1. DEFINITIONS

Unless the context indicates otherwise, the following words, terms or expressions shall have the meanings assigned to them hereunder in this Agreement and cognate expressions shall have corresponding meanings:

• “Agreement” means this written agency and distribution agreement together with annexures hereto;
• “Business Day” means a day which is not a Saturday, Sunday or a public holiday gazetted in the Republic of South Africa from time to time;
• “Commission” means the commission payable to the Agent of 10% of the net revenue received by EWS in respect of the services supplied by EWS in relation to the Products;
• “Commencement Date” means the Signature Date;
• “Confidential Information” means any information, documentation or data of whatever nature which may have been or which may be obtained by a Party in accordance with or during the course of this Agreement which is not generally available to or known by others, whether in writing, in electronic form or in accordance with discussions, including without limitation the Intellectual Property, financial information, marketing and business strategies, minutes of meetings, corporate memoranda, and other information relating to any existing clients, trade secrets, know-how, strategic objectives, planning or ideas, research, business activities, business relationships, products or proposed products, proposals, pricing details, strategies, schematics, software, computer programmes, operating procedures and methodologies, functional and technical requirements and specifications and any other technical, business, financial or market information and any other information which may reasonably be regarded as being confidential and of a proprietary nature to a Party;
• “EWS System” means the distinctive business format implemented by EWS in connection with its business using without limitation, the Intellectual Property, Confidential Information, Marketing Material and advertising techniques and includes any improvements or variations made to thereto;
• “Intellectual Property” shall mean, but not be limited to, any patent, registered design, copyright, design right, trademark, application to register any of the aforementioned rights, right in the nature of any of the aforementioned rights, trade secrets, rights in unpatented know-how and right of confidence and any other intellectual or industrial property rights of any nature whatsoever belonging to EWS or relating to the Products;
• “Name” means eziWork Solutions;
• “Parties” means EWS and the Agent and “Party” means either one of them as the context may require;
• “Products” means the products of the type and specification listed in the “EWS Partner Price List” made available to the Agent from time to time;
• “Marketing Material” means the promotional products and material used by EWS to promote the Products;
• “Signature Date” means the date of signature of this Agreement by the Party last signing in time, provided that all the Parties sign this Agreement;
• “Territory” means the Republic of South Africa.

2. INTERPRETATION

Unless the contrary intention appears:

• the headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof;
• words importing:
  • any one gender include the other two genders;
  • the singular include the plural and vice versa; and
• natural persons include created entities (corporate or unincorporate) and the State and vice versa;
• 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. Any reference to a particular section in an enactment is to that section as at the Signature Date, and as amended or re enacted from time to time and/or an equivalent measure in an enactment, provided that if as a result of such amendment or re enactment, the specific requirements of a section referred to in this Agreement are changed, the relevant provision of this Agreement shall be read also as if it had been amended as necessary, without the necessity for an actual amendment;
• if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in clause 1, 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 falls on a non-Business Day, in which case the last day shall be the next succeeding Business Day;
• if the due date for performance of any obligation in terms of this Agreement is a day which is a non-Business Day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding Business Day;
• if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
• 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;
• annexures and schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the annexures and schedules;
• reference to day/s, month/s or year/s shall be construed as Gregorian calendar day/s, month/s or year/s;
• the use of any expression in this Agreement covering a process available under South African 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 that term has not been defined in 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 to this Agreement;
• prior drafts of this Agreement shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the Signature Date;
• 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 or sequestrated, be applicable also to and binding upon that Party’s liquidator 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 as, 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 if a wider construction is possible;
• terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry specific practice, will be interpreted in accordance with their generally accepted meanings;
• defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning;
• no provision of this Agreement shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this Agreement;
• the words “clause” or “clauses” and “annexure” or “annexures” refer to clauses of and annexures to this Agreement;
• any reference in this Agreement to:
  • “business hours” shall be construed as being the hours between 08h00 and 16h30 on any Business Day. Any reference to time shall be based upon Central Africa Time (CAT);
  • “days” shall be construed as calendar days unless qualified by the word “Business”;
  • “laws” means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any governmental body; and the common law, and “law” shall have a similar meaning; and
  • “person” means any natural person, company, close corporation, trust, partnership, joint venture, association, unincorporated association, governmental body, or other entity whether or not having separate legal personality.

3. BACKGROUND
   • EWS in its operation of its business has the exclusive distribution rights to the EWS System.
   • EWS wishes to appoint the Agent to sell the Products in the Territory and the Agent wishes to accept such appointment on the terms and conditions set out in this Agreement.
4. APPOINTMENT
   • Subject to the terms and conditions contained herein, EWS appoints the Agent as its non-exclusive agent in the Territory to promote, market and sell the Products in the Territory (the “Appointment”).
   • The Agent accepts the Appointment.
   • None of the provisions of this Agreement shall be construed as creating a contract of employment between the Parties and the Agent shall at all times act as an independent contractor in the carrying out of its obligations in terms of this Agreement.
5. COMMENCEMENT AND TERM

This Agreement shall commence on the Commencement Date and shall endure indefinitely thereafter; provided that either Party may terminate this Agreement on no less than 30 days written notice given to the other.

6. RIGHTS AND DUTIES OF EZIWORKS

Training

• EWS shall at its own cost provide initial training to the Agent in respect of the Products, the installation and maintenance of the Products and the marketing thereof.
• The training in clause 6.1 will take place on days and at a venue to be communicated in advance by EWS to the Agent in writing.
• After the initial training contemplated in clause 6.1, should the Agent wish to receive additional training from EWS, then such additional training will be at the Agent’s own cost.

Supply of products

• EWS shall use all reasonable endeavours to meet all orders for the Products forwarded to it by the Agent.
• EWS shall give notice of any changes to the Product specifications or Product availability to the Agent as soon as is reasonably practicable.

Cession

• EWS shall have the right, without the prior written consent of the Agent, to assign, transfer, mortgage, charge or deal in any manner with this Agreement or any of its rights or obligations hereunder or arising out of this Agreement.
• EWS may, without the prior written consent of the Agent, sub-contract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.

 

7. LOAN EQUIPMENT
   • EWS may, in its sole and unfettered discretion, loan Product(s) as listed in Annexure A, together with the value thereof (the “Loan Equipment”) to the Agent for demonstration purposes. The Agent shall, at its cost, return the Loan Equipment to EWS on receipt of a request from EWS, or upon termination of this Agreement for any reason whatsoever. The Loan Equipment must be returned in good working order and in the same good order and condition in which it was received by the Agent.
   • Should the Agent fail to return the Equipment to EWS as required in terms of clause 6.8, the Agent will be deemed to have purchased the Loan Equipment at the then current list price of EWS. For the avoidance of doubt, the Loan Equipment shall remain the property of EWS until it has been paid for in full by the Agent.
   • In the event that the Loan Equipment is lost, damaged or stolen while in the Agent’s possession, the Agent shall be responsible for all costs associated with replacing or fixing the Equipment to EWS’s satisfaction.
8. AGENTS OBLIGATIONS
   • The Agent shall market the Products only from EWS, and shall not during the currency of this Agreement, nor for a period of 12 (twelve) months after expiry or early termination of this Agreement, distribute, manufacture, promote, advertise, endorse, install, purchase, trade or sell any goods which compete with the Products.
   • The Agent shall not:
     • represent itself as an agent of EWS for any other purpose; or
     • do anything which might jeopardise the good reputation of EWS and its Products; or
     • pledge EWS’s credit; or
     • give any condition or warranty or make any representation on EWS’s behalf; or
     • commit EWS to any contracts; or
     • directly promote the sale of Products outside the Territory; or
     • sell Products for resale outside the Territory; or
     • during the period of this Agreement or after its termination for any reason whatsoever, dispute or assist anyone else to dispute the validity of EWS’s ownership of any trademark, patent, design or copyright used by EWS in connection with the Products.
   • The Agent shall not without EWS’s prior written consent make any promises or guarantees about the Products beyond those contained in the Marketing Material.
   • The Agent hereby undertakes and agrees that at all times during the Term it shall:
     • use its best endeavours to promote the distribution and sale of Products in the Territory;
     • observe all directions and instructions by EWS in relation to the marketing of the Products, and adhere to all of EWS’s internal controls, administrative procedures, reporting procedures and other requirements prescribed by EWS in writing from time to time;
     • keep full and proper records clearly showing all enquiries, quotations, transactions and proceedings relating to the Products;
     • allow EWS, on reasonable notice access to its records relating to Products for inspection.
   • The Agent shall not, in any manner, directly or indirectly, circumvent, or attempt to circumvent the provisions of this Agreement, including, without limitation through the use of persons who are not party to this Agreement and/or the use of other entities in which the Agent and/or family members or relatives have a direct or indirect interest or relationship.
9. COMMISSION
   • The Parties agree that the Agent shall earn Commission on the services supplied by EWS in respect of each Product sold by the Agent.
   • The Agent will not earn any Commission on the hardware portion of the Product.
   • The Agent shall not be paid the Commission unless EWS has been paid in full by the end-user, and the Agent shall only receive Commission for so long as the end-user remains an active user of the EWS System.
10. RIGHT OF USE OF NAME
    • EWS hereby grants the Agent a right in the Territory to use the Name in the promotion, advertisement and sale of Products.
    • No other trademark or logo may be affixed to or used in relation to the Products.
    • The Agent shall not use in its business any other trademark confusingly similar to the Name and shall not use the Name or any other word confusingly similar to the Name as, or as part of, its registered name or trading name.
    • The Agent shall not sub-license, transfer, hypothecate, encumber or otherwise deal with its rights of use of the Name granted under this Agreement.
    • The Agent shall promptly give notice to EWS if it becomes aware of any infringement or suspected infringement of the Name or any other intellectual property rights relating to the Products within the Territory.
11. ADVERTISING MARKETING AND MERCHANDISING
    • EWS has developed the EWS System for the Products in the Territory and the Agent hereby agrees and undertakes to use its best endeavours to adhere to the EWS System when carrying out all of its duties and obligations pursuant to this Agreement.
    • The Agent shall at all times use its best endeavours and its own resources, testers and the Marketing Material to market and promote the Products in order to achieve maximum possible sales.
    • EWS shall provide the Agent with appropriate advertising and Marketing Material and/or support as may be reasonably requested by the Agent from time to time.
12. PRICE, PAYMENT AND ORDERS
    • The prices to be paid for the Products are to be EWS’s price list as notified to the Agent by EWS from time to time.
    • EWS shall give the Agent 30 (thirty) days written notice of any rises in the Product prices.
    • Any and all expenses, costs and charges incurred by the Agent in the performance of its obligations under this Agreement shall be paid by the Agent.
13. CONDITIONS OF SALE

EWS’s conditions of sale in force from time to time shall apply to all sales by EWS to the Agent under this Agreement. Should there be any conflict between the conditions of sale and the terms of this Agreement, this Agreement shall prevail to the extent of such conflict.

14. LIABILITY AND INDEMNITY

The Agent hereby indemnifies and holds EWS harmless in respect of any and all liabilities, losses, damages, costs and expenses in relation to any claims, actions or demands brought against EWS (including any claim in contract or delict) based on or resulting from any act or omission of the Agent, its employees, subcontractors or agents.

15. CONFIDENTIALITY
    • Subject to clause 15.2, each Party undertakes that it shall not at any time, disclose to any person any Confidential Information concerning the Business, affairs, Agents, clients or suppliers of the other Party.
    • Each Party may disclose the other Party’s Confidential Information:
      • to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the Party’s obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this clause 15; and
      • as may be required by law, court order or any governmental or regulatory authority.
      • No Party shall use any other Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.

16. SUB-DISTRIBUTORS AND AGENTS
    • The Agent shall not without the prior written consent of EWS, assign, transfer, mortgage, charge or deal in any manner its rights/obligations hereunder or arising out of this Agreement (or any document referred to in it), or purport to do so.
    • The Agent shall not be entitled to appoint sub-agents without prior written consent of EWS. If EWS does grant its permission in respect of sub-agents, the Agent shall:
      • procure that the sub-agents comply with the terms of this Agreement;
      • provide EWS with details of all sub-agents including names, addresses, telephone numbers, email addresses.

17. AGENT NOT AN AGENT OR PARTNER OF EZIWORKS

Nothing in this Agreement will be construed as:

• constituting the Agent as agent of EWS or granting any authority to the Agent to represent the EWS or to give any warranties or representations of whatsoever nature on behalf of EWS; or
• constituting a partnership or joint venture between the Agent and EWS.

18. ACKNOWLEDGEMENT BY THE AGENT

The Agent acknowledges that the success of the business venture undertaken by him in terms of this Agreement depends to a large extent upon his own business ability. The Agent acknowledges that EWS has made no warranty, express or implied, as to the potential success of the EWS System.

19. DOMICILE
    • For the purposes of the giving of notices and the serving of legal process in terms of this Agreement, the Parties choose as domicilium citandi et executandi (“domicilium”) the address and contact details specified on the first page of this Agreement.
    • Any Party may at any time, by notice in writing to the other Party, change its domicilium to any other address, which is not a post office box or post restante in South Africa.
    • Any notice given in connection with this Agreement shall, save where a particular form of notice is stipulated, be:
      • delivered by hand; or
      • sent by courier; or
      • sent by email;

to the domicilium chosen by the Party concerned.

• A notice given as set out above shall be deemed to have been duly given (unless the contrary is proved):
  • if delivered by hand, on the date of delivery; or
  • if sent by courier, on the date of delivery by the courier service concerned; or
  • if sent by email, on the expiration of 1 (one) Business Day after the time of transmission.
• Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered to its chosen address.

20. DEFAULT

If a Party commits any breach of this Agreement (“Defaulting Party“) and fails to remedy such breach within 5 (five) 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:

• to claim immediate specific performance of all or 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
• 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.

21. ARBITRATION
    • If any dispute arises between Parties in relation to any matter pertaining to, or arising out of this Agreement, or arising out of the termination thereof, then such dispute shall, at the instance of any Party, be referred to arbitration by a single arbitrator, in accordance with the provisions of this clause 21.
    • The arbitration shall be held:
      • at Durban;
      • subject to the provisions of this clause 21, in accordance with the Arbitration Foundation of South Africa (“AFSA”) rules relating to expedited arbitrations (“Rules”);
      • as soon as is reasonably practicable in the circumstances and with a view to it being held and completed as soon as possible.
    • The arbitrator shall be a retired Judge of the High Court of South Africa or a practicing senior counsel of at least 10 (ten) years standing as such, agreed upon in writing between the Parties, provided that should the Parties fail to agree on an arbitrator within 7 (seven) days after the dispute is referred to arbitration in terms of clause 21.1, the arbitrator shall, at the request of either Party, be appointed by the President for the time being of AFSA or its successor.
    • The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if each is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.
    • Subject to each Party’s rights of appeal in accordance with the Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any Court of competent jurisdiction.
    • The provisions of this clause 21:
      • constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
      • are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement;
      • shall not preclude any Party from obtaining interim relief on an urgent basis from a Court of competent jurisdiction pending the decision of the arbitrator.

22. WHOLE AGREEMENT, NO AMENDMENT
    • This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
    • No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
    • No oral pactum de non petendo shall be of any force or effect.
    • No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Agreement.
    • To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
23. INDEPENDENT ADVICE

Each of the Parties hereto acknowledges that it has been free to secure independent legal and/or other advice as to the nature and effect of all of the provisions of this Agreement and that it has either taken such independent legal and/or other advice or dispensed with the necessity of doing so.

 

24. GENERAL
    • AGREEMENT BINDING ON SUCCESSORS IN TITLE

This Agreement shall be binding on the administrators, executors, heirs, business rescue practitioners, judicial managers and other successors-in-title of the Parties, who shall not be entitled to terminate this Agreement merely by reason of the death of a Party.  Every Party indemnifies the others against any loss or damage of any nature whatsoever which the others may sustain if this Agreement is not binding for any reason on the former’s administrators, executors, heirs, judicial managers and/or other successors-in-title.

• DISCLOSURE NOT EXCLUDED

Nothing contained in this Agreement shall be construed as relieving any Party from any duty of disclosure which either Party may have at common law or the consequences of any non-disclosure in breach of such duty.

• INDULGENCES

No indulgences granted by either Party shall constitute a waiver or abandonment of either of the Parties rights under this Agreement. Accordingly, neither Party shall be precluded because of having granted that indulgence, from exercising its rights which may have arisen in the past or which may arise in the future under this Agreement.

• NO REMEDY EXCLUSIVE

                No remedy granted by this Agreement shall exclude any other remedy available at law.

• SEVERABILITY

Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction

• EXCLUSION OF ELECTRONIC SIGNATURE

The reference in this Agreement to “writing” shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.

 

• CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS

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.

25. COSTS
    • Each Party shall be liable for all costs incurred by the other Party in the recovery of any moneys hereunder (including collection charges and attorney and own client costs) whether incurred prior to or during the institution of legal proceedings, including any appeals, or if judgment has been granted, in connection with the satisfaction or enforcement of any such judgment.
    • Each of the Parties shall bear its own costs of and incidental to the preparation, negotiation and execution of this Agreement.
26. SIGNATURE
    • 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.
    • The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial the pages of this Agreement and/or have its signature of this Agreement verified by a witness.