by Dudobi; (ii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Client Data provided to Dudobi; (iii) make available to Dudobi all technical and other information which is necessary to enable Dudobi to render the Services; (iv) in reasonable time (so as not to affect the performance by Dudobi of the Services) of submission by Dudobi of any requirements, recommendations and documents to the Client, inform Dudobi of its decision in respect of such items as aforesaid; (v) allow, and where necessary, procure and ensure access to all premises, systems, networks, hardware and such other places and computer systems as may be necessary to enable Dudobi to render the Services; (vi) where Dudobi is required to use or access software, systems or networks owned or licensed by the Client, all necessary licences and permissions for such use and access have been obtained in advance and will remain in place for the duration of the Agreement; (vii) ensure it has adequately backed the Client Data; (vii) be responsible for all controls and procedures relating to access to the IT Systems .
7.2 User Accounts: The Client is responsible for all activities that occur under the Client’s user accounts. Access credentials are personal to authorised users and may not be shared.
7.3 Personnel: The Client shall ensure (i) and procure that its personnel who participate in the implementation of the Professional Services are available and present at workshops and meetings; (ii) that all such personnel shall have at least the level of skill and experience, in their respective areas of expertise, to perform the duties and responsibilities assigned to him/her in connection with the Professional Services.
8. CONFIDENTIALITY
8.1 Confidential Information. As used herein, “Confidential Information” of a Party (the “Disclosing Party”) means any information disclosed by the Disclosing Party to the other Party (“Receiving Party”) prior to the conclusion of this Agreement, in terms of Agreement or otherwise in connection with this Agreement and which information is not readily available in the ordinary course of business. The Confidential Information of the Client shall include, without limitation, the Client Data.
8.2 Exclusion: Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
8.3 Confidentiality. The Receiving Party shall not (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement, or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s personnel (including employees, contractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement. The Receiving Party may share the existence and nature of this Agreement with potential investors or acquirers or with such Party’s professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets or as required by law.
8.4 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
8.5 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
9. AWS END USER LICENCE
Where applicable, the Client shall be bound by the standard AWS Client Agreement at such time.
10. CONDITIONS OF ACCESS
10.1 Whereas part of any of the activation process for the Services, Dudobi issues a User Name (“User Name“) and Password (“Password“) to the Client, the Client shall immediately report any actual or potential unauthorised access to or use of the User Name and/or Password to Dudobi. On receipt of such report, Dudobi reserves the right to suspend the Service until such time as a new Password and/or User Name, as the case may be, has been issued.
10.2 The Client (i) is liable for all transactions, fees and other costs arising out of the use by any person of the Services via the User Name and Password, whether or not such use is or has been authorised by the Client; (ii) may not and shall ensure that Authorised Users do not attempt to circumvent Dudobi’s user authentication processes or engage in attempts to access Dudobi’s network where not expressly authorised to do so; (iii) remains solely and fully responsible for the content of any material posted, hosted, downloaded/uploaded, created, accessed or transmitted using the Services
11 ACCEPTABLE USE OF THE SERVICES
11.1 Where applicable in respect of the services rendered by Dudobi, the Client may not and shall procure that Authorised Users do not use the Services –
- 11.1.1 to post or transfer any material that is unlawful or violates any third party’s rights or which is obscene, misleading, inaccurate, defamatory, illegal, in breach of any copyright or other intellectual property right, or damaging to data, software or the performance of Dudobi’ or any other parties’ computer system;
- 11.1.2 in a way that constitutes fraud, abuse, a security risk or a violation of privacy or security
- 11.1.3 in connection with any unlawful activity, including any criminal activity;
- 11.1.4 to send Spam or for E-mail abuse. Spam/E-mail abuse includes (a) mail-bombing, (b) sending unsolicited commercial e-mails, (c) e-mails that do not meet the requirements of any applicable laws, including the CPA, (d) sending emails that exceed contracted-for capacity
11.2 The Client shall ensure that Authorised Users comply with any bandwidth, data storage and other limitations imposed on the use of the Service.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Retained IP: All Intellectual Property developed by a Party independently and outside of the Agreement and provided or used during the course of the Agreement shall remain the sole property of such party.
12.2 Dudobi IP: Notwithstanding any other provision of the Agreement, any software development frameworks, libraries, product sets, building blocks, components, application codes and applications, systems, specifications, manuals, documents and processes are and shall remain Dudobi Intellectual Property notwithstanding that they may be modified to facilitate effective configuration and implementation in terms of the Agreement. Such items as aforesaid may be re-used by Dudobi and be integrated with each other and/or with other separate and divisible items as aforesaid so as to create new software and products for use by other clients of Dudobi.
12.3 Trademarks: Neither Party shall acquire any right, title or interest (without the prior written consent of the other) entitling it to use the Trademarks of the other.
13 LIMITATION OF LIABILITY
13.1 Indirect Damages. Neither Party shall be liable to the other Party for any indirect, incidental, consequential, special, exemplary, or punitive damages of whatever nature and howsoever arising, whether or not the party has been advised of the possibility of such damages.
13.2 Maximum Liability. Subject to 13.1 and 13.3, Dudobi’s aggregate liability arising out of or related to this Agreement shall not exceed the amounts paid by the Client to Dudobi for the 3 (three) month period preceding the date on which the cause of action arose.
13.3 Exclusions Notwithstanding any other provision of the Agreement, Dudobi and its directors shall not be liable for any loss, liability, damage (whether direct, indirect or consequential) and/or expense of whatsoever nature and howsoever arising where same is caused by or attributable to (i) Excusable Events; (ii) negligent acts or omissions of the Client or its employees.
13.4 Indemnity: Client shall, at its own expense, indemnify and hold harmless Dudobi and its directors against all loss, liability, damage and expense of whatever nature arising out of a claim against Dudobi to the extent caused by (i) any misuse or abuse of the Service’s; (iii) a breach by the Client of the Agreement.
14. WARRANTIES
14.1 By Dudobi. Dudobi represents and warrants to Client that, (i) it will render the Services in a professional manner consistent with applicable industry standards; (ii) it has all necessary right, power, and authority to enter into this Agreement and provide the Services to the Client in accordance with the terms of this Agreement.
14.2 By Client. Client represents and warrants to Dudobi that: (i) it has and will continue to have for the duration of the Agreement all necessary right, power, and authority to enter into this Agreement, and to use and to permit the use of the Systems, Client Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service, (ii) Client has and will continue to be for the duration of the Agreement, in compliance with, Applicable Laws; (iii) the Client Data and any other information or materials provided to Dudobi in connection with the use of the Service will not contain any malware, virus, Trojan horse, malicious code, or otherwise threaten the security or integrity of the Service or the systems on which it is deployed. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law, Dudobi will have the right to suspend the Service.
14.3 Exclusive warranties: The foregoing representations and warranties shall be the Parties’ exclusive representations and warranties arising out of or in connection with this Agreement. Except as expressly stated in section 1, and subject to Applicable Laws, the Services are provided “as is” and without warranty of any kind. To the maximum extent permitted by Applicable Law, Dudobi hereby disclaims all other warranties and conditions, whether express, implied, statutory or otherwise, including, without limitation, any warranties of merchantability, noninfringement, accuracy, results, and fitness for a particular purpose, or that the Service will be error-free or uninterrupted.
15. PROTECTION OF PERSONAL INFORMATION
15.1 Operator: It is recorded that in the rendering of the Services, Dudobi will have access to and process the Client Data for purposes of rendering the Services and carrying out its obligations in terms of the Agreement. Accordingly, Dudobi is an Operator, and the Client is a Responsible Party with respect to the processing of the Client Data. In carrying out its obligations as the Responsible Party, the Client shall comply with its obligations as the Responsible Party as set out in POPIA.
15.2 Lawful Processing: In carrying out its obligations as Operator, Dudobi (i) will only Process the Client Data with the knowledge and authorization of the Company unless required by law or to the extent necessary to carry out its obligations in terms of the Agreement; (ii) will only Process the Client Data with the knowledge and authorization of the Client unless required by law or to the extent necessary to carry out its obligations in terms of the Agreement; (iii) will treat the Client Data as confidential and will not disclose it; (iv) will secure the integrity and confidentiality of the Client Data in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent loss of, damage to or unauthorised destruction of the Client Data and unlawful access to or Processing of the Client Data; (v) shall notify the Client if it receives a request from a Data Subject to have access to his/her/its Personal Information, or of any complaint or query relating to such Personal Data and at the cost of the Company, provide reasonable assistance to the Company in relation to any such request, query or complaint; (vi) will notify the Client where there are reasonable grounds to believe that Client Data has been accessed or acquired by an unauthorised person and provide the Client with sufficient information for it to meet its obligations under POPIA, including to inform Data Subjects and Regulators of such breach as contemplated in POPIA.
16. FORCE MAJEURE
16.1 If either party (“affected party“) is prevented or restricted directly or indirectly from carrying out all or any of its obligations under the Agreement by reason of an event of force majeure, then other than payment obligations, the affected party shall be relieved of its obligations hereunder during the period that such event continues (and for so long as the affected party is so prevented from fulfilling its obligations, then the corresponding obligations of the other party shall be suspended to the corresponding extent), and the affected party shall not be liable for any delay and/or failure in the performance of its obligations under the Agreement during such period, provided that if the force majeure event continues for a period longer than fourteen days, either party may cancel this Agreement.
16.2 An event of “force majeure” shall mean any event or circumstance which is not within the reasonable control of the affected party including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, the downtime of any communications line and/or unavailability of any telecommunications facility or infrastructure, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities.
17. TERMINATION
17.1 Breach: Notwithstanding any other provision of this Agreement, should either party (“defaulting party“) commit a breach of any provision of this Agreement and fail to remedy such breach within 14 (fourteen) days of receiving written notice from the other party (“aggrieved party“) requiring it to do so, then the aggrieved party shall be entitled, without prejudice to its/his/her other rights in law, to terminate this Agreement or to claim immediate specific performance of all of the defaulting party’s obligations whether or not due for performance, in either event without prejudice to the aggrieved party’s right to claim damages.
17.2 Summary Termination: Should either Party (i) be wound-up, liquidated, deregistered or placed under judicial management, in any such event whether or not provisionally or finally and whether or not voluntarily or compulsorily, or pass a resolution providing for any such event; or (ii) have any application or other proceedings brought against or in respect of it in terms of which it is sought to be deregistered, wound-up, liquidated or placed under judicial management, in any such event whether provisionally or finally; or (iii) be deemed to be unable to pay its debts or have any business rescue proceedings commenced against it in terms of the Companies Act No 71 of 2008; (iv) or passes a resolution to place itself under business rescue; (v) compromises or attempt to compromise with, or defer or attempt to defer payment of debts owing by it to, its creditors generally, then the other Party shall be entitled to cancel this Agreement.
17.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (i) Dudobi may immediately cease providing the Services; (ii) any and all payment obligations of Client at such time will become due immediately (iii) Dudobi will, at the election of the Client and subject to Applicable Laws which may require retention of Client Data by Dudobi, destroy or return to the Client all Client Data in its possession and under its control at such time, including all copies of such data.
18. APPLICABLE LAW AND JURISDICTION
Subject to 20, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of the RSA for all or any legal proceedings arising from or concerning this Agreement. This Agreement shall be interpreted and governed in all respects by the laws of the RSA.
19. SURVIVAL
The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of the Agreement: 1, 5.3, 5.8, 8, 12, 13, 14, 15, 16, 17, 18, this 19, 20, 21 and 22.
20. DISPUTE RESOLUTION AND ARBITRATION
20.1 Subject to any provision in the Agreement which provides for its own dispute resolution mechanism, in the event of any dispute or difference arising between the Parties relating to or arising out of the Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of the Agreement, the dispute shall in the first instance be referred to the Parties senior executives for resolution. In the event of the dispute not having been resolved within 7 (seven) Business Days of the date of such referral (or such longer period as the Parties senior executive may agree in writing), the dispute or difference will be referred for arbitration to the Arbitration Foundation of South Africa (“AFSA“) in terms of AFSA’s arbitration rules for the time being in force. This clause shall constitute each party’s irrevocable consent to the arbitration proceedings, and no party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause. Each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings (i) shall be final and binding on each of them, (ii) will be carried into effect, and (iii) be made an order of any court to whose jurisdiction the Parties are subject.
20.2 Notwithstanding the foregoing, nothing in this clause shall be construed as precluding either party from applying to court for a temporary interdict or other relief of an urgent nature, pending the decision of the award of the arbitrator in terms of this clause.
21. NOTICES
Any payment, demand, invoice, or notice of any kind which must be delivered to the other party shall be in writing and delivered to the other party at the address set out in the Service Order. Any notice given or payment made by either party to the other (“addressee“) which is -delivered by hand between the hours of 09:00 and 17:00 on any Business Day to the addressee’s physical domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery and delivered by courier between the hours of 09:00 and 17:00 on any Business Day to the addressee’s physical domicilium for the time being shall be deemed to have been received by the addressee on the second Business Day after the date of delivery.
22. MISCELLANEOUS PROVISIONS
22.1 Relationship: Nothing in the Agreement shall be construed as creating any relationship of agency, employment, partnership or joint venture between Dudobi and the Client, and neither shall the Client hold itself out as being an agent or partner of Dudobi or as being in a joint venture with Dudobi.
22.2 Severable: All the provisions of the Agreement are severable from each other. Any provision of the Agreement which is or becomes unenforceable shall, to the extent that it is so unenforceable, be treated as pro non script, and the remaining provisions of the Agreement and the annexures in question shall remain in full force and effect. The Parties declare that it is their intention that the Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof
22.3 Sole Record: The Agreement constitutes the sole record of the Agreement between the Parties in relation to the subject matter hereof. No party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. The Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the Parties in respect of the subject matter hereof.
22.4 Cession: The Client may not cede, assign, make over, transfer or encumber any of its rights, title and interest hereto, or delegate any of its obligations hereunder without the prior written consent of Dudobi.
22.5 Restriction on changes: No addition to, variation, novation or agreed cancellation of any provision of the Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties.
22.6 No Waiver: No indulgence or extension of time that a Party may grant to any other shall constitute a waiver of or limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has waived or limited such right in writing.
22.7 Successors-in-title and assigns: The Agreement shall be binding on the successors-in-title and permitted assigns of the Parties.