HR-FOCUS TERMS AND CONDITIONS FOR THE USE OF MYFOCUS SOFTWARE

Definitions and Interpretation

1.1. Definitions

In this Agreement, unless clearly inconsistent with or otherwise indicated by the context –

1.1.1. “Agreement” means the agreement set out in this document which consists of Section I: Registration, Section II: Fees Schedule, Section III: Terms and Conditions, Section IV: Service Levels and Section V: Acceptance;

1.1.2. “Annual Fees” means the annual licence and support fees set out in the Fees  Schedule;

1.1.3. “Business Day” means any day of the week other than Saturdays, Sundays or declared public holidays in any of the territories;

1.1.4. “Business Hours” means between 08:00 and 16:30 each Business Day;

1.1.5. “Calendar Year” means a continuous period of twelve (12) calendar months commencing on 1 January each year;

1.1.6. “CPI” means the weighted annual average consumer price index for all areas and all items, as notified by Statistics South Africa in the Government Gazette;

1.1.7. “Date of Signature” means the date on which this Agreement is signed by the Party doing so last;

1.1.8. “Delivery Date” means the date of signature of the delivery note by the Licensee on receiving the Software;

1.1.9. “Effective Date” means the effective date set out in the Registration Section, notwithstanding the Date of Signature;

1.1.10. “Intellectual Property Rights” means all patents, trademarks, designs, design rights, copyright (including all copyright in any designs and computer software), source codes, inventions, trade secrets, confidential information and all other intellectual property rights and rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same;

1.1.11. “Materials” means any information, documentation or the like relating to the Software, whether written or in machine readable form, supplied from time to time by HR Focus to the Licensee;

1.1.12. “Parties” means HR Focus and the Licensee and “Party” means either one of them as the context may indicate;

1.1.13. “Personal Information” means  any and all information made available to each Party including all information that is required for business purposes in the execution of this Agreement as well as information as set out in section 1 of the Protection of Personal Information Act, No 4 of 2013 (“POPI Act”);

1.1.14. “Prime Rate” means the nominal, annual, compounded monthly, prime overdraft rate of interest from time to time, publicly quoted as such by The First National Bank of South Africa, as certified by any manager of that bank, whose appointment as such it shall not be necessary to provide, the contents of which certificate shall be prima facie proof of the contents thereof;

1.1.15. “Priority Service Periods” means the priority service periods as set out in the Section II: Fees Schedule

1.1.16. “Registration Section” means the registration section set out in Section I of this Agreement;

1.1.17. ”Release event” shall have occurred on the happening of any of the following events, which renders the Licensor unable to continue licensing or supporting the Software: (i) an order is granted for the winding up or liquidation of the Licensor; (ii) the Licensor ceases to conduct its commercial activities otherwise than in the ordinary course of business, for a period in excess of 40 (forty) days, (iii) the inability or unwillingness of the Licensor to support and/or maintain the Software and/or (iv) the Licensor seeks to cede, assign or transfer its rights to the Software to any third party without obliging the said third party to agree, in writing, to be bound by this Agreement or any subsequent agreement concluded between the parties;

1.1.18. “Rental Basis” means Software Fees are payable on a monthly basis in advance for a defined period;

1.1.19. “Software” means the software (including the Materials) specified in the Registration Section, Updates and Upgrades (to the extent supplied in accordance with 4);

1.1.20. “Software Fees” means the software fees set out in the Registration Section in South African Rand (ZAR);

1.1.21. “Source Code” means the source code version of the Software, including any modifications, enhancements, updates and upgrades to the Software that may be made from time to time by the Licensor;

1.1.22. “Territory” means the territory specified in the Registration Section;

1.1.23. “Time and Materials” means a combination of labour, expenses and materials, as applicable, and includes labour at standard HR Focus service labour rates, travel time, travel costs, accommodation and subsistence;

1.1.24. “Updates” means incremental enhancements and fixes to the Software that are signified by version number changes to the right of the decimal point, for example, version 4.10, 4.20;

1.1.25. “Upgrades” means new versions of the Software that include new major features and significantly improved functionality, and which are signified by version number changes to the left of the decimal point, for example, version 5.0, 6.0;

1.1.26. “VAT” means value-added tax in terms of the Value-added Tax Act, No. 89 of 1991, as amended, or any similar tax or impact of a similar nature on the supply or sale of goods and/or services; and

1.1.27. “Specifications” means the workings of the software as documented in the user manuals.

1.2. Interpretation

1.2.1. In this Agreement, unless clearly inconsistent with or otherwise indicated by the context –

any reference to the singular includes the plural and vice versa;

any reference to natural persons includes legal persons and vice versa; and

any reference to a gender includes the other gender.

1.2.2. Where appropriate, meanings ascribed to defined words and expressions in 1.1 shall impose substantive obligations on the Parties.

1.2.3. The clause headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation.

1.2.4. Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meanings assigned to such words and expressions in that sub-clause.

1.2.5. This Agreement shall be governed by, and construed and interpreted in accordance with the laws of the Republic of South Africa.

Grant of Licence

HR Focus grants to the Licensee, with effect from the Effective Date, a personal, non-transferable and non-exclusive licence to use the Software, in the Territory, on the terms and conditions contained in this Agreement.

Delivery and Installation

1.3. HR Focus shall deliver one (1) electronic copy of the Software and manuals to the Licensee on the Effective Date.

1.4. The Licensee shall bear all risk in respect of any use, changes or modifications made to the Software by any person that is not an employee of HR Focus at the time of the use, changes or modifications as from the Delivery Date.

1.5. The Licensee shall not be entitled to have access to or be supplied with the source code and/or database structures of the Software, unless specifically provided for in a separate escrow agreement entered into between the Parties.

1.6. Unless the Parties agree otherwise in writing and such written agreement is attached as an addendum to this Agreement, the Licensee shall be responsible for the installation of the Software in accordance with HR Focus’ written instructions as furnished to the Licensee on the Delivery Date and save for anything to the contrary contained in this Agreement, HR Focus shall not be liable to the Licensee in any manner whatsoever other than rendering reasonable assistance to the Licensee if required by the Licensee by timely written notice furnished to HR Focus and subject to the right of HR Focus to charge the Licensee accordingly on a Time and Materials basis.

Updates and Upgrades

1.7. HR Focus shall supply such Updates to the Licensee after the Updates are made available to the public, in accordance with HR Focus’ Update policy from time to time.

1.8. HR Focus shall give not less than sixty (60) days notice to the Licensee of any Upgrades from time to time and to the extent that the Licensee wishes to acquire the right to use such Upgrades, HR Focus undertakes to deliver such Upgrades to the Licensee against payment of such fees as HR Focus may determine.

1.9. HR Focus shall be entitled not to undertake any additional development work to the version prior to the new Upgrade from the date that notice is given in accordance with 4.2.

1.10. HR Focus shall support a previous version prior to any new Upgrade for a period of three (3) years from the date that notice is given in accordance with 4.2.

Rights of Use

1.11. The licence granted in terms of this Agreement entitles the Licensee to use the Software for the maximum number of employees set out in the Section II: Fees Schedule

1.12. Save with HR Focus’ prior written consent, the Licensee shall only be entitled to make two (2) backup copies of the Software and no other copies may be made whatsoever.

1.13. The Licensee shall ensure that the Software is at all times correctly used in accordance with the Materials and that all persons who are authorised by the Licensee to use the Software are suitably qualified and properly trained for this purpose.

1.14. The Licensee may only use the Software for its own internal business operations.

1.15. The Licensee shall not permit any person (except its properly qualified, trained and authorised employees or full time contractors who need to use or have access to the Software) to use or have access to any part of the Software and shall take all practicable steps to prevent any access to the Software by any unauthorised person.

1.16. The Licensee shall not –

1.16.1. except as provided in 5.2, copy, translate, modify, adapt, decompile, disassemble, decrypt, extract or reverse engineer the Software, stored procedures and/or the database tables;

1.16.2. convert the whole or any part of the Software from object code into source code;

1.16.3. merge or combine the whole or any part of the Software with any other computer software or materials without the prior written consent of HR Focus; and/or

1.16.4. part with possession of, lend, sell, sub license, share or otherwise transfer any part of the Software to any other person.

Support and Service Levels

1.17. Support

HR Focus shall provide the following support services to the Licensee providing the Licensee’s annual fees are not in arrears.

1.17.1. the operation, during Business Hours and Priority Service Periods, of a telephonic and e-mail helpdesk by suitably qualified HR personnel for the purposes of receiving, logging and answering of queries raised by the Licensee; and

1.17.2. the provision of additional support services as agreed between the Parties in writing, from time to time, based on the standard HR Focus consulting fees applicable at the time.

1.18. Service Levels

1.18.1. HR Focus shall provide support in line with Section IV: Service Levels regarding queries received from the Licensee by the helpdesk referred to in 6.1.1, providing the Licensee’s fees are not in arrears.

Fees and Payment Terms

1.19. The Licensee  shall pay to HR Focus –

1.19.1. the Software Fees within thirty (30) calendar days of the date of receipt of the invoice by the Licensee. An invoice will be presented on commencement of the HR Focus installation;

1.19.2. the Annual Fees, within thirty (30) calendar days of the date of receipt of the invoice by the Licensee. An invoice will be presented on the Effective Date, and thereafter annually in advance one (1) month prior to the anniversary of the Effective Date, unless otherwise agreed in writing.

1.19.3. HR Focus shall provide the Licensee with a VAT invoice in respect of both the Software Fees and the Annual Fees.

1.20. HR Focus shall, on an annual basis, be entitled to increase –

1.20.1. the Annual Fees; and

1.20.2. the Software Fees which are payable on a Rental Basis,

provided that such increase shall be aligned to the year on year increase in CPI.

1.21. All payments by the Licensee in terms of or arising out of this Agreement –

1.21.1. shall be made free of set-off, bank exchange, commission or any other deduction to HR Focus;  and

1.21.2. the Licensee shall not have the right to defer, adjust or withhold any payment due to HR Focus in terms of or arising out of this Agreement.

1.22. All amounts due by the Licensee to HR Focus in terms of or arising out of this Agreement will, unless paid on the due date, bear interest at the Prime Rate from the due date to date of payment, which interest shall be capitalised monthly in arrears on the balance due. Such interest shall be payable from the date of HR Focus’ invoice therefore.

1.23. HR Focus reserves the right to withhold upgrades, updates and support (online, telephonic or otherwise) should the Licensee be in arrears (e.g. Software fees, Annual license fees, Support fees, Implementation fees, Consulting fees, Training and related expenses).

1.24.  If the Licensee wishes to acquire additional licences, the Licensee may acquire same according to the then current pricing policies of HR Focus.

1.25. The Licensee is responsible for the purchase or licensing of all equipment and third party software necessary to install and operate the Software at the Licensee’s cost.

Inspection

For the duration of this Agreement and within ten (10) days after its termination or expiry HR Focus or its representative may upon five (5) days prior notice to the Licensee, inspect the files, computer processors, equipment, facilities and the premises of the Licensee during normal working hours to verify the Licensee’s compliance with this Agreement. While conducting the inspection, HR Focus or its representative will be entitled to copy or retain any item that the Licensee may possess in violation of this Agreement. The inspection shall be for the cost of HR Focus, unless HR Focus discovers a non-compliance with this Agreement, in which event such cost shall be for the account of the Licensee.

Warranties

1.26. HR Focus warrants that it is the owner of the Software and that it is entitled to grant the Licensee the use of the Software, in terms of this Agreement.

1.27. HR Focus warrants that the Software will, for a period of twelve (12) months from the Delivery Date (“Warranty Period”), perform substantially in accordance with HR Focus’ then current specifications (“Specifications”) delivered to the Licensee together with the Software. This warranty does not cover any copy of the Software, which has been altered or changed by the Licensee or a third party. However, HR Focus does not warrant that the operation of the Software shall be uninterrupted or error free.

1.28. HR Focus shall during the Warranty Period correct any substantial non performance to the Specifications and at no additional charge to the Licensee, which is reported to HR Focus and which is confirmed by HR Focus to not be in accordance with the Specifications. 

1.29. 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 other conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by the laws of the Republic of South Africa.

1.30. Notwithstanding anything to the contrary contained in this clause 9, HR Focus shall not be liable under any warranty claim to the extent that any defect or malfunction is caused by –

1.30.1. natural disasters, including fire, smoke, water, wind, earthquakes or lightning;

1.30.2. electric power failures;

1.30.3. the failure to maintain normal operating environment;

1.30.4. any neglect or misuse of the Software or failure to operate the Software other than in accordance with the Materials;

1.30.5. the unauthorised re-location of the Software; and/or

1.30.6. repairs or alterations by any unauthorised person.

Intellectual Property Rights

1.31. The Licensee acknowledges that –

1.31.1. the Software, the Materials, the Updates, the Upgrades and all Intellectual Property Rights in the Software, the Materials, the Updates and the Upgrades; and

1.31.2. all rights in any copy, translation, improvement, adaptation or derivative of the Software, the Materials, the updates and the upgrades, belong exclusively to HR Focus.

1.32. The Licensee shall not for the duration of this Agreement or at any time after the expiry or termination of this Agreement do anything, which might bring into question or dispute HR Focus’ ownership of the Software, the Materials, the Updates and the Upgrades and all Intellectual Property Rights therein.

1.33. The Licensee shall ensure that any backup copy of the Software, which it makes pursuant to the Agreement, shall bear the same copyright and other proprietary notices as those on the original Software supplied by HR Focus to the Licensee and the Licensee shall not alter or obliterate any such notice.

1.34. The Licensee shall notify HR Focus, in writing, as soon as practicable after it becomes aware of any actual, threatened or suspected infringement of the Intellectual Property Rights of HR Focus in the Software and/or the Materials or any unauthorised use or disclosure of the Software and/or the Materials.

1.35. HR Focus shall defend, at HR Focus’ expense, a claim brought against the Licensee alleging that the Software as licensed in terms of this Agreement infringes the copyright of a third party (“Claim”). HR Focus shall pay all costs and damages awarded or agreed to in settlement of the Claim, provided that the Licensee furnishes HR Focus with prompt written notice of the Claim, and that the Licensee provides HR Focus with reasonable necessary assistance free of charge and with the sole authority to defend or settle the Claim. HR Focus will obtain for the Licensee the right to continue using the Software, replace it or modify it so it becomes non-infringing. If such remedies are not reasonably available, HR Focus shall grant the Licensee a credit for the Software and first year annual fees paid by the Licensee.

1.36. HR Focus has no liability for any Claim arising from –

1.36.1. HR Focus’ compliance with any designs, specifications or instructions of the Licensee;

1.36.2. modification of the Software by the Licensee or a third party;

1.36.3. use of the Software in any way not specified by the Materials and/or HR Focus; or

1.36.4. use of the Software with products not supplied by HR Focus.

Confidentiality

1.37. Each Party hereby undertakes to the other Party, for the continuance of this Agreement and for an indefinite period from termination or expiry of this Agreement and, in respect to the Software for an indefinite period from termination or expiry of this Agreement –

1.37.1. to keep confidential all information whether written (including information contained in electronic format) or oral concerning the business and affairs of the other Party, that it obtains or receives from the other Party (“Information”);

1.37.2. not to, without the other Party’s written consent, disclose the Information in whole or in part to any person save its employees, agents and consultants involved in the implementation of this Agreement, and who have a need to know the Information;  and

1.37.3. to use the Information solely in connection with the implementation of this Agreement and not for its own benefit or that of any third party.

1.38. The provisions of 11.1 shall not apply to the whole or any part of the Information which is 

1.38.1. already known to the recipient without obligation of confidence;

1.38.2. independently developed by the recipient;

1.38.3. publicly available without breach of this Agreement;

1.38.4. lawfully received from a third party;

1.38.5. released for disclosure by the disclosing Party with its written consent;  or

1.38.6. required to be disclosed in response to a valid order of court or other governmental agency or if disclosure thereof is otherwise required by law.

1.39. If a Party is obliged to divulge Information in terms of 11.2.6, it shall forthwith and before releasing the Information, inform the other Party of the obligation, in writing.

1.40. The Licensee recognised that the Software –

1.40.1. is considered by HR Focus to be a trade secret;

1.40.2. is furnished by HR Focus to the Licensee in confidence; and

1.40.3. contains proprietary and confidential information, so that such Software constitutes Information in terms of this clause 11.

1.41. The Licensee acknowledges that any unauthorised use or disclosure of the Software may cause irreparable damage to HR Focus. If an unauthorised use or disclosure occurs, the Licensee will promptly notify HR Focus and take, at the Licensee’s expense, all the necessary steps to recover the Software and to prevent its subsequent unauthorised use or dissemination, including availing itself of actions for seizure and injunctive relief. If the Licensee fails to take these steps in a timely and adequate manner, HR Focus may take these steps in its own or the Licensee’s name and at the Licensee’s expense.

1.42. Each Party undertakes to the other to make all relevant employees, agents and consultants aware of the confidentiality of the Information and the provisions of this clause 11 and to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and consultants with the provisions of this clause 11.

Personal Information

1.43. The privacy of the Personal Information relating to the disclosing party is very important. Other than expressly set out below, the receiving party confirms that the disclosing party’s Personal Information will not be disclosed, transferred or sold to any third party for any purpose.

1.44. Personal Information which is either provided by the disclosing party, or which is relevant to this Agreement will be processed purely for the purposes associated with this Agreement.

1.45. The disclosing party expressly consents, notwithstanding the contents of this clause 12 (and unless prohibited by applicable law), for the receiving party to disclose Personal Information to third parties providing services on the receiving party’s behalf, which third parties may collect, use, transfer, store or otherwise process (collectively “Process”) if in the various jurisdictions in which they operate for purposes related to the purpose for which the Personal Information was collected, to comply with regulatory requirements, to check conflicts, for quality and/or risk management, financial accounting purposes and/or for the provision of other administrative support services (collectively “Process Purposes’). The receiving party shall be responsible to the disclosing party for maintaining the confidentiality of the disclosing party’s Personal Information despite any such disclosure.

1.46. The disclosing party expressly consents, solely for the Process Purposes referred to in clause 12.3 above, for the receiving party and third parties providing services on the receiving party’s behalf to process the disclosing party’s Personal Information that can be linked to specific persons (“Personal Data”) in various jurisdictions in which the receiving party and any of them operate. The receiving party will Process the Personal Data in accordance with Applicable Laws and professional regulations, and will require any other related party that Processes Personal Data on its behalf to adhere to such requirements.

1.47. The disclosing party may at any time request from the receiving party a copy of the Personal Information it holds about the disclosing party. The receiving party will correct any errors in the Personal Information of which it is notified. Any requests that the disclosing party may have relating to its Personal Information should be addressed to the relevant official of the receiving party at the address set on in Section I: Registration above.

1.48. The receiving party undertakes to ensure that its employees, officers or representatives who become privy to the Personal Information pursuant to this Agreement are aware of the provisions of this clause 12.

1.49. Each party undertakes to comply with its obligations under this clause  12 and the POPI Act, as amended from time to time in relation to such Personal Information.

1.50.  The following information shall not be deemed to be Personal Information –

1.50.1. Information lawfully in the possession of the receiving party prior to disclosure by the disclosing party or independently obtained or developed by the receiving party as may be reasonably shown to be the case;

1.50.2. Information in the public domain at the time of disclosure or which becomes a part of the public domain after disclosure by publication or otherwise through no wrongful act committed by the receiving party; or

1.50.3. Information after it has been lawfully obtained without restriction from a third party that is not in breach of any obligation of non-disclosure to the disclosing party.

1.51. The disclosing party has the right to object to or withdraw its consent at any time for the receiving party to Process its Personal Information, unless it is required by law.

1.52. In the event that a security breach occur, the receiving party will notify the disclosing party whose Personal Information has been compromised, within a period no longer than seven (7) calendar days from becoming aware of such a breach.

Duration

1.53. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the duration period set out in Section II: Fees Schedule and/or any amendments to this Agreement replacing said Section.

1.54. Unless terminated earlier as contemplated in clause 14 below –

1.54.1. The Licensee shall, subject to its legal right to do so, have an option to extend the duration of this Agreement for another term, should it desire to continue therewith, after the Contract Expiry Date;

1.54.2. The terms of the extension shall be the same as those applicable in this Agreement, save that the service levels (Section IV: Service Levels)  shall be negotiated and agreed, and fees payable by the Licensee (Section II: Fees Schedule) negotiated and increased by agreement between the Parties;

1.54.3. The Licensee shall exercise this option by written notice to HR Focus, not less than thirty (30) calendar days prior to the Contract Expiry Date stipulated in Section II: Fees Schedule and/or any subsequent additions thereto, failing which such option shall lapse.

Breach and Termination

1.55. If either Party –

1.55.1. commits any breach of this Agreement and fails to remedy the breach within fourteen (14) days after receipt from the other Party of written notice calling upon it to do so;

1.55.2. commits an act of insolvency, as defined in the Insolvency Act, No. 24 of 1936, as amended, is provisionally or finally wound-up or placed under a provisional or final order of judicial management or curatorship, or a special resolution is passed for the winding-up of such Party; and/or

1.55.3. compromises or makes an assignment for the benefit of its creditors,

1.55.4. then the other Party shall be entitled, in addition to and without prejudice to any other right it may have in law or in terms of this Agreement, to –

1.55.5. enforce specific performance of the terms of this Agreement; or

1.55.6. subject to 14.2, cancel this Agreement; and

1.55.7. in either event, recover such damages as it may have sustained.

1.56.     Other than in the circumstances set out in 14.1.2 and 14.1.3, an aggrieved Party may only cancel this Agreement in terms of 14.1.6 if the breach is material and is not capable of being remedied by payment in money or, if it is capable of remedy by payment in money, if the Party committing the breach fails to make payment within fourteen (14) days after final determination of the amount.

1.57. Upon termination or expiry of this Agreement for whatever reason, the Licensee shall return forthwith to HR Focus the Software, the Materials and all information and property of HR Focus (and all copies thereof) and shall confirm in writing to HR Focus that it has complied in all respects with this clause 14.3. The Licensee shall not retain any copies of the Software, the Materials and/or any of the information to be returned to HR Focus. Should the Licensee within seven (7) days from termination or expiry of this Agreement not return same, HR Focus shall be entitled to rely on any legal remedies available to it in order to obtain the Software, the Materials and all of its information and property in the possession of the Licensee, for the account of the Licensee.

1.58. Notwithstanding the above, either Party may, without prejudice to any other rights herein, at any time and by giving not less than three (3) calendar months’ written notice thereof to the other Party, terminate the agreement.

Release of the Source Code

1.59. It is agreed between the parties that on the happening of a Release event, the Licensee requires that the Source code of the Software be disclosed to it.

1.60. The Licensor agrees that on the happening of a Release event, the Licensor shall deliver the Source code to the Licensee, within thirty (30) days of the Release event occurring.

1.61. Notwithstanding the release of the Source code, all confidential information and Intellectual property Rights therein shall remain vested in the Licensor.

Dispute Resolution

1.62. Any dispute between the Parties shall be referred to a joint committee comprising the duly authorised representatives of HR Focus and the Licensee, or alternates appointed by them, who will use their best endeavours to resolve the dispute within fourteen (14) days of it having been referred to them.

1.63. Should any dispute not be resolved in accordance with 16.1, either Party shall have the right to require that the dispute be referred to arbitration and that Party shall notify the other Party in writing and such dispute shall be decided by one arbitrator appointed by both Parties, failing which an arbitrator will be appointed by the chairman of the Arbitration Foundation of Southern Africa (“AFSA”). The arbitration shall be held in Sandton and in accordance with the rules of AFSA.

1.64. This clause 16 constitutes an irrevocable consent by the Parties to any proceedings in terms thereof. No Party may withdraw there from or claim at such proceedings that it is not bound by this clause 16. The decision resulting from such arbitration shall be final and binding on the Parties, and may be made an order of any court of competent jurisdiction.

1.65. Proceedings are to be held in camera and are confidential.

1.66. The provisions of this clause 16 shall not preclude any Party from access to an appropriate court of law for interim relief in the form of an interdict, mandamus or order for specific performance pending the outcome of the arbitration.

Limitation of Liability

1.67. Under no circumstances will either Party be liable to the other Party for any consequential, indirect, special, punitive or incidental damages, whether in contract or delict or otherwise, whether based on this Agreement, any commitment performed or undertaken in terms of or in connection with this Agreement, or otherwise.

1.68. Subject to 17.1, the Party’s aggregate liability in terms of this Agreement, regardless of form or cause of action, will not exceed the Annual Fees paid by the Licensee to HR Focus in terms of this Agreement for that Calendar Year in which the cause of action arises.

1.69. Any action against a Party must be brought within three (3) years after the cause of action arises.

Force Majeure

1.70. Each Party will be excused from performance in terms of this Agreement (other than obligations to make payments that have become due and payable pursuant to this Agreement) for any period and to the extent that it is prevented from performing any obligations pursuant to this Agreement, in whole or in part, as a result of a Force Majeure Event (as described in 18.2). If either Party is prevented from, or delayed in performing any of its obligations in terms of this Agreement by a Force Majeure Event, it shall promptly notify the other Party by telephone (to be confirmed in writing within five (5) days of the inception of the delay) of the occurrence of a Force Majeure Event and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and of the obligations, the performance of which are thereby delayed or prevented. Such Party shall also use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.

1.71. Neither Party shall be liable for any default or delay (“Force Majeure Event”) in the performance of its obligations in terms of the Agreement if and to the extent that –

1.71.1. such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country, strikes, labour action or unrest or any other cause beyond the reasonable control of such Party;

1.71.2. the non-performing Party is without fault in causing such default or delay;

1.71.3. such default or delay could not have been prevented by reasonable precautions; and

1.71.4. such default or delay cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means.

Domicilia and Notices

1.72. The Parties choose domicilia citandi et executandi (“Domicilium Address”) for all purposes arising from or pursuant to this Agreement at their addresses and facsimile numbers as stipulated in the Registration Section.

1.73. Any Party shall be entitled from time to time, by written notice to the other, to vary its Domicilium Address to any other address within the Republic of South Africa that is not a post office box or poste restante.

1.74. All notices given in terms of this Agreement shall be in writing and any notice given by any Party to another (“Addressee”) which –

1.74.1. is delivered by hand or transmitted by telefacsimile at the Addressee’s Domicilium Address for the time being shall be deemed to have been received by the Addressee on the first Business Day after the date of delivery or transmission, as the case may be; and

1.74.2. if posted by pre-paid registered post to the Addressee at its Domicilium Address for the time being shall be deemed to have been received by the Addressee on the fourteenth Business Day after the date of such posting.

1.75. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from another shall be adequate written notice or communication to such Party.

General

1.76. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter thereof and supersedes all previous agreements, negotiations, representations and correspondence in respect of the subject matter of this Agreement.

1.77. 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.

1.78. No failure by a Party to enforce any provision of this Agreement shall constitute a waiver 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.

1.79. The Licensee and HR Focus shall not be entitled to cede its rights and/or delegate its obligations in terms of this Agreement without prior written consent by either party.

1.80. 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 in full force and effect. If any invalid term is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.

1.81. The Parties shall each pay their own costs of negotiating, drafting, preparing and implementing this Agreement.

1.82.  Any provision of this Agreement, which contemplates performance or observance subsequent to any termination, or expiration of this Agreement, shall survive any termination or expiration of this Agreement.

1.83. Subject to 16, the High Court of the Republic of South Africa shall have exclusive jurisdiction in respect of all litigation arising in connection with this Agreement.

1.84. Neither Party shall, during the continuance of this Agreement and for a period of 6 (six) months immediately following the date of termination or expiry of this Agreement, directly or indirectly solicit or offer employment or any other form of contract for services to any of the other Party’s employees.

1.85. The relationship of the Parties, inter se, shall be governed by this Agreement and nothing contained herein shall be deemed to constitute a partnership, joint venture or the like between them, nor to constitute one Party the agent of the other for any purpose.

1.86. Pricing (Include Quote)

Prices exclude VAT.

Note: The above resource costs will remain at the above quoted prices for the initial contract period. Thereafter, the costs may be increased in line with CPI as per a formal communication announced 1 March each year and/or as may be agreed with the Licensee.

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