Introduction

These Terms of Business, the related Business Agreement to which they are attached, including Appendices thereto (collectively, the “Contract”), constitute the entire agreement between the Parties.

In the event of any conflict between these Terms of Business and the terms of the relevant Business Agreement, the terms of the Business Agreement will take precedence.

Applicability of these Terms of Business

These Terms of Business apply to the provision of any of the Services provided by Mint to the Client.

These Terms of Business, read together with the relevant Business Agreement(s), including the attached Appendices are applicable to the Client, its officers, directors, employees, affiliates, agents, representatives or sub-contractors. It is the responsibility of the Client to ensure that the Client’s officers, directors, employees, affiliates, agents, representatives, sub-contractors are made aware of the terms of the Contract.

Access and use

Subject to signature of the Business Agreement and selection of Services and on payment of the fee(s), the Client will be granted a non-transferable license to access Services and use the Service and Products, as provided for in the relevant Agreement and Appendices thereto.

The user names, passwords and Pin numbers (if applicable) of Authorised Users are personal to the individual Authorised Users and the Client and the Authorised Users undertake not to allow any person other than the relevant Authorised User to access or use  the Services or Products using such user name, password and Pin number (if applicable).

Confidentiality

Neither Party shall at any time disclose, directly or indirectly, to any other person whatsoever (including to the public or any section of the public) any information concerning this Agreement or any other information of any nature whatsoever concerning the other Party or any company affiliated with the other Party, including but not limited to, its customers, employees or plans, or any other matter regarding the internal affairs of the other Party or its affiliates whether such information or matter is stated to be confidential or not, without the express written permission of the other Party  (collectively, “Confidential Information”).  This covenant is given by each Party on its behalf and each Party also undertakes to ensure that it will take all reasonable steps to enforce obligations in like form against its directors, shareholders, representatives, agents, and employees.

Service standards

Mint is committed to provide the Client at all times with access to a high quality Service and the highest quality of support to meet the Client’s needs.  If at any time the Client believes that Mint’s Services or the Products could be improved, or is dissatisfied with any aspect thereof, Mint requests the Client to raise the matter immediately with representative responsible for this Contract or with the director in charge of the Service.  In this way Mint can ensure that Client’s concerns are dealt with properly and promptly.

Mint’s Responsibilities

Mint is responsible for:

• • Granting access to the Services and/or Products to the Client and its Authorised Users on the basis set out in the relevant Business Agreement;  and
  • Provision of training and support on the basis set out in the relevant Business Agreement.

Permissible uses

The Client may:

• • Only use the Services and Products for purposes of its internal business and as provided for in the Business Agreement;
  • Customise, manipulate, analyse, reformat, print and/or display for its internal use the reports generated by the Services or Products including the information contained in such reports); and
  • Only permit access to and use of the Services and Products to Authorised Users.

Impermissible uses

The Client agrees that it and the Authorised Users are not permitted to:

1. 1. de-compile, reverse compile, disassemble or print the source code nor derive, nor attempt to derive the source code of the Software;
   2. attempt to modify, enhance or alter the Software or any part thereof, or permit others to do so;
   3. copy, adapt, rent, lease, sub-license, resell, broadcast, publicly distribute or publicly display, transfer possession, or ownership, or provide right of access and use of  the Services and/or Products and/or reports generated by the Products (including the information contained therein)  and/or any related documentation, user manuals, products, services, data or other information or parts thereof, obtained from Mint to any third party; and
   4. remove, alter or obscure any copyright, legal, proprietary or other notices on the Mint Products and or third party Products.

Third party Products, equipment and operation

The Client will ensure that it and all Authorised Users using the Products hold valid and current licences entitling them to use such Mint and third party Products and that they will abide by the terms of any such license agreements when accessing and using the Products.

The Client is required to acquire and maintain all telephone and other equipment required to access the Products (at its own cost).

The Client is responsible for operating its own equipment and to familiarise itself with the information available through the Products.

Fees and Payment

Payment terms are strictly 30 days from date of invoice.

Unless otherwise specified, all fees and expenses set out are exclusive of Value Added Tax (VAT) and other statutory fees and charges. The Client shall pay all VAT and any other such fees and charges that may be payable on such fees and expenses.

If any work is subject to licensing that comprises foreign exchange rates or is based on foreign third party licenses, Mint has the right to re-negotiate prices with Clients should the exchange rate increase by more than 10% of the agreed amount.

All amounts which are required to be paid to Mint and which are not paid on the due date shall bear interest at 12% per annum.  The said interest shall be calculated monthly in arrears from the due date of payment and shall be compounded.

Mint may suspend any or all of the Services or supply of Products on seven (7) days written notice to Customer if any payment is overdue by more than seven (7) days, and may require payment in advance for future supply of Products or provision of Services.

Mint shall issue the Client with the relevant credit and debit notes in circumstances contemplated in Section 21(1) of the VAT Act. The credit and debit notes will contain all the particulars contemplated in Section 21 of the VAT Act, as the case may be.

Copyright and Intellectual Property Rights

All Intellectual Property belonging to either of the Parties shall remain the property of such Party and the other Party will not acquire any right, title or interest in and to such Intellectual Property.

Where the Client has a licence to use Products, such license is granted on a non-exclusive and non-transferable basis.

Each Party agrees that it shall not duplicate, reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure, or organisation) from any such Intellectual Property which constitutes computer Products, except as specifically authorised in writing by the Party owning such property. Such conduct will entitle Mint to immediately terminate the relevant Business Agreement.

Neither Party shall in any manner alter, remove or affect the display of the respective Intellectual Property rights notices (and disclaimers) of the other Party and/or their vendors and licensors without the prior written approval of the other Party, and their vendors or licensors where applicable; and

Neither Party may use the other Party’s Intellectual Property, trade names, logo’s or any derivative or component thereof without the prior written approval of the other Party.

If the Services or any component thereof becomes, or in Mint’s reasonable opinion is likely to become, the subject of an Intellectual Property infringement claim or proceeding, Mint shall use reasonable efforts to secure the right to continue providing the Services and/or for the Client to continue using the Services. In the event that despite reasonable efforts, this cannot be accomplished by Mint, Mint shall discontinue the affected part of the Services and Mint’s charges shall be equitably reduced to reflect the reduction in the value of the Services to the Client, provided that the aforementioned remedies shall be the Client’s sole remedies in respect of any such intellectual property infringement claim.

Data usage and protection

Mint and the Client shall comply with all data use and data protection requirements as may be applicable to the Services, as are dictated by Mint’s Data protection policies in force from time to time, any applicable legislative requirements and the data use and protection requirements as specified in the Work Orders hereto.

The Client agrees to indemnify and hold harmless Mint and its directors, officers, employees, contractors or agents and sub-contractors from any and all third-party claims, liabilities, against loss, damages, costs or expenses (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the unauthorised use and processing of personal information (as defined in the Protection of Personal Information Act 2013) of any third party.

Indemnities and Limitations

The Client agrees to indemnify and hold harmless Mint and its directors, officers, employees, contractors or agents and sub-contractors from any and all third-party claims, liabilities, against loss, damages, costs or expenses (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the use of Mint’s Services, information, and/or Products that is based on the Client’s or its Representatives’ conduct, action or inaction.

Mint assumes no responsibility for the accuracy, completeness or integrity of the data which the Client stores, collects, collates, mines, transmits, alters or processes utilising the Services and/or the Products. The Client agrees to indemnify and hold harmless Mint and its directors, officers, employees, contractors or agents and sub-contractors from any and all third-party claims, liabilities, against loss, damages, costs or expenses (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the use of Mint’s Services or Products, which Client may suffer as a result of any incomplete, incorrect or corrupt data generated by, from or using the Services and/or the Products.

Neither Party shall be liable, whether in contract, delict or otherwise, for any indirect or consequential damages including, but not limited to, loss of data, loss of profits, loss of custom, and/or business foregone, whether foreseeable or not, and whether or not in the contemplation of the Parties at the time of the conclusion of an Agreement, arising from or in connection with this Agreement.

The aggregate liability of each Party to the other, whether in contract, delict or otherwise, shall not exceed the total amount payable by the Client to Mint in terms of this Agreement except if caused by gross negligence or wilful misconduct.

Mint will not be liable to the Client, or any assignee or third party claiming through or on behalf of the Client for any punitive damages whatsoever or for any consequential or other loss or damages beyond the maximum liability specified.

Any claims, howsoever arising, must be commenced formally by service of court summons or process initiating arbitration proceedings within three years after the Party bringing the claim becomes aware (or ought reasonably to have become aware) of the facts which give rise to the claim and, in any event regardless of the knowledge of the claimant, by no later than three years after the date of any alleged breach of contract, delictual act or other act or omission giving rise to a cause of action.  This expressly overrides any statutory provision, which would otherwise apply.

Section 1 of the Apportionment of Damages Act, 1956, will apply to all claims between Mint  and the Client and that “breach of contract or gross negligence” and “damages” or “losses” as used herein shall be deemed to fall within the meanings of “fault” and “damage” as contained in Section 1 of the Apportionment of Damages Act, 1956.

Mint Management Technologies (Pty) Limited alone will be responsible for the fulfilment of its obligations in terms of the Contract.  By entering into the Contract, the Client agrees that it will not bring any claim in respect of or in connection with the Contract, whether in contract, delict or otherwise, against any Mint entity, or against any of the directors, partners, employees, agents or sub-contractors of Mint Management Technologies (Pty) Limited or any other Mint entity.

Mint accepts no third party claims for damages of any nature arising from this Contract. For the avoidance of doubt, the term “third party” includes Authorised Users.

Termination and Suspension

Mint shall be entitled to suspend Services where Client is in breach of any material aspect of the Agreement and these Terms and fails to remedy such breach after being given thirty (30) days’ notice to remedy the breach. Mint may terminate any Service(s) under these Terms should Client be in breach of any material aspect of such Service(s) and fails to remedy the breach after being given thirty (30) days’ notice to remedy the breach.

Either Party shall be entitled to terminate this Agreement at any time, by providing to the other Party 30 (thirty) days’ prior written notice of such intention to terminate, provided that the provisions of this Agreement shall continue to apply to any active Appendix until such Appendix is terminated.

Unless otherwise provided for therein, any Appendix may be terminated at any time on 30 (thirty) days’ written notice by Mint. Any termination of such Appendix shall not affect the operation of the remainder of this Agreement.

Mint shall be entitled to terminate this Agreement, at any time and with immediate effect, without prejudice to any other rights it may have hereunder or in law, by providing the Client with notice of such termination if any of the following occur:

1. 1. other than for the purposes of reconstruction or amalgamation, the Client is placed under voluntary or compulsory winding up, judicial management or receivership or under the equivalent of any of the foregoing; or
   2. the Client makes any arrangement or composition with its creditors generally, or ceases or threatens to cease to carry on business or disposes of any of its material assets other than in the normal course of business; or
   3. the Client consolidates or merges with or into any entity; or
   4. a substantial part of the Client’s property becomes subject to levy, seizure, assignment or sale for or by any creditor or governmental agency.

Return of Information

In the event that this Agreement is terminated as described herein, each Party shall forthwith return to the other all papers, materials, and other properties of the other then in its possession, save to the extent that these are needed to carry out the Services in respect of any active Appendix.

The Client may at any time on written request to Mint, require that Mint immediately return to the Client any of the data belonging to the Client and may, in addition, require that Mint furnish a warranty to the effect that upon such return, it has not retained in its possession or under its control, either directly or indirectly, any such data or material. Alternatively, Mint shall, as and when required by the Client on written request to Mint destroy all such data and material and furnish the Client with a written statement to the effect that same has been destroyed. Mint shall comply with any request in terms, within seven (7) days of receipt of such request.

Electronic communications

In connection with this Contract, Mint and the Client and the Authorised Users may wish to communicate electronically with each other. However, the electronic transmission of information, including downloading of files, cannot be guaranteed to be secure or virus- or error-free and consequently, such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use.  Mint and the Client each recognise that systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazards.

Each Party accepts these risks and authorises electronic communications between them.

Each Party agrees to use commercially reasonable procedures to check for the currently most commonly known viruses before sending information electronically.

Each Party shall be responsible for protecting its own systems and interests in relation to electronic communications and neither Party (in each case including their respective directors, partners, employees, sub-contractors or agents and in the case of the Client each Authorised User) will have any liability to each other on any basis, whether in contract, delict (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between them or their reliance on such information.

Monitoring

Mint reserves the right to and may from time to time, in order for it to monitor compliance with the terms of the Contract, monitor any and all information transmitted or received.

Disclaimers by Mint 

The Products are provided “as is” and Mint makes no express or implied warranties whatsoever in relation thereto. Without limiting the generality of the foregoing:

• • Mint  does not represent or warrant that the Services and/or the Products  will meet the Client’s particular requirements;
  • Mint does not warrant that the Internet, will be error free, will be available on a continuous or uninterrupted basis or at any particular time, or will meet any particular criteria of accuracy, completeness, reliability, performance or quality, or the implied warranties of merchantability or suitability for a particular purpose; and
  • Mint does not represent or warrant that any reports or information that the Client or Authorised Users may access or download when using the Services or Products will be error-free, free from viruses or other harmful components.

Mint is excluded from liability for any of the following:

• • Any interruption or non-availability of the Services or the Products, or any systems failure, access failure, or any errors, inaccuracies or lack of completeness, reliability, performance, quality, merchantability or suitability for a particular purpose or the specific purpose of the Client;
  • Any errors, viruses or other harmful components to which the Client or any third party or any Authorised User, or any documents, files, Products, hardware or computer systems of any of the aforementioned parties are exposed as a consequence of using the website or the Products;
  • Any unauthorised access to or alteration of transmissions of data (including, inter alia, Authorised User passwords) or of any material or data sent or received, or not sent or received by any Party which could not have been prevented by organisational security measures;

Force Majeure

Neither Mint nor the Client will be liable to the other for any delay or failure to fulfil their obligations under this Contract to the extent that any such delay or failure arises from causes beyond their reasonable control, including but not limited to an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war (declared or undeclared), civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature.

Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (thirty) days the Parties will consult with each other regarding the future implementation of this Agreement. If no mutually acceptable arrangement is arrived at within a period of 7 (seven) days thereafter, either Party will be entitled to terminate this Agreement forthwith on written notice.

Governing Law

This Contract will be governed by and interpreted in accordance with the laws of South Africa.

In the event of there being any dispute or difference between the Parties arising out of this Agreement which cannot be resolved amicably by the Parties, the said dispute or difference shall, on written demand by either Party be submitted to arbitration in Johannesburg in accordance with the Arbitration Foundation of South Africa (“AFSA”) rules, which arbitration shall be administered by AFSA.

Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration. In this instance, any Party to the dispute shall be entitled to forthwith call upon the chairperson of the Johannesburg Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years standing as such.  The person so nominated shall be the duly appointed arbitrator in respect of the dispute.  In the event of the attorneys of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.

Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

Cession and Assignment

This Agreement and any part, share or interest herein and the rights and obligations of the Client are personal and may not be ceded, delegated or assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of Mint.

Any consent or approval required to be given by either Party in terms of this Agreement will, unless specifically stated otherwise, not be unreasonably withheld.

Variation

No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by both the Parties.

Waiver

No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless in writing and signed by the Party giving the same.  Any such waiver will be effective only in the specific instance and for the purpose given.  Failure or delay on the part of either Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

Severability

All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.

Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.

The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

Counterparts

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

Notices

All notices in terms of this agreement shall be in writing addressed to the registered address of the Party and shall be sent by prepaid registered post or shall be physically delivered.  Posted notices shall be deemed to have been received on the 5th business day following posting.

Any written notice in connection with this agreement may be addressed to the Parties respective address as set out in the Agreement.