Terms of Service

1.

DEFINITIONS

1.1 Agreement” means the agreement entered into between the Parties comprising of these Terms and Conditions of Service, the License, Privacy Policy and the Website Legal Notice all of which may be amended by Prefix from time to time and are available on the Website;
1.2 Account” means the Temporary and Permanent Accounts as more fully detailed hereunder, or either one of them as the context requires;
1.3 Aggregated Client Data” means the statistical data compiled by Prefix during the course of this Agreement;
1.4 Client” means the person or legal entity who shall utilise the Software and Services;
1.5 Client Data” means the Client’s data submitted by it to Prefix and as hosted on the server including text and multimedia, copies, templates, images, video files, audio files, Contact and Subscriber information, Mailing Lists and other information supplied by the Client to Prefix in any other format which the Client’s data may be hosted in;
1.6 Confidential Information” means any information belonging to the Client, including the Client Data which it supplies to Prefix, which is not:
1.6.1 Rightfully received by Prefix from a third party;
1.6.2 Publicly known or becomes publicly known through no unauthorised act of Prefix;
1.6.3 Independently developed by Prefix without use of the Client’s information
1.6.4 Disclosed by a Client to a third party without similar restrictions;
1.6.5 Required to be disclosed pursuant to a requirement of a governmental agency or any applicable law, so long as Prefix gives the Client prior notice of such disclosure; or
1.6.6 Publicly disclosed with the Client’s written consent.
1.7 Contacts/Subscribers” means the Client’s communication recipients;
1.8 Downtime” means a period of time during which the Service and/or Software is not operational, whether due to malfunctioning or maintenance being carried out in respect of any information technology system or part thereof;
1.9 ECT Act” means the Electronic Communications and Transactions Act 25 of 2002;
1.10 Effective Date” means the date on which Prefix commences rendering the Services;
1.11 Free Introductory Offer/Free Trial” means the free introductory offer made available by Prefix to the Client, as more fully detailed in clause 4.2 below;
1.12 Intellectual Property” means all copyright, trademarks, designs, patents and the like recognised as a class of intellectual property;
1.13 Licence” means licence granted by Prefix to the Client as detailed in the License forming part of this Agreement;
1.14 Mailing List/s/Distribution Lists” means the list/s of e-mail recipients compiled by the Client in relation to each instance of the Client’s use of the Services;
1.15 Package” means the Everlytic package selected by the Client in terms of which the Software and Services shall be supplied to it by Prefix and may be in the form of a month-to-month, or pre-paid package;
1.16 Parties” means Prefix and the Client and “Party” shall mean either one of them as the context requires;
1.17 Permanent Account” means with reference to the Software and the Services, the unique profile of the Client relayed in terms of the Software, which identifies and describes the Client’s use of the Services, its preferences and settings and which includes the Client Data;
1.18 Prefix” means the service provider Prefix Technologies (Pty) Ltd, a private company duly incorporated in terms of the laws of the Republic of South Africa with registration number 2010/003671/07, with its principal place of business situated at Ground Floor, Rosebank Corner, Corner Jan Smuts and 7th Avenue, Parktown North, Johannesburg, and whose further contact details are contained in the Website Legal Notice;
1.19 Personal Information” means information about an identifiable individual as defined more fully in the Promotion of Access to Information Act 2 of 2000 and includes personal information regarding the Client, its Contacts and Subscribers and the Client Data;
1.20 Send Limit” means the maximum number of e-mails which the Client may distribute each month for the duration of this Agreement as determined by the applicable Subscriber Limit;
1.21 Service/s” means the bulk e-mail and text message software services supplied by Prefix to the Client in terms of this Agreement and incorporating limited licensed use of the Software by the Client;
1.22 SMS” means a text message sent using the text messaging service component of phone, web, or mobile communication systems, using standardised communications protocols that allow the exchange of short text messages between fixed line or mobile phone devices;
1.23 Software/Everlytic” means the Everlytic software, which comprises of bulk e-mail and SMS message distribution web-hosted software developed by Prefix and licensed by Prefix to the Client;
1.24 Subscriber Limit” means the maximum number of Subscribers and/or Contacts per Mailing List which the Client has elected/is entitled to distribute e-mail correspondence to each month for the duration of this Agreement in accordance with the Package selected by it. For avoidance of doubt it is noted that each time that a Subscriber/Contact appears on a Mailing List such Subscriber/Contact will be counted as a Subscriber for purposes of determining the Subscriber Limit;
1.25 Temporary Account” means with reference to the Software and the Services, the unique profile of the Client relayed in terms of the Software to enable the Client to make use of the Free Introductory Offer and which identifies and describes the Client’s use of the Services, its preferences and settings and which includes the Client Data;
1.26 User/s” means the Client’s agreed allocated and registered number of users of the Software and the Services, the identities of whom shall be provided by the Client in writing to Prefix on a regular basis;
1.27 Website” means Prefix’s Everlytic Website located at http://www.everlytic.com;
1.28 Website User” means any person or entity who views any page/s which form part of the Website, including any approved and authorised representative of such person or entity, including a technician in relation to an electronic security system and who accesses the Website and utilises the functions thereof or any person who enters or uses the Website, notwithstanding that such a person only visited the homepage of the Website.

2.

REGISTRATION

2.1 Prefix owns and supplies the Software and Services. By registering with Everlytic, the Client understands that it is contracting with Prefix.
2.2 Prefix enables the Client to register to receive the Free Introductory Offer and/or a Package online in order to enable the Client to receive and make use of the Software and Services. By registering to Everlytic the Client understands that it is entering into an electronic transaction.
2.3 The Client warrants that it has the legal capacity and authority to enter into such transaction and the Client consents to the terms set out in the Agreement.
2.4 The Client warrants that all the Personal Information provided by it during the registration process is true, correct and accurate. The Client undertakes to provide Prefix with written notification, should any of the Client’s Personal Information, required during the registration process, change.
2.5 The Parties agree that the terms of any separate service level agreement entered into between them shall be read together with the terms of this Agreement. In the event of an inconsistency between the aforesaid two agreements the terms of the signed service level agreement shall override the terms of this Agreement to the extent of the inconsistency.

3.

ACCOUNT

3.1 Upon registration by the Client for a Temporary Account provided in terms of the Free Introductory Offer, Prefix shall assist the Client in the set up of a Temporary Account and the Client shall be granted secure access to the selected Software and Services.
3.2 Upon registration by the Client for a Permanent Account and receipt of payment from the Client, Prefix shall assist the Client in the set up of a Permanent Account as provided for in relation to the Package which the Client has selected and the Client shall be granted secure access to the selected Software and Services.
3.3 The Client shall be assigned a username and password for its Account, which the Client shall keep confidential. The Client understands and accepts that it shall be held responsible and/or liable for all the activities that occur under its Account. If the Client’s Account confidentiality has been compromised, it is the Client’s responsibility to notify Prefix immediately in writing and Prefix shall assist with the resetting of the Client’s username and password.

4.

DURATION

4.1 The duration of this Agreement is dependent upon the expiration of the Free Introductory Offer, alternatively on the Package selected by the Client as the case may be.
4.2 The following terms apply to the Client when making use of the Free Introductory Offer:
4.2.1 The Client shall be supplied with 100 (one hundred) free email credits;
4.2.2 The aforesaid e-mail credits do not expire, save for upon termination of the Temporary Account as provided in 4.2.3 below;
4.2.3 The Temporary Account shall be terminated within 30 (thirty) days of the registration of the Temporary Account and all e-mail credits will be cancelled
4.3 The following terms apply to the Client in accordance with the Package which the Client has selected:
4.3.1 A Month to Month Package:
4.3.1.1 This Package shall afford the Client access to utilise the Services in accordance with the applicable Subscriber Limit and related Send Limit stipulated in the Package;
4.3.1.2 The Client shall be entitled to add and/or unmap/delete Subscribers/Contacts to and from the Mailing List, which may result in a higher or lower Subscriber Limit becoming applicable in accordance with the provisions of clause 8 below;
4.3.1.3 Should the Client exceed the Subscriber Limit, or the related Send Limit, in any month the Client shall be blocked from making further use of the Services and Software until such time as the Client has upgraded to a higher Subscriber Limit, alternatively purchased pre-paid credits from Prefix and Prefix shall render a subsequent invoice in arrears in this regard, which invoice shall be payable within 7 (seven) days of despatch to the Client and which shall be sent to the Client electronically. For avoidance of doubt it is agreed that in such instances all future invoices rendered by the Service Provider shall be in accordance with the aforesaid increased Subscriber Limit unless the Client subsequently exceeds such increased Subscriber Limit as well;
4.3.1.4 Prior to exceeding the Subscriber Limit in a month the Client may elect to purchase pre-paid e-mail credits as referred to in clause 4.3.2 below, the cost of which shall be stipulated on the Website, instead of exceeding the Subscriber Limit and being subjected to the increased Subscriber Limit as per clause 4.3.1.3 above;
4.3.1.5 The payment of the charge/s shall be due irrespective of whether or not the Client utilises the Service subscribed for;
4.3.1.6 Any unused e-mail credits do not carry over to the following month, save for pre-paid e-mail credits purchased by the Client in terms of clause 4.3.2 below which e-mail credits shall not expire at the end of the month in which they were purchased.
4.3.2 Pre-paid Package:
4.3.2.1 For a set fee the Client shall be supplied with a certain amount of email and/or SMS credits;
4.3.2.2 The aforesaid credits do not expire and the Agreement shall continue until the last credit has been utilised by the Client;
4.3.2.3 Should the Client purchase an additional pre-paid Package/s, the Client shall be entering into a new and separate agreement with Prefix, which agreement shall be governed by the Terms and Conditions of Service in force at the time that the Client purchases the additional pre-paid Package

5.

PAYMENT

5.1 All payments must be effected by the Client in advance.
5.2 The payment mechanisms available to the Client are determined by the type of Package which the Client selects:
5.2.1 The Client may effect payment in respect of the month-to-month Packages by credit card or debit order at the Client’s election;
5.2.2 The Client may effect payment in respect of the prepaid Packages by credit card only.
5.3 In the event that the Client elects to effect payment by means of credit card the Client shall authorise Prefix and/or its payment facility supplier to charge the credit card submitted by the Client as the mode of payment for the Package selected by the Client. The Client warrants that it is the authorised user of such credit card.
5.4 In the event that the Client elects to effect payment by means of debit order the Client shall authorise Prefix and/or its payment facility supplier to debit the account submitted by the Client as the mode of payment for the Package selected by the Client. The Client warrants that it is the authorised user of such account.
5.5 Prefix uses Netcash as its payment facility supplier and thus places reliance on the security protocols affected by Netcash. Further information regarding the security protocols implemented by Netcash is available at the Netcash website http://www.netcash.co.za.
5.6 Transactions shall only be processed upon proof and/or receipt of payment by Prefix. Once the Client’s payment has been verified Prefix shall supply and/or provide access to the relevant Software and Services available to the Client in accordance with the Package selected by the Client.
5.7 All payments made to Prefix must be made in South African Rands (ZAR), alternatively in the official currency on the country in which the Client is located in the event that the Client is not located in South Africa.
5.8 Prefix reserves the right in its sole discretion, without prejudice to any of its other rights as contained in this Agreement, to suspend the Services and the Client’s access to the Software in the event that the Client fails to effect timely payment of any amounts due owing and payable by it to Prefix until such time as payment is received in full by Prefix.

6.

PRICING

6.1 Prices are subject to change, all of which pricing is available upon request from our billing department: billing@everlytic.com
6.2 In the event that the Client has selected:
6.2.1 A month-to-month Package, the price of the Package selected, as determined by Prefix at the beginning of each month, shall be applicable to the Client’s transactions for that month. The Client shall be advised of price increases on the month-to-month Packages by means of email;
6.2.2 A prepaid Package, the price of the Package selected, as determined by Prefix at the time that the Client purchases the Package shall be applicable.

7.

ACCESSIBILITY

7.1 The Client shall be granted secure access to latest version of the Software and Services upon the completion of the registration process, effecting payment (when registering for a Permanent Account) and the creation of the Account.
7.2 From the Effective Date, access to the Services shall be uninterrupted, save for interruptions occasioned by scheduled maintenance, power outages, upgrades and/or the like, disruptions attributable to third party dependencies, security issues, virus attacks, spam issues and/or attacks and other force majeure events;
7.3 Prefix undertakes to implement all reasonable measures (to the extent that it is within its power to do so) to ensure that all interruptions occur during off peak times, specifically outside of business hours in the Republic of South Africa;
7.4 Notification of interruptions to the Service shall be provided by Prefix to the Client via e-mail to the extent possible.

8.

DOWNGRADING OR UPGRADING MONTH-TO-MONTH PACKAGE

9.

TERMINATION

9.1 In the event that the Client selected a month-to-month Package either Party may terminate the Agreement on 30 (thirty) day’s written notice to the other Party. The Parties agree that all Software and Services utilised by the Client during the notice period shall be charged for.
9.2 In the event that the Client selected a pay-as-you-go Package the Agreement shall terminate automatically as soon as the Client has utilised all of the credits available to it in terms of the Package selected
9.3 Prefix may immediately terminate this Agreement if the Client violates the terms of this Agreement.
9.4 In the event that Prefix has failed to provide the Software and Services for a continuous period of 30 (thirty) days or more, the Client is entitled to cancel the Agreement on 7 (seven) days written notice to Prefix.
9.5 On termination of this Agreement:
9.5.1 Prefix shall de-activate the Client’s access and other rights in relation to the Software and the Services; and
9.5.2 On condition that all monies owing to Prefix have been paid in full, the Client shall have access to the Client Data for a period of 21 (twenty one) days following the date of termination of the Agreement for purposes of retrieval or transfer thereof, where after Prefix shall delete the Client Data and shall only retain Aggregated Client Data to be used for statistical purposes;
9.5.3 The Licence shall be immediately revoked and the Client shall cease permitting access to the Software and procure that all of its Users immediately cease all use of the Software.

10.

COOLING OFF PERIOD

10.1 The Client is entitled to cancel the Agreement within a period of 7 (seven) days after the date of receipt and/or access to the Software and Services.
10.2 The Client shall only be entitled to the cooling-off period, provided that the Client has not utilised the Software and Services. In the event that the Client has utilised the Software and Services the Client shall be charged and liable for such use.
10.3 In the event of cancellation during the aforesaid 7 (seven) day period, the Client shall receive a full refund of the amount which it paid to and has been received by Prefix. The aforementioned refund shall be paid to the Client within 30 (thirty) days of the date of cancellation. The Client’s notice of cancellation in terms of this clause must be sent to Prefix via email.

11.

CONSENT TO PROCESSING PERSONAL INFORMATION

11.1 Prefix subscribes to the principles for electronically collecting personal information outlined in Chapter 8 of the ECT Act.
11.2 The Client undertakes that it has complied with the provisions of Section 51 of the ECT Act in relation to its collection of the Client Data;
11.3 The Client acknowledges through the acceptance of these terms and conditions that it is required to provide Personal Information and/or Confidential Information in relation to it and its Subscribers/Contacts and that Prefix shall not be liable or accountable for any use of the aforesaid data provided that such data is used only to enable Prefix to render the Services and provide the Software to the Client.
11.4 The Client consents to receive Everlytic newsletters, Prefix marketing material and to be contacted by Prefix sales consultants.
11.5 Prefix acknowledges that all of the Subscriber and Contacts’ personal information remains the property of the Client and shall not be used by Prefix for any purpose other than as contemplated by this Agreement.
11.6 Prefix reserves the right, without obligation, to monitor the Client’s communications (through the Software and the Services) for purposes of identifying violations of this Agreement.
11.7 Prefix undertakes further to store the Client Data within a safe guarded database, which shall ensure the privacy and the confidentiality of such information.
11.8 The Client specifically consents to the trans-border flow of the Client Data including its Subscribers’, Contacts’ and other third party Personal Information. The purpose of the trans-border flow of the aforesaid data may include, but is not limited to data hosting and storage.

12.

UNAUTHORISED USE

12.1 The Client is only permitted to use the Software and Services for lawful purposes. The Client undertakes not to engage in unauthorised use of the Software and Services. The Client agrees that it shall be held responsible and/or be liable for all acts and/or omissions that occur in relation to its Account, this shall include, but is not limited tothe content of the Client’s communications which are transmitted through the Software. In the event that the Client engages in any unauthorised activity, Prefix reserves the right to de-activate the Account and/or suspend the provision of the Software and Services pending an enquiry by Prefix. Should Prefix find that the Client’s use of the Software and/or Services is unauthorised, Prefix is entitled to terminate the Agreement immediately and Prefix may institute a claim for damages against the Client and/or the Client may be found guilty of a statutory and/or criminal offence and/or be liable for civil damages.
12.2 The Client accepts and agrees that the following (without limitation) shall constitute unauthorised use of the Software and/or Services:
12.2.1 Any use which is unlawful, defamatory, objectionable, offensive, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, amounts to unlawful unsolicited commercial communications, and/or infringes the rights of third parties;
12.2.2 Any use which amounts to the unlawful collection and processing of Personal Information including, but not limited to, email addresses without the Subscriber/Contact’s consent as the case may be;
12.2.3 Engaging in prohibited data privacy practices, which shall include but is not limited to use of purchased databases and/or use of databases whereby the Client cannot readily prove that the Subscriber/Contact’s consent as the case may be to receive email communications from the Client was obtained;
12.2.4 Creating a false identity and/or attempting to mislead the public as to the identity of the sender and/or origin of the communication;
12.2.5 Transmission of any data which may infringe on the intellectual property rights of third parties;
12.2.6 Transmission of any data which contains viruses, Trojan horses, worms and/or other malicious programs;
12.2.7 Any attempts, successful or otherwise, to gain unauthorised access to the Software, the Everlytic systems, other Everlytic accounts, computer systems or networks connected to the Service through password mining or any other means; and
12.2.8 Engaging in any other activity that could subject Prefix to criminal and/or civil liability

13.

THE CLIENT’S RESPONSIBILITIES

13.1 The Client shall procure and/or provide all the necessary equipment, software, hardware, communications equipment and/or connectivity requirements to enable the Client’s access to and use of the Software and Services. Prefix does not warrant the compatibility of the Software and Services with the Client’s system and the Client agrees that it is solely liable for ensuring compatibility as well as the required ISP and/or telecommunications costs needed to access and/or utilise the Software and Services;
13.2 The Client warrants that it is compliant with all relevant legislative requirements and that it shall ensure that its use of the Software and Services is not illegal.
13.3 The Client shall be responsible and/or liable for its use of the Software and Services and it is the Client’s responsibility to ensure that it has met and/or adhered to all legislative and/or regulatory obligations. The Client is also responsible to continuously monitor the legal environment as it pertains to the Client and to make all necessary changes in the event that there is a change in the legislative landscape, such change may include but is not limited to a law, amendment and/or regulation being enacted and/or coming into force, or a change in the interpretation and/or administration of the law.
13.4 The Client shall be solely responsible for the accuracy of the Client Data including the accuracy of the data migrated onto the Account as well as the Client Data constituting the Account thereafter. The Client shall ensure the correct formatting and/or validation in respect of the Mailing Lists. The Client accepts and agrees that in instances when the format of the Mailing List and/or content must be a text file or CSV file, any other file, (including but not limited to: .DOC, .EXE, .XLS) may generate errors, in which event the Client shall nevertheless still be liable to effect payment of any amounts owed by it to Prefix in terms of this Agreement.
13.5 In respect of month-to-month Packages the Client shall ensure that:
13.5.1 All unsubscribe and opt-out requests received are strictly adhered to and implemented. The Parties agree that a Subscriber/Contact who has unsubscribed or opted-out, as the case may be, shall not receive any further e-mail or SMS communications regardless of whether or not the Client has unmapped/deleted the applicable Subscriber/Contact;
13.5.2 It unmaps/deletes any Subscriber/Contact from the Mailing List/s in the event that it requires such Subscriber/Contact to be entirely removed from the Mailing List and in which event the Subscriber/Contact so removed shall no longer form part of the Subscriber Limit. The Parties agree that unless the Client has attended to unmap/delete a Subscriber/Contact from a Mailing List:
13.5.2.1 Such Subscriber/Contact shall still form part of the Subscriber Limit and will be charged for accordingly regardless of whether the Subscriber/Contact has unsubscribed from the Mailing List/s;
13.5.2.2 The Client shall still have access to archive reports and statistics in relation to previous e-mail communications sent to the above-mentioned Subscriber/Contact, as well as to the record that such Subscriber/Contact unsubscribed.

14.

INTERCEPTION AND MONITORING

14.1 From time to time and expressly without any obligation to do so, Prefix may monitor and/or audit the Client’s use of the Software and Services in order to ensure compliance with this Agreement. The Client, however, is solely responsible and liable for all of its conduct as well as the content of the Client’s communication by way of the Software. Prefix does not take responsibility for the Client’s content and how the Client manages its Account. Prefix undertakes to ensure the confidentiality of all information attained through intermittent monitoring and/or auditing procedures, until such information is released into the public domain
14.2 Subject to the relevant laws, the Client agrees and consents to Prefix and its employees and agents intercepting, blocking, filtering, reading, deleting, disclosing and/or using the Client Data and communications sent and/or received to/by the Account in so far as same is necessary to render the Services and/or provide the Software to the Client. The Client accepts and agrees that the aforesaid consent satisfies the ‘writing’ requirements specified in the Regulation of Interception of Communications Act 70 of 2002..

15.

INTELLECTUAL PROPERTY

15.1 Intellectual property in and to the Website, Software and the Services, including, as applicable, processes and methodologies, source codes and other proprietary interests shall be and shall remain vested in Prefix for the duration of this Agreement and thereafter;
15.2 Prefix retains the right, title and interest to all and/or any design, patent, and/or copyright in relation to the Website, Software and the Service whether registered or not. Same includes the name “Everlytic” and any other branding or intellectual property associated with the Website, Services and/or the Software, regardless whether or not same have been registered or patented. Such designs, patents, or copyrights shall not be limited to any particular area or country and Prefix shall have the right to alter, modify, adapt or change any design, process or method of any patent and/or copyright in relation to the Website, Software and the Service at its sole discretion;
15.3 The Client shall not copy, print, or publish any of Prefix’s methods, processes or procedures relating to the Website, Software and Service, nor shall the Client produce or attempt to produce any product which performs materially the same functions as the Website, Software and Service.

16.

INDEMNIFICATION OF PREFIX

16.1 Prefix agrees to indemnify, hold harmless, and to cooperate as fully as reasonably required in the defence of any claim against the Client, against any and all claims, liabilities, damages, costs and expenses arising from or relating to:
16.1.1 Claims by third parties regarding the Intellectual Property contained in the Software or the Client’s rights of use of the Software;
16.1.2 Unlawful or grossly negligent actions of Prefix in relation to this Agreement or the Software.
16.2 The Client reserves the right, at its own expense and in its sole discretion, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Prefix.

17

BREACH

18.

MISCELLANEOUS PROVISIONS

18.1 The Client agrees to provide the opportunity for a person and/or entity to unsubscribe from receiving communications from the Client. The Client consents to Prefix ensuring that every email shall contain an unsubscribe link and every SMS an opt-out instruction. The Client agrees to adhere to such unsubscribe requests, whereby Prefix shall manage same for the Client.
18.2 From time to time and at the sole discretion of Prefix, Prefix may provide certain enhancements and/or updates, this may include but is not limited to: revisions, updates, “bug” fixes and/or corrections, further developments, extensions, improvements and/or modifications. To the extent so applicable these enhancements and/or updates shall be provided free of charge. Prefix shall take all reasonable measures to ensure that such enhancements and/or updates are implemented without the occurrence of any errors. The Client understands and agrees that from time to time such errors may occur and should the Client experience problems as a result thereof the Client should contact Prefix via email.

19.

DISPUTE RESOLUTION

19.1 Any unresolved dispute between the Parties or deadlock between them arising out of or in connection with this Agreement, including, its existence, application, breach, interpretation, validity, termination or cancellation, shall be submitted to and decided by arbitration in terms of the Arbitration Act, 1965, of the Republic of South Africa, subject to the following provisions:
19.1.1 The Parties are unable to resolve the dispute internally which dispute remains unresolved for a period in excess of 7 (seven) days;
19.1.2 The tribunal shall consist of a single arbitrator;
19.1.3 The arbitration proceedings shall be conducted in accordance with the formalities and/or procedures determined by the arbitrator;
19.1.4 The arbitration shall be held in Johannesburg, as determined by the arbitrator;
19.1.5 The language of the arbitration shall be English;
19.1.6 The arbitrator’s decision shall be binding and shall not be appealable to any court in any jurisdiction, save as agreed to by the Parties in writing. Any Party may however enter any decision of the arbitrator in any court having competent jurisdiction;
19.1.7 The Parties shall endeavor to ensure that the arbitration is completed within 90 (ninety) days after notice requiring the claim to be referred to arbitration is given;
19.1.8 The decision of the arbitrator shall be in writing. The arbitrator shall give reasons for his award;
19.1.9 The proceedings and decision shall be confidential to the Parties and their advisers;
19.1.10 The arbitrator shall be a practicing attorney or advocate of not less than 10 (ten) years standing or a retired judge, who, in the absence of agreement reached within 14 (fourteen) days of the arbitration being demanded, shall be appointed by the President or acting President of the Law Society of the Northern Provinces.
19.2 Notwithstanding the provisions of this clause 19:
19.2.1 This arbitration clause shall not preclude a Party from seeking urgent relief in a court of appropriate jurisdiction, where grounds for urgency exist; and
19.2.2 In the event of either Party having a claim against the other Party for a liquidated amount or an amount which arises from a liquid document, then the Party having such claim shall be entitled to institute action therefore in a court of law rather than in terms of the above clauses, notwithstanding the fact that the other Party may dispute such claim.

20.

GENERAL PROVISIONS

20.1 SOLE RECORD OF THE AGREEMENT
This Agreement constitutes the sole record of the agreement between the Parties with regard to the subject matter hereof and supersedes any oral or written representations, understandings, agreements or communications between the Client and Prefix concerning the subject matter hereof. Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
20.2 WAIVERS
No relaxation or indulgence, which either Party may grant to the other, shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in future.
20.3 ASSIGNMENT
This Agreement may not be assigned by the Client or Prefix to any third party (save as provided herein) without the other Party’s prior written consent.
20.4 NOTICES
Unless otherwise specified in the relevant clause and for the avoidance of doubt all notices which either Party is required to serve with regards to this Agreement shall be in writing. Notices sent to Prefix, shall be sent via email to the email address stipulated in clause 1.18 above, alternatively by hand or registered post to the physical address stipulated in clause 1.18 above. Notices sent to the Client shall be by way of email to the Client’s email address alternatively by hand or registered post to the Client’s physical address, which addresses the Client provided during the registration process. All notices shall be deemed to have been served upon receipt confirmed by personal delivery, registered post, or email. The Parties may change the address/es to which notices are to be delivered by written notice to the other Party provided in terms of this clause.
20.5 SEVERABILITY
In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
20.6 GOVERNING LAW
The law governing this Agreement, including without limitation its interpretation and all disputes arising out of this Agreement, is the law of South Africa, and subject to clause 19 above, the Parties submit to the exclusive jurisdiction of the South African courts in respect of any matter arising from or in connection with this Agreement, including its termination.
20.7 DISPUTE
Should any dispute so arise, the Client agrees to the continuity of the Agreement until such time as the dispute is settled alternatively the Agreement has been terminated by either Party.
20.8 FORCE MAJEURE
In the event of a force majeure event, specifically circumstances beyond the control of the Parties/Party, including but not limited to: acts of God, war, civil war, sabotage, acts of terrorism, government sanction, import or export relation or order, labour disputes, failure in transportation equipment, machinery or personnel or in the provision of any utility including power, or communications service, neither Party shall be liable for any breach hereof.
20.9 EXPORT CONTROL LAWS
The Client understands and agrees that the Software, Services and Client Data may be subject to import and export control laws and regulations of the Republic of South Africa or the country in which the Client is situated Client. The Client undertakes to adhere to all applicable laws and regulations and agrees not to, without prior authorization from the government of the Republic of South Africa or of such other country which is applicable, directly and/or indirectly export, re-export and/or transfer the Software and Services to any other country in contravention of such laws and regulations.