Terms of Service

Service delivery and product agreement.

1. The Parties

The Parties to this Agreement are – as per Annexure A hereof 1.1. MyEmployees Business Trust, registration number IT122/20 a Business Trust duly registered in accordance with the company laws of the Republic of South Africa, as Trustee, being duly authorised thereto (“MyEmployees Business Trust”), performing services to clients onsite or electronically and, 1.2. The Client, with particulars as recorded in the Annexure A, herein represented by the signatory signing on its behalf, being duly authorised thereto. 

2. Definitions and Interpretation

2.1. Definitions In this Agreement, unless the context otherwise requires, the following capitalised terms shall have the meanings assigned to them below and cognate expressions shall have corresponding meanings: “Averaging Method”  means the averaging of Contracted Services Delivery Hours actually spent weekly over a period of 12 months. Averaging may be applied when the expected Client Services Delivery Hours will increase above the usual for a period of time and then decrease to, or under, the usual. If this happens, the weekly or monthly Fees may be averaged based on the averaged Contracted Services Delivery Hours. The “Client”, “you” or “your”  refers to the Party described in Annexure A, represented by the Contact Person. “Client Service Delivery Note(s)”  refers to the document used by MyEmployees to record visits to the Client, on-site Service delivery, as well as any other Services and assistance requested or instructions issued by the Contact Person on behalf of the Client. Assistance requested in regard to matters not selected on the access registration form and instructions issued by the Client’s Contact Person will be deemed to be an integral part of Services to be rendered. Client Service Delivery Notes are for the use of MyEmployees Business Trust only. “Confidential Information”  as regards MyEmployees Business Trust includes all intellectual property and marketing, commercial and technical information and agreements, know-how, paper-based and electronic forms and designs, software, photographic, DVD, video and CD-ROM images, all electronic recording media, computer programs, electronic media, data, reports, e-mails, techniques and methods, and other tangible and vocal disclosures about or attached to the Services, the Website and the Data Storage Facility, but excluding information that is in the public domain through the activities of MyEmployees Business Trust. The Confidential Information of the Client is, with the necessary amendment, the same type of property and information as the above concerning the Client’s business. The “Contact Person”  refers to the duly authorised person mandated from time to time by the Client to interact on behalf of the Client with MyEmployees Business Trust and includes any staff member of the Client who signs a Client Service Delivery Note. “Contracted Services Delivery Hours”  means the weekly or monthly number of hours to be spent on the delivery of Services to the Client by MyEmployees Business Trust. The Contracted Services Delivery Hours is exhibited on Annexure A. “Documents Library”  means template forms, contracts, and policies documentation available to the Client on the Website for download and use. Document costs are payable by the Client at the month end after download. “Effective Date”  means the date inserted on Annexure A.  “Electronic Service Delivery”  means any digital application and, or electronic method utilised to perform the services herein. “Employment Equity” means any and all services related to the Employment Equity Act.  “EEA”, “EE”, “Dol”, and “EE Report”  are abbreviations coined and used in the Employment Equity Programs of the RSA Government. “Employment Equity Plan” Means all the required forms, analysis and reports (“EEA1 to EEA17”) as per the Employment Equity Act as amended. “Fees”  means the weekly or monthly amount charged by MyEmployees Business Trust for the delivery of Services selected by the Client. “Hourly Rate”  means the hourly rate in RSA Rand usually charged by MyEmployees Business Trust for the delivery of Services to Clients. The Hourly Rate per specific type of Service selectable is exhibited on the monthly statement of services rendered. “Acceptable Implementation Standard”  The acceptable standard, level, or quality of implementation as a requirement or task in terms of the Act. “Initial Period”  means the period as from the Effective Date until the termination date as set out in Annexure “A” hereto. “Intellectual Property”  means without derogating from the ordinary meaning thereof, all copyrights, all rights conferred by legislation and the common law with regard to inventions, discoveries (including patents), registered and unregistered trademarks and trade names, registered and unregistered designs and models, circuit layouts trade secrets, confidential information, and all rights resulting from intellectual activities in the industrial, science, literary or artistic fields, including the right to apply for any of the above, whether capable of registration in any relevant registration office or not as well as all concomitant proprietary knowledge and intellect of MyEmployees Business Trust who created, developed and continue to grow the Product which shall include all derivative applications of the Product.   “Intellectual Property Rights”  are the Intellectual Property Rights developed or created by MyEmployees Business Trust, of which the ownership in and to shall be and remain vested with MyEmployees Business Trust.  “Employee Management System”  means the document library, Service Delivery Checklists, and Client Service Delivery Notes, and any other administrative documentation. “Minimum Fee”  means an agreed minimum monthly Fee for the delivery of the Services selected, and if applicable, is shown on Annexure A. The “Parties”  means MyEmployees Business Trust, and the Client, and any reference to “a Party” shall refer to one of the relevant Parties as required by the context. “Restricted Period”  means a period of 2 (two) years after the termination of this Agreement, however occasioned. “Services”  refers to the services that MyEmployees Business Trust or its nominated service provider shall deliver to the Client, which Services are those selected on the access registration form by the Client. Services include, for purposes hereof, the use, updating and maintenance of the Data Storage Facility. “Service Delivery Checklist”  refers to the Checklist that serves as a guide for MyEmployees Business Trust’ staff regarding information and duties that must be complied with and performed in respect of the Services. It also shows their progress over time. Service Delivery Checklists are for the use of MyEmployees Business Trust only. “SKILLS DEVELOPMENT”, “SDL”, “WSP”, “ITR”, “ATR”, “SETA”, “ETD”, and “SDF”  are abbreviations coined and used in the Skills Development Programs of the RSA Government. “Submission deadline”  means the deadline on which the necessary Employment Equity and Skills development documentation is to be submitted to the relevant authority as prescribed by the Employment Equity Act 55 of 1998. “this/the Agreement”  means this service level agreement between the Parties together with the Annexures thereto. “the access registration form”  means the access registration form attached hereto as “Annexure A”, which records the Client’s details, Services selected by the Client, the bank account from which Fees may be collected and the Parties’ signatures.  “Use”  means to utilise the Data Storage Facility in order to access, view and print, copy or save stored data and to use the other facilities provided by the Website. The “Website”  means the internet accessible Website of My Employees Business Trust and or the website of My Employees Business Trust 2.2. Interpretation This Agreement shall be interpreted according to the following provisions, unless the context requires otherwise: 2.2.1. References to the provisions of any law shall include such provisions as amended, re-enacted or consolidated from time to time in so far as such amendment, re-enactment or consolidation applies or is capable of applying to any transaction entered into under this Agreement. 2.2.2. References to “Parties” shall include the Parties’ respective successors-in-title and, if permitted in this Agreement, their respective cessionaries and assignees. 2.2.3. References to a “person” shall include an individual, firm, company, corporation, juristic person, and any trust, organisation, association, or partnership, whether or not having separate legal personality. 2.2.4. References to “clauses”, “sub-clauses” and “Annexures” are references to the clauses, sub-clauses and annexures of this Agreement. 2.2.5. References to any other contract or document shall include (subject to all approvals required to be given pursuant to this Agreement for any amendment or variation to or novation or substitution of such contract or document) a reference to that contract or document as amended, varied, novated, or substituted from time to time. 2.2.6. Words in parentheses and italics appearing after a clause reference or a reference to a Schedule are inserted for ease of reference only. If there is any discrepancy between the clause reference and the words in parentheses and italics, the latter shall prevail. 2.2.7. The headings of clauses, sub-clauses and Annexures are included for convenience only and shall not affect the interpretation of this Agreement. 2.2.8. The Annexures to this Agreement are an integral part of this Agreement and references to this Agreement shall include the Annexures. 2.2.9. The Parties acknowledge that each of them has had the opportunity to take legal advice concerning this Agreement and agree that no provision or word used in this Agreement shall be interpreted to the disadvantage of either Party because that Party was responsible for or participated in the preparation or drafting of this Agreement or any part of it. 2.2.10. Words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter. 2.2.11. References to “this Agreement” shall include this Agreement as amended, varied, novated or substituted in writing from time to time. 2.2.12. The number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day. 2.2.13. If any definition in clause 2.1 (Definitions) contains a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to such provision as if it was a substantive provision in the body of this Agreement. 2.2.14. In the event of a conflict between the terms and conditions of this Agreement and the Annexures to this Agreement, the terms and conditions of this Agreement shall prevail. 2.2.15. “Day” means a weekday from Monday to Thursday from 08h00 to 16h30; and Friday from 08h00 to 15h00. 2.2.16. If any term or this Agreement is deemed pro non-scripto or invalid and non-binding by any reason whatsoever, the accord embodied herein, or the remaining provisions of this Agreement will remain in force and effect as an agreement between the Parties who will all be bound to it until the Parties correct the invalidation. 2.2.17. Any provision of this Agreement that 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 for the Restricted Period.

3. Terms and Conditions of this Agreement

3.1. The Client acquires those Services selected in accordance with Annexure A from MyEmployees Business Trust in terms of and subject to the provisions of this Agreement.  3.2. By signing Annexure A on the date indicated, the Parties record that they have agreed as substantiated by this Agreement and have accepted its terms and conditions.  3.3. Upon the occurrence of 3.2 above, it shall serve as prima facie proof that the Client has agreed to the provisions of this Agreement, has agreed to use the selected Services on Annexure A and has agreed to pay MyEmployees Business Trust’ Fees.

4. Agreement regarding Services

4.1. This Agreement replaces all verbal or other representations made, implied or otherwise indicated. 4.2. The person who signs Annexure A on behalf of the Client warrants that it has been duly authorised to enter into this Agreement on behalf of the Client.  4.3. The Client warrants that the Contact Person may supply MyEmployees Business Trust with all information and assistance required to deliver the Services selected, which Contact Person will at all times be sufficiently competent to perform this function. 4.4. The Client warrants that a Contact Person may issue instructions to, and request assistance and other Services on its behalf from MyEmployees Business Trust.  4.5. Any staff member of the Client who signs a Client Service Delivery Note will be deemed to be the authorised Contact Person for that occasion. MyEmployees Business Trust will not be under any obligation to establish whether or not such a person has the necessary authority to issue MyEmployees Business Trust with a Client Service Delivery Note. 4.6. A signed Client Service Delivery Note will serve as prima facie proof of the legitimacy and validity of visits to the Client, on-site Service delivery, instructions issued, and assistance requested. 4.7. MyEmployees Business Trust may choose to delegate the services to an associate, where after the associate will deliver said Services to the Client. MyEmployees Business Trust may in this case also cede and make over to such associate the right to collect payment from the Client for such Services. If ceded or delegated, this Agreement will, as far as Services and Fees are concerned, be deemed to operate between the Client and the associate, while the remainder thereof will continue to apply between MyEmployees Business Trust and the Client for as long as the cession and delegation apply.

5. Duration of Agreement

5.1. This Agreement and the rights and obligations of the Parties under this Agreement shall take effect on the Effective Date and endure for a minimum period of 60 (sixty) months, or the duration of the current Employment Equity Plan (EEA13) of the Client.  5.1.2. When the Employment Equity Plan is renewed this Agreement shall be renewed and the new Effective Date will be the date upon which the Client’ Employment Equity Plan (EEA13) is approved by the Client and shall endure for a minimum period of 60 (sixty) months, or the duration of the new Employment Equity Plan (EEA13) of the Client. 5.2. The Client may withdraw unilaterally from this Agreement within 7 days after the Effective Date. Unilateral withdrawal by the Client will however attract a 10% (ten per cent) charge to defer our administration and set-up costs. After deduction of the charge, MyEmployees Business Trust will immediately refund the balance to the Client in case the Client has already made payment to MyEmployees Business Trust.

6. Termination and notices

6.1. The Client herewith irrevocably agrees that this Agreement can only be terminated as follows  6.1.1. In accordance with clause 5.2; or 6.1.2. within 30 (thirty) days after the date of successful qualification of the learner(s) or apprentice(s) as an artisan; or 6.1.3. with 60 (sixty) days’ termination notice so as to grant MyEmployees Business Trust sufficient time to cancel the mandates in terms of this agreement with the Department of Labour and the Department of Education, if applicable. 6.2. Under no other circumstances, or in any other way and or method may this Agreement be terminated. Termination in any other way or under any other circumstances than those stated in terms of clause 6.1 above, will not be accepted as valid termination, and constitute a breach of this Agreement, and may result in considerable damages to MyEmployees Business Trust. 6.3. Where termination notice is given, irrespective of the reason therefore, MyEmployees Business Trust will terminate the delivery of future Services on the date of receipt of the termination notice, no further information will be supplied to the client or any further Services rendered. 6.4. On the date of termination MyEmployees Business Trust’s mandate with the client will cease and, MyEmployees Business Trust shall cease to act on behalf of the Client’s organisation. 6.5. MyEmployees Business Trust will collect and remove all training documents, records and learner portfolio of evidence, from the Client’s premises.  MyEmployees will terminate the access to the electronic employee management system and delete all records of the Client, learners and mentors on the day of termination. 6.6. If particular provisions of this Agreement endure after its termination, howsoever occasioned, such provisions will apply and will be binding, after termination, as separate and independent covenants between the Parties. 6.7. If a Client wishes to terminate its working relationship with an associate due to irreconcilable differences or Service complaints, such Client may, at the election of MyEmployees Business Trust, be placed with another associate.  6.8. All deferred Fees owed are also immediately due as a single lump sum, the said fees are calculated based on the quoted hours Hourly Rate and the Rate per Person of the term of 3 (three) years or specific outcome. 6.9. Unless otherwise agreed, cancellation and/or termination by the Client of this Agreement shall not be of any force or effect unless reduced to writing and signed by both Parties. For purposes hereof “writing” shall exclude any written document that is in the form, either wholly or partially, of a data message as defined in the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002), and “signed” shall mean a signature executed by hand, with a pen on the official company letterhead and without any electronic process or intervention. 6.10. All notices and any other communications whatsoever, subject to clause 6.9, (including, without limitation, any approval, consent, demand, query or request) by either Party in terms of this Agreement or relating to it shall be given in writing and sent by registered post, or delivered by hand, or transmitted by facsimile or electronic mail to the recipient Party at its relevant address per Annexure A:  6.11. Either Party may, by written notice to the other Party, change any of the addresses at which, or the designated person for whose attention those notices or other communications are to be given. 6.12. Any notice or other communication given by any Party to the other Party which – 6.12.1. is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the addressee on the 17th (SEVENTEENTH) day after the date of posting; or 6.12.2. is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery;  or  6.12.3. is transmitted by electronic mail to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have received by the addressee on the date of transmission as reflected on the sender’s electronic mail records. 6.13. The Parties choose their respective physical addresses in Annexure A as their respective domicilia citandi et executandi at which all documents relating to any legal proceedings to which they are a party may be served. If that address is changed to another address which is not a physical address in the Republic of South Africa, then the original address shall remain the domicilium citandi et executandi of the relevant Party until it nominates a new physical address within the Republic of South Africa in writing, to be its new domicilium citandi et executandi. 6.14 The Client agrees that he/she/it may not terminate this Agreement within 30 (thirty) days after the Submission Deadline as prescribed in terms of the Employment Equity Act. 6.15 Should the Client cancel this Agreement within 30 (thirty) days after the Submission Deadline as prescribed in terms of the Employment Equity Act, the Client shall be liable for the payment of the fees due to MyEmployees Business Trust for the whole initial period, which shall be immediately due and payable to MyEmployees Business Trust, and any further damages that may have been suffered by MyEmployees Business Trust in this regard.

7. Service Delivery Information

7.1. MyEmployees Business Trust shall perform the Services on the basis and in the manner generally set out in this Agreement, and without detracting from the generality of the a foregoing, with specific inclusion of the specifications and conditions as set out in Annexure A. 7.2. MyEmployees Business Trust will deliver the Services during the weekly number of Contracted Services Delivery Hours either on- or off-site during office hours utilising the information supplied by the Client to MyEmployees Business Trust. 7.3. The Client gives permission to MyEmployees Business Trust to access all relative information and records, and will supply MyEmployees Business Trust with all information it may require from time to time to enable it to perform the Services selected by the Client and to complete its tasks.  7.4. All requested information has to be forwarded within a reasonable time by the Client digitally to MyEmployees Business Trust. 7.5. Failure to supply information or to give access constitutes a breach of this Agreement. If this happens MyEmployees Business Trust may, after written notification, suspend some or all Services without deferring Fees until access is given or information is received.  7.6. In the event of said withholding of information or receipt of said information after specified deadlines, the Client incurs fines or penalties, as well as losses suffered by the Client, will be for the account of the Client.  7.7. MyEmployees Business Trust warrant that it will diligently destroy all copies of information supplied to it within 24 (twenty four) hours after submission to the relevant institution. MyEmployees Business Trust shall under no circumstances retain copies of any South African Revenue Service or payroll records. 7.8. MyEmployees Business Trust warrants that it will deliver the Services on the targeted due dates, on condition that the Client perform all its obligations in terms of this Agreement. The Client is not entitled to insist that reports and or any documents be submitted or any other Services be delivered prior to the targeted due dates. 7.9. The client warrants that, it will implement and perform to an acceptable standard, all instructions, tasks and requirements issued by My Employees Business Trust on the targeted due dates, in order to fulfil its obligations in terms of the Act. 7.10. MyEmployees Business Trust does not guarantee the correctness of the documents and reports generated, nor the acceptance thereof by the relevant State Department or the payment of grants due to lack of reliable administrative systems, competence and capacity at such Departments, the unavailability of documentation, as well as disorder caused by the continuous development of new regulations.

8. Intellectual Property

8.1. MyEmployees Business Trust grants the Client a non-exclusive right, for the duration of this Agreement, to make use of MyEmployees Business Trust’ Product, same which shall not be construed as MyEmployees Business Trust making over or transferring any of its rights, including Intellectual Property Rights to the Client.  8.2. The Client warrants that it will not, directly or indirectly, infringe upon any Intellectual Property Rights, nor will the Client tamper with, modify, reverse engineer, or decompile the software or source code of the Data Storage Facility, the Website, or any of the constituent parts, or of which it is part should the Client get access to the same.  8.3. The Client warrants that the Client will not disclose directly or indirectly to any third party any detail about the software or source code of the Data Storage Facility, the Website, or any of the constituent parts, or of which it is part should the Client get hold of the same. 8.4. The warrantees contained above do not apply to any rights, information or Stored Data that are in the public domain. 8.5 The Client warrants that it shall not disclose, publish, utilise, employ, exploit or use the Intellectual Property, Confidential Information or MyEmployees Business Trust’s Product in any manner whatsoever, for any reason or purpose whatsoever, other than the Services rendered by MyEmployees Business Trust to the Client, and in particular not to obtain any commercial advantage over MyEmployees Business Trust and for purposes hereof the Client acknowledges that such information would not have been made available to it but for the purpose of the Services rendered by MyEmployees Business Trust to the Client.

9. Service Fees and other Costs

9.1. As of the Effective Date all Fees become payable; this includes but is not limited to Services, software, implementation, compliance, management, learner, consultation, and training fees.  9.2. The total said Fee becomes payable at the inception within 7 (seven) days from signing of the agreement unless the Client chose to pay for services on a monthly pro rata basis. 9.3. Additional services and or hours delivered to the Client shall be charged at the normal Hourly Rate, in addition to the selected service time. 9.4. MyEmployees Business Trust shall, charge in addition to the Fees, all costs for travel time and accommodation and subsistence. 9.5. If applicable; the content of the document library available for download and or use during the Services for and on behalf of the Client, will be charged at the rate exhibited on the Website, and said cost will be added to the Fees. 9.6. Any additional charges emanating from additional tasks performed for the Client on instruction by it by MyEmployees Business Trust is payable on presentation of an invoice. 9.7. Delivery of Services for more hours than the Contracted Services Delivery Hours, whether at the request of the Client or necessitated by Government Department requirements, may be added to Fees and charged to the Client as a lump sum of using the Hourly Rate and the Rate per Person of the term of 3 (three) years.  9.8. In the event that additional Services hours had to be added to the Contracted Services Delivery hours,  9.9. Fees are levied weekly or monthly in ADVANCE against the Client and are payable weekly or monthly in full to MyEmployees Business Trust. In the event of termination of Services or this Agreement, ALL Fees due will be payable immediately. 9.10. MyEmployees Business Trust will issue 1 (one) invoice per month and 1(one) statement per month, which invoice and statement will be sent to the Client via e-mail. The invoice may contain amounts charged in respect of Fees, documents from the Documents Library and other recoverable costs mentioned in this Agreement. 9.11. Where invoices needs to be split, reorganised or manipulated in any manner of form beyond the normal accounting format the normal Hourly Fee will apply, and will be added to the final amount invoiced to the Client. 9.12. If the Client chose to pay for services, delivered in terms of this Agreement, monthly by method of deduction from the said outstanding total service Fee, then said Fees will be collected using the electronic collection system of MyEmployees Business Trust.  9.13. Should the Client choose to pay the Services and Fees monthly in arrears, the client herewith irrevocable agrees to the electronic stop order collection system of Stephan du Toit and Associates and MyEmployees Business Trust and agrees to the supply of banking details to effect the transactions. 9.14. All fees are payable in advance, the client herewith irrevocable agrees to the electronic stop order collection system of MyEmployees Business Trust and agrees to the supply of banking details to affect the transactions. 9.15. Should it become necessary for MyEmployees Business Trust to demand payment from the Client per telephone or by dispatch of an e-mail, telefax or letter to the Client, then in that event the Client shall pay the cost incurred by MyEmployees Business Trust by reason thereof at a the attorney rate of R5000.00 (Five Thousand Rand) per hour. 9.16. Should it become necessary for MyEmployees Business Trust to instruct their attorneys to collect any outstanding amount from the Client, the Client shall be responsible for all legal costs, including those between attorney and Client, and collection commission. 9.17. Unpaid Fees attract compound interest at a rate of 1% per month on the balance due at the end of each month. 9.18. Set-off of amounts mutually due does not operate automatically between the Parties. MyEmployees Business Trust will not be obliged to repay any amounts paid by the Client prior to termination of the Agreement.

10. Electronic Collection

10.1. If the Client chose, to pay MyEmployees Business Trust weekly or monthly in ADVANCE then all said fees will be collected as one lump sum on the collection date. 10.2. Collection of weekly or monthly Fees utilising MyEmployees Business Trust’ electronic debit order collection facility will be activated on the two last days of the month. Should the said days be public holidays collection will occur on the previous or next available work-day. 10.3. If an excessive amount was collected from a Client’s bank account, the excessive amount will be repaid to the client within 10 workdays. 10.4. If an insufficient amount was collected from a Client’s bank account, the shortfall will be collected at the next month end. 10.5. The Client will not thwart the electronic collection of Fees by MyEmployees Business Trust if that method was chosen. 10.6. If an electronic collection from the bank account of the Client is returned unpaid by its financial institution, the Client shall transfer the unpaid Fees electronically within 3 days to the bank account of MyEmployees Business Trust. 10.7. Alternatively MyEmployees Business Trust may insist that the Client has to summarily transfer a deposit equal to the unpaid amount electronically to the bank account of MyEmployees Business Trust. MyEmployees Business Trust will hold the deposit as security for the due compliance by the Client of his obligation to pay Fees. 10.8. Any cost levied against MyEmployees Business Trust’ bank account by the collection agency due to batch failure, because of the non-payment of Fees, this collection agency cost will be charged against the Client. 10.9. MyEmployees Business Trust does not accept any responsibility and/or accountability for any loss or damages of whatever nature due to unauthorised entry, deductions, collections, fraud, theft, hacking, spying, or any other electronic infringement of the Client’s bank account. 10.10. MyEmployees Business Trust does not accept any responsibility and/or accountability for the origin, source or legitimacy of the funds in the Client’s bank account.

11. Confidentiality

11.1. It is recorded that during the existence of this Agreement, the Parties may gain access to each other’s Confidential Information. 11.2. Each Party undertakes in favour of the other to hold the Confidential Information of the other as confidential during the duration of this Agreement and for the Restricted Period and that it will not publish, disseminate, divest, disclose the same to a third party, or use said Confidential Information for any purpose other than for the objectives recorded in this Agreement. 11.3. Within the Restricted Period the recipient of Confidential Information shall return same, or at the discretion of the original owner thereof, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof. 11.4. The Parties shall prevent disclosure of the Confidential Information, except as may be required by law. 11.5. It is recorded that the following information will, for the purpose of this Agreement, not be considered to be Confidential Information: 11.5.1. information known to either of the Parties prior to the date that it was received from the other party; or 11.5.2. information known to the public or generally available to the public prior to the date that it was disclosed by either of the Parties to the other; or 11.5.3. information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the recipient of such Information; or 11.5.4. information which either of the Parties, in writing, authorises the other to disclose. 11.6. The Client warrants that it will not during the existence of this Agreement and for the Restricted Period, by any means or manner, whether directly or indirectly, for financial or other reward or not: 11.6.1. Develop a competing or similar Product. 11.6.2. Plagiarise or copy the Product in any manner.  11.6.3. Adapt the Product for use in another or a similar application. 11.6.4. Make or attempt to make any changes to the content or functioning of the Product. 11.6.5. Impede or harm the business, Intellectual Property Rights or Confidential Information of MyEmployees Business Trust concerning the Product. 11.6.6. Circumvent the implications, tenet and functioning of this Agreement or the provisions thereof, or induce a third party to do the same. 11.7. The Client understands that non-compliance or a breach of the provisions under this clause 12 may cause MyEmployees Business Trust serious damage and loss of capital and revenue.

12. Continuous Obligations

The obligations under this Agreement are continuous and remain in force and effect until terminated in terms hereof. Certain provisions hereof however endure until the end of the restricted period.

13. Cession

13.1. MyEmployees Business Trust may cede and delegate certain of its rights and obligations originating from this Agreement to a third party or may sub-contract its duties to an associate or third party, on condition that the associate and third party continues to perform in terms of this Agreement. 13.2. If the Client disposes of the Client’s business, MyEmployees Business Trust may, at its election, cancel this Agreement with 60 days (SIXTY) notice, unless the party acquiring the Client’s business acquires it subject to the provisions of this Agreement. 13.3. In the case where Services have been ceded to an associate the Client herewith accepts and approves that MyEmployees Business Trust will collect a percentage of the fee payable by the client to the associate. 

14. Breach

14.1. If, after due notice to rectify has been given to a defaulting Party who is in breach, the defaulting Party fails to comply within 10 (ten) days after notice has been given, then in such event the innocent Party shall be entitled, but not obliged, without prejudice to any other rights it may have, to either: 14.1.1. In appropriate cases demand and obtain specific performance; or 14.1.2. Cancel this Agreement (with written notice dispatched to the defaulting Party) with immediate effect, if the breach is material in nature, or 14.1.3. Otherwise to cancel the Agreement with 60 (sixty) days written notice; and/or to 14.1.4. Recover from the defaulting Party all outstanding costs and damages of whatsoever nature it may have suffered because of the breach or the cancellation of this Agreement. 14.2. The provisions under this paragraph heading are however subject to clause 5 (Duration of the Agreement). 

15. Premature Cancellation of the Agreement

15.1. The Client herewith irrevocably agrees that should the Client elect to prematurely terminate this agreement in breach of clause 6 (Termination), MyEmployees Business Trust shall be entitled to invoice and claim from the Client including but not limited to all pro-rata outstanding Fees from the date of termination until the estimated date completion of – 15.1.1. all Services, for the remainder of the minimum period of this Agreement. 15.1.2. all learning interventions, by MyEmployees Business Trust and 3rd party based service providers; and 15.1.3. all Human Resource related and skills and equity related legal matters.

16. Force Majeure

16.1. If compliance by the Client or the delivery of Services or the use of the Website and employee management system is interrupted, prevented or interfered with by force majeure [war, political disturbance, terrorism, social or civil unrest, events caused by nature, act of God or of government, legislative amendment, industrial disputes, catastrophic systems failure and all other causes beyond the reasonable control of a Party for a period not exceeding 90 (ninety) days, the non-performing Party shall be excused from that performance to the extent of that prevention or interference, but such Party shall use its best endeavours to avoid such force majeure and shall continue to perform in terms of this Agreement.  16.2. During the said 90 (ninety) day period, the Client shall remain liable to pay all prior delivered Services as well as the ongoing software fees.

17. Limitation of liability

17.1. The Client herewith irrevocably indemnifies and holds harmless MyEmployees Business Trust from any and all claims and legal action of any kind if said fines, penalties or losses occurred due to the illegal actions or non-compliance of the Client. 17.2. The Client will not hold MyEmployees Business Trust liable for any damages the Client may suffer, or penalties levied against the Client because of its cessation of Services or its deletion of the Clients’ stored data.  17.3. Notwithstanding any provision to the contrary in this Agreement, the Client shall not be entitled to institute any delictual, contractual or other claim (including any claim pursuant to any indemnity given by any Party under this Agreement) against MyEmployees Business Trust for any indirect or consequential losses or damages (including without limitation, loss of profit, loss of use, loss of production, loss of business, or loss of business opportunity) due to any cause whatsoever.

18. Entire Agreement

This Agreement is the entire agreement between the Parties pertaining to the subject matter thereof. It supersedes any prior arrangements, representations, discussions, undertakings, or communications between the Parties and any promotional information given to the Client.

19. Dispute Resolution

19.1. The dispute resolution procedure contained in this clause 20 (“Dispute Resolution Procedure”) shall apply to any dispute, claim or difference between the Parties arising out of or relating to this Agreement (“a dispute”). 19.2. A dispute will not be deemed to be a dispute until one of the Parties has provided a written notice conveying the nature and scope of the dispute to the other Party. 19.3. All disputes shall first be referred to Honey Attorneys (the “Mediator”) for resolution. An agreement reached during mediation shall be reduced to writing and shall be binding on the Parties. 19.4. If the Parties have been unable to resolve any dispute within 10 (TEN) working days of referral to the Mediator, either Party may refer the matter to arbitration. 19.5. The arbitration shall be conducted in accordance with the provisions of the Arbitration Act, 1965 (Act No 42 of 1965, as amended from time to time), provided that – 19.5.1. a single arbitrator shall be appointed; 19.5.2. the arbitrator shall be a practicing counsel or attorney of not less than 10 (TEN) years standing agreed upon by the Parties within 10 (TEN) days after the date on which the arbitration is called for. 19.6. If the Parties fail to reach agreement within 10 (TEN) days after arbitration has been called for on the arbitrator to be appointed, such arbitrator shall be appointed by the Chair Person for the time being of the Legal Practice Council; 19.7. The arbitration proceedings shall take place in Bloemfontein at a venue and time to be determined by the arbitrator. 19.8. The arbitration proceedings shall be held informally and in a summary manner, and all procedural requirements and formalities shall be determined by the arbitrator. In determining such formalities and procedure, the arbitrator does not need to observe the normal strict rules of evidence or usual formalities of procedure. 19.9. The decision of the arbitrator shall be final and binding on the Parties. 19.10. The cost of the arbitration proceedings shall be borne by the Parties as decided by the arbitrator. 19.11. Notwithstanding the provisions of this clause 20, any Party shall be entitled to approach a competent court of law having jurisdiction to obtain any urgent relief which may be required by such Party.

20. Miscellaneous

20.1. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa. Subject to the provisions of clause 20 (Dispute Resolution), each Party agrees that the Free State High Court, Bloemfontein shall have exclusive jurisdiction to hear and decide any application, action, suit, proceeding or dispute in connection with this Agreement, and irrevocably submits to the jurisdiction of the Free State High Court, Bloemfontein. 20.2. Any relaxation, indulgence or delay (together “Indulgence”) by either Party in exercising, or any failure by either Party to exercise, any right under this Agreement shall not be construed as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against that Party or any other person). 20.3. Whenever possible, each provision of this Agreement shall be interpreted in a manner which makes it effective and valid under applicable Law, but if any provision of this Agreement is held to be illegal, invalid or unenforceable under applicable Law, that illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force. 20.4. Nothing in this Agreement shall be construed as creating a partnership or a contract of employment between the Client and MyEmployees Business Trust. Save as expressly provided for in this Agreement. 20.5. Each Party shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement. 20.6. All travel, subsistence and accommodation costs per occasion, including but not limited to air, land or see travel is for client account and will be quoted prior to service and or product delivery. 20.7. The Client herewith acknowledges, agrees to, and accept that all fees are the minimum Fees and hours that will be spent and invoiced for on a monthly basis and that all additional hours will be added to the minimum and invoiced. Where Services are delivered electronically, no travel or toll fees are applicable, and only the service hours are billable.

21. Data Protection

21.1. Each Party to this Agreement undertakes to, and shall procure that any of its data operators (as that term is defined by the Protection of Personal Information Act 4 of 2013), agents and contractors comply with the Data Protection Legislation and all other applicable data protection legislation and regulations in connection with the performance of its obligations and exercise of its rights under this Agreement. 21.2. Without prejudice to the generality of Clause 22.1, with respect to any processing (as that term is defined by the Protection of Personal Information Act 4 of 2013) of Personal Data under this Agreement each Party to this Agreement shall (and shall procure that any of its data operators, as that term is defined by the Protection of Personal Information Act 4 of 2013, agents or contractors) take appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data supplied to it by another Party to this Agreement and against accidental loss or destruction of, or damage to, that Personal Data in accordance with Condition Seven as set out in the Protection of Personal Information Act 4 of 2013. 21.3. Each Party to this Agreement undertakes: 21.3.1. To obtain the relevant consent as prescribed within the Protection of Personal Information Act 4 of 2013. 21.3.2. To treat the Customer Data as Confidential Information in accordance with this Agreement. 21.3.3. Not to use or knowingly permit any third party to use, or have access to, the Customer Data for any purpose other than as is expressly permitted by this Agreement. 21.3.4. That it shall not use Customer Data held by it pursuant to this Agreement for any purpose that is inconsistent with those purposes notified to the relevant data subject (as defined by the Data Protection Legislation) on or before the time of collection of that Customer Data. 21.3.5. Each Party shall promptly inform the other of any actual or suspected unauthorised access, use or other abuse of the Data and/or any information technology systems relating thereto (“Unauthorised Use”) of which it or any of its contractors becomes aware. 21.3.6. Each Party shall at its cost provide at the other Party’s request all reasonable assistance to the requesting Party in relation to the preparation and presentation of the relevant information to the regulators or as otherwise required by the applicable legislation for the purpose of prosecuting those individuals responsible for an incident of Unauthorised Use for any legal actions that the requesting Party may bring against third parties responsible for an incident of Unauthorised Use or to co-operate with any inquiry from any regulator or authority.

22. Collection Order Instruction

22.1. This signed Authority and Mandate refers to our contract as dated as on signature hereof (“the Agreement”). 22.2. The Organisation with Details herein after referred to as “the Client”

23. Authorisation

23.1. The Client hereby authorise MyEmployees Business Trust to issue and deliver payment instructions to the bank for collection against my / our above mentioned account at my / our above-mentioned bank (or any other bank or branch to which The Client may transfer my / our account) on condition that the sum of such payment instructions will never exceed The Client obligations as agreed to in the Service Level Agreement. 23.2. Commencing on the commencement date and continuing until this Authority and Mandate is terminated by me / us by giving MyEmployees Business Trust notice in writing of no less than 20 (twenty) ordinary working days, and sent by email or delivered to MyEmployees Business Trust’ address indicated above. 23.3. The individual payment instructions so authorised to be issued must be issued and delivered as follows on the last work day (“payment day”) of each and every month commencing on effective date. In the event that the payment day falls on a Saturday, Sunday or recognized South African public holiday, the payment day will automatically be the very next ordinary business day.  23.4. Further, if there are insufficient funds in the nominated account to meet the obligation, MyEmployees Business Trust are entitled to track my account and re-present the instruction for payment as soon as sufficient funds are available in my account. 23.5. The Client understand that the withdrawals hereby authorised will be processed through a computerized system provided by the South African Banks and  23.6. The Client also understand that details of each withdrawal will be printed on my bank statement.  23.7. Each transaction will contain a number, which must be included in the said payment instruction and if provided to should enable MyEmployees Business Trust to identify the Agreement.  23.8. A payment reference is added to this form before the issuing of any payment instruction.  23.9. The Client shall not be entitled to any refund of amounts which MyEmployees Business Trust have withdrawn while this authority was in force, if such amounts were legally owing to MyEmployees Business Trust.

24. Mandate

24.1. The Client acknowledge that all payment instructions issued by MyEmployees Business Trust shall be treated by my/our above-mentioned bank as if the instructions had been issued by me/us personally.

25. Invoices

25.1. The Client will receive 1 (one) invoice and 1 (one) statement per month, prior to the scheduled collection date above herein.  25.2. Should The Client not contest said invoice and accept the invoice without formal notification, the said authorised collection will, without further notice take place on the scheduled date.  25.3. A receipt of the collection will be emailed to the email address supplied above herein. 25.4. Invoice disputes 25.4.1. Should The Client not agree with the invoice amount, and want to contest the invoice, The Client will raise a dispute via a return email with the relevant accounts department person within 72 (seventy two) hours from the date and time of the receipt of the invoice and statement.  25.4.2. The collection of any and all funds will be suspended until such time as the dispute has been resolved satisfactorily.

26. Thwarting collections

26.1. Should The Client thwart the collection of the invoice amount either prior to, during or after the fact, The Client shall be held liable for the cost of the total batch, including but not limited to all damages suffered by all Parties involved on the thwarted batch collection.

27. Data Protection

27.1 In performing its obligations under this Agreement, the Parties will comply with the security and data protection obligations imposed on it in terms of the Protection of Personal Information Act 4 of 2013 (“POPIA”) and other applicable data protection legislation and will implement and maintain all such technical and organisational security procedures and measures necessary or appropriate to preserve the security and confidentiality of the Personal Information in its possession and to protect such Personal Information against unauthorised or unlawful disclosure, access or processing, accidental loss, destruction or damage. 27.2 The Parties hereby indemnify and hold harmless each other, and the Parties’ respective staff, from any and all losses, costs, expenses and damage, including consequential losses and damage as well as penalties and fines arising from a Party’s non-compliance with the provisions of this clause, the Protection of Personal Information Act and other applicable data protection legislation. 27.3 The obligations contained in this clause shall endure, even after termination of this Agreement for whatever reason. 27.4 The Client shall provide MyEmployees Business Trust with the necessary FICA documentation and further information as required by the Financial Intelligence Centre Act 38 of 2001 (as amended) in terms of Annexure “B” hereto in the case where the Client is a Company. 27.5 In addition to the above, the client undertakes to complete the POPIA consent form attached hereto and marked as Annexure “C’ in order for MyEmployees Business Trust to render the services as requested by the Client.

28. Instructions by MyEmployees Business Trust

28.1 In the event that MyEmployees Business Trust directs or instructs the Client to complete work or tasks that are prescribed by law or provides the Client or its affiliates with advice relating to the Client’s compliance with any legal prescriptions which may be applicable as well as the implementation thereof, the Client hereby indemnifies and holds harmless MyEmployees Business Trust, and its respective staff, from any and all losses, costs, expenses and damage, including consequential losses and damage as well as penalties and fines arising from the Client’s failure to complete the tasks and or work as provided by MyEmployees Business Trust or the Client’s non-compliance with any aspect whatsoever with the work and/or suggestions provided to the Client by MyEmployees Business Trust in terms of the applicable legislation.

29. Cancellation

29.1. The Client agrees that although this Authority and Mandate may be cancelled by The Client, such cancellation will not cancel the Agreement.  29.2. The Client shall not be entitled to any refund of amounts which MyEmployees Business Trust have withdrawn while this authority was in force, if such amounts were legally owing to MyEmployees Business Trust. For Copies of Annexure A , B and C please contact employmentequity.co.za