WeconnectU (Pty) Ltd
TERMS AND CONDITIONS OF SERVICE AND USE
1. RECITALS
WeconnectU has developed certain software applications and platforms which it makes available to subscribers via the Internet on a subscription basis for the purpose of providing solutions for the property management industry and related industries.
1.1. The Customer wishes to use WeconnectU’s service in its business operations.
1.2. WeconnectU has agreed to provide, and the Customer has agreed to take and pay for WeconnectU’s service subject to the provisions of the specific Software Agreement, including any and all annexures and schedules thereto and the provisions of these Terms and Conditions.
2. INTERPRETATION
The headings of the clauses in these Terms and Conditions are for purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of these Terms and Conditions nor any clause hereof. Unless a contrary intention appears –
2.1. Words importing any one gender includes all other genders.
2.2. Words importing the singular includes the plural and vice versa.
2.3. Words importing a natural person include juristic persons (corporate or unincorporated) and vice versa.
2.4. A reference to:
2.4.1 a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
2.4.2 clauses and annexures are to the clauses and annexures of these Terms and Conditions; references to paragraphs are to paragraphs of the relevant annexures to these Terms and Conditions.
2.4.3 “Days” will mean calendar days unless qualified by the word “business”. A “Business Day” will be any day other than a Saturday, Sunday or official public holiday gazetted or declared by the government of the Republic of South Africa. “Business Hours” will be the hours between 08h30 and 17:00 on any business day. Any reference to time will be based upon South African standard time.
2.4.4 “User” shall, where the context requires, include a “Customer” and an “Authorised User”. Any reference to the actions of a specific Authorised User shall apply to the Customer.
2.5. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of these Terms and Conditions.
2.6. When any number of days is prescribed in these Terms and Conditions, same shall be reckoned exclusively of the first day and inclusively of the last day unless the last day is not a business day, in which case the last day shall be the next succeeding business day.
2.7. The expiration or termination of a Software Agreement shall not affect such of the provisions of that Agreement or these Terms and Conditions 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 this.
2.8. These Terms and Conditions are to be read and interpreted in conjunction with the relevant Software Agreement and any and all annexures thereto entered into between WeconnectU and the Customer.”
3. DEFINITIONS
In these Terms and Conditions, unless the context indicates otherwise, the following words shall have the following meanings:
3.1. “AFSA” means the Arbitration Foundation of Southern Africa;
3.2. “Authorised Users” means those individuals who are authorised by the Customer to use the Services and the Documentation provided by WeconnectU (Pty) Ltd, as further described in clause 4;
3.3. “Confidential Information” means all information exchanged between the Parties, whether in writing, electronically or orally, including information on WeconnectU Software. It includes all information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by a Party, or information which the receiving Party knows or reasonably should have known is of a proprietary or confidential nature;
3.4. “Customer” means the person that has entered into a Software Agreement with WeconnectU for the use of the Software and the rendering of the Services, and “Client” shall have a corresponding meaning.
3.5. “Customer Data” means the data inputted by the Customer, Authorised Users, or WeconnectU on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, and includes (without limitation) Personal Information;
3.6. “Documentation” means documentation specifically agreed on between the Parties and documentation made available to the Customer by WeconnectU in terms of a Software Agreement via www.weconnectu.co.za or such other web address notified to the Customer by WeconnectU from time to time and which enables the Customer to use the Services;
3.7. “Intellectual Property Rights” means all the rights in and to Intellectual Property including (without limitation) the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor topography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any Confidential Information or processes relating to that subject matter;
3.8. “Party” means either WeconnectU or the Customer, and “Parties” means both WeconnectU and the Customer;
3.9. “Personal Information” has the meaning ascribed to it in the Protection of Personal Information Act 4 of 2013 (“POPI”), and any applicable law in South Africa and/or in any other jurisdiction where the Services are provided and/or used;
3.10. “Services” means the subscription services provided by WeconnectU to the Customer under the various Software Agreements via www.weconnectu.co.za or any other website notified to the Customer by WeconnectU from time to time, as more particularly described in the Documentation;
3.11. “Signature Date” means the date of signature of the Party signing the Software Agreement last in time, whether or not in counterpart;
3.12. “Software” means the online software applications provided by WeconnectU to the Customer in order to render the Services and includes all modifications, enhancements and upgrades;
3.13. “Software Agreement” means the software service agreement and any schedules and annexures thereto entered into between WeconnectU and the Customer in terms whereof WeconnectU provides and the Customer uses the Services;
3.14. “Subscription Fees” means the subscription fees payable by the Customer to WeconnectU for the User Subscriptions, as set out in the relevant Software
Agreement and all annexures thereto;
3.15. “Subscription Term” means the period commencing on the Signature Date of a specific Software Agreement and continuing indefinitely, subject to termination in accordance with the provisions of the specific Software Agreement or these Terms and Conditions;
3.16. “User Subscriptions” means the user subscriptions purchased by the Customer pursuant to a specific Software Agreement, which entitles Authorised Users to access and use the Services and the Documentation in accordance with the Software Agreement and these Terms and Conditions;
3.17. “VAT” means value-added tax charged in terms of the Value-Added Tax Act 89 of 1991 (as amended);
3.18. “Virus” means a device or thing (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device that may prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices; and
3.19. “WeconnectU” means WeconnectU Proprietary Limited, a private company incorporated in terms of the company laws of South Africa under registration number 2017/012125/07.
4. USER SUBSCRIPTIONS
4.1. Subject to the Customer purchasing the User Subscriptions in accordance with the terms and conditions of a Software Agreement, WeconnectU hereby grants to the Customer a non-exclusive, non-transferable right to permit Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
4.2. In relation to the Authorised Users, the Customer undertakes that:
4.2.1. it will not allow any Authorised User’s access credentials to be used by anybody else;
4.2.2. each Authorised User shall keep a secure password for his use of the Services and Documentation and shall keep that password confidential; and
4.2.3. it is the sole responsibility of the Customer to ensure that its usernames and passwords are secured at all times as the Customer is responsible for all
activities which take place on its account.
4.3. The Customer shall not access, store, distribute, or transmit any Viruses, or any material during its use of the Services that:
4.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; and
4.3.2. WeconnectU reserves the right to disable the Customer’s access to any material that breaches the provisions of this clause.
4.4. The Customer shall not:
4.4.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit, or distribute all or any
portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
4.4.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
4.5. In the event that WeconnectU becomes aware that any password has been provided to any individual who is not an Authorised User, then without prejudice to WeconnectU’s other rights, WeconnectU may disable such passwords and refuse to issue any new passwords to any such individual.
4.6. The Customer shall prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify WeconnectU.
4.7. WeconnectU shall not be liable for any direct, indirect, incidental, special or consequential damages suffered by the Customer or any third party as a result of the unauthorised use or misuse of a User’s username and/or password and the Customer indemnifies WeconnectU against any and all such claims.
5. SERVICES
5.1. WeconnectU shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the relevant Software Agreement.
5.2. WeconnectU offers the Service on an ‘as-is’ basis and does not warrant that the WeconnectU Software and website will meet the Customer’s requirements. It is the responsibility of the Customer to ensure that it is satisfied with the Services and that it meets all the desired requirements prior to binding itself to the Software Agreement and these Terms and Conditions.
5.3. It is the responsibility of the Customer to ensure that its hardware and software are compatible with the Services prior to signing the Software Agreement and making use thereof.
5.4. WeconnectU shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for:
5.4.1. planned maintenance carried out during the scheduled maintenance window, the dates and times of which WeconnectU will provide reasonable
notice to the Customer prior to the maintenance being carried out;
5.4.2. unscheduled maintenance performed, as may become necessary from time to time.
5.5. WeconnectU does not warrant that the Services or website will be continuously available, or that the User’s use thereof will be uninterrupted, error or bug-free, or will be free from any form of cyberattack.
5.6. WeconnectU does not warrant that any defect or security breach in the Services can or will be corrected.
5.7. WeconnectU will, as part of the Services, provide the Customer with WeconnectU’s standard customer support services during Business Hours and in accordance with WeconnectU’s Support Services Policy.
5.8. The End User Support Services as agreed in the relevant Software Agreements are provided on a best effort basis but does not include correction of any User mistakes or errors.
6. THIRD PARTY PROVIDERS
6.1. The Customer acknowledges that the Services may enable or assist it to access the products and services of third parties, either directly, via the Software integration, or via third-party websites and that it does so solely at its own risk.
6.2. WeconnectU shall have no liability or obligation whatsoever in relation to the contents or use of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by the Customer, with any such third party.
6.3. The Customer agrees & acknowledges that WeconnectU shall not be liable in any form whatsoever for the Customer’s inability to access & make use of WeconnectU’s Software due to the fault, negligence, system downtime, unavailability or termination of any of its third-party providers.
6.4. WeconnectU does not endorse or approve any third-party software applications, nor the content of any third-party website made available via the Services.
7. WeconnectU’s OBLIGATIONS
7.1. WeconnectU undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to WeconnectU’s instructions, or modification or alteration of the Services by any party other than WeconnectU or WeconnectU’s duly authorised staff, contractors or agents.
7.3. If the Services do not conform with the undertaking in clause 7.1, WeconnectU will use all reasonable commercial endeavours to correct any such non-conformance promptly or provide the Customer with an alternative means of accomplishing the desired performance.
7.4. Notwithstanding the foregoing, WeconnectU:
7.4.1. does not warrant that the Customer’s use of the Services will be uninterrupted or error free; and
7.4.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks
and facilities.
7.5. WeconnectU warrants that it has and will maintain all necessary licenses, consents and permissions necessary for the performance of its obligations under the Software Agreement.
8. CUSTOMER’S OBLIGATIONS
The Customer shall:
8.1. provide WeconnectU with:
8.1.1. all necessary co-operation in relation to the Software Agreement; and
8.1.2. all necessary access to such information as may be required by WeconnectU;
8.1.3. comply with all applicable laws and regulations of the Republic of South Africa and any other jurisdiction where the Services may be provided or used
as contemplated in the Software Agreement;
8.1.4. comply with any reasonable directions from WeconnectU regarding access to or use of the relevant software solution;
8.1.5. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Software Agreement and
these Terms and Conditions;
8.1.6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its system with the WeconnectU
Services;
8.1.7. ensure that the Customer’s details and other information given in relation to the use of WeconnectU Software are, and are maintained to be, true,
correct and accurate;
8.1.8. not attempt to undermine the security or integrity of WeconnectU’s computing systems or networks;
8.1.9. not attempt to gain unauthorised access to any materials other than those to which the Customer has been given express permission to access;
8.1.10. not transmit or input into WeconnectU Software or systems any files that may damage WeconnectU or any other person’s computing device or
software, content that may be offensive material or use details or company details in violation of any law;
8.1.11. use WeconnectU Software only for lawful, internal business purposes, in accordance with the relevant Software Agreement and these Terms and
Conditions;
8.1.12. comply with all contractual obligations, as imposed upon the Customer by the Software Agreement and these Terms and Conditions; and
8.1.13. ensure that the WeconnectU Software and website are not used in such a way that could cause a disproportionate load on the software infrastructure
of WeconnectU or third party service providers.
9. CHARGES AND PAYMENT
9.1. The Customer shall pay the Subscription Fees to WeconnectU for the User Subscriptions in accordance with the relevant Software Agreement.
9.2. WeconnectU shall invoice the Customer on a monthly basis for all Subscription Fees and all other fees and cost recoveries, as agreed to in the relevant Software Agreement.
9.3. The total amount due for every invoice will be collected via Debit Order every month, in accordance with the Debit Order Mandate provided by the Customer in terms of the Software Agreement.
9.4. In the event of non-payment of any outstanding invoices, WeconnectU reserves the right to:
9.4.1. disable the User passwords;
9.4.2. charge interest on the outstanding amount at the prime rate plus 3 percentage points; and
9.4.3. immediately terminate the relevant Software Agreement in accordance with the provisions of clause 14 of these Terms and Conditions.
10. INTELLECTUAL PROPERTY
10.1. The Customer acknowledges and agrees that WeconnectU and/or its licensors own all Intellectual Property rights in and to the Services and the Documentation. Except as expressly provided herein or in the Software Agreement, the Customer does not have and will not acquire any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any
other Intellectual Property Rights, or licenses in respect of the Services or the Documentation.
10.2. The exclusive right to authorise or prohibit the direct or indirect, temporary or permanent reproduction of the Intellectual Property by any means and in any form, in whole or in part, and to make the Intellectual Property available to the public, and to distribute any copyright protected material in WeconnectU Software and website shall remain with WeconnectU.
10.3. WeconnectU may incorporate any technical and other protective measures to prevent any unauthorised and/or illegal use of WeconnectU Software and website.
10.4. In the event that WeconnectU Software or website become the subject of any form of claim of infringement of a third-party’s intellectual property rights, WeconnectU may elect to either:
10.4.1. obtain the right for the Customer to continue its use of WeconnectU Software or website, in accordance with the provisions of the Software
Agreement and these Terms and Conditions; or
10.4.2. modify or replace the alleged infringement so as to avoid any infringement or alleged infringement, with reasonable endeavours to ensure that the
functionality and performance of WeconnectU Software or website remain as it was prior to any claim of infringement, in either case without the Customer being able to claim damages or withdraw from the specific Software Agreement.
10.5. In the event that the Customer becomes aware of any alleged infringement as described above in clause 10.4, the Customer agrees to:
10.5.1. promptly notify WeconnectU in writing of any claim or threatened action concerning the use of WeconnectU Software or website;
10.5.2. refrain from independently defending or responding to such claim or threatened claim; and
10.5.3. co-operate with WeconnectU in the defence of any such claim or threatened claim.
11. DATA PRIVACY AND PROTECTION
11.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
11.2. The Customer agrees to be bound by the provisions of WeconnectU’s Privacy Policy, available at www.weconnectu.co.za. WeconnectU reserves its right to update this Privacy Policy from time to time and agrees to notify the Customer of any such changes, in which case the Customer will be bound by such changes.
11.3. WeconnectU agrees to take all reasonable steps to ensure the safe-keeping of the Customer Data.
11.4. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for WeconnectU to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by or on behalf of WeconnectU.
11.5. WeconnectU may disclose personal identifiable information under special circumstances including but not limited to the following:
11.5.1. any court order compelling the company to do so; or
11.5.2. it is authorised by law to do so.
12. CONFIDENTIALITY
12.1. The information exchanged between the Parties in terms of a Software Agreement is confidential, privileged and only for the use of the intended recipient and may not be used, duplicated, published or redistributed to any other individual or company. WeconnectU reserves its right to protect and enforce the confidentiality of its Software and the use thereof.
12.2. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the relevant Software Agreement. A Party’s Confidential Information shall not be deemed to include information that:
12.2.1. is or becomes publicly known other than through any act or omission of the receiving Party;
12.2.2. was in the receiving Party’s lawful possession before the disclosure;
12.2.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
12.2.4. is independently developed by the receiving Party, which independent development can be done by written evidence; or
12.2.5. is lawfully required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.3. Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the exercise of their respective rights and the performance of their respective obligations in terms of the relevant Software Agreement.
12.4. Each Party shall take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of the relevant Software Agreement and these Terms and Conditions.
13. LIMITATION OF LIABILITY
13.1. The Customer agrees that WeconnectU shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services.
13.2. WeconnectU disclaims any and all loss or liability resulting from, but not limited to:
13.2.1. loss or liability resulting from access delays or access interruptions;
13.2.2. loss or liability resulting from unauthorised use or misuse of a User’s account username and/or password;
13.2.3. loss or liability resulting from any system security breaches and cyberattacks;
13.2.4. loss or liability resulting from errors, omissions or misstatements in any and all information or services provided under the relevant Software Agreement;
13.2.5. loss or liability resulting from the interruption of the Customer’s Service.
13.3. In the event that WeconnectU is held to be liable for any liability towards the Customer, the extent of such liability shall be limited to the amount that WeconnectU can successfully recover under any insurance policy in place to indemnify WeconnectU.
14. TERM AND TERMINATION
14.1. A Software Agreement shall commence on the Signature Date of such Software Agreement and shall continue indefinitely unless:
14.1.1. either Party notifies the other Party of termination, in writing, as per the termination notice terms of the relevant Software Agreement(s) agreed to; or
14.1.2. such Software Agreement is terminated immediately, in writing, in accordance with the provisions of this clause 14.
14.2. On termination on notice referred to in 14.1.1, the Customer shall have the period of notice provided for in the relevant Software Agreement to retrieve all Customer Data.
14.3. Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate a Software Agreement, effective immediately, without liability to the other if the other Party commits a breach of any of the material terms of such Software Agreement, including the terms, conditions and provisions of any schedule attached thereto or adopted in terms thereof, and fails to remedy, or is incapable of remedying, that breach within 7 (seven) days of that Party being notified in writing of the breach.
14.4. Without prejudice to any other rights or remedies to which WeconnectU may be entitled, WeconnectU may terminate a Software Agreement, effective immediately and without liability to the other Party if:
14.4.1. the Customer fails to pay charges that are due and owing to WeconnectU;
14.4.2. the Customer is provisionally or finally sequestrated or liquidated (as the case may be) or compounds or makes any arrangement with or for the
benefit of its creditors or surrenders his or her estate or enters into voluntary liquidation or amalgamation (other than for the purposes of a bona fide reconstruction or amalgamation without insolvency), or enters into business rescue proceedings or if any distress or execution shall be threatened or levied upon any property of the Customer or if the Customer is unable to pay its debts.
14.4.3. The Customer will have a period of 60 (sixty) days after the date of termination in 14.4, be permitted to retrieve all Customer Data after which WeconnectU will close the Customer’s account and the Customer will no longer have access to and use of WeconnectU Software.
14.5. On termination of a Software Agreement for any reason, all User Subscriptions granted under such Software Agreement shall immediately terminate.
15. VALUE-ADDED TAX
All amounts or fees referred to in the Software Agreement or these Terms and Conditions are exclusive of VAT.
16. FORCE MAJEURE
WeconnectU shall have no liability to the Customer under the Software Agreement or these Terms and Conditions if it is prevented from or delayed in performing its obligations under the Software Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of WeconnectU or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, civil commotion, malicious damage, cyber-attacks, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of WeconnectU or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17. DISPUTE RESOLUTION
17.1. Any dispute between the Parties will be referred to a joint committee comprising of senior executive representatives of each Party or their nominated alternative representatives (“the Representatives”) and the Representatives will use their best efforts to resolve the dispute within 14 (fourteen) business days of the dispute having been referred to them. Such period may be extended by the Parties in writing. The Representatives will meet at the offices of WeconnectU.
17.2. If a dispute is not resolved pursuant to clause 17.1, then such dispute will be submitted to and decided by arbitration.
18. ARBITRATION
18.1. Subject to clause 17, in the event of there being any dispute or difference between the Parties arising out of any Software Agreement or these Terms and Conditions, the said dispute or difference shall on written demand by either Party be submitted to arbitration in Cape Town in accordance with the AFSA rules for commercial arbitration, which arbitration shall be administered by AFSA.
18.2. The arbitrator, as agreed upon by the Parties, will be, if the question in issue is:
18.2.1 primarily an accounting matter, an independent accountant with not less than 10 (ten) years’ experience;
18.2.2 primarily a legal matter, a practicing senior counsel with no less than 10 (ten) years’ standing; or
18.2.3 any other matter, an independent person, with expertise relevant to the dispute.
18.3. If the parties cannot agree upon the arbitrator in terms of 18.2 above within 10 (ten) Business Days after the arbitration has been demanded, the nomination in terms of clauses 18.2.1, 18.2.2, or 18.2.3, as the case may be, will be made by the Western Cape provincial director of the Legal Practice Council of South Africa, within 10 (ten) Business Days after the Parties have so failed to agree.
18.4. The person so nominated in 17.3 shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
18.5. Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration, then any Party to the dispute shall be entitled to forthwith call upon the Western Cape provincial director of the Legal Practice Council of South Africa to nominate the arbitrator in accordance with the provisions of clause 18.2. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
18.6. The Parties agree that the decisions in these arbitration proceedings:
18.6.1 will be binding on them, subject to review;
18.6.2 will be carried into effect; and
18.6.3 may be made an order of any court of competent jurisdiction.
18.7 Any arbitration in terms of this clause 18 shall be conducted in camera and the parties shall treat as confidential the details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration, without the written consent of all the disputants.
18.8 If the arbitrator's charges and any other costs have to be paid before the arbitrator has made his award in respect of those charges and costs, the Parties shall bear and pay those charges and costs equally, pending any determination as to liability therefor by the arbitrator.
18.9 Notwithstanding anything to the contrary contained anywhere else in this clause 18, neither Party shall be prevented from applying to the appropriate court for urgent interim relief pending finalisation of the arbitration.
18.10 This clause 18 will continue to be binding on the Parties notwithstanding any termination or cancellation of the Software Agreement. The Parties agree that the written demand by a Party to the dispute in terms of clause 18.1 that the dispute or difference be submitted to arbitration, is to be deemed a legal process for the purposes of interrupting extinctive prescription in terms of the Prescription Act of 1969.
19. WAIVER
19.1. A waiver of any right under the Software Agreement or these Terms and Conditions is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
19.2. Unless specifically provided otherwise, rights arising under the Software Agreement or these Terms and Conditions are cumulative and do not exclude any other rights provided by law.
20. SEVERANCE
20.1. If any provision (or part of a provision) of the Software Agreement or these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2. If any invalid, unenforceable or illegal provision would be invalid, enforceable or legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
21. ENTIRE AGREEMENT
21.1. The relevant Software Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover
21.2. Each of the Parties acknowledges and agrees that in entering into the Software Agreement it does not rely on any undertaking, promise, assurance, statement, warranty or understanding (whether in writing or not) of any person (whether party to the Software Agreement or not) relating to the subject matter of such Software Agreement, other than as expressly set out in such Software Agreement.
22. ASSIGNMENT
22.1. The Customer shall not, without the prior written consent of WeconnectU, cede, assign, transfer, charge, sub-contract, make over or deal in any other manner with all or any of its rights or obligations under the Software Agreement or these Terms and Conditions.
22.2. WeconnectU may at any time cede, assign, transfer, charge, sub-contract, make over or deal in any other manner with all or any of its rights or obligations under the Software Agreement and these Terms and Conditions.
23. GOVERNING LAW AND JURISDICTION
23.1. The Software Agreement and any disputes or claims arising out of or in connection with it or its subject matter formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of South Africa.
23.2. The Parties irrevocably agree that the High Court of South Africa has exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Software Agreement or its subject matter or formation (including non-contractual disputes or claims).
23.3. Should a dispute relating to the provisions of the Software Agreement or these Terms and Conditions arise and proceed to litigation, the successful party will be entitled to legal costs on the scale as between attorney and own client.
