Exhibit 10.18
yc
ASSIGNMENT OF COPYRIGHT AND LICENSE OF
PATENTS AND TRADE MARKS
1.
PARTIES
1.1. The parties to this agreement are
1.1.1. METROLINK (PROPRIETARY) LIMITED
1.1.2 NET 1 PRODUCTS (PROPRIETARY) LIMITED
1.2. The parties agree as set out below.
2.
INTERPRETATION
2.1. In this agreement, unless inconsistent with or otherwise
indicated by the context:
2.1.1. any reference to the singular includes the plural
and vice versa;
2.1.2. any reference to natural persons includes legal
persons and vice versa;
2.1.3. any reference to a gender includes the other
genders.
2.1.4. "copyrighted works" means the UEPS consisting of
programmes and program modules currently written for the
smart cards and the Crouzet MoneteI P500 terminal;
details of the said programmes and program modules which
provide functions as listed in Appendix 1 hereto;
2.1.5. "effective date" means the 1st OCTOBER 1990;
2.1.6. "FTMs" means Funds Transfer Machines which customers
will access with their personalised smart cards in order
to utilise the UEPS and carry out certain transactions
thereon;
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2.1.7. "Metrolink System" means the switching and settlement
system developed by or on behalf of the purchaser,
necessary to operate the UEPS, detailed further in
Appendix 2;
2.1.8. "Metrolink System Documentation" means:
2.1.8.1. the set of documents, printout
specifications, file specifications and all
manuals which collectively contain a
complete description and definition of all
operating conditions of the Metrolink
System;
2.1.8.2. all source code listings of the programmes
and program modules making up the Metrolink
System (including the most current) being,
or to be, used by the PURCHASER in the
language in which they are written, in such
detail as to enable NET 1 to operate,
maintain and modify the Metrolink System;
2.1.8.3. operating manuals and user guides;
2.1.9. "NET 1" means NET 1 PRODUCTS (PROPRIETARY)
LIMITED, a company incorporated with limited
liability in the Republic of South Africa under
company number 89/05779/07 c/o Deloitte Pim
Goldby, First Floor, Xxxxxx Xxxxx House, 00 Xxxxxx
Xxxx, Xxxxxxxx, herein represented by Messrs A P
Xxxxxxxx and X X X Xxxxxxxx, in their capacities
as directors, they being duly authorised hereto in
terms of a resolution of the directors of NET 1, a
copy of which is Appendix B hereto;
2.1.10. "Perm" means the Perm division of Nedperm Bank Limited,
a company incorporated in accordance with the laws of
the Republic of South Africa, of Perm Park, Press
Avenue, Xxxxx Extension 15;
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2.1.11. "POS devices" means the Point of Sale devices which will
be utilised by retail outlets to allow customers to
transact the purchase and sale of goods or services at
such outlets by means of the use of smart cards;
2.1.12. "PURCHASER" means METROLINK (PROPRIETARY) LIMITED, a
company incorporated with limited liability in the
Republic of South Africa under company number
89/07337/07 and c/o Deloitte Pim Goldby, First Floor,
Xxxxxx Xxxxx House, 00 Xxxxxx Xxxx, Xxxxxxxx, herein
represented by Mr X X Xxxxxx he being duly authorised
hereto in terms of a resolution of the directors of
METROLINK, a copy of which is Appendix "A" hereto, and
includes METROLINK's successors in title, assigns or
nominees;
2.1.13. "shareholder" means a person who holds one or more
shares in a company;
2.1.14. "smart card" means the customer card which when utilised
in conjunction with the copyrighted works will allow
customer access to the UEPS.
2.1.15. "system documentation" means -
2.1.15.1. the set of documents, printout
specifications, file specifications and all
manuals which collectively contain a
complete description and definition of all
operating conditions of the copyrighted
works;
2.1.15.2. all source code listings of the copyrighted
works (including the most current) being, or
to be, used by the PURCHASER, in the
language in which they are written, in such
detail as to enable the
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PURCHASER to operate, maintain and modify
the copyrighted works;
2.1.15.3. operating manuals and user guides;
2.1.16. "territory" means the Republic, Namibia, Botswana,
Lesotho, Swaziland, Mozambique and Zimbabwe;
2.1.17. "the/this agreement" means this agreement together with
any schedules and appendices hereto;
2.1.18. "the republic," means the Republic of South Africa as
constituted on 31 May 1961;
2.1.19. "UEPS" means the Universal Electronic Payment System
designed by NET 1 and described and detailed in the NET
1 manual entitled "Universal Electronic Payment System"
and including functions listed in Appendix 1.
2.2. Where appropriate, meanings ascribed to defined words and
expressions in 2.1 above, shall impose substantive obligations on
the parties.
2.3. The clause headings in this agreement have been inserted for
convenience only and shall not be taken into account in its
interpretation.
2.4. Words and expressions defined in any sub-clause shall, for the
purposes of the clause of which that sub-clause forms part, bear the
meaning assigned to such words and expressions in that sub-clause.
2.5. This agreement shall be governed by and construed and interpreted in
accordance with the law of the Republic of South Africa.
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3.
INTRODUCTION
3.1. NET 1 is the owner of the copyrighted works and the PURCHASER is to
become the owner of the copyrighted works in the territory and NET 1
is to retain ownership of the copyright in the copyrighted works
outside the territory. The PURCHASER is the owner of the copyright
in the works making up the Metrolink System and is to retain such
ownership within the territory whereas NET 1 is to become owner of
the Metrolink System outside the territory.
3.2. NET 1 has made application to register a trade mark NET 1 Logo in
classes 9 and 16 of the Trade Marks Classification in various
countries in the territory. A schedule of such trade marks is
annexed marked Appendix 3.
3.3. NET 1 has made application to register Patent No 89/7607 and Patent
No 90/7106 covering novel aspects of the UEPS in South Africa.
3.4. The parties agree that ownership of South African Patent No 89/7607
and Patent No 90/7106 and the trade mark NET 1 Logo shall vest in
NET 1 and that the PURCHASER will use these items of intellectual
property in the territory under licence from NET 1.
3.5. NET 1 has concluded agreements with third parties for the supply of
smart cards, POS Devices and FTMs necessary for the implementation
and use of the system. NET 1 confirms that it will pass on to the
PURCHASER the rights acquired from such third parties to use such
smart cards, POS Devices and FTMs in implementing and using the
system.
3.6. The PERM is a shareholder of the PURCHASER.
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4.
ASSIGNMENT OF COPYRIGHT
4.1. Subject to the provisions of this agreement NET 1 hereby assigns to
the PURCHASER all its rights, including all rights of copyright, in
and to the copyrighted works within the territory and the PURCHASER
hereby becomes the owner thereof.
4.2. Subject to the provisions of this agreement the PURCHASER hereby
assigns to NET 1 all its rights, including all rights of copyright
in and to the Metrolink System and all works embodied therein in all
countries of the world outside the territory and NET 1 hereby
becomes the owner thereof.
4.3. This agreement shall be deemed to have commenced or taken effect
upon the effective date.
4.4. Within 90 days after the signature of this agreement, and
provided that payment of the sum of R3.5m (THREE AND A HALF
MILLION RAND) referred to in clause 7 shall have been paid,
NET 1 shall deliver the final system documentation to the
PURCHASER. The PURCHASER shall do its utmost to preserve the
security and confidentiality of system documentation. The
period of 90 days referred to in this clause may be extended
by agreement the between the parties.
4.5. Within 6 (six) months of the effective date of this agreement,
the PURCHASER shall deliver the Metrolink System documentation
to NET 1 and NET 1 undertakes within the territory not to
provide copies of, nor to disclose, to any third party, the
Metrolink System documentation without the prior written
consent of the PURCHASER. NET 1 shall do its utmost to
preserve the confidentiality of the Metrolink System
documentation. The period of 6 (six) months referred to in
this clause may be extended by agreement between the parties.
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4.6. Upon signature of this agreement NET 1 shall place the system
documentation as approved by the PURCHASER in the possession
of NET 1's auditors, Messrs Deloitte Pim Goldby, and shall
cause such auditors to hold the system documentation in trust
on their behalf pending the payment of the purchase
consideration by the PURCHASER in terms of clause 7 hereof.
NET 1 hereby authorises and directs NET 1's auditors to
deliver the system documentation to the PURCHASER immediately
upon NET 1 receiving payment of the purchase consideration in
terms of clause 7 hereof. NET 1 shall cause NET 1's auditors
to confirm to the PURCHASER that they hold the system
documentation in accordance with the provisions of this
sub-clause, as soon as such auditors shall have received the
system documentation.
5.
LICENCE OF TRADE MARK
5.1. NET 1 hereby grants to the PURCHASER a licence to use the trade mark
NET 1 Logo in classes 9 and 16 of the Trade Marks Classification in
the territory in relation to goods forming part of the copyrighted
works.
5.2. The parties will enter into a registered user agreement in a form
normally used by NET 1's attorneys for the purposes of recording
licensees.
5.3. The PURCHASER agrees to join NET 1 in making application to the
proper authority for the registration of the PURCHASER as the
registered user of the trade mark and undertakes to execute such
documents as may be necessary for that purpose.
5.4. The PURCHASER will not in any way represent that it has any rights
of any nature in the trade mark or in any registrations thereof and
all use of the trade mark will enure to the benefit of NET 1.
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5.5. The PURCHASER will not register the trade mark, or any part of it,
or any trade mark which is deceptively or confusingly similar to the
trade mark as part of its company name or the name of any subsidiary
company or company with which it is associated either directly or
indirectly and if it does so, it will procure that such company name
is changed on demand by NET 1.
5.6. The PURCHASER has the right to use the NET 1 logo trade mark on all
smart cards and devices certified for use in the UEPS and used in
conjunction with the copyrighted works and when using the trade
mark, the PURCHASER will cause it to be reproduced exactly and
accurately and in accordance with specifications and directions laid
down by NET 1 from time to time.
5.7. The PURCHASER acknowledges that NET 1 is the owner of all rights of
whatever nature in the trade mark and that it has no claim of
whatever nature in and to the trade mark. The PURCHASER shall not at
any time attack or challenge the rights of NET 1 to the trade mark
or induce or procure any other person to attack or challenge such
rights:
5.8. The period of the trade mark licence shall be for the duration of
the use of the copyrighted works by the PURCHASER.
6.
PATENT LICENCE
6.1. Subject to the provisions of this agreement NET 1 hereby grants to
the PURCHASER an exclusive licence to use Patent No 89/7607 and
Patent No 90/7106 covering novel aspects of the UEPS in South Africa
for the duration of the patent or until such time as the PURCHASER
ceases to use the copyrighted works.
6.2. The parties will procure that the PURCHASER is recorded as a
licensee of the patent.
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6.3. The expiry of the patent will have no effect on the remaining
terms and conditions of this agreement.
7.
PURCHASE CONSIDERATION
7.1. By way of a consideration for the assignment of the copyrighted
works, the PURCHASER shall pay to NET 1 the sum of R3.5m (THREE AND
A HALF MILLION RAND) upon signature of this agreement. Such payment
shall be subject to NET 1 giving immediate effect to its obligations
in terms of clause 4.6 hereof.
7.2. The purchase consideration in 7.1 shall be paid without deduction or
demand and free of any bank exchange upon signature of this
agreement.
7.3. No consideration will be payable by the PURCHASER to NET 1 in
respect of the licences granted to the PURCHASER in clauses 5
and 6.
7.4. When NET 1 has received payment of the purchase consideration the
PURCHASER shall be entitled to request delivery of the system
documentation to them by NET 1's auditors.
8.
SOFTWARE MAINTENANCE
8.1. The parties will enter into a software maintenance agreement
with effect from 1 October 1990 containing the usual terms and
conditions to be found in software maintenance agreements in
the data processing industry. Such agreement shall provide
that the PURCHASER will pay to NET 1 a fixed monthly fee or
R80 000.00 payable in advance on or before the 1st day of each
and every month. The initial period of such maintenance
agreement will be 1 year and at the end of each year
thereafter the fee will be renegotiated between the parties.
After the first year of its existence, the software
maintenance agreement may be terminated on three months notice
by either party.
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8.2. In terms of the software maintenance agreement:
8.2.1. NET 1 shall ensure that the copyrighted works operate in
accordance with the UEPS as disclosed in the system
documentation and for this purpose will maintain the
copyrighted works.
8.2.2. NET 1 shall furnish all preventative and remedial
software maintenance to those items which affect system
security and are part of the copyrighted works.
8.2.3. NET 1 will test and certify changes to the copyrighted
works for use in the UEPS.
8.2.4. NET 1 will maintain compatibility of the copyrighted
works with the UEPS installed by it outside the
territory.
8.2.5. The PURCHASER will have the first option to acquire
enhancements to the copyrighted works at market related
prices.
8.2.6. NET 1 undertakes to provide at market related prices any
enhancements requested by the PURCHASER.
8.2.7. The PURCHASER will have the first option to acquire new
related NET 1 systems.
8.2.8. NET 1 will deliver to the PURCHASER revised software and
related system documentation reflecting all corrections
and adjustments made by NET 1 to the copyrighted works.
8.2.9. NET 1 undertakes to continuously employ at least two
people capable of performing the maintenance and
enhancements referred to in this clause.
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8.3. In the event that there is a change in the current shareholding of
NET 1, the PURCHASER shall, in addition to and without derogating
from any other remedies which it may have, be entitled to cancel the
software maintenance agreement forthwith in writing without
incurring any penalty.
9.
PATENT AND COPYRIGHT INDEMNITY
9.1. NET 1 shall defend or settle any claim or proceeding brought
against the PURCHASER based on a claim that -
9.1.1. any of the copyrighted works furnished by NET 1 in terms
of this agreement;
9.1.2. the use of the copyrighted works supplied by NET 1 in
terms hereof or of any part thereof by the PURCHASER
consistent with NET 1's specifications and instructions;
or
9.1.3. the copying of any of the copyrighted works, system
design documentation or manuals supplied by NET 1,
constitutes an infringement of any existing patent, copyright or
other intellectual property right; provided that the aforegoing
shall apply only where NET 1 is notified properly in writing and is
given complete authority and information required for the defence
thereof.
9.2. NET 1 shall pay all damages and costs awarded in any proceedings
referred to in clause 9.1 against the PURCHASER, but shall not be
responsible for any costs, expenses or compromise incurred or made
by the PURCHASER without NET 1's prior written consent.
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9.3. NET 1 shall have no liability in terms of sub-clauses 9.1 and 9.2
where any claim against the PURCHASER relates to subject matter
produced or used by or at the instigation of the PURCHASER without
the written consent of NET 1 in breach of any existing patent,
copyright or other intellectual property right.
9.4. The following provisions shall apply in the event that any item of
the copyrighted works supplied by NET 1 in terms of this agreement
is in NET 1's opinion likely to, or does, become the subject of a
claim for patent, copyright or other intellectual property right
infringement;
9.4.1. NET 1 may at its option and expense, procure for the
PURCHASER the right to continue using it, or may modify
it to become non-infringing; provided that nothing in
this sub-clause shall diminish NET 1's obligations in
terms of clauses 9.1 and 9.2.
9.4.2. If neither of the alternative referred to in clause
9.4.1 is reasonably available to NET 1, NET 1 may, with
the PURCHASER'S consent, remove the offending item of
the copyrighted works and any part of the UEPS rendered
unusable as a result of such removal.
9.4.3. If the PURCHASER does not consent to the removal of an
offending item of the copyrighted works as contemplated
in clause 9.4.2, the PURCHASER shall notify NET 1 in
writing, and may continue using such item. In this
eventuality the PURCHASER may undertake, at its own
expense, the defence of any action brought against it
and shall indemnify NET 1 in respect of any costs or
damages attributable to such continued use occasioned to
NET 1. NET 1 may at its own expense participate in the
defence of any such action if it is, or could become, a
party to such proceedings.
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9.4.4. Should NET 1 elect to remove the item of the copyrighted
works in terms of clause 9.4.1, NET 1 shall forthwith
replace it with a functionally equivalent non-infringing
item or take other appropriate action to ensure that the
amended software conforms to the system documentation to
the PURCHASER's satisfaction.
9.5. NET 1 shall not be liable to the PURCHASER in any way for any claim
based upon the use by the PURCHASER of any item of hardware or
software or combination therefor not supplied by NET 1, or upon the
use of such equipment supplied by NET 1 but modified by the
PURCHASER.
10.
LIMITED LIABILITY
Except as otherwise provided in this agreement:
10.1. NET 1 shall not be liable for any damages whether direct,
indirect, special or consequential arising out of the use of
the copyrighted works by the PURCHASER.
10.2. Without derogating from clause 10.1, save as specifically provided
herein NET 1 shall not be liable in respect of any lost profits or
any claim or demand against the PURCHASER by any other party.
10.3. Should any item of the copyrighted works be defective, such defect
will be dealt with at no further charge in terms of the software
maintenance agreement referred to in clause 8.
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11.
CARD AND ASSOCIATED HARDWARE
11.1. Subject to at least one other financial institution besides the Perm
becoming a shareholder of the PURCHASER, the PURCHASER shall order,
and/or procure that a shareholder of the PURCHASER shall order, the
first one million smart cards and 5000 P500 devices to be used in
and for the purposes of the UEPS from NET 1 on the basis of the
quotation annexed hereto marked Appendix 4. Such order(s) shall be
placed within 30 (thirty) days of this sub-clause becoming operative
and delivery pursuant to such order(s) by NET 1 shall be effected
over a period of 12 (twelve) months from the date of the order(s).
11.2. Thereafter the PURCHASER and shareholders of the PURCHASER shall be
entitled to purchase all POS devices, FTM's and smart cards from any
supplier thereof. The PURCHASER undertakes not to introduce any
device for use in conjunction with the copyrighted works which has
not previously been certified by NET 1 for use with the copyrighted
works. If such a device is introduced to the system, then in
relation to such device, NET 1's obligation to furnish all
preventative and remedial software maintenance in clause 8.2.2 of
this agreement will fall away.
11.3. The following general terms shall apply to the purchase
by the PURCHASER or a shareholder of the PURCHASER of
items of hardware from NET 1:
11.3.1. ownership of the hardware shall pass to the PURCHASER or
such shareholder, as the case may be, on payment of the
purchase price therefor;
11.3.2. the risk of loss or damage to the hardware shall pass to
the PURCHASER or such shareholder, as the case may be,
on delivery and acceptance of the hardware at the
address designated by it in the order, for such
hardware; and
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11.3.3. all cost of delivery shall be for the account of NET 1;
11.3.4. NET 1 shall be deemed to have made such warranties to
the PURCHASER or such shareholder, as the case may be,
in respect of the hardware as it is able to obtain from
the suppliers thereof and shall further be deemed to
have warranted that the items of hardware will (when
necessary or appropriate) have been properly encoded and
programmed for use in conjunction with the copyrighted
works and be secure as contemplated by clause 8.2.2 of
this agreement.
12.
INSTALLATION AND MAINTENANCE OF HARDWARE
The PURCHASER or a shareholder contemplated in clause 11.3, as the case may be,
shall itself arrange for the installation and maintenance of all hardware.
13.
RESTRAINT OF TRADE
13.1. NET 1, acknowledges that -
13.1.1. it will in the performance of its obligations in terms
of this agreement have the opportunity of learning and
acquiring the trade secrets, business connections, and
other confidential information relating to the
PURCHASER's business;
13.1.2. the only effective reasonable manner in which the
PURCHASER's rights in respect of the copyrighted works
and the proprietary rights in respect of their business,
their business secrets, confidential information and the
interest of their shareholders can be protected is by
the restraint imposed upon NET 1 in terms of this
clause.
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13.2 NET 1 shall not during the period of this agreement:
13.2.1. be interested (whether as proprietor, partner,
consultant, contractor, financier, agent, shareholder or
otherwise) in, or concerned with, any company,
corporation, firm, undertaking or concern which carries
on a business competitive with the business of the
PURCHASER in the territory insofar as such business
relates to the use of the copyrighted works or
copyrighted works competing therewith.
13.2.2. develop any software or any system which competes
directly with the copyrighted works developed and
installed for the PURCHASER pursuant to this agreement
for use in the territory by any person, company,
corporation, firm, undertaking or concern.
13.3. NET 1 may not within the territory during the currency of this
agreement or for a period of 3 (three) years after termination of
this agreement:
13.3.1. disclose any of the trade secrets or other information
regarding the affairs or activities of the PURCHASER to
any third person;
13.3.2. employ any of the employees of the PURCHASER or solicit
any employee of the PURCHASER for any other employer
carrying on a business competitive with the business of
the PURCHASER.
13.4. NET 1 acknowledges and agrees that:
13.4.1. the restraints imposed upon it in terms of the
provisions of this agreement are reasonable as to
subject-matter, period and territorial limitation and
are no more than are reasonably and necessarily required
by the PURCHASER to maintain the goodwill, business and
legitimate business interests of the PURCHASER;
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13.4.2. this agreement is entered into upon the basis and
condition that the PURCHASER is entitled to the benefit
of the restraints set out in this agreement interpreted
in their widest sense;
13.4.3. the restraints imposed upon the parties in terms of the
provisions of this agreement shall be construed as
imposing separate, severable and independent restraints
in respect of:
13.4.3.1. each magisterial district falling with the
geographical area contemplated in clause
13.2;
13.4.3.2. each capacity in relation to a competitive
activity which the parties are prohibited
from holding in terms of this agreement.
13.5. The PURCHASER hereby makes identical undertakings and
acknowledgements, mutatis mutandis, in favour of NET 1 as those set
out in clauses 13.1 and 13.3 and undertakes in the territory similar
restraints, mutatis mutandis, to those placed on NET 1 during the
period of this agreement.
14.
USE OF CONFIDENTIAL INFORMATION
14.1. Neither party shall divulge or disclose to any third parties any
information concerning the affairs of the other party which may be
communicated to it at any time unless such information becomes
publicly available through no fault of such party.
14.2. NET 1 shall not within the territory, and the PURCHASER shall not
outside the territory use, exploit or divulge or disclose to third
parties any business systems or methods, proprietary systems or
application programs of the other party of which it may gain
knowledge while working with the other party, or in the course of
performing its obligations in terms of this agreement, except with
the prior written consent of the other party.
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15.
ARBITRATION
15.1. Should any dispute arise between the parties in connection
with:
15.1.1. the formation or existence of;
15.1.2. the implementation of;
15.1.3. the interpretation or application of the provisions of;
15.1.4. the parties' respective rights and obligations in terms
of or arising out of this agreement or its breach or
termination;
15.1.5. the validity, enforceability, rectification, termination
or cancellation, whether in whole or in part of;
15.1.6. any documents furnished by the parties pursuant to the
provisions of;
15.1.7. the performance of either party in terms of;
this agreement or which relates in any way to any matter affecting
the interests of the parties in terms of this agreement, that
dispute shall, unless resolved amongst the parties to the dispute,
be referred to and be determined by arbitration in terms of this
clause.
15.2. Any party to this agreement may demand that a dispute be determined
in terms of this clause by written notice given to the other
parties.
15.3. This clause 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.
15.4. The arbitration shall be held -
15.4.1. at Johannesburg;
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15.4.2. with only the legal and other representative of the
parties to the dispute present thereat;
15.4.3. mutatis mutandis in accordance with the provisions of
the Supreme Court Act, No 59 of 1959, the rules made in
terms of that Act and the practice of the division of
the Supreme Court referred to in clause 15.10;
15.4.4. otherwise in terms of the Arbitration Act, No 42 of
1965,
being the intention that the arbitration shall be held and
completed as soon as possible.
15.5. The arbitrator shall be, if the matter in dispute is
principally:
15.5.1. a legal matter, a practising advocate or attorney of
Johannesburg of at least 15 (fifteen) years' standing;
15.5.2. an accounting matter, a practising chartered accountant
of Johannesburg of at least 15 (fifteen) years'
standing;
15.5.3. any other matter, any independent person,
agreed upon between the parties to the dispute.
15.6. Should the parties to the dispute fail to agree whether the dispute
is principally a legal, accounting or other matter within 7 (seven)
days after the arbitration was demanded, the matter shall be deemed
to be a legal matter.
15.7. Should the parties fail to agree on an arbitrator within 14
(fourteen) days after the giving of notice in terms of clause 15.2,
the arbitrator shall be appointed at the request of either party to
the dispute by the President for the time being of the Transvaal Law
Society according to the provisions of clause 15.5.
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15.8. Where the matter, whether legal, accounting or any other matter as
contemplated in clause 15.5 requires a decision on or any discussion
of the performance or alleged non-performance of the system or any
part thereof, then the arbitrator shall employ as an assessor an
independent person qualified in computer related matters, including
in particular the development and maintenance of hardware and
software systems, as agreed by the parties and failing agreement by
them, as chosen by the arbitrator in his sole discretion.
15.9. The decision of the arbitrator shall be final and binding on the
parties to the dispute and may be made an order of the court
referred to in clause 15.10 at the instance of any of the parties to
the dispute.
15.10. The parties hereby consent to the jurisdiction of the Supreme Court
of South Africa (Witwatersrand Local Division) in respect of the
proceedings referred to in clause 15.3.
15.11. The parties agree to keep the arbitration including the
subject-matter of the arbitration and the evidence heard during the
arbitration confidential and not to disclose it to anyone except for
purposes of an order to be made in terms of clause 15.9.
15.12. The provision of this clause:
15.12.1. 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;
15.12.2. 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.
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16.
PROMOTION OF THE UEPS
NET 1 shall have the right of access to the UEPS and the Metrolink System in
order to promote their sale outside of the territory, subject to such security
requirements stipulated by the PURCHASER or any of the financial or other
institutions making use of the system, and to demonstrate the UEPS and the
Metrolink System to prospective customers outside the territory. NET 1 shall
also have the right to make a film or video of the UEPS in operation for
demonstration and promotional purposes.
17.
NOTICE AND DOMICILIUM
17.1. The parties choose as their domicilia citandi et executandi their
respective addresses set out in clause 2 for all purposes arising
out of in connection with this agreement at which addresses all
processes and notices arising out of or in connection with this
agreement, its breach or termination may validly be served upon or
delivered to the parties.
17.2. For the purposes of this agreement the parties' respective addresses
shall be as set out in clause 2 or at such other address, not being
a post office box or poste restante, of which the party concerned
may notify the other in writing.
17.3. Any notice given in terms of this agreement shall be in
writing and shall:
17.3.1. if delivered by hand be deemed to have been duly
received by the addressee on the date of delivery;
17.3.2. if posted by prepaid registered post be deemed to have
been received by the addressee on the 8th (eighth) day
following the date of such posting;
17.3.3. if given by telegram be deemed to have been received by
the addressee 1 (one) day after despatch;
ASSIGNMENT OF COPYRIGHT PAGE 22
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17.4. Notwithstanding anything to the contrary contained in this
agreement, a written notice or communication actually received by
one of the parties from another, including by way of telex or
facsimile transmission, shall be adequate written notice or
communication to such party.
18.
TERMINATION
18.1. If the PURCHASER:
18.1.1. breaches any term of this agreement and fails to remedy
such breach within 30 (thirty) days, or such longer
period as may be reasonable in the circumstances, of
written notice by NET 1 calling upon it to do so; or
18.1.2. the PURCHASER is finally liquidated or placed under
provisional or final judicial management then,
an event of default shall be deemed to have occurred entitling NET 1
to cancel this agreement.
18.2. If NET 1:
18.2.1. breaches any term of this agreement and fails to remedy
such breach within 30 (thirty) days, or such longer
period as may be necessary in the circumstances, of
written notice from the PURCHASER calling upon it to do
so; or
18.2.2. is finally liquidated or placed under provisional or
final judicial management;
an event of default shall be deemed to have occurred entitling the
PURCHASER to cancel this agreement. Such cancellation shall not
affect the PURCHASER'S
ASSIGNMENT OF COPYRIGHT PAGE 23
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rights to the licence of the trade mark in clause 5 or the patent
licence referred to in clause 6 of this agreement.
18.3. Notwithstanding the termination of this agreement for whatsoever
cause the PURCHASER will not be entitled to recover repayment of the
sum of R3.5m (THREE AND A HALF MILLION RAND) paid by it in terms of
clause 7 and NET 1 shall be entitled to retain the said sum.
19.
WHOLE AGREEMENT
This agreement constitutes the whole agreement between the parties as to the
subject-matter hereof and no agreements, representations or warranties between
the parties other than those set out herein are binding on the parties.
20.
VARIATION
No addition to or variation, consensual cancellation or novation of this
agreement and no waiver of any right arising from this agreement or its breach
or termination shall be of any force or effect unless reduced to writing and
signed by both parties or their duly authorised representatives.
21.
RELAXATION
No latitude, extension of time or other indulgence which may be given or allowed
by either party in respect of the performance of any obligation hereunder or the
enforcement of any right arising from this agreement, and no single or partial
exercise of any right by any party, shall under any circumstances be construed
to be an implied consent by such party or operate as a waiver or a novation of,
or otherwise affect, any of that party's rights in terms of or arising from this
agreement or estop such party from enforcing, at any time and without notice,
strict and punctual compliance with each and every provision or term hereof.
ASSIGNMENT OF COPYRIGHT PAGE 24
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22.
COST AND STAMP DUTY
22.1. All legal costs of negotiating, drafting, preparing and implementing
this agreement and the appendices to it shall be paid by the
PURCHASER.
22.2. Any stamp duty payable in respect of this agreement or any
transaction recorded herein shall be paid by the PURCHASER.
SIGNED AT on
AS WITNESSES:
1.
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2.
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SIGNED AT on
AS WITNESSES:
1.
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2.
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