IMD INNOVATIONS PROPRIETARY LIMITED, a company incorporated in accordance with the laws of South Africa, with registration number 2012/003345/07, whose principal place of business is located at Fourways Golf Park, Roos St, Fourways, Johannesburg, 2190 (the “IMD”).

ISTRATGO SOFTWARE APPLICATION is a strategic, cloud-based Human Capital Management platform that aligns business strategy, people performance, and workforce execution in one integrated system. Designed for small, mid-to-large organisations that need more than HR administration, iStratgo helps leaders turn strategic goals into measurable individual performance, using real-time data, clear accountability, and connected execution.

1.1 Definitions

Unless otherwise expressly stated, the words and expressions listed below shall, when used in this Agreement bear the following meanings ascribed to them:

• “Affiliate” means with respect to any Party:

  • any natural persons who are in a familial relationship or are co-dependent on such Party;

  • any person who is not independent of such Party;

  • a trust, in terms of which such Party is the founder and/or beneficiary;

  • a company, partnership or other legal entity which controls, or is controlled by, or which is controlled by an entity which controls, such Party,

  the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise;

• “Agreement” means:

  • These Terms and Conditions together with all annexures attached hereto (if any), as may be amended, revived, replaced and/or reinstated from time to time;

  • Service Provider’s Data Processing Agreement and Privacy Policy;

  • The proposal, where applicable, provided by Services Provider and accepted by Customer/Business Partner;

• “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services;

• “Available” means the Services are available for access and use by the Customer and its Authorized Users;

• “Availability Requirement” means 98% of the time as measured over the course of each calendar month during the term of this Agreement;

• “Authorized User” means the Customer’s employees, consultants, contractors, and agents:

  • who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and

  • for whom access to the Services has been purchased under this Agreement;

• “Confidential Information” means, without limitation, all technical, trade, commercial, financial and management information and secrets of a Party used by that Party in the conduct of its business which is not readily available in the normal course of business to competitors of that Party and all other information, documentation, material or ideas of that Party, in whatever form and contained on whatever media;

• “Data” means any data about the Customer, its customers, suppliers or employees including but not limited to financial information and/or personal information as contemplated in the Protection of Personal Information Act 4 of 2013;

• “Effective Date” means the date set out in Schedule 1;

• “Fee” means the fees set out in Schedule 2;

• “IMD Materials” means the Software, the IMD Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by IMD in connection with the Services or otherwise comprise or relate to the Services or IMD Systems;

• “IMD Systems” means the information technology infrastructure used by or on behalf of IMD in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by IMD or through the use of third-party services;

• “Intellectual Property” means any copyright or industrial property right, whether national or international, including, without limitation, patents, applications for patents, inventions (whether or not patentable), either on equipment (apparatus), process or products, works of authorship, utility models, trademarks, industrial designs whether registered or unregistered, trade secrets, Know-how, designs, copyrights and neighbouring rights, techniques, ideas, concepts, algorithms, and any other intellectual or industrial property;

• “Know-how” is typically not patented, and ordinarily remains as a trade secret of IMD and for the purposes of this Agreement means all information, both technical and otherwise, known to IMD which in any way relates to all or any part of the IMD’s business and includes, any formulae, designs, specifications, drawings, data, manuals or instructions, the operations, management, administration or financial affairs of the IMD’s business, any business plans, strategic plans, forecasts, customer names and lists, sales and marketing information;

• “Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations;

• “Scheduled Downtime” means the scheduled downtime contemplated in clause 4.3;

• “Services” means the software-as-a-service offering to be provided by IMD as described in the proposal attached as Schedule 1;

• “Security Breach” means:

  • any accidental, unauthorized, or unlawful destruction, loss, alteration, or disclosure of or access to the Data;

  • any act or omission that compromises the security, confidentiality or integrity of the Data;

• “Service Level Credits” means the refund to the Customer calculated in accordance with Schedule 1;

• “Service Level Failure” means a material failure of the Services to meet the Availability Requirement;

• “Service Updates” means the changes referred to in clause 3.5;

• “Software” means the iStratgo Cloud software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the software, that IMD provides remote access to and uses as part of the Services to be provided by IMD to the Customer in terms of this Agreement;

1.2 Interpretation

In the interpretation of this Agreement, unless the context of subject matter otherwise requires:

• any reference in this Agreement to “Signature Date” or to the “Date of Signature” shall be read as meaning a reference to the date of signature of this Agreement by the Party signing last in time;

• any reference to an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such enactment;

• if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the interpretation and definitions clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement;

• when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;

• expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;

• the use of any expression in this Agreement covering a process available under law such as a winding up (without limitation eiusdem generis) shall, if any of the Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;

• if any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that term has not been defined in this clause 1;

• the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as 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 that the clauses themselves do not expressly provide for this;

• the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;

• any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated, placed under business rescue proceedings or sequestrated, be applicable also to and binding upon that Party’s liquidator, business rescue practitioner or trustee, as the case may be;

• the words “include,” “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word/s;

• any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;

• the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible;

• “endeavours” or “reasonable efforts” or “acting reasonably” shall be construed as taking all those steps in the power of the relevant party which are capable of producing the desired result, being steps which a prudent, determined and a reasonable person acting in his own interests and desiring to achieve that result, would take, without incurring any material additional costs;

• a default and/or an event of default under this Agreement is “continuing” unless it has been remedied or waived.

2.1 Duration

• This Agreement shall commence on the Signature Date and shall continue in effect until terminated in accordance with the provisions of this Agreement.

• This Agreement may be renewed by mutual agreement between the Parties. Such renewal of the Agreement will only be effective once reduced to writing and signed by both Parties.

2.2 Breach

• Should either Party (the “Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (the “Aggrieved Party”) shall be entitled to give the Defaulting Party 14 (fourteen) calendar days written notice to remedy the breach.

• If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled to:

  • cancel this Agreement against the Defaulting Party; or

  • claim performance by the Defaulting Party of all of the Defaulting Party’s obligations whether or not the due date performance has arrived.

• The aforegoing is without prejudice to the Aggrieved Party’s rights to claim damages or to such other rights as the Aggrieved Party may have at law; provided always that, notwithstanding anything to the contrary contained in this Agreement, the Aggrieved Party shall not be entitled to cancel this Agreement for any breach by the Defaulting Party unless such breach is a material breach going to the root of this Agreement and is incapable of being remedied by a payment in money, or if it is capable of being remedied by a payment in money, the Defaulting Party fails to pay the amount concerned within 14 (fourteen) days after such amount has been determined.

2.3 Termination

• This Agreement shall terminate upon the earliest to occur of:

  • the date stated in Schedule 1;

  • such other date as the Parties shall agree in writing to be the date of termination;

  • a material breach of any of provisions of this Agreement and the Defaulting Party fails to remedy such breach within 10 business days of written notice calling upon such Defaulting Party to remedy such breach; and/or

  • IMD does not provide any Services for a period of at least 12 months.

• Other than as provided in this Agreement, neither Party shall be liable to the other, at law or in equity and whether based on contract, delict or otherwise, for any indirect, incidental, special or consequential damages as a result of the performance or non-performance of the obligations imposed pursuant to this Agreement, irrespective of the causes thereof, including fault or negligence.

2.4 Termination for Convenience

The Customer shall be entitled to terminate this Agreement for convenience by giving IMD 3 calendar months written notice / paying IMD an early termination penalty of the License subscriptions equivalent of three months.

2.5 Consequences of Termination

Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

2.6 Schedules to this Agreement

The Parties shall be entitled after the Signature Date to amend, revive, replace and/or reinstate, any of the schedules to this Agreement. The Parties shall sign such schedules to signify their mutual acceptance of the schedule(s) and the contents thereof.

3.1 Provision of Access

• IMD hereby grants the Customer a non-exclusive, non-transferable right to access and use the Software during the term of this Agreement.

• The Software shall be used solely by the Authorized Users in accordance with the terms and conditions contained in this Agreement and such usage shall be limited to the Customer’s internal usage.

• IMD shall provide the Customer with the Access Credentials from the Effective Date.

• The total number of Authorized Users may not exceed the number set out in Schedule 1, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable under this Agreement.

3.2 IMD Materials License

Subject to the terms and conditions contained in this Agreement, IMD grants to the Customer a non-exclusive, non-transferable license to use the IMD Materials during the term of this Agreement solely for the Customer’s internal business purposes arising out of its use of the Services.

3.3 Service and System Control

• IMD has and will retain sole control over the operation, provision, maintenance and management of the Services and IMD Materials, including the:

  • IMD Systems;

  • location(s) where any of the Services are performed, including in South Africa, in countries outside South Africa, or outside the borders of the country in which the Customer or the Customer’s systems are located;

  • selection, deployment, modification and replacement of the Software; and performance of maintenance, upgrades, corrections and repairs to the Software.

• Unless otherwise explicitly allowed, the Customer will utilize the Services solely for its internal processes and shall not utilize the Services to provide or enable products, services, or value to the Customer’s clients or in any commercial manner in any way unless specifically detailed, specified, and provided for in this Agreement.

3.4 Data Back-up

• IMD shall be responsible for all back-up of data on behalf of the Customer.

• IMD shall automatically back-up data.

3.5 Changes

IMD reserves the right, in its sole discretion, to make any changes to the Services and IMD Materials that it deems necessary or useful to:

• maintain or enhance the quality or delivery of IMD’s services to its customers;

• the competitive strength of or market for IMD’s services;

• the Services’ cost efficiency or performance; and/or

• to comply with applicable law.

3.6 Subcontractors

• IMD may from time to time in its sole discretion engage third parties to perform the Services.

• Notwithstanding any such delegation IMD shall remain accountable to the Customer for the provision of the Services and shall remain liable for any fault, default or flaw as a result of such delegation.

4.1 Service Levels

• IMD shall use its commercially reasonable efforts to make the Services available at least the Availability Requirement excluding unavailability as a result of any of the Exceptions described below.

• For purposes of calculating the Availability Requirement, the following “Exceptions” shall apply:

  • act or omission by the Customer or any Authorized User / access to or use of the Services by the Customer or any Authorized User, or using the Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement;

  • Scheduled Downtime;

  • official public holiday in South Africa; or

  • non-business day being on a weekend,

  accordingly, neither the Services will be considered unavailable, nor any Service Level Failure shall be deemed to have occurred as a result of such Exceptions.

4.2 Service Level Failures and Remedies

• In the event of a Service Level Failure, IMD must issue a Service Level Credit to the Customer during the month in which the Service Level Failure occurred, subject to the following:

  • IMD has no obligation to issue any Service Level Credit unless the Customer reports the Service Level Failure to IMD immediately on becoming aware of it; and requests such Service Level Credit in writing within five days of the Service Level Failure; and

  • in no event will a Service Level Credit for any calendar month exceed 100% of the total Fees that would be payable for that month if no Service Level Failure had occurred.

• Any Service Level Credit payable to the Customer under this Agreement must be issued to the Customer in the next calendar month following which the Service Level Failure occurred.

• Clause 4.2 sets out IMD’s sole obligation and liability to the Customer for any Service Level Failure and the Customer’s sole remedy for any Service Level Failure.

4.3 Scheduled Downtime

• IMD must use commercially reasonable efforts to:

  • schedule downtime for routine maintenance of the Software between the hours of 2 a.m. and 7 a.m. during a business day; and

  • give the Customer at least 12 hours’ prior notice of all scheduled downtime.

• No prior notice shall be given for downtime scheduled during a non-business day period.

4.4 Service Support

The Services include the support services set out in Schedule 3.

5.1 Fees

• IMD’s remuneration shall be as set out in Schedule 2 to this Agreement (the “Fee”).

• The Fee does not include the following:

  • the travel and related expenses referred to in Clause 5.2; and

  • any disbursements to third parties which are incurred by IMD in rendering the Services and not covered by Clause 5.2.

5.2 Travel and Related Expenses

Subject to the provisions of clause 6.1, the Customer shall reimburse IMD for the cost of travel, accommodation and living expenses, transportation allowances, or other normally reimbursable expenses incurred in connection with the Services, provided however that no travel and related expenses, and any disbursements to third parties shall be incurred without the prior written approval of the Customer.

6.1 Invoices and Currency of Payment

• IMD shall submit invoices for all payments to be made by the Customer pursuant to this Agreement. The invoices shall also be in line with the estimation of fees agreed between the Parties.

• IMD shall submit its invoices on an annual basis, except for those payments for which the Parties have specifically agreed a different cycle of payments.

• IMD’s invoices shall be expressed in, and all payments shall be in South African Rands for customers in South Africa and United States Dollar for customers outside South Africa.

• For the avoidance of doubt, IMD shall be responsible for the payment of any taxes to the relevant governmental authority.

6.2 Time of Payment

• The Customer shall make all payments to IMD under this Agreement into the account of IMD, as specified on the invoice and within 30 (thirty) days of the date of the invoice.

• If part of any invoice is disputed by the Customer in good faith, the Parties will seek prompt agreement on such disputed part and the Customer shall, pending such agreement, pay the undisputed portion of the invoice without any delay. If the dispute is settled in favour of the Customer, IMD will issue a credit note for the agreed disputed amount as soon as the dispute has been settled.

7.1 Service Warranty

• IMD shall undertake the Services in accordance with the terms and conditions of this Agreement, and in providing the Services shall exercise all reasonable skill, care and diligence to be expected of a properly qualified professional service provider who has held itself out as competent to perform the Services and who is experienced in providing such Services and otherwise in conformity with IMD’s profession. IMD shall use its best endeavours to ensure that any sub-contractors (if any) perform to the same standard.

• IMD shall undertake the Services in all material respects in accordance with applicable laws, regulations, codes, permits, consents, licences and approvals.

7.2 Personnel

IMD shall provide suitably qualified personnel to carry out the Services and any ancillary tasks.

7.3 Information

• IMD shall at all times be knowledgeable of information in respect of business activities (industry sector or internally) that may impact the provision of the Services and shall take such information into consideration when executing its duties herein.

• The Customer shall where possible provide IMD with information in respect of business activities (industry sector or internally) that may impact the service provision.

7.4 Information Security

IMD represents and warrants that its collection, access, use, storage, disposal and disclosure of Data does and will comply with all applicable privacy and data protection laws, the Customer’s specific instructions, as well as all other applicable regulations and directives.

8.1 The Customer shall:

• make the payments to IMD when due and payable;

• supply all information, materials and documents relating to the Services which is in its possession and which IMD may reasonably require in connection with the Services;

• set up, maintain and operate in good repair all customer systems on or through which the Services are accessed or used;

• provide all cooperation and assistance as IMD may reasonably request to enable IMD to exercise its rights and perform its obligations under and in connection with this Agreement.

8.2 Upon request, the Customer will provide assurance that it is using the Services consistent with the terms of this Agreement and applicable laws, as determined by IMD. Upon reasonable prior written notice, IMD may inspect Customer records, accounts, and books relating to use of the Services solely to ensure the Services are being used in accordance with this Agreement.

8.3 The Customer shall not:

• copy or duplicate any of the Services;

• decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Software is compiled or interpreted, or apply any other process or procedure to derive the source code of the Software, or attempt to do any of the foregoing, and the Customer acknowledges that nothing in this Agreement will be construed so as to grant the Customer any right to obtain or use such source code;

• modify, alter, tamper with or repair any of the Software, or create any derivative product from the Software, or attempt to do so;

• interfere or attempt to interfere in any manner with the functionality or proper working of the Software;

• use the Software for a greater level of usage than that for which Fees have been paid.

• 9.1 Intellectual Property of each Party used for the purposes of this Agreement shall remain as the Intellectual Property of such Party (“IP’s Owner Party”) and the other Party (“IP’s Non-Owner Party”) shall have no right, license, or interest therein, expressly or impliedly except as provided for in this Agreement. As a result, the IP’s Owner Party shall retain ownership of, and all rights, title and interest in and to, their respective Intellectual Property rights.

• 9.2 Nothing contained in this Agreement shall be deemed to be or to contemplate a transfer of any of the IP’s Owner Party’s Intellectual Property to the IP’s Non-Owner Party or any third party.

10.1 IMD warrants and undertakes:

• it shall only process such Data for the purposes of providing the Services and, in so doing, shall act solely on the instructions of the Customer. In particular, IMD shall not transfer, or purport to transfer control of the Data to a third party, except as it may be specifically instructed to do so by the Customer or as may be agreed by the parties;

• it shall keep the Data logically separate to data processed on behalf of any other third party;

• it maintains and shall continue to maintain appropriate and sufficient technical and organisational security measures to protect such Data against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing.

10.2 IMD shall:

• notify the Customer immediately of any Security Breach or as soon as practicable after IMD becomes aware of the Security Breach;

• provide the Customer with a detailed description of the Security Breach, the type of data that was the subject of the Security Breach and the identity of each affected person and any other information the Customer may reasonably request relating to the Security Breach;

• take all reasonable steps to immediately remedy any Security Breach and prevent any further Security Breach.

11.1 Each Party hereby represents and warrants as follows:

• it is a duly formed and validly existing company under the applicable laws of its place of incorporation or formation;

• it has all requisite power and authority to conduct its business, to execute and deliver, and to perform all of its obligations under this Agreement;

• the execution, delivery and performance by it of this Agreement:

  • has been duly authorised by all necessary corporate or organisational action, as the case may be;

  • does not contravene its governing documents or any material provision of any agreement or other instrument to which it is a party;

  • does not and will not conflict with, result in a breach of or constitute (with notice or the lapse of time or both) a default under, its governing documents or any agreement or other instrument; and

  • does not contravene or constitute a violation of the intellectual property or other intangible rights of any third party.

• this Agreement has been duly authorised, executed and delivered by it and constitutes its legal, valid and binding obligation, except insofar as enforcement may be limited by insolvency or other similar laws affecting the enforcement of creditors’ rights generally;

• no authorisation or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance of this Agreement;

• there are no actions, suits or proceedings pending or, to its knowledge, threatened against it in any court or by or before any governmental authority, or any arbitrator, in which there is a reasonable possibility of an adverse decision which could materially and adversely affect its ability to perform its obligations under this Agreement.

11.2 IMD does not warrant that the Software is fit for purpose nor does IMD warrant the business or employee performance results obtained by the Customer by utilising the Software.

• 12.1 The Parties agree that the terms of this Agreement and all Confidential Information of the Parties communicated to them in connection with this Agreement will be received in strict confidence and be used only for the purposes of this Agreement. Each Party will use the same means as it uses to protect its own Confidential Information, but in no event less than reasonable means, to prevent the disclosure and to protect the confidentiality of such information.

• 12.2 The provisions of clause 12.1 do not apply to information which is:

  • publicly known or becomes publicly known through no unauthorised act of either Party;

  • rightfully received by any Party from a third party;

  • independently developed without use of the other Party’s information;

  • disclosed by the other Party to a third party without similar restrictions;

  • required to be disclosed pursuant to a requirement of any governmental authority or any law, so long as the Party required to disclose the information gives the other Party prior notice of such disclosure; or

  • publicly disclosed with the other Party’s written consent in terms of Clause 12.1.

• 12.3 All media releases, public announcements and public disclosures by any Party or their respective employees or agents relating to this Agreement or its subject matter, including without limitation promotional marketing material, shall be co-ordinated with and approved by each Party prior to the release thereof. The foregoing will not apply to any announcement intended solely for internal distribution by any Party or to any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the Party in question.

• 12.4 The above undertakings relating to confidentiality and non-disclosure shall not apply to any Confidential Information which either Party may disclose to its assignees, financiers, representatives and professional advisors, and then only on a strictly need-to-know basis and on the terms and conditions provided for in this Agreement.

13.1 Internet Delays

The Parties acknowledge that the provision of the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Accordingly, IMD shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.

13.2 Indemnification

• Subject to Clause (d), each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party (the “Indemnified Party”) and its officers, directors, employees, shareholders and agents from and against all liability, claims, costs, damages, losses and expenses (including, without limitation, reasonable attorney’s fees) incurred by the Indemnified Party directly attributable to the Indemnifying Party’s:

  • breach of any obligation imposed by law (including without limitation, any breach of environmental laws, rules or regulations);

  • failure to observe or perform any of its obligations under this Agreement, save to the extent that the Indemnifying Party is expressly excused from such obligation hereunder;

  • breach of any warranty or representation given by the Indemnifying Party in this Agreement;

  • causing death or injury to a third party, or the loss of or damage to property of third parties; or

  • negligent act or omission or wilful misconduct, or that of its agents.

• A Party’s liability under this Agreement shall be limited as follows:

  • neither party shall be liable to the other party for consequential, indirect or punitive damages; and

  • neither party shall be liable under this Agreement to the extent that such claim arose by reason of the negligent or intentional acts of the other party.

• All claims under this Clause 13.2 shall be reduced by the extent of the proceeds payable to the Indemnified Party pursuant to any insurance cover of the Indemnifying Party, had the Indemnified Party complied with the applicable conditions of cover.

• Nothing in this Agreement shall exclude or limit the liability of a party for death or personal injury resulting from the negligence or wilful misconduct of, or otherwise due to the wilful misconduct or fraud on the part of that party or any of its officers, directors, employees, shareholders, agents or subcontractors.

• This Clause 13.2 shall survive the expiration or earlier termination of this Agreement.

• 14.1 For the purposes of this Clause, the term “Employees” means any employees directly or indirectly involved in the preparation, negotiation, execution or performance of this Agreement.

• 14.2 Neither Party will directly or indirectly solicit or endeavour to entice away any employees of the other Party for six (6) months after termination of this Agreement. This prohibition will not apply to circumstances where the employee in question is responding to a recruitment advertisement, which is publicly available.

15.1 Notice of Dispute

In the event that there arises between the Parties any question regarding its existence, validity, termination dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (a “Dispute”), the Party wishing to declare a Dispute shall deliver to the other Party a written notice identifying the disputed issue.

15.2 Good Faith Resolution

• If any Dispute arises relating to this Agreement or any claims for damages or otherwise are made as the result of a breach of any obligation hereunder, the Parties shall meet and use their reasonable efforts to resolve such dispute through good faith negotiation.

• Should the Parties fail to resolve such Dispute within seven (7) days of their meeting or such longer period as the Parties may agree, the matter shall be referred to mediation in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”).

15.3 Arbitration

• Should the mediation process fail to resolve such Dispute, the Dispute shall be referred to arbitration in accordance with the rules of the AFSA.

• Each Party shall bear its own costs and the costs of arbitration shall be borne equally by the Parties unless the arbitrator decides otherwise.

• The Parties may be legally represented and may present evidence by independent experts or as otherwise permitted by the arbitrator.

• The aforesaid notwithstanding, any Party shall be entitled to approach any competent court having jurisdiction for urgent relief on an interim basis, pending the finalisation of the resolution of the Dispute.

15.4 Obligations during Disputes

• While a dispute is continuing, the Parties are required to continue to perform their respective obligations under this Agreement until such dispute has been fully and finally resolved.

• Where a dispute has been referred for resolution by arbitration, then neither of the Parties shall be entitled to exercise any rights or election arising in consequence of any alleged default by the other arising out of the subject matter of the Dispute until the Dispute has been resolved by the decision of the arbitrator.

15.5 Proceedings in Confidence

All proceedings held by the Parties for the purpose of resolving disputes shall be held in private and except as permitted or required by any other provision of this Agreement, shall not be open to third parties, it being agreed that for the purposes of this Agreement the record and outcome of any proceedings shall also constitute confidential information of each Party hereto and safeguarded in accordance with the provisions of Clause 12.

15.6 Access to Court

In the event of a Dispute, either Party shall be entitled to approach any court provided that the Dispute has not already been referred to arbitration by any Party in accordance with this Clause 15.

15.7 Equity

The arbitrator need not strictly observe the principles of law and may decide the matters submitted to him according to what he considers equitable in the circumstances.

• 16.1 All notices for all purposes under this Agreement, whether in respect of court process, notices or other documents shall be in writing and shall be considered as properly dispatched if delivered in person, sent by courier, or transmitted by e-mail to the addresses set forth on the signature page below. A Party shall be entitled to change such address by written notice to the other Parties to that effect.

• 16.2 Notwithstanding the provisions of clause 16.1, a written notice or communication actually received by a Party shall be an adequate written notice or communication for the purposes of this Agreement notwithstanding that it was not sent to or delivered at its chosen address for notice.

17.1 Governing Law

Irrespective of the place of contract, place of performance, or otherwise, this Agreement shall be governed by and construed in accordance with the laws of South Africa, without giving effect to the principles of law, such as conflicts of law or choice of law rules, that might make the law of some other jurisdiction applicable.

17.2 Authority

Each individual executing this Agreement on behalf of a Party represents and warrants that he has been fully empowered to execute this Agreement and that all necessary action to authorise the execution of this Agreement has been taken.

17.3 Sole Record of Agreement

This Agreement constitutes the entire agreement between the Parties, and supersedes all prior agreements, understandings or arrangements, whether oral or written, in respect of the subject-matter of this Agreement. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in this Agreement.

17.4 No Amendments Except in Writing

No addition to, variation of, or agreed cancellation of, this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.

17.5 Waivers

No failure or delay by any Party to this Agreement in exercising any right, remedy, power or privilege under this Agreement or any relaxation or indulgence which any Party may grant to any other shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past, or which might arise in future.

17.6 No Waiver Except in Writing

No waiver by any Party of any requirement of this Agreement, or of any remedy or right under this Agreement, shall have effect unless given in writing and signed by such Party. No waiver of any particular breach of the provisions of this Agreement shall operate as a waiver of any repetition of such breach.

17.7 Survival of Obligations

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 and continue in full force and effect.

17.8 Approvals and Consents

An approval or consent given by a Party under this Agreement shall only be valid if in writing and shall not relieve the other Party from responsibility for complying with the requirements of this Agreement nor shall it be construed as a waiver of any rights under this Agreement except as and to the extent otherwise expressly provided in such approval or consent, or elsewhere in this Agreement.

17.9 Time of the Essence

Each date, time or period referred to in this Agreement is of the essence. If the Parties agree in writing to vary a date, time or period, the varied date, time or period is of the essence.

This Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original and all of which together evidence the same agreement.

Start date for the provision of Services (Effective Date): TBA

End date for the provision of Services: TBA

Description of Services: iStratgo HR Software as a Service with access to the Modules and services selected by the client from below:

• People Management

• Performance Management

• Talent Management

• Leave Management

• Recruitment Management

• Projects Management

• Expense Claims Management

• Timesheet Management

• Payroll (3rd Party Payroll)

• Integrations

• E-mail and Online system support service (9am–4pm SAST)

• Once off Online Training

• Once off System Configurations

• Once off setup of all people info, Organisational Units

Number of Authorised Users: As agreed by client

To be agreed with client based on number of users and modules selected.

• E-mail Support – support@istratgo.com – response within 48 hours