1. SOFTWARE DEVELOPMENT
1.1 Definitions:
- (a)Documentation means all the written materials like manuals, instructions, and specifications that the Developer provides or makes available to the Client.
- (b)Effective Date means the date as per the Schedule.
- (c)Good Industry Practice means the exercise of that degree of skill, diligence, prudence, foresight and operating practice which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same or a similar business.
- (d)Object Code means computer readable code.
- (e)Services mean the services detailed the Schedule.
- (f)Software means the software created by the Developer in connection with the Services.
- (g)Source Code means the source code of the Software that can be read and understood by a human programmer, which includes all the instructions, diagrams and technical documentation relating to it.
- (h)Term means a term as per the Schedule.
1.2 Engagement:
- (a)The Developer must provide the Software to Client in both Object Code and Source Code form.
- (b)The Source Code must be written so that a programmer familiar with the programming language can understand it, build it, operate it, maintain it, and make changes or updates to it.
1.3 Service standards: The Developer must provide the Services:
- (a)in a timely, professional and efficient manner;
- (b)in accordance with applicable laws; and
- (c)in accordance with Good Industry Practice.
1.4 Documentation:
- (a)The Developer must provide Client with complete and accurate Documentation for the Software.
- (b)All Documentation must include all such information as reasonably necessary for the effective use of the Software.
2. INTELLECTUAL PROPERTY
2.1 Definitions:
- (a)“Assigned Deliverable” means a deliverable, provided under this Agreement, specified by the Parties to be assigned by the Developer to the Client.
- (b)“Control”, for purposes of Article 2, means the person or entity owns, directly or indirectly, more than 50 percent of the capital of the other entity, or in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such entity.
- (c)“Existing Intellectual Property” Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property), that existed before the conclusion of this Agreement..
- (d)“Intellectual Property Rights” copyrights, moral rights, inventions, patents, trademarks, designs, data and database rights, domain names, publicity rights.
- (e)“Licensed Deliverable” means a deliverable, provided under this Agreement, specified by the Parties to be licensed by the Developer to the Client.
- (f)“Licensee Affiliates”, for purposes of Article 2, means, with respect to a Party, any other person or entity which directly or indirectly Controls, is Controlled by, or is under common Control with such Party.
2.2 Existing intellectual property:
- (a)Each Party retains ownership of its Existing Intellectual Property and Intellectual Property developed outside the scope of this Agreement.
- (b)Each Party hereby grants to the other Party and its Affiliates, an irrevocable, non-exclusive, worldwide, no-charge, royalty-free, perpetual, sublicensable license in respect of its Existing Intellectual Property, subject to the following terms:
- (i)The Parties can reproduce, display, or perform in any media and through any technology or other means of delivery, whether now known or developed in the future, create derivative works, use internally, and use externally the Existing Intellectual Property for purposes of performing its obligations under this Agreement.
- (ii)The license will survive termination of this Agreement.
2.3 Assigned deliverables:
- (a)Subject to payment of the fees for the Assigned Deliverables, the will be deemed a “work made for hire” and the Client is, and will be, the sole and exclusive owner of all right, title, and interest in and to the Assigned Deliverables, including all Intellectual Property Rights therein.
- (b)To the extent that any of the Assigned Deliverables do not constitute a "work made for hire", subject to payment of the fees relating to the Assigned Deliverables, the Developer hereby irrevocably assigns all right, title and interest in and to the Assigned Deliverables and related Intellectual Property Rights to the Client, which assignment the Client hereby accepts.
- (c)The Developer must:
- (i)deliver all Assigned Deliverables; and
- (ii)assist in obtaining, registering, perfecting and enforcing all Intellectual Property Rights relating to the Assigned Deliverables.
- (d)The Client must pay all fees and costs to register and protect the Intellectual Property Rights related to the Assigned Deliverables.
2.4 Licensed deliverables:
- (a)Subject to the Client’s payment of fees for the Licensed Deliverables, the Developer hereby grants to the Client and its Affiliates, an irrevocable, non-exclusive, worldwide, no-charge, royalty-free, perpetual, sublicensable license in respect of the Licensed Deliverables, under the following terms:
- (i)The Client can reproduce, display, or perform in any media and through any technology or other means of delivery, whether now known or developed in the future, create derivative works, use internally, and use externally the Licensed Deliverables.
- (ii)The license in Section (a)2.4(a) will survive termination of this Agreement.
- (b)The Developer must pay all fees and costs to register and protect the Licensed Deliverables.
3. CLIENT DELAYS
3.1 Delays: If the Client does not complete its agreed dependencies, and such failure may cause the Developer to miss their timelines or to allocate more resources to meet them, the Developer can, subject to Section 3.2, either ask the Client for an extension to affected timelines or ask the Client to pay an increased fee.
3.2 Process: The process for the above is as follows:
- (a)The Developer must inform the Client in writing, suggesting a new schedule with adjusted timelines; and
- (b)If the Developer can still meet the original timelines by allocating more resources to the project, they should also propose the following:
- (i)a higher fixed fee for the Services, or
- (ii)the estimated cost of extra hours needed to meet the original timelines.
- (c)After receiving the above notice, the Client must, as soon as possible, and at most within 3 days, inform the Developer in writing which proposal they accept.
- (d)If the Client doesn't respond within 3 days, it will be deemed that the Client accepts the new timelines and rejects any fee increases.
- (e)If the Client disagrees with the Developer's right to extend timelines or increase fees, in that case, the Developer must inform the Client within the provided timeframe, and both Parties should negotiate in good faith to resolve the matter.
- (f)If the Parties fail to resolve the matter, it will constitute a dispute which must then be resolved in accordance with the provisions of this Agreement.
3.3 Use of reasonable efforts: Despite the above provisions, the Developer must use reasonable efforts to meet the original timelines without any extensions or fee increases.
3.4 No breach: If the Client fails to complete its dependencies in time, it won't be considered a breach of the Agreement.
4. LIABILITY
4.1 Unrecoverable losses: Subject to Section 4.2, the Developer will not be liable to the Client under any theory of liability (whether in contract, delict (tort), or otherwise) and however caused under or relating to the Agreement for indirect, consequential, special and punitive losses which includes loss of profits, loss of business revenues, loss of anticipated savings, loss of goodwill, or loss of data insofar as such losses are consequential losses.
4.2 Exclusions from unrecoverable loss provisions: Claims relating to any act or omission that is grossly negligent are excluded from Section 4.1.
4.3 Maximum liability: Subject to Section Error: Reference source not found, the maximum liability under or in connection with the Agreement of the Developer, under any theory of liability (whether in contract, delict (tort), or otherwise) and however caused, cannot exceed fees already paid to the Developer and includes interest and cost sand applies to all claims on an aggregate basis.
5. WARRANTIES
5.1 Mutual warranties: Each Party to this Agreement warrants that:
- (a)No steps have been taken or are threatened by any person for their deregistration, winding up, liquidation, business rescue or administration and no matter or circumstance has arisen that would entitle anyone to take the aforementioned steps;
- (b)They can enter into and perform their obligations under this Agreement;
- (c)They have not conducted and will not conduct their business in a corrupt manner;
- (d)They are not involved in or subject to any dispute and no dispute is pending or threatened, and they are not aware of any fact, matter or circumstance which may give rise to any dispute;
- (e)They have disclosed all facts within their knowledge to the other Party which are material or would be reasonably likely to be material to the other Party in respect of the Agreement.;
- (f)All information and documents provided by them to the other Party, before the Signature Date, was when it was given, and is, as at the Signature Date, true, accurate and complete;
- (g)The Agreement does not and will not contravene their constitutional documents;
- (h)The Agreement does not, and will not, contravene, any other agreement that they have concluded or will conclude; and
- (i)They have not offered unlawful or prohibited inducements to the other Party or any other person in connection with this Agreement.
6. TERMINATION
6.1 Material breach:
- (a)If a Party is in material breach of this Agreement and such breach is:
- (i)capable of being rectified, and the defaulting Party fails to rectify the breach within 30 days after the aggrieved Party provides a written notice requiring the defaulting Party to rectify the breach, then the aggrieved Party can terminate this Agreement with immediate effect and claim damages from the defaulting Party; or
- (ii)not capable of being rectified, the aggrieved Party can terminate this Agreement immediately and claim damages from the defaulting Party.
- (b)Unless otherwise provided in the Agreement, the relief stipulated above will not limit the aggrieved Party’s rights. The aggrieved Party will have all available rights in terms of applicable law.
6.2 Material adverse regulatory change: The Developer may terminate this Agreement in whole, but not in part, in the event of a change in the regulatory environment applicable to the Developer that the change has a materially adverse effect on the Developer’s ability to fulfil their obligations under this Agreement. The termination right under 6.2 can be exercised by giving at least 1 months' prior written notice to the Client.
6.3 Additional termination rights: This Agreement may be terminated by:
- (a)a Party immediately, without advanced notice, if the other Party is deemed unable or admits their inability to pay their debts as they become due;
- (b)a Party immediately, without advanced notice, if the other Party suspends making payments on any of their debts;
- (c)a Party immediately, without advanced notice, if the other Party commences negotiations with their creditors to reschedule their indebtedness because of actual or anticipated financial difficulties; or
- (d)a Party immediately, without advanced notice, if the other Party is found guilty corrupt activities under applicable laws.
7. CONFIDENTIAL INFORMATION
7.1 Definitions:
- (a)“Affiliate”, for the purposes of Article 7, means, with respect to a Party, any other person or entity which directly or indirectly Controls, is Controlled by, or is under common Control with such Party.
- (b)"Confidential Information” means all information disclosed between the Parties disclosed in connection with the Purpose of Confidential Disclosure.
- (c)“Control”, for the purposes of Article 7, means the person or entity owns, directly or indirectly, more than 50 percent of the capital of the other entity, or in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such entity.
- (d)“Disclosing Party” means a Party that discloses Confidential Information under this Agreement.
- (e)“Purpose” only for the purposes of Article 7 means to give effect to the Agreement concluded between the Parties.
- (f)“Receiving Party” means a Party that receives or acquires Confidential Information directly or indirectly under this Agreement.
7.2 Affiliate confidential information: Confidential Information will include any Confidential Information of any Affiliate of the Receiving Party.
7.3 Third party confidential information: Confidential Information will include any Confidential Information of any third party.
7.4 Labelling: For Confidential Information to be considered confidential, the information must be marked as confidential or if disclosed orally, identified as confidential in writing within 30 days.
7.5 Time of disclosure: The Confidential Information will include Confidential Information disclosed before and after the Signature Date.
7.6 Excluded information: The following information is not Confidential Information:
- (a)information known to the Receiving Party before disclosure by the Disclosing Party;
- (b)information that is or becomes publicly known, not as a result of a breach of this Agreement by the Receiving Party;
- (c)information developed independently by the Receiving Party in circumstances that are not a breach of this Agreement; and
- (d)information which Receiving Party receives from a third party who can disclose the Confidential Information free of restriction and without obligation.
7.7 Notification and disclosures required in terms of law: If the Receiving Party is required to disclose Confidential Information to satisfy a court order or to comply with any applicable law the Receiving Party will notify the Disclosing Party in writing before such disclosure to enable the Disclosing Party to protect their interest; and
7.8 Obligations and disclosures required in terms of law: If the Receiving Party is required to disclose Confidential Information to satisfy a court order or to comply with any applicable law the Receiving Party will only disclose the legally required portion of the information and use reasonable endeavours to protect the confidentiality of such information (the onus is on the Receiving Party to demonstrate that they have complied with this provision).
7.9 Handling of Confidential Information: A Receiving Party must not disclose the Confidential Information to any third party without first obtaining written consent from the Disclosing Party.
7.10 Standard of care: A Receiving Party must protect the Confidential Information of a Disclosing Party by using the same standard of care to safeguard their confidential information.
7.11 Steps required to protect Confidential Information: A Receiving Party must take reasonable steps to prevent any unauthorised disclosure of the Confidential Information.
7.12 Unauthorised access: A Receiving Party will immediately notify the Disclosing Party if the Receiving Party becomes aware of any loss or any unauthorised access to, or use or disclosure of, any Confidential Information in the control of the Receiving Party or their authorised recipient.
7.13 Cooperation: The Receiving Party must cooperate with the Disclosing Party to investigate and mitigate any adverse effects of unauthorised access to, or use or disclosure of, any Confidential Information.
7.14 Rights of the Disclosing Party: A Disclosing Party can at any time require:
- (a)the Receiving Party to return any Confidential Information;
- (b)the Receiving Party to expunge any Confidential Information from any device;
- (c)the Receiving Party to destroy any material relating to the Confidential Information;
- (d)the Receiving Party to cause the return or destruction of any Confidential Information which the Receiving Party disclosed to any third party; or
- (e)a written statement under oath that the Receiving Party has not retained any such Confidential Information and that no third party has retained any such Confidential Information.
7.15 Authorised Recipients: A Receiving Party can disclose the Confidential Information to their representatives, employees, consultants, or professional advisors, if necessary and to the extent required to fulfil the Purpose.
7.16 Confidentiality undertakings: If a Receiving Party intends to disclose the Confidential Information to their representatives or employees, such representatives or employees must sign a confidentiality undertaking that is to the satisfaction of the Disclosing Party.
7.17 Acknowledgment: A Receiving Party acknowledges that unauthorised or unlawful use or disclosure of the Confidential Information can cause irreparable damage to the Disclosing Party.
7.18 Indemnity: The Receiving Party indemnifies the Disclosing Party against any, and all loss suffered where the Receiving Party, or their representative or employee, discloses or uses the Confidential Information unlawfully or without the Disclosing Party’s consent.
7.19 Injunctive relief: The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorised or unlawful use or disclosure of the Confidential Information and a Disclosing Party can ask a court for injunctive relief without waiving any other rights or remedies.
7.20 No limitation: Notwithstanding anything agreed to between the Parties, a claim for breach of the confidentiality provisions , or a claim under 7.18, will not be limited or excluded under any limitation of liability or exclusion of liability provision.
7.21 Ownership and rights: The Disclosing Party will remain the owner of all rights relating to the Confidential Information. Where rights must be granted in respect of the Confidential Information, such rights are only granted to the extent required to fulfil the Purpose.
7.22 Termination and survival: The confidentiality provisions in this Agreement will survive the termination of this Agreement.
7.23 Period: The confidentiality provisions in this Agreement will bind the Receiving Party for an indefinite period.
7.24 Warranties: The Disclosing Party warrants that they have the right to disclose the Confidential Information to the Receiving Party.
7.25 No further warranties: The Disclosing Party makes no other express, implied, or statutory warranties in respect of the Confidential Information.
7.26 Disclaimer: The Disclosing Party disclaims all other representations, warranties, or assurances for the Confidential Information, including for accuracy, performance, completeness, suitability, or third-party rights.
8. FORCE MAJEURE
8.1 No liability: Neither Party is liable for failure or delay to perform its obligations under the Agreement to the extent caused by events or acts beyond its control which could not have been reasonably foreseeable when the Agreement was concluded and includes events or acts of:
- (a)acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, storms or other severe or extraordinary weather conditions, natural disasters;
- (b)sabotage, contamination, nuclear incidents, epidemics;
- (c)war (civil or other and whether declared or not), military or other hostilities, terrorist acts or similar, riot, rebellion, insurrection, revolution, civil disturbance, or usurped authority;
- (d)strikes or other industrial disputes that affect an essential portion of the supplies or works, except with respect to workers under the control of the party asking for relief due to this event;
- (e)non-availability or loss of export permit or license for the productsor services to be delivered, or of visas or permits for the party’s personnel;
- (f)requisition or compulsory acquisition by any governmental or competent authority, embargo, or other sanctions, and
- (g)currency restrictions, shortage of transport means, general shortage of materials, restrictions on the use of or unavailability or shortage of power or other utilities,
8.2 Exclusions: The relief in Section 8.1 will not apply to the extent that:
- (a)the default or the delay was caused by the non-performing Party; or
- (b)such default or delay could have been prevented by precautions and could have been circumvented by the non-performing Party using alternate sources, workaround plans, or other means.
8.3 Obligations: If an event or act as contemplated in Section 8.1 occurs:
- (a)the non-performing Party must as soon as practical notify the other Party provide all relevant information, describing at a reasonable level of detail the circumstances and the performance that is affected;
- (b)the non-performing Party must use reasonable endeavours to overcome the event; and
- (c)the non-performing Party must continue to perform their obligations as far as practicable.
8.4 Should either Party be prevented from carrying on their contractual obligations due to an event above lasting continuously for 30 days, the Parties will consult each other on the future implementation of the Agreement.
8.5 If the Parties don’t mutually arrive at an acceptable arrangement within 30 days after that, either Party can terminate the Agreement immediately on written notice.
9. DISPUTE RESOLUTION
9.1 Dispute resolution: A dispute under this Agreement shall be resolved as follow:
- (a)Notice of Dispute: Should at any time a Party assert that a exists between the Parties that Party may submit a written notice (“Notice of Dispute”) to the other Party specifying:
- (i)the nature of the dispute that has arisen;
- (ii)the areas of expertise it considers are required to resolve the dispute;
- (iii)the major issues for determination, and
- (iv)the relief or outcome being sought.
- (b)Notice of Response: Within 10 days of receipt of the Notice of Dispute, the other Party shall provide a written response (‘Notice of Response’) stating their position in relation to the dispute, including:
- (i)a statement of the areas of expertise it considers are required to resolve the dispute;
- (ii)any additional issues that should be referred for determination; and
- (iii)any comment on the relief or outcome referred to in the Notice of Dispute.
9.2 Good faith negotiations: After receipt of the Notice of Response or after 10 days of receipt of the Notice of Dispute (whichever is the earliest), the Parties must attempt to negotiate in good faith the dispute for at least 30 days.
9.3 Escalation: If the dispute is not resolved within the period provided for good faith negotiations, either Party may escalate such dispute by providing written notice (the “Escalation Notice”):
- (a)Designations of executives: Each Party must designate an executive (with authority to make commitments that would resolve the dispute) which will in good faith attempt to resolve the dispute within 30 days from the date that the dispute was referred to them.
- (b)No further action: Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither Party shall institute any further action until the period for escalation has come to an end.
9.4 Arbitration: If a dispute cannot be resolved during the above process, then the dispute must be submitted to mandatory, binding arbitration administered by AFSA in accordance with the AFSA rules:
- (a)Notice of arbitration: Either Party may call for arbitration by written notice to the other.
- (b)Number of arbitrators: The arbitral panel shall consist of one arbitrator.
- (c)Appointment of arbitrator:
- (i)The Parties will jointly appoint the arbitrator.
- (ii)Failing agreement between the Parties, the arbitrator must be appointed in accordance with the AFSA rules.
- (d)Seat of arbitration: The place of arbitration will be Pretoria, South Africa.
- (e)Legal representation: The Parties may make use of legal representation.
- (f)Fees and disbursements: The Parties shall share equally in the fees and disbursements relating to the arbitration.
- (g)Judgment: Judgment on an arbitration award may be entered by any court with competent jurisdiction.
9.5 Confidentiality: The Parties will treat as confidential and not disclose to any third-party details of the dispute submitted to the above proceedings, the conduct of the proceedings or the outcome of the proceedings without the written consent of the other Party.
9.6 Continued performance: Each Party must continue performing their obligations under this Agreement while a dispute is being resolved except when the issue in dispute precludes performance.
9.7 Language: Any dispute resolution proceedings under Article 9 must be conducted in English.
9.8 No suspension of contractual obligations: The referral of a dispute to proceedings under Article 9 does not suspend the contractual obligations of the Parties under the Agreement.
9.9 Binding nature of dispute resolution provisions: The provisions under Article 9 will be binding on the Parties despite any expiration, termination, or cancellation of this Agreement.
9.10 Interim relief: The provisions under Article 9 does not limit either Party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after any proceedings contemplated under Article 9.
10. NON-SOLICITATION OF KEY EMPLOYEES
10.1 Non-solicitation: During the Term of the Agreement, and for 24 months after the Agreement comes to an end, no Party may directly or indirectly solicit the other Party’s Key Employees.
10.2 Exclusions: A Party will not be in breach of the above non-solicitation provisions if they hire or employ, or have hiring or employment discussions with any person:
- (a)who is not then employed by that other Party;
- (b)who contacts them without any solicitation by them; or
- (c)who responds to general solicitation for employment placed by them or their agents in newspapers, journals, the internet, recruiters, or any media.
10.3 Acknowledgement of fairness and reasonableness: The Parties hereby acknowledges that the above non-solicitation provision is a fair and reasonable requirement considering the nature of the transaction and the purpose of the Agreement between the Parties.
10.4 Damages: Should a Party breach the above non-solicitation provision, the soliciting Party, must pay to the non-soliciting Party within days of receipt of notice to that effect, the sum equal to 300% of the annual total cost to company of the relevant Key Employee.
10.5 Acknowledgement of pre-estimated damages: The Parties agree that such damages contemplated above constitute pre-estimated damages to be suffered by the non-soliciting Party due to the breach of the non-solicitation provisions.
10.6 Survival: The provisions of this Article 10 will survive the termination, expiration or cancellation of this Agreement.
11. MISCELLANEOUS
11.1 Governing law: The laws of Republic of South Africa govern this Agreement.
11.2 Amendments and waivers:
- (a)No amendment to this Agreement is effective unless it is in writing, identified as an amendment and signed by an authorised representative of each Party.
- (b)Except as otherwise stipulated in this Agreement, no failure to exercise any rights arising from this Agreement will be construed as a waiver.
- (c)Except as otherwise stipulated in this Agreement, any exercise of any right hereunder will not preclude any other or further exercise thereof or the exercise of any other right.
11.3 Further assurances: On a Party's reasonable request, the other Party must, at such other Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
11.4 Cumulative remedies: Unless otherwise stated in this Agreement, each remedy of a Party is cumulative with each other remedy contained in this Agreement and with all other remedies available to that Party at law, in equity, and otherwise, and no pursuit of any particular remedy will constitute an exclusive election of any particular remedy.
11.5 Assignment:
- (a)This Agreement will be binding on the Parties hereto and their respective successors and assigns.
- (b)Except as contemplated below, neither Party may assign this Agreement without the prior written consent of the other Party which consent may be withheld or conditioned within the other Party’s sole discretion.
- (c)A Party may assign this Agreement where:
- (i)a Party assigns the Agreement to its Affiliate; or
- (ii)in the case of a merger or acquisition of all or substantially all of the assigning Party’s assets.
- (d)Any assignment made without other Party’s consent as required above is null and void and of no effect as between the Parties.
11.6 Drafting and negotiation costs: Each Party will pay their costs for the Agreement’s negotiation, drafting, finalisation, signing, and implementation.
11.7 No employment, partnership, or agency: This Agreement will not result in an employment, partnership or agency relationship between the Parties and the Parties must not represent that there is any employment, partnership or agency relationship between the Parties.
11.8 No undertakings: Neither Party may give any undertaking which will create a binding obligation on the other Party.
11.9 No authority to bind: Neither Party will have authority to bind the other Party to any agreement.
11.10 No rights to third-parties: Unless otherwise stipulated in this Agreement, nothing in this Agreement is intended to or will confer on any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Notices:
- (a)Any notice under the Agreement must be delivered by email to:The Client
Email: As per the Schedule
The Developer
Email: As per the Schedule - (b)Date of notice: A notice will be deemed given if sent by email on the same day of transmission with a receipt confirming the successful completion of the transmission.
- (c)Further requirements: If the notice is given under Section 11.11, a copy of that email must be immediately delivered (by hand or courier) to the chief executive or equivalent officer of the other party at the other party’s last known physical address.
11.12 Public disclosures: All public disclosures by either Party relating to this Agreement will be subject to the following terms:
- (a)Any public disclosures must be coordinated with and approved by the other Party before release unless the announcement is intended solely for internal distribution or disclosures required to meet legal requirements beyond the control of the disclosing Party.
- (b)Despite Subsection 11.12(a), the Developer can list the Client as a Client and describe in general terms the Services provided by the Developer under this Agreement in proposals and other marketing materials.
11.13 Entire agreement: This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement.
11.14 Superseding documents: This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of this Agreement.
11.15 Deemed modification: If any provision of the Agreement is or becomes illegal, unenforceable or invalid, the relevant provision must be deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
11.16 Deemed severance: If modification under the above Subsection is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
11.17 Interpretation:
- (a)“Agreement” means this document with all schedules relating to it, as may be amended from time to time.
- (b)“Parties” means the parties to this Agreement and “Party” means one of the Parties.
- (c)All references in this Agreement to “Articles,” “Sections,” and “Schedule” refer to the articles, sections, and schedules of this Agreement.
- (d)The table of contents, background section and any section, schedule or other headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.
- (e)The word “including” is not intended to be exclusive and means “including, but not limited to” and the word “or” is not intended to indicate exclusivity.
- (f)If a word or expression is defined in a Section, the word or expression will bear the meaning assigned to such word or expression throughout this Agreement.
- (g)An expression which denotes:
- (i)Any gender includes the other genders;
- (ii)A natural person includes a juristic person and vice versa; and
- (iii)The singular includes the plural and vice versa;
- (h)When reference is made to a specific time, the applicable time zone is CAT.
- (i)When reference is made to days, it means calendar days and when calculating days and the last day falls on a Saturday, Sunday, or a public holiday, the last day will be the next succeeding business day.
- (j)Unless otherwise provided, a reference to a law is a reference to it as amended, extended or re-enacted from time to time, provided that, as between the Parties, no such amendment, extension or re-enactment made after the date of this Agreement will apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.
- (k)A reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the day preceding the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
- (i)if the numerically corresponding day is not a business day, the period will end on the next business day in that month (if there is one) or the preceding business day (if there is not); and
- (ii)if there is no numerically corresponding day in that month, that period will end on the last business day of that month;