SERVICE LEVEL AGREEMENT (SLA) BETWEEN SERVISOR (PTY) LIMITED(REGISTRATION NO: 2020/219831/07) (HEREINAFTER REFERRED TO AS“SERVISOR”) AND REGISTERED SERVICE PROVIDERS USING THE PLATFORM (HEREINAFTER REFERRED TO AS THE “SERVICE PROVIDER)
1. DEFINITIONS
1.1. In this Agreement, unless inconsistent with or otherwise indicated by the context:-
1.1.1. “Agreement” means this document and any associated schedules, as accepted by the parties through online registration and click-to-agree confirmation;
1.1.2. “Business Day” means any other day than a Saturday, Sunday, or official public holiday in South Africa;
1.1.3. “Customer” means any client of the Service Provider who uses the Service Provider’s services and/or buys the Service Provider’s goods ,and pays through the Servisor Platform;
1.1.4. “Days” shall mean calendar days unless differently stated;
1.1.5. "Effective date" means the date the Service Provider is approved by Servisor to render services on the Servisor Platform;
1.1.6. “Fee” mean 11% (Eleven Percent) of the total invoice charged to the Customer by the Service Provider, payable to Servisor;
1.1.7. "Intellectual Property" means all intellectual property of any nature whatsoever owned and/or controlled directly or under licence by Servisor ,including the Servisor Platform, any trademarks and any rights, title and interest in and to all technology, source code/s and/or object code/s forming part of the Software, trade secrets, logos, systems, methods ,marks, trade names, specifications, models, architecture, styles, insignia ,designs, patents and copyrighted works, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world;
1.1.8. "Parties” means collectively, Servisor and the Service Provider; and "Party" will mean either of them, as the context may require;
1.1.9. “Personal Information” has the meaning assigned to it under POPIA;
1.1.10. “POPIA” shall mean the Protection of Personal Information Act No. 4 of2013 (as amended);
1.1.11. “Premises” means the Service Provider’s premises, wherever located;
1.1.12. “Schedule” means the schedules and annexures attached to this Agreement, which form an integral part of the Agreement;
1.1.13. “Service” means the services to be rendered by Servisor to the Service Provider which includes granting the Service Provider access to the Servisor Platform to enable the Service Provider to generate Customer quotations, arrange vehicle repairs and book services;
1.1.14. “Servisor Platform” means the online platform that enables Customers to benchmark vehicle servicing costs and requirements at the same time giving the Service Provider the ability to sell their unused workshop capacity and to facilitate Customer quotations, book vehicles in for services and arrange vehicle repairs for Customers;
1.1.15. “Software” means the proprietary software exclusively licensed to Servisor (including any programs, codes, licenses, interfaces written ,developed) used in relation to the Servisor Platform to enable Servisor to give remote access to the Service Provider to render the Services as contemplated in this Agreement;
1.1.16. “VAT” means value added tax in terms of the Value Added Tax Act 89of 1999 as amended;
1.1.17. words importing the singular shall include the plural and vice versa;
1.1.18. words importing natural persons includes legal persons and partnerships and vice versa;
1.1.19. words importing masculine gender includes the other genders and vice versa;
1.1.20. any reference to an enactment is to that enactment as of the date of acceptance of this Agreement and as amended or re-enacted from time to time.
1.1.21. the clause headings in this Agreement have been inserted for reference purposes only and shall not affect the interpretation of any provision of this Agreement.
1.1.22. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in this interpretation clause.
1.1.23. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
1.1.24. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
2. DURATION
2.1. This Agreement will commence on the Effective Date and will endure indefinitely.
2.2. Either Party shall be entitled to cancel the Agreement for no cause by providing the other Party with 20 (Twenty) days written notice of their intention to cancel.
3. SERVICES
3.1. For the duration of this Agreement, Servisor shall grant the Service Provider access to the Servisor Platform and Software to enable the Service Provider to inter alia generate Customer quotations, arrange of vehicle repair and service bookings and facilitate Customer payments.
3.2. Servisor facilitates the bookings via the Servisor Platform and Software and does not provide any vehicle service or repairs. Servisor shall in no way be a party to ,or responsible for, any service or repair work provided by a Service Provider to a Customer, or for any failure and/or loss arising therefrom or in relation thereto for any reason whatsoever.
3.3. The Service Provider shall comply with all reasonable security requirements of Servisor and shall procure that its employees, representatives, and agents comply with such requirements. Servisor shall endeavour to install adequate security measures, however, in the event of a breach of same, the Service Provider hereby indemnifies Servisor and all of its affiliates, directors and employees against any actual or contingent claims (including claims for consequential, incidental or special damages), costs (on an attorney and client scale), damages, expenses, judgments, liabilities, losses or penalties of any nature whatsoever which Servisor may sustain, whether directly or indirectly in the event of it failing to comply with any security obligations.
3.4. Servisor will at all times only provide Services that are lawful. Servisor is an independent service provider and is not in any way associated with the business of the Service Provider and shall not be held liable for anything the Service Provider does in conducting its business, be same for any criminal prosecution and/or civil claims.
3.5. It is contemplated by the Parties that additional service offerings will be made available on the Servisor Platform in the future and the Service Provider will be notified of these enhancements in due course.
3.6. Servisor will not be liable for any failures and/or faults and/or down time from third party vendors, GPRS, network faults, storage, unauthorised use of the Software or the Servisor Platform, and/or cybercrimes.
4. BOOKINGS PROCESS
4.1. The Service Provider is obliged to render its services and/or provide its goods toa Customer that presents proof of a Servisor booking and payment thereof via the Servisor Platform when the Customer arrives at the Service Provider’s business premises. The Service Provider must contact Servisor to confirm and validate the booking.
4.2. Service bookings originating from the Servisor Platform must be completed on the same day that the vehicle is received from the Customer by the Service Provider.
4.3. Customers may liaise directly with the Service Provider if the date selected for the booking is to be altered. In this instance, the Service Provider agrees that the quoted price will remain as per the original quoted price.
4.4. The Service Provider must notify Servisor if there are any changes to the original quotation provided by Servisor before any work commences so that the Customer can be billed accordingly.
4.5. All quoted additional work or services (“Additions”) from the Service Provider fall outside of the vehicles recommended service schedule and shall not form part of this Agreement. The Service Provider acknowledges that the Customers are not legally bound to accept the quoted Additions.
4.6. If a Customer accepts the quoted Additions, Servisor shall not be party to such agreement and the Service Provider will be free to deal with the Customer directly .In such event, the Customer shall pay the Service Provider directly for the Additions, for the time being until such time as the Servisor Platform has been updated to accept Additions. Any Additions accepted by the Service Provider from the Customer does not form part of the original Servisor quote, and the Service Provider is obliged to bill, invoice, quote and collect the funds directly from the Customer without recourse of any kind to Servisor. It is contemplated that Servisor will be in a position to offer the Additions from the Servisor Platform in due course and at that time, all Additions will be offered through the Servisor Platform.
4.7. If there are any material errors in the quotation that would impact the cost and type of parts to be supplied under the service booking, then and in such event: -
4.7.1. personally identifiable information about you if you voluntarily submit such information to Servisor. Personally identifiable information, may include your name, email address, physical address, credit card details, password and username that is used on your Servisor profile and other information that specifically identifies you and the pages of the website viewed by you;
4.7.2. automatically collected data and information (through cookies, described below, and other methods). Servisor may store aggregate or anonymous information about user contact with, and use of, the website. Examples of this type of information include demographic information, the type of internet browser you are using, the type of computer operating system application software and peripherals you are using, the domain name of the website from which you linked to our website and your browsing habits on, and usage, of the website; and
4.7.3. non-personally identifiable information may also include personally identifiable information that has been aggregated so that no one individual is specifically identifiable (such as, how many users in a particular city access the website).
4.8. Servisor shall only be liable to pay the Service Provider: -
4.8.1. for the vehicle services or repairs that have been booked through the Servisor Platform;
4.8.2. after rendering the Services, not sooner than 20 (Twenty) Days after receipt of the relevant invoice from the Service Provider; and
4.8.3. directly to the Service Provider’s bank account, the details of which are provided to Servisor by the Service Provider.
5. STANDARDS OF SERVICE
5.1. In no circumstances may the Service Provider refuse a Customer once a booking has been confirmed on the Servisor Platform.
5.2. In completion of a service or repair booked by a Customer through Servisor, the Service Provider may not sell, fit, replace or otherwise use inferior parts ,reasonably deemed as such by Servisor at its sole discretion, including but not limited to:-
5.2.1. aftermarket or grey parts; or
5.5.2. any used or reconditioned parts.
5.3. All parts used by the Service Provider in completion of a service or repair in terms of this Agreement must:
5.3.1. comply fully with the Customer’s selection;
5.3.2. use only parts supplied by an Original Equipment Manufacturer(“OEM”) or a recognised Original Equipment Service Provider(“OES”). An OES part is made by the manufacturer who made the original factory part
5.4. If the Service Provider is unsure of the quality of the part and whether it meets the requirements under this Agreement, the onus is on the Service Provider to contact Servisor, who shall confirm or deny that it meets the aforementioned requirements.
5.5. The Service Provider shall grant Servisor access to perform audits on parts that have been installed on bookings supplied through Servisor, either on-site or by requesting any documentation that may be reasonably necessary for Servisor to fully carry out such audit, deemed as such by Servisor at its sole and absolute discretion.
5.6. In the event that the Service Provider sells, fits, replaces, or otherwise uses inferior parts in completion of a repair or serving booking under this Agreement: -
5.6.1. it shall constitute a material breach of this Agreement, and Servisor shall be entitled immediately to terminate this Agreement at its election; and/or
5.6.2. Servisor shall be entitled to remove the Service Provider from the Servisor website and forthwith prohibit all further Software access; and/or
5.6.3. the Service Provider shall be liable to pay a penalty equal to the cost of the total service or repair performed by the Service Provider, to Servisor.
5.7. In order to remain entitled to access the Servisor Platform and so remain a member of Servisor’s service provider network, the Service Provider acknowledges that it must:
5.7.1. it shall constitute a material breach of this Agreement, and Servisor shall be entitled immediately to terminate this Agreement at its election; and/or
5.7.2. Servisor shall be entitled to remove the Service Provider from the Servisor website and forthwith prohibit all further Software access; and/or
5.8. At all times, Servisor reserves the right to remove and/or exclude access for the Service Provider, at Servisor’s sole and absolute discretion and for to the Servisor Platform.
6. FEE, INVOICING AND PAYMENT
6.1. The Service Provider must at all times commit to the final quoted price and complete the work in full as per the detailed quote provided by Servisor via the Servisor Platform.
6.2. Servisor charges the Fee to cover the costs incurred in facilitating the Customer’s booking with the Service Provider via the Servisor Platform. This Fee is deducted from the amount quoted by the Service Provider to the Customer before being paid over to the Service Provider in clause 4.8 above.
6.3. In addition to the Fee set out in clause 6.2 above, Servisor reserves the right to charge an additional service fee for any Additional services rendered once these are available via the Servisor Platform. Service fees vary depending on the complexity and value of the booking. Service fees shall be clearly displayed on confirmation of a booking.
6.4. The Service Provider agrees to allocate a minimum of 2 (Two) saleable hours per Business Day to Customer bookings made through the Servisor Platform.
6.5. The Service Provider agrees to apply a discount of not less than 5% (Five Percent)to the Service Provider’s default labour rate and parts discount.
6.6. Once a Customer booking has been confirmed through the Servisor Platform, the Service Provider agrees and undertakes not to circumvent or undercut Servisor from the transaction and shall remain fully liable to adhere all payment obligations and other obligations as set out under this Agreement. In the event that the Service Provider breaches this provision: -
6.6.1. Servisor shall be entitled forthwith to terminate this Agreement and remove the Software access of the Service Provider; and/or
6.6.2. The Service Provider shall be liable to pay to Servisor a penalty equivalent to the original booking price.
6.7. Servisor shall issue the Service Provider with VAT invoices in respect of all amounts due and owing on a monthly basis.
6.8. Interest will accrue on the outstanding balance of all amounts due and payable but unpaid by the Service Provider from time to time in terms of this Agreement. Such interest will be charged at the Prime Rate (or at the maximum rate allowed by law, whichever is the lesser), calculated from the date on which payment was due in terms of this Agreement until the date of payment.
7. VARIATION OF CHARGES
7.1. Servisor shall notify the Service Provider of any variation in the Fees in writing by email, which shall become effective 30 (Thirty) days from the date of the written notification.
7.2. Servisor shall have the discretion to escalate its Fees annually in accordance with the annual increase in the inflation rate from time to time, with reference to the Consumer Price Index as published.
8. DATA PROTECTION
8.1. In carrying out each of their obligations in terms of this Agreement, Servisor and the Service Provider shall comply with the provisions of the Electronic Communications Act of 2005, and POPIA, and all other relevant laws of South Africa and any regulations promulgated thereunder. Servisor shall not be liable in any way for the Service Provider’s non-compliance herewith, nor for any loss and/or penalties arising therefrom or in relation thereto, and the Service Provider indemnifies and holds Servisor harmless from any penalties and/or claims that may arise from such non-compliance.
8.2. When accessing, dealing with and/or collecting Personal Information as defined in POPIA, Servisor and the Service Provider shall at all times: -
8.2.1. not request, collate, process and/or store Personal Information which is not necessary for the lawful purpose for which the Personal Information is required;
8.2.2. obtain written permission from the database subject for the collection ,collation, processing and/or disclosure of any Personal Information;
8.2.3. not use the Personal Information for any purpose other than for the disclosed purpose for which the database subject gave written permission;
8.2.4. keep a record of the Personal Information and the reason for which the Personal Information was collected, for as long as the Personal Information is used by the Service Provider and/or Servisor for the purpose of this Agreement;
8.2.5. not disclose the Personal Information to any third party, unless permitted by legislation to do so or authorised in writing by the database subject todo so. A record of any such disclosure must be kept for as long as the Personal Information is used by the database subject the record must contain details on the reasons for the disclosure, the date of disclosure and the entity or person to whom disclosure was made;
8.2.6. delete and/or destroy any Personal Information that becomes obsolete .Prior written approval must be obtained from the database before any such deletion and/or destruction takes place;
8.2.7. treat all Personal Information in a consistent and confidential manner
8.3. Notwithstanding the provisions of this clause, neither Party shall be entitled to: -
8.3.1. make any disclosure of the other Party’s data to its affiliated companies or any third parties without the prior written consent of the other Party ;and/or
8.3.2. use any of the other Party’s data for any purpose whatsoever, without the prior written consent of the other Party.
8.4. If either Party breaches this clause, that Party acknowledges that the other may suffer damages and that it may, without prejudice to any other remedies it may have, claim damages from the breaching Party.
8.5. Servisor acknowledges that it will be required to immediately advise the Service Provider if it becomes aware of any breach of the aforementioned provisions, in particular if the Service Provider’s data is utilised by its affiliated companies or by Servisor itself in order to directly contact the Service Provider’s clients. Servisor will under no circumstances make contact or use any of the data without the Service Provider’s explicit consent.
9. INTELLECTUAL PROPERTY
9.1. Each Party shall retain ownership of all rights in and to its own intellectual property at all times.
9.2. The Service Provider acknowledges Servisor’s rights in the Intellectual Property and any improvements, enhancements or adaptations thereto shall remain the sole property of Servisor as the exclusive licensee thereof.
9.3. The provisions of this clause 9 shall survive the expiration or termination of this Agreement and Servisor shall ensure that such provisions are made binding on any successor in title.
9.4. The right of the Service Provider to use any Intellectual Property shall: -
9.4.1. be subject at all times to the instructions, standards and specifications of use issued by Servisor; and
9.4.2. immediately terminate, upon termination of this Agreement for any reason whatsoever, in which event the Service Provider will have no further right ,title or interest in the Intellectual Property of Servisor.
9.5. Insofar as a claim is brought against Servisor and/or the Service Provider in respect of the Intellectual Property, the Service Provider will immediately bring to the attention of Servisor any infringement or suspected infringement by any third party of any of the Intellectual Property of which it is aware and shall at the request and expense of Servisor assist Servisor in taking such action as Servisor may deem appropriate to protect its Intellectual Property.
9.6. The Service Provider shall notify Servisor in writing of any claim which may be made against Servisor, or any related company or affiliated company alleging that the Software infringes the intellectual property rights of a third party as soon as is reasonably practicable after it becomes aware of any such actual or potential claim.
9.7. Servisor will defend the Service Provider against any action, suit or proceedings and indemnify the Service Provider against any award of damages or costs or any settlement caused by reason of any infringement or alleged infringement of any intellectual property rights of a third party where such infringement or alleged infringement arises from Servisor’s use or possession of the Software pursuant to this Agreement provided that: -
9.7.1. any infringement or alleged infringement is not caused by any unauthorised changes to, or unauthorised use of the Software made by the Service Provider;
9.7.2. the Service Provider does not make or provide a statement or admission without Servisor’s prior written consent; and
9.7.3. Servisor has control of the defence of any action or such claim and all negotiations for settlement or compromise and the Service Provider10provides Servisor all reasonable assistance with the defence or settlement of such claim at Servisor’s expense.
10. LIMITATION OF LIABILITY
In the event of damages having been suffered by either Party and/or in the event of gross negligence, willful misconduct and/or a willful act or omission or fraud, neither Party shall be responsible to the other Party for any indirect, consequential, special and/or punitive damages, including, without limitation, loss of revenue or profits, in any way arising out of or related to this Agreement, in delict, warranty or otherwise.
11. WARRANTIES AND INDEMNITIES
11.1. It is expressly acknowledged and recorded that Servisor facilitates the booking sand does not provide any vehicle service or repairs. Servisor shall not be liable in any way for any service delivered or service failure by any Service Provider or in any part for any reason whatsoever, nor for any loss or damage arising therefrom or in relation thereto.
11.2. The Service Provider hereby releases and indemnifies Servisor against any loss or liability Servisor may suffer or incur of any nature whatsoever arising as a result of negligence or acts or omissions by the Service Provider or its subcontractors.
11.3. The Service Provider expressly acknowledges that it must meet Servisor’s minimum requirements to become a member of Servisor’s service provider network as set out hereunder. The Service Provider, by registering on the Servisor platform and clicking 'Next,' hereto, warrants that:
11.3.1. the information provided by it to Servisor in becoming a member of Servisor’s service provider network, is true and correct, and the Service Provider hereby indemnifies and holds Servisor harmless against any loss incurred by the Service Provider or any third party arising as a result of any such incorrect information. Such information includes, but is not limited to the Service Provider’s: -
11.3.1.1. full and complete business name, registration number ,physical address, email address and telephone number;
11.3.1.2. VAT registration number;
11.3.1.3. approved business banking details;
11.3.1.4. RMI membership number;
11.3.1.5. models and ages of motor vehicles the Service Provider is qualified to service and/or otherwise work on;
11.3.1.6. complimentary lift indicator;
11.3.1.7. applicable default labour rate;
11.3.1.8. applicable default parts discount;
11.3.1.9. default workshop hours allocated to Servisor per day ,which can be no less than 2 (Two) hours; and
11.3.1.10. workshop operating hours.
11.3.2. is not bound by any restraint of trade agreement in place with a third party;
11.3.3. it shall provide its Customers with a guarantee on all services rendered and/or goods sold for a minimum period of the lesser of 6 (Six) months or 10 000km (Ten Thousand Kilometres) travelled after such service and/or goods are provided (the “Guarantee Period”);
11.3.4. is a member of the Retail Motor Industry (“RMI”) Organisation and shall remain as such throughout the subsistence of this Agreement;
11.3.5. is not sequestrated or liquidated, whether provisionally or finally, and is not insolvent and has not committed an act of insolvency within the meaning of the Insolvency Act 24 of 1936, whichever may be applicable; and
11.6.6. has no unsatisfied judgments granted against it, and further is not subject to any pending civil and/or criminal proceedings and/or disputes and/or complaints lodged at the Motor Industry Ombud of South Africa or any other relevant body of authority.
11.4. Without limiting the generality of the remedies available to Servisor under clause12 hereunder, any breach on the part of the Service Provider of any one of the aforegoing warranties shall entitle Servisor, without penalty against it, immediately and without notice to cancel this Agreement and revoke the Service Provider’s membership in Servisor’s service provider network, and to recover any damages of whatsoever nature arising as a result of such breach.
11.5. Servisor warrants that: -
11.5.1. the Software and Software Platform are fit for the intended purpose and use by the Service Provider;
11.5.2. the installation services and any other services provided by Servisor pursuant to this Agreement shall be performed: -
11.5.2.1. in a professional manner by appropriately qualified persons; and
11.5.2.2. in accordance with all applicable provisions hereof.
11.5.3. it has the authority to grant the Service Provider the right to use the12Servisor Platform and the Software;
11.5.4. the use of the Software and/or the Servisor Platform or any part thereof shall not in any way constitute an infringement or other violation of any intellectual property rights of a third party
11.5.5. the withdrawal of your consent does not affect the processing of your Personal Information as required to protect your legitimate interests or our own legitimate interests or the legitimate interests of a third party to whom the information is supplied.
12. REMEDIES FOR BREACH OF WARRANTIES
In the event of any breach of the warranties set out in clause 11 and the aggrieved Party notifying the infringing Party in writing in accordance therewith, the infringing Party shall use its reasonable endeavours to remedy such breach within 14 (Fourteen) Business Days of receipt of such notice. On the expiry of the 14 (Fourteen) Business Days period ,should the breach not have been remedied, the aggrieved Party shall be entitled to any further remedies at law resulting from a breach of such warranty.
13. NON SOLICITATION
13.1. Neither Party shall, at any stage after the commencement of this Agreement, and for a period of 12 (twelve) months after this Agreement has terminated, employ and/or make any offers of employment to any staff member, who is or has been employed by the other and has been involved in the execution of this Agreement. The aforementioned restraint will not be applicable in the event where the prior written approval to make such an offer has been obtained from the Party who is or has been the employer of such staff member. For the purpose of this clause “ staff member” will include, but not be limited to, permanent employees, part-time employees, and independent contractors.
14. BREACH AND TERMINATION
14.1. Without prejudice to any other remedies which either of the Parties may otherwise have in terms of this Agreement or at law, either Party may terminate this Agreement with immediate effect upon written notice to the other in the event that the other Party:-
14.1.1. breaches any material term of this Agreement and such breach is incapable of remedy or, if the breach is remediable, it continues for a period of 14 (Fourteen) days after written notice requiring the same to be remedied has been given to the Party in breach;
14.1.2. fails to pay any amount due on its due date;
14.1.3. takes steps to place itself, or is placed, in liquidation, whether voluntarily or compulsorily, or under business rescue proceedings, in either case whether provisionally or finally;
14.1.4. enters into any compromise, composition, or arrangement with any of its creditors or attempts to do so;
14.1.5. takes steps to deregister itself or is deregistered;
14.1.6. ceases to carry on its business in the normal and regular manner;
14.1.7. commits an act of insolvency as defined in the Insolvency Act, 1936, as amended, or being a corporate body, commits an act which would be such an act of insolvency if committed by a natural person; and14.1.8. fails to satisfy a judgement against it within 30 (Thirty) days after it becomes aware of the judgement or is refused a rescission of any default judgement, or it permits any of its assets to be attached under a warrant of execution which is not satisfied within a period of 30 (Thirty) days after service thereof.
15. DISPUTE RESOLUTION
15.1. Where a dispute arises between the Service Provider and a Customer, then andin such event, provided that: -
15.1.1. the Services have been rendered and paid for through the ServisorPlatform; and
15.1.2. the dispute arises before the expiration of the Guarantee Period, thenand in such event, Servisor, where possible, may elect to assist theparties in mediating the dispute.
15.2. Upon expiration of the Guarantee Period, Servisor shall in no way be obliged to be involved in dispute resolution proceedings between the Service Provider and its Customer(s).
15.3. Save for those disputes set out under clause 15.1 and 15.2 above arising between the Service Provider and the Customer, any and all disputes arising out of this Agreement, directly or indirectly, including a dispute regarding the validity of this arbitration clause, shall be referred to arbitration to be administered by the Arbitration Foundation of Southern Africa (“AFSA”).
15.4. Each Party agrees that the arbitration will be held in Johannesburg, South Africa as an expedited arbitration in accordance with the then current rules of expedited arbitration of AFSA by 1 (One) arbitrator appointed by Agreement between the Parties. If the Parties cannot agree on the arbitrator within a period of 5 (Five)Business Days after the referral of the dispute to arbitration, the arbitrator will be appointed by the Secretariat of AFSA. The Secretariat may not appoint an arbitrator that is not qualified in the following respects: a senior counsel, with at least 15 (Fifteen) years’ experience as a senior counsel, with demonstrable commercial law experience as a senior counsel and further must be a member of the Johannesburg Society of Advocates.
15.5. The Parties agree to participate in good faith in the arbitration.
15.6. The arbitrator will be entitled to:-
15.6.1. investigate any matter, fact, or thing which he considers necessary or desirable in connection with the dispute;
15.6.2. interview and question under oath representatives of either of the Parties;
15.6.3. decide the dispute according to what he/she considers just and equitable in the circumstances;
15.6.4. make such award, including an award for specific performance, damages ,and penalty and/or otherwise as he/she in his discretion may deem fit and appropriate; and
15.6.5. make a ruling on the costs of arbitration.
15.7. The decision of the arbitrator will be final and binding on the Parties to the dispute and may be made an order of a competent court at the instance of any of the Parties to the dispute.
15.8. Nothing contained in this clause will prohibit a Party from approaching any court of competent jurisdiction for urgent interim relief pending determination of the dispute by arbitration.
15.9. The Parties agree that the demand by a Party to submit a dispute to mediation or arbitration in terms of this clause will be deemed to be the required legal process to interrupt prescription in terms of the Prescription Act, 1969.
16. DOMICILIA AND NOTICES
16.1. The Parties to this Agreement hereby select their respective domicilia citandi etexecutandi for all purposes in terms of this Agreement and/or any claim arisingpursuant hereto as follows:-
16.1.1. Servisor:-Physical:
64 Kent Road Dunkeld
Gauteng
2196
E-mail: cale.hollis@servisor.co.za
16.1.2. The Service Provider:-The Service Provider's physical and email addresses provided during online registration shall serve as their selected domicilium.
16.1.3. A notice given under this Agreement shall be valid and effective only if inwriting.
16.1.4. Either Party may, by notice to the other Party, change their domicilium to another address in the Republic of South Africa.
16.1.5. Any notice given by a Party to the other Party (the “addressee") which is:-
16.1.5.1. delivered by hand at the addressee's chosen physical address to a responsible person between the hours of 08:00(AM) and 17:00 (PM) for the time being, shall be deemed to have been received by the addressee on the date of delivery. Outside of the aforementioned business hours, receipt of delivery shall be deemed to be on the following Business Day;
16.1.5.2. posted by pre-paid registered post to the addressee’s chosen postal address for the time being, shall be deemed to have been received by the addressee 5 (five) days after date of posting thereof;
16.1.5.3. transmitted by e-mail to the addressee’s chosen e-mail address for the time being, shall be deemed to have been received by the addressee on the date of successful transmission.
16.1.6. Notwithstanding anything to the contrary herein, a written notice actually received by a Party shall be valid and effective as if it has been addressed to such party’s chosen domicilium from time to time.
17. CESSION, ASSIGNMENT AND DELEGATION
Neither Party will cede nor delegate any of its rights or obligations under this Agreement without the other Party’s prior written consent first being obtained, as the case may be ,which consent will not be unreasonably withheld. For the purposes hereof, such cession, delegation or assignment will include, without limitation, a merger, sale of assets or business, or other transfer of control by operation of law or otherwise.
18. ENTIRE AGREEMENT
18.1. This Agreement together with the Schedules and any annexes hereto and any other expressly incorporated document constitute the entire Agreement between the Parties hereto and supersedes any prior understandings between the Parties in relation to the subject matter hereof and neither Party may rely on any representation made by the other Party unless such representation is expressly repeated herein. Nothing in this clause will relieve either Party of liability for16fraudulent misrepresentations and neither party will be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.
18.2. No change, alteration or modification to this Agreement will be valid unless inwriting and signed by duly authorised representatives of both Parties.
18.3. If any provision of this Agreement or part thereof will be void for whatever reason ,it will be deemed deleted and the remaining provisions will continue in full force and effect.
18.4. If any term in the Schedules is inconsistent with the terms set out herein, the terms of the clauses will prevail.
19. FORCE MAJEURE AND CAUSUS FORTUITUS
19.1. If force majeure or causus fortuitus ("interrupting circumstances") cause delays in or failure or partial failure of performance by a Party (“affected party”) of all or any of its obligations in terms of this Agreement, then the affected party’s performance of those obligations or the affected portion of this Agreement (as the case may be)will be suspended for the period during which the interrupting circumstances prevail.
19.2. The affected party (on whom the onus will rest) will give written notice of the interrupting circumstances to the other party, specifying the nature and date of commencement thereof, as soon as reasonably possible after the commencement of the interrupting circumstances.
19.3. The affected party will give the other party written notice of the cessation of the interrupting circumstances immediately after such cessation. No Party will subsequently be obliged to comply with the obligations suspended during this period.
19.4. Neither Party will be deemed to be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance or failure to perform any of its obligations hereunder to the extent that such delay or non-performance is due to any force majeure or a causus fortuitus of which it has notified the other Party; and the time for performance of that obligation will be extended accordingly.
19.5. If the force majeure or causus fortuitus in question prevails for a continuous period in excess of 2 (Two) months, the Parties will enter into bona fide discussions with a view to alleviating its effects, or to agreeing on such alternative arrangements as may be fair and reasonable.
19.6. For the purposes of this Agreement, force majeure and causus fortuitus include acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, labour dispute, pandemic, civil strife, riots, insurrection, sabotage, acts of war or public enemy, flood, storm, fire or (without limitation eiusdem generis) any other circumstances beyond the reasonable control of the affected party and comprehended in the term force majeure and causus fortuitus. For the avoidance of doubt force majeure and causus fortuitus do not include any failure by a third party Service Provider of any party unless the third-party Service Provider is itself subject to force majeure and causus fortuitus.
20. RELAXATION
No latitude, extension of time or other indulgence which may be given or allowed by Servisor to the Service Provider in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any of Servisor’s rights arising from this Agreement, and no single or partial exercise of any right by Servisor under this Agreement, will in any circumstances be construed to be an implied consent or election by Servisor or operate as a waiver or a novation of or otherwise affect any of Servisor’s rights in terms of or arising from this Agreement or stop or preclude Servisor from enforcing at any time and without notice, strict and punctual compliance with each provision or term hereof.
21. RELATIONSHIP OF PARTIES
Servisor is an independent service provider and nothing in this Agreement should be construed as constituting an employment relationship between the Parties. The Parties acknowledge that this Agreement is not subject to any employment law.
22. GOVERNING LAW
This Agreement will be governed by the laws of South Africa and the Parties agree to refer to disputes to arbitration as otherwise provided for in this Agreement. The arbitration clause shall not however preclude a party from seeking urgent interim relief from a competent court with jurisdiction.
23. SEVERABILITY
Each provision of this Agreement, together with its Schedules and any annexes, is severable, the one from the other and, if at any time any provision is, or becomes, or is found to be invalid, illegal, or otherwise unenforceable for any reason, by a court of competent jurisdiction, the remaining provisions of this Agreement will continue to be of full force and effect.
24. CREDIT HISTORY
24.1. By registering on the Servisor platform and clicking 'Next,' the Service Provider agrees and consents to allowing Servisor and/or its duly authorised agents to conduct any search(es) against it on platforms such as Windeed and/or Search works and/or any other similar search platforms, as well as through credit bureaus that include, but are not limited to, Experian, Transunion, XDS, Compuscan and/or any other credit bureau(s) that may be applicable in the circumstances. Such search types may include, but are not limited to, credit risk18and report searches.
24.2. The Service Provider accepts that Servisor shall be entitled, upon entering into this Agreement and at any time throughout the subsistence of this Agreement, to conduct the relevant Business Risk-of-Failure Assessment on whatever platforms as it deems necessary from time to time.
25. COUNTERPARTS
This Agreement may be signed in as many counterparts as may be needed, each ofwhich together will constitute one and the same Agreement.
26. COUNTERPARTS
Each Party will bear their own costs of and incidental to the negotiation, preparation ,and execution of this Agreement.
