The following is a statement of the current standard terms of business under which Matrix Software (Pty) Ltd supplies its software products and related services to its customers. We refer to ourselves as “Matrix” in this document. Any person or entity that validly accepts any quote and/or proposal for our software products and/or services will enter into a binding agreement with us. Such a person or entity is referred to as a “Customer” in this document and we refer to a validly accepted quote as an “Order”. Unless otherwise agreed in writing, all Orders are subject to these terms. These terms may be replaced or amended from time to time. Such changes will take effect as and when published. Customer should review these terms prior to concluding each Order since the then valid version of the terms will apply to such Order.

1. APPLICATION 

1.1 Unless otherwise agreed, the prevailing version of these terms will apply to each Order concluded with Matrix. These terms will be incorporated into and form part of each such Order while these terms remain valid.  However, unless otherwise provided in an Order, the terms and conditions of any one Order shall not apply to any other Order.

1.2 These terms shall be valid as from the date specified at the head hereof until replaced by Matrix with amended or new standard terms. Such replacement will not affect the terms of any Orders already concluded prior to the date on which the replacement terms are specified by Matrix to take effect, but the replacement terms will apply to all Orders concluded as from the date on which the replacement terms are specified to take effect.

1.3 Insofar as any term and condition in an Order conflict with these terms, the Order shall prevail.

2. DEFINITIONS 

2.1 Unless the contrary is clearly indicated, the following terms used herein shall have the following meanings:

2.1.1 “Activation Date” means the date that the licence has been activated by Matrix;

2.1.2 “API” means an application program interface forming part of the Software that has specifically been designed to achieve interoperability between the Software and any Third-Party Software;

2.1.3 “Business Day” means any day other than a Saturday, a Sunday or a public holiday in the Republic of South Africa;

2.1.4 “Commencement Date” shall mean the date stipulated as such in the Order failing which it shall be the Signature Date;

2.1.5 “Confidential Information” shall mean any information of whatever nature, which has been, or may be obtained directly or indirectly by one Party hereto from the other Party hereto, whether in writing or in electronic format, or pursuant to discussions held between the Parties, or which can be obtained by examination, testing, visual inspection or analyses, including, without limitation a Party’s Know How, all program code (including of the Software), product architecture, data file structures, interface and communications protocols and associated material and documentation (including the Documentation) and the information contained therein, all information relating to a Party’s past, present and future research and development or to a Party’s business activities, products, services, customers, or to a Party’s technical knowledge, including, without limitation, all such Party’s Trade Secrets, as well as these terms and the terms contained in the Order, any information identified as confidential, and any other material which contain or otherwise reflect, or are generated or derived from any such information as is specified in this definition;

2.1.6 “Customer” shall mean the person or entity that has duly submitted an Order;

2.1.7 “Customer System” shall mean the centralised computer system at the Premises agreed to be used for implementation of the Software for Customer, comprising the equipment and related accessories, including all network connections and hardware, but excluding the Software;

2.1.8 “Documentation” shall mean the operating, reference, user and/or training manuals and other documents and materials relevant to the Software supplied to the Customer;

2.1.9 “Error” shall mean a defect or combination of defects in the Software that results in a failure of the Software to function substantially in accordance with the Documentation, if used in accordance with Matrix’s instructions and shall exclude all Excluded Errors;

2.1.10 “Excluded Error” those defects caused by (i) the Customer System; (ii) the failure of the Third-Party Software or of the Customer System or the failure of the Software to interoperate correctly with the Third Party Software or Customer System; (iii) the use of the Software not in accordance with Matrix’s instructions; (iv) repair, modification, adjustment or alteration of the Software or merger of the Software (in whole or part) with any other software by anyone other than Matrix; (v) accident, misuse, operator error or any negligent or wilful actions or omissions of the Customer or its staff; (vi) the input data for the Software; (vii) the failure of the Customer to implement recommendations in respect of defects previously advised to it; or (viii) the failure of the Customer to install and use the most recent version of the Software;

2.1.11 “Expenses” shall mean all costs and expenses reasonably incurred in providing the Services, including for travel, accommodation and subsistence;

2.1.12 “Force Majeure Event” shall have the meaning ascribed to it in Clause 14;

2.1.13 “Intellectual Property Rights” shall mean all rights in or to any present and future patents, trademarks, trade names, designs, design rights, copyright, together with all related source codes, inventions, Trade Secrets, rights to Confidential Information and all other rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same;

2.1.14 “Know-How” means any and all concepts, ideas, methods, methodologies, procedures, processes, know-how, formulae, techniques, models (including, without limitation, production, administration and equipment management, business, function, process, system and data models), templates, the generalised features of the structure, sequence and organisation of software and data files, user interfaces and screen designs, communications protocols, business processes and business rules, product architecture, data file definitions, structures, utilities and routines; and logic, coherence and methods of operation of systems that a Party has created, acquired or otherwise has rights in (including for Matrix as may be incorporated in the Software or Documentation);

2.1.15 “Licence and Support Fees” shall mean the fees agreed to be payable in the Order for receiving a licence to use the Software and for the maintenance and support of such Software and failing such agreement, at the standard prevailing rates of Matrix applicable to such licence;

2.1.16 “Matrix” means Matrix Software (Pty) Ltd (Registration Number 2010/004854/07), a company incorporated under South African law with address at 30 Brak Street, Three Rivers, Vereeniging, 1930, South Africa;

2.1.17 “Order” shall mean the order submitted by Customer for the supply of the Software and Services that has been signed by both Parties;

2.1.18 “Parties” means Matrix and Customer and “Party” means either one of them;

2.1.19 “Personnel” shall mean any temporary or permanent employee of an entity, and shall include the directors, agents, consultants, contractors or other representatives of the Parties;

2.1.20 “Premises” shall mean the premises of Customer agreed to be the premises at which the Software is to be implemented for Customer on the Customer System as specified in the Order;

2.1.21 “Services” shall mean any services rendered hereunder, including training, support, development, implementation and consulting services;

2.1.22 “Signature Date” means the date of signature of the Order by the Party signing last;

2.1.23 “Software” shall mean the object code form of the Matrix software made available to Customer pursuant to an Order inclusive of the data file structures provided in connection therewith, as well as all configurations, upgrades, updates, modifications and enhancements to any of the aforesaid;

2.1.24 “Third-Party Software” shall mean all computer programs that are not licensed to the Customer by Matrix pursuant to the Order, and which are integral to the Customer System, including all operating systems software and all software applications that are subject to a separate licence agreement between the Customer and a third party supplier (notwithstanding that such computer programs may be provided to Customer by Matrix), as well as all upgrades, updates, modifications and enhancements thereto; and

2.1.25 “Trade Secret” means information, without regard to form, which: (a) is capable of application in trade or industry; and (b) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by, other persons in such trade or industry who can obtain economic value from its disclosure or use, including for Matrix, the source code of the Software and the communications protocols, product architecture, data file definitions, structures, utilities and routines, logic, coherence and methods of operation and the business processes and business rules implemented by or contained in the Software and/or Documentation.

2.2 No rule of construction that an agreement shall be interpreted against the party responsible for its drafting or preparation shall apply to these terms or the Order.

2.3 Unless expressly otherwise stated, when any number of days is prescribed under these terms or an Order, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next Business Day.

3. TERM

3.1 Subject to termination in terms of Clause 11, an Order shall commence on the Commencement Date and shall continue until terminated in accordance with these terms.

3.2 An Order may be terminated by either Party by giving the other Party at least 90 (ninety) days prior written notice thereto, which termination will take effect as of the date specified in the notice of termination.

4. IMPLEMENTATION

4.1 Matrix will deliver and implement the Software on the Customer System. Customer will provide Matrix with such assistance as may be required by Matrix in this regard, including by providing access to the Premises and the Customer System, and making available duly authorised Customer Personnel as may be required by Matrix for such purposes.

4.2 Customer will ensure that a Customer System compliant with Matrix’s minimum specifications is installed and fully operational at the Premises prior to the implementation date agreed under the Order. If such implementation is delayed by reason of Customer’s failure to ensure same, Customer may be held liable for all reasonable wasted costs of Matrix attributable to such delay, including, without limitation, the costs of accommodation, subsistence, travel, costs of sub-contractors and costs of time wasted in abortive site visits.

4.3 Customer will ensure that its authorised Personnel members are available to assist Matrix Personnel with respect to testing the Software as implemented to ensure the correct operation thereof and to resolve any Errors detected during such testing.

5. SOFTWARE TERMS 

5.1 In consideration for payment of the Licence and Support Fees, Matrix grants the Customer a non exclusive, non transferable right to Use the Software (in machine readable form only) and the Documentation for its own internal business purposes. For the purposes hereof “Use” shall mean:

5.1.1 To install a single copy of the Software on the Customer System at the Premises;

5.1.2 To enable Customer Personnel to access the Software as stored on the Customer System;

5.1.3 To use the Software for its intended purpose as described in the Documentation;

5.1.4 to allow Customer Personnel to use the Documentation at the Premises in connection with such utilisation of the Software.

5.2 The Customer acknowledges that its rights to use Third-Party Software and to permit the use thereof by Customer Personnel are specified in the relevant licence terms of the supplier of such Third-Party Software. Customer will notify Matrix at least 30 (thirty) days in advance of its intention to install an upgrade for any Third-Party Software and will delay such installation to the extent requested by Matrix to allow Matrix to make such modifications to the API’s implemented by Matrix as may be required for interoperability purposes.

5.3 All other rights are fully and expressly reserved to Matrix. In particular, the Customer may not and shall not permit, whether directly or indirectly, any third party to do any of the following, except as permitted in terms of Clause 5.1 –

5.3.1 without Matrix’s prior written consent reproduce, translate, modify, adapt, sell, distribute, sub-licence, assign or otherwise transfer any part of the Software or the Documentation or use it for rental or sharing purposes with any third party;

5.3.2 alter, obscure, remove, conceal or otherwise interfere with any eye-readable or machine-readable marking on the Software, the Documentation or its packaging which refers to the authorship or copyright ownership of the Software or the Documentation; or

5.3.3 disassemble, decompile or reverse engineer the computer programs making up the Software, whether in whole or in part, or otherwise attempt to derive the source code of the Software.

5.4 The Customer acknowledges that it obtains no right, title or interest in or to the Software or the Documentation except as expressly granted under these terms, and that Matrix shall remain solely entitled to all proprietary rights in the Software and Documentation, including all Intellectual Property Rights therein and all Know-How represented by or incorporated in the Software and Documentation.

5.5 To the extent that Matrix makes available any of its Know-How, same shall remain the property of Matrix and the Customer shall acquire no right or interest in such Know-How, and Customer shall not use such Know-How for any purpose other than in respect of its licensed use of the Software.

5.6 In the event that Matrix becomes aware that the Customer’s use of a component of the Software may amount to an infringement or potential infringement of the rights, including the Intellectual Property Rights, of any third party, Matrix shall be entitled at its own expense and option either to:

5.6.1 obtain the right for the Customer to continue using such Software component; or

5.6.2 amend, modify and/or adjust the Software in such a manner as that they no longer infringe the rights of the third party; or

5.6.3 replace the Software component with a non-infringing substitute.

5.7 Matrix may, having used commercially reasonable endeavours to resolve an infringement in the manner set out in Clause 5.6 and failing to do so, withdraw the infringing component forthwith by giving notice thereto.

5.8 The Customer may request and Matrix may agree to develop new features, functionalities or modifications including with respect to the Software. The Customer agrees that information provided by it in relation to such a request will not be treated by Matrix as the proprietary or confidential information of the Customer and that any resulting deliverables developed by or with the assistance of Matrix will constitute the exclusive property of Matrix. Matrix will in any event be free to use such information and/or deliverables in an unrestricted manner and on a royalty free basis, including for the benefit of all its customers.

6. SUPPORT AND MAINTENANCE

6.1 In return for payment of the Licence and Support Fees, Matrix agrees to provide support for Errors in the Software reported to it. Such support will be provided in accordance Annexure A. All support services requested by the Customer in respect of Excluded Errors may if agreed to be provided by Matrix be charged by Matrix at its prevailing rates for professional services.

6.2 In return for payment of the Licence and Support Fees, Matrix may from time-to-time supply and/or install new versions of the Software on the Customer Systems, and Customer shall render all reasonable assistance as may be required by Matrix in this regard. Customer acknowledges that it shall not be entitled to receive new versions of the Software if Customer has not fully paid up all Licence and Support Fees due to Matrix hereunder.

6.3 Customer will ensure that the Customer System remains compliant with the minimum specifications for such Customer System as may be specified by Matrix and is kept in proper working condition and maintained in accordance with the recommendations of the manufacturer.

6.4 The Customer’s right to continue receiving support and maintenance services for each version of the Software shall continue only until the date notified for discontinuation thereof in an end-of-life notification issued by Matrix.

7. PROFESSIONAL SERVICES

The Customer may request, and Matrix may provide, certain professional services during the term hereof including support for Excluded Errors, implementation, customisation, configuration, data entry and conversion, development of new reports, consultation, training and other services to which the parties agree. Such services may be charged by Matrix at its prevailing rate for professional services.

8. FEES AND PAYMENTS

8.1 In consideration for the use of the Software and Services, the Customer shall pay to Matrix all the relevant fees, charges and expenses agreed to be applicable thereto.

8.2 Save to the extent otherwise agreed in writing, Matrix may invoice the Customer as follows:

8.2.1 Licence and Support Fees, on a recurring basis monthly in advance with effect from the Activation Date; and

8.2.2 For all other amounts which may become due to Matrix, on a monthly basis in arrears.

8.3 Unless otherwise agreed in the Order, invoices issued by Matrix will be payable within 7 (seven) days of receipt of invoice by Customer. All payments are non-refundable. All payments shall be made by electronic transfer or direct deposit into the bank account of Matrix as indicated on the invoice. All amounts due and payable by the Customer shall be paid in the currency specified for payment in the relevant invoice.

8.4 The fees, charges and expenses payable by the Customer hereunder are net amounts, free from set off or deductions and exclusive of all applicable sales, use, withholding, excise, value added, and ad valorem taxes imposed by any regulatory authority. The Customer shall pay any and all such taxes and duties, customs fees and similar charges, whether directly to the appropriate authority or by reimbursing Matrix for payments it made on the Customer’s behalf.

8.5 The Customer shall not be entitled for any reason whatsoever to withhold or defer payment and payments which are not received when payable shall bear interest at the lesser of the maximum amount chargeable by law or 1.5% per month, capitalised monthly, commencing with the date payment was due. Amounts received from Customer may be allocated as follows: first, towards interest and reimbursement of Expenses, second to fees for professional services and third to Licence and Support Fees.

8.6 Matrix may increase the rates for any recurring fees applicable to the Order on written notice to the Customer, provided that such increases shall be consistent with the increases applied by Matrix to its other customers similar to Customer.

9. CUSTOMER DUTIES

9.1 In addition to such other obligations as may be specified in the Order or these terms, the Customer shall be responsible for the following;

9.1.1 Assessing and selecting the Software for the Customer’s specific business requirements and thoroughly testing the performance of the Software prior to use in an operational environment;

9.1.2 preventing the unauthorised use of the Software by any third party;

9.1.3 providing, implementing, installing and maintaining at its own expense all components of the Customer System in accordance with the specified requirements;

9.1.4 providing and maintaining the appropriate operating environment for the Software and Customer System;

9.1.5 data entry and verifying the accuracy and completeness of all data emanating from the Software, as well as data backup and restore;

9.1.6 rendering all decisions and approvals required as soon as is reasonably possible, so as not to delay or impede the performance of Matrix’s obligations;

9.1.7 making available such information, assistance and on-site facilities as may be reasonably required by Matrix to assist and enable Matrix to perform its obligations;

9.1.8 providing lawful access to the Customer Systems as may be reasonably required by Matrix to assist and enable Matrix to perform its obligations, including remote network access and direct physical access;

9.1.9 ensuring that it is lawfully able to provide and be responsible for the accuracy and completeness of all information and materials provided to Matrix;

9.1.10 implementing and maintaining suitable access controls so as to prevent the unauthorised access to and use of the Software.

9.2 The Customer may not use the Software in contravention of any statute, regulation or any law and shall strictly adhere to Matrix’s instructions as to the use of the Software.

9.3 Customer shall provide to Matrix, its auditors (including internal audit staff and external auditors), inspectors, regulators and other representatives as Matrix may from time to time designate in writing (“Auditors”) access at all reasonable times (and in the case of regulators, at any time required by such regulator) to the Premises and Customer System, and to the relevant Customer Personnel and information for the purpose of performing audits and inspections (“Audits”) to verify the Customer’s compliance with these terms including, to the extent applicable to the Services, performing audits of general controls, compliance with licensing limitations and security practices and procedures.

10. LIABILITY

10.1 The Software and Services are provided to the Customer on an “as-is” basis and are not warranted to be free from defects. Matrix makes no express implied or tacit representations or warranties with respect to the Software or Services or any aspect thereof, and specifically to the maximum extent permitted by applicable law, Matrix disclaims all other warranties, including without limitation, any tacit and/or implied warranties in respect of quality, merchantability, non-infringement, suitability or fitness of the Software for any particular purpose. Matrix will attend to Errors in the Software reported to it by Customer pursuant to the terms of clause 6.

10.2 To the maximum extent permitted by applicable law, Matrix shall not be liable to the Customer for any consequential, incidental, indirect, special or other damages whatsoever including, without limitation, arising from loss of income, loss of goodwill or profits, business interruption, loss or corruption of data or business information or other pecuniary loss arising in connection with an Order (including out of delay of delivery, reliance on the use or the use or inability to use the Software or Services), regardless of whether such liability is based on contract, statute, delict or otherwise.

10.3 Subject to clause 10.2 and to the maximum extent permitted by applicable law, Matrix’s total aggregate liability in respect of any and all claims, actions, damages, costs, losses, expenses and other liabilities arising during any contract year (being a 12 month period commencing on the Commencement Date or an anniversary of the Commencement Date) will be limited to the amount of Licence and Support Fees received by Matrix in respect of such contract year under the relevant Order, regardless of whether such liability is based on contract, statute, delict or otherwise.

10.4 Customer hereby indemnifies Matrix from any loss or damage of whatsoever nature arising out of or in connection with any:

10.4.1 breach of these terms by the Customer;

10.4.2 any act, misrepresentation, error or omission made by or on behalf of Customer or Customer’s Personnel; or

10.4.3 the failure by the Customer to install and use the most recent version of the Software made available by Matrix to the Customer.

11. TERMINATION

11.1 In the event of Customer committing one or more of the events of default listed hereunder, then without prejudice to any rights Matrix may have under these terms, in law, or otherwise, it shall be entitled in its discretion to terminate the relevant Order(s) or to suspend Customer’s rights to use the Software or the performance of any of Matrix’s obligations under such Order(s) with immediate effect by giving written notice thereto:

11.1.1 The Customer is in material breach of any of its obligations under these terms or an Order, and in the case of a remediable breach, fails to remedy the default within 14 (fourteen) days of receipt of written notice from Matrix calling upon it to do so;

11.1.2 The Customer fails to pay any amount due to Matrix within 30 (thirty) days of receipt of invoice therefore;

11.1.3 The Customer commits an act of insolvency, is placed under judicial management, or is wound-up (whether provisionally or finally), compromises with any of its creditors or endeavours or attempts to do so or ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due; or

11.1.4 The Customer breaches its confidentiality obligations in respect of Matrix’s Confidential Information or breaches the licensing terms in respect of the Software or Documentation or otherwise infringes Matrix’s Intellectual Property Rights;

11.2 Upon termination of an Order, the Customer shall cease to use all relevant Software and Documentation as well as any and all Know-How of Matrix incorporated therein or made available in connection therewith and shall promptly destroy or return to Matrix any and all elements thereof in its possession or under its control, in accordance with the instructions of Matrix and certify same to Matrix. Without limiting the aforesaid, Matrix may access the Premises for purposes of the removal of the Software from the Customer System as contemplated herein, and Customer shall provide reasonable assistance to Matrix in this regard. In any event, if an Order is terminated or expires for any reason, Matrix may render the Software acquired thereunder technically inoperable.

11.3 The following Clauses will survive any termination or expiry of any Order: Clause 2 (Definitions), Clause 10 (Liability), Clause 11 (Termination), Clause 12 (Confidentiality), Clause 13 (Domicile), Clause 15 (Disputes), Clause 16 (General) and all other Clauses under these terms that expressly or by their nature survive any termination or expiry of the Order or which impose any obligations following the termination or expiry of the Order.

12. CONFIDENTIALITY

12.1 Each Party (“Receiving Party“) must treat and hold as confidential all Confidential Information which they may receive from the other Party (“Disclosing Party“) or which becomes known to it during the term of any Order.

12.2 The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s Confidential Information, unless the Disclosing Party has expressly agreed otherwise in writing, the Receiving Party will not and will ensure that its Personnel do not at any time, whether during the term of an Order or thereafter, use or disclose any Confidential Information of the Disclosing Party other than as allowed in terms hereof. Without limiting the aforesaid, the Receiving Party shall:

12.2.1 initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to Confidential Information, the secret and confidential nature thereof; and

12.2.2 notify the Disclosing Party of all persons to whom the Disclosing Party’s Confidential Information is to be disclosed or who are to be granted access to the Disclosing Party’s Confidential Information before those persons are permitted access to the Disclosing Party’s Confidential Information;

12.2.3 if required by the Disclosing Party, arrange for any persons who are permitted access to the Disclosing Party’s Confidential Information to give a written confidentiality undertaking to the Disclosing Party to be bound to these terms;

12.2.4 ensure that its Personnel and subcontractors, professional advisers and any other person that it allows or provides with access to the Disclosing Party’s Confidential Information comply with the provisions of these terms; and

12.2.5 procure that, upon request by the Disclosing Party, any materials containing Confidential Information of the Disclosing Party will be returned or otherwise disposed of as the Disclosing Party may direct, provided that in the event the Receiving Party is instructed to dispose of or destroy such materials, the Receiving Party shall provide the Disclosing Party with an acceptable certification of such destruction; and

12.2.6 promptly notify the Disclosing Party if it becomes aware of any breach of confidence in respect of Confidential Information of the Disclosing Party by any person to whom it has disclosed such Confidential Information and shall give the Disclosing Party all reasonable assistance in connection with any actions and proceedings which it may institute as a result.

12.3 The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Personnel who are actively involved in the implementation of an Order on a “need to know basis” only, and such Personnel may be permitted to use such Confidential Information to the extent reasonably necessary for the exercise of the Receiving Party’s rights and compliance with its obligations pursuant to the Orders only.

12.4 The obligations of the Receiving Party hereunder shall not apply to any information which –

12.4.1 can be demonstrated to have been lawfully in the public domain at the time of disclosure or subsequently and lawfully becomes part of the public domain by publication or otherwise;

12.4.2 can be demonstrated through documentary proof to have been lawfully in the Receiving Party’s possession prior to disclosure;

12.4.3 subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose such information; or

12.4.4 is disclosed pursuant to a requirement or request by a regulatory authority, by operation of law or by any court of competent jurisdiction, provided that the Receiving Party gives as much notice of such impending disclosure as is reasonably possible and provides the Disclosing Party with all reasonable assistance in preventing and/or limiting such disclosure.

12.5 Matrix uses data and information collected from and relating to its customers to improve its product and service offerings. Consequently, Customer agrees that Matrix shall be permitted to use such data and information for such purposes notwithstanding any provision under these terms, provided that such use by Matrix will not result in disclosure of Customer’s data or information in a manner which identifies Customer and/or its Personnel. Notwithstanding the aforementioned, the Customer consents to the use by Matrix of the Customer’s name and a general description of this Agreement for publicity and referral purposes.

13. DOMICILE

13.1 The parties choose as their domicilia citandi et executandi for all purposes, whether in respect of court process, notices or other documents or communications of whatsoever nature, the respective addresses stated on the relevant Order.

13.2 Any part may by notice to the other party change its domicilium citandi et executandi to another physical address and/or telefax number, provided that such change shall become effective only on the 7th day after receipt of the notice.

13.3 Any notice to a Party:

13.3.1 contained in a correctly addressed envelope and delivered by hand to a responsible person during the ordinary business hours at its physical address as set out in the Order above, shall be deemed to have been received by such party on the day of delivery thereof; or

13.3.2 if sent by email to such Party’s designated address, on the 1st (first) Business Day following the date of sending thereof, in the absence of any administrator or mail server error messages.

13.4 Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at the chosen domicilium citandi et executandi.

14. FORCE MAJEURE

14.1 Matrix shall be excused from the performance or punctual performance of any of its obligations under any Order and the performance of such obligations shall be extended by a period reasonable under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond Matrix’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, extreme weather riots, wars, (whether declared or not), hostilities, revolutions, civil disturbance or usurped authority, accidents, embargo or requisition, unforeseeable acts (including failure to act) of any governmental authority (de jure or de facto), sabotage, nuclear incidents, epidemics, strikes, as the case may be, including non-availability of an export licence for the Software or any part thereof or the failure of any institution whose consent is required for the performance of any obligation hereunder to provide such consent, the failure of any authority to grant visa and permits for Matrix’s staff, or delays in the performance of its sub-contractor caused by any such circumstances as referred to in this Clause (“a Force Majeure Event”). The right of relief shall apply irrespective of whether the cause of prevention or delay occur before or after the agreed due time for such obligations.

15. DISPUTES

15.1 The validity and interpretation of the terms contained herein or in the Order shall be governed by the laws of the Republic of South Africa.

15.2 The Parties shall make diligent efforts through negotiation to settle any disputes arising out of or related to the Order, including elevating the issues to their respective upper management levels.

15.3 The Parties consent to the non-exclusive jurisdiction of the Western Cape High Court, Cape Town of the Republic of South Africa to adjudicate all disputes arising in connection with the Order.

15.4 Nothing herein contained shall be deemed to prevent or prohibit a Party from applying to any appropriate Court for an interdict, urgent relief or for judgment in relation to a liquidated claim.

16. GENERAL

16.1 The Customer may not cede or delegate any of its rights and obligations under the Order or these terms, unless with the prior written approval of Matrix, which approval shall not be unreasonably withheld. Matrix shall be entitled to cede, assign, delegate and transfer all or some of its rights and obligations under these terms and/or in the Order to any successor with respect to its business or assets and the Customer hereby agrees to such cession, assignment, delegation and transfer.

16.2 For the duration of the Order and for a period of 12 (twelve) months after its termination (for whatsoever reason) and save to the extent otherwise agreed in writing, neither Party shall, directly or indirectly, solicit for employment any employee of the other party involved in the supply of the Services under such Order, nor shall it solicit, entice, encourage or persuade any such employee to terminate his/her employment with the other Party.

16.3 The Order and these terms constitute the whole agreement between the Parties and supersedes all prior verbal or written agreement or understandings or representations by or between the Parties regarding the subject matter thereof, and the Parties will not be entitled to rely, in any related dispute, on any terms, conditions or representations not expressly contained in these terms or the Order.

16.4 No amendment or consensual cancellation of the Order or these terms or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of thereof and no settlement of any disputes arising relating to the Order and no extension of time, waiver or relaxation or suspension of any of the provisions or terms contained herein or in the Order or of any agreement, bill of exchange or other document issued pursuant to or in terms of the Order or these terms shall be binding unless recorded in a written document signed by the Parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.

16.5 In the event that any of the terms contained herein or in the Order are found to be invalid, unlawful or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable. If any invalid term is capable of amendment to render it valid, the Parties agree to re-negotiate an amendment to remove the invalidity.

16.6 In connection with the Order, each Party is an independent contractor and, as such will not have any authority to bind or commit the other Party. Nothing under these terms or the Order will be deemed or construed to create a joint venture, partnership or agency relationship between the Parties for any purpose.