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Connect Solutions - Master Agreement

THIS MASTER SERVICES AGREEMENT ("Agreement") is made between Connect Solutions, a project of U-turn NPC (2019/244651/08), (hereafter referred to as Connect Solutions) and the undersigned Client (hereafter referred to as the Client). The "Effective Date" is the date of submission of this form. WHEREAS, Connect Solutions and the Client desire to enter into an agreement for the performance by Connect Solutions of such services and any other services the Client may request from time to time; NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Certain provisions in these Terms and Conditions are relevant to Customers who are natural persons (being living, identifiable individuals acting in their own name) and who are therefore consumers for the purposes of the Consumer Protection Act, 68 of 2008 ("the Consumer Protection Act") or to juristic persons who otherwise qualify as consumers for the purposes of the CPA. The Customer's attention has been drawn to these Terms because they are important and should be carefully noted as they:  
  • may limit the risk or liability of Connect Solutions or a Third Party; 
  • may create risk or liability for the Customer; 
  • may compel the Customer to indemnify Connect Solutions or a Third Party; and/or 
  • serves as an acknowledgement, by the Customer, of a fact. 
If there is any provision of these Terms that the Customer does not fully understand, the Customer will ask Connect Solutions to explain before agreeing. Nothing in these Terms is intended to or must be understood to unlawfully restrict, limit or avoid any rights or obligations as the case may be, created for the Customer of Connect Solutions in terms of the Consumer Protection Act. 
  1. Scope of Services; Postponement.
    • A. Scope of Services.  The Client may issue statements of work or work orders to Connect Solutions from time to time as mutually agreed (“Statement of Work”).  A Statement of Work shall become binding when both parties have signed it and once signed, Connect Solutions will be obligated to provide the services and the deliverables (the “Services”) as specified in such Statement of Work.  The terms of this Agreement shall govern all Statements of Work and Services Connect Solutions undertakes for the Client.  Connect Solutions offers their services in the capacity of “experienced Salesforce Users” and undertakes to perform the work described in the Statement of Work to a high quality standard. Connect Solutions shall have the right to subcontract trained and certified consultants to perform services pursuant to this Agreement, provided that Connect Solutions shall remain responsible for all activities of any such subcontractors.  
    • B. Postponement.  The Client must provide Connect Solutions with at least seven (7) days advance notice, or otherwise if the parties mutually agree, to postpone planned services engagements.  If the Client fails to provide such advance notice, the Client shall reimburse Connect Solutions for any non-refundable, pre-approved and documented expenses incurred by Connect Solutions in anticipation of such planned services engagement.
  2. Term. This Agreement shall commence on the first day after it has been signed by Connect Solutions and the Client, and shall expire at the completion of all Services to be performed under Statements of Work issued hereunder, unless (i) extended or modified by the mutual written agreement of the parties, or (ii) earlier terminated in accordance with Section 8, or (iii) a fixed period of 3 calendar years from date of signature has elapsed.
  3. Payment Terms and Invoicing.
    • A. Fees.  Fees payable by the Client for Connect Solutions' Services and deliverables are set forth in the Statement of Work unless waived as specified in such Statement of Work.  The Client shall also be responsible for reimbursing Connect Solutions for the actual cost of travel and other related expenses incurred in performing the Services, unless such travel and other related expenses are waived as specified in the applicable Statement of Work.
    • B. Invoicing.  Unless otherwise specified in the Statement of Work, Connect Solutions shall present an invoice to the Client monthly. The invoice shall indicate the nature of the work performed and any reasonable travel and expenses incurred by Connect Solutions with appropriate receipts and/or documentation, as well as the total amount due.  Payment terms for any amounts that are not waived pursuant to the Statement of Work are Net 30 Days from the date of the invoice.  Upon termination of this Agreement for any reason, Connect Solutions will be (a) paid based on time spent and Services performed through the date of termination and (b) reimbursed fully for travel and expenses that are incurred through the date of termination unless such fees and travel and expenses are waived as specified in an applicable Statement of Work.
    • C. Taxes.  The Client will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by the South African Government, or any non-South African government entity on the transactions contemplated by this Agreement, excluding taxes based upon Connect Solutions' net income.
  4. Confidential Information.  The parties agree to comply with the non-disclosure agreement (“NDA”) outlined below with respect to the Services, and such NDA is hereby incorporated herein.
  5. Licence
    • A. Ownership and Licence.  Subject to Paragraph B of this Section and to the terms of the NDA below, the Client shall have a perpetual, nontransferable, paid-up right and license to use and copy for the lifespan of the Client the deliverable materials provided to the Client in connection with the Services (“Deliverables”) for its internal business purposes.  Unless otherwise stated in the Statement of Work, all other rights in and to the Deliverables and Connect Solutions IP (defined below) remain with Connect Solutions exclusively.  Notwithstanding any other provision of this Agreement, (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Connect Solutions IP”) used by Connect Solutions to develop the Deliverables, and to the extent such Connect Solutions IP are delivered with or as part of the Deliverables, they are licensed, not assigned, to the Client; and (ii) the term “Deliverables” shall not include the Connect Solutions IP or derivative works or modifications to the Connect Solutions product. The parties will cooperate with each other and execute such other documents as may be appropriate or required to achieve the objectives of this Section.
    • B. Payment Required.  Unless such compensation is waived as set forth in an applicable Statement of Work, the Client's license rights granted above are contingent upon the Client's full and final payment of compensation due to Connect Solutions hereunder, and no right or license is granted or conveyed by Connect Solutions to the Client except until such obligation (if applicable) has been performed.
    • C. Competitive Materials.  Subject to the terms of the NDA, this Agreement shall not preclude Connect Solutions from developing materials outside this Agreement which are competitive, irrespective of their similarity to materials which might be delivered to the Client pursuant to this Agreement.  Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Connect Solutions to provide consulting, development, or other services of any kind or nature whatsoever to any other individual or entity as Connect Solutions in its sole discretion deems appropriate.
    • D. Marketing. Connect Solutions reserve the right to list the Client (Name, logo and brief description of services rendered) on the Connect Solutions website as a customer of Connect Solutions. Beyond that, all use of the Client’s brand or Name in media or any publication will be used only with prior written consent from the Client.
  6. Modifications. The Client may from time to time desire to make changes to the Statement of Work, which changes are generally of the following types: (i) a proposed change to the requirements specified in the Statement of Work; (ii) a new requirement of the Client that has not been included in the Statement of Work; or (iii) an increase in the level of effort. If any of these or similar issues arise, then Connect Solutions will, at the Client’s written request, prepare an estimate setting out the proposed changes to the Statement of Work, the cost, and the time frame for delivery and/or completion (“Change Order”).  If the Client accepts the Change Order, it will be made an addendum to the Statement of Work or a new Statement of Work shall be prepared and added to this Agreement, as appropriate, and this Agreement shall be modified in writing accordingly.
  7. Limitation on Damages
    • A. NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR LOSS OF DATA, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.  EXCEPT FOR CONNECT SOLUTIONS' AND THE CLIENT’S LIABILITY ARISING UNDER SECTION 4 (CONFIDENTIAL INFORMATION) EACH OF THE PARTIES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID AND / OR PAYABLE BY THE CLIENT TO CONNECT SOLUTIONS UNDER THIS AGREEMENT.
    • B.  In no event shall Connect Solutions be liable for loss of data or records of the Client, it being understood that the Client shall be responsible for ensuring proper and adequate back-up and storage procedures.
  8. Termination
    • A.  Breach.  If (i) either party breaches or threatens to breach its obligations under Section 4 regarding confidential information and such breach shall remain uncured for a period of five (5) days after the receipt by the breaching party of written notice from the other party of such breach, (ii) the Client fails to pay any fees or other amounts invoiced by Connect Solutions and such failure continues for five (5) days after the date due, or (iii) either party fails to comply in material respects with any of the covenants, agreements or conditions herein and such failure continues for thirty (30) days after written notification from the non-breaching party, the non-breaching party may then, at its sole discretion, upon twenty-four (24) hours’ notice to the breaching party, terminate this Agreement.
    • B.  Return of Materials.  If this contract is terminated as a result of a breach (as per Clause 8A), Connect Solutions and the Client shall forthwith return to the other party all papers, materials, other properties and Confidential Information of such other party held by each for purposes of performance of this Agreement. In addition, each party will assist the other party in orderly termination of this Agreement as may be necessary for the orderly, non-disrupted business continuation of each party.
    • C.  Survival.  The obligations of any party which have been incurred prior to the effective date of termination (including, without limitation, the obligations of the Client under Section 3), and other provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect notwithstanding the expiration or termination of this Agreement and whether or not an invoice has been rendered with respect thereto.
  9. Insurance. Each party shall maintain adequate insurance protection covering its respective activities hereunder.
  10. Independent Contractor.  Connect Solutions' relationship with the Client during the term of this Agreement will be that of an independent contractor.  Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other.  Nothing in this Agreement shall be deemed to create any agency, partnership or joint venture relationship between the parties.  Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Agreement.
  11. Force Majeure.  Connect Solutions shall not be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, any law, order or requirement of any governmental agency or authority, or any act or omission of employees or agents of the Client.  In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of this Agreement and the project schedule and the due dates of phases and Services shall be adjusted accordingly.
  12. Notice. All notices, reports and receipts shall be in writing and shall be deemed duly given on (i) the date of personal or courier delivery; or (ii) the date of transmission by email.
  13. Governing Law. This Agreement shall be governed by and construed in accordance with South African law.
  14. No Waiver. No consent to or waiver of any breach or default in the performance of any obligations hereunder shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance of any of the same or any other obligations hereunder. Failure on the part of any party to complain of any act, or failure to act of any other party, or to declare any party in default, irrespective of the duration of such failure, shall not constitute a waiver of rights hereunder, and no waiver hereunder shall be effective unless it is in writing and executed by the party waiving the breach or default hereunder.
  15. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Notwithstanding the foregoing, if a material provision is held to be unenforceable (other than agreements to agree or to review), the party receiving the benefit of the provision, or either party if both benefit, may terminate the Agreement by written notice to the other party within thirty days after the provision is held to be prohibited or invalid. In the event of such termination, the parties shall promptly endeavor in good faith to enter into a substitute agreement.
  16. Miscellaneous.  Neither party may cede or assign rights or responsibilities as provided for in this agreement without prior written consent from the other party, except to the surviving entity in a merger or consolidation of the party or to a purchaser of all or substantially all of party’s assets and such surviving entity or purchaser expressly assumes this Agreement in writing.  Any notices required or authorized to be given shall be in writing and shall be sent to the addresses set forth below or to such other address as either party may from time to time specify in writing, and shall be deemed given as indicated: (a) upon personal delivery when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgement of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt.  This Agreement will be governed by and construed in accordance with the laws of the Republic of South Africa laws applicable therein, excluding its choice of law provisions, and the Client and Connect Solutions agree to submit to the personal and exclusive jurisdiction of the courts located in Cape Town, South Africa. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.  If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision.  This Agreement, and the documents referenced in this Agreement, is the entire agreement between the Client and Connect Solutions relating to its subject matter and all terms herein and supersedes all prior or contemporaneous agreements or understandings. This Agreement may only be amended by a written amendment that is signed by duly authorized representatives of both parties.
MUTUAL NONDISCLOSURE AGREEMENT Connect Solutions and the Client hereby agree to the mutual non-disclosure agreement set forth below (this “NDA”) and this NDA is hereby incorporated into the terms of the Master Services Agreement between Connect Solutions and the Client to which it is attached as Exhibit B.  In order to pursue discussions regarding a potential business relationship between the parties hereto (the "Business Purpose"), the Client and Connect Solutions recognize that there is a need to disclose to one another certain confidential information of each party to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.  In consideration of the other party's disclosure of such information, each party agrees as follows:
  1. This NDA will apply to all confidential and proprietary information disclosed by one party to the other party which the disclosing party identifies as confidential or which otherwise is reasonably understood by the receiving party to be confidential and proprietary ("Confidential Information").
  2. Each party agrees (i) to hold the other party's Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, and (iii) not to use any Confidential Information for any purpose except for the Business Purpose.  Each party may disclose the other party's Confidential Information to its responsible employees with a bona fide need to know, but only to the extent necessary to carry out the Business Purpose.  Each party agrees to instruct all such employees not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the disclosing party.
  3. Confidential Information will not include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; (iii) is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure; (iv) is information which the receiving party can document was independently developed by the receiving party; (v) is required to be disclosed pursuant to law, provided the receiving party uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure; or (vi) is disclosed with the prior written consent of the disclosing party. 
  4. Upon the disclosing party's request, the receiving party will promptly destroy or return to the disclosing party all tangible items containing or consisting of the disclosing party's Confidential Information and all copies thereof and/or also delete all electronic versions of the disclosing party’s Confidential Information
  5. Each party recognizes and agrees that nothing contained in this NDA will be construed as granting any rights to the receiving party, by license or otherwise, to any of the disclosing party's Confidential Information except as specified in this NDA.
  6. Each party recognizes and agrees that Confidential Information is subject to South African export control laws and regulations, and may be subject to export or import regulations in other countries.  Each party agrees that it will not export, re-export or transfer Confidential Information in violation of any applicable laws or regulations of the Republic of South Africa or the country where the Confidential Information was obtained.
  7. Each party acknowledges that all of the disclosing party's Confidential Information is owned solely by the disclosing party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.  Accordingly, each party agrees that the disclosing party will have the right to obtain an immediate injunction enjoining any breach of this NDA, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
  8. This NDA will be construed, interpreted, and applied in accordance with the laws of the Republic of South Africa (excluding its body of law controlling conflicts of laws).  This NDA is the complete and exclusive statement regarding the subject matter of this NDA and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this NDA.
9. This NDA will apply to disclosures made within five (5) years of the date of this NDA (the “Term”); provided, however, the obligations hereunder with respect to Confidential Information disclosed within the Term will continue for a period of five (5) years from the date of disclosure. This agreement shall be effective on and from the date of signing (the creation date for this form). I, the undersigned, am an authorised representative of the client, and agree to uphold this agreement.
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