GT1. Definitions and Interpretation

1.1. All capitalised terms used herein, but not defined in this clause 1, shall have the meanings ascribed to them in the License Agreement.

1.2. “Affiliate” means any subsidiary or a subsidiary of the holding company of a party, or any entity that Controls, is Controlled by or is under common Control with a party. The terms "subsidiary" and "holding company" shall have the meaning assigned to them in chapter 1 of the Companies Act, 2008.

1.3. “License Agreement” means the License Agreement, all addendums, plus any further attachments or Order Forms identified as incorporated into the License Agreement, and these GTC, which is incorporated into the License Agreement, as if specifically recorded therein.

1.4. "Business Day" means a day other than a Saturday or a Sunday or a day which from time to time is a proclaimed public holiday in the Republic of South Africa;

1.5. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the entity through the ownership of voting securities representing fifty per cent (50%) plus one of the possible votes;

1.6. “Confidential Information” shall include all information owned by the parties and/or their Affiliates and disclosed to the other party and/or its Affiliates in terms of the provisions of the License Agreement, which shall include, but not be limited to technical data and know-how which has been and is disclosed to it by the disclosing party and which is stated to be or is by nature intended to be confidential, including, but without being limited to, information relating to the disclosing party’s products, services, development, inventions, processes, designs, product specifications, plans, drawings, customers, supply and purchasing agreements, pricing and all other data whether of a financial, technical, labour related, marketing, administrative or accounting nature

1.7. “Customer Data” means all electronic data or information that Customer or any authorised user loads or enters into the Software and all results from processing such data.

1.8. “Customisation” refers to the addition and/or alteration of core application software code.

1.9. “Data Protection Laws” means any applicable privacy and data protection laws, including (i) the South African Protection of Personal Information Act, No. 4 of 2013, (“POPIA”), as may be amended from time to time; (ii) to the extent that it may be applicable, the European Union General Data Protection Regulation ((EU) 2016/679) (“GDPR”); and (iii) any other laws, regulations and secondary legislation enacted from time to time in South Africa or any other country applicable to the parties relating to data protection, the use of information relating to individuals, the information rights of individuals and/or the processing of personal data.

1.10. “GTC” means these General Terms and Conditions, which form part of the Agreement between Silversoft and Customer.

1.11. “Order Form” means a document executed by the parties, for an expansion or addition of existing Software, which references these GTC, and which will be deemed to be incorporated into the License Agreement, as if specifically recorded therein.

1.12. “Signature Date” means the date of signature of the Agreement by the Party last signing;

1.13. “Silversoft” means the Silversoft entity whose details are set out in the License Agreement.

1.14. Any reference to any law shall include references to any amendment, modification or re-enactment of any such law (whether before or after the date of the License Agreement), to any previous enactment which has been replaced or amended and to any regulation or order made under such statutory provision or enactment.

1.15. References to the annexures and clauses are, unless otherwise specified, references respectively to the annexures and clauses to and of the License Agreement. References to annexures and annexures are to the annexures and annexures as amended and/or updated from time to time, as contemplated in the License Agreement.

1.16. Words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof.

1.17. Clause headings are inserted for ease of reference only and shall not affect the construction of the License Agreement.

1.18. Where any term is defined within the context of any particular clause in the License Agreement, the term so defined shall, unless it appears clearly from the clause in question that such term has limited application to the relevant clause, bear the meaning ascribed for all purposes in terms of the License Agreement, notwithstanding that such term has not been defined in this clause.

1.19. Save where clearly indicated to the contrary, expressions defined in the License Agreement shall bear the same meanings in any annexure unless such annexure contains an alternative definition for such expressions.

1.20. The rule of construction that provisions are to be construed against the party drafting an agreement or part of an agreement or on whose behalf an agreement or part of an agreement was drafted shall not apply to the License Agreement.

1.21. All rules of interpretation providing for the limitation of general words and terms due to their association with words and terms of a specific nature shall not apply to the License Agreement.

1.22. The use of any expression in the License Agreement referring to a process, position or office under South African law shall be construed as including any equivalent or analogous proceedings under the Laws of any other relevant jurisdiction.

1.23. A reference to a number of Business Days in the License Agreement shall be exclusive of the first Business Day and inclusive of the last Business Day.

1.24. Should the day for the performance of any obligation in terms of the License Agreement fall on a day which is not a Business Day, then such obligation shall be performed on the next day which is a Business Day.

1.25. The expiration or termination of the License Agreement shall not affect such of its provisions as expressly provide that they will continue to apply after such expiration or termination, or which of necessity must continue to apply after such expiration or termination.

1.26. Any communication which is required to be "in writing" shall include a communication which is written or produced by any substitute for writing or which is partly written and partly so produced, and shall include printing, electronic mail or any form of electronic communication or other process, or partly one and partly another.

1.27. The License Agreement shall be binding on and enforceable upon the successors in title, permitted assigns or liquidators of the parties as fully and effectually as if they had signed the License Agreement in the first instance, and reference to any party shall be deemed to include such party's successors in title, permitted assigns or liquidators, as the case may be.

1.28. The License Agreement (being the agreement signed by the parties and headed “License Agreement”) will take precedence over any conflicting terms, including any in the GTC or an Order Form, unless otherwise specified in the License Agreement.

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GTC2. Fees, Payment Terms

2.1. All amounts payable by Customer to Silversoft shall be paid free from deduction or set-off for any reason whatsoever.

2.2. In the event that Customer defaults in making payment of any amount that is due and owing to Silversoft, then, ten (10) days after written notice to Customer:

2.1.1. the full balance outstanding (whether due or not) will become due and payable; and

2.1.2. Silversoft may suspend performance, in which event, Customer will have no access to any Customer Data and Silversoft will have no obligation to provide Customer with copies of Customer Data.

2.3 Silversoft may charge interest on all overdue amounts at the rate of one comma five percent (1,5%) per month. Such interest shall be calculated on a compounded basis, monthly in advance, from due date of payment until date of receipt of payment.

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GTC3. Customer Data: Customer owns all rights, title and interest in and to the Customer Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of such data and for adopting procedures to identify and correct errors and omissions in the Customer Data.

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GTC4. Data Protection: Each party shall comply with the Data Protection Laws as it applies to personal data processed under the License Agreement. This clause is in addition to, and does not relieve, remove, or replace a party's obligations under the Data Protection Laws.

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GTC5. Liability: Nothing in the License Agreement excludes the liability of either party for death or personal injury caused by such party’s negligence or for fraud or fraudulent misrepresentation. Subject to the foregoing, Silversoft shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the License Agreement, and Silversoft’s total aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the LIcense Agreement shall be limited to the total Fees paid for the Subscription Period within which the claim arose.

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GTC6. Breach and Termination: Should either party (“the Defaulting Party”) breach any provision of the License Agreement and fail to remedy such breach within seven (7) days after receiving written notice from the other party (“the Wronged Party”) requiring such remedy, then (irrespective of the materiality of such breach or provision) such Wronged Party shall be entitled, without prejudice to its other rights in law, including any right to claim damages, to cancel the License Agreement, alternatively, to claim immediate specific performance of all of the Defaulting Party’s obligations, whether or not otherwise then due for performance.

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GTC7. Jurisdiction

7.1. Subject to clause 9, the parties submit to the jurisdiction of any South African court of competent jurisdiction, in any action or proceeding arising out of or relating to the License Agreement, and the parties hereby agree that all claims in respect of such action or proceeding may be heard and determined in such court. The parties waive, to the fullest extent permitted by law, any objection which they or any of them may now or hereafter have to the laying of the venue of any such action or proceeding brought in any such court, and any claim that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

7.2. Subject to clause 9, the parties consent, in terms of section 45 of the Magistrates Court Act (No 32 of 1944 as amended), to the jurisdiction of any Magistrates’ Court in respect of any matter arising from or in respect of the License Agreement, irrespective of the quantum in dispute; it being recorded that either party shall be entitled, but not obligated, to bring any action or proceeding in the said court and that all costs incurred in any action by one party against the other party in any competent court, including costs on the scale as between attorney and client, and attorneys’ collection commission, shall be paid by the other party.

 

GTC8. Governing Law: Regardless of the place of execution, performance or domicile of the parties, the License Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Republic of South Africa, disregarding the choice of law rules.

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GTC9. Arbitration

9.1. Either party shall have the option, in its sole and absolute discretion, to elect by notice to the other party, that any dispute arising out of the License Agreement or the interpretation thereof, or the breach, termination or invalidity thereof, both while in force and after its termination, shall be submitted to and determined by arbitration. Such arbitration shall be held in Sandton, unless otherwise agreed to, and shall be held in an expedited manner with a view to it being completed as soon as possible.

9.2. There shall be one (1) arbitrator, who shall be, if the question in issue is:

9.2.1. primarily an accounting matter, a practising independent chartered accountant of not less than ten (10) years' standing assisted by a senior counsel of at least five (5) years standing, agreed upon between the parties, and failing such agreement within five (5) Business Days after the declaration of a dispute by a party, nominated at the request of any party by the president for the time being of the South African Institute of Chartered Accountants; or

9.2.2. any other matter, a practising senior counsel of not less than five (5) years' standing, agreed upon between the parties, and failing such agreement within five (5) Business Days after the declaration of a dispute by a party, nominated at the request of any party by the chairman for the time being of the Johannesburg Bar Council,

provided that if the parties are unable to agree on whether the arbitration relates to an accounting or any other matter, such matter shall be deemed to be any other matter provided for in clause 9.2.2.

9.3. The arbitration shall be governed by the Arbitration Act, 42 of 1965, as amended, or re-enacted in some other form from time to time and shall take place in accordance with the Commercial Arbitration Rules of Arbitration Foundation of Southern Africa, or such other rules as the parties may agree.

9.4. An order or award that may be made by the arbitrator shall be subject to the right of appeal by any party to a panel of three (3) arbitrators comprised of senior counsel (“the Panel”) agreed upon by the parties and failing such agreement within five (5) Business Days of written request by one party to the other parties to so agree, three (3) arbitrators appointed by the chairman for the time being of the Johannesburg Bar Council. The Supreme Court of Appeal Rules shall govern all aspects of the appeal, provided that such appeal is lodged with the arbitrator within fifteen (15) Business Days after the date of publication of the arbitrator's award.

9.5. An order or award that may be made by the arbitrator that is not appealed, or if appealed, an order that may be made by the panel, shall be carried into effect and shall be final and binding upon he parties, and may be made an order of any court of competent jurisdiction.

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GTC10. Change of Control: Customer shall notify Silversoft in writing thirty (30) days prior to a change in shareholding which results in the persons/enterprises in whom the Control presently vests, no longer being in Control. Failing such notice, the entire balance owing by Customer to Silversoft, whether due or not, shall immediately become due and payable by Customer.

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GTC11. Domicilium: The parties choose domicilium citandi et executandi for all purposes arising out of the License Agreement at their physical addresses stipulated in SECTION 1 – PARTIES of the Agreement. The parties shall be entitled from time to time by written notice to one another, to vary their domicilium citandi et executandi to any other physical address. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that is not sent to or delivered at its chosen domicilium citandi et executandi.

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GTC12. Force Majeure: Neither party shall be liable to perform its obligations to the extent that it is prevented from or delayed in the carrying on of its obligations hereunder due to circumstances beyond its reasonable control including, but not limited to, acts of God, fire, flood, war, acts of terrorism, riot, civil commotion, governmental actions (excluding regulatory change) and any similar events beyond the reasonable control of the non-performing party (“Force Majeure”). If the performance by either party of any of its obligations under the Agreement is prevented or delayed by Force Majeure for a continuous period in excess of sixty (60) days, the other party shall be entitled to terminate the Agreement by giving written notice to the party affected by the force majeure.

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GTC13. Whole Agreement: The Agreement, which consists of the license agreement/order form, these GTC, all addendums, plus any further attachments identified as incorporated into the Agreement, is the entire agreement between Silversoft and Customer relating to the subject matter of the License Agreement, and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to the subject matter of the License Agreement, including those made during the license and services sales process by Silversoft representatives. Any purchase order or other document issued by Customer (including any online terms as part of a required procurement process) will not alter, be incorporated into, or supplement the Agreement. By accepting an Order Form for an expansion or addition of existing Software that references the License Agreement, Customer agrees that existing Software of the same type shall become subject to and part of the License Agreement.

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GTC14. Cession; Assignment: No part of this Agreement may be ceded, assigned, transferred or made over by either party without having secured the prior written consent of the other party, which consent shall not be unreasonably withheld.

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GTC15. Indulgence: Any condonation of any breach of any of the provisions hereof or other act or relaxation, indulgence or grace on the part of a party, shall not in any way operate as or be deemed to be a waiver by that party of any rights under thee Agreement, or be constructed as a novation thereof.

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GTC16. Severability: Each clause of the License Agreement is severable, the one from the other, and if any one or more clauses are found to be invalid or unenforceable, that clause/clauses shall not affect the balance of the License Agreement, which shall remain in full force and effect.

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GTC17. Variation: Customer acknowledges that no terms at variance with the terms and conditions of the License Agreement and which have been sought to be introduced by Customer at any time shall be of any force or effect unless Silversoft has, in writing, expressly agreed that the terms so sought to be introduced by Customer shall apply. Without derogating from the generality of the aforegoing, Silversoft shall not be regarded as having so expressly agreed by virtue merely of Silversoft having agreed to execute an order in which the inconsistent terms have been introduced by Customer and notwithstanding that Silversoft has not rejected such inconsistent terms

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GTC18. Authority: Each party representative warrants to the other that it has power, authority and legal right to sign and perform the Agreement and that the Agreement has been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of the Agreement.

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GTC19. Media: Upon signature of the Agreement, Silversoft may post a concise public announcement, as well as a more detailed public announcement and case study post completion of the statement of work.

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GTC20. Maintenance: Maintenance duration and maintenance Fees (for non-SaaS licenses only) will be prorated to coincide with a calendar year. E.g., if the Subscription Start Date is 1 June 2024, maintenance will commence on 1 June 2024 until 31 December 2024. Maintenance shall automatically renew at the Fees stated in the License Agreement, subject to any annual price adjustments, for subsequent, fixed calendar years, unless Customer gives Silversoft written notice by not later than 30 September of the then current Subscription Period of its intention to terminate maintenance. Customer may not reduce or cancel maintenance on any portion of Software (unbundling maintenance).

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GTC21. Confidential Information

21.1. Subject to clause 21.2, neither party shall in any way, whether directly or indirectly, announce or disclose to any third party any confidential information disclosed by the one party ("Disclosing Party") to the other or acquired from the Disclosing Party in connection with the License Agreement and the negotiation between the parties.

21.2. Either party may disclose Confidential Information referred to in clause 21.1 to its staff, professional advisers, agents and consultants should that be strictly necessary for the negotiation referred to in the License Agreement, provided that that party takes whatever steps are necessary to ensure that those persons agree to keep that information confidential in order to prevent the unauthorised disclosure of the confidential information to third parties.

21.3. The restrictions set out in clauses 21.1 and 21.2 do not apply to any information which:-

21.3.1. at the date of its disclosure is within the public domain or which subsequently becomes within the public domain (other than by reason of a breach of the provisions of the License Agreement);

21.3.2. is or was lawfully within possession of the acquiring party prior to being acquired by it from the Disclosing Party or is acquired by the acquiring party thereafter from a third party who lawfully acquired such information without restriction and who had not previously obtained the confidential information directly or indirectly from the Disclosing Party under a confidentiality obligation from the Disclosing Party;

21.3.3. is required to be disclosed by law, or a stock exchange rule or an order of a court of competent jurisdiction, or

21.3.4. is, by agreement between the parties, disclosed in connection with efforts to obtain any regulatory approvals or consents.

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GTC22. Consent: Silversoft has Customer’s consent at all times to contact and request information from any person, credit bureau or business to obtain information regarding Customer’s, as well as Customer’s then current and prospective directors and shareholders’ creditworthiness. Customer shall procure such directors’ and shareholders’ consent for this purpose, in so far as it is required by law.

 

GTC23. Travel & Accommodation: Customer will be liable for all travel and/or accommodation costs related to consulting or training services, which will be invoiced separately to Customer. A minimum of economy class flights and 3 star accommodation is required. 

 

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ustomer shall procure such directors’ and shareholders’ consent for this purpose, in so far as it is required by law.