Index: 

A. PRAELEXIS Al GMBH STANDARD TERMS AND CONDITIONS FOR PROVISION OF SERVICES

B. PRAELEXIS STANDARD TERMS AND CONDITIONS FOR PROVISION OF SERVICES

A. PRAELEXIS Al GMBH STANDARD TERMS AND CONDITIONS FOR PROVISION OF SERVICES

Praelexis Al GMBH, a private company with limited liability, duly incorporated under the applicable laws of the Germany, with registration number: HRB 279896 (“Praelexis”) and the Client (hereinafter referred to as “Party” and/or “Parties”, as the context may indicate) agree as follows:


1. SERVICES
Praelexis shall render the services described in the Quote to the Client on these terms and conditions. The Quote, read together with these terms and conditions, constitute “the / this Agreement”.

2. PAYMENT
2.1. The Client shall pay, by way of Electronic Fund Transfer (“EFT”), Praelexis the amount (plus Value Added Tax if applicable) set out on the Quote within 30 (thirty) calendar days of the date of Praelexis’s invoice therefore, into the nominated bank account appearing on the Quote, in Euro, free of conditions, set-off, bank exchange, commission or any other deduction. The Client shall not defer, adjust or withhold such payment.

2.2. The amounts to be paid in terms of this Agreement do not include sales taxes (other than VAT, if so specified), excise, gross receipts and withholding taxes, universal service fund fee and any similar tax or any government-imposed fees or surcharges (collectively, “taxes”). 

2.3.The Client shall pay or reimburse Praelexis for all such additional imposed taxes (excluding tax on Praelexis’s income), as per 2.2, which will be invoiced to the Client in accordance with the law where the Client is domiciled.

2.4. In respect of withholding tax, the Client will pay such additional amounts as may be necessary, so that Praelexis receives the amount it would have received had no withholding tax been imposed, except if the Client provides Praelexis with a valid withholding tax certificate within 30 (thirty) days of date of payment of the charges or fees paid to Praelexis under this Agreement.


3. INTELLECTUAL PROPERTY
3.1. All rights, title and interest in and to all intellectual property (“IP”) relating to any equipment and/or software that form the subject matter of this Agreement and which is utilized by Praelexis in the execution of services, shall remain the sole property of Praelexis (“Background IP”), except to the extent that IP is created as part of a Service Agreement, in which case the created IP will vest with the Client. 

3.2. The confidential information and data provided by the Client to Praelexis in order to allow Praelexis to provide the service and/or product as specified on the Quote shall, however, remain the property of the Client.


4. BREACH
4.1. If either Party:

4.1.1. commits any breach of this Agreement other than a breach of a payment obligation and fails to remedy the breach within 30 (thirty) calendar days after receipt from the other Party of written notice calling upon it to do so; or

4.1.2. commits a breach of any payment obligation in terms of this Agreement and fails to make payment within 7 (seven) calendar days after receipt from the other Party of written notice calling upon it to do so; or

4.1.3. (a) commits an act of insolvency (b) is deemed unable to pay its debts (c) finds itself in circumstances capable of being wound up (d) is deregistered or applies for deregistration relevant legislation, (e) is subject to application for the provisional winding up or judicial management of such Party, or a special resolution is passed for the winding up of such Party or (f) is subject to business rescue proceedings of such Party, or a resolution is passed to apply to place such Party in business rescue; or

4.1.4. has judgment taken against it and fails to satisfy or apply to have same set aside within 7 (seven) calendar days of becoming aware thereof; or

4.1.5. without the prior written consent of the other Party, undergoes a change in its shareholding or members’ interest so that a new person owns the majority of its voting share capital or members’ interest; 

then the other Party may, in addition to and without prejudice to any other right it may have in law or in terms of this Agreement:
(a) enforce specific performance of the terms of this Agreement; or
(b) subject to clause 4.2, cancel this Agreement; and
(c) in either event (subject to clause 5.4), recover such damages as it may have sustained.

4.2. An aggrieved Party may cancel this Agreement in terms of this clause 4.1 only if the breach is material and is not capable of being remedied by payment of money or, if it is capable of remedy by payment of money, if the other Party fails to make payment within 14 (fourteen) calendar days after final determination of the amount.

4.3. The Client may not institute a claim against Praelexis arising from the terms of this Agreement or performance in terms thereof more than 1 (one) year of the purported cause of action arising.

4.4. Any amount due by any Party, which is not paid on its due date, shall attract interest at Prime Rate, plus 2 (two) percentage points. For the purposes of this clause, “Prime Rate” means the interest rate (expressed as a % per annum, compounded monthly) published by Deutshe Bank from time to time as being its minimum overdraft rate at which it lends to its most valued customers in the corporate sector, as certified by any manager of such bank, whose appointment or authority it shall not be necessary to prove, and which certificate shall, save manifest error of calculation, be prima facie proof of the contents thereof.


5. FORCE MAJEURE AND LIMITATION
5.1. Neither Party shall have any claim against the other Party (“the Affected Party”) for any delay or failure of the Affected Party to carry out any of its obligations under this Agreement arising from or attributable to acts of God, war, terrorism, government, labour action or unrest, failure of suppliers or contractors or any other cause whatsoever beyond the control of the Affected Party (“force majeure”).

5.2. The performance of the obligations of the Affected Party shall, subject to clause 5.3, be suspended for the duration of the force majeure, which shall be deemed to commence only upon the date of written notice by the Affected Party to the other Party. Upon cessation of the force majeure, this Agreement shall again become fully operative, and the Affected Party shall immediately resume its performance.

5.3. If the suspension of performance continues for more than 60 (sixty) consecutive calendar days, then either Party may summarily terminate this Agreement by written notice to the other Party, prior to the cessation of the force majeure.

5.4. Any claim by the Client against Praelexis howsoever arising shall in the aggregate be limited to the total amount actually paid by the Client to Praelexis in the preceding 12 (twelve) months, in terms of the Agreement prior to the date that the Client institutes the claim against Praelexis. In any event, Praelexis will not be liable to the Client for: (a) indirect or special damages and/or (b) loss of income, profit or anticipated savings, howsoever arising, whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action. The provisions of this clause are also stipulated for the benefit of the employees, agents and/or contractors of Praelexis.


6. DOMICILIUM AND NOTICES
6.1. The Parties choose their respective domicilium addresses for all purposes hereunder at the addresses set out below:

6.1.1. If to Praelexis Al GMBH
6.1.2. If to Client

6.2 Any Party may from time to time, by written notice to the other(s), vary   its domicilium address to any other address, which is not a post office box or poste restante.

6.3. All notices given in terms of this Agreement shall be in writing and any notice given by any Party to another (“the addressee”) which:

6.3.1. is delivered by hand shall be deemed to have been received by the addressee on the date of delivery;

6.3.2. is transmitted by electronic mail (e-mail), shall be deemed to have been received by the addressee on the first working day after the date of receipt of the receiving instrument;

6.3.3. is posted by pre-paid registered post from an address within Germany to the addressee at its domicilium address shall be deemed to have been received by the addressee on the 10th (tenth) working day after the date of such posting.

6.3.4. It shall not be permissible to give any notice relating to a dispute, demand, breach, legal proceedings, renewal, cancellation or termination by e-mail.


7. ANTI-BRIBERY AND CORRUPTION
The Client undertakes to comply with any applicable anti-corruption laws, of any jurisdiction that might be applicable, and will ensure that any and all its employees, contractors and service providers adhere to any such laws and that they have - and/or receive the necessary training in this regard.


8. GENERAL
8.1. This Agreement constitutes the entire Agreement between the Parties.

8.2. No alteration or variation to, or consensual cancellation of this Agreement shall be of any force or effect, unless it is recorded in writing and signed by all the Parties.

8.3. No failure or delay by a Party to enforce any provision of this Agreement shall constitute a waiver or suspension of such provision or affect in any way a Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any right arising from any subsequent breach nullify the effectiveness of the provision itself.

8.4. Neither Party may cede its rights and/or delegate its obligations under this Agreement without the prior written consent of the other Party.

8.5. Praelexis will be to sub-contract any services as per any Services Agreement between the Parties to any company within the Praelexis group of companies, provided that it informs the Client of its intention to do so.

8.6. In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining provisions, which shall remain of full force and effect. If any invalid term is capable of amendment to render it valid, the Parties agree to negotiate in good faith an amendment to remove the invalidity.

8.7. Unless otherwise agreed in writing between the Parties, neither Party shall for the duration of this Agreement and for a period of 12 (twelve) months after expiry or termination thereof for its own benefit or as a representative of or agent for any third party, persuade, induce, encourage, procure or solicit (or procure such persuasion, inducement, encouragement, procurement or solicitation of) the personnel of the other Party:

8.7.1. to become employed, or interested, directly or indirectly in any manner whatsoever, by it or in any business which is in competition with the business carried on by the other Party; or

8.7.2. to terminate his/her employment with the other Party; or

8.7.3. to disclose any Intellectual Property of the other Party to any person not authorised by the owner of the Intellectual Property to receive it.

8.8. Each Party acknowledges that it does not enter into this Agreement on the basis of and does not rely on any representation, warranty or other provision, whether express or implied, except as expressly provided in this Agreement. All conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by the law

8.9. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Germany.

8.10. Any disputes between the Parties will be referred for arbitration, which arbitration shall be held in Munich, Germany and be subject to the International Chamber of Commerce’s Expedited Arbitration Rules.

8.11. If any Party is awarded costs by an arbitrator or court, it/he/she shall be entitled to be reimbursed by the other Party on the basis of Attorney and own client charges.

8.12. If the Client fails to pay any undisputed amount due and payable to Praelexis in terms of this Agreement, then Praelexis may, without prejudice to any other rights it may have, suspend the rendering of further services until payment thereof.

8.13. The terms and conditions contained on the Client’s purchase order, order acceptance forms and/or invoices shall not apply to supplement or supersede any provision of this Agreement.

8.14. Praelexis does not expressly or impliedly give any warranty or guarantee in respect of any third party software, including warranties or guarantees as to functionality, fitness for a particular purpose, uninterrupted use, merchantability or absence of any error of code or media and any warranties imposed by law are similarly excluded. Praelexis accepts no liability of any nature arising out of or caused by any defect or failure in/of such software.

8.15. The rule of construction that clauses must be interpreted against the Party principally responsible for drafting the agreement will not apply in the interpretation of this Agreement.

PRAELEXIS STANDARD TERMS AND CONDITIONS FOR PROVISION OF SERVICES

Praelexis (Proprietary) Limited (Registration Number 2012/149960/07) (“Praelexis”) and the Client (hereinafter referred to as “Party” and/or “Parties”, as the context may indicate) agree as follows:


1. SERVICES
Praelexis shall render the services described in the Quote to the Client on these terms and conditions. The Quote, read together with these terms and conditions, constitute “the / this Agreement”.

2. PAYMENT
2.1. The Client shall pay, by way of Electronic Fund Transfer (“EFT”), Praelexis the amount (plus Value Added Tax if Resident in the Republic of South Africa) set out on the Quote within 30 (thirty) calendar days of the date of Praelexis’s invoice therefore, into the nominated bank account appearing on the Quote, in South African Rands, free of conditions, set-off, bank exchange, commission or any other deduction. The Client shall not defer, adjust or withhold such payment.

The amounts to be paid in terms of this Agreement do not include sales taxes (other than VAT, if so specified), excise, gross receipts and withholding taxes, universal service fund fee and any similar tax or any government-imposed fees or surcharges (collectively, “taxes”). The Client shall pay or reimburse Praelexis for all such additional imposed taxes (excluding tax on Praelexis’s income), which will be invoiced to the Client in accordance with the law where the Client is domiciled. In respect of withholding tax, the Client will pay such additional amounts as may be necessary, so that Praelexis receives the amount it would have received had no withholding been imposed, except if the Client provides Praelexis with a valid withholding tax certificate within 30 (thirty) days of date of payment of the charges or fees paid to Praelexis under this Agreement.
 
3.  INTELLECTUAL PROPERTY
3.1. All rights, title and interest in and to all intellectual property (“IP”) relating to any equipment and/or software that form the subject matter of this Agreement and which is utilized by Praelexis in the execution of services, shall remain the sole property of Praelexis, except to the extent that IP is created as part of a Service Agreement, in which case the created IP will vest with the Client.
3.2. The confidential information and data provided by the Client to Praelexis in order to allow Praelexis to provide the service and/or product as specified on the Quote shall, however, remain the property of the Client.
 
4. BREACH
4.1. If either Party:
4.1.1. commits any breach of this Agreement other than a breach of a payment obligation and fails to remedy the breach within 30 (thirty) calendar days after receipt from the other Party of written notice calling upon it to do so;
4.1.2. commits a breach of any payment obligation in terms of this Agreement and fails to make payment within 7 (seven) calendar days after receipt from the other Party of written notice calling upon it to do so;
4.1.3. (a) commits an act of insolvency within the ambit of Section 8 of the Insolvency Act, No 24 of 1936, (b) is deemed unable to pay its debts within the ambit of Section 345 of the Companies Act, alternatively Section 69 of the Close Corporations Act, (c) finds itself in circumstances capable of being wound up in terms of Section 344 of the Companies Act, alternatively Section 68 of the Close Corporations Act, (d) is deregistered or applies for deregistration in terms of Section 73 of the Companies Act, alternatively Section 26 of the Close Corporations Act, (e) is subject to application for the provisional winding up or judicial management of such Party, or a special resolution is passed for the winding up of such Party or (f) is subject to business rescue proceedings of such Party, or a resolution is passed to apply to place such Party in business rescue;
4.1.4. has judgment taken against it and fails to satisfy or apply to have same set aside within 7 (seven) calendar days of becoming aware thereof; or
4.1.5. without the prior written consent of the other Party, undergoes a change in its shareholding or members’ interest so that a new person owns the majority of its voting share capital or members’ interest,
4.1.6 then the other Party may, in addition to and without prejudice to any other right it may have in law or in terms of this Agreement:
(a) enforce specific performance of the terms of this Agreement; or
(b) subject to clause 4.2, cancel this Agreement; and
(c) in either event (subject to clause 5.4), recover such damages as it may have sustained.
4.2. An aggrieved Party may cancel this Agreement in terms of clause 4 only if the breach is material and is not capable of being remedied by payment of money or, if it is capable of remedy by payment of money, if the other Party fails to make payment within 14 (fourteen) calendar days after final determination of the amount.
4.3. The Client may not institute a claim against Praelexis arising from the terms of this Agreement or performance in terms thereof more than 1 (one) year of the purported cause of action arising.
Any amount due by any Party, which is not paid on its due date, shall attract interest at Prime Rate, plus 2 (two) percentage points. For the purposes of this clause, “Prime Rate” means the interest rate (expressed as a % per annum, compounded monthly) published from time to time by First National Bank Limited as being its minimum overdraft rate at which it lends to its most valued customers in the corporate sector, as certified by any manager of such bank, whose appointment or authority it shall not be necessary to prove, and which certificate shall, save manifest error of calculation, be prima facie proof of the contents thereof.
 
5. FORCE MAJEURE AND LIMITATION
5.1. Neither Party shall have any claim against the other Party (“the Affected Party”) for any delay or failure of the Affected Party to carry out any of its obligations under this Agreement arising from or attributable to acts of God, war, terrorism, government, labour action or unrest, failure of suppliers or contractors or any other cause whatsoever beyond the control of the Affected Party (“force majeure”).
5.2. The performance of the obligations of the Affected Party shall, subject to clause 5.3, be suspended for the duration of the force majeure, which shall be deemed to commence only upon the date of written notice by the Affected Party to the other Party. Upon cessation of the force majeure, this Agreement shall again become fully operative and the Affected Party shall immediately resume its performance.
5.3 If the suspension of performance continues for more than 60 (sixty) consecutive calendar days, then either Party may summarily terminate this Agreement by written notice to the other Party, prior to the cessation of the force majeure.
5.4. Any claim by the Client against Praelexis howsoever arising shall in the aggregate be limited to 50% of the total amount actually paid by the Client to Praelexis in terms of the Agreement prior to the date that the Client institutes the claim against Praelexis. In any event, Praelexis will not be liable to the Client for: (a) indirect or special damages and/or (b) loss of income, profit or anticipated savings, howsoever arising, whether or not caused by its employees, agents and/or contractors, and regardless of form or cause of action. The provisions of this clause are also stipulated for the benefit of the employees, agents and/or contractors of Praelexis.
 
6. DOMICILIUM AND NOTICES
6.1. The Parties choose their respective domicilium addresses for all purposes hereunder at the addresses set out below:
6.1.1. If to Praelexis (Pty) Ltd:
Address: 7 Neutron Street, Technopark, Stellenbosch
Email: info@praelexis.com
Tel: 021 200 5817
Attention:  The Managing Director
6.1.2. If to Client
6.2 Any Party may from time to time, by written notice to the other(s), vary   its domicilium address to any other address within the Republic of South Africa which is       not a post office box or poste restante.
6.3. All notices given in terms of this Agreement shall be in writing and any notice given by any Party to another (“the addressee”) which:
6.3.1. is delivered by hand shall be deemed to have been received by the addressee on the date of delivery;
6.3.2. is transmitted by electronic mail (e-mail), shall be deemed to have been received by the addressee on the first working day after the date of receipt of the receiving instrument;
6.3.3. is posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its domicilium address shall be deemed to have been received by the addressee on the 10th (tenth) working day after the date of such posting.
6.3.4. It shall not be permissible to give any notice relating to a dispute, demand, breach, legal proceedings, renewal, cancellation or termination by e-mail.
 
7. ANTI-BRIBERY AND CORRUPTION
7.1. The Client undertakes to comply with any applicable anti-corruption laws, of any jurisdiction that might be applicable, and will ensure that any and all its employees, contractors and service providers adhere to any such laws and that they have - and/or receive the necessary training in this regard.
 
8. GENERAL
8.1. This Agreement constitutes the entire Agreement between the Parties.
8.2. No alteration or variation to, or consensual cancellation of this Agreement shall be of any force or effect, unless it is recorded in writing and signed by all the Parties.
8.3. No failure or delay by a Party to enforce any provision of this Agreement shall constitute a waiver or suspension of such provision or affect in any way a Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any right arising from any subsequent breach nullify the effectiveness of the provision itself.
8.4. Neither Party may cede its rights and/or delegate its obligations under this Agreement without the prior written consent of the other Party.
8.5. In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining provisions, which shall remain of full force and effect. If any invalid term is capable of amendment to render it valid, the Parties agree to negotiate in good faith an amendment to remove the invalidity.
8.6. Unless otherwise agreed in writing between the Parties, neither Party shall for the duration of this Agreement and for a period of 12 (twelve) months after expiry or termination thereof for its own benefit or as a representative of or agent for any third party, persuade, induce, encourage, procure or solicit (or procure such persuasion, inducement, encouragement, procurement or solicitation of) the personnel of the other Party:
8.6.1. to become employed, or interested, directly or indirectly in any manner whatsoever, by it or in any business which is in competition with the business carried on by the other Party; or
8.6.2. to terminate his/her employment with the other Party; or
8.6.3. to disclose any Intellectual Property of the other Party to any person not authorised by the owner of the Intellectual Property to receive it.
8.7. Each Party acknowledges that it does not enter into this Agreement on the basis of and does not rely on any representation, warranty or other provision, whether express or implied, except as expressly provided in this Agreement. All conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by the law of the Republic of South Africa.
8.8. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa.
8.9. If any Party is awarded costs by an arbitrator or court, he shall be entitled to be reimbursed by the other Party on the basis of Attorney and own client charges.
8.10. If the Client fails to pay any undisputed amount due and payable to Praelexis in terms of this Agreement, then Praelexis may, without prejudice to any other rights it may have, suspend the rendering of further services until payment thereof.
8.11. The terms and conditions contained on the Client’s purchase order, order acceptance forms and/or invoices shall not apply to supplement or supersede any provision of this Agreement.
8.12. Information or documents sent to Praelexis by e-mail shall be deemed to have been received by Praelexis only once Praelexis has acknowledged receipt thereof in writing.
8.13. Praelexis does not expressly or impliedly give any warranty or guarantee in respect of any third party software, including warranties or guarantees as to functionality, fitness for a particular purpose, uninterrupted use, merchantability or absence of any error of code or media and any warranties imposed by law are similarly excluded. Praelexis accepts no liability of any nature arising out of or caused by any defect or failure in/of such software.
8.14. The rule of construction that clauses must be interpreted against the Party principally responsible for drafting the agreement will not apply in the interpretation of this Agreement.