1 DEFINITIONS AND INTERPRETATION
1.1 Definitions: Capitalised terms used in this Agreement shall have the meanings set out below
Agreement: The Key Details Section, including the cover page and the signature block; Terms and Conditions; and any schedules to this Agreement.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force in any country or jurisdiction relating to the provision of the Services; including, without limitation, anti-bribery legislation.
Background IP: Any Intellectual Property Rights that:
a existed prior to the date of the Agreement; or
b were developed independently of the Agreement.
Confidential Information: the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. For the avoidance of doubt, Intellectual Property Rights owned by GDS Consulting are GDS Consulting’s Confidential Information.
Deliverables: all products and materials developed by GDS Consulting in relation to the Services including in any media, including without limitation computer programs, data, diagrams, reports and specifications (including drafts).
Fees: the fees set out in the Key Details.
GDS: All legal subsidiaries of GDS Consulting.
Services: the services set out in the Key Details or such other document agreed by the parties setting out the services to be provided by GDS Consulting.
Disclaimer: GDS Consulting will not accept any liability arising from any technical or editorial errors or omissions made in any documentation.
Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.
Group Companies: any holding company or subsidiary of a party and any subsidiary or holding company of such holding company or subsidiary.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Key Details: the agreement specific details set out in the Agreement.
Key Personnel: the individual or individuals set out in the Key Details.
Taxes: means any tax payable in connection with this Agreement including (without limitation):
- value added taxes (including VAT and GST);
- income tax;
- tax on expenditure incurred in the course of carrying out the obligations under this Agreement; and
- all other forms of tax.
Working Days: A day other than a Saturday, Sunday or public holiday when the banks are open for business in South Africa.
1.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
b words in the singular include the plural and vice versa; and
c a reference to:
i a party to this Agreement includes that party’s permitted assigns;
ii personnel includes officers, employees, contractors and agents;
iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department or any other entity;
iv including and similar words do not imply any limit; and
v a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
2 PROVISION OF SERVICES
2.1 GDS Consulting warrants to perform its obligations under this Agreement and otherwise provide the Services:
a. in accordance with the Agreement, including any requirement set out in the Key Details;
b in a prompt, efficient and diligent manner consistent with good professional practices and standards;
c exercising reasonable care, skill and diligence;
d in compliance with all applicable Laws.
a Where the customer cancels the services more than 14 calendar days prior to commencement of services, no charges will be incurred. Notice of cancellation must be made in writing as per clause 6.2.
b Where the customer cancels the services less than 14 calendar days prior to commencement of services, 50% of the service cost as defined in the proposal and all the other costs incurred to date will be charged. Notice of cancellation must be made in writing as per clause 6.2.
c GDS Consulting reserves the right to cancel services. If GDS Consulting cancel services, we will endeavour to reschedule services at a suitable time.
3.1 Invoices: Billing and payments for services will be invoiced by GDS Consulting. All costs will be invoiced during the calendar month in which the service is complete. For servicesthat extend beyond 15 days, progress invoices may be issued.
3.2 Payment: The customer shall pay the Fees to GDS Consulting for delivery of the Services. Payment for all invoices is required within 15 calendar days of the date of each invoice. Unless otherwise stated or discussed, GDS Consulting will only accepts payments via direct deposit. No cash will be accepted by GDS Consulting personnel.
3.3 Overdue account fee: GDS Consulting reserves the right to charge interest on all invoices not paid within 15 calendar days of invoice date. Interest will be charged at a Reserve Bank of South Africa Repurchase rate on the date due, plus 3%.
3.4 Taxes: Unless otherwise agreed in writing, the Fee is exclusive of all Taxes. The customer shall be responsible in all respects for the payment of Taxes associated with the provision of the Services.
3.5 Expenses: GDS Consulting shall be reimbursed by the customer for expenses that have been reasonably incurred by GDS Consulting and preapproved by the customer in connection with performance of the Services.
3.6 Travel Expenses: The customer will only be charged for the actual costs incurred. The customer is responsible for paying for transport and accommodation. In cases where GDS Consulting organises travel and accommodation, the customer will be invoiced for the full costs incurred. GDS Consulting will not provide reimbursement of any portion of transportation, accommodation or meals paid directly by the customer for GDS Consulting staff during the site visit. Whilst all attempts have been made to include any foreseen travel costs in this proposal, any unforeseen costs associated with travelling to site (visas, vaccinations, transport, meals, transfers etc.) will be charged to the customer at the time of invoicing. Transport and accommodation rates are subject to substantial change beyond the control of GDS Consulting.
4.1 Security: Each party agrees that, unless it has the prior written consent of the other party, it will:
- keep confidential at all times the Confidential Information of the other party; and
- ensure that any personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 4.1.
4.2 Disclosure required: The obligations of confidentiality in clause 4.1 do not apply to any disclosure:
- for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
- required by law (including under the rules of any stock exchange);
- of Confidential Information which:
i is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
ii was rightfully received from a third party without restriction or without breach of the Agreement; or
5.1 Work schedules: Proposed services remain tentative until GDS Consulting receives a signed copy of the quotation or a company purchase order. Unless one of these documents is received at least 14 calendar days prior to the scheduled commencement of the service(s), GDS Consulting reserves the right to renegotiate the work schedule.
5.2 Changes to Scope: GDS Consulting will be compensated for any changes to the scope of services that have been pre-authorized by the customer in writing via a duly authorized change order.
5.3 Travel and Safety Consideration: GDS Consulting reserves the right to take into account world safety issues when determining if it is safe to travel to and from any customer site. GDS Consulting monitors all public warnings for information about your location. GDS Consulting reserves the right to reschedule or cut short, this or any other travel at our sole discretion and will provide as much notice as possible in the circumstance.
Where the total travel time is six or more hours, GDS Consulting reserve the rights to book business class flights for its staff members.
6 GENERAL PROVISIONS
6.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
- continues to perform its obligations as far as practicable.
- uses best endeavours to overcome the Force Majeure; and
- immediately notifies the other party and provides full information about the Force Majeure;
6.2 Notices: A notice given by a party under the Agreement must be delivered via email to the email address set out in the Key Details.
6.3 Variation: Any variation to the Agreement must be in writing and signed by both parties.
6.4 Currency: All references to currency, monetary values or dollars in this Agreement shall mean the Currency set out in the Key Details and all payments made in accordance with this Agreement shall be made in the Currency set out in the Key Details.
6.5 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and Deliverables and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start.
6.6 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of South Africa. Each party submits to the non-exclusive jurisdiction of the Courts of South Africa, in relation to any dispute connected with the Agreement. These terms and conditions are bound by the laws.