RECITAL
WHEREAS CSP warrants it is an authorised reseller and/or distributor of the Online Products;
WHEREAS the Customer wishes to appoint CSP as a supplier of the Online Products;
Customer CSP Agreement
1. DEFINITIONS
In this Agreement, unless the context indicates a contrary intention, the following words and expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:
1.1. “Accounts” means an account enabling Customer’s Users to access and use the Online Products.
1.2. “Additional Terms” means (where applicable) the additional terms and conditions applicable to the Online Products as identified and contained in each applicable Annexure to this Agreement, which may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor.
1.3. “Agreement” means this cloud solutions customer agreement and all terms and conditions outlined herein, including all annexures hereto.
1.4. “Applicable Laws” means, in relation to any relevant jurisdiction: (i) any law, statute, regulation, policy, by-law, directive, notice or subordinate legislation; (ii) any applicable direction, policy or order that is given by a relevant authority having the force of law; or (iv) any judgment, order, arbitration award or similar award, and includes any law insofar as it relates to the interpretation of any law.
1.5. “Business Day“ means any day other than a Saturday, Sunday or proclaimed public holiday in the Republic of South Africa.
1.6. “Consumption Based Product” means cloud-based products for which Customer is billed based on actual usage of the product;
1.7. “Confidential Information” means all information, including where applicable intellectual property, whether written (incl. information in an electronic format) oral and whether whole or part shall for the purpose of this Agreement include, without limitation, any technical, commercial or scientific information, know-how, trade secrets, processes, methodologies, machinery, designs, drawings, technical specifications, and data in whatever form, disclosed to or assessed by either Party during the course of its relationship with the other Party. For the purposes of this Agreement the Party who discloses Confidential Information shall be referred to as “the Disclosing Party” and the Party who receives the Confidential Information shall be referred to as “the Receiving Party”.
1.8. “CSP” means Epsidon Technology Distribution (Pty) Ltd t/a First Distribution, registration number: 1995/010958/07, a private company duly incorporated in terms of the laws of the Republic of South Africa with its registered address at 26 Augrabies Road, Waterfall Office Park, Midrand, 1686.
1.9. “Customer” means the person and/or entity who purchases the Online Products from the CSP
1.10. “Customer Data” means all data, including personal information, collected by the CSP for the purpose of business communications, administration and transacting with the Customer in order to fulfil the CSP`s obligations in terms of this Agreement. This shall include Customers and/or Users name, company details, address, contact details, emails and account details, which will enable CSP to respond to queries or requests submitted by the Customer, process orders placed by the Customer or applications submitted.
1.11. “Effective Date” means the earlier date of either subscription and/or consumption by a User or the date of signature of this Agreement.
1.12. “Fees” means the fees payable by the Customer to CSP for any Online Products that are accessed and/or used and/or consumed by the Customer.
1.13. “Online Products” means any of the Software Vendor’s online services and/or cloud-based products subscribed to and/or purchased by Customer from CSP under this agreement, including but not limited to Subscription Based Products , Consumption Based Products and Perpetual Based Products.
1.14. “Product Terms” means any documentation or terms relating to the Online Products including but not limited to acceptable use policies, operating manuals, user instructions, technical literature, terms of use and all other related materials in any form or medium, which relate to the Online Products. This will include any applicable warranties and/or guarantees in respect to the Online Products provided to the Customer by the Software Vendor and detail the applicable refund and/or return policy of the Software Vendor. Product Terms may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor.
1.15. “Parties” means collectively CSP and Customer and “Party” means any one of them as the context may require.
1.16. “Perpetual Based Products” means a type of software license that authorizes the Customer to use the Software Vendor’s online services and/or cloud-based products indefinitely.
1.17. “Software Vendor” means a vendor company that creates, develops, provides and operates Online Products.
1.18. “Subscription Based Products” means a specific quantity of cloud offerings, to which Customer commits in advance to purchase for use during a pre-defined Subscription Term and for which Customer pays upfront or on a periodic basis.
1.19. “Subscription Term” means the duration of a Subscription Based Product (e.g. 30 days, 12 months, etc).
1.20. “User(s)” means one or more of the Customer’s officers, employees or personnel appointed as an authorised user of the Online Products and/or one or more of the Customer’s officers, employees or personnel who is granted authorisation to purchase Online Products from CSP on behalf of the Customer.
2. INTERPRETATION
2.1. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
2.2. If any provision in a definition in this Agreement is a substantive provision conferring rights or imposing obligations on any parties, then notwithstanding that it is only in the definition (interpretation) clause of this Agreement, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
2.3. Any number of days prescribed in this Agreement excludes the first day and includes the last day.
2.4. This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, successors-in-title, assigns or liquidators of the parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any party shall be deemed to include such party’s estate, heirs, executors, administrators, trustees, successors-in-title, assigns or liquidators, as the case may be.
2.5. Each paragraph, clause, term, and provision of this Agreement and any portion thereof shall be considered severable and if, for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment issued by any arbitrator or court, it shall not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the parties hereto.
2.6. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.7. In this Agreement, the rule of construction that the agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement shall not apply.
3. REPRESENTATION
3.1. Each Party warrants that it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations of each Party.
3.2. Each Party warrants that neither the execution nor delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
4. PRODUCT TERMS
4.1. All access to, licensing of and use of the Online Products are granted to the Customer by the Software Vendor, in accordance with the Product Terms and Additional Terms, on a non-exclusive, non-transferable basis, for the internal business purposes of the Customer. Customer and its Users shall not use the Online Products for resale, distribution, leasing, rental, loaning, sales, sublicensing, the provision of services and/or otherwise.
4.2. All rights granted to the Customer and/or its Users under this Agreement are limited to such rights that are provided by the Software Vendor and are subject to the following limitations:
4.2.1. Customer will have control and access to the Online Products, the use of Online Products is the sole responsibility of the Customer and as such it is the Customer’s sole responsibility to ensure that the Customer and its Users comply with the Product Terms and Additional Terms;
4.2.2. It is Customer’s sole responsibility to ensure that only authorized employees and personnel of the Customer make use of the Online Products. It is the Customers sole responsibility to provide its Users with such authorisation as may be required, to use the Online Products on behalf of the Customer;
4.2.3. The Customer may not allow Users to use the Online Products for more than the number of permitted users as prescribed by the Product Terms and Additional Terms of the applicable Online Product;
4.2.4. The Customer may not assign its right to access and/or use the Online Products to third parties without first obtaining CSP’s and/or the Software Vendor ’s prior written consent;
4.2.5. Customer must ensure that the Online Products are only accessed by authorized Users and Customer must not permit unauthorized access or use of the Online Products.
4.2.6. Customer is responsible for maintaining the confidentiality of any authentication credentials associated with Customer’s and/or its Users use of the Online Products. Customer shall implement reasonable security measures to ensure that no unauthorized employees, personnel or third parties gain access to the Online Products.
4.2.7. Customer must promptly notify CSP about any possible misuse of Customer’s Accounts or authentication credentials or any security incident related to the Online Products. Notwithstanding the aforesaid, Customer takes full responsibility and liability for unauthorized access to and/or usage of the Online Products including, without limitation, access and usage of Online Products by unauthorized employees, personnel or third parties, through Customer’s Accounts;
5. SOFTWARE VENDORS
5.1. Customer acknowledges and agrees that any Online Products purchased from CSP (or where applicable its reseller) pursuant to this Agreement are provided to Customer by the Software Vendor and these transactions are managed by CSP.
5.2. If at any time Customer does not agree to the Product Terms and/or Additional Terms of the Online Products, Customer must cease to access and/or use the Online Products and terminate this Agreement, subject to all applicable Fees being paid in full.
5.3. The Product Terms and Additional Terms are prescribed by the Software Vendor and may be amended in the Software Vendor’s sole and absolute discretion. Any amendments, modifications and/or variations to Product Terms and Additional Terms by the Software Vendor are incorporated herein by reference.
5.4. The Customer accepts that should the CSP (or its agent) be required to install any Online Product(s) and accept any associated Product Terms and/or Acceptable Use Policy terms on behalf of the Customer, then any such installation and acceptance by the CSP shall be deemed to have been installed and accepted by the Customer notwithstanding that the CSP (or its agent) may have installed or accepted the same on the Customers behalf.
6. PRICING AND PAYMENT OF FEES
6.1. CSP reserves the right to determine all Fees in respect to the Online Products. Fees are based on pricing provided to the CSP by the Software Vendor. The Fees are therefore subject to change from time to time based on price changes effected by the Software Vendor.
6.2. All Fees are at all times subject to change based on rate of exchange fluctuations.
6.3. CSP shall submit invoices to Customer setting out the Fees in respect to Customer’s access and/or usage of Online Products.
6.4. Payments made by Customer to CSP will be made in the currency stated in the invoice and shall be free of any deduction or set-off.
6.5. In respect to Subscription Based Products: Customer will make payment of all Subscription Based Products in advance by either paying the applicable Fees upfront or on a periodic basis. CSP will provide Customer with a tax invoice at the time Customer subscribes for any Subscription Based Products, or when Customer renews its subscription for such Subscription Based Products, and Customer will make payment of such invoice within 30 days of invoice.
6.6. In respect to Consumption Based Products: CSP will provide Customer with a valid tax invoice, on a monthly basis, based on the Customer’s access and/or use of any Consumption Based Products in the immediately preceding month. The Customer shall be liable for all access and/or use of Consumption Based Products on its account whether approved by the Customer or not, and the Customer is encouraged to ensure it has suitable security systems and processes in place. Customer will make payment of such invoices in accordance with its agreed payment terms with the CSP.
6.7. In respect to Perpetual Based Products: Customer will make payment of all Perpetual Based Products in advance by paying the applicable Fees upfront. CSP will provide Customer with a tax invoice at the time Customer purchases any Perpetual Based Products, or when Customer purchases any updates and/or upgrades for any Perpetual Based Products, and Customer will make payment of such invoices in accordance with its agreed payment terms with the CSP.
6.8. If Customer fails to make full payment to CSP as outlined in this clause 6, the Customer shall pay interest to CSP on the outstanding amount at the prime lending rate as published by CSP’s bankers, plus 2% (two percent) per annum calculated from the date on which payment falls due until the date on which payment is made by Customer in full.
6.9. In addition to clause 6.7 above and any other legal rights or remedies CSP may have in this Agreement or in law, should the Customer fail to make payment as outlined in this clause 6 and this is not remedied within 7 (seven) days from the due date, CSP shall be entitled to terminate this Agreement and/or suspend Customer’s access and/or usage of the Online Products with immediate effect.
6.10. Should CSP take the action outlined in clause 6.9, the Customer accepts that the CSP shall have no liability to the Customer in this regard and the Customer indemnifies CSP against any and all loss and/or damage incurred or to be incurred by the Customer as a result thereof.
6.11. Should Customer dispute any amount appearing on an invoice submitted by CSP pursuant to this Agreement, Customer shall, within 10 (ten) Business Days of receipt of the affected invoice, notify CSP, in writing, of such dispute, specifying the: (i) disputed invoice; (ii) specific amount in dispute; and (iii) alleged reasons or grounds for dispute.
6.12. Any amount disputed in terms of clause 6.10 shall not be regarded as payable in terms of this clause (provided the undisputed portion shall be paid without delay) and if the Parties are unable to resolve such dispute within 5 (five) Business Days from the date on which the dispute arose, it shall be referred to the financial manager of the Parties or their representatives for determination. If these representatives are unable to resolve the dispute within 7 (seven) Business Days from the date of referral, such dispute shall be referred for resolution in accordance clause 16 of this Agreement.
7. TAXES
7.1. Each Party acknowledges and agrees that each Party is liable for its own taxes that each Party is legally obliged to pay and which are incurred or arise in connection with or related to the transactions contemplated under this Agreement, and all such taxes will be the financial responsibility of the Party who is obligated by operation of law to pay such tax.
7.2. To the extent that any amounts payable by the Customer are subject to withholding tax or similar tax in the applicable jurisdiction (“Taxes”), the amount payable shall be grossed up by the Customer when remitting payment such that the amount paid net of Taxes equals the amount invoiced by the CSP.
7.2.1. Should the Customer require the Taxes be incorporated and reflected on the invoice (whether as a separate line item or otherwise), then the Customer undertakes to advise the CSP, no less than 30 days prior to invoice date, of the % value of the applicable Taxes to be withheld. The CSP shall then increase the invoice value such that the net amount payable by the Customer equals the amount that would have been payable had no Taxes been applicable.
8. PRODUCT SUBSCRIPTION TERM
8.1. Customer will not be entitled to terminate its subscription for Subscription Based Products prior to expiration of the Subscription Term.
8.2. Where prescribed by the applicable Software Vendor, the Customer’s subscription for Subscription Based Products will automatically renew at the end of the Subscription Term for a period equal to the previous subscription term, unless Customer provides CSP with no less than 60 days prior written notice of its intent not to renew its subscription for the Subscription Based Products.
8.3. In respect to Perpetual Based Products
8.3.1. Where the Customer purchases any Perpetual Based Products, the Customer acknowledges and accepts that upgrades, updates, maintenance and support are not included.
8.3.2. Upgrades, updates, maintenance and support will need to be purchased separately by the Customer.
9. CUSTOMER DATA
9.1. Customer hereby consents, and grants CSP a non-exclusive license, to process the Customer Data, subject to any Applicable Laws, only to the extent reasonably required for the performance of CSP’s obligations and exercise of its rights in terms of this Agreement.
9.2. Customer furthermore consents, and grants CSP a non-exclusive license, to sub-license the right to process the Customer Data to any Software Vendor only to the extent reasonably necessary for the performance of CSP’s and/or the Software Vendor’s obligations and the exercise of its rights in terms of this Agreement.
9.3. Customer warrants that the processing of the Customer Data by CSP in accordance with this Agreement will not breach the provisions of any Applicable law, statute or regulation, infringe intellectual property rights or other legal rights of any person or entity, or give rise to any cause of action against CSP, save where CSP processes the Customer Data in a manner that constitutes a breach of any Applicable Laws.
9.4. Customer warrants that it has obtained all necessary consents in respect of any personal information it provides to the CSP. All Customer Data provided to CSP as a result of this Agreement will processed strictly in accordance with any Applicable Laws and CSP’s External Data Privacy and Security Policy a copy of which will be made available to the Customer on written request.
10. CONFIDENTIALITY OBLIGATIONS
10.1. Each Party undertakes to:
10.1.1. Keep the other Party’s Confidential Information confidential;
10.1.2. Not disclose the other Party’s Confidential Information to any person or third party without the other Party’s prior written consent;
10.1.3. Use the same degree of care to protect the confidentiality of the other Party’s Confidential Information as each Party uses to protects its own Confidential Information of a similar nature, being at least a reasonable degree of care;
10.1.4. Not use any of the other Party’s Confidential Information for any purpose other than for the purpose of performing its obligations in terms of the Agreement.
10.2. CSP may disclose Customer’s Confidential Information to its officers and employees who have a need to access the Customer’s Confidential Information for the performance of their work with respect to providing Customer with access and/or use of the Online Products, which officers and employees are obligated to protect the confidentiality of Customer’s Confidential Information.
10.3. The obligations of the Receiving Party pursuant to the provisions of this Agreement shall not apply to any Confidential Information that:
10.3.1. is known to, or in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party;
10.3.2. is or becomes publicly known, otherwise than as a result of a breach of this Agreement by the Receiving Party;
10.3.3. is developed independently of the Disclosing Party and/or the Confidential Information, by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement;
10.3.4. is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall (to the extent legally permissible) advise the Disclosing Party of such requirement to disclose, to enable the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard.
10.3.5. is disclosed to a third party pursuant to the prior written authorization of the Disclosing Party.
10.3.6. is received from a third party in circumstances that do not result in a breach of the provisions of this Agreement.
11. ACKNOWLEDGEMENTS AND WARRANTY DISCLAIMER
11.1. CSP has concluded this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between Customer and CSP, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of this Agreement between Customer and CSP. CSP would not be able to provide Customer with the Online Products on an economically reasonable basis without these limitations.
11.2. The Online Products purchased under this Agreement are made available by Software Vendors that are independent of the CSP and, as such, Customer agrees that CSP is not responsible for such Online Products and the Customer expressly agrees that the access and/or use of the Online Products is at its sole risk. CSP will have no direct or indirect responsibility for or in relation to the performance or delivery, in any manner whatsoever, of the Online Products. Customer’s purchase of, access to, performance of and use of the Online Products are regulated directly between the Customer and the applicable Software Vendor and is subject to that Software Vendor’s Product Terms and Additional Terms.
11.3. To the fullest extent permissible pursuant to Applicable Laws, CSP and its affiliates disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. CSP and its affiliates do not warrant that the Online Products, data, user submissions, features, functions, or any other information offered on or through the Online Products or any reference materials will be uninterrupted, accurate, useful, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing, if encountered, will be corrected.
12. LIMITATION OF LIABILITY
12.1. Under no circumstances will the CSP or its affiliates (including its respective directors, employees, agents, or representatives) shall not be liable to the Customer for any, direct, indirect or consequential loss or damage, including but not limited to, loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract, even if CSP has been advised of the possibility of such damages. In all cases, CSP’s liability will be limited to the fullest extent permitted by Appliable Law.
13. OWNERSHIP AND PROPRIETARY RIGHTS
13.1. Customer’s access and/or use of the Online Products does not confer to Customer any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any intellectual property rights vesting in the Online Products.
13.2. The CSP and/or Software Vendor expressly reserves all its intellectual property rights, and no licences are granted by implication, estoppel or otherwise to Customer except as expressly set forth in this Agreement
14. REFUND POLICY AND RISK OF LOSS
14.1. All Fees and payments relating to Customer’s access and/or usage of the Online Products are final, non-cancellable and non-refundable.
14.2. The applicable Software Vendor may have its own policies regarding refunds and/or returns which are available to Customer, which are set forth in the applicable Software Vendor’s Product Terms.
14.3. If Customer has paid for access to Online Products that are later disabled, non-functioning, modified, or otherwise interfered with before the end of the period for which Customer purchased access, Customer may rely on the applicable Software Vendor’s Product Terms for any remedies available to Customer., in these circumstances the Customer has no remedy available to it against CSP.
15. AVAILABILITY OF CONTENT
15.1. The Software Vendor reserves the right to make any changes and/or discontinue any of the Online Products available to Customer at any time. In these circumstances the CSP will provide the Customer with as much reasonable notice, based to the notice period provided to CSP by the Software Vendor.
16. DISPUTE RESOLUTION
16.1. In the event that a dispute arises between the Parties arises out of or in relation to this Agreement, the Parties shall, within 10 (ten) Business Days of written notice of such dispute, meet and use their reasonable efforts to resolve such dispute through good faith negotiation.
16.2. If the Parties fail to resolve any Dispute within 10 (Ten) Business Days of meeting for the purposes of good faith negotiation, the Dispute may be referred to:
16.2.1. Arbitration pursuant to the rules of the Arbitration Foundation of the Republic of South Africa (AFSA); or
16.2.2. an appropriate court of competent jurisdiction.
16.3. Where a dispute is referred to arbitration, such arbitration shall be held in Johannesburg and conducted in the English language before one arbitrator appointed in accordance with AFSA rules.
17. TERM AND TERMINATION
17.1. The terms and conditions contained in this Agreement will commence on the Effective Date and will continue to be in force and effect until the Agreement is terminated:
17.1.1. by either Party should the other Party commit a material breach of any provision of this Agreement and fail to remedy such breach within 14 (fourteen) business days (or such period as may be reasonable in the circumstances) of written notice to do so;
17.1.2. By either Party on 30 days’ written notice to the other Party of its intention to terminate the Agreement.
18. CONSEQUENCES OF TERMINATION
18.1. Subscription based online products
18.1.1. Termination of this Agreement will only terminate Customer’s right to place new orders for additional Online Products and/or to renew the Subscription Term for Subscription Based Products under this Agreement.
18.1.2. The Customer will be liable for payment of all outstanding Fees as at the termination date of the Agreement and for the remaining term of any Subscription Based Product.
18.2. Consumption Based online products – Should either Party terminate this Agreement in accordance with clause 17 above, Consumption Based Products billed periodically based on usage will terminate immediately. The Customer will be liable for payment of all Fees for unpaid usage as of the date of termination.
18.3. Should either Party terminate this Agreement in accordance with clause 17 above, termination will not affect the Customer`s access to perpetual Online Products paid for,
19. NOTICES
19.1. The Parties choose as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect to court process, notices or other documents or communications of whatsoever nature, at the following addresses:
19.1.1. FOR CSP
| Physical Address: | 26 Augrabies Road, Waterfall Office Park, Midrand, 1686. |
| Attention: | Richard Hammond |
| Email: | Richard.Hammond@firstdistribution.com |
19.1.2. FOR CUSTOMER
The business and email address of the Customer as submitted by the Customer to the CSP.
19.2. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered:
19.2.1. By hand, on the day of delivery;
19.2.2. By overnight courier, on the date of delivery;
19.2.3. By email, at the time that same is transmitted and delivered.
20. GENERAL
20.1. This Agreement contains the entire agreement between the Parties with regard to the matters dealt with herein and supersedes any previous agreements between the Parties. No representations, terms, conditions or warranties not contained in this Agreement shall be binding on any of the Parties, unless agreed to in writing by the Parties;
20.2. Notwithstanding anything to the contrary contained in this Agreement, the CSP shall be entitled to sub-contract, delegate, assign or cede any or all of the CSP’s rights and/or obligations under this Agreement to any entity forming part of its group of companies (as defined in the South African Companies Act, 2008) without notice or the Customer’s prior consent.
20.3. No latitude, relaxation, indulgence or extension of time which may be allowed on a Party or any of its employees by the other Party in respect of any performance or breach or any other matter in terms of this contract shall in any circumstances be deemed as a waiver by the other Party of any rights it may have.
20.4. In the event of any one or more of the provisions of this Agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this Agreement, and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
20.5. Notwithstanding anything to the contrary, and notwithstanding the termination of this Agreement for any reason whatsoever, those provisions of this Agreement which expressly or by their nature are intended to survive the termination of this Agreement, shall survive such termination and shall continue to be of force and effect.
20.6. The CSP shall have the right to update, change or replace any part of this Agreement by posting the changes and updates to the CSP’s website.
20.7. The failure of either Party to exercise or enforce any right or provision contained in the Agreement will not constitute a waiver of such right or provision. Any waiver or amendment of any of the provisions contained in the Agreement will be effective only if reduced to writing and signed by the Parties.
20.8. Except for the Customer’s obligation to pay CSP, neither Party shall be liable for any failure to perform due to unforeseen circumstances or to causes beyond the Party’s reasonable control, including, but not limited to, acts of God, epidemics, pandemics, war, riot, acts of civil or military authorities, fire, flood, earthquake, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labour, or materials.
20.9. This Agreement shall be governed by the laws of the Republic of South Africa. Any action instituted in respect to the terms hereof, shall be instituted in Johannesburg, Gauteng, South Africa.
20.10. Each Party shall pay its own costs of and incidental to the preparation, drawing, finalising and execution of this Agreement, including incidental negotiations, consultations and attendances.
20.11. The Customer shall be liable for all costs incurred by the CSP in the recovery of any amounts or the enforcement of any rights which it has in terms of this Agreement, including collection charges and costs on an attorney and own client scale and costs of counsel.
20.12. This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same Agreement. Documents scanned and transmitted electronically as well as documents signed by electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. Each Party hereto hereby waives any right which it may have to dispute the validity or enforceability of this Agreement by virtue of its failure to either initial each page of this Agreement and/or have its signatory’s signature verified by a witness