STANDARD TERMS AND CONDTIIONS OF TRADE
1 ID SCAN (PROPRIETARY) LIMITED
1.1 ID Scan (Proprietary) Limited (“Company”) provides a proprietary decentralised animal biometrics authentication and storage software and associated services (the “Services”, as further defined below).
1.2 These Terms of Service (the “Terms”), together with the online registration process (as defined below) govern your access and use of the Services (as defined below).
2.1 “You,” “Your” or “Customer” means the person or entity which has entered into and completed the online registration process which grants them access and the ability to use the Services.
2.2 The Online Registration, together with these Terms (collectively, the “Agreement”) constitute the complete agreement between Company and customer (each a “Party” and collectively, the “Parties”) and supersede any prior discussions or representations regarding the use of the Services. Any additional terms and/or conditions which you add or incorporate are excluded and shall be null and void.
2.3 By executing or confirming the online registration process to which these terms have been incorporated, you expressly acknowledge and agree that you have read the agreement and agree to be bound by it. If you are an individual entering into the agreement on behalf of a legal entity, you hereby confirm that you are authorised to enter into this agreement on behalf of such entity and bind such entity to this agreement, in which case, the terms “You” and “Your” and “Customer” will refer to such entity.
3.1 Definitions. As used in this Agreement, the following terms shall be defined as follows:
3.1.1 “Affiliate” means any natural person or entity that directly or indirectly, controls or is controlled by or is under common control of a Party;
3.1.2 “Animal” means any animal captured on the Company’s Software systems for which an unique identification number has been allocated and an Ownership Certificate may be generated;
3.1.3 “Animal Credits” mean a form of voucher and/or token required to enable the ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx Customer to onboard an Animal on the System and enable the generation of an Ownership Certificate and the future re-identification of such an Animal; 3.1.4 “Animal Onboarding” means the process of collecting an Animal’s physical characteristics such as:
188.8.131.52 Head Characteristics (for example presence of horns or not); and
184.108.40.206 Other characteristics such as the presence of an ear tag, any brandmarks; and other additions to the Animals body utilised either as part of the Customer’s herd management and/or for identification of the individual Animal; and thereafter linking such animal to a Customer by utilising inter alia the Animal’s Biometric Data and providing such Animal with a unique identifying number for future identification;
3.1.5 “APIs” mean the application programming interfaces that enable the integration of the Authentication Solution with Customer’s systems;
3.1.6 “Applicable Law” means any constitution, law, statute, treaty, rule, regulation, directive, ordinance, order, code, interpretation, judgment, decree, injunction, permit, license, authorisation, requirement or decision of or agreement with or by any legislative, judicial, administrative, or other governmental authority;
3.1.7 “Authentication Solution” means Company’s biometric authentication solution, which may include liveness detection, biometric matching, decentralised biometric storage and/or integration into Third Party applications; 3.1.8 “Authorised Representatives” means contractors and/or service providers of the Customer:
220.127.116.11 who are acting on Customer’s behalf in the internal operation of Customer’s business,
18.104.22.168 who are subject to confidentiality agreements with Customer at least as protective of Company’s Confidential Information as this Agreement;
22.214.171.124 who are bound by the terms and conditions of this Agreement; and ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
126.96.36.199 for whose acts, omissions and compliance with all applicable terms and conditions of this Agreement, Customer is responsible and jointly and severally liable with such contractors;
3.1.9 “Authorised Users” mean Customer’s employees or Authorised Representatives.
3.1.10 “Biometric Data” means biometric data, identifiers, markers and information, as defined under Applicable Law, including technical or algorithmicallygenerated data regarding an animal’s physical, or behavioural characteristics that allows for an animal’s identification, including nose or face geometry, retinal or iris scans, nose prints, or other biometric identifiers or biometric information about an Animal.
3.1.11 “Customer Data” means any confidential information and Personal Data provided by Customer or any Authorised User to the Company or which may be generated or Processed in connection with Customer and any Authorised User’s use of the Services.
3.1.12 “Data Base” means the Company’s decentralised storage product which utilises the Company’s Authentication Solution.
3.1.13 “Documentation” means the standard written and published materials regarding operation of the Software and Services, as may be updated from timeto-time;
3.1.14 “Effective Date” means the date upon which Customer completes the online registration process;
3.1.15 “Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill.
3.1.16 “Online Registration” means the process of entering Customer’s details on Company’s website or through its mobile application registration process, which once completed will be regarded as an agreement entered into between Company and Customer into which these Terms are incorporated as an attachment or will be available online through a link.
3.1.17 “Ownership Certificate” means a certificate generated by the Company in respect of each Animal which inter alia provides confirmation of ownership of ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx an Animal based on information obtained by the Customer and the Biometric Data of such Animal captured by the Software;
3.1.19 “Professional Services” means the implementation, training and consulting services, as performed by the Company;
3.1.20 “Services” means the products and services offered by the Company subscribed to by the Customer in accordance with the Online Registration and accessed and used through the Software and APIs;
3.1.21 “Software” means the Company software products as a service on a prepaid basis;
3.1.22 “Term” means the period commencing on the Customer’s successfully completing the Online Registration and acquire at least one Animal Credit and ending on the earlier of:
188.8.131.52 The termination of this Agreement by either party; or
184.108.40.206 In the event that the Customer has not utilised at least one Animal Credit – on the expiry of a period of 36 (thirty-six) months after the date of acquisition of the last Animal Credit; or
220.127.116.11 In the event that the Customer has utilised at least one Animal Credit – 96 (ninety-six) months after date of utilisation (onboard of an Animal) of the last Animal Credit;
3.1.23 “Third-Party Services” mean products or services that are provided by a party other than the Company which are integrated into or are provided as part of the Services;
3.1.24 “Third-Party Terms” mean the terms and agreements, including service level agreements, provided by Third-Party Services providers. 3.2 The words “including” or “includes” shall not be limiting and shall be deemed to state “without limitation”. Conjugates of defined terms shall have the meanings assigned to the defined terms. Any capitalised terms used herein but not otherwise defined shall have the meanings provided under Applicable Law. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
4 ANIMAL CREDITS
4.1 In order to utilise the Software and Onboard Animals, Customers are required to acquire Animal Credits on a prepaid basis.
4.2 The Company will invoice the Customer upon execution of the acquisition and payment of any number of Animal Credits.
4.3 All Fees due shall be in South African Rand only and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges and/or duties, which shall be the Customer’s responsibility.
4.4 The purpose of the Animal Credits is to facilitate the transfer of value to enable Animal Onboarding. One Animal Credit affords Customer the ability to onboard one Animal on the Software.
4.5 The pricing per individual Animal Credit will be the prevailing prices as stipulated at the time of acquiring an Animal Credit. 4.6 Animal Credits are valid for a period of 36 (thirty-six) months from date of acquisition and are non-transferable and non-refundable and cannot be exchanged, either fully or in part for cash of any amount (“Validity Period”). 4.7 During the Validity Period as referred to in
4.6 the Customer would be able to utilise each Animal Credit to onboard an Animal. Once utilised (“the Utilisation Date”) to onboard and Animal, each Animal Credit will afford the Customer the ability to retrieve and/or identify such Animal for a period of no less than 60 (sixty) months calculated from the Utilisation Date. After the 60 (sixty) month period, the Customer will be required to again allocate an Animal Credit for each Animal, should they still wish to be able to retrieve and/or identify of such an Animal using the Software.
4.8 The Animal Credits do not confer any rights, express or implied, other than the right to use the Animal Credits as a means to participate in the Software, if successfully completed and deployed, in a manner consistent with its purpose. In particular, the Customer understands and accept that the Animal Credits does not represent or confer any ownership right or stake, share or security or equivalent rights, or any right to receive future revenue shares, intellectual property rights or any other form of participation in or relating to the Software, and/or the Company and its corporate affiliates, other than rights relating to onboard Animal on the Software, subject to limitations and conditions in these terms and conditions. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
4.9 The Animal Credits are not intended to be a digital currency, security, commodity or any other kind of financial instrument.
5 SOFTWARE AND SERVICES
5.1 The Company’s Services shall include the following:
5.1.1 Company’s Authentication Solution; 5.1.2 The Data Base; and
5.1.3 Professional Services.
5.2 The Customer acknowledges and agrees that the Software may include ThirdParty Services. The Customer agrees that its use of Third-Party Services, and the Company’s liability with respect to Third-Party Services, are each subject to the Third-Party Terms of the Third-Party Services. The Customer acknowledges that the Company may be required to accept the Third-Party Terms directly with the provider of the Third-Party Services prior to using the Services. To the extent the Company accepts any such Third-Party Terms as part of setting up any such services; the Customer authorise the Company to act as the Customer’s limited agent for this purpose, and further agrees that the Company is in no event a party to any such Third-Party Terms.
5.3 The Company may grant the Customer access to the certain Services on a trial basis (the “Evaluation Service”). The Customer may only use the Evaluation Service for Customer’s internal evaluation purposes for a period of thirty (30) days, unless otherwise stated in the Online Registration process.
5.4 Notwithstanding any other provision of this Agreement, the Customer understands and acknowledges that the Company is providing the Customer with access to the Evaluation Service (i) on an “AS IS” basis; (ii) with no maintenance or support; and (iii) on a quitclaim basis, with no indemnification obligation by, or liability of, the ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx Company. The Company disclaims all warranties and makes no representations in connection with the Customer’s access and use of the Evaluation Service.
5.5 The Company may restrict and limit the Customer’s access to the Evaluation Service and may block some features that may be provided as part of the Services. At the end of the Evaluation Period, Customer’s access to the Evaluation Service will be terminated unless: Customer elect to subscribe to the Services and acquire at least one Animal Credit.
5.6 The Professional Services the Company may provide to the Customer, shall be pursuant to a mutually agreed statement of work and will primarily be aimed to assist the Customer with bulk uploading and onboarding of Animals on the Software.
6 RESTRICTION OF USE
6.1 This Agreement confers no title or ownership and is not a sale of any rights in the Services or any of Company’s Software, or APIs. All rights not expressly granted to the Customer are reserved solely to the Company and/or its licensors. Nothing herein shall be construed as granting the Customer, by implication, estoppel or otherwise, a license relating to the Services other than as expressly stated in this Agreement.
6.2 The Customer may only use the Services within the Customer’s organisation and for internal purposes and only Authorised Users may be granted access to the Services.
6.3 The Customer shall not:
6.3.1 reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Software, or APIs;
6.3.2 modify the Services,
6.3.3 otherwise translate or use the Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing;
6.3.4 sublicense, transfer and/or assign (except as otherwise expressly provided herein) the Services to any third party, whether with or without consideration;
6.3.5 render any services to third parties using the Services, except as otherwise ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx permitted in writing by the Company;
6.3.6 remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Services;
6.3.7 allow any third parties to use the Services (except as otherwise expressly provided herein);
6.3.8 use the Services in any manner to create a product or service competitive with the Services or Software; or 6.3.9 interfere with, burden or disrupt the Services’ functionality. The Customer may not make any copies of the Software or Services or any portions thereof.
6.4 THE CUSTOMER MAY NOT USE THE SERVICES FOR, OR IN CONJUNCTION WITH, ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW IN THE JURISDICTIONS WHERE CUSTOMER ENGAGES IN ACTIVITY OR BUSINESS. COMPANY MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICES. THE COMPANY MAY TERMINATE THE AGREEMENT WITHOUT PRIOR NOTICE AND AT ITS SOLE DISCRETION, IF THE COMPANY DEEMS THE CUSTOMER’S USE OF THE SERVICES TO BE ILLEGAL, FRAUDULENT OR ABUSIVE.
6.5 The rights granted to the Customer hereunder may be exercised by approved Customer Affiliates, provided that the Customer shall remain responsible at all times for such Affiliates’ compliance with all applicable terms and conditions of this Agreement and shall be jointly and severally liable for any breach of this Agreement by such Affiliate.
7 PROPRIETARY RIGHTS AND CONFIDENTIALITY
7.1 The Company (or its licensors, as applicable) will retain all title to and ownership of the Software, Services, Professional Services, and all related concepts, technical know-how, and all modifications, customisations, revisions, bug fixes, enhancements, improvements and derivative works, but excluding any Customer Data provided by the Customer (collectively, the “Derivative Works”) thereof developed by the Company or anyone else, including the Customer, and further including all Intellectual Property Rights and, except for the expressed limited ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx license granted hereunder, the Customer shall have no rights in or claims with respect thereto. The Customer shall retain all Intellectual Property Rights in its Customer Data. To this extent it shall be determined that Customer has any right in connection with the Services, Professional Services, or Derivative Works other than the limited specific license hereunder, The Customer hereby irrevocably:
7.1.1 assigns to theCompany any right, title and interest, whether now existing or later, arising, and all Intellectual Property Rights that the Customer may have in or to the Services, Professional Services, Derivative Works, and/or related Intellectual Property Rights; and 7.1.2 agrees to take any lawful action that the Company reasonably requests to vest or protect the Company’s right, title and interest therein.
8 CUSTOMER DATA
8.1 The Customer hereby grants the Company a non-exclusive license to perform operations (or sets of operations, including to collect, generate, use, store, transmit, analyse, record, adapt, combine, organise, delete, display and otherwise process (“Process”) in connection with the Services and in reports generated for the Customer all Customer Data during the Term for the limited purposes of performing the Company’s obligations under this Agreement and providing the Services to the Customer. Prior to providing any Customer Data to the Company, the Customer shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for the Customer’s use of the relevant Customer Data as necessary to enable the Customer to grant the rights granted by this paragraph
8. 8.2 The Parties acknowledge and agree that the Company will not provide any Biometric Data to the Customer.
8.3 To the extent permitted by Applicable Law, the Company may aggregate or otherwise de-identify Customer Data provided through the Services (“DeIdentified Data”), and may use the De-Identified Data for the Company’s business purposes, including enhancements to the Software and Services, to market and sell the Software and Services, and to analyse, improve, support and operate the Software and Services, provided that the Company shall not identify the Customer or any Customer Data as part of the De-Identified Data. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
9 LIMITED WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION.
9.1 The Company warrants to the Customer during the Term that the Company (or its licensors) has all the necessary rights thereto to allow the Customer access to the Software and Services and shall materially conform the Documentation.
9.2 THE FOREGOING LIMITED WARRANTY SHALL NOT APPLY TO THE EXTENT THE BREACH OF WARRANTY ARISES FROM:
9.2.1 USE OF THE SERVICES OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION;
9.2.2 ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE SERVICES PERFORMED BY ANYONE OTHER THAN COMPANY OR UPON THE COMPANY’S WRITTEN AUTHORISATION; OR
9.2.3 ANY UNAUTHORISED COMBINATION OR INTERFACING OF THE SERVICES WITH SOFTWARE.
9.3 The Customer’s sole and exclusive remedy for breach of the warranties set forth in paragraph
9.1 shall be that the Company, at the Company’s sole discretion, will repair, replace or provide a reasonable workaround for the defective and/or nonconforming portion of the Services within thirty (30) days after receiving written notice of the breach of the warranty that describes in detail the specific nature of the defect and/or non-conformity.
10 PROFESSIONAL SERVICES
10.1 Employees of the Company performing Professional Services hereunder will have reasonable skill and training to perform the Company’s obligations in a good and workmanlike manner consistent with professional standards in the Company’s industry.
10.2 The Customer’s sole and exclusive remedy for any breach of the foregoing Professional Services warranty shall be, at the Company’s option, re-performance of the non-conforming Professional Services one time. The Company’s warranty obligations under this Section
10.3 are conditioned upon the Customer providing the Company with a detailed written notice of any claimed breach of the warranty within thirty (30) days of occurrence of the alleged breach.
10.3 The Customer represents and warrants that its, and its Authorised Users’ use of the Services, and access to and collection, use, relocation, storage, disclosure, ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx transfer, and disposition of the Customer Data shall comply with all Applicable Laws, including all privacy, data protection and biometric data laws.
10.4 Each Party represents and warrants to the other that:
10.4.1 it is duly organised, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; and
10.4.2 it has the right and full power and authority to enter into this Agreement.
11.1 EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, PROFESSIONAL SERVICES, AND ANY OTHER COMPANY PRODUCTS OR SERVICES PROVIDED BY THE COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND THE COMPANY, ITS AFFILIATES, AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND/OR DATA ACCURACY.
11.2 THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY THE COMPANY WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
11.3 IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, AND REGARDLESS OF WHETHER THE COMPANY OR ITS AFFILIATES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, INCLUDING FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANYTHING TO BE DONE OR FURNISHED UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY, AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, EXCEED THE FEES PAID BY THE CUSTOMER TO THE COMPANY FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM.
11.4 THE COMPANY SHALL HAVE NO LIABILITY FOR THE CUSTOMER DATA INPUT, OUTPUT, ACCURACY, AND SUITABILITY, WHICH SHALL BE DEEMED UNDER THE CUSTOMER OR CUSTOMERS’ EXCLUSIVE CONTROL.
12 INDEMNIFICATION BY COMPANY.
12.1 The Company agrees to defend, at its expense, the Customer and its directors, officers and employees (collectively, the “Customer Indemnified Party”) from and against any third-party claims alleging that the Customer Indemnified Party’s use of the Services in strict accordance with this Agreement infringes and/or misappropriates third party patents, trademarks and copyright and/or trade secrets.
12.2 In connection with the foregoing, the Company shall indemnify the Customer, Indemnified Party, against all damages finally awarded against the Customer in a final judgment or settlement of any of the foregoing claims that are specifically attributable to such suit or action. The Customer Indemnified Party shall give the Company prompt written notice of any such third party claim; provided however, that the Customer Indemnified Party’s failure to do so shall not reduce or diminish the Company’s obligations hereunder except to the extent the Company has been adversely affected or prejudiced by such failure. The Company shall have no obligation under this paragraph
12.2 as to any claim, unless the Company will have sole control of its defense or settlement of any third party claim hereunder, provided however, that the Company shall not, without the Customer Indemnified Party’s prior written consent, settle any claim in a manner that admits liability on the part of the Customer Indemnified Party. The Customer Indemnified Party shall reasonably cooperate with the Company in the defense as the Company may reasonably request (it being understood that nothing herein shall preclude the Customer Indemnified Party from consulting with its own counsel at its own expense). If the Customer is, or the Company believes it may become, prohibited from continued use of the Services by reason of an actual or anticipated claim of ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx infringement involving the Company’s Software, the Company shall, at its option and expense, (i) obtain for the Customer the right to continue using the Software, (ii) replace or modify the Software so that it is no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, terminate this Agreement and/or refund to the Customer a prorated portion of any pre-paid Fees paid by the Customer as of the date of termination for the Services subject to the claim, in which case the Customer will cease use of the Services and return or provide to the Company all materials related to the Services subject to such claim.
12.3 The indemnification set forth in this paragraph 12 does not apply to the extent of the Customer’s negligence, abuse or misapplication of the Services; use of the Services other than as specified in the applicable Documentation; any alterations, modifications or adaptations of the Services performed by anyone other than the Company; any unauthorised combination or interfacing of the Services with other hardware or software; or other causes beyond the reasonable control of the Company.
13 INDEMNIFICATION BY CUSTOMER
13.1 The Customer shall indemnify, defend and hold harmless the Company, and its directors, officers, employees, independent contractors, and/or Affiliates (the “Company Indemnified Party”) from and against any and all costs, liabilities, losses and expenses, including reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against a the Company Indemnified Party relating to: (a) a breach or alleged breach by the Customer of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation, or allegation of the foregoing, of any Intellectual Property Rights by the Customer; (c) any negligence or willful misconduct of the Customer or its representatives; (d) any claim or allegation related to the Customer’s performance under this Agreement; (e) The Customer’s use of or access to the Services, except to the extent of the Company’s breach of its obligations under this Agreement; (f) an allegation that the Customer failed to obtain all necessary consents or rights to Animals, and for the Company or the applicable third parties to process, the Customer Data as provided in this Agreement; (g) an allegation that the Customer failed to retain or protect the Customer Data which was under the Customer’s or Customers’ contractors’ control; (h) an allegation that the Customer failed to address an individual’s rights with respect to Customer Data and/or Animals; (iv) any dispute between the ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx Customer and any customer of the Customer.
14 INDEMNIFICATION PROCEDURES
The Party seeking indemnity (“Indemnified Party”) shall notify the other Party (“Indemnifying Party”) promptly in writing of any claim for indemnification hereunder. At Indemnifying Party’s cost and expense, Indemnifying Party shall promptly take control of the defense of such claim, and shall defend such claim, including the control of the defense and all related settlement negotiations; provided that Indemnified Party shall be fully released in connection with any final settlement and shall be entitled to approve the final settlement. Indemnified Party shall provide Indemnifying Party with reasonably requested assistance, information and authority to perform the above. If Indemnifying Party does not assume control of the defense of the claim for which indemnity is being sought, Indemnified Party may defend such claim in such manner, as it deems appropriate at the cost and expense of Indemnifying Party.
15 TERM AND TERMINATION.
15.1 The term of this Agreement shall begin on the date upon which Customer completes the Online Registration and continue until terminated as provided in this paragraph
15. 15.2 Either Party may terminate this Agreement if the other Party materially breaches or otherwise fails to comply with any provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice of such breach or failure or immediately if such breach or failure is not capable of being cured.
15.3 If the Agreement is terminated by the Customer:
15.3.1 The Customer will from the termination date no longer have any access to the Software; and
15.3.2 any unutilised Animal Credits shall immediately be forfeited. 15.4 Termination shall be without prejudice to the rights and remedies of either Party that may have accrued prior to such termination.
15.5 For the avoidance of doubt, the Customer shall not be entitled to a refund or transfer of any unutilised Animal Credits upon termination or expiration of this Agreement, and termination or expiration of this Agreement does not release the Customer from its obligations that have accrued under this Agreement prior to its termination. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
15.6 Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect.
16 FORCE MAJEURE
Neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including labour shortages or disputes, strikes, other labour or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemics, pandemics, or public health emergencies, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, acts of civil or military authorities, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.
17.1 Save as expressly otherwise provided for in this Agreement, any dispute arising out of or in connection with this Agreement, including any dispute as to its existence, validity, enforceability or termination, shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa or its successor-in-title (“AFSA”) by an arbitrator appointed by AFSA. There shall be no right of appeal as provided for in article 22 of such rules.
17.2 If AFSA no longer exists then the arbitrator shall be appointed by the President for the time being of the Law Society of the Northern Provinces and the arbitration shall be conducted in accordance with the Arbitration Act No. 42 of 19365.
17.3 Notwithstanding anything to the contrary contained in this 17, any Party shall be entitled to obtain term relief on an urgent basis from any competent court having jurisdiction pending the decision of the arbitrator.
17.4 For the purposes of 17.3 and for the purposes of having any award made by the Arbitrator being made an order of court, each of the Parties hereby submits itself to the non-exclusive jurisdiction of the High Court of South Africa, Johannesburg.
17.5 This paragraph 17 is severable from the rest of this Agreement and shall remain in full force and effect notwithstanding any termination or cancellation of this ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx Agreement, or any part thereof.
18 NOTICES AND DOMICILIA
18.1 The Company selects as its domicilia citandi et executandi 15 Catherine Avenue, Northcliff, Johannesburg or such other address as provided for in any amendments to this Agreement and published from time to time.
18.2 The Customer selects as its domicilia citandi et executandi the physical addresses as provided during the Online Registration or such physical address as updated from time to time as part of its profile associated with the Software.
19.1 This Agreement constitutes the sole record of the agreement between the Parties in relation to the subject matter hereof. No Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. The Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the Parties in respect of the subject matter hereof.
19.2 No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the Company unless contained herein. 19.3 The Company shall be entitled to cede, delegate, assign or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, this Agreement to any third party without the prior written consent of the Customer.
20 GOVERNING LAW
This Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of South Africa which is applicable to agreements executed and wholly performed within South Africa. 21 COSTS Each Party shall bear its own costs in relation to the negotiation, drafting, finalisation and implementation of this Agreement. 22 SIGNATURE On the Signature Date, each Party that is a trust, company or close corporation shall deliver to the other Parties a certified copy of a resolution of the board of ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx directors/trustees of that Party approving the conclusion and implementation of this Agreement.
23.1 This Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by and construed in accordance with the laws of the Republic of South Africa, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the Republic of South Africa. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Services, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in the Republic of South Africa.
23.2 Subject to the confidentiality obligations under this Agreement and upon notification to the Customer, the Company may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of the Customer or any of its Affiliates) and display the Customer’s logos and trademarks in the Company’s website and promotional or advertising literature, without the consent of the Customer. Except as expressly provided herein, the Company shall not obtain any rights with respect to the Customer’s logos and/or trademarks.
23.3 Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, with the exception of an assignment carried out by the Company as part of a merger, restructuring, or reorganisation, or as a sale or transfer of all or substantially all of the Company’s assets or equity. Any assignment in violation of the foregoing shall be null and void. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.
23.4 Except as otherwise expressly provided in this Agreement, all notices or demands required or permitted pursuant to this Agreement shall be in writing, and shall be sent (i) by courier or in person with signed receipt, (ii) by nationally recognised overnight delivery service, prepaid, with signature required, or (iii) by email with receipt confirmation, and in each case shall be sent to the other Party at the address set forth in an applicable Order Form or to such other addresses as either Party may designate from time to time by notice to the other Party in accordance with this Section
23.4. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
23.5 Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.
23.6 If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the Parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
23.7 No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto.
23.8 This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by either Party will supersede, contradict, vary or modify the terms and conditions of this Agreement, and any such document issued by a Party hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between documents, the conflict or inconsistency shall be resolved by giving precedence in the following order (in each case, as may be amended): (1) the Data Processing Addendum; (2) these Terms; and (3) the terms of any Order Form into which these Terms are incorporated.
23.9 The Parties acknowledge that money damages may not be an adequate remedy in the event of actual or threatened breach of the obligations and/or undertakings hereunder. Therefore, in addition to any other remedies available hereunder, by law or otherwise, either Party will be entitled to seek and obtain injunctive relief and/or any other appropriate decree of specific performance or any other appropriate equitable relief.
23.10 The Parties to this Agreement are independent. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent. ID SCAN (PROPRIETARY) LIMITED – STANDARD TERMS AND CONDITIONS OF TRADE (7 SEPTEMBER 2022).docx
23.11 This Agreement, any related Online Registration, or any amendments thereto, may be executed by acceptance online or in one or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may transmit their signatures via facsimile, scanned PDF, e-signature, or other electronic means with the same effect as if the Parties had provided each other with original signatures.