The clauses in this Master Agreement (MA) are provided for the purposes of allowing the reader to be conversant with the terms, conditions and spirit of the engagement. Further, the MA has been designed to provide reasonable protection to all interested parties.
1.1 In this Agreement, unless clearly inconsistent with or otherwise indicated in the context –
1.1.1 An expression which denotes –
18.104.22.168 Any gender includes the other genders;
22.214.171.124 A natural person includes an artificial or juristic person and vice versa;
126.96.36.199 The singular includes the plural and vice versa;
1.2 The following words shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings :–
1.2.1 “AFSA” means the Arbitration Foundation of Southern Africa;
1.2.2 “Agreement” means this agreement entered into between ‘Siyaya’ and The ‘Client’ all applicable signed annexures and executed WA’s and all references to “Agreement” and “this Agreement” includes all signed annexures and executed WA’s;
1.2.3 “Business Day” means those periods as defined in each proposal document, WA or SLA. If not specifically defined in a proposal document, WA or SLA, Business Day shall mean Monday to Friday during Business Hours, other than an official public holiday in the RSA;
1.2.4 “Business Hours” means 08h00 to 17h00 on Business Days, unless otherwise defined in a WA or SLA;
1.2.5 “Competencies” the minimum skill and knowledge levels applicable to ‘Siyaya’ Staff involved in the Service delivery, as agreed between the Parties, which specific Competencies shall be more fully specified in each proposal document, WA or SLA;
1.2.6 “Commencement Date” means the date as specified in clause 4.1;
1.2.7 “Day” means for the purpose of this Agreement a calendar day;
1.2.8 “Facilities” means the infrastructure to be made available by The ‘Client’ to ‘Siyaya’ personnel permanently or temporarily based on either The ‘Client’ or its client’s premises, to enable the later to provide the Services to The ‘Client’ in terms of this Agreement. Facilities include but are not limited to the use of a telephone, toilets, restrooms, a desk, seating, lighting, water, electrical power points and other equipment, on The ‘Client’ premises concerned, free of charge and as reasonably required by ‘Siyaya’ for the effective performance of this Agreement, unless otherwise stated in a WA and the proposal documents;
1.2.9 “Force majeure” means any event or circumstances whatsoever which is not within the reasonable control of the affected Party including, any act of G-D, strike, fire, explosion, insurrection or other civil disorder, war (whether declared or not) or military operations, any requirements of any international authority;
1.2.10 “Party” means either The ‘Client’ or ‘Siyaya’ and “Parties” means both of them;
1.2.11 “Service Charges” means the service charges and rates detailed in each WA or SLA in accordance with this Agreement, as amended in accordance with the terms and conditions of this Agreement from time;
1.2.12 “Service Levels” means the agreed quantitative and qualitative performance metrics applicable to the Service as contained in the proposal document, WA or SLA;
1.2.13 “Service Level Agreements” hereinafter referred to as ‘SLA’ means a document which is agreed between the Parties in writing as provided for in this Agreement, issued subject to the terms, conditions and provisions of this Agreement, which contains inter alia the Service Level requirements applicable to the Services; The SLA may be a separate document to the WA or be incorporated inside the WA;
1.2.14 “Services” means any activities or work performed for, or on behalf of The ‘Client’ by ‘Siyaya’ including, without limiting the generality hereof, specialized information technology services consultancy and advisory services. Computer consultancy, project management, investigating, system design, programming, installation, conversion, testing , implementation, training, maintenance, support, enhancement, tuning of systems, development, maintenance and support of The ‘Client’ specific applications, software and day to day assistance provided by ‘Siyaya’ to The ‘Client’, pursuant to and as more fully detailed in individual WA’s or SLA’s issued from time to time in terms of this Agreement;
1.2.15 “Signature Date” the date of signature of this Agreement by the Party signing last in time;
1.2.16 “Staff” means any employee, duly authorized agent, approved subcontractor and the personnel of such subcontractor and other authorized representative of a Party;
1.2.17 “Specifications” means the stipulations and criteria, set out in each individual WA, to which the Deliverable Materials must conform;
1.2.18 “WA” means a Work Agreement which is either a QUOTATION or PROPOSAL document agreed between the Parties in writing as provided for in this Agreement, issued subject to the terms, conditions and provisions of this Agreement, and in which the specific Services to be performed and Deliverable Materials to be rendered and such other specific terms and conditions relating thereto are set out, which WA’s will be signed by duly authorized representatives of both Parties. Once signed WA’s issued in terms of this Agreement are deemed to form part of this Agreement and Include, mutatis mutandis, all of the terms, conditions and provisions in this Agreement, subject to the provisions of clause 23.2 hereof;
1.3 No provision shall be construed against or interpreted to the disadvantage of any Party hereto by reason of such Party having or being deemed to have structured or drafted such provision;
1.4 Any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;
1.5 If any provision in a definition is a substantive provision conferred a right or imposing an obligation on any Party, then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
1.6 Where any term is defined within a particular clause other than this clause 1, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement;
1.7 Where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so Calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a business day;
1.8 The use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s; and;
1.9 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provides that they will operate after any expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.1.1 The ‘Client’ seeks to engage the Services of ‘Siyaya’ to attend to its clients Technology maintenance needs, in accordance with this agreement and the individual proposal document, WA’s or SLA’s; and
2.1.2 ‘Siyaya’ has the necessary skills, expertise and qualified personnel to enable it to render the Services of The ‘Client’ / its client, in accordance with this Agreement and the proposal document, WA or SLA’s; and
2.1.3 The Parties wish to record in this document the terms and conditions of this agreement upon which ‘Siyaya’ will render the Services to the ‘Client’ / its clients.
3. NATURE AND SCOPE
3.1 This Agreement is an enabling agreement under the terms and conditions of which ‘Siyaya’ shall perform the Services in accordance with the requirements and specifications as may, from time to time, be directed and defined in the proposal document, WA’s or SLA’s.
3.2 Proposal, WA or SLA’s shall be agreed between the Parties from time to time, documented and signed by duly authorized representatives of the Parties before the commencement of the future Services stipulated therein.
3.3 Each properly executed proposal document, WA or SLA forms an indivisible part of this Agreement as if it were fully incorporated into the body of this Agreement insofar as any term, provision or condition in a proposal document, WA or SLA conflicts with a like term, provision or condition of this Agreement, the term, provision or condition in the proposal document, WA or SLA shall prevail, unless otherwise specifically stated in a proposal document, WA or SLA.
3.4. The provisions in one proposal document, WA or SLA executed under this Agreement shall not apply to any proposal document, WA or SLA, unless other specified in a proposal document, WA or SLA.
4. DURATION OF THE AGREEMENT
4.1 Notwithstanding the Signature Date, the Agreement shall be deemed to have commended from date of signature hereof and shall subject to the provisions of this Agreement endure indefinitely for so long as a proposal document and WA continues to subsist.
4.2 A specific proposal document, WA or SLA shall be operative from the date stipulated therein and will endure for the fixed term mentioned therein, subject to the provisions of this Agreement.
5.1 The ‘Client’ shall not at all times be required to exclusively utilize the services of ‘Siyaya’ for it/its clients’ technology maintenance needs.
6. SIYAYA STAFF AND SUBCONTRACTORS
6.1.1 ‘Siyaya’ will use suitably trained, experienced and skilled Staff to provide the Services to meet the Service requirements specified in this Agreement and the proposal document, WA’s or SLA’s Specific Competencies required for each specific proposal document, WA or SLA, shall be detailed in the proposal document and WA.
6.1.2 Should The ‘Client’ require higher skilled staff than that stipulated in the proposal document, WA or SLA or request a change of staff for this reason, such request shall be stipulated in writing and The ‘Client’ shall bear all costs associated therewith.
6.1.3 Subject to 6.1.1 ‘Siyaya’ shall be entitled to determine which Staff shall be assigned to perform the Service. Where a technical resource is placed on the clients site for a period of four months or more, The ‘Client’ will be required to pre approve ‘Siyaya’s candidate of choice.
6.2.1 The ‘Client’ will appoint a resource who shall be responsible to liaise with ‘Siyaya’ regarding the Services provided to The ‘Client’ by ‘Siyaya’ in accordance with a proposal document, WA or SLA.
6.2.2 The resource shall be properly authorized by The ‘Client’ to oversee and carry out The ‘Client’ obligations under the Agreement and each proposal document, WA or SLA.
6.2.3 The resource shall liaise with ‘Siyaya’ progress in fulfilling each WA or SLA, on the progress of the Services or the status of any Service Levels and any necessary corrective action relating to the non-achievement of Service Levels.
6.3 SUB CONTRACTING & 3rd PARTY CONTRACTS
6.3.1 ‘Siyaya’ may employ subcontractors for the execution of all or any portion of the Services. ‘Siyaya’ shall ensure that all sub-contractors perform in terms of all applicable provisions of this Agreement.
7. GENERAL OBLIGATIONS OF THE CLIENT
7.1 The ‘Client’ shall for the duration of this Agreement.
7.2 Provide ‘Siyaya’ with all pertinent information relating to the reported malfunction and to give it access to the equipment as required for the performance of its duties in terms of this agreement.
7.3 Ensure that all of its software is licensed. In the unlikely event that the equipment is not properly licensed ‘Siyaya’ may refuse to maintain it.
7.4 Ensure that equipment, software and their staffs are available at the time of ‘Siyaya’ technician visiting failing which the delay may be billable on a time and material basis.
7.5 Ensure that its Staff co-operate with ‘Siyaya’ and are made available to ‘Siyaya’ as reasonably required by ‘Siyaya’ where the co-operation with and availability of such Staff to ‘Siyaya’ is reasonably necessary and/or desirable for the effective and successful provision of the Services.
8.1 The Parties shall, for the continued duration of this Agreement or specific proposal document, WA or SLA, have and maintain sufficient insurance cover in the event of a claim.
9. SERVICE CHARGES AND PAYMENT
9.1 In consideration for ‘Siyaya’ providing the Services stipulated in each WA, the ‘Client’ shall pay ‘Siyaya’ the amounts stipulated therein.
9.2. The ‘Client’ shall pay such amounts to ‘Siyaya’ once such amounts have become due and payable to ‘Siyaya’ for the provisions of such Services stipulated in an individual proposal document and WA. Service charges will be as Stipulated in each WA, the Parties may agree on service charges based on a fixed basis or a time and material basis or both.
9.3 If the relevant proposal document, WA or SLA charges are based on a time and material basis, ‘Siyaya’s’ records of the hours worked by Staff in the performance of the Services and the expenses incurred, containing the user or personnel on site’s signature shall be prima facie proof that the service was rendered. In the absence of such records The ‘Client’ may nevertheless authorize such charges.
9.4 The ‘Client’ is entitled to dispute such charges within 1 (one) month of the date the Service is provided, for the specific purpose of verifying that amounts invoiced by ‘Siyaya’ are correct and in accordance with this Agreement. The ‘Client’ is entitled to dispute this amount and if the outcome of such dispute is in The ‘Client’ favour it shall be extended a credit note in respect of such amount.
9.5 All old parts which have been replaced by new parts at Siyaya’s cost shall become the sole and exclusive property of ‘Siyaya’.
9.6. All fees and charges set out in this Agreement and the WA’s and SLA’s are exclusive of Value Added Tax and any other statutory levies, taxes and imposts as may be levied thereon from time to time, shall be added to all invoices at the statutory rate applicable form time to time.
9.7 Unless otherwise provided for in a proposal document, WA or SLA, invoices shall be submitted monthly. Payment against all invoices shall be made by The ‘Client’ on presentation of invoice.
10. MAINTENANCE EXCLUSIONS
This Maintenance Agreement excludes services or repairs necessitated by or arising out of:-
10.1 Maintenance or repair work performed on the equipment without the authorization of ‘Siyaya’.
10.2 Tampering with the equipment by any person not authorized by ‘Siyaya’.
10.4 Willful neglect or negligent mishandling of the equipment by The ‘Client’ / its client.
10.5 Unsuitable environmental influences.
10.6 Riot, strike or any malicious damage to the equipment.
10.7 Theft or robbery damage.
10.8 Acts of G-D.
10.9 Any other exclusion detailed in the WA.
11. SERVICE CHARGE ADJUSTMENTS
11.1 All fees and charges payable in respect of outsource services and additional services in terms of this agreement, May with effect from the anniversary date of this MA, increase annually by negotiation. In respect of on-site staff resources, such increase shall be directly related to the salary increase of such on-site staff member.
11.2 ‘Siyaya’ shall provide The ‘Client’ with at least 30 (thirty) Business Days Written notice of any increase in time and material fees.
11.3 Should The ‘Client’ in any way vary the process and procedure stipulated in any proposal document, WA or SLA thus necessitating additional work or capital outlay by ‘Siyaya’, The ‘Client’ shall bear the costs thereof.
12. NON SOLICITATION
12.1 The Parties undertake that they will not during the period of this Agreement and for a period of 12 (twelve) months thereafter persuade, induce, solicit, encourage, procure or employ employees or the Parties who have been directly involved in the provision of the Services and the implementation of the terms and conditions of this Agreement.
12.2. Should any Party employ an employee or the other, as envisaged in clause 12.1 the defaulting Party shall pay to the aggrieved Party 6 (six) times the monthly remuneration package payable to such employee (calculated on a cost to ‘Siyaya’ basis) immediately prior to the cessation of this employment by the aggrieved Party.
13.1 The Parties hereby undertake the following with regard to Confidential Information-
13.1.1 Not to divulge or disclose to any person whatsoever in any form or manner whatsoever, either directly or indirectly, any Confidential Information of the other Parties, without the prior written consent of such other Party, other than when called upon to do so in accordance with a statute, or by a Court having jurisdiction.
13.1.2 All Parties shall ensure that Confidential Information is closed to its Staff or to any other person, on a strictly need to know basis, and that, when such disclosure is made the Staff or person to whom such disclosure is made undertakes in writing to comply with the terms and conditions of confidentiality stipulated herein.
14. LIMITATION OF LIABILITY
14.1 Notwithstanding anything to the contrary contained in this Agreement or a law, a Party shall not be liable to the other Party for any indirect, incidental, special, punitive, consequential or exemplary damages whether in contract or delict or for restitution, unless any such losses or damages were caused directly by the fraudulent conduct of such Party itself.
15.1 If The ‘Client’ or ‘Siyaya’ (hereinafter the “Defaulting Party”) commits a material breach of this Agreement and/or any proposal document and WA and fails to remedy such breach within 10 (ten) Business Days after the giving of written notice thereof by the other Party (hereinafter the “Aggrieved Party”) the Aggrieved Party hall be entitled, without prejudice to its other rights in law, to terminate this Agreement (and/or any proposal document, WA or SLA where the material breach in question is in respect of a proposal document, WA or SLA) forthwith 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 any claims which the Aggrieved Party may have for damages against the Defaulting Party, but always subject to the limitations provided for herein and provided that the termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
16. SUMMARY TERMINATION
16.1 Notwithstanding anything to the contrary, in the event that:-
16.1.1 A Party takes a resolution for the voluntary liquidation of such Party (where applicable) or application is issued for the judicial management (where applicable), or application is issued for the administration, sequestration or voluntary surrender of the estate (where applicable); or;
16.1.2 A Party commits any act which, if committed by a natural person, would constitute a deed of insolvency as contemplated in section 8 of the Insolvency Act (No. 24 of 1936) as amended; or;
16.1.3 A Party commits an act;
188.8.131.52 As defined in terms of section 344 of the Companies Act No 61 of 1973) as amended (where the contractor is a company); or
184.108.40.206 As defined in terms of section 68 of the Close Corporation’s Act (No.69 of 1984) as amended (where the contractor is a close corporation); or
16.1.4 A Party makes any general assignment for the benefit of its creditors or effect or attempts to effect a compromise or composition with its creditors, or then, without prejudice to its other rights in law, the other Party shall be entitled to terminate this Agreement (and/or any proposal document, WA or SLA where the material breach of the question is in respect of a proposal document, WA or SLA) or to claim immediate performance of all of the defaulting Party’s obligations whether or not due for performance in either event without prejudice to any claim which the Aggrieved Party may have for damages against the Defaulting Party.
17.1 Siyaya is entitled to cede, delegate, assign or in any other manner impose of any of its rights or obligations in terms of this Agreement with the prior written consent of The ‘Client’ which will not be unreasonably withheld.
18. FORCE MAJEURE
18.1 Should a Party (Affected Party”) be prevented from fulfilling any of Its obligations in terms of this Agreement as a result of an event of Force majeure, then:-
18.1.1 Those obligations shall be deemed to have been suspended to the extent that for so long as the affected Party is so prevented from fulfilling them and the corresponding obligations of the other Party (“Unaffected Party”) shall be suspended to the corresponding extent;
18.1.2 The Affecting Party shall promptly notify the Unaffected Party in writing of such event of Force majeure and such notice shall include an estimation of the approximate period for which the suspension in terms of 18.1.1 will endure.
18.1.3 the duration of this Agreement and ay active proposal document, WA’s or SLA’s as well as each period within which and each date by which any obligation is required to be performed in terms of this Agreement and any active proposal document, WA’s or SLA’s shall be extended or postponed as the case may be, by the period of suspension in terms of 18.1.2.
18.1.4 should an event of Force majeure continue for more than 7 (seven) days, of such extended period as agreed between the Parties, after the date of the notice referred to in 18.1.2 then, the Unaffected Party shall be entitled (but not obliged) to terminate the Agreement by giving not less than 7 (seven) days written notice to the Affected Party to that effect.
19.1 If any term, condition, provision or performance, or any part of a term, condition, provision or performance of this Agreement is determined to be invalid, illegal, unlawful or unenforceable to any extent, then such term, condition, provision or performance or the relevant part thereof shall be severed from the remaining terms, conditions, provisions and performance of this Agreement, or amended to make it valid, legal, lawful and enforceable, in such a manner as to leave the amended agreement substantially the same in essence, and the Agreement so amended shall remain in force and effect.
20. APPLICABLE LAW AND JURISDICTION
20.1 This Agreement is exclusively governed by and construed in accordance with the laws of the RSA and is subject to the jurisdiction of the Courts of the RSA.
21. DISPUTE RESOLUTION
21.1 Should any dispute of whatsoever nature arise between the Parties Concerning this Agreement, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other in writing to meet and attempt to resolve the dispute within 7 (seven) Days from date of written invitation. Pending such dispute resolution, The ‘Client’ shall not be entitled to withhold the disputed amount due.
21.1.1 If the dispute has not been resolved by such negotiation, either of the Parties may submit by written notice to the other Party, the dispute to AFSA administered mediation, upon the terms set out by the AFSA Secretariat. The receipt by either Party of a notice as aforesaid shall constitute the subjection of the dispute to arbitration for the purposes of delaying the completion of prescription in terms of Section 13 of the Prescription Act No. 68 of 1969 or the corresponding provisions in any amendment thereto or replacement legislation. Failing such resolution, the dispute, if arbitrable in law, shall be
finally resolved in accordance with the Rules of AFSA by an arbitrator or arbitrators appointed by AFSA.
21.1.2 This clause constitutes an irrevocable consent to the Parties to any proceedings in terms hereof and neither of the Parties shall be entitled to withdraw from the provisions of this clause or claim at any such proceedings that it is not bound by this clause.
21.1.3 This clause is several from the rest of this agreement and shall remain in effect eve if this agreement is terminated for any reason.
21.1.4 This clause shall not preclude Party from seeking urgent relief in a court of appropriate jurisdiction, where grounds for urgency exist.
22. NOTICES AND DOMICILIUM
22.1 The Parties choose domicilium citandi et executandi (“Domicilium”) for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum, the serving of any process, as follows:-
22.2 Either Party shall be entitled from time to time, by giving written notice to the other, to vary its Domicilium to any other physical address (not being a post office box or poste restante) within the RSA.
22.3 Any written notice in connection with this Agreement may be addressed to the Parties at the following postal addresses and/or facsimile numbers-
22.4 Either Party shall be entitled, on written notice to the other Party, to vary its postal address to any other postal address within the RSA and/or to vary its facsimile number to any other facsimile number.
22.5 Any notice given or payment made by either Party to the other (“Addressee”) which is-
22.5.1 Deliver by hand during Business Hours 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;
22.5.2 posted by prepaid registered post to the Addressee’s postal address for the time being shall be deeded (unless the contrary is proved by the Addressee) to have been received by the Addressee on the fourteenth day after the date of posting;
22.5.3 Send by facsimile to the Addressee’s facsimile address shall be deemed to have been received by the Addressee upon dispatch.
22.6 This clause 22 shall not operate so as to invalidate the giving or receipt of any written notice, which is actually received by the Addressee other than by a method referred to in this clause 22.
22.7. Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the Addressee. For the purposes of this clause 22, notices shall only be given in physical paper-based form.
23.1 This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof.
23.2 Neither Party shall be bound by any representation, express nor implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their duly authorized representatives. Notwithstanding the Parties having any other documentation, if such documents in any way conflict with this agreement, the terms herein contained shall supersede the conflicting clause.
23.3 No addition to, variation or agreed cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties. For the purposes of this clause “signed” shall mean a signature executed by pen and “writing” shall exclude any written document that is in the form of a data message as defined in the Electronic Communications and Transactions Act 25 of 2002.
23.4 No indulgence which any Party may grant to the other shall constitute a waiver of any of the rights of the grantor.
23.5 All provisions of this Agreement and any schedule or appendix hereto shall be independent of each other and deletion from or the invalidity of any such provision or schedule shall not affect the remainder of this Agreement.
24.1 Each Party shall bear and pay its own costs of or incidental to the drafting, preparation and execution of this Agreement.