Terms & Conditions
1) The Customer agrees that:
a) this Agreement represents the entire Agreement between the Customer and SALT Essential Information Technology (Pty) Ltd. (hereinafter called SALT) and that no alterations or additions to this Agreement may be effected unless agreed o by both parties, reduced to writing and signed by the Customer and a duly authorized representative of SALT;
b) this Agreement will govern all future contractual relationships between the parties;
c) this Agreement is final and binding and is not subject to all existing debts between the parties;
d) this Agreement is final and binding and is not subject to any suspensive or dissolutive conditions;
e) any conflicting conditions stipulated by the Customer are expressly excluded;
f) these terms supersedes all previous conditions of agreement without prejudice to any securities or guarantees held by SALT and
g) these terms apply to all servants and subcontractors of SALT.
2) The Customer acknowledges that it does not rely on any representations made by SALT in regard to the goods and services or any of its qualities leading up to this Agreement other than those contained in this Agreement. Any recommendation, formula, advice, dimension, weight, specifications, price list, performance figure, advertisement, brochure, and other technical data furnished by SALT in respect of the goods or services or orally or in writing is approximate and for information only and will not form part of the Agreement in any way unless agreed to in writing by SALT.
3) The Customer warrants that neither SALT nor any of its employees will be liable under any circumstances whatsoever for any loss or damage arising out of rendered services by SALT or any of its agents/employees, or the use of the items purchased, or the use by Customer of any misrepresentation, material or information referred to in Clause 2) whether furnished negligently or innocently.
4) It is the sole responsibility of the Customer to determine that the goods or services ordered are suitable for the purposes of intended use.
5) The Customer agrees to pay all costs resulting from any acts or omissions by the Customer including suspension of work, modification of requirements, failure or early in giving particular requisite to enable work to proceed on schedule or requirements that work be completed earlier than agreed.
6) SALT reserves the right at its sole discretion to provide alternative goods at the prevailing prices to those ordered by the Customer should such goods be unavailable, superseded, replaced or their manufacture terminated.
7) All quotations will remain valid for a period of 7 days from the date of quotation if not otherwise stated on the quotation of SALT.
8) All quotations are subject to the availability of the goods or services and subject to correction of good faith errors by SALT and the prices quoted are subject to any increases in the cost price, including currency fluctuations.
9) Foreign Exchange: In the event that the rand devalues against the US Dollar or Euro from the date of this quotation, until the goods are received by SALT, SALT reserves the right to increase the amount payable by the Customer in respect of such goods by the percentage of such change. This will not generally apply if the rate of change is less than two (2) percent.
10) If the Customer disputes the amount of increase, the amount of the increase may be certified by any independent auditor and such certificate shall be final and binding on the Customer.
11) The Customer hereby confirms that the goods or services on the Tax Invoice issued duly represent the goods or services ordered by the Customer at the prices agreed to by the Customer and, where delivery / performance has already taken place, that the goods or services were inspected and that the Customer is satisfied that these conform in all respects to the quality and quantity or ordered and are fee from any defects.
12) Notwithstanding the provisions in Section 1) above, all orders or agreed variations to orders, whether oral or in writing, shall be binding and subject to these standard conditions of agreement and may not be cancelled. Telephonic orders for either goods and/or services placed by the Customers with SALT will be processed at the discretion of SALT and delivery of such order shall be refused until such time as SALT is placed in possession of a written order form.
13) SALT shall be entitled at its sole discretion to split the delivery / performance of the goods or services ordered in the quantities and on the dates it decides.
14) SALT shall be entitled to invoice each delivery / performance made separately.
15) Any delivery note or waybill or service order (ticket), copy or original, signed by the Customer or a third party engaged to transport the goods and held by SALT shall be prima facie proof that delivery of goods was made to the Customer and are in accordance with the quality and quantity reflected thereon.
16) The risk of damage to, destruction or theft of goods shall pass to the Customer on acceptance of any order placed in terms of this Agreement and the Customer undertakes to comprehensively insure the goods until paid for in full. SALT may recover insurance premiums from the Customer for such ordered and uninsured goods.
17) Delivery, installation, commencement and performance time quoted are merely estimates and not binding on SALT; time is not of the essence of this agreement unless expressly agreed upon in writing by SALT. SALT shall not be liable for any loss or damage of whatsoever nature which the Customer may suffer as a result of any incorrect or delayed delivery.
18) If SALT agrees to engage a third party to transport the goods, SALT is hereby authorised, at its sole discretion, to engage a third party on the Customer’s behalf and on the terms deemed fit by SALT.
19) The Customer indemnifies SALT against any claims that may arise from such agreement in Clause 18) against SALT.
20) Repair times and repair costs given are merely estimates and are not binding on SALT; time is not of the essence of this Agreement unless expressly agreed upon in writing by SALT. SALT shall not be liable for any loss or damage of whatsoever nature which the Customer may suffer as a result of any unforeseen costs and/or delayed repairs.
21) Any items handed in for repair may be sold by SALT to defray the cost of such repairs if the item remains uncollected within 30 days of the repairs being completed and the customer was duly informed of the completion of such repairs.
22) All goods taken on a demonstration basis by the Customer are deemed sold if not returned within 7 days of issue in the original condition, in the original packaging and with all accessories and manuals intact.
23) The Customer acknowledges all copyrights and shall not duplicate copyrights and material and that each infringement attempt shall immediately render the full prevailing price payable to SALT.
24) The Customer shall indemnify SALT against any claims, costs and expenses arising out of the infringement of copyright, patent, trademark or design supplied by the Customer.
25) New goods are guaranteed according to the Manufacturer’s product specific warranties only and all other guarantees including common law guarantees are hereby specifically excluded. Services are guaranteed for a period of 3 months against faulty workmanship and parts are guaranteed according to the Manufacturer’s product specific warranties.
26) Liability under Clause 24) is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of SALT.
27) No claim under this Agreement shall arise unless the Customer has, within 3 days of the alleged breach or defect occurring, given SALT 30 days written notice by prepaid registered post to rectify any defector breach of Agreement.
28) To be valid, claims must be supported by the original Tax Invoice.
29) The Customer shall return any defective moveable goods to the premises of SALT at the Customer’s own cost and packed in the original or suitable packaging and all risks for the duration of the repair remain with the Customer. Goods returned for repair shall be subject to a handling charge not exceeding 15% of the total purchase price of such goods as reflected in SALT’s invoice.
30) All guarantees are immediately null and void should any goods be tampered with or should the seals be broken by anyone other than SALT or should the goods be operated or stored outside the Manufacturer’s specifications.
31) Any item delivered to SALT, shall serve as a pledge in favour of SALT for present and past debts and SALT shall be entitled to retain or realize such pledges as it deems expedient at the value as determined in Section 44). The sworn or realized value of pledged goods will be offset against the Customer’s debts and any excess balance will be paid to the Customer.
32) Under no circumstances shall SALT be liable for any consequential damages including loss of profits or for any liability of any nature whatsoever.
33) Under no circumstances shall SALT be liable for any damage arising from any misuse, abuse or neglect of the goods or services.
34) Delivery of the goods or services to the Customer shall take place at the place of business of SALT or whatsoever location, as agreed upon in writing by SALT.
35) Payment will be made strictly in accordance with the accepted provisions of the credit agreement as it exists between SALT and the Customer. Should no credit agreements exist or should such agreement have been cancelled by SALT and notice to that effect given to the Customer then all purchases are made cash on order. All payment shall be payable in cash unless otherwise accepted by SALT and shall be paid by the Customer free of exchange in Namibian currency at the office of SALT or at such other place as SALT may designate in writing.
36) The risk of payment by cheque though the post rests with the Customer.
37) The Customer has no right to withhold payment for any reason whatsoever and agrees that no extension of payment of any nature shall be extended to the Customer and any such extension will not be applicable or enforceable unless agreed to by SALT, reduced to writing and signed by the Customer and a duly authorized representative of SALT.
38) The Customer is not entitled to offset or deduct any amount due to the Customer by SALT against this debt.
39) Any discount or rebate offered by SALT shall be forfeited if payment is not made on or before the due date.
40) The Customer agrees that a certificate signed by any Director of SALT shall be prima facie evidence of the amount due and payable to SALT by the Customer including any interest and costs for the purposes of judgment, including provisional sentence or summary judgment, and of claims against insolvent or deceased estates. Proof of the appointment or authority of the signatory shall not be required in such certificate.
41) The Customer agrees that interest shall be payable at the maximum legal interest rate prescribed in terms of the Usury Act on any monies past due date to SALT and that interest shall be calculated daily and compounded monthly from the date of acceptance of the order.
42) The Customer agrees that if an account is not settled in full
a) against order; or
b) within the period agreed in clause above in the case of a Credit Approved Customer,
c) or if the Customer commits a breach of any of these conditions, or being an individual is provisionally or finally sequestrated or surrenders his estate, or begin a partnership, is being dissolved, or being a company or close corporation is placed under a provisional or final order of judicial management or liquidation, or compromises or attempts to compromises generally with its creditors or if an order in terms of section 65 of the magistrates Court Act 32 of 1944, as amend is issued against the Customer, or if the commits or permits any act that may prejudice the rights of SALT; then in any of these events SALT may in its sole discretion either:
i) entitled to immediately institute action against the Customer at the sole expense of the Customer; or
ii) cancel the agreement and take possession of any goods delivered to the Customer by giving the Customer written notice to that effect; or
iii) claim damages.
d) Furthermore SALT shall be entitled to immediately suspend any delivery or service while the Customer is in breach of any of the terms of any contract between it and SALT. In the event of a breach and without restricting or revoking any other rights SALT may have in law, SALT shall have the right to claim from the Customer the following costs:
i) If payment by cheque is referred to drawer for whatsoever reason, an amount of N$ 100.00 per affected cheque, or an amount as may be adjusted from time to time;
ii) If the Customer’s debit order is returned due to lack of funds, an amount of N$ 100.00, or an amount as may be adjusted from time to time;
iii) If default necessitates the telephonic contact of the debtor by SALT, an amount of not more than N$ 100.00 per call;
iv) If default necessitates a personal visit by SALT an amount of N$ 200.00 per visit
v) Cost of issuing a Letter of Demand at N$ 50.00.
e) Subject to the maximum costs recoverable in terms of the magistrates Court Act 32 of 1944 as amended, Attorneys Act 33 of 1979 and Debt Collection Act 114 of 1998. These remedies are without prejudice to any other right SALT may be entitles to in terms of this agreement or in law.
43) A Credit Approved Customer will forthwith lose his this approval when payment is not made according to the conditions of Section 41)b) and all amounts then outstanding shall immediately become due and payable.
44) In the event of cancellation, the Customer shall be liable to pay:
a) the difference between the selling price and the value of the goods at the time of repossession and
b) all other costs incurred in the repossession of the goods.
The value of the repossessed or retained pledged goods shall be deemed to be the value placed on then by any sworn valuator after such repossession, and such valuation shall be conclusive proof of the value. If the goods are not recovered for any reason whatsoever, the value shall be deemed to be nil.
45) The Customer hereby consents and irrevocably authorizes SALT to enter its premises to repossess any goods delivered and indemnifies SALT completely against any damage whatsoever relating to the removal of repossessed goods.
46) In the event of cancellation SALT is entitled not to produce any unmade balance of a contract and to recover any loss sustained thereby from the Customer.
47) Ownership and dominium in all goods supplied by SALT to the Customer, whether such goods are attached to other property or not, shall remain vested in SALT until such goods have been fully paid for the Customer.
48) The Customer is not entitled to remove any goods beyond the borders of the Republic of Namibia or to sell or dispose of any goods unless paid for in full without the prior written consent of SALT. The Customer shall not allow the goods to become encumbered in any manner prior to full payment thereof and shall advise third parties of the rights of SALT in the goods.
49) If any goods supplied to the Customer are of a generic nature and have become the property of the Customer by operation of law (confusio or commixtio) the Customer shall be obliged on notice of cancellation of the agreement to retransfer the same quantity of goods in ownership to SALT.
50) The Customer shall be liable to SALT for all legal expense on the attorney-and-own client scale of an attorney and counsel incurred by SALT in the event of
a) any default by the Customer or
b) any litigation in regard to the validity and enforceability of this agreement.
The Customer shall also be liable for any tracing, collection or valuation fees incurred as well as any costs, including stamp duties, for any form of security that SALT may demand.
51) The Customer shall pay five thousand Namibian Dollars into court or furnish sufficient security in lieu of costs in any action instituted by or against the Customer.
52) The Customer agrees that SALT will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate’s Courts or in terms of Rule 47 of the Law of the Supreme Court 59 of 1959.
53) The Customer agrees that no indulgence, relaxation, latitude or extension of time whatsoever by SALT will affect the terms of this agreement or any of the rights of SALT and such indulgence shall not constitute a waiver by SALT in respect of any of its rights herein. Under no circumstances will SALT be stopped from exercising any of its rights in terms of this Agreement.
54) The Customer hereby consents, in terms of Section 45 of the Magistrates Courts Act of 1944 as amended to SALT instituting any proceedings arising out of this contract in the Magistrates Court of Windhoek otherwise having jurisdiction in terms of Section 28 of the Magistrates Court Act notwithstanding the fact that such proceedings are otherwise not within the jurisdiction of that court. SALT however reserves the right, in its sole discretion, to institute any action from this agreement in the High Court of Namibia.
55) Any document shall be deemed duly presented to and accepted by the Customer
a) within 3 days of prepaid registered mail to any of the Customer’s business of postal addresses or the personal address of any director, member or owner of the Customer; or
b) within 24 hours of being faxed to any of the Customer’s fax numbers or any director, member’s or owner of the Customer’s fax numbers; or
c) on being delivered by hand to the Customer or any director, member’s or owner of the Customer; or
d) within 48 hours if sent by overnight courier; or
e) within 7 days of being sent by surface mail.
56) The Customer chooses its address for legal execution the address as the business address or the physical addresses of any Director (in the case of a company), Member (in the case of a close corporation) or of the Owner(s) or Partner(s).
57) The Customer hereby consents to the storage and use by SALT of the personal information that it has provided to SALT for establishing its credit rating and to SALT disclosing such information to credit control companies, banks and other institutions involved in rating credit. The Customer agrees that SALT will not be liable for the good faith disclosure of any of this information to such third parties and that no further specific consent needs to be obtained for the transfer of such information to a specific third party.
58) In the event of any default by the Customer of any provision of this agreement, the Customer hereby consents and authorizes SALT to furnish the name, credit record and repayment history of the Customer to any credit bureau as delinquent debtor.
59) The Customer agrees to the Standard Rates of SALT for any goods or services rendered, which rates may be obtained on request.
60) The invalidity of any part of this Agreement shall not affect the validity of any other part.
61) Any order is subject to cancellation by SALT due to Acts of God from any cause beyond the control of SALT, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, war, civil disturbance, riot, state of emergency, strike, lockout, or other labour disputes, fire flood, drought or legislation.
62) The Customer hereby waives the benefits of the legal exception of non numeratae pecuniae, non cause debiti, de errore calculi, de duobos vel pluribus reis debendi, review of accounts and no value received and hereby declares himself to be fully acquainted with the meaning of this waiver.
63) The Customer agrees that SALT will be immediately and irrevocably released from any contractual damages and penalty obligations should any event in Section 41) or 60) occur.
64) Although the provisions of this Agreement are self explanatory, the Customer warrants that he has read and understands the provisions contained herein.
65) The signatory warrants that he is the duly authorized representative of the Customer and that he has full capacity, whether legal or otherwise, to enter into any contractual agreement with SALT.
66) The invalidity of one or more of these provisions does not affect the validity of any other provision or these terms and conditions in its entirety.
67) This Agreement and its interpretation is subject to Namibian Law and the Customer consents to the exclusive jurisdiction of the Namibian Courts referred to in Section 54).
Now therefore the parties hereby agree as follows:1. Interpretation & DefinitionsIn this Agreement, unless inconsistent with the context:1.1 Words and expressions imparting the singular shall include the plural, and vice versa.1.2 Words and expressions imparting natural persons shall include partnerships, trusts and legal persons, and vice versa.1.3 Section headings are for convenience only and shall not be used in the interpretation of this Agreement.1.4 Technical expressions not otherwise defined in this Agreement shall bear such meanings as are customarily assigned to such expressions in the Information Technology and Computer Industries.1.5 The rule of construction that contracts are interpreted against the party responsible for the drafting or preparation thereof, shall not apply in the interpretation of this Agreement.1.6 Should any provision in this Section constitute a substantive provision conferring rights or imposing obligations on any of the Parties, effect shall be given thereto as if such provision were a substantive provision of this Agreement.1.7 The words “include”, “including”, “in particular”, “other” and “otherwise” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect, as limiting the generality of any preceding word/s (and as such the eiusdem generis rule shall not apply).1.8 Any provision in this Agreement imposing a restraint, prohibition or restriction on the Parties shall be so construed that the Parties are not only bound to comply therewith, but are also obliged to ensure that the same restraint, prohibition or restriction is observed by their employees, consultants or any third parties engaged by the Parties for the purposes of or in connection with this Agreement.1.9 This Agreement shall be interpreted and governed in accordance with the law of the Republic of Namibia and the Parties hereby submit to the jurisdiction of the High Court of Namibia in respect of all or any disputes which may arise between them in relation to or arising out of the interpretation or implementation of this Agreement, except for disputes arising out of Fees for which the Parties consent to the jurisdiction of the Magistrates Court.1.10 Words and expressions defined in this Section shall bear the meanings assigned to them herein and cognate words and expressions shall bear corresponding meanings.1.10.1 “AUP” shall mean the “Acceptable Use Policy” as published on a web site of SALT as specified in Annexure 19 and which may from time to time be amended or corrected as deemed necessary by SALT.1.10.2 “Asset Register” shall mean the register of all IT assets supplied, installed and maintained by SALT in terms of this Agreement. This Asset Register shall be compiled, updated and maintained by SALT and is attached as an Annexure hereto. In respect of any updates to the Register, representatives of Customer and SALT shall sign such update, which shall from the date of signature thereof be binding between the Parties.1.10.3 “Business Day” shall mean any day of the year, other than a Saturday, Sunday and any officially proclaimed public holiday in Namibia.1.10.4 “Business Hours” shall mean any time between 08:00 and 17:00 on Business Days.1.10.5 “Cloud Service” shall mean provision for Customer’s use of a Cloud System described in the “Service Description – General Terms and Conditions” and a “Cloud Service Description”, which are published on a web site of SALT as specified in Annexure 19 and which may from time to time be amended or corrected as deemed necessary by SALT.1.10.6 “Cloud System” means a combination of Hardware and Software that comprise an IT system. Depending on the Services the Customer is subscribing to from SALT, the Cloud System may consist of a dedicated system for Customer’s use only, or the right to use certain parts of a shared system that SALT maintains for many Customers, or a combination of some dedicated elements and some shared elements.1.10.7 “Commencement Date” shall mean the date when this Agreement becomes effectual.1.10.8 “Component” shall mean any organisational part of SALT including, but not limited to, a Cost Centre, Department or Division.1.10.9 “Confidential Information” shall mean any information of whatever nature, which has been, or may be obtained, by either of the Parties from the other, whether in writing or electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including without limitation, Intellectual Property Rights, scientific, business or financial data, know-how, formulae, processes, designs, customer data, customer lists, reseller lists, price lists, studies, findings, computer software, inventions or ideas, analysis, concepts, compilations, studies and other material prepared by or in possession or control of which contain or otherwise reflect or are generated from any such information as is specified in this definition.1.10.10 “Copyright” shall mean all rights of copyright, whether existing now or in future, recognised in Namibia and under international law.1.10.11 “Customer” means CustomerFullName.1.10.12 “Customer Account Manager” shall mean the SALT staff member appointed by SALT to act as the primary contact person to Customer from time to time.1.10.13 “Customer Representative” shall mean the staff member of Customer nominated by Customer to be the primary contact to SALT from time to time.1.10.14 “Customer Site” shall mean any location or premises of the Customer where Users of the Customer need access to the Services provided by SALT.1.10.15 “End-User” shall mean a person or organisation that actually uses a SALT Service, as opposed to the person or organisation that authorises, orders, procures, or pays for the SALT Services provided, which is referred to in this Agreement as the Customer.1.10.16 “Expenses” shall mean all necessary expenses, including, but not limited to, the items referred to in the Annexures, incurred by SALT in the furtherance of the Agreement, but excluding the Fee and the Variation Fee.1.10.17 “Fee” shall mean the amounts due to SALT in the furtherance of the Agreement as adjusted or amended from time to time and “Fees” shall have a corresponding meaning.1.10.18 “Hardware” in information technology means the physical aspect of computers, telecommunications, and other devices. It refers to objects that one can actually touch, like, but not limited to, Central Processing Unit (CPU), memory, disks, disk drives, Graphical Processing Unit (GPU) adapter (graphic card), display screens, keyboards, printers, boards, mice, adapters, cables, and computer chips.1.10.19 “IT” shall mean information technology.1.10.20 “Instruction” shall mean a Notice issued by one Party to the other, authorising any variations (including additions, deletions or extensions) to the Agreement, and which do not require a variation of this Agreement.1.10.21 “Intellectual Property Rights” shall mean all present and future rights affected in the design of and specifications of any system, product or service provided by SALT, or other rights which may in future be based thereon, including, but not limited to, all intellectual property rights of whatever nature, including without limitation all (i) patents and other patent rights; (ii) rights in and to inventions, whether patentable or not; (iii) rights in trademarks and trade names; (iv) rights in layouts and system structures; (v) copyright, including all copyright in and to computer programs, moral and economic rights of authors and inventors; (vi) rights in databases and data collections; (vii) know-how, trade secrets and confidential information, in each case whether or not registered and including applications for registration of any of these and the right to apply for the registration of any of these, all claims for past infringements, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, and which relate to or subsist in or which are used by SALT in the course of trade in relation to it and its business.1.10.22 “License” (or software licence in commonwealth usage) is a legal instrument (usually by way of contract law) governing the usage or redistribution of information technology software. All software is copyright protected, except material in the public domain. A typical software license grants an end-user permission to use one or more copies of software in ways where such a use would otherwise potentially constitute copyright infringement of the software owner’s exclusive rights under copyright law.1.10.23 “Minutes” shall mean adequate written minutes of meetings held between the Parties during the duration of this Agreement.1.10.24 “Notice” shall mean written notice (including notice sent via electronic mail).1.10.25 “Parties” shall mean collectively SALT and the Customer, and “Party” shall mean either one of them.1.10.26 “Resolve Time” shall mean the time within which a Service Request will be resolved, excluding travelling time.1.10.27 “Response Time” shall mean the time limit within which a SALT staff member will contact the Customer, informing the Customer of the allocation of a SALT support engineer to a Service Request lodged by the Customer.1.10.28 “Retention Period” of a backup refers to the amount of time that SALT will retain the backup data and media for restoration to the server or device from which it originated. The Retention Period of the Online Backup Service is defined as the length of time which a backup image or changes to the image is kept on disk storage.1.10.29 “Service” means a Cloud Service or a Supplementary Service, and “Services” means Cloud Services and Supplementary Services, collectively.1.10.30 “Service Description” means a written description of a Cloud Service (“Cloud Service Description”) or a Supplementary Service, Customer is buying from SALT, that are incorporated by reference in the Agreement and are published on a web site of SALT as specified in Annexure 19, including any “plan” or other name given to a Service Description that Customer submits to SALT as part of an order process. The Service Descriptions may be amended and corrected from time to time as required by SALT.1.10.31 “Service Desk” shall mean the SALT Component with whom a Customer must place Service Requests.1.10.32 “Service Level Guarantee” means a guarantee identified as a “Service Level Guarantee” or “Service Level Guarantees” in the applicable Service Description.1.10.33 “Service Request” shall mean a request issued by Customer, for a Service or activity relating to a Service rendered by SALT in terms of this Agreement.1.10.34 “Software” in information technology, also referred to as computer software, is a collection of computer programs and related data that provide the instructions for telling a computer what to do and how to do it. In other words, software is a conceptual entity which is a set of computer programs, procedures, and associated documentation concerned with the operation of a data processing system.1.10.35 “STTC” means SALT’s Standard Trading Terms and Conditions as published on a web site of SALT as specified in Annexure 19, and which may be amended and corrected from time to time as required by SALT.1.10.36 “Supplementary Services” means those services and products Customer purchases from SALT other than the Cloud Services, such as, but not limited to, the onsite implementation of Cloud Services and assistance or support for any software that Customer operates on a Cloud System.1.10.37 “Support” means (i) management of the Cloud Services by a SALT team that includes individuals trained in the Cloud System the Customer selects, and (ii) availability of support for such Cloud Systems 24 (twenty-four) hours per day, 7 (seven) days per week, year round. The support for each Cloud Service may further be detailed in the respective Service Description of a Service.1.10.38 “this Agreement” shall mean this written document, including all Sections and Annexures, and to the extent not inconsistent with the terms and conditions of this written document, its Sections and the Annexures.1.10.39 “User” shall mean any person, organisation, company, reseller, Customer, End-User or any other legal entity, whether authorised or not, who makes any use of any system, service or product provided by SALT from any location, including anyone who accesses networks that are owned, managed or operated by SALT’s or its Customers.1.10.40 “Variation Fee” shall mean a fee that will be charged by SALT to Customer for expenses, services and products that have been requested by Customer over and above the services and products subscribed to or purchased by Customer under this Agreement.1.10.41 “Workstation” shall mean any personal computer, including, but not limited to a Windows/Linux Based Terminal (WBT/LBT), Personal Computer (PC), Notebook, Laptop or any mobile device, such as a PDA, Smartphone and Tablet.2. Appointment, Commencement and Duration2.1 CustomerShortName hereby appoints SALT to provide IT Services to CustomerShortName. SALT hereby accepts such appointment on the terms and conditions set out hereinafter.2.2 CustomerShortName vests SALT with such rights, powers and authorities as are necessary for the effectual performance by SALT of its functions, services and duties hereunder.2.3 This Agreement shall come into effect on the Commencement Date which is the date of signing off the document.2.4 Subject to the provisions of Sections 8.1, this Agreement shall have an initial term of at least 12 (twelve) months from the Commencement Date.2.5 Upon expiry of the initial Agreement period as specified in Section 2.4 above or any subsequent extension period, this Agreement shall be automatically renewed for successive 12 (twelve) month periods, unless either Party notifies the other Party of its intentions to terminate this Agreement in writing at least 90 (ninety) days prior to the expiry of the initial 12 (twelve) month term or the next anniversary date of the Agreement, as the case may be.3. SALT Principal Rights and Obligations3.1 SALT shall provide Services in accordance with the Services Descriptions, the Service Level Guarantees, and other specifications in this Agreement.3.2 In addition to any other right or obligation that SALT may have in terms of this Agreement, SALT shall also have the following rights and obligations:3.2.1 Subject to the provisions of this Agreement and to Customer’s consent (which consent may not be unreasonably withheld), SALT shall be entitled to subcontract any portion of this Agreement and to select the sub-contractor. In the event of SALT sub-contracting any part of its obligations under this Agreement, SALT shall not be absolved of any of its obligations in terms of this Agreement.3.2.2 Notwithstanding the conditions outlined in Annexure 22, in the event of payment due to SALT by the Customer is outstanding for a period in excess of 30 (thirty) days, Customer hereby consents to SALT suspending all Services to Customer until such time as the full outstanding amounts due to SALT have been paid. During such period of suspension Customer is still liable for payment to SALT of the full Fee, Variation Fees and any Expenses. SALT reserves the right to charge a reconnection fee amounting up to the sum of up to N$ 10 000.00 (Ten Thousand Namibia Dollars) per Service provided by SALT to Customer, which reconnection fee shall automatically escalate in line with the annual Namibian Consumer Price Index as published over the last twelve months prior to the increase or 10% (Ten Percentum) per annum, whichever is the highest, with each anniversary of the Commencement Date.3.2.3 SALT may suspend Services without liability if:184.108.40.206 SALT reasonably believes that the Services are being used in breach of this Agreement, the AUP, the STTC or the Service Descriptions.220.127.116.11 The Customer does not cooperate with SALT’s reasonable investigation of any suspected violation of this Agreement.18.104.22.168 There is an attack on SALT’s or Customer’s Cloud System or any Cloud System is accessed or manipulated by a third party without SALT’s or Customer’s consent.22.214.171.124 SALT is required by law or a regulatory or government body to suspend Customer’s Services.126.96.36.199 There is another event for which SALT reasonably believes that the suspension of Services is necessary to protect the SALT network or SALT’s Customers.3.2.4 SALT will give Customer advance notice of a suspension under this Section of at least 24 (twenty-four) hours unless SALT determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect SALT or its other Customers from imminent and significant operational, legal, or security risk. If any of SALT’s Cloud Systems is compromised, then Customer must address the vulnerability prior to SALT placing the Cloud System back in service or, at Customer’s request, SALT may be able to perform this work for Customer at SALT’s standard hourly rates as a Supplementary Service.3.2.5 SALT reserves the right to change and/or amend Service Level Guarantees, deliverables or any other portion of the Service Descriptions by way of Notice, provided that such Notice is received by the Customer 20 (twenty) Business Days prior to such change or amendment taking effect.3.2.6 SALT reserves the right to increase Fees on the 1st October of every year by way of Notice, provided that such Notice is received by the Customer 30 (thirty) days prior to such increase taking effect. Such increase will based on a combination of the annual Namibian Consumer Price Index (NCPI) and fluctuation in the US$ and Euro exchange rates. SALT reserves the right to adjust Fees at any other point during the contract duration based on the US$ or Euro exchange rates.3.2.7 Notwithstanding the conditions outlined in Section 3.2.6, in the event of a third-party provider, such as Telecom Namibia, increasing its Fees, SALT reserves the right to increase related Fees at any time accordingly, provided that such Notice is received by the Customer 20 (twenty) days prior to such increase taking effect.3.2.8 Notwithstanding the conditions outlined in Section 3.2.6, in the event of a third-party provider, such as Telecom Namibia, changing its payment terms, SALT reserves the right to change payment terms at any time accordingly, provided that such Notice is received by the Customer 20 (twenty) days prior to such increase taking effect.3.2.9 SALT disclaims any and all warranties not expressly stated in this Agreement to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. Customer is solely responsible for the suitability of the Services chosen. Any Services that SALT is not contractually obligated to provide but that SALT may perform for Customer at Customer‘s request and without any additional charge are provided on an ‘AS IS’ basis.3.2.10 Customer agrees that SALT may publicly disclose that SALT is providing Services to Customer and may use Customer’s name and logo to identify Customer as SALT’s Customer in promotional materials, including press releases. SALT will not use Customer’s name or logo in a manner that suggests an endorsement or affiliation.3.2.11 SALT or its personnel may from time to time recommend third party software or other products and services for Customer’s consideration. SALT makes no representation or warranty whatsoever regarding such products and services. Customer’s use of any products and services not provided by SALT is governed by the terms of the Customer’s agreement with the provider of those products and services, and is at Customers’ sole risk. SALT is not responsible in any way for the third party product’s performance, features nor failures.3.2.12 SALT is constantly upgrading its data centre facilities and in order for its Customers to benefit from this, the Customer agrees that SALT may relocate any servers within SALT’s data centre facilities, make changes to the provision of the Services, URLs and IP addresses and may establish new procedures for the use of the Services. SALT may also make changes to DNS records and zones on SALT’s operated or managed DNS servers as SALT deems necessary for the operation of SALT’s shared network infrastructure. In each case, SALT will give the Customer reasonable advance notice and use all reasonable endeavours to minimise the effect that such change will have on the Customers’ use of the Services.3.2.13 SALT reserves the right to enter into lease- and/or financing-arrangements with suppliers and/or financial institutions for the acquisition and/or procurement of equipment (Hardware, Software, Licenses, etc.) required by SALT to fulfil its obligations in terms of this Agreement. SALT shall procure adequate insurance in respect of such equipment, as set out in Annexure 19, if it is located on the premises of SALT.4. Customer Principal Rights and ObligationsIn addition to any other right or obligation the Customer may have in terms of this Agreement, the Customer shall also have the following rights and obligations:4.1 In consideration of SALT performing its obligations under and in accordance with this Agreement, the Customer shall pay SALT all Fees as set out in this Agreement.4.2 Representatives: By not later than the Commencement Date, the Customer shall inform SALT by Notice of the person appointed as the Customer Representative.4.3 Information: The Customer shall provide to SALT all relevant data, documentation and information available to the Customer that SALT may reasonably require for and in connection with the fulfilment of this Agreement in accordance with and subject to this Agreement.4.4 Approvals: Where SALT has by Notice required the Customer to grant its approval in terms of this Agreement or make a decision on or in connection with this Agreement, as the case may be, the Customer shall respond promptly to such request by Notice, and unless otherwise prescribed under this Agreement, within 5 (five) Business Days of the date of receipt of the said Notice from SALT. In the event that Customer does not respond within 5 (five) Business Days of the date of receipt of the said Notice from SALT, Customer shall be deemed to have granted its approval.4.5 Security: The Customer must use reasonable security precautions in connection with their use of the Services provided by SALT. The Customer must comply with the laws applicable to their use of the Services provided by SALT and with the AUP. The Customer must cooperate with SALT’s reasonable investigation of Service outages, security problems, and any suspected breach of this Agreement. SALT is not responsible to the Customer or any third party for unauthorised access to Customer data or the unauthorised use of the Services unless the unauthorised access or use results from SALT’s failure to meet its obligations stated in Section 3 of this Agreement or the Service Descriptions. The Customer is responsible for the use of the Services by any employee of the Customer, any person they authorise to use the Services, any person to whom they have given access to the Services, and any person who gains access to Customer data or the Services as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorised by the Customer.4.6 Data Storage and Backup: SALT does not have knowledge of the data the Customers store within SALT’s Cloud Systems, which may include the quantity, value or use of the data. The Customers is therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the Services, including data loss. The Services that SALT agrees to provide to assist the Customer to mitigate such loss (if required) are set out in the Services Description, which may include backup services and redundant systems. SALT does not promise to back up Customer data unless the Customer has purchased Services that include backups or dedicated backup services. If the Customer purchases backup services SALT does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Services Description. In all events, the Customer releases SALT from liability for loss of data to the extent that the data has changed since the time that SALT were last required by the Agreement to perform a backup or due to faulty backup media. The Customer also indemnifies SALT from any liability in respect of the content of the data.4.7 The Customer acknowledges that the Customer is responsible for use of the Services by Customer’s End-Users in violation of the AUP or other portion of this Agreement, and that SALT may suspend Services or terminate this Agreement between the Parties for the Customer’s or End-Users’ violations of this Agreement in accordance with the terms of this Agreement.4.8 Software4.8.1 General: The Customer may not copy any software SALT provides for the Customer’s use, unless expressly permitted by this Agreement. The Customer may not remove, modify or obscure any copyright, trade mark, or other proprietary rights notices that appear on any software SALT provides for the Customer’s use. Unless permitted by the terms of an open source software licence, the Customers may not reverse engineer, decompile or disassemble any software SALT provides for the Customer’s use except and to the extent that the Customers are expressly permitted by applicable law to do this, and then following at least 10 (ten) days advance Notice to SALT. In addition to the terms of this Agreement, the Customer’s use of any Microsoft® or other software in SALT’s portfolio is governed by Microsoft’s or the specific Software Vendor’s licence terms or including use restrictions on Microsoft® software that is provided for the Customer’s use under a subscriber access licence or “SAL” or an “anonymous” licence as indicated in the Services Description. If the Customer uses any non-SALT supplied software on a Cloud System, the Customers represents and warrants to SALT that the Customer has the legal right to use the software in that manner. On SALT’s request the Customer will certify in writing that the Customer is in compliance with this clause and any other software licence restrictions that are part of this Agreement, and will provide reasonable evidence of the Customer’s compliance as SALT may reasonably request.4.8.2 Customer Provided Licences: If SALT has agreed to install, patch or otherwise manage software for the Customer in reliance on the Customer’s licence with a software vendor (rather than SALT’s licence with the software vendor), then the Customer represents and warrants that the Customers has a written licence agreement with the software vendor that permits SALT to perform these activities. The Customer agrees that the Customer will provide SALT with evidence of licensing as SALT may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the licence. If the Customer fails to provide the required evidence of licensing, SALT may, at its option, either:188.8.131.52 Delay the deployment date for the Cloud System that was to include such software until such time as the required evidence is provided.184.108.40.206 Deploy the Cloud System in reliance on SALT’s licensing agreement with the software vendor, and charge the Customer its standard Fees for the use of the software until such time as the required evidence is provided.220.127.116.11 Suspend or terminate this Agreement.4.8.3 Compatibility: The Customer licensed software may not be compatible with SALT’s standard process for deploying and repairing Cloud Systems. In addition, in order to install the software, SALT may require the Customer to send the physical or electronic media provided to the Customer by the software vendor, both for deployment, and again in the event of a failure of a Cloud System. The Customer agrees that SALT will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for the delay resulting from our agreement to use the Customer’s licensed software.4.9 No High Risk Use: The Customer may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, the Customer may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.4.10 Service Management and Monitoring Agents: The Customer agrees that they will not interfere with any services management and monitoring software agent(s), herein referred to as “Software Agents”, that SALT installs on the Customer’s Cloud System. SALT agrees that its Software Agents will use only a minimal amount of computing resources, and will not interfere with the Customers’ use of their Cloud System. SALT will use the Software Agents to track the hardware and software that SALT provides, so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. SALT may also use the Software Agents to identify security vulnerabilities. SALT will not use the Software Agents to view or capture the Customers’ content or data. The Customer Services will become “unsupported” if the Customer disables or interferes with SALT’s Software Agents. The Customer agrees that SALT may access the Customers’ Cloud System to reinstall Software Agents and will charge an extra Fee, if the Customer disables or interferes with their performance.4.11 Access: To enable SALT to discharge its obligations in terms of this Agreement, the Customer shall permit and facilitate reasonable access by SALT to the Customer Sites. SALT shall exercise such right of access subject to such rules and regulations as the Customer may from time to time impose for maintaining the security and safety of its premises and property.4.12 Insurance: The Customer shall procure adequate insurance in respect of any equipment (Hardware and Software), as set out in the Annexure 19, which are acquired and/or procured by SALT to fulfil its obligations in terms of this Agreement, if it is located on the Customer Sites of the Customer.4.13 Environment: The Customer shall be responsible to provide adequate facilities (cabinets, UPS protection, etc.) in respect of any equipment (Hardware and Software), as set out in the Annexure 19, which are acquired and/or procured by SALT to fulfil its obligations in terms of this Agreement, if it is located on the Customer Sites of the Customer. 4.14 Location: Salt has the right to approve or deny any location where equipment shall reside, in respect of any equipment (Hardware and Software), as set out in the Annexure 19, which are acquired and/or procured by SALT to fulfil its obligations in terms of this Agreement.4.15 Ownership: The Customer shall furthermore notify the landlord of the premises where the equipment is located of the fact that ownership thereof vests in SALT and that it is not Customer’s property.Interruption in Services: In the event of service disruption, SALT shall not be liable to pay any compensation to the Customer or refund any fees, unless the interruption is caused by intention or grossly negligent conduct on the side of SALT or SALT takes unreasonably long to remedy the interruption. In the circumstances where SALT is liable for the damage suffered by the Customer as a result of interruption in Services, the invoices issued by SALT to the Customer for the month during which the interruption occurred must indicate the cost reduction for the time the service was unavailable. 5. Procedural Arrangements5.1 To facilitate the smooth and un-interrupted implementation of this Agreement, the Customer Account Manager and Customer Representative (hereinafter collectively referred to as “the Representatives”) shall represent the Parties for the purposes of and in connection with all operational and organisational aspects arising from or in connection with this Agreement.5.2 The Representatives shall serve as the first point of contact between the Parties including, but not limited to, the delivery of Notices, pursuant to the terms of this Agreement.5.3 The Representatives shall keep Minutes of their meetings, which Minutes shall be adopted and signed at the meeting immediately following the meeting to which such Minutes relate.5.4 The Representatives shall meet either regularly or on request, to discuss or resolve, as the case may be, within the framework of this Agreement, any issues, queries, or complaints arising from or in connection with the implementation of this Agreement.6. Variations6.1 At any time for the duration of this Agreement, the Customer shall be entitled to subscribe to additional Services, provided that:6.1.1 The Customer has informed SALT of such changes by Notice at least 20 (twenty) business days before requiring such changes.6.1.2 Within 10 (ten) business days of the date of the said Notice SALT has informed the Customer by Notice, that the required changes are executable.6.1.3 The Parties have agreed to an appropriate implementation timeframe and a Variation Fee.6.1.4 Any additional services provided under this Agreement shall be incorporated into the Agreement by way of Notice listing the additional Services.6.2 No changes or amendments of Services subscribed to by Customer under this Agreement outside the scope of clause 6.1 shall be allowed.7. Intellectual Property Rights7.1 The Customer acknowledges that any and all of the Intellectual Property Rights are the exclusive property of SALT and that the Customer shall not have or acquire any right, interest or benefit therein or thereto.7.2 The Customer shall not question or dispute the ownership of the Intellectual Property Rights, or claim any entitlement thereto, at any time during the duration of this Agreement or at any time after its termination.8. Limitation of Liability8.1 Without prejudice to SALT’s right to the Fees for the Services, including any early termination fee (if applicable) and the Customer’s right to service credits under the applicable Service Level Guarantee, each Party’s liability to the other Party for direct loss or damages whether in delict (including, without limitation, negligence), contract or otherwise, is limited to and shall not exceed:8.1.1 For Cloud Services, an amount that is 3 (three) times the monthly recurring fee under this Agreement as of the time of the occurrence of the event(s) giving rise to the claim.8.1.2 For Supplementary Services, the greater of N$ 4 000 (Four Thousand Namibia Dollar) for Customer’s located in Namibia or US$ 350 (Three Hundred and Fifty US Dollar) for Customer’s located outside Namibia, or the Fees paid for the Supplementary Services that are the subject of the claim.8.2 Neither Party will be liable to the other Party in any way for any special, incidental, economic, or indirect loss or damages, or for loss of data, loss of profits, revenues, customers or contracts, wasted management time, increased costs or expenses, whatsoever and howsoever arising including in connection with the performance, non-performance or delayed performance of the Services or otherwise under this Agreement even if that Party has been advised by the other or should have reasonably been aware of the possibility of such loss.8.3 It is expressly recorded and agreed by the Customer that SALT shall not be liable for any consequential losses whatsoever which the Customer may suffer as a result of any act or omission by SALT in the execution and delivery of its obligations in terms of this Agreement.9. Indemnification9.1 If SALT, SALT’s affiliates, or any of SALT’s or their respective employees, agents, or suppliers (the “Indemnitees”) is faced with a legal claim by a third party arising out of the Customer’s actual or alleged negligence, breach of law, failure to meet the security obligations required by this Agreement, breach of the AUP, or breach of any other Section of this Agreement or the STTC, then the Customer will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim, including any settlement amount negotiated by SALT in accordance with the provisions of clause 9.2. The Customer’s obligations under this Section include claims arising out of the acts or omissions of the Customer’s employees or agents, any other person to whom the Customer has given access to the Services, and any person who gains access to the Services as a result of the Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by the Customer.9.2 SALT shall have the sole discretion to choose legal counsel to defend the claim, provided that these decisions must be promptly communicated to the Customer. The Customer must comply with SALT’s reasonable requests for assistance and cooperation in the defence of the claim. SALT may not settle the claim without the Customer’s consent, although such consent may not be unreasonably withheld, delayed or conditioned and may only be withheld in the case where Customer agrees to pay all legal fees and expenses due under this clause as SALT incurs them, including any up-front deposits that may be required by legal counsel.10. Breach and Termination10.1 SALT may terminate this Agreement for breach if:10.1.1 SALT discovers that the information the Customer provided for the purpose of establishing the Services is materially inaccurate or incomplete.10.1.2 The Customer’s payment of any invoiced amount is overdue and the Customer does not pay the overdue amount within 5 (five) Business Days of SALT’s Notice.10.1.3 The Customer has made payment arrangements via credit card or other third party, and the third party refuses to honour SALT’s charges.10.1.4 The Customer fails to comply with any other obligation stated in this Agreement and does not remedy the failure within 30 (thirty) days of SALT’s Notice to the Customer describing the failure.10.1.5 The Customer’s breaches the AUP more than once even if the Customer remedies each breach.10.2 Notwithstanding anything to the contrary contained in this Agreement, either of the Parties may terminate this Agreement if the other Party is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or contravenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts.10.3 The termination of this Agreement, for whatever reason, shall not affect the rights of either of the Parties that may have accrued before such termination or, which specifically or by their nature, survive such termination.10.4 Upon termination of this Agreement, for whatever reason, all lease-arrangements which have been entered into between SALT and suppliers and/or financial institutions for the acquisition and/or procurement of equipment (Hardware, Software, Licenses) needed by SALT to fulfil its obligations in terms of this Agreement, will be taken over by SALT. Ownership of such leased equipment will in such case revert to SALT. The equipment referred to in this Section is listed in Table 10 and Table 11 of this Agreement.10.5 Upon termination of this Agreement the Customer undertakes to pay SALT the residual depreciation costs for all IT equipment that has been provided under this Agreement to the Customer and that is not fully depreciated by the time this Agreement was terminated. This equipment and the costs are specified in Table 10 and Table 11 of this Agreement. The residual depreciation costs shall be determined in the discretion of SALT in accordance with its accounting policies as disclosed in its latest audited Annual Financial Statements. Any dispute arising with regard to the residual depreciation costs shall be referred to SALT’s auditors who shall act as experts and not as arbitrators and any decision reached by them shall be binding, The Party who refers the dispute to the auditors shall be liable for the costs towards the auditor.11. Confidentiality11.1 The Parties shall hold in confidence all Confidential Information and not divulge such Confidential Information to any person, including any of their employees, save for employees directly involved in the execution of this Agreement and then only on a “need to know basis”.11.2 The Parties shall prevent the disclosure of Confidential Information, unless the law requires such disclosure.11.3 Within 6 (six) months of the termination of this Agreement, subject to and limited in accordance with the provisions of the Financial Intelligence Act 13 of 2012, the recipient of Confidential Information shall return the same or, at the discretion of the original owner thereof, destroy such Confidential Information, and shall not retain copies or samples thereof or excerpts there from.11.4 It is specifically provided that for the purposes of this Agreement, the following information shall not be considered as constituting Confidential Information:11.4.1 Information known to a Party prior to the date on which it was disclosed to such Party by the other Party.11.4.2 Information known to the public or generally available to the public prior to the date on which it was disclosed by either of the Parties to the other.11.4.3 Information which becomes known to the public or becomes generally available to the public subsequent to the date on which it was disclosed by either of the Parties to the other, through no act or failure to act on the part of the recipient of such information.11.4.4 Information disclosed by a Party in terms of a written authorisation from the other Party.12. Dispute Resolution12.1 Should the Parties be unable to resolve any dispute, excluding any dispute regarding claims for Fees, arising under this Agreement by means of mutual co-operation or discussion within 15 (Fifteen) Business Days of a dispute arising or within such extended time period as the Parties may agree in writing, such dispute shall be referred to senior executives of the Parties. Such executives shall endeavour to resolve such dispute within 15 (Fifteen) Business Days of it being referred to them for resolution.12.2 Dependent on the outcome of the dispute SALT will either apply a debit or credit in the invoice of the month following the resolution of the dispute. The Customer is under no circumstances entitled to withhold the payment of the whole or any part of a disputed invoice and will be subject to Section 3.2.1 should the Customer not fulfil its payment obligations under this Agreement. Any claims raised by the Customer may only be related to invoices which are not older than 45 (Fourty Five) days.13. Non Solicitation and Restraint13.1 Neither Party may at any time for the duration of this Agreement and for a period of 2 (two) years after termination thereof, make any offer of employment to any employee or employ any employee who is or has been employed by the other Party during the duration of this Agreement and for a period of 1 (one) year after termination thereof. The aforementioned restraint shall not be applicable if prior written approval to make such an offer or to employ such employee has been obtained from the other Party. For the purposes of this Section “employee” shall include, but not be limited to, permanent employees and part time employees or any sub-contractors.14. General14.1 This Agreement is subject to the STTC of SALT. Should any Section or provision of the STTC contravene with any Section of this Agreement, the provisions in STTC will supersede.14.2 Relationship of Parties14.2.1 SALT, in furnishing Services or products to the Customer hereunder, is acting only as an independent contractor. Except as otherwise provided herein, SALT does not undertake by this Agreement or otherwise to perform any obligation of the Customer, whether regulatory or contractual, or to assume any responsibility for the Customers’ business or operations.14.2.2 SALT has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed by SALT under this Agreement.14.2.3 It is recorded and agreed that nothing in this Agreement shall constitute a joint venture or partnership in any nature or form between the Customer and SALT nor authorise the Customer to incur any liability on behalf of SALT or hold itself out as an agent of SALT.14.3 Force Majeure14.3.1 Neither Party shall be liable for failing to perform any of its obligations in terms of this Agreement in so far as such Party proves that:18.104.22.168 such failure was due to an impediment beyond its control;22.214.171.124 it could not reasonably be expected to have taken the impediment and its effects upon its ability to perform into account at the time of the conclusion of this Agreement; and126.96.36.199 it could not reasonably have avoided or overcome the impediment or at least its effects.14.3.2 An impediment, as aforesaid, may result from events such as, but not limited to those enumerated below.188.8.131.52 War, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage.184.108.40.206 Natural disasters, including violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning.220.127.116.11 Explosions, fires, destruction of machines, factories and any kind of installations.18.104.22.168 Boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and premises, and work stoppages.22.214.171.124 Acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of this Agreement.14.4 Entire Agreement and Variations14.4.1 With effect from the Commencement Date this Agreement constitutes the sole and entire agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.14.4.2 No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.14.4.3 Neither Party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.14.5 Assignment, Cession and Delegation14.6 Neither of the Parties shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the other, which consent shall not unreasonably be withheld or delayed, save that SALT shall be entitled to engage subcontractors as provided for in Section 3.2.1.Relaxation14.6.1 No indulgence, leniency or extension of a right, which a Party may have in terms of this Agreement, and which a Party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the grantor’s rights derived from this Agreement, or be construed as a waiver by the grantor of that right.14.7 Waiver14.7.1 No waiver by a Party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.14.8 Severability14.8.1 In the event that any term of this Agreement proves to be invalid, unlawful or unenforceable, such term will be severable from the remaining terms, which will continue to be valid and enforceable. If any provision should be found to be invalid, unlawful or unenforceable the Parties shall in good faith seek to substitute the same with a provision that is valid, lawful and enforceable.14.9 Drafting Costs14.9.1 Each of the Parties shall bear its own cost incurred as a result of the negotiation, drafting and finalisation of this Agreement, which cost includes, but is not limited, to all legal fees.14.10 Domicilium14.10.1 The Parties elect the following addresses as their respective domicilia citandi et executandi:126.96.36.199 SALT at: 161 Service Road, Mandume Ndemufayo Avenue, Southern Industria, Windhoek, Namibia188.8.131.52 The Customer at: CustomerStreetAddress14.10.2 A Party may change its domicilium citandi et executandi to another address within Namibia, by way of Notice to the other Party, provided that such a notice is received by the addressee at least 5 (five) Business Days prior to such a change taking effect.14.11 Notices14.11.1 Notice in terms of paragraph 14.11.2 shall be deemed to be delivered either by hand, by registered mail or facsimile.14.11.2 The Parties elect the following addresses at which all Notices and other communications must be delivered for the purposes of this Agreement:184.108.40.206 SALT by hand: 161 Service Road, Mandume Ndemufayo Avenue, Southern Industria, Windhoek, Namibia 220.127.116.11 SALT by post: P.O. Box 22772, Windhoek, Namibia18.104.22.168 SALT by facsimile: 264-61-433 990922.214.171.124 The Customer by hand: CustomerStreetAddress126.96.36.199 The Customer by post: CustomerPostalAddress188.8.131.52 The Customer by facsimile: 264 61 232 518184.108.40.206 The Customer by e-mail: email@example.com Any Notice or communication required or permitted in terms of this Agreement shall be valid and effective only if it is in writing.14.11.4 Any Notice correctly addressed to a Party and sent by registered post to it at its chosen address, or delivered by hand, at its chosen address, to a responsible person on any Business Day of the week between 09h00 and 16h00, shall be deemed to have been received, unless the contrary is proved, if sent by registered post, on the 10th (tenth) Business Day after posting and, in the case of hand delivery, on the day of delivery.14.11.5 Any Notice sent by facsimile to a Party at its facsimile number or e-mail address shall be deemed to have been received, unless the contrary is proved:220.127.116.11 if it is transmitted on any Business Day of the week between 09h00 and 16h00, within 2 (two) hours of transmission;18.104.22.168 if it is transmitted on any day or at any time not referred to in Section 22.214.171.124, at 11h00 on the first Business Day following the day on which it was transmitted;126.96.36.199 a hardcopy of the notice will be sent to the other party and deemed to be received by him on the tenth (10th) Business Days after posting it.15. List of Annexures and Documents15.1 The Annexures listed below form part of this Agreement:15.1.1 Annexure: Schedule of Services and Costs;15.1.2 Annexure: Schedule of Contacts;15.1.3 Annexure: Schedule of Documents;15.1.4 Annexure: Schedule of Leased Equipment;15.1.5 Annexure: Schedule of Equipment under Hardware Maintenance;15.1.6 Annexure: Terms of Billing and Payment.15.2 This Agreement is to be read with and is subject to the following documents published on a web site of SALT as specified in Annexure 19:15.2.1 SALT Standard Trading Terms and Conditions (STTC);15.2.2 SALT Acceptable Use Policy (AUP);15.2.3 SALT Service Description – General Terms and Conditions;15.2.4 SALT Cloud Service Descriptions.16. ExecutionThis agreement is executed by and on behalf of: An Authorised Person of the Company as detailed in the Order Form. And SALT by Mr Peter Muller in his capacity as Managing Director of Salt Essential IT (Proprietary) Limited
Acceptable Use Policy (AUP)
Salt Essential Information Technology (Pty) Ltd.
Version 2013-07, Rev. 80
1.1. This AUP is a description of types of activities that are not allowed on the Information Technology (IT) network of Salt
Essential Information Technology (Pty) Ltd, herein referred to as “SALT”. The Internet is developing and the ways in
which the Internet may be abused are also developing. Therefore, SALT may from time to time amend this AUP to
further detail or describe reasonable restrictions on the use of SALT’s systems, services and products in accordance
with the Service Level Agreement (SLA) of a customer or the Reseller Agreement of a reseller, and SALT’s Standard
Trading Terms and Conditions (STTC). The latest version of the AUP and the STTC are available on SALT”s web site
1.2. This AUP forms part of the terms of a customer’s or reseller’s agreement / contract with SALT and systems, services or
products may be suspended or terminated for breach of this AUP in accordance with the SLA of a customer or the
Reseller Agreement of a reseller. The reseller, customer and the end-user are responsible for violations of this policy
by the reseller, customer, their users or anyone using SALT’s services, whether authorised by the reseller / customer
or not. Should the reseller or customer have any questions, please contact SALT at firstname.lastname@example.org.
2.1. “User” shall mean any person, organisation, company, reseller, customer, end-user or any other legal entity, whether
authorised or not, who resells or makes any use of any system, service or product provided by SALT from any location,
including anyone who accesses networks that are owned, managed or operated by SALT’s or its customers.
3. Internet Abuse
3.1. The User may not use SALT’s system, services, network or products to engage in illegal, abusive, or irresponsible
3.1.1. unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or
test the vulnerability of a system or network or to breach security or authentication measures without expressed
authorisation of the owner of the system or network.
3.1.2. monitoring data or traffic on any network or system without the authorisation of the owner of the system or
3.1.3. interference with services to any User, host or network including, without limitation, mail bombing, flooding,
deliberate attempts to overload a system and broadcast attacks.
3.1.4. use of an Internet or network account or computer without the owner’s authorisation.
3.1.5. collecting information by deceit, including, but not limited to Internet scamming (tricking other people into
releasing their passwords), password robbery, phishing, security hole scanning, and port scanning.
3.1.6. use of any false, misleading or deceptive TCP-IP packet header or any part of the header information in an e-
mail or a newsgroup posting.
3.1.7. use of a service to distribute software that covertly gathers information about a user or covertly transmits
information about the user.
3.1.8. any activity or conduct that is likely to result in retaliation against SALT’s network.
3.1.9. any activity or conduct that is likely to be in breach of any applicable laws, codes or regulations including data
3.1.10. introducing intentionally or knowingly into a service any virus or other contaminating program or fail to use an
up to date virus-scanning program on all material downloaded from the services.
3.1.11. sending unsolicited e-mails (“spam”).
3.1.12. misrepresentation by the User as other computer networks and users.
3.1.13. any activity or conduct that unreasonably interferes with SALT’s other Users’ use of SALT’s services or
4.1. The User must take reasonable security precautions and avoid any “social hacking” activities.
4.2. Passwords should consist of at least 8 (eight) mixed alpha and numeric characters with case variations. The User
should not permit a common word to be used as a password. The User must protect the confidentiality of passwords,
and the User should change passwords regularly.
5. Bulk Commercial E-Mail
5.1. The User may not use a SALT Mail Service (such as SALT Axigen or SALT Microsoft Exchange®) to send bulk mail. A
User may use a dedicated hosted system to send bulk mail, subject to the restrictions in this Acceptable Use Policy.
5.2. Users must follow the rules documented in this Section on privacy and electronic communications which have been
created to protect fundamental rights and freedoms of natural persons and particularly their right to privacy as well as
legitimate interests of legal persons within the framework of Salt’s communications network and services. The use of e-
mail for direct marketing is only allowed to recipients who have given their prior consent. SALT acknowledges that
market research is not considered as direct marketing within the meaning of the Directive above, and therefore, the
requirements set out below do not apply to bulk e-mails for market research purposes. A User must obtain SALT’s
approval in advance for any bulk commercial e-mail other than for market research purposes, for which the User must
be able to demonstrate the following to SALT’s reasonable satisfaction:
5.2.1. The User’s intended recipients have given their consent to receive e-mail via some affirmative means, such as
an opt-in procedure.
5.2.2. The User procedures for soliciting consent include reasonable means to ensure that the person giving consent
is the owner of the e-mail address for which the consent is given.
5.2.3. A User must retain evidence of the recipient’s consent in a form that may be promptly produced within 72 hours
of receipt of recipient’s or SALT’s requests to produce such evidence.
5.2.4. The body of the e-mail must include information about where the e-mail address was obtained, for example,
“You opted in to receive this e-mail promotion from SALT’s Web site or from one of SALT’s partner sites,” and
information on how to request evidence of the consent, for example, “If you would like to learn more about how
we received your email address please contact us at “email@example.com”.
5.2.5. The User must have procedures in place that allow a recipient to revoke their consent – such as a link in the
body of the e-mail, or instructions to reply with the word “Remove” in the subject line and such revocations of
consent are implemented within 72 hours.
5.2.6. The User must post an firstname.lastname@example.org e-mail address on the first page of any Web site associated
with the e-mail, the User must register that address at abuse.net, and the User must promptly respond to
messages sent to that address.
5.2.8. The User must have the means to track anonymous complaints.
5.2.9. The User may not obscure the source of e-mails sent by the User in any manner. The User e-mail must include
the recipient’s e-mail address in the body of the message or in the “To” line of the e-mail.
5.2.10. These policies apply to messages sent using SALT’s systems, services, products or network, or to messages
sent from any network by the User or any person on the User’s behalf that directly or indirectly refer the
recipient to a site hosted via a SALT service. The User may not use third party e-mail services that do not have
similar procedures for all its customers.
5.2.11. SALT may test and monitor the User’s compliance with these requirements, including requesting opt-in
information from a random sample of the User’s list at any time.
6. Unsolicited E-Mail
6.1. The User may not send any unsolicited e-mail, whether commercial or non-commercial in nature, to any person who
has indicated that they do not wish to receive it.
7. Vulnerability Testing
7.1. The User may not attempt to probe, scan, penetrate or test the vulnerability of a SALT system or network or to breach
SALT’s security or authentication measures, whether by passive or intrusive techniques without SALT’s prior written
8. Newsgroup, Chat Forums, Other Networks
8.1. The User must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in
which the User participates, such as IRC and USENET groups including their rules for content and commercial
postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple
8.2. The User must comply with the rules of any other network the User accesses or participates in when using SALT
systems or services.
9. Offensive Content
9.1. The User may not publish, display or transmit via SALT’s network and systems any content that SALT reasonably
9.1.1. constitutes or encourages child pornography or is otherwise obscene, sexually explicit or morally repugnant.
9.1.2. is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech.
9.1.3. is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and
9.1.4. is defamatory or violates a person’s privacy.
9.1.5. creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national
security, or interferes with an investigation by law enforcement bodies.
9.1.6. improperly exposes trade secrets or other confidential or proprietary information of another person.
9.1.7. is intended to assist others in defeating technical copyright protections.
9.1.8. infringes another person’s trade or service mark, patent, or other property right.
9.1.9. is discriminatory in any way, including by way of sex, religion, race, or age discrimination.
9.1.10. facilitates any activity or conduct that is or may be defamatory, pornographic, obscene, indecent, abusive,
offensive or menacing.
9.1.11. involves theft, fraud, drug-trafficking, money laundering or terrorism.
9.1.12. is otherwise illegal or solicits conduct that is illegal under laws applicable to the User or to SALT.
9.1.13. is otherwise malicious, fraudulent, or may result in retaliation against SALT by offended viewers.
9.1.14. content “published or transmitted” via SALT’s network or systems includes Web content, e-mail, bulletin board
postings, chat, and any other type of posting, display or transmission that relies on the Internet.
10.1. SALT services and systems may not be used by persons, organisations, companies or any such other legal entity or
unincorporated body, including any affiliate or group company, which violates any laws and/or is involved with or
suspected of involvement in activities or causes relating to:
10.1.1. illegal gambling
10.1.3. narcotics trafficking
10.1.4. arms trafficking or the proliferation of weapons of mass destruction, including any affiliation with others
whatsoever who sponsor or support the above activities or causes.
11. Copyrighted Material
11.1. The User may not use SALT’s network, systems or services to download, publish, distribute, or otherwise copy in any
manner any text, music, software, art, image or other work protected by copyright law unless:
11.1.1. the User has been expressly authorised by the owner of the copyright for the work to copy the work in that
11.1.2. the User is otherwise permitted by copyright law to copy the work in that manner.
11.2. SALT will terminate the service of copyright infringers in accordance with the SLA of a customer or Reseller
12. Cooperation with Investigations and Legal Proceedings
12.1. SALT may monitor any content or traffic belonging to the User or to users for the purposes of ensuring that the
Services are used lawfully. SALT may intercept or block any content or traffic belonging to the User or to Users where
services or systems are being used unlawfully or not in accordance with this AUP and the User does not stop or
provide SALT with an acceptable reason within 7 (seven) days of receipt of a formal written notice from SALT.
12.2. We may, without notice to the User:
12.2.1. report to the appropriate authorities any conduct by the User that SALT believes violates applicable law, and
12.2.2. provide any information SALT has about the User, or Users or their traffic and cooperate in response to a
formal or informal request from a law enforcement or regulatory agency investigating any such activity, or in
response to a formal request in a civil action that on its face meets the requirements for such a request.
12.3. If SALT is legally required to permit any relevant authority to inspect the User’s content or traffic, the User agrees SALT
can provide such information, however, that where possible without breaching any legal or regulatory requirement
SALT gives the User reasonable prior notice of such requirement and an opportunity to oppose and/or attempt to limit
such inspection in each case to the extent reasonably practicable.
13. Shared Systems
13.1. The User may not use any shared system provided by SALT in a way that unnecessarily interferes with the normal
operation of the shared system, or that consumes a disproportionate share of the resources of the system. For
example, SALT may prohibit the automated or scripted use of SALT Mail services if it has a negative impact on the
mail system, or SALT may require the User to repair coding abnormalities in the User’s cloud-hosted code if it
unnecessarily conflicts with other cloud customers’ use of the cloud systems. The User agrees that SALT may
quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted,
and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
14.1. The User must have valid and current information on file with the User’s domain name registrar for any domain hosted
on SALT’s network.
14.2. The User may only use IP addresses assigned to the User by SALT’s staff.
14.3. The User may not take any action which directly or indirectly results in any of SALT’s IP space being listed on any
14.4. The User agrees that if the User registers a DNS record or zone on SALT managed or operated DNS servers or
services for a domain of which the User is not the registrant or administrative contact according to the registrars
WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS
system, SALT may modify, transfer, or delete such records or zones.
15. Consequences of Violation of AUP
15.1. The User is strictly responsible for the use of its SALT service in breach of this AUP, including use by the User’s
customers, and including unauthorised use that the User could not have prevented. We will charge the User SALT’s
standard hourly rate for work resulting from or caused by any breach of the AUP together with the cost of equipment
and material needed to:
15.1.1. investigate or otherwise respond to any suspected violation of this AUP.
15.1.2. remedy any harm caused to SALT or any of SALT’s customers by the use of the User’s service in violation of
15.1.3. respond to complaints.
15.1.4. have SALT’s Internet Protocol numbers removed from any “blacklist”.
16.1. SALT is under no duty, and by this AUP are not deemed to undertake a duty, to monitor or police any User activities
and we disclaim any responsibility for any misuse of SALT’s network.