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Standard Terms & Conditions

  • DEFINITIONS
    • In this Contract and the Annexures thereto, when appearing in title case, the following words and phrases have the meanings assigned to them hereunder and expressions derived from them have corresponding meanings:
      • “Business Day” means any day other than a Saturday, Sunday or any official public holiday within the Republic of South Africa;
      • “Charges” means the charges for the provision of the Services, as set out in a Service Schedule to this Contract;
      • “Commencement Date” means the date on which a Service Agreement commences, as specified in the Service Schedule relating to that Service;
      • “Confidential Information” means, without limiting the generality of the term, any information, discoveries, ideas, concepts, techniques, specifications, drawings, blueprints, diagrams, flow charts and data relating to products, designs, computer programs, business opportunities, customer lists, costing, marketing plans sales figures, technical and financial information, research, development and know-how, and information relating to a Party’s business or affairs including that of its associated and affiliated companies (including any direct or indirect holding companies), whether disclosed in writing, orally or by any other means to a Receiving Party, whether before or after the commencement date of this Agreement and regardless of whether the information is expressly specified or marked as such or not, and including the content of this Agreement and any of a Party’s intellectual property that does not fall within the exclusions in clause 5;
      • “Contract” means, collectively, this document and the Service Schedule(s);
      • “Contract Year” means a year, commencing on the Effective Date and ending on the day immediately preceding the first anniversary of the Effective Date (for the first Contract Year) or a year, commencing on an anniversary of the Effective Date and ending on the day immediately preceding the next anniversary of the Effective Date (for any subsequent Contract Year);
      • “Effective Date” means the date on which the Agreement is signed by the Party doing so last in time;
      • “Event of Default” means an event of default as envisaged in clause 8 below;
      • “Force Majeure Event” means an event or situation beyond the reasonable control of either Party and against which no precautions can reasonably be taken, to the extent that such event or situation prevents, inhibits and/or frustrates a Party’s ability to perform its obligations in terms of this Contract or any of the Service Agreements, including a natural disaster, an act of 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 disorder, sabotage, riot, strikes, lock-outs or other labour disputes, blockade, embargo, sanctions, epidemics, failure of electricity, water or fuel supply, act of any Government or other Authority, compliance with law, regulations or demands of any Government or Governmental agency, limitations imposed by exchange control or foreign investment or other similar regulations;
      • “Intellectual Property” means any know-how that is not in the public domain, invention (whether or not patented), design, trade mark (whether or not registered), material subject to copyright, goodwill, trade or business name, processes, process methodology and all other similar intellectual property as may exist anywhere in the world and any applications for registration of same;
      • “Parties” means Converge and Client, collectively, and “Party” means either one of them, as the context may require;
      • “Project” means a project that Converge must deliver to Client, as described in a Service Schedule.
      • “Service Agreement” has the meaning set out in clause 1 hereunder;
      • “Service Schedule” means an Annexure to this Contract, that describes a Service that Converge provides to Client;
      • “Service” means a Service specified in a Service Schedule to this Contract;
      • “Steering Committee” means a governing body, consisting of both Parties, which oversee a Project or Service;
      • “VAT” means value added tax as contemplated in the Value Added Tax Act, 1991.
    • In this Agreement:
      • to the extent required by the context:
        • words denoting any gender will include the other two genders;
        • the singular will include the plural and vice versa;
        • a reference to natural persons will also be deemed to be a reference to created entities, whether incorporated or unincorporated (including partnerships, trusts, and functionaries acting for governmental, or similar, institutions), and vice versa;
      • any reference to an Act of Parliament will be deemed to be a reference to that Act as amended from time to time;
      • if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, the Parties must give effect to it as if it were a substantive provision in the body of this Agreement, notwithstanding that it is only in a definition clause;
      • the words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples is not to be construed as limiting the meaning of the general wording preceding it and the application of the eiusdem generis rule is excluded;
      • the headings have been inserted for convenience only and will not be used in the interpretation of this Agreement;
      • unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day;
      • if the due date for performance of any obligation in terms of this Agreement is a day which is not a Business Day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately succeeding Business Day;
      • where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention;
      • words, expressions acronyms, phrases or descriptions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement;
      • words, expressions acronyms, phrases or descriptions that are not defined but that have a normal trade or industry usage shall bear such trade or industry usage meaning;
      • recordals are binding on the Parties and are not merely for information purposes.
  • STRUCTURE OF THIS CONTRACT
    • The Contract is a framework agreement that allows Client, from time to time, to procure Services from Converge. Whenever Client requires Converge to provide a Service to Client, the Parties must complete and sign a Service Schedule in respect of the applicable Service. The terms of a Service Schedule read with the terms of this Contract (which will be incorporated into the Service Agreement by reference) will, collectively, constitute a Service Agreement.
    • Each Service Agreement will constitute an individual and separate agreement. No obligations will arise from this Contract in respect of any Service unless the Parties conclude a Service Schedule.
    • Unless the contrary is clear from the provisions of a Service Schedule, if any conflict arises between the provisions of this Contract, and any Service Schedule, the provisions of this Contract will prevail.
    • Each Service Schedule must be numbered consecutively.
  • COMMENCEMENT AND DURATION
    • This Contract will commence on the Effective Date. Unless it is terminated in accordance with clauses 8 or 9, will continue in force until it is terminated by either Party on one month’s written notice to the other Party.
    • Each Service Agreement will commence on its Commencement Date specified in the applicable Service Schedule and will, unless it is terminated in accordance with the clauses 8 or 9, terminate on the date specified in the relevant Service Schedule.
    • Save as provided for in clause 8, or as agreed by the Parties in writing:
      • the cancellation or termination of a Service Agreement will not result in the cancellation or termination of this Contract or of any other Service Agreement; and
      • the cancellation or termination of this Contract will not result in the cancellation or termination of any Service Agreements that may at that time still be in force. Such Service Agreements will continue in force in accordance with their individual terms (and for such purpose the terms of this Contract will continue to apply to such Service Agreement(s)), notwithstanding the termination or cancellation of this Contract. The result of terminating this Contract will only be to terminate the ability of the Parties to conclude any further Service Agreements.
      • PROVISION OF THE SERVICES
        • Client appoints Converge, who accept the appointment, to provide the Services as set out in the Service Annexure(s), in accordance with the terms of the Service Agreements relating to such Services.
      • CHARGES
        • Unless specified to the contrary in a particular Service Schedule, Client must pay the Charges to Converge within 30 (thirty) calendar days from the date of Converge’s invoice, in South African Rand (unless explicitly agreed otherwise), without conditions, deduction, bank or exchange commission, or set-off, into the bank account specified on Converge’s invoice.
        • Converge may increase its Charges at the times and in the manner as specified in the Service Agreements.
        • Client may not withhold payment based on any counterclaim.
        • If Client disputes any portion of an invoice, it may withhold payment only in respect of the disputed part of the invoice and must pay the balance of the amount owing under such invoice on due date. If the dispute is subsequently determined in Converge’s favour, Client must pay interest on the withheld portion of the amount owing under such invoice from the initial due date of payment thereof until date of actual payment, both days included, at the Prime Rate plus 2 (two) percentage points.
        • Unless stated differently in a Service Agreement, the Charges exclude all taxes (including any tax on the supply or sale of goods and/or excise, gross receipts and withholding taxes, and any similar tax). Client must pay all such taxes in addition to the Charges.
        • If Client fails to pay any undisputed amount due to Converge for the provision of the Services, Converge may, without prejudice to any other rights it may have, suspend the provision of the Services until Client has paid such amount.
        • No endorsement or statement on or accompanying any cheque or payment from Client will constitute a settlement or novation and Converge may accept such cheque or payment on account without prejudice to any of its rights, as if the endorsement or statement does not exist.
        • If Client fails to pay any amount due under the Agreement on due date, such amount will attract interest at the Prime Rate, plus 2 (two) percentage points from due date to date of payment, both days included.
      • WARRANTIES
        • Except for any warranties contained in this Contract or any Service Schedule, Converge provides the Services without any warranties, and any warranties implied by law are excluded to the extent permitted by law.
        • Converge does not provide any warranty in respect of third-party software (including warranties in respect of functionality, fitness for purpose, uninterrupted use, merchantability or absence of any error) and Converge will not be liable for any malfunction of such software.
        • The Client indemnifies and holds Converge and its representatives (“Indemnified Parties”) harmless from and against any losses, claims, liabilities, damages, costs (including, without limitation, legal costs on the scale as between attorney and own client and any additional legal costs) and expenses of any nature whatsoever which any of the Indemnified Parties may suffer or incur as a result of or in connection with the Client’s use of the Services.
        • Client does not enter into this Contract nor any Service Agreement in reliance upon any warranty, except as provided in the in this Contract or the applicable Service Agreement. All conditions, warranties or other terms implied by law are excluded to the extent permitted by law.
      • CONFIDENTIALITY
        • The Parties must, for the term of this Contract or the longest surviving Service Agreement (whichever is longer) and for 2 (two) years after the termination of the Contract or such Service Agreement, as the case may be, keep all Confidential Information they receive from each other in strict confidence and may not publish, employ, exploit or use such Confidential Information in any manner or make the Confidential Information available to third parties save to achieve the purposes of a Service Agreement or to the extent permitted by the disclosing Party.
        • A Receiving Party must restrict the dissemination of the Confidential Information only to employees or professional advisors (who may not be competitors of Converge) who are actively involved in the achievement of the objectives of this Agreement and/or the Service Agreement in respect of which the Confidential Information is disclosed, and then only on a “need to know” basis to persons who are also subject to obligations of confidentiality no less stringent than contained in this Agreement.
        • A Receiving Party must take all reasonable steps to impress upon other persons coming into contact with the other Party’s Confidential Information the confidential nature thereof and to protect such Confidential Information in a manner no less stringent than the manner in which it protects its own Confidential Information.
        • Affiliates of Converge will not be deemed third parties insofar as Confidential Information is provided to them in connection with an Opportunity.
        • The confidentiality obligations in this Agreement do not apply to Confidential Information, which the Receiving Party can demonstrate:
          • was lawfully obtained from a third party who is not under obligation of confidentiality with regard thereto; or
          • was already in the public domain upon conclusion of this Agreement or which becomes part of the public domain by publication or otherwise without any violation of the Receiving Party’s obligations under this Agreement; or
          • is approved in advance for release by written authorization of the Disclosing Party; or
          • that constitutes technology, ideas, know-how and concepts of third parties (third party know-how). which the third party lawfully disclosed to the Receiving Party, even insofar as such third-party know-how incidentally coincides with the Confidential Information.
        • The Receiving Party bears the burden of proof to establish that any information falls within the exceptions contained in clause 5.
        • Confidential Information disclosed in terms of this Agreement will not be deemed to be within the exceptions contained in clause 5 merely because such information is embraced by more general information in the public domain or in a Party’s possession. Any combination of features will not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in a Party’s possession, but only if the combination itself and its principle of operation are in the public domain or in a Party’s possession.
        • A Party may disclose Confidential Information to satisfy an order of a court or to comply with the provisions of any law or regulation in force from time to time (including a request in terms of the Promotion to Access to Information Act, No 2 of 2000, as amended), provided that such Party:
          • must inform the other Party of its obligation to disclose before disclosure;
          • may disclose the Confidential Information only to the extent legally required;
          • must continue to apply the provisions of this Agreement to such Confidential Information for all other purposes.
        • Each Party acknowledges that the other Party’s Confidential Information is proprietary to the other Party and that its disclosure does not confer any rights in or associated with such Confidential Information to the Receiving Party.
        • A Disclosing Party may at any time request a Receiving Party to return any Confidential Information or other material containing, or relating to the Confidential Information and to furnish a written statement that upon such return, it has not retained in its possession, or under its control, either directly or indirectly, any such material.
        • Alternatively to clause 10, a Receiving Party must, if asked to do so by a Disclosing Party, destroy or irrevocably delete such material and furnish the Disclosing Party with a written statement to the effect that such material has been destroyed or irrevocably deleted (unless the Receiving Party is required by any law to retain a record of such material, but then only to the extent and strictly for the purposes embodied in such obligation).
        • The Receiving Party must comply with a request in terms of clauses 10 and 7.11 within 5 (five) days of receipt of such request.
        • A breach of this clause 7 may cause a Disclosing Party loss for which damages might not be an adequate remedy. Therefore, in addition to remedies otherwise available to a Party, a Party may seek injunctive relief to prevent or mitigate a breach or threatened breach of this clause 7, without having to demonstrate that it has no other adequate remedy in law.
      • EVENTS OF DEFAULT
        • An event of default (“Event of Default “) occurs if a Party (“Defaulting Party”):
          • commits a breach of this Contract or any Service Agreement and fails to remedy the breach within 7 (seven) days after the date on which the other Party delivered a written notice on the Defaulting Party calling upon it to remedy the breach; or
          • is removed from the register of companies or is placed under provisional or final liquidation or is placed under business rescue proceedings.
        • If an Event of Default occurs, the Party other than the Defaulting Party (“Innocent Party”) may, in addition to and without prejudice to any other right it may have in law or in terms of this Contract or the applicable Service Agreement, in its sole discretion cancel this Contract, and/or the Service Agreement in respect of which the breach occurred, and/or all Service Agreements and claim such damages as it may have suffered.
        • Client may not institute a claim against Converge arising from the Agreement more than 1 (one) year after the cause of action arose.
      • FORCE MAJEURE
        • If either Party delays or fails to comply with any of its obligations under this Contract or any Service Agreement, due to a Force Majeure Event, such Party will not be in breach of this Contract or the applicable Service Agreement nor will it incur any liability to the other Party, by virtue of such delay or failure.
        • If such Force Majeure Event continues for 7 (seven) consecutive days or more, or for 10 (ten) non-consecutive days or more during any 30 (thirty) day period, then either Party may terminate the affected Services by delivering to the other Party a written termination notice specifying the Termination Date.
      • LIMITATION OF LIABILITY
        • Neither Party will be liable to the other Party for (a) indirect, incidental, consequential or special damages or losses and/or (b) loss of income or profits, lost opportunities, loss of anticipated savings, loss of or damage to data or software, loss of use, downtime or costs of substitute products, howsoever arising, whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action.
        • Subject to clause 1, in each Contract Year, the aggregate liability of either Party to the other Party in any circumstances whatsoever, whether in contract, delict, statute or otherwise, and howsoever caused, for loss or damage arising from or in connection with the Services or this Contract and the Service Agreements, whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action, will:
          • if the loss or damage arises in connection with a Service Agreement, be limited to 100% (one hundred percent) the Charges payable by Client to Converge in that Contract Year under that Service Agreement;
          • if the loss or damage cannot be connected with a Service Agreement, be limited to 25% (twenty five percent) of the Charges payable by Client to Converge in that Contract Year under all Service Agreements then still in force.
        • Clauses 1 and 10.2 do not limit any amount payable to Converge in respect of Services properly delivered under a Service Agreement.
      • NOTICES
        • The Parties may correspond via email for operational reasons, but neither Party may give any notice relating to a dispute, demand, breach, legal proceedings, renewal, cancellation or termination by way of email. Such formal notice must be signed by hand on paper.
      • EXCUSED PERFORMANCE
        • Converge will not be liable for any failure to execute the Project successfully, whether in whole or part, to the extent that such failure is attributable to:
          • any material failure by Client to comply with its obligations in terms of this Agreement, or the Statement of Work;
          • the material non-availability of Client’s personnel;
          • Client’s material failure to provide information or decisions required for the execution of the Project;
          • material delays in testing attributable to Client;
          • Client’s failure or unreasonable delay in accepting deliverables or milestones;
          • the material non-availability or incorrect functioning of any computer or other equipment or systems that Client must provide for the execution of the Project;
          • any material defects in data that Client provides to Converge; and/or
          • the installation of new releases of any third party software and hardware at Client’s request;
        • To the extent that Converge is unable to comply with its obligations in respect of the Project due to any of the situations in paragraph 1, Converge will be excused from the performance of such obligations for the duration of such situation, provided that Converge must apply Commercially Reasonable Efforts to mitigate and minimize the impact on the Project and/or Service schedule. The Parties must, once the situation has ceased to apply, negotiate an extension of the Project’s milestone dates (and any associated adjustment to the Charges). If the Parties fail to agree the extension of the milestone dates and associated Charges within fourteen (14) days from the date on which the situation has ceased to apply, the matter must be referred to expert determination;
        • Client must pay Converge’ wasted costs (including costs related to standing time) and reasonable Charges for its efforts to circumvent such problems or delays and all re-work required, subject to Converge applying Commercially Reasonable Efforts to mitigate and minimize all such costs, efforts and need for re-work. In such event, Converge must prepare a schedule of such costs and Charges to be paid by Client and the method of calculation and present them at a Steering Committee meeting. If the Steering Committee fails to agree to such cost and Charges within fourteen (14) days from the date on which the costs were first presented to the Steering Committee, the matter must be referred to expert determination. Any undisputed charges must be paid by Client within twenty (20) calendar days of presentation of invoice.
      • OPERATIONAL MATTERS AND DISPUTES
        • The Parties recognize that operational matters, which have not been fully dealt with herein may arise during the course of the execution of the Project and/or Service. Such matters must be dealt with as follows:
          • the Parties’ project managers or appointed representatives must in the first instance use all reasonable endeavours to reach agreement regarding any such operational matters. If a matter is not resolved within five (five) Business Days from the date on which it was first raised in writing, such matter must be referred to the Steering Committee;
          • the Steering Committee must use all reasonable endeavours to reach agreement regarding such any matters within ten (10) Business Days after such matters have been referred to it;
          • If the Steering Committee fails to reach agreement within the aforesaid ten (10) Business Days, the matter may, at the instance of either Party, expressed in writing, be referred to expert determination.
      • GENERAL
        • This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof. No amendment, alteration, variation, novation or consensual cancellation of this Agreement (including this clause 1) or addition thereto will be of any force or effect unless reduced to writing and signed by the Parties.
        • The rights and obligations of the Parties relating to the subject matter of this Agreement are provided for exclusively in this Agreement. General terms and conditions of the Parties are excluded even if they are contained in or reference is made to them in an order, order confirmation or other documents or in an oral agreement.
        • No waiver of, or failure, delay, relaxation or indulgence on the part of either Party in exercising any power or right conferred on such Party in terms of this Agreement will operate as a waiver of such right, unless it is expressed in writing and signed by the Party giving the same, and it will be effective only in the specific instance and for the purpose given. No single or partial exercise of any such power or right will preclude any other or further exercises of that power or right in terms of this Agreement.
        • Each Party must bear its own costs arising from the negotiation, and conclusion of and performance under this Agreement.
        • If a court declares a provision of this Agreement to be invalid, the validity of the other provisions remains unaffected. The Parties must immediately negotiate in good faith to replace the invalid provision with a valid provision that comes as close as legally possible to the intent of the invalid provision.
        • Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement or which must necessarily continue to have effect after such expiration or termination, will survive the termination or expiration of this Agreement, notwithstanding that the provision itself does not expressly provide for this.
        • Nothing in this Agreement constitutes either Party as the agent, principal, representative, joint venturer or partner of the other, and neither Party may represent the contrary to any third party.
        • This Agreement may be signed in two or more counterparts and the signed counterparts, collectively, will constitute a binding agreement between the Parties.
        • The provisions of this Agreement were settled by negotiation and each Party was free to secure independent legal advice. The rule of construction that clauses must be interpreted against the Party principally responsible for drafting will, therefore, not apply in the interpretation of this Agreement.
        • This Agreement will be governed, interpreted and implemented in accordance with the laws of the Republic of South Africa.
        • The use of any expression in this Agreement covering a process available under the laws of the South Africa such as, without limiting the interpretation of this particular sub-clause, “winding-up” will, if any of the Parties is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction.
        • This Agreement supersedes all other agreements relating to the subject matter of this Agreement.
        • The Parties acknowledge that the electronic transmission of information cannot be guaranteed to be secure or free from Malware. Such information might be intercepted, corrupted, lost, destroyed, or arrive late or incomplete, or otherwise be adversely affected or unsafe to use. Each Party accepts the risk of and agrees to communication by electronic means. Each Party must protect its computer systems by using commercially reasonable procedures to check for and eradicate commonly known Malware. However, Converge does not guarantee the security or confidentiality of information transmitted electronically and Converge will not incur any liability on any basis, whether in contract, delict, or otherwise, arising from or in connection with any Malware that is transferred by electronic communication emanating from Converge, its employees or its agents. However, this exclusion will not apply to the extent that such transmission occurs by virtue of the deliberate acts of Converge, its employees or its agents.
        • Neither Party may rely on any representation made prior to the conclusion of this Agreement, even if such representation induced the Party that wishes to rely on it, to conclude the Agreement, unless that representation is recorded in this Agreement.
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