AGREEMENT FOR COMPU-CLEARING S INTEGRATED SYSTEM S SOFTWARE SERVICES (hereinafter referred to as CCIS )

Transcription

1 AGREEMENT FOR COMPU-CLEARING S INTEGRATED SYSTEM S SOFTWARE SERVICES (hereinafter referred to as CCIS ) Between COMPU-CLEARING (PROPRIETARY) LIMITED (hereinafter referred to as CCL ) and (hereinafter referred to as The Client ) INDEX 1 PURPOSE 2 DEFINITIONS 3 SUB-SYSTEMS 4 PRICING 5 SELECTION OF THE COMPU-CLEARING SYSTEM 6 ITEMS AVAILABLE TO THE CLIENT AT NO ADDITIONAL CHARGE IN TERMS OF THIS AGREEMENT 7 CCL INVOICING TO THE CLIENT 8 PAYMENT 9 TERMINATION 10 CANCELLATION OF CONTRACT 11 LICENCE AND PROPRIETORSHIP 12 MAINTENANCE AND GUARANTEES 13 WARRANTIES 14 COMPANIES NON-LIABILITY FOR DAMAGES 15 CONDITIONS PRECEDENT 16 NON-VARIATION 17 WAIVER 18 NOTICES 19 SEVERABILITY 20 CLAUSE HEADINGS 21 CEASE TO OPERATE 22 REFERENCES TO WEBSITE 23 GOOD FAITH 24 DOMICILIUM 1

2 1) PURPOSE a) For CCL to provide a software service to the Client from the product range of the CCIS, as reflected in Annexure A. Furthermore, the Client may make use of different products of CCL as reflected on the CCL website, The Client acknowledges that it understands the scope and the functionality of each system, the facilities that the systems provide, and those that it does not provide. The service will be rendered at the Client s premises as defined below. b) The purpose of this agreement is purely to define the usage that the Client will make of the CCIS and is totally unrelated to the provision of hardware, networking services or 3rd party software. The Client acknowledges that it has to provide the necessary hardware for the operation of the Compu- Clearing software, or CCL will provide the hardware, networking and 3rd party software, in terms of a separate agreements. 2) DEFINITIONS a) The Client s list of premises where this software will be used is listed in Annexure A. The Client shall complete a separate Annexure A, in respect of each site (building or premises) where the CCIS software will run. b) The effective date shall mean the date upon which this agreement shall be signed by both CCL and the Client. c) The delivery date shall be as the as per the Request for Proposal conditions. Notwithstanding the effective date, this agreement shall be deemed to have commenced on the delivery date. d) The Website shall mean the CCL website at e) A transaction will be deemed to have been processed, once CCL s billing system logs the transaction on the CCL billing system. 3) SUB-SYSTEMS The specific services and modules available from CCL in terms of this agreement as well as the dates on which these services and modules will be made available are detailed in Annexure B. More details on the specific services, modules and sub-systems are available from the official CCL website a) CHARGES FOR THE CCIS PRODUCT RANGE i) Annexure B to this agreement provides the agreed price list and pricing structure, in respect of the agreed services and system/s the Client requested. These charges will be reviewed on an annual basis, with new prices being announced prior to the 30th of November of each year, becoming effective on 1 January of the following year, or such later date, which CCL may elect, at its sole discretion. ii) New systems and features may be added from time to time, for which the client will be charged, should they elect to make use thereof. iii) If the delivery as defined in clause 2c) does not fall on the first business day of the month, fixed monthly charges will be charged on a pro rata basis for that month. Transaction based charges will be levied based on volumes, as indicated on the price list. 2

3 4) PRICING a) In terms of this agreement, the price list may be printed out and attached to form an integral part of this agreement, but should such an attachment be missing then the current price list, will be valid and effective. b) The Client accepts and agrees that CCL will be entitled to effect a single annual price change, on 1 January of each and every successive year thereafter, or on such date as CCL may elect, at its sole and absolute discretion. Notwithstanding the date of such price change, CCL will not be entitled to effect such change without 30 days written notice to the client. c) All systems have a sliding scale in terms of pricing. On each item, the greater the number of transactions per month for a specific item, the lower the unit cost. Such reductions are based on excess over breakpoints, for example, if the unit cost of submitting a Bill of Entry to Customs is R1-00 for the first 100 Bill of Entries and 90 cents for quantities in excess of 100, the unit cost per Bill of Entry will drop from R1-00 to 90 cents for any Bill of Entry submitted in excess of 100 subject to minimum charge for that product breakpoint. d) In terms of the sliding scale, it is important to determine whether the different branches of the Client shall be deemed to be separate entities for charging purposes, or a single entity. In the event they are deemed to be a single entity, their volumes will be consolidated, resulting in a lower unit charge based on the consolidated breakpoint per product used. i) If the Client elects to be a single entity from a charging point of view, then the Client must set up an internal support help desk. In other words, as the Client purports to be a single entity, all support on the part of CCL would be to a single entity. The Client would, therefore, appoint one of its own staff members to receive support calls from all its branches, filter those calls to ensure that they are not repeat calls, and to ensure that these are actual faults, and only report to CCL such faults through such staff member. ii) The shareholding or other ownership of the entities must be the same. e) In addition to transaction charges, the Client agrees to pay the port charges for the AS/400. A port charge needs to be allocated for each User/PC/Terminal that is configured on the AS/400 and for each printer that is configured on the AS/400. f) TRAINING: Unless otherwise notified by CCL to the Client, training will be made available at CCL premises. All CCL clients will receive a 50% discount. In this respect, the Client will ensure their staff is available for training at the agreed upon time. Where the Client requests live training to take place at the Client s premises, such training will be done at an additional charge. 5) SELECTION OF THE CCIS The Client accepts the responsibility that the effectiveness of the system referred to in this contract meets with their requirements in regard to; a) Its selection to achieve the Client s intended result; b) Its use; c) The results obtained there from. 6) ITEMS AVAILABLE TO THE CLIENT AT NO ADDITIONAL CHARGE IN TERMS OF THIS AGREEMENT CCL will make available the following: 3

4 a) PROGRAMME MAINTENANCE CCL shall not levy any charges for the programme itself, nor for any modifications to existing software in the programme, as a result of either; i) Changes in Customs requirements. ii) Faults within the programme. Any enhancements, improvements or additions to the programme, requested by the Client, will be for the Client s account and costed by CCL on an ad hoc basis. b) DATA MAINTENANCE CCL shall not charge for the maintenance of either the Customs Tariff Master or the Exchange Rates files. The Client is responsible for procuring hardware and network infrastructure, to enable the CCL software to run. c) DATA BACKUP CCL will perform daily backups onto tape, of all user data hosted on the AS/400 servers located at CCL s premises. Backup of data hosted at the client s premises will only be performed by CCL, should the backup at the client s premises fail and the client requests CCL to perform such backup. Such request must be logged through the CCL helpdesk. d) NEWS UPDATES If the client subscribes to our notifications (news.compu-clearing.com), the client will be kept up to date with System Updates, New Projects and CCL news, users can unsubscribe at any time. All CCL News is available on the website. 7) CCL INVOICING TO THE CLIENT Within the first 10 days of every month, CCL will submit an invoice to the Client, showing all the chargeable transactions processed by the Client, through the CCL software, for the previous month. The charges shall be payable monthly in arrear, by no later than 30 days after the completion of the month for which the charges are levied. 8) PAYMENT a) Under no circumstances whatsoever, for whatever cause arising, shall the Client be entitled to withhold any payment of amounts due and owing to CCL in terms of this agreement. b) Under no circumstances, for whatever cause arising, shall CCL entertain any claim for any refund of an overcharge, raised in a previous invoice, unless such overcharge is brought to the attention of CCL, in writing, within 3 months of such overcharge. c) Under no circumstances whatsoever, for whatever cause arising, shall the Client be entitled to set off any amounts which may be charged by CCL to the Client, against any amounts which may be claimed by the Client. d) CCL shall not be obliged to continue to provide the CCL service in the event of any non-payment of amounts due and owing, in terms of this agreement. In the event of non-payment, the termination of the CCL service shall be immediate and forthwith, without notice and at the sole discretion of CCL. In this respect, CCL shall not be responsible for any damages or consequential loss of whatsoever nature, cause and effect. 4

5 9) TERMINATION This agreement shall be a monthly, automatically renewable agreement. Therefore, in the event of there being no written notice of termination from either party, this agreement shall be deemed to be renewed automatically from month to month. The Client shall moreover be entitled to terminate this agreement, upon one calendar month s written notice. Save and except for termination for non payment or breach by the Client, CCL shall be entitled to terminate this agreement upon one month s written notice 10) CANCELLATION OF CONTRACT In the event of the Client breaching any of the terms of payment stipulated in this agreement, or breaching any of the terms and conditions contained herein, all of which shall be deemed to be material, or commit an act of insolvency, or permit a judgement to be entered against it, and not rescind or satisfy such a judgement within 10 days thereof, CCL shall have the right, at it s sole discretion and 7 days from the date of serving written notice on the domicilium of the client to; a) Claim payment of such amounts then outstanding for such damages as it may have suffered by reasons of the Client s breach. b) Claim specific performance of the terms and conditions of this agreement. c) Any dispute, difference, impasse, or deadlock between the parties pursuant to this agreement must be referred to arbitration in terms of the rules and regulations of the Arbitration Foundation of South Africa. d) The losing party in any litigation between the parties shall be responsible to pay the successful party s costs on the Attorney and Own Client scale. 11) LICENSE AND PROPRIETORSHIP The Client acknowledges CCL s proprietary rights in the software, and in the system, referred to in this agreement and any copies thereof. The Client accordingly agrees that the copying, or even observation by un-related parties, of the system, for any reason, other than the usage of the system, in terms of this agreement, is strictly prohibited. The Client further agrees not to assist or to allow any other party to observe the Compu-Clearing system for the purpose of developing another system, which would perform functions similar to those of the Compu-Clearing system. Furthermore, the Client agrees that in the event of it breaching this particular clause, it will pay damages to CCL as determined by a court of law. 12) MAINTENANCE AND GUARANTEES CCL will use its best endeavours to be available as soon as possible in regard to the maintenance of the system supplied in terms of this agreement, and accordingly any faults reported will be rectified as soon as possible. The Client reports and accepts however, that faults may arise, for which CCL may not be liable. CCL will reimburse the Client for any losses or consequential losses in terms of failures of its systems, but such reimbursement will be limited to; a) No charge being made in respect of bills of entry which are produced with an error. b) CCL will indemnify the Client, in the event of any penalty being levied by Customs to the Client as a result of Compu-Clearing recording the wrong Customs duty, miscalculating Customs duty, or schedule 1 part B. However CCL will not reimburse the Client in respect of the incorrect choice of tariff heading, description of goods, or miscalculation of Customs value prior to conversion to South African Rands. It is provided however, that notwithstanding the above undertaking and acceptance of liability on the part of CCL, the maximum amount that CCL will reimburse the Client, in respect of any one month shall be the actual loss incurred, up to a maximum of the average monthly billings for the preceding 6 months. 5

6 c) It is recorded that no part of this agreement shall absolve the Client and the Client s staff from their duty to exercise due care and reasonable judgement in the conduct of their duties and failure to do so will reduce any reimbursement on a proportional basis. d) It is further provided that CCL will not be responsible for indemnifying the Client in the event of; i) Any malfunctions or breakdown of equipment. ii) Any breakdown of service due to power failures or breaks in data communication lines. iii) Any errors on the part of CCL as a result of miscoding of permit requirements. Although CCL will always endeavour its very best to classify all the tariff headings correctly, as far as permits are concerned, due to the fact that there is no clear record or legislation on this matter, it is impossible for CCL to guarantee that it has classified all the tariff headings correctly for permit purposes. Therefore, it is still the responsibility of the Client, to ensure that tariffs are processed correctly from a permit point of view. 13) WARRANTIES No warranties or representations are given by CCL to the Client, save for those set out herein. In performing its obligations under this agreement, CCL shall exercise all reasonable care and skill, in accordance with generally accepted computer services and consulting standards and practices for services of a similar nature 14) COMPANIES NON-LIABILITY FOR DAMAGES CCL and the Client agree that no representation or warranties implied or otherwise, undertakings or promises not contained in this agreement, shall be binding upon either party. It is further agreed that CCL shall not under any circumstances, whatsoever be liable, to the Client, its representatives or agents, for damages of whatsoever nature, cause and effect and howsoever arising, inclusive of consequential damages save and except for the cost of reimbursements as set out herein. 15) CONDITIONS PRECEDENT There are no conditions precedent to this Agreement. 16) NON VARIATION The terms and conditions of this agreement shall not be capable of variation and/or waiver, nor may this agreement be cancelled, unless such variation and/or waiver and/or cancellation is in writing and signed by the parties hereto. 17) WAIVER No relaxations or indulgencies, which either party may afford the other, shall in any way prejudice the rights of the other, nor shall either party be estopped from exercising such rights by reasons thereof. 18) NOTICES All notices, by either party to the other party, shall, in the case of delivery be deemed to have been received on the day after the date of delivery, and in the case of posting thereof, by pre-paid registered post, be deemed to have been received, 7 days after posting. All notices sent by fax or shall be deemed to have been received 24 hours after successful transmission. 19) SEVERABILITY If any provision in this agreement, is held to be invalid, illegal, or unenforceable, this will not affect the validity, legality and enforceability of the other terms and conditions of this agreement. 6

7 20) CLAUSE HEADINGS The headings in this contract are intended for convenience and shall in no way affect the construction and the validity of the agreement. 21) CEASE TO OPERATE In the event of CCL being liquidated or ceasing to operate as a legal entity, on a permanent basis, and CCL not being able to perform its obligations under this agreement, then the Compu-Clearing programmes and data, as well as any documentation pertaining thereto, shall become the non-exclusive property of all CCL s Clients at the time of such discontinuance, if permissible by law. Therefore, clients shall be entitled to continue with the usage of the CCL system in the event of CCL permanently ceasing to exist as a legal entity. 22) REFERENCES TO WEBSITE The prices quoted referred to in this agreement are an integral part of this agreement. In the event of a dispute relating to the price/s of the item/s the latest price list shall be final and binding on the parties. If possible, the specific price list/s should be attached as an annexure hereto. The Online Terms and Conditions to our Online Systems as specified on our web site. 23) GOOD FAITH The parties undertake to exercise the utmost good faith in their dealings with each other. 24) DOMICILIUM a) Service on a domicilium address shall be affected by hand delivery, and/or and facsimile. b) The parties hereto choose their Domicilium citandi at executandi as follows: i) The Company at: 7 Drome Road Lyndhurst Johannesburg ii) The Client at: Thus done and signed by CCL at Johannesburg on this day of 20 in the presence of the undersigned witnesses. AS WITNESSES: 1. For: Compu-Clearing (Pty) Ltd (duly authorised) 2. 7

8 Thus done and signed by the Client at on this day of 20 in the presence of the undersigned witnesses. AS WITNESSES: 1. For: The Client (duly authorised) 2. 8

9 ANNEXURE A CLIENTS PREMISES