PRINCE II

MASTER FRAMEWORK AGREEMENT

BETWEEN

Registered CXP-GO Customer

AND

QUINTICA SA PROPRIETARY LIMITED

THIS AGREEMENT GOVERNS THE ACQUISITION AND USE OF QUINTICA’S CUSTOMER SERVICES BY THE CUSTOMER.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A PRODUCT ORDER FORM, SOW OR MANAGED SERVICES AGREEMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.

TABLE OF CONTENTS

2. INTERPRETATION 4
3. RECORDAL 8
4. CONTRACTED CUSTOMER SERVICES 8
5. ORDER PROCESS 8
6. DURATION AND TERMINATION 11
7. FEES AND PAYMENT THEREOF 13
8. CHANGE ORDERS AND OUT OF SCOPE SERVICES 14
9. INDEPENDENT CONTRACTOR 15
10. NON-SOLICITATION 15
11. PARTIES RESPONSIBILITIES 15
12. INTELLECTUAL PROPERTY RIGHTS 15
13. CONFIDENTIALITY 16
14. WARRANTIES AND ACKNOWLEDGEMENTS 18
15. INDEMNITY 20
16. LIMITATION OF LIABILITY 20
17. FORCE MAJEURE 21
18. CONFLICTS WITH TRANSACTION DOCUMENTS 22
19. DISPUTE MECHANISM 22
20. CONTRACTING PARTY, NOTICES, DISPUTES AND GOVERNING LAW 23
21. CESSION, DELEGATION, ASSIGNMENT AND SUBCONTRACTING 24
22. PUBLIC ANNOUNCEMENTS 25
23. WHOLE AGREEMENT 25
24. VARIATION 25
25. PARTIES NOT AFFECTED BY WAIVER 25
26. SEVERABILITY 26
27. BENEFITS 26
28. COUNTERPARTS 26
29. WARRANTY OF AUTHORITY 26
30. COSTS 26

PARTIES

• The Parties to this Agreement are:
  • Quintica; and
  • the Customer.
• The Parties agree as set out below.

OPERATIVE CLAUSES

2. INTERPRETATION
   • Defined terms

In this Agreement the following words and expressions shall have the following meanings assigned to them:

• “the/this Agreement” means the agreement set out in this document including all schedules, appendices and annexures hereto and any amendments thereto as may be agreed to by the Parties in writing from time to time;
• “Business Day” means any day other than a Saturday, Sunday or official public holiday in the country of domicile of Quintica referred to in clause‎ 20;
• “Confidential Information” means the terms of this Agreement, any information concerning a Party, its clients, customers and/or its suppliers including its operations, business and financial affairs including, but not limited to, information expressly marked or designated by a Party as confidential and all other matters which relate to the business of either Party and in respect of which information is not readily available in the ordinary course of business to a competitor of such Party or any persons that is not party to this Agreement;
• “Customer” the company or other legal entity accepting this Agreement and any Affiliates of that company or entity which have signed any Product Order Form, SOW or Managed Services Agreement;
• “Customer Services” means the Professional Services, Subscriptions and/or Managed Services or any one of them or a combination of them as the context may indicate;
• “Date of Acceptance” means the date when the Customer first accepts this Agreement;
• “the Disclosing Party” means the party disclosing the Confidential Information and/or Intellectual Property;
• “Fees” means the fees to be charged by Quintica to the Customer for:
  • the provision of Professional Services by Quintica to the Customer, as described in a SOW;
  • Quintica providing the Customer access to the Subscription/s, as contemplated in a Product Order Form; and
  • the provision of the Managed Services by Quintica to the Customer, as described in Managed Services Agreement;
• “Intellectual Property/Intellectual Property Rights” means all patents, trademarks, service marks, know-how, designs, design rights, copyright (including all copyright in any designs and computer software), rights in designs, database rights, source codes, inventions, trade secrets, Confidential Information and all other intellectual property rights (whether or not registered or capable of registration) together with all applications of and rights to apply for any of the foregoing;
• “Managed Services Agreement” means a managed services agreement for Managed Services that is entered into between Quintica and the Customer, including any addenda and supplements thereto agreed by the Parties;
• “Managed Services Term” means the Managed Services term contemplated in clause ‎3.2.2;
• “Party/ies” means Quintica and the Customer, or any one of them as the context may indicate;
• “Professional Services” means the Professional Services to be provided by Quintica to the Customer pursuant to an agreed SOW;
• “Product Order Form/s” means an ordering document specifying the Subscription/s to be made available hereunder that is entered into between Quintica and the Customer, including any addenda and supplements thereto agreed by the Parties;
• “Quintica” means the Quintica entity set out in clause ‎20;
• “the Receiving Party” means the party receiving the Confidential Information and/or Intellectual Property;
• “SOW” means a statement of work for Professional Services that is entered into between Quintica and the Customer, including any addenda and supplements thereto agreed by the Parties;
• “Subscription/s” means access to software subscriptions, software licenses and/or training subscriptions, made available by Quintica to the Customer as contemplated in a Product Order Form;
• “Subscription Term” means the subscription term contemplated in clause ‎2.2.2;
• “Taxes” include all present and future taxes including, but not limited to, Value Added Tax or sales tax, withholding taxes, charges, imposts, duties, levies, personal income tax and statutory deductions, deductions, withholdings or fees of any kind whatsoever, or any amount payable on account of or as security for any of the a foregoing, by whomsoever and whenever imposed, levied, collected, withheld or assessed, together with any penalties, additions, fines, surcharges or interest relating thereto, and “Taxation” shall be construed accordingly;
• “Termination Date” means the date on which this Agreement is expired or terminated for any reason whatsoever as per clause 6; and
• “Transaction Document/s” means a SOW, Product Order Form and/or Managed Services Agreement, or any one of the or combination of them as the context may indicate;

• Construction

In this Agreement:

• unless the context clearly indicates otherwise, words importing natural persons shall include a reference to juristic persons and vice versa, a reference to one gender includes a reference to the other genders, and a reference to the singular includes a reference to the plural and vice versa;
• should any provision in a definition be a substantive provision conferring rights or imposing obligations on any Party, then effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
• any reference to an enactment, regulation, rule or by-law is that enactment, regulation, rule or by-law as at the Date of Acceptance, and as amended or replaced from time to time;
• schedules, appendices and annexures to this Agreement shall be deemed to have been incorporated herein and shall form an integral part hereof;
• a reference to a Party in this Agreement includes that Party’s successors and permitted assigns;
• if any date which is specified for the performance of any obligation falls on a date which is not a Business Day, such obligation shall be performed on the 1^st (first) Business Day thereafter;
• the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it;
• the expiration or termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding the fact that the clauses themselves do not expressly provide this;
• in its interpretation (this Agreement being the product of negotiations between the Parties), this Agreement shall not be construed in favour of or against either Party by reason of the extent to which that Party or its professional advisors participated in the preparation of this Agreement;
• Recordals shall be binding on the Parties and are not merely for information purposes;
• the headings appearing in this Agreement are for reference purposes only and shall not affect the interpretation hereof;
• words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause;
• terms, other than those defined within this Agreement, will be given their plain English meaning and those terms, acronyms, abbreviations and phrases known in the information technology industry will be interpreted in accordance with their generally-known meanings; and
• where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.

3. RECORDAL

It is recorded that:

• Quintica is engaged in the business of:
  • performing and providing the Professional Services; and
  • providing access to the Subscription/s; and
  • performing and providing the Managed Services.
• The Customer desires to retain Quintica to:
  • perform and provide the Customer with the Professional Services;
  • provide the Customer with access to the Subscription/s; and/or
  • perform and provide the Customer with the Managed Services.

4. CONTRACTED CUSTOMER SERVICES
   • This Agreement shall apply to:
     • the performance and provision of Professional Services by Quintica to the Customer as further described in a SOW;
     • Quintica providing the Customer with access to the Subscription/s as provided in a Product Order Form; and/or
     • the performance and provision of the Managed Services by Quintica to the Customer.

5. ORDER PROCESS
   • Professional Services
     • In order for Quintica to render the Professional Services, the Customer must enter into a SOW for Professional Services with Quintica.
     • The SOW shall specify, inter alia:
       • the Professional Services to be rendered under the SOW;
       • the duration of the SOW;
       • any specific termination clauses that may be applicable to the SOW;
       • the Fees payable for the Professional Services in respect of the SOW;
       • any special payment terms; and
       • any other specific terms that may be applicable to the SOW in question.
     • Subscriptions
       • In order to be provided access to the Subscription/s, the Customer must enter into a Product Order Form with Quintica.
       • A Product Order Form shall specify, inter alia:
         • the specific Subscription/s to be made available by Quintica to the Customer;
         • the term of access to the Subscription/s;
         • any specific termination clauses that may be applicable to the Subscription/s;
         • the Fees and other charges payable for access to the Subscription/s;
         • any special payment terms;
         • the numbers, types and identifiers of permitted users; and
         • any other specific terms that may be applicable to the Product Order Form in question.
       • In respect of certain Subscriptions to be made available by Quintica to the Customer, the Customer may be required to enter into a separate agreement with the original equipment manufacturer before being granted a use authorisation to utilise such Subscription/s.
     • Managed Services
       • In order for Quintica to perform and provide the Customer with the Managed Services, the Customer must enter into a Managed Services Agreement with Quintica.
       • A Managed Services Agreement shall specify, inter alia:
         • The specific Managed Services to be performed and provided by Quintica to the Customer;
         • The term of performance and provision of the Managed Services;
         • Any specific termination clauses that may be applicable to the Managed Services;
         • The Fees and other charges payable for performance and provision of the Managed Services;
         • Any special payment terms;
         • The numbers, types and identifiers of permitted users; and
         • Any other specific terms that may be applicable to the Managed Services in question.
       • Any contract between the Parties resulting from a Transaction Document shall be on the basis of this Agreement and incorporated herein.
       • Absent the execution, between the Parties, of:
         • a SOW, this Agreement does not, in and of itself, represent a commitment by the Customer to receive the Professional Services from Quintica or pay Quintica any Fees;
         • a Product Order Form, this Agreement does not, in and of itself, represent a commitment by the Customer to request access to the Subscription/s from Quintica or pay Quintica any Fees; and
         • a Managed Services Agreement, this Agreement does not, in and of itself represent a commitment by the Customer to be provided any Managed Services or pay Quintica any Fees.
       • This Agreement does not obligate the Customer to order the Customer Services from Quintica, nor does it obligate Quintica to accept orders for Customer Services from the Customer, but it, together with the commercial specifications, service specifications and/or technical parameters in any applicable Transaction Document, shall define the rights and obligations of the Customer and Quintica during the term thereof and will continue to govern such Customer Services until the Customer Services have been completed by Quintica, expired or, subject to clause ‎2.3, until the Termination Date.

6. DURATION AND TERMINATION
   • Term of Agreement

This Agreement shall commence on the Date of Acceptance and shall, subject to the provisions of clauses ‎6.2.3 and ‎6.3 continue in full force and effect for a period of 5 (five) years.

• Termination
  • Either Party shall have the option to terminate this Agreement, without cause by providing 90 (ninety) days written notice of its’ intent to terminate this Agreement, provided at the time of such notice, there are no Transaction Documents in force and effect.
  • Subject to clauses ‎2.3 and ‎6.3, in the event that a specific Transaction Document provides for a different Transaction Document term or termination notice period, the Transaction Document term and termination clauses will control for that specific Transaction Document only.
  • In the event that:
    • there is a continuing need for any Professional Services identified in a SOW, after the Termination Date, and the Customer requests, in writing, to have Quintica complete such Professional Services, then the provisions in this Agreement will automatically govern such SOW for the period of time that it takes for the completion of such Professional Services, and the Agreement will then automatically expire on completion of such Professional Services, unless terminated earlier as per clause ‎3, in which case the SOW will also be automatically terminated;
    • the Subscription Term set out in a Product Order Form expires after the Termination Date, then the provisions in this Agreement will automatically govern such Product Order Form for the period of time up to and including the date of expiration of the Subscription Term, and the Agreement will then automatically expire, unless this Agreement is terminated earlier as per clause ‎3, in which case the Subscription will also be automatically terminated; or
    • the Managed Services Term set out in a Managed Services Agreement expires after the Termination Date, then the provisions in this Agreement will automatically govern such Managed Services Agreement for the period of time up to and including the date of expiration of the Managed Services Term, and the Agreement will then automatically expire, unless this Agreement is terminated earlier as per clause ‎3, in which case the Managed Services will also be automatically terminated
  • Breach
    • Should any Party (“the Defaulting Party”) commit a material breach of any provision of this agreement or a Transaction Document, and fail to remedy such breach or fail to implement remedial action reasonably acceptable to the other Party which will remedy the breach, within 30 (thirty) days of receiving a written notice from the other Party (“the Aggrieved Party”) requiring the Defaulting Party to do so, the aggrieved party shall be entitled, in addition to its other remedies in terms of this Agreement, to cancel this Agreement or the specific Transaction Document forthwith or to claim specific performance, without prejudice to its rights to claim damages in accordance with the provisions of this Agreement.
    • Notwithstanding anything to the contrary contained in this clause ‎6 either Party shall be entitled to terminate this Agreement or a Transaction Document immediately if either Party commits an act of insolvency by admitting in writing its inability to pay its debts as they mature, making an assignment for the benefit of creditors generally, filing or having filed against it by a third party any petition under any insolvency, or an application for any of the foregoing not being resolved, or being placed under business rescue proceedings.
  • Termination of this Agreement or a specific Transaction Document will not relieve a Party of obligations imposed upon such Party by statute or regulation or by this Agreement or a specific Transaction Document prior to its termination.
  • Termination of this Agreement or a specific Transaction Document shall not affect the rights of the Parties, including any right to receive payment for the Customer Services duly provided up to the Termination Date, which arose prior to any such termination and such rights shall survive any such termination.
  • Professional Services, Subscriptions and Managed Services are each separately ordered. A breach by a Party of its obligations with respect of a Transaction Document shall not constitute a breach by that Party of its obligations with respect other separate Transaction Documents.
  • If a Transaction Document is terminated by the Customer due to a breach by Quintica, then the Customer shall be entitled to a refund, within 30 (thirty) days after the effective date of the termination:
    • for, in respect of Subscriptions, all prepaid Fees for the remaining portion of the Subscription Term for the terminated Subscription after the effective date of the termination;
    • for, in respect of Professional Services, any prepaid Fees for unperformed Professional Services under the applicable SOW; and
    • for, in respect of Managed Services, all prepaid Fees for the remaining portion of the Managed Services Term for the terminated Managed Services after the effective date of the termination.
  • The expiration or termination of this Agreement shall be without prejudice to all accrued rights and obligations of the Parties under this Agreement and to all obligations under this Agreement expressed to continue or take effect after expiration or termination.

7. FEES AND PAYMENT THEREOF
   • In exchange for:
     • the performance and provision of the Professional Services performed by Quintica for the Customer, as set forth in any SOW, the Customer agrees to compensate Quintica at the rate identified in the fee schedule set forth in a SOW;
     • the granting of access to the Subscription/s by Quintica to the Customer, as set forth in any Product Order Form, the Customer agrees to compensate Quintica at the rate identified in the fee schedule set forth in a Product Order Form; and
     • the performance and provision of the Managed Services by Quintica for the Customer, as set forth in a Managed Services Agreement, the Customer agrees to compensate Quintica at the rate identified in the fee schedule set forth in the Managed Services Agreement.
   • Quintica shall be entitled to invoice the Customer in accordance with the payment plan set out in the relevant Transaction Document, or as otherwise agreed in writing between the Parties.
   • Save as provided in a Transaction Document, the Customer shall make payment of all valid and undisputed invoices within 30 (thirty) days of receipt of invoice.
   • The Fees do not include any Taxes and the Customer shall be responsible for paying all applicable Taxes associated with the Customer’s purchase of the Customer Services, as the case may be.
   • All payments in terms of or arising out of this Agreement shall be made free of set-off, bank exchange and commission, withholding or any other deduction to the Party entitled thereto.
   • All amounts due by one Party to the other in terms of or arising out of this agreement will, unless paid on due date, bear interest from the due date to date of payment, both days inclusive. Such interest shall be:
     • calculated at 1.5% (one and a half percent) per month; and
     • capitalised monthly in arrears on the balance due.
   • If any Fees owing by the Customer under this Agreement or a Transaction Document, as the case may be, is 30 (thirty) or more days overdue, Quintica may, without limiting it’s other rights and remedies in terms of this Agreement, suspend the relevant Customer Services, until such amounts are paid in full.
8. CHANGE ORDERS AND OUT OF SCOPE SERVICES
   • To the extent that the Customer requires or requests additional Customer Services that exceed the Customer Services set forth in any Transaction Document incorporated herein, the additional Customer Services shall be recorded in writing, signed by both Parties in accordance with clause ‎2, and Quintica will be entitled to charge the agreed additional Fee for such additional or out of scope Customer Services.
   • Fees for such additional or out of scope Customer Services, as the case may be, will be set forth in a Change Order (“CO”), which will also provide a description of the changed or additional Customer Services being requested.
   • Once a CO is signed by both Parties, it will be incorporated into this Agreement and have the same legal effect as the Transaction Document that is incorporated in this Agreement.
9. INDEPENDENT CONTRACTOR
   • The Parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties.
   • All Quintica employees who are assigned to perform Customer Services at any Customer owned or leased facility shall be considered to be an employee of Quintica only and will not be considered an agent or employee of the Customer for any purpose.
   • Quintica will be solely responsible for payment of all compensation owed to its employees, including all applicable employment taxes and will make deductions for all taxes and withholdings as required by law.
   • In no event will any Quintica employee be eligible for or entitled to any benefits of the Customer.
10. NON-SOLICITATION
    • Neither Quintica nor the Customer will for itself or for any other company, either directly or indirectly, solicit, hire, contract or entice away from the other Party any employees of such other Party.
    • The Parties agree that the restriction in Clause ‎1 shall apply during the term of this Agreement and for 6 (six) months after the Termination Date.
    • If either Party breaches this clause ‎10, such Party shall pay the other Party a liquidated damage equal to 50% (fifty percent) of the relevant employees actual annual net salary which shall be calculated by deducting Taxes, pension fund contributions, provident fund contributions and medical aid fund contributions made by the employee from such employees annual gross basic salary.
    • This provisions of this clause ‎10 are considered a material term of this Agreement.
11. PARTIES RESPONSIBILITIES

In addition to the obligations and responsibilities of the Parties as set out in this Agreement, the Parties shall adhere to all obligations and responsibilities as are set out in a Transaction Document.

12. INTELLECTUAL PROPERTY RIGHTS
    • The Receiving Party acknowledges that all right, title and interest in and to the Disclosing Party’s Intellectual Property Rights are and shall at all times remain vested with the Disclosing Party.
    • The Receiving Party shall not during or at any time after the expiry or termination of this agreement dispute the ownership by the Disclosing Party of any such Intellectual Property Rights.
    • The Receiving Party acknowledges that all rights in any copy, translation, update, upgrade, adaptation or derivation of the Disclosing Party’s Intellectual Property Rights including any improvement or development thereof belongs exclusively to, and shall be and remain the sole property of the Disclosing Party.
    • Upon termination of this Agreement for any reason whatsoever, the Parties agree that the Disclosing Party’s Intellectual Property Rights shall remain vested in the Disclosing Party and its partners and that notwithstanding such termination, the Receiving Party shall have no rights to the Disclosing Party’s Intellectual Property save as specifically granted by the Disclosing Party in its sole discretion. Furthermore, within 7 (seven) days of the Termination Date, the Receiving Party will return to the Disclosing Party all of the Disclosing Party’s Intellectual Property generated in connection with this Agreement.
    • The Receiving Party shall hold all information and documentation relating to the Disclosing Party’s Intellectual Property Rights in the strictest confidence and shall take all reasonable precautions to safeguard the Disclosing Party’s Intellectual Property Rights from any unauthorised copying, distribution, disclosure, reproduction or use.
    • The Receiving Party shall notify Quintica promptly of any unauthorised disclosure, possession or use of the Disclosing Party’s Intellectual Property Rights which becomes known to the Receiving Party and to assist the Disclosing Party in prosecuting any claims or proceedings in connection therewith.
    • The Parties agree that this clause ‎12 shall survive the termination of this Agreement for any reason whatsoever.
13. CONFIDENTIALITY
    • The Parties acknowledge that:
      • the Confidential Information is of a sensitive nature and is a valuable, special and unique asset of the Disclosing Party; and
      • The Disclosing Party may suffer irreparable harm or substantial and other loss in the event of such Confidential Information being disclosed or used otherwise than in accordance with this Agreement.
    • Except as otherwise provided in this clause ‎13, the Confidential Information shall be treated and safeguarded by the Parties as strictly private, secret and confidential. No Party shall, whether directly or indirectly, reveal, otherwise disclose or divulge, or give access, whether remotely, physically or otherwise, to such Confidential Information, whether during or after the termination of this Agreement, to any third party without the prior written consent of the other Party hereto.
    • The aforegoing restrictions shall not apply to the disclosure of necessary Confidential Information to employees and advisors of the Parties on a need to know basis and in the case of a Party’s employees, to enable the Party to perform its obligations under and in terms of this Agreement. Any third party to whom such Confidential Information may be disclosed shall first undertake in writing to protect the confidential nature thereof.
    • The Receiving Party irrevocably and unconditionally agrees and undertakes:
      • not to use or permit the use of the Confidential Information for any purpose other than in connection with and arising out of this Agreement and, in particular, not to use or permit the use of the Confidential Information, whether directly or indirectly, to obtain a commercial, trading, investment, financial or other advantage over the Disclosing Party or otherwise use it to the detriment of the Disclosing Party;
      • To take all such steps as may be reasonably necessary to protect the Confidential Information against theft, damage, loss, unauthorised access (including access by electronic means) and to prevent the Confidential Information from falling into the hands of unauthorised third parties.
    • The Parties shall, both before and after the disclosure of any Confidential Information to an employee for the purpose contemplated in clause ‎3, inform such employee of, and take all practical steps to impress upon him or her, the secret and confidential nature of the Confidential Information and the obligations imposed upon the Receiving Party under this Agreement in relation to the disclosure of such Confidential Information.
    • Each Party shall be responsible for procuring that its employees abide by the provisions of this Agreement and agree to be bound by the confidentiality undertakings given by the Receiving Party to the Disclosing Party in terms of this Agreement. A breach of any of the terms of this Agreement by any employee of the Receiving Party shall be deemed to be a material breach committed by the Receiving Party, entitling the Disclosing Party to avail itself of the remedies contemplated in clause ‎3.
    • The confidentiality undertaking in this clause ‎13 shall not apply in respect of Confidential Information:
      • within the public domain other than as a result of a breach of this clause ‎13; or
      • where the disclosure is required to satisfy an order of a court of competent jurisdiction or other judicial decree, provided that in this case the Party required to disclose same has given the other Party sufficient prior written notice, where it is able to do so, to enable such other Party to defend or protect such disclosure; or
      • where the provisions of any law or regulation in force from time to time requires disclosure.
    • Information already known by a Party, information disclosed to it by a third party without being in breach of any confidentiality provisions, or information which was rightfully in a Party’s possession without obligation of confidentiality, or was approved for release with the prior written consent of the Disclosing Party and information independently developed by a Party is also excluded from the confidentiality undertaking contained in this clause ‎13.
    • The Disclosing Party may at any time request the Receiving Party in writing to return, and procure the return by any employee of the Receiving Party, any material containing, pertaining to or relating to Confidential Information disclosed pursuant to the terms of this Agreement, and may in addition request the Receiving Party to furnish a written statement to the effect, that upon such return, the Receiving Party has not retained in its possession or under its control either directly or indirectly any such material.
    • As an alternative to the return of the material contemplated in clause ‎9 above, the Receiving Party shall at the written request of the Disclosing Party, destroy such material, and procure the destruction of such material by any employee of the Receiving Party, and furnish the Disclosing Party with a written statement to the effect that all such material has been destroyed.
14. WARRANTIES AND ACKNOWLEDGEMENTS
    • Any warranty offered by Quintica to the Customer for the Customer Services provided herein shall be set forth in the Transaction Document.
    • In the absence of any warranty language in a Transaction Document, as the case may be, Quintica warrants that:
      • it has the full right and authority to provide access to and render the Customer Services to the Customer as contemplated herein;
      • the Professional Services performed pursuant to this Agreement will be provided by such Quintica employees as it considers suitably qualified to undertake the work; and
      • The Professional Services will be undertaken using reasonable skill and care.
    • In the case of a breach of warranty in respect of Subscriptions under a Product Order Form, the Customer’s exclusive right and remedy (and Quintica’s sole liability) for breach of such warranty are for the Customer to invoke a breach in accordance with clause ‎3 and to the extent that such breach is not remedied by Quintica in the time frames set out therein, to cancel the specific Product Order Form and claim a refund in accordance with clause ‎6.7.
    • In the case of a breach of warranty in respect of the Managed Services under a Managed Services Agreement, the Customer’s exclusive right and remedy (and Quintica’s sole liability) for breach of such warranty are for the Customer to invoke a breach in accordance with clause ‎3 and to the extent that such breach is not remedied by Quintica in the time frames set out therein, to cancel the specific Managed Services Agreement and claim a refund in accordance with clause ‎6.7.
    • In case of breach of warranty in respect of Professional Services under a SOW, the Customer exclusive right and remedy (and Quintica’s sole liability) is limited to the provision, at its own cost, of Professional Services of the same nature as those originally provided to correct the non-conformity with the Warranty.
    • In the case of breach of warranty under clause ‎1 or ‎14.2, Quintica’s liability is subject to Quintica being notified of the breach of warranty within 3 (three) months after the breach of such warranty.
    • Each Party represents and warrants to the other Party that:
      • it has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement;
      • execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorised by the requisite corporate action on the part of such Party; and
      • the entry into of this Agreement shall not contravene any provision of that Party’s constitutional documents.
    • Except as expressly provided herein or in a Transaction Document, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Each Party disclaims all liability and indemnification obligations for any harm or damages caused by any third party.
    • The Parties acknowledge that by entering into this Agreement they do not do so on the basis of and do not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statutes or common law are excluded to the fullest extent permitted by law.
15. INDEMNITY
    • Each Party (“the Indemnifying Party”) shall indemnify, defend and hold harmless the other Party (“the Indemnified Party”), its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to:
      • bodily injury or death of any person directly caused solely by the negligence of the Indemnifying Party, its personnel or agents in connection with this Agreement;
      • any fraudulent act or omission of the Indemnifying Party, its affiliates or personnel in connection with this Agreement;
      • any allegation or claim brought against the Indemnified Party in respect of claims for infringement of any third parties’ intellectual property rights arising from the execution of a Transaction Document;
      • any allegation or claim brought against the Indemnified Party in respect of claims for breach of confidentiality and/ or the unauthorised disclosure of information pertaining to the Customer’s clients, its dealerships, agents, franchise network; and
      • a breach of clauses ‎12 or ‎13.

16. LIMITATION OF LIABILITY
    • Subject to the provisions of clause ‎2 and to the extent permitted by law:
      • the Parties shall not be liable to each other for any indirect, special or consequential loss or damage including, without limitation, loss of profit, revenue, anticipated savings, business transactions, goodwill, or other contracts or loss of data, interruption in use or availability of data, howsoever arising, whether in delict, breach of contract or otherwise. The Parties shall be liable to each other for proven direct damages only;
      • Quintica’s liability to the Customer arising from a specific SOW, whether in contract or delict (including negligence) is limited to 50% of the charges paid by the Customer to Quintica, in the 12 (twelve) month period immediately preceding the event giving rise to the liability, under the applicable SOW on which the claim relates; and
      • Quintica’s liability to the Customer in respect of a claim arising from Product Order Form, whether in contract or delict (including negligence) is limited to a maximum of the Fees paid by the Customer to Quintica under the Product Order Form in the 12 (twelve) month period immediately preceding the event giving rise to the liability;
      • Quintica’s liability to the Customer in respect of a claim arising from Managed Services Agreement, whether in contract or delict (including negligence) is limited to a maximum of the Fees paid by the Customer to Quintica under the Managed Services Agreement in the 12 (twelve) month period immediately preceding the event giving rise to the liability.
    • Nothing contained in this clause ‎16 or in a Transaction Document, shall exclude or limit either Party’s liability to the other in respect of the indemnity undertakings given in clause ‎15.
17. FORCE MAJEURE

In the event of any delay in performance by either Party due to any cause arising from or attributable to acts, events, non-happenings, omissions, accidents or acts of God beyond the reasonable control of such Party (including, but not limited to, strikes, lock-outs, civil commotion, riots, war, threat of or preparation for war, breaking off of diplomatic relations, fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence, pestilence or epidemic, machinery breakdown, failure of plant or collapse of structure, extreme weather conditions request or order of any person having or appearing to have authority) (“Force Majeure”), the Party affected thereby shall be under no liability for loss or injury suffered by the other Party as a result thereof and the performance of its obligation by the Party affected thereby shall be suspended during such delay. Upon cessation of the cause of such delay, this Agreemetn shall again become fully operative and such affected Party shall immediately rectify such delay in performance, provided that, if such delay pertains to a material obligation of the Party affected by such event of force majeure and such delay shall exceed 90 (ninety) days, either Party shall be entitled to terminate this Agreement, or a Transaction Document in question, by written notice to the other Party. In such case all Customer Services duly provided up to the Termination Date will be paid in full.

18. CONFLICTS WITH TRANSACTION DOCUMENTS

To the extent that the provisions of a Transaction Document may conflict with or fail to record the provisions of this Agreement, the provisions of this Agreement shall prevail to the extent that it is competent in law for this Agreement to prevail.

19. DISPUTE MECHANISM
    • Save as otherwise expressly provided in this Agreement or a Transaction Document, should any Party (“the Disputing Party”) contend that, in its opinion, a claim or a disagreement or a dispute (hereinafter collectively referred to as a “Dispute”) has arisen between the Parties out of, in relation to, or in connection, with this Agreement or a Transaction Document or in regard to:
      • the interpretation of;
      • the effect of;
      • the Parties’ respective rights or obligations under;
      • a breach of;
      • the termination of; or
      • any matter arising out of the termination of,

this Agreement or a Transaction Document that Dispute shall be decided by arbitration in the manner set out in this clause ‎19.

• The arbitration shall:
  • be held in the region contemplated in clause ‎20 below;
  • be held, in accordance with the then prevailing Rules of Arbitration of the abritration body set our in clause ‎20 below by one or more arbitrators appointed in accordance with the said Rules;
  • The award rendered by the arbitrator(s) shall be final and binding upon all the parties.
  • Be held in English.
• This clause is severable from the rest of the Agreement and shall therefore remain in effect even if this Agreement is terminated.
• The law governing this agreement shall be the law of the land contemplated in clause ‎20
• The Court having jurisdiction to enforce any award made under this clause ‎19 shall be the Court contemplated in clause ‎20, which has jurisdiction over the Party against whom the award is being enforced.
• Nothing contained in this clause ‎19 will preclude any Party from applying for, or obtaining, interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator on the merits of the Dispute.

20. CONTRACTING PARTY, NOTICES, DISPUTES AND GOVERNING LAW
    • This clause ‎20 set outs who/what/which:
      • Entity the Customer is contracting with under this Agreement;
      • The Customer should direct notices to under this Agreement;
      • Laws will apply in any disputes or lawsuit arising out of or in connection to this Agreement;
      • which courts will have jurisdiction over any disputes or lawsuit, depend on where the Customer is domiciled; and
      • Rules of Arbitration shall apply to in respect of clause ‎19 above:

• Notwithstanding anything to the contrary contained 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.

21. CESSION, DELEGATION, ASSIGNMENT AND SUBCONTRACTING
    • None of the Parties may cede their rights nor delegate their obligations to this Agreement and all Transaction Documents without the prior written consent of any other Parties, which consent will not be unreasonably withheld.
    • Quintica shall be entitled to subcontract all or any part of this Agreement and all Transaction Documents to a Subcontractor(s) approved by the Customer in writing, which approval shall not be unreasonably withheld, and provided that:
      • Quintica guarantees the Subcontractor(s) obligations to the Customer and guarantees the proper performance of this Agreement and all Transaction Documents in the same manner as if Quintica had itself have performed the obligations under this Agreement; and
      • Quintica remains primarily and wholly responsible to the Customer for all actions, omissions and representations of the Subcontractors whether or not acting within the terms of their agreement with Quintica.

22. PUBLIC ANNOUNCEMENTS

No announcements of any nature whatsoever will be made by or on behalf of a Party relating to this Agreement and all Transaction Documents hereto, a Product Order From or a SOW without the prior written consent of the other Party, save for any announcement or other statement required to be made in terms of the provisions of any law or by the rules of any recognised securities exchange, in which event the Party obliged to make such statement will first consult with the other Party in order to enable the Parties in good faith to attempt to agree the content of such announcement, which (unless agreed) must go no further than is required in terms of such law or rules.

23. WHOLE AGREEMENT

This Agreement and all Transaction Documents hereto constitute the sole record of the agreement between the Parties in relation to the subject matter hereof.  The Parties shall not be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein or a Transaction Document hereto.

24. VARIATION
    • No addition to or variation, consensual cancellation or novation of this Agreement and all Transaction Documents hereto shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
    • Although the Parties may correspond via electronic mail for operational purposes, no valid notice under, or amendment to the terms of this Agreement or a Transaction Document may be given or concluded by way of a data message as defined in the Electronic Communications Act, 25 of 2002.
25. PARTIES NOT AFFECTED BY WAIVER
    • The waiver (whether expressed or implied) by any Party of any breach of the terms or conditions of this Agreement and all Transaction Documents hereto by the other Party shall not prejudice any remedy of the waiving Party in respect of any continuing or other breach of the terms and conditions hereof.
    • No failure, delay, relaxation or indulgence on the part of either Party in exercising any power or right conferred on such Party in terms of this Agreement and all Transaction Documents hereto shall operate as a waiver of such power or right nor shall any single or partial exercise of any such power or right preclude any other or further exercises thereof or the exercise of any other power or right under this Agreement and all Transaction Documents hereto.
    • The expiry or termination of this Agreement and all Transaction Documents hereto shall not prejudice the rights of any Party in respect of any antecedent breach or non-performance by the other Party of any of the terms or conditions hereof.
26. SEVERABILITY

If any provision of this Agreement or a Transaction Document is found or held to be invalid or unenforceable, the validity of all the other provisions hereof will not be affected thereby and the Parties agree to meet and review the matter and if any valid or enforceable means is reasonably available to achieve the same object as the invalid or unenforceable provision, to adopt such means by way of variation of this Agreement and/or Transaction Document, as the case may be.

27. BENEFITS

This Agreement and all Transaction Documents hereto will inure for the benefit of and be binding upon the successors and permitted assigns of the Parties, or any of them.

28. COUNTERPARTS

This Agreement and all Transaction Documents hereto may be executed in separate counterparts, none of which need contain the signatures of all of the Parties, each of which shall be deemed to be an original and all of which taken together constitute one agreement.

29. WARRANTY OF AUTHORITY

The persons signing this Agreement and all Transaction Documents hereto hereby warrant that they are properly empowered and duly authorised to sign this Agreement or Transaction Document, as the case may be, on behalf of the Parties.

30. COSTS

Each Party shall bear its own costs relating to the negotiation, drafting and settling of this Agreement and all Transaction Documents hereto.