City Technology Solutions Proprietary Limited: End User License Agreement

By clicking "I accept the terms and conditions of the End User License Agreement" at the time of installing or using all or any portion of the Product, you accept all the terms and conditions of this Agreement. You agree (i) with the terms of this Agreement, (ii) to be bound thereby and (iii) to comply therewith. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such company or other entity, its Affiliates and all users who access the Product or the Website, to this Agreement, in which case the terms "User" shall refer to such company or other entity, its Affiliates and all users of the Product. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Product.

1. Definitions

Unless otherwise expressly stated, or the context otherwise requires, the words and expressions listed below shall, when used in this Agreement, bear the following meanings ascribed to them:

Access Credentials

all usernames, passwords, access codes or other devices issued by CTS to the Customer or any other person whatsoever for the purpose of controlling or providing access to the Website and/or the Product;all usernames, passwords, access codes or other devices issued by CTS to the Customer or any other person whatsoever for the purpose of controlling or providing access to the Website and/or the Product;

Agreement

means this written end-user license agreement;

Affiliate

a subsidiary, holding company or associated company of either of the Parties, together with any subsidiary, holding company or associated company thereof;

Competent Authority

collectively the National, Provincial, Regional and Local government of the Republic of South Africa and/or their successors in title, any court of competent jurisdiction or any agency, authority, body or standard-setting institution appointed by such entities to regulate and/or oversee standards applicable to the Website and/or the Search Data;

Confidential Information

means any information, documentation or data of whatever nature which may have been or which may be obtained by a Party in accordance with or during the course of this Agreement which is not generally available to or known by others, whether in writing, in electronic form or in accordance with discussions, including without limitation the Intellectual Property, financial information, marketing and business strategies, minutes of meetings, corporate memoranda, and other information relating to any existing clients, trade secrets, know-how, strategic objectives, planning or ideas, research, business activities, business relationships, products or proposed products, proposals, pricing details, strategies, schematics, software, computer programs, operating procedures and methodologies, functional and technical requirements and specifications and any other technical, business, financial or market information and any other information which may reasonably be regarded as being confidential and of a proprietary nature to a Party;

Content Provider

any person or institution, including the State or an Organ of State, from which CTS procures Search Data;

CTS

City Technology Solutions Proprietary Limited, registration number 2018/251213/07, a company with limited liability duly registered and incorporated in accordance with the laws of the Republic of South Africa;

Customer

means the party authorised by CTS, whether a natural or juristic person, to procure and utilise the Product whose full details will be contained on the Website’s online application;

Data Protection Laws

the Protection of Personal Information Act 4 of 2013, South Africa, or any other legislation applicable to the processing of personal data under these terms and conditions;

Data Enquiry

a request for the supply of Search Data relating to a Data Subject submitted by a Customer to CTS by means of the Website, Software or otherwise;

Data Subject

a person, whether a natural or juristic person, forming the subject matter of a Data Enquiry;

Effective Date

the earlier of the date when the Software is accessed, installed, copied and/or used by the Customer for the first time, or the date on which the terms of this Agreement are accepted;

GPS

means Global Positioning System, is a radio navigation system that allows users to determine exact locations;

Hardware

means the CTS GPS tracking devices and any related hardware used by the Customer, regardless of whether such hardware is provided by CTS or not;

Intellectual Property

all present and future intellectual property rights, in whole or in part, including but not limited to patents, trademarks (whether registered, pending or unregistered in any form and/or nature whatsoever whether now used or adopted in the future), service marks, designs, design rights, all rights of copyright whether existing now or in the future including initial drawings, sketches, flow charts, designs and computer programs relating thereto, together with all related know-how, source codes, inventions, trade secrets, Confidential Information and all other rights of a similar character whether registered or capable of registration and all applications and rights to apply for protection of any of the same, and wherever the rights arise in the world;

License Fee

means the license fee as notified to the Customer from time to time;

Parties

collectively, CTS and the Customer and "Party" means any one of them;

Product

jointly refers to the Hardware and the Software;

Regulatory Provisions

collectively, the prevailing laws, regulations, ordinances, directions, orders, decrees, policy directives and standards of the Government of the Republic of South Africa, any other Competent Authority and the Data Protection Laws which in any way affect or apply to CTS, the Customer, the Website, the Software and/or the Search Data;

Search Data

any information relating to a Data Subject, including but not limited to information relating to a Data Subject's:

  1. ownership of property, including the identity, location and value of such property;
  2. identity number, registration number, or other identifying number or mark;
  3. registration as a company, close corporation, trust or other juristic person;
  4. participation in any company, close corporation, trust or other juristic person;
  5. ownership of any motor vehicle, including registration details and financing arrangements;
  6. past employment history; including the circumstances of termination of any employment, career, professional or business relationship;
  7. driver's license;
  8. criminal record;
  9. credit information;
  10. potential contact information;
  11. marital status, alive status, children's identity,
  12. bank account; and
  13. VAT numbers.

Services

the services provided by CTS linked to the Product and Software, including user support;

Software

means the software licensed by CTS to the Customer, accessed online, downloaded and/or installed onto any IOS, Android or other device, to enable the Customer to track any Hardware device installed with the Software;

Supported Countries

means the Southern African Development Community members, being Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, eSwatini, Tanzania, Zambia and Zimbabwe. CTS reserves the right to amend the list of Supported Countries from time to time and shall publish such changes on the Website;

User

any employee, partner in a firm, student, member or other user entitled to bona fide, authorised access to the Software and Services for reasons linked to the activities of the Customer and, in the case of a natural person, the Customer; and

Website

collectively CTS's website/s, mobile or desktop applications.

2. Interpretation

Unless a contrary intention clearly appears:

  1. the headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof;
  2. words importing:
    1. any one gender includes the other two genders;
    2. the singular includes the plural and vice versa; and
  3. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is in clause 2, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
  4. if the due date for performance of any obligation in terms of this Agreement is a day which is a non-Business Day then (unless otherwise stipulated) the due date for performance of the relevant obligation shall be the immediately preceding Business Day;
  5. if figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
  6. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply to this Agreement;
  7. the words "include", "including" and "in particular" 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;
  8. any reference in this Agreement to a Party shall include a reference to that Party's assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party's liquidator or trustee, as the case may be.
  9. any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;
  10. the words "other" and "otherwise" shall not be construed eiusdem generis with any preceding words if a wider construction is possible;
  11. terms other than those defined within the Agreement will be given their plain English meaning, and those terms, acronyms, and phrases known in general commercial or industry specific practice, will be interpreted in accordance with their generally accepted meanings.

3. Duration and Application

  1. This Agreement will come into effect on the Effective Date and shall remain in force until terminated in accordance with the terms set out in this Agreement relating to termination.
  2. Either Party may cancel this Agreement on one calendar months' notice by means of formal notice to the other Party.
  3. Where the Customer is not a natural person, the person signing or accepting this Agreement hereby warrants that s/he is authorised to enter into the Agreement for and on behalf of the Customer or User, as the case may be.

4. Product Intended Purpose

  1. The Product is only intended to be used to track personal property that the Customer owns or otherwise has been given permission to track.
  2. The Customer acknowledges and agrees that outdoor features including, but not limited to, tunnels, buildings, geographic features and weather may cause disturbances to the functioning of the Product and the Customer acknowledges and agrees that the use of the Product shall be at the Customers sole risk and responsibility.

5. The Software Licence

  1. CTS hereby grants to the Customer, subject to the provisions of this Agreement, the non- transferable, non-exclusive use and/or access to the Software in consideration of the payment of the Licence Fee and the Customer's agreement to abide by the terms and conditions of this Agreement.
  2. CTS does not sell any rights in the Software and shall retain ownership of the Software throughout the Customer's use of the Software.

6. Hardware

  1. The Hardware is a mobile connected device which requires cellular data connectivity to transmit the Hardware’s GPS location coordinates to the Software.
  2. Any Product coverage map provided by CTS, if any, shall only be regarded as CTS’s reasonable estimate with respect to geographical coverage (always subject to the Customer’s network service provider) and shall in no event be deemed to constitute any warranty whatsoever.
  3. The Hardware may only be used in the Supported Countries.

7. Data Coverage

The Customer acknowledges and agrees that the Hardware requires an active data plan in order to transmit data to the Software and that Customer’s use of the Product is subject to cellular network coverage.

8. Grant of Rights and Services

  1. Permitted activities
    1. The Customer may access the Website and Software electronically.
    2. The Customer agrees that the Product will be used solely by the Customer and its Users.
    3. The Customer may physically transfer the Software from one computer to another provided that the Software is used on only one computer at a time.
  2. Prohibited activities
    1. The Customer shall not alter, modify, or transmit the Product, except insofar as such alteration, modification, transmission or reproduction has been agreed to by CTS in writing.
    2. The Customer may not use, or allow others to use, (with the exception of its Users), the Services and Product. This restriction does not prevent Users from accessing and using the Services and Product or prevent it from being shared with company group members of the Customer. However, Users and company group members must follow the confidentiality, security and liability conditions set out in this Agreement.
    3. The Product and any accompanying written material are the subject of copyright. Unauthorised copying of the written materials is expressly forbidden. The Customer is allowed in terms of this Agreement to make one copy of the original Software for backup or archival purposes only.
    4. Where the Customer wishes to do any of the prohibited activities listed in clauses 8.2.1 to 8.2.3 the Customer is required to obtain the express prior written approval of CTS and to follow strictly any specifications required by CTS where consent is granted.
    5. The Customer is prohibited from using the Website, Product or Services in a manner that compromises or tampers with the security, information, data, resources, accounts or records of any person.

9. Accessibility and Availability

  1. Access to the Software
    1. CTS shall as soon after the Effective Date as reasonably possible provide access to the Website and Software, subject to the terms of this Agreement and shall be provided with any necessary Access Credentials.
    2. CTS shall store a record of all Data Enquiries conducted by the Customer and all Search Data provided to the Customer pursuant to such Data Enquiries. Search Data shall however be deleted or marked as "not to be accessed" by CTS when required in terms of any Regulatory Provision or by any Competent Authority.
  1. Availability
    1. CTS reserves the right to modify, update or discontinue the Software at its sole discretion at any time, for any reason.
    2. Updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Software.
    3. The Customer agrees that CTS may automatically deliver such updates to the Customer as part of the Product and the Customer shall receive and install the update as required.
    4. Any updates to the Software shall be deemed part of the Product and will be subject to this Agreement.
    5. As the Product comprises of both the Software and the Hardware, the Customer acknowledges that access to the Product may have limited functionality during the time that the Software is being modified, updated or discontinued.
    6. CTS will keep any downtime to a minimum and CTS will not be liable to the Customer for any compensation in respect of any downtime of the Website or the Software, where applicable.
    7. CTS reserves the right to temporarily suspend the Customer’s access to the Website and/or the Software at any time if there is a serious risk of compromise to the integrity of the Website, the Software, the Search Data or otherwise.

10. Undertakings by Cts

  1. CTS undertakes to ensure that no employee or agent of CTS shall, without the consent of CTS, disclose to any third-party information relating to the Software, Services and/or Search Data.
  2. CTS will comply with all applicable Regulatory Provisions. In doing so, and to the extent reasonably possible, CTS shall assist the Customer with the Customer’s obligations to fulfil the rights of Data Subjects.
  3. CTS shall take appropriate technical and organizational measures to ensure a level of security that is appropriate for the level of risk involved, to ensure compliance with the relevant Regulatory Provisions concerning the processing of personal information (personal information shall have the meaning provided in the Data Protection Laws), and to ensure the protection of the rights of the Data Subject.
  4. Insofar as access to personal information is concerned, CTS shall:
    1. ensure that access to personal information by its employees, Affiliates and Data Providers and any necessary third parties is kept to a necessary minimum;
    2. report any breach of personal information, or any reasonably suspected breach, to the Customer and, where applicable, the Information Regulator;
    3. deal with any breach, or reasonably suspected breach, of personal information promptly and in accordance with its internal policy;
    4. in the case of a breach of personal information: assist in any investigations by the Information Regulator, report on the measures taken to manage and limit the possible damage of a breach of personal information; and
    5. ensure that, on termination of the relationship with the Customer, personal information relating to the Data Subjects of the Customer will, on agreement with the Customer, be erased, returned to the Customer or access restricted, unless otherwise required by law.
  5. Insofar as access to personal information is concerned, CTS shall

11. Undertakings of Compliance by the Customer

  1. The Customer undertakes that:
    1. it shall ensure that all information provided to CTS is up to date and, where necessary, update the information provided to CTS;
    2. it does and shall at all times continue to comply with all Regulatory Provisions, as well as the conditions, standards and requirements prescribed by any Regulatory Provision, or any Competent Authority, which may be applicable from time to time, in respect of the Software, the Website and/or the Search Data;
    3. it shall not do or omit to do anything which may cause CTS any harm or loss, including but not limited to any injury to the reputation of or goodwill of the business of CTS;
    4. it shall immediately notify CTS if there is any reason to believe that the Software, the Website and/or Search Data have become compromised or are likely to become known or used by someone not authorised to use one or other of them, or are being or are likely to be used in an unauthorised way;
    5. it shall use reasonable effort to provide any assistance as may be requested by CTS if the event referred to in clause 11.1.8 occurs;
    6. all Access Credentials issued to the Customer shall be used exclusively for the purposes of the Customer;
    7. it shall at all times ensure that the Access Credentials are kept secure and shall not release or in any way disclose or release the Access Credentials to anyone else;
    8. that if for any reason any Access Credentials is no longer secure, is misused or ends up in the possession of any person other than a Customer or its Users, or unauthorised access is made to the Service, the Customer shall immediately notify CTS. The Customer shall immediately give full details to CTS, prevent further misuse, and use all reasonable efforts to prevent any other unauthorised access to or misuse of the Product.
  2. Each undertaking set out in clause 11:
    1. shall be a separate undertaking; and
    2. shall in no way be limited or restricted by reference to or inference from the terms of any other undertaking; and
    3. shall be for the sole benefit of CTS.

12. Fees and Charges

  1. Payment of Fees
    1. The Customer shall pay CTS for Services rendered in accordance with CTS’s pricing schedule, either as published on the Website or by quotation to the Customer as the case may be and such payments shall be effected through the Website or such other manner as CTS may agree from time to time.
    2. CTS reserves the right to alter fees.
    3. Should the Customer not agree to the altered fees, the Customer has the right to terminate the Agreement in accordance with clause 3.2 above.
    4. The right to use and to continue using the Product under this Agreement is subject to CTS receiving full and timeous payment of all amounts due under this Agreement, and notwithstanding provisions to the contrary set out elsewhere in this Agreement, CTS shall have the right to prevent the Customer from using its Product if the Customer is in arrears in regard to its payment obligations to CTS
  2. Refund

    The Customer acknowledges and agrees that its right to any refund will be subject only to the provisions of the Consumer Protection Act No. 68 of 2008.

13. Confidentiality

  1. All Search Data and personal information is confidential information and must be treated as such by both Parties.
  2. The Parties shall keep all Confidential Information confidential and shall not disclose either in any way, except if:
    1. disclosure of the Confidential Information is necessary to perform an obligation under the Agreement;
    2. a mandatory law or court order requires the Parties to disclose the Confidential Information, in which case the Party required to reveal it shall first notify the other Party;
    3. disclosure of the Confidential Information takes place with the prior written consent of the other Party.

14. Intellectual Property

  1. All Intellectual Property belongs to CTS. Except where expressly provided herein, nothing in this Agreement shall create any right, title or interest in CTS’s Intellectual Property rights.
  2. The Customer acknowledges that it does not own and does not acquire any rights in relation to any and all intellectual property in, relating to, used or embodied in, or in connection with the Software or the Website.
  3. The Customer shall not reproduce (except those reproductions that may be considered to be fair dealing) or retransmit Website content and/or the Software or any part thereof without first obtaining written consent from CTS.

15. Liability

  1. CTS gives only those warranties required by the Consumer Protection Act, Act 68 of 2008 (the “CPA”), or as may be set out elsewhere in this Agreement and no other warranties. All other implied representations and warranties are expressly excluded. The effect of this clause is that other than those warranties provided for in the CPA, CTS does not represent or warrant that the Services meet any specific standards, characteristics or criteria.
  2. CTS's liability to the Customer arising out of a failure by CTS to perform the Services envisaged in this Agreement shall be limited to the liabilities or remedies provided for in the CPA.
  3. Section 54 of CPA provides that, should CTS fail to provide quality service, the Customer may require CTS to either remedy the defect or pay a reasonable portion of the price paid for the Services. This is subject to the provisions on refunds in clause 12.
  4. Neither the service nor any part of it has been tailored to meet the individual requirements of the Customer. Failure to meet the requirements of the Customer shall entitle the Customer to make a claim against CTS.
  5. To the extent permitted by law, CTS disclaims any warranty as to the performance of its Software.
  6. The Customer agrees that CTS cannot be held liable for any loss incurred by the Customer as a result of the following conducted in a manner contrary to this Agreement:
    1. use of the Website;
    2. submission of any Data Enquiry;
    3. use of any Search Data.
  7. The total liability of CTS to the Customer for any claim for negligence, terminating the agreement, or any other liability or obligation is limited to the value of the fees and charges paid to CTS for the provision of the Software and Services relating solely to the subject matter of any claim and not in respect of any previous or linked products and services.
  8. To the extent permitted by law, CTS shall not under any circumstances whatsoever be liable for any consequential damages suffered by the Customer, including but not limited to loss of property, profit, business, revenue, goodwill or anticipated savings.
  9. This clause 15 shall survive termination of this Agreement.

16. Indemnification by the Customer

  1. To the extent permitted by law, the Customer agrees to, and shall, indemnify, defend and hold harmless CTS, its Affiliates and their respective directors, shareholders, officers, agents, employees, successors and assigns from and against any and all claims, demands, suits, actions, judgements, damages, costs, losses, expenses (including attorney's fees and expenses) and other liabilities arising from and in connection with or related in any way, whether directly or indirectly, to:
    1. the Customer's performance of or failure to comply with its obligations in terms of this Agreement and/or the regulatory provisions;
    2. any loss or damage incurred in respect of any decision based on the Search Data;
    3. any claims, penalties and/or measures by third parties, data subjects and/or the information regulator, lodged against or imposed on CTS due to a breach of the Agreement and/or the regulatory provisions by the Customer;
    4. any claim by a Data Subject that is connected in any way with a Data Enquiry or Search Data;
    5. any claim by a third party arising from any claim, injury, loss or damage for which CTS is exempted from liability in terms of clause 15; and
    6. the exercise by CTS of any of its rights in terms of this Agreement, subject to any limitations imposed by law.
  2. CTS shall not be liable to the Customer for any liabilities incurred by the Customer as a result of any unlawful or unauthorised access to or use of the Search Data or Product.
  3. CTS shall not be liable to the Customer for any Search Data provided, or for the failure to provide Search Data, where the Customer fails to provide CTS with information that is up to date.
  4. The Customer shall promptly notify CTS of any claim made against the Customer in respect of the Search Data, the Productivity and/or Services. The Customer shall bear full responsibility for defending such a claim, including any settlements, provided, however, that:
  5. The Customer shall keep CTS informed of and consult CTS in connection with the progress of such litigation or settlement and follow the reasonable directions of CTS in that regard; and
  6. The Customer shall not have any right, without notice to the CTS, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation or admission or acknowledgement of, any liability or wrongdoing (whether in contract, delict or otherwise) on the part of CTS and/or any of CTS's Affiliates.
  7. This indemnification applies to the extent permitted by law and does not include any gross negligence on the part of CTS, or any employee of CTS acting in the course and scope of employment.

17. Breach and Termination

  1. Notwithstanding any other provision of this Agreement, if either Party is in any way in breach of this Agreement, the aggrieved Party may, without prejudice to any of its other rights and remedies, terminate this Agreement by giving the other Party written notice to that effect in the event of the other Party’s failure to remedy the breach within 14 (fourteen) days of its receipt from the aggrieved Party of a written notice requiring the other Party to do so.
  2. If any of the following should occur, CTS shall be entitled to terminate the Customer’s access to the Website and/or the Software or portion thereof on no less than 30 (thirty) days written notice to that effect:
    1. any Content Provider:
      1. terminates any agreement with CTS;
      2. is unable or unwilling to provide any Search Data to CTS;
      3. is unavailable, or becomes unavailable, to provide Search Data to CTS; or
    2. CTS elects:
      1. to modify the Website and/or Product subject to the provisions of clause 11;
      2. to modify or discontinue the Product; or
      3. not to continue supplying Search Data or any form or category of Search Data.

18. Dispute Resolution

  1. If any unresolved dispute arises between the Parties, the Parties agree to resolve the dispute through the framework created in terms of the CPA.
  2. It is agreed that the Parties will first attempt to resolve a dispute by means of alternative dispute resolution such as mediation and/or arbitration:
    1. Any alternative dispute resolution process shall be held in Johannesburg or Durban, as determined by CTS in its sole discretion;
    2. The proceedings and decision of any alternative dispute resolution shall be confidential to the Parties and their advisers.
  3. This clause shall not preclude CTS or the Customer from seeking urgent relief in a court of appropriate jurisdiction.

19. Amendment

  1. CTS reserves the right to amend the Agreement from time to time, which amendments will be posted on the Website or provided to the Customer as the case may be and shall be binding on the Customer.
  2. CTS will use its reasonable efforts to give the Customer reasonable notice of such changes by posting notification on the Website, Software, or sending formal client communications regarding such amendments.
  3. CTS will bring to the Customers’ attention any significant or material changes.
  4. Customers are advised to check the prevailing Agreement.

20. Force Majeure Events

CTS shall not be liable to the Customer for any default or delay in the performance of any of its obligations if, and to the extent that, such default or delay is caused by any act of god, war or civil disturbance, court order, any delay in any performance due from another party or any other circumstance beyond its reasonable control, including without limitation, failures and fluctuations in electrical power or communications, provided that the defaulting party is without fault in causing such default or delay. For clarity it is recorded and agreed that a failure to make payment shall not exclude liability in terms of this clause 20.

21. Assignment

Neither Party shall be entitled to assign, cede, delegate nor transfer any rights or obligations 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 Party.

22. Conflicts and Ambiguities

If there is any conflict between this Agreement and any other terms, rules or regulations of the Software, this Agreement shall prevail.

23. Status of the Relationship Between the Parties

  1. This Agreement shall not operate to constitute the Customer as a partner, employee and/or agent of CTS and the Customer shall not represent itself as such.
  2. Nothing contained in the Agreement shall authorise or empower one Party to enter into any contracts or other commitments on behalf of the other Party.

24. Governing Law

The law governing this Agreement, including without limitation its interpretation and all disputes arising out of this Agreement, is the law of South Africa. The Parties submit to the exclusive jurisdiction of the South African courts in respect of any matter arising from or in connection with this Agreement, including its termination. The Parties further consent to the non-exclusive jurisdiction of the Durban High Court.

25. Notices, Instructions, Communications and Legal Process

  1. All notices, instructions, communications and legal processes between the Parties made in connection this Agreement shall be sent by email, hand delivery or courier services to the other Party to the address stated on the Website from time to time (in the case of CTS) and on the online purchase order (in the case of the Customer) or to such other address as any Party shall substitute for such purposes by written notice given to the other Party from time to time, which change shall become effective 7 (seven) Business Days (or, if the written notice is given by a party incorporated outside South Africa, 14 (fourteen) Business Days) after receipt of the relevant notice by such other Parties.
  2. A notice given as set out above shall be deemed to have been duly given (unless the contrary is proved):
    1. if delivered by hand before 16h30, on the date of delivery, or otherwise the immediately following Business Day; or
    2. if sent by courier and delivered before 16h30, on the date of delivery by the courier service concerned, or otherwise the immediately following Business Day; or
    3. if sent by telefax or via email, on the later of (i) the expiration of 24 hours after the time of transmission and (ii) the Business Day immediately following the date of transmission, unless actually received on the date of transmission.

26. General and Miscellaneous

  1. This Agreement constitutes the sole record of the agreement between the Parties with regard to the subject matter hereof. Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
  2. No relaxation or indulgence by either Party may constitute a waiver of the rights of such Party and shall not preclude such Party from exercising any rights which may have arisen in the past or which might arise in future.
  3. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.
  4. No addition to, variation of, or agreed cancellation of, this Agreement shall be of any force or effect unless in writing and signed in handwriting by or on behalf of both the Parties.
  5. If any provision of this Agreement is found to be unenforceable, invalid or contrary to law, this shall not affect any other part or aspect of this Agreement which shall remain in force and effect pursuant to its terms minus the challenged provision unless such severance would invalidate the principal purposes of this Agreement. If any provision is so severed the Parties agree to use best efforts to achieve the same result as was intended by such provision.