1.1 Payment terms are strictly 30 days from date of invoice.
1.2 Unless otherwise specified, all fees and expenses set out are exclusive of Value Added Tax (VAT) and other statutory fees and charges. The Customer shall pay all VAT and any other such fees and charges that may be payable on such fees and expenses.
1.3 If any quote, agreement, or piece of work is subject to licensing that comprises foreign exchange rates or is based on foreign 3rd Party Licenses, CWR Mobility has the right to re-negotiate prices with clients should the exchange rate increase by more than 10% of the agreed amount.
1.4 All amounts that are required to be paid to CWR Mobility and that are not paid on the due date shall bear interest at 2% per month. The said interest shall be calculated monthly in arrears from the due date of payment and shall be compounded.
2. Title to the Intellectual Property
2.1 All Intellectual Property belonging to either of the Parties shall remain the property of such Party and the other Party will not acquire any right, title or interest in and to such Intellectual Property.
2.2 Each Party agrees that it shall not duplicate, reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure, or organisation) from any such Intellectual Property which constitutes computer software, except as specifically authorised in writing by the Party owning such property;
2.3 Neither Party shall in any manner alter, remove or affect the display of the respective Intellectual Property rights notices (and disclaimers) of the other Party and/or their vendors and licensors without the prior written approval of the other Party, and their vendors or licensors where applicable; and
2.4 Neither Party may use the other Party’s Intellectual Property, trade names, logo’s or any derivative or component thereof without the prior written approval of the other Party.
3.1 THE CLIENT indemnifies CWR Mobility and its directors, officers, employees, contractors or agents against damage cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the use of CWR Mobility’s services, information, and/or products that is based on THE CLIENT or its Representatives’ conduct, action or inaction.
3.2 Both Parties shall not be liable, whether in contract, delict or otherwise, for any indirect or consequential damages including, but not limited to, loss of data, loss of profits, loss of custom, and/or business foregone, whether foreseeable or not, and whether or not in the contemplation of the Parties at the time of the conclusion of an Agreement, arising from or in connection with this Agreement.
3.3 The aggregate liability of each Party to the other, whether in contract, delict or otherwise, shall not exceed the total amount payable by the Company to the Company in terms of this Agreement except if caused by gross negligence or wilful misconduct.
4. Cession and Assignment
The rights and obligations of THE CLIENT are personal and may not be ceded, assigned, let or otherwise disposed of in any manner whatsoever without the prior written consent of the team.
5.1 Neither Party shall at any time disclose, directly or indirectly, to any other person whatsoever (including to the public or any section of the public) any information concerning this Agreement or any other information of any nature whatsoever concerning the other Party or any company affiliated with the other Party, including but not limited to, its customers, employees or plans, or any other matter regarding the internal affairs of the other Party or its affiliates whether such information or matter is stated to be confidential or not, without the express written permission of the other Party (collectively, “Confidential Information”). This covenant is given by each Party on its behalf and each Party also undertakes to ensure that it will take all reasonable steps to enforce obligations in like form against its directors, shareholders, representatives, agents, and employees.
6. Force Majeure
6.1 Delay or failure to comply with or breach of any of the terms and conditions of this Agreement if occasioned by or resulting from an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war (declared or undeclared), civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing, will not be deemed to be a breach of this Agreement nor will it subject either Party to any liability to the other.
6.2 Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (thirty) days the Parties will consult with each other regarding the future implementation of this Agreement. If no mutually acceptable arrangement is arrived at within a period of 7 (seven) days thereafter, either Party will be entitled to terminate this Agreement forthwith on written notice.
7. Dispute Resolution
7.1 In the event of there being any dispute or difference between the Parties arising out of this Agreement which cannot be resolved amicably by the Parties, the said dispute or difference shall, on written demand by either Party be submitted to arbitration in The Netherlands in accordance with the Netherlands Arbitration Institute (“NAI”) rules, which arbitration shall be administered by NAI.
7.2 Should NAI, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the NAI rules for commercial arbitration (as last applied by NAI) before an arbitrator appointed by agreement between the parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration. In this instance, any party to the dispute shall be entitled to forthwith call upon the chairperson of the Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the parties to the dispute.
7.3 Any party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the NAI rules for commercial arbitration.
7.4 Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
8. Applicable Law
This agreement shall be interpreted and implemented in accordance with the law of the kingdom of The Netherlands.
9.1 If a Party (“Defaulting Party”) commits any breach of this Agreement and fails to remedy such breach within 30 (thirty) business days (“Notice Period”) of written notice requiring the breach to be remedied, then the Party giving the notice (“Aggrieved Party”) will be entitled, at its option:–
9.1.1 to claim immediate specific performance of any of the Defaulting Party’s obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party’s obligations; or
9.1.2 to cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. Neither Party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if:-
i. it is capable of being remedied, but is not so remedied within the Notice Period; or
ii. it is incapable of being remedied or is not remedied within the Notice Period.
9.1.3. the Service Provider is, other than for the purposes of reconstruction or amalgamation, placed under voluntary or compulsory winding up, judicial management or receivership or under the equivalent of any of the foregoing; or
9.1.4. the Service Provider makes any arrangement or composition with its creditors generally, or ceases or threatens to cease to carry on business or disposes of any of its material assets other than in the normal course of business; or
9.1.5. the Service Provider consolidates or merges with or into any entity (other than the consolidation or merger of the Service Provider with an Affiliate of the Service Provider in which the Service Provider is the surviving entity); or
9.1.6. a substantial part of the Service Provider’s property becomes subject to levy, seizure, assignment or sale for or by any creditor or governmental agency.
10.1 Either Party shall be entitled to terminate this Agreement at any time, by providing to the other Party 30 (thirty) days’ prior written notice of such intention to terminate, provided that the provisions of this Agreement shall continue to apply to any active Appendix until such Appendix is terminated.
10.2 Unless otherwise provided for therein, any Appendix may be terminated at any time on 30 (thirty) days’ written notice by the Client to the Service Provider. Any termination of such Appendix shall not affect the operation of the remainder of this Agreement.
10.3 In the event that this Agreement is terminated as described herein, each Party shall forthwith return to the other all papers, materials, and other properties of the other then in its possession, save to the extent that these are needed to carry out the Services in respect of any active Appendix.
10.4 The Client may at any time on written request to the Service Provider, require that the Service Provider immediately return to the Client any of the Data belonging to the Client and may, in addition, require that the Service Provider furnish a warranty to the effect that upon such return, it has not retained in its possession or under its control, either directly or indirectly, any such Data or material. Alternatively, the Service Provider shall, as and when required by the Client on written request to the Service Provider, destroy all such Data and material and furnish the Client with a written statement to the effect that same has been destroyed. The Service Provider shall comply with any request in terms of this clause 4, within seven (7) days of receipt of such request.
10.5 In addition to any provision in this Agreement, the Client shall be entitled to terminate this Agreement, at any time and with immediate effect, without prejudice to any other rights it may have hereunder or in law, by providing the Service Provider with notice of such termination if:
All notices in terms of this agreement shall be in writing addressed to the registered address of the Party and shall be sent by prepaid registered post or shall be physically delivered. Posted notices shall be deemed to have been received on the 5th business day following posting. Any written notice in connection with this agreement may be addressed: in the case of CWR Mobility to:
Coltbaan 1 – 19
and shall be marked for the attention of the CEO.
12.1 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by both the Parties.
12.2 No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless in writing and signed by the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. Failure or delay on the part of either Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
12.3 All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
12.4 Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by either Party without the prior written consent of the other Party, save as otherwise provided herein.
12.5 Any consent or approval required to be given by either Party in terms of this Agreement will, unless specifically stated otherwise, not be unreasonably withheld.
12.6 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.
Each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement