SpaGuru Customer Relationship Terms

General terms for the provision of ICT goods and services.

Version 3.6. Last updated on 19 December 2013.

1. Introduction

These terms are the current general terms of the relationship between Spa Guru and customer. The terms cover any transactions where Spa Guru provides ICT goods or services to customer. The commercial terms of any transaction will be contained in an order that will incorporate these terms. Nothing in the terms obligates any party to enter into any orders.

2. Definitions and interpretation

Definitions. In the agreement:

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);

agreement means the agreement between Spa Guru and customer, consisting of the terms and any orders the parties enter into;

business day means any day other than a Saturday, a Sunday or a holiday (including a public or bank holiday) in the Republic of South Africa;

business hours means Spa Guru’s normal business hours on business days;

computer system means any software, hardware, network components, hardware devices and appliances owned by the customer or cloud computing infrastructure used by the customer to store data or run applications;

customer means the customer that enters into an order and, if specified in the order, those related to it;

customer material means any proprietary documents or media (in electronic or physical form) containing customer data that customer (or any third party on customer’s behalf) provides or makes available to Spa Guru for purposes of the agreement;

customer policies means any of customer’s policies, practices, codes of conduct and procedures, including any applicable broad based black economic empowerment, information security, information technology, quality management, health, safety and environmental policies (as amended from time to time) that may be of general application;

deliverable means any deliverable or work product that Spa Guru designs, develops or produces specifically and directly for and delivers to the customer, including (but not limited to) code, material, a web application, a website, or any custom software;

effective date means in respect of each order, the effective date stipulated in each order, in the absence of which it will be the date the order is accepted by Spa Guru;

EULA means an end user license agreement;

existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the agreement and provided during the course of the agreement;

fees means the software or service fees, charges, or purchase consideration that customer will pay to Spa Guru in respect of goods or services Spa Guru provides under orders;

goods means any goods Spa Guru provides to customer under orders and includes software;

order means a goods or services order agreed to by both the parties describing the specific goods or services that Spa Guru will provide to customer;

personal information means personal information as defined by the Protection of Personal Information Bill;

plan means a plan for good or services selected by customer in the applicable order;

related means natural and juristic persons who are connected to one another in the manner contemplated in sections 2 and 3 of the Companies Act 71 of 2008;

services means any services Spa Guru provides to customer, under orders;

sign means the handwritten signature or ordinary or advanced electronic signature that the parties agree to use of the duly authorised representative of a party;

site means the physical site referred to in an order, to which Spa Guru will deliver goods or provide services under the order;

Spa Guru know-how means any concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; models (including, without limitation, asset management and other management, business, function, process, system and data models), templates, the generalised features of the structure, sequence and organisation of software and data files, user interfaces and screen designs, communications protocols, business processes and business rules, product architecture, data file definitions, structures, utilities and routines; and logic, coherence and methods of operation of systems that Spa Guru has created, acquired or otherwise has rights in;

software means the software described in the software license special terms;

specification means the specification (which may be in the form of a proposal, wire frame, project initiation document, functional specification, or technical specification) of the deliverable, which may be (i) in or attached to an order, or (ii) in writing, dated and signed by the parties;

tax means any:

terms means the terms, consisting of:

third party contracts means any contracts in force at the effective date between customer and third party contractors, referred to in the order;

writing means the reproduction information or data in physical form and includes handwritten documents, hard copy printouts and fax transmissions, but excludes information or data in the form of email.

2.1 Definitions in the order. Words defined (or assigned a meaning) in this agreement will have that meaning in an order and any special terms, unless the context clearly indicates otherwise.

2.2 Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the agreement, when any number of days is prescribed in the agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

3. Status and precedence

3.1 Umbrella agreement. These general terms constitute an umbrella agreement under which Spa Guru will supply goods and services to customer from time to time.

3.2 Types of orders. The commercial terms of any transaction will be contained in an order that will incorporate these terms.

3.3 Application. The current version of the terms in effect at the time you place an order will govern the order.

3.4 Separate agreement. Each order will create a separate agreement. Despite that, we may consider the breach of any one order to constitute a breach of any order.

3.5 Replacement. These terms will remain valid until replaced by Spa Guru with amended or new terms. The new terms will not affect any existing orders but will apply to all new orders concluded with effect from the date on which the replacement terms are specified to take effect.

3.6 Conflict. If there is a conflict of meaning or inconsistency between these customer relationship terms and any special terms, the special terms will prevail to the extent necessary to resolve the conflict or inconsistency.

4. Commencement and Duration

4.1 These terms. Unless specified in an order, the terms commence on the date Spa Guru accepts the first order and continue indefinitely until it terminated in accordance with the provisions of this agreement.

4.2 Each order. Each order will commence on the effective date specified in the order or on acceptance of the order by Spa Guru and continue until terminated, unless terminated earlier in terms of this agreement. Unless proven to the contrary Spa Guru only accepts an offer relating to services, when Spa Guru begins providing the services.

5. New Orders

The supply of goods and services will be governed by orders.

5.1 Requests (other than software as a service). If customer requires Spa Guru to provide new or additional goods or services, other than services for software as a service, Customer may submit a request for services to Spa Guru detailing:

together with any other requirements or information relevant to the provision of the new goods or services.

5.2 Acceptance of proposal. If the proposal is acceptable to SpaGuru, the parties will execute an order.

5.3 Requests (software as a service). If customer requires Spa Guru to provide new or additional services Customer may provision new services through the online control panel.

6, Change control

6.1 Changes to goods or services. During the currency of an order, events may occur which require a change to the nature and scope of goods or services being provided. The parties will not implement a change unless they comply with this clause.

6.2 Change request. A party may propose a change to the nature and scope of goods or services by sending a scope change document to the other party detailing the desired changes.

6.3 Scope change document. If a scope change document is made by:

6.4 Sign-off. The parties will discuss and agree the proposed changes and make the necessary amendments to Spa Guru’s scope change proposal. customer will then consider the scope change proposal and may approve or reject it in writing within three business days. If customer:

6.5 No change effective until sign-off. No party may proceed with any change to an order until the change and all matters relating to the change have been agreed in writing between the parties. Pending sign-off, the parties will continue to perform their obligations without taking account of the proposed changes. No party must agree to any change, but a party will not unreasonably delay or withhold their agreement to a proposed change.

6.6 Exception. Amendments to the content of the agreement that do not directly impact the nature and scope of the goods or services will not be subject to this change control procedure, but the parties will execute it in writing.

7. Customer obligations

To enable Spa Guru to provide the goods or services, customer agrees to provide ongoing assistance, liaison, input, support and full co-operation and will, to the extent Spa Guru requires and at customer’s cost:

7.1 Customer equipment; install, configure and maintain all necessary customer equipment at its own expense in accordance with any specification requirements. This includes any third party network services or software applications not provided by Spa Guru. Spa Guru will not be responsible for any fault, failure, loss or damage associated with any customer equipment or any third party software;

7.2 Suitable infrastructure; provide a suitable infrastructure for the software that Spa Guru must implement, including servers, network operating systems, third party software, databases, tools and related facilities, in accordance with any specification requirements;

7.3 Access; where required by SpaGuru, provide Spa Guru with reasonable access to customer material and customer's computer systems;

7.4 Notifications; notify Spa Guru as soon as reasonably possible of any issues, concerns or disputes;

7.5 Backup; be responsible for the back up of the customer data, except where Spa Guru specfically agrees in an order to provide provide the customer with data backup and restoration facilities for the customers data;

7.6 Disaster recovery; be responsible for disaster recovery, except where Spa Guru specfically agrees in an order to provide provide the customer with disaster recovery services;

7.7 Customer material; be responsible for the accuracy and completeness of all customer material;

7.8 Dependent functions make available sufficiently qualified and authorised customer personnel, with appropriate access rights and permissions;

7.9 No malicious software; take commercially reasonable measures to ensure that customer (or its personnel or any third party) does not introduce any malicious software into any computer system.

8. Customer data

8.1 Privacy and protection of Personal Information.

8.1.1 Legal Obligations. Spa Guru and customer are each responsible for complying with their respective obligations under applicable laws governing personal information. Both parties both acknowledge that they are not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.

8.1.2 Use of Personal Information. The manner in which Spa Guru might use customer’s personal information is dealt with in Spa Guru’s privacy policy. If customer is not satisfied with the level of privacy Spa Guru provides or disagrees with anything in Spa Guru’s privacy policy, customer is deemed to not accept these terms and customer may not use Spa Guru’s services.

8.1.3 Responsible Party. Customer remains the responsible party for determining the purpose and means of our processing of customer personal information including that processing will not place Spa Guru in breach of any laws.

8.2 Trans-border Data flows. Where required for the proper performance of the services, customer consents to Spa Guru transferring customer personal information across a country border to enable Spa Guru to comply with its obligations under the agreement.

8.2.1 Indemnity. Customer agrees to indemnify, defend, and hold Spa Guru harmless (and those related to Spa Guru and its personnel) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to customer failing to comply with its obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own customer basis.

8.3 Access. On a party's reasonable written request, the other party will provide the requesting party with the information that it has regarding customer data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.

8.4 Preservation of integrity of customer data. Both parties will take reasonable precautions (having regard to the nature of their obligations under the agreement), to preserve the integrity of customer data and prevent any unauthorised access, corruption or loss of customer data.

9. Customer third party contractors

9.1 Applicable terms. Where Spa Guru is required under orders to manage or co-ordinate with a customer-appointed contractor or supplier of goods or services who is not a party to the agreement (“third party contractors”) in relation to third party contracts, the following terms will apply:

9.2 No liability. Spa Guru will not be liable for any act or omission of a third party contractor.

10. Spa Guru warranties

10.1 Goods warranties. In relation to the goods Spa Guru warrants:

10.2 Service warranties. Spa Guru warrants that in relation to the services:

10.3 General Warranties. Spa Guru warrants further that:

10.4 Additional warranties. The warranties in this clause are in addition to any warranties given in any order.

11. Goods returns

11.1 Return of new goods in terms of statutory cooling-off period. Customer may return any goods in new condition with all packaging and materials. Spa Guru will refund the purchase price of the goods (minus the direct costs of returning the goods) within 30 days of the date of cancellation.

11.2 Repair, replace, refund defective goods. Spa Guru will repair, replace or refund the price of any defective goods returned during the statutory six month period after delivery of the goods. Defective goods are those that had a defect or were unsafe when Spa Guru supplied them. A defect usually means that the goods were manufactured using materials, components or workmanship below an acceptable standard. Customer must prove that goods are defective.

11.3 Extended warranty. After the six months statutory warranty has expired, Spa Guru offers an extended warranty for the goods. This means Spa Guru will repair the defective goods or replace them with new goods, as long as the defective goods are returned to Spa Guru within the extended warranty period. The period of any extended warranty depends on the particular goods and may cost extra. Spa Guru’s longest extended warranty is valid for six months after it supplied the Goods. Spa Guru’s right to inspect the goods and charge a fee for this also applies to claims under vendors extended warranty.

11.4 Choice of compensation. Customer may decide whether Spa Guru should either repair or replace the defective goods, or make a refund.

11.5 Flow-down warranties. Customer will have the same rights against Spa Guru as Spa Guru has against its supplier regards defects in the goods, the intention being that vendors liability to customer will be co-extensive with the right of recourse Spa Guru has against its supplier. Spa Guru will provide customer with a copy of any warranty on request. To the extent legally possible, Spa Guru assigns to customer the benefit of any supplier warranties that a supplier may give to Spa Guru regards the goods. Customer may not waive any of Spa Guru’s common law rights as against the supplier.

11.6 Additional warranties. The warranties in this clause are in addition to any warranties given in any Order.

12. Disclaimer of warranties

12.1 Disclaimer. Use of the goods or services is at the sole responsibility and risk of each customer. Spa Guru provides the goods or services on an “as is” and “as available” basis. Except for the warranties given in the agreement and to the extent allowed by law, Spa Guru expressly disclaims all representations, warranties, or conditions of any kind, whether express or implied, including:

12.2 Exclusion of liability. Despite any warranty given by Spa Guru, Spa Guru will not be liable regards any defect arising from:

13. Customer warranties

Customer warrants that:

13.1 it has not been induced to enter into the agreement by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the agreement;

13.2 by entering into an order customer is not acting in breach of any agreement to which customer is a party;

13.3 if customer requires Spa Guru personnel to use software owned or operated by customer, all necessary user licences have been obtained in advance;

13.4 the use of customer material by Spa Guru does not and will not infringe the intellectual property rights of any other person;

and customer agrees to indemnify, defend, and hold harmless Spa Guru (and those related to it and its personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own customer basis.

14. Fees and payment

These are the default provisions and apply unless otherwise agreed in terms of an order:

14.1 Due Dates. Customer will be liable for and pay the price for the goods and fees for the services promptly on the due date for payment, without any deduction, set off or demand and free of exchange in the currency specified in the order.

14.2 Manner of payment. Customer must make payment in the manner specified in the order.

14.3 Late payments. Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. Customer must pay the surcharges and penalties to Spa Guru on-demand. Spa Guru may withhold or remove any goods or suspend the provision of any services until customer has paid all amounts that are due.

14.4 Interest on overdue amounts. To the extent permitted by applicable law, any amount not paid by customer on the date of the statement of outstanding invoices will bear interest for the benefit of Spa Guru, from the due date until the date customer pays it. The rate of interest will be either 2% above the published prime overdraft rate from time to time of Spa Guru’s bankers or 15%, whichever is higher. A letter signed by a general, branch or other bank manager setting out their rate will be proof of the rate. Interest will be payable on a claim for damages from when the damages were suffered.

14.5 Appropriation. Spa Guru may appropriate any payment received from customer towards the satisfaction of any indebtedness of customer to Spa Guru under the agreement.

14.6 Withhold payment. Customer may not withhold payment of any amount due to Spa Guru for any reason.

14.7 Certificate. A certificate, signed by an accountant appointed by Spa Guru, of the amount due by customer and the date on which it is payable will be conclusive irrefutable proof of the correctness of the certificate’s contents.

14.8 VAT. All fees exclude VAT as Spa Guru is currently not registered for VAT. All fees also exclude other taxes, which will be payable where applicable by customer in addition to the fees.

14.9 Costs to implement. Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the agreement.

14.10 Payment profile. Customer and any signatory consent and agree that Spa Guru may provide any registered credit bureau with information about the payment of amounts.

14.11 Expenses. Customer will reimburse Spa Guru for all reasonable expenses that Spa Guru or Spa Guru’s personnel incur in fulfilling Spa Guru’s obligations under the agreement. Expenses include travelling, subsistence, goods, and services purchased on customer’s behalf, communications, stationery, and report or presentation material. Spa Guru will bill for all travelling and subsistence expenses in accordance with Spa Guru’s standard policies from time to time.

14.12 Reimburse costs. If Spa Guru suspends the services or removes any goods supplied by Spa Guru, customer will pay to Spa Guru the costs incurred by Spa Guru (including redeployment, travel and associated expenses) in remobilising Spa Guru’s employees affected by the agreement and recommencing the services or re-installing the removed goods.

15. Delays

15.1 Definition. Where:

it will constitute a delay.

15.2 Notification. A party will notify the others of an event that has occurred or is anticipated and that:

15.3 Extension of time for performance. Spa Guru’s performance will be extended on a reasonable basis in proportion to the prejudice caused by the delay, provided that the extension is at least the number of days of the delay.

15.4 Proposals for delay.

If a delay arises, customer may instruct Spa Guru to submit proposals for different ways of dealing with the delay. Spa Guru will submit proposals to customer, which may set out a variety of methods for dealing with the delay that Spa Guru considers practical.

Proposals for addressing Delays will include proposed changes to the scope of work, prices and any delay to the date of performance assessed by Spa Guru.

Spa Guru will submit proposals within 14 calendar days of being requested to do so by customer and customer will reply to Spa Guru within three business days of the submission:

15.5 Assessing Delays.

The changes to the prices must be assessed with regard to the effect of the delay on:

A delay in performance is assessed as the length of time that, due to a delay, planned performance is later than originally indicated.

Spa Guru will include in Spa Guru’s proposal for a change to the scope proposed rates for its personnel.

15.6 Implementation. Spa Guru will implement each accepted proposal in accordance with the proposal’s terms.

15.7 Milestones. If an amount would have been payable to Spa Guru had it not been for a delay , customer will pay Spa Guru the amount, despite the fact that any milestone has been adjusted.

16. Intellectual property

16.1 Customer material. Ownership in all customer material will continue to vest in customer whether under its control or not, and Spa Guru will not obtain any proprietary rights in customer material. The customer material is and will remain the property of the customer or its licensors. Spa Guru must not:

Customer grants to Spa Guru (and Spa Guru’s contractors as necessary) a perpetual, non exclusive, royalty free licence to use, reproduce and modify any customer material for the purposes of providing the goods or services or as directed by customer.

16.2 Existing material. Each party will own their existing material.

16.3 Retention of Rights. Spa Guru will own all right, title, and interest to Spa Guru know-how.

16.4 Use of Spa Guru know-how. If Spa Guru utilises any Spa Guru know-how in connection with Spa Guru’s performance under an order, Spa Guru know-how will remain the property of Spa Guru and customer will not acquire any right or interest in the know-how, and will not make the know-how available to any third party without Spa Guru’s prior written consent.

16.5 Deliverables. Except as provided to the contrary in the agreement, all right, title, and ownership to or of any deliverables are the sole property of or will vest in Spa Guru. All moral rights are reserved. Upon payment in full, Spa Guru grants customer a non-exclusive, perpetual, fully paid up license to use, reproduce and modify (if applicable) any deliverables in the form delivered to customer. The perpetual license applies only to deliverables that Spa Guru leaves with customer at the conclusion of the agreement and is only for customer’s internal business operations. Customer will not resell or distribute the deliverables to any third party. The parties may expressly agree to the contrary in any order.

16.6 Categorisation of intellectual property. When describing any intellectual property resulting from any services provided by Spa Guru pursuant to this agreement and any order the parties will use their reasonable efforts to specify their agreement as to whether the relevant intellectual property is customer intellectual property, Spa Guru know-how or third party intellectual property as provided for in this clause.

17. Confidential information

17.1 Responsibility to keep information confidential. Each party must keep confidential any information it receives from the other party or under this agreement.

17.2 The receiving party's responsibilities. The party that receives confidential information agrees to protect the interests of the party that is disclosing it , and will:

17.3 End of this agreement. At the end of an agreement, the parties will give back to the other all originals and copies of confidential information of the other that they have, except for any copies of such confidential information that a party reasonably requires be kept for record-keeping purposes (including that a party is required to retain by law or in connection with actual or potential legal proceedings). If the other agrees, they may destroy the confidential information they have in paper based format. All confidential information in electronic format must be erased so that no data remanence is possible.

17.4 Exceptions. These responsibilities will not apply to any information that:

17.5 Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

18. Non-solicitation

No party will, during the currency of any order or for a period of 12 calendar months following termination, directly or indirectly solicit, offer employment to, employ, or contract in any manner with any personnel of the other party who were involved in the implementation or execution of the order.

19. Intellectual property infringement

19.1 Defence. Spa Guru will defend customer against any claims made by a third party that any goods or services infringes its patent, design, copyright, trade mark or other intellectual property right and will pay the amount of any resulting adverse final judgment (or settlement to which Spa Guru consents). Spa Guru will reimburse customer with all costs reasonably incurred by customer in connection with assisting Spa Guru with the defence of the action (including attorneys fees on an attorney and own customer basis). Customer will promptly:

19.2 Consequences of successful claim by third parties. If any third party succeeds in its claim for the infringement of any intellectual property rights, Spa Guru may within 30 calendar days of the infringing item having been found to so infringe:

19.3 Exclusion. Spa Guru will not be liable for any claim that arises out of goods or services

19.4 Survival. This clause will survive termination of the agreement.

20. Project managers

20.1 Appointment. On the effective date, each party will appoint a suitably qualified and responsible person to act as their project manager. Function. The project managers’ responsibilities include to manage and coordinate the goods or services and to discuss and manage any changes.

20.2 Replacement. A party may, on seven calendar days’ written notice to the other, appoint an alternative project manager who is suitably qualified and responsible.

21. Limitation of liability

21.1 Correct faults. Spa Guru will correct any fault in the services where possible and as soon as reasonably practical and this is Spa Guru’s entire liability regarding any fault in the services. If this clause is held inapplicable or unenforceable, then the following clauses will apply.

21.2 Aggregate liabilty limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, each party’s maximum liability for direct damages for anything giving rise to any legal action will be an amount equal to in the aggregate for all claims thereunder –

it being agreed that each and every claim arising in connection with this agreement must reasonably be classified as being in respect of goods or services and no claim may be made unless and until so classified.

21.3 Indirect damages excluded. To the extent permitted by applicable law, in no event will a party be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind whatsoever and howsover caused (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from this agreement.

21.4 Exclusions. The limitation contained in clause 21.2 will not apply to (i) any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.

21.5 Spa Guru not liable for customer default. Spa Guru will not be liable for any loss or damage suffered by customer arising out of or in connection with any breach of the agreement by customer or any act, misrepresentation, error or omission made by or on behalf of customer or customer’s personnel.

21.6 Other goods or services. Spa Guru is not liable for any other goods, or service provided by any third party.

22. Breach and termination

22.1 Breach. If a party does not fix any breach of this agreement (failure to comply with it) within seven days of receiving written notice from the other party to do so then the other party may, without prejudice to any of its rights:

22.2 Termination. In addition to each party’s right to terminate under the Customer Relationship Terms:

23. Effect of termination

23.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this agreement, all amounts due to Spa Guru for services rendered before termination will become due and payable even if Spa Guru has not yet invoiced them. Customer may not withhold the amounts for any reason, unless the arbitrator directs otherwise.

23.2 Duties on termination. On termination, cancellation, or expiry of this agreement:

23.3 No expectation. Spa Guru acknowledges and confirms that no expectation has been created by anyone, by the agreement or any other agreement, entitling Spa Guru or the personnel to expect:

24. Resolving disputes

24.1 Billing disputes. All unresolved payment disputes that concern only the amount invoiced (as opposed to whether any amount is payable or not) will, if required in writing by either party, be referred to a practising chartered accountant of at least ten years' standing (“accountant"). The accountant will be appointed by agreement between the parties and failing such agreement within give business days of the written notice for referral, either party may call upon the President of the South African Institute of Chartered Accountants or its successor body to nominate the accountant. The accountant will act as an expert and not as an arbitrator. The accountant will be requested to give his decision as soon as practicable and, in any event, by no later than five business days after the dispute is referred to the accountant. The accountant's determination shall be final and binding. The costs of the accountant will be borne by the parties in equal shares, unless otherwise agreed, irrespective of which party referred the dispute to the accountant.

24.2 Technical disputes. If agreed by the parties, any dispute of a technical nature (which includes a dispute relating to acceptance testing, commissioning and any deliverable), concerning the interpretation of any specifications or requirements or relating to the functions or capabilities of the services may be referred by the parties, together with reasons for referring the matter, to an independent technical expert for final settlement. The expert must be a person having appropriate expertise with respect to, but no interest in the outcome of, any matter referred to such expert and will be jointly appointed by the parties. The expert will be deemed to act as an expert and not as an arbitrator. The expert will be requested to give his decision as soon as practicable and, in any event, by no later than the business days after the date of receipt of its terms of reference. The decision of the experts will (in the absence of clerical or manifest error) be final and binding on the parties.

24.3 Failure to resolve. If the parties are unable to agree on whether a dispute is technical or not within five business days, or if they are unable to resolve a dispute in accordance with the foregoing, the dispute will be finally resolved by:

24.4 Notifying each other. There will be a dispute about or from this agreement if a party writes to the other about it and asks for it to be resolved under this clause. The dispute to be resolved by:

24.5 Negotiation. Any dispute which arises between the parties must first be referred to their chosen representatives who must meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days. All disclosures, concessions or admissions made by the parties during this dispute resolution process will be deemed to be made without prejudice, unless specifically stipulated otherwise in writing by a party in which case they may not be used in any subsequent proceedings which may arise between the parties.

24.6 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.

24.7 Arbitration. If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision). The parties will agree and appoint one arbitrator. The arbitration will be held in English. If the entity of Spa Guru involved in the dispute is South African, the arbitration will be in Cape Town under AFSA’s latest rules for expedited arbitrations.

24.8 Periods. The parties may agree in writing to change the periods for negotiation or mediation.

24.9 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

24.10 Severability. This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.

25. Notices and domicile

25.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the relevant order.

25.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this agreement.

25.3 Change of addresses or numbers. Each party may change the addresses or numbers in the relevant order to any other addresses or numbers by writing to the other party 14 days before the change.

25.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.

25.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

26. Force Majeure

26.1 Parties not liable. No party will be responsible for any breach of this agreement caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God. The delays of any third party contractors will not be considered a force majeure event.

26.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this agreement. The parties will continue to comply with the responsibilities that are not affected by the circumstances.

26.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this agreement for more than 60 days because of force majeure, the other party may cancel this agreement by written notice.

27. Assignment and subcontracting

27.1 No Assignment. No party may delegate its duties under this agreement or assign its rights under this agreement, in whole or in part. Spa Guru may assign this agreement to any successor or purchaser of its business or some of its assets.

27.2 Exception. Despite this clause, Spa Guru may cede and assign all rights and obligations under this agreement to a related person without customers’ prior written consent, provided that Spa Guru notifies customer within a reasonable time of the event occurring.

27.3 Third party contractors. Spa Guru may sub-contract or delegate its obligations under this agreement to third party contractors. Spa Guru will remain liable for performance of the third party contractors . No one may require Spa Guru to disclose the terms (including payment terms) of any sub-contract entered into with respect to vendors obligations under this agreement.

28. Relationship

28.1 No temporary employment service. Nothing in this agreement will be construed as constituting a temporary employment service.

28.2 No partnership. Nothing in this agreement will be construed as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.

29. Non-exclusivity

Spa Guru may provide any goods or services to any other person or entity. Spa Guru may exploit its intellectual property (including providing services or creating programming or materials for other customers or itself, providing services that are competitive with any deliverables, irrespective of their similarity to the deliverables), subject to its confidentiality obligations.

30. General

30.1 Entire agreement. The agreement is the entire agreement between the parties on the subject.

30.2 Changes. No change to this agreement is effective unless in writing and signed with a handwritten signature by authorised signatories of both parties.

30.3 Waiver (giving up rights). Any favour Spa Guru may allow customer will not affect or substitute any of Spa Guru’s rights against customer.

30.4 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this agreement if it does not change its purpose.

30.5 Costs. Each party is responsible for its own costs of drafting and negotiating this agreement.

30.6 Governing law and jurisdiction. This Agreement will be governed and construed according to the laws of the Republic of South Africa and the Customer agrees to submit to the exclusive jurisdiction of the South African courts.

30.7 Right to reference. Customer consents to Spa Guru using its name and a general description of the goods or services in any marketing or sales material.

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