AGENCY AND REPRESENTATION AGREEMENT

Transcription

1 AGENCY AND REPRESENTATION AGREEMENT SISHA.COM SYSTEMS (PTY) LTD (2007/027352/07) 7 Doral Close, Silver Lakes, Pretoria, Gauteng (Domicile); Tel: (Hereinafter referred to as The Company) AND Agency Name: Contact Person: ID no. / Reg. no: Physical Address: (Domicile) Postal Address: Tel: Fax: VAT Registration Number: (Hereinafter referred to as The Agent) (Hereinafter jointly referred to as the parties) 1. The Company has license to and has developed various technologies and infrastructure for the supply of electronic facsimile products and support ( the product ) and holds the license to and in other instances owns the intellectual capital for these technologies, products and business methodology. 2. The Company hereby appoints the Agent who in turn accepts the appointment, to market and introduce the product aforesaid to clients on the terms and conditions set out in this Agreement (the services ). This Agreement will continue for an indefinite period unless terminated earlier in terms of this agreement or otherwise by either party with 3 (three) months prior written notice. This Agreement and the obligations of the Company shall automatically be terminated in the event that the Company is no longer possessed of the necessary licenses to support the product. 3. The Company has the right to manage the relationship between the Company, the Agent and/or any Sub-Agents of the Agent in terms of an Agent s procedures manual, which manual has the sole purpose of recording the obligations and rights of the Agent in rendering the services, regulating the manner in which the products and support services will be supplied to end users and end clients, the protection of the businesses of the Company, its clients, its suppliers, business partners, licenses and the related technologies and business methodology, the marketing and sale of products and related support services, the general conduct of the Agent and its Sub-Agents towards the end users and clients of the Agents and Sub-Agents, the Company, its suppliers, its clients, its business partners, all in an effort to protect unlawful use of the product and the related license and to further advance the businesses and the business initiatives of the Company. The Company has the right to amend and improve the Agent s procedures manual from time to time as the Company may deem fit in its own and absolute discretion, subject to the amendments having the objective of improving the aspects aforementioned. 4. Should the Company wish to exercise its right to amend the Agent s procedures manual as above, the Agent may accept or decline such variation, in writing, within thirty (30) days from date of correspondence of the change envisaged. Acceptance of the variation will have the effect that this agreement will continue to be in force and effect in accordance with the amended terms and conditions; or 5. Declination of the variation in writing, will have the effect that this agreement will terminate with effect from the date when the Agent notifies the Company of its declination. Should no acceptance or declination be received from the Agent within 7 (seven) days after receipt of correspondence by the Company as described in clause 3, it shall be deemed that the Agent accepted the variation as stated in the notice. 6. An Agent, by signature of this Agreement, acknowledges that it has access to the Agent procedures manual, has read it, understands it and undertakes to be bound to the terms thereof and/or any reasonable amendment thereof. 7. The Agent shall be entitled to payment of certain commissions calculated as a portion of the revenue actually received by the Company in relation to revenue generated by the Agent or its Sub-Agents on all inbound faxes, normally calculated as per Annexure D, including vat, per minute on all inbound faxes, which commission shall be payable within 60 days from the presentation of a valid invoice presented to the Company for payment. No commissions will be earned on outbound faxes. At the end of each month the Company will forward a billing report to the Agent on which the Agent will in return invoice the Company within 90 days, failing this, the Agent will automatically forfeit the commission total stated on that billing report. The invoiced amount is then payable within 60 days as mentioned supra. 8. The Agent shall not be entitled to receive any commission in respect of any month if the total commission payable to it in that month is less than R

2 9. Without prejudicing any of its rights, the Company shall be entitled to reasonably vary and/or amend such commission to be earned by the Agent taking into account the portion of revenue actually received by the Company and as generated by the Agent or any of its Sub-Agents, which revenue portion may decline for any valid and/or enforceable reason. It is specifically recorded that the commission may therefore be subject to possible declination and commissions to be earned may change without prior notice. 10. Should the Company wish to exercise its right as mentioned in clause 8 above, the Agent may accept or decline such variation, in writing, within thirty (30) days from date of correspondence of the change in the commissions payable. 11. Acceptance of the variation will have the effect that, save for the amended amounts and/or percentages, this agreement will continue to be in force and effect in accordance with the agreed terms and conditions; or 12. Declination of the variation in writing, will have the effect that this agreement will terminate with effect from the date when the Agent notifies the Company of its declination. The Agent shall still only be entitled to any amounts payable per paragraph 8 arising from this agreement until such date that the notice of declination is given to the Company, and no further claims may be instituted by the Agent, including but not limited to, claims for damages and/or loss of income. 13. Should no acceptance or declination be received from the Agent within 7 (seven) days after receipt of correspondence by the Company as described in clause 9, it shall be deemed that the Agent accepted the variation as stated in the notice, and the conditions as per clause 10 will apply. 14. In the event of the Agent providing the Company with an invoice per 7 and the invoice does not reflect the correct information regarding time for inbound faxes actually generated and sold by the Agent or any of its Sub-Agents, any loss suffered by the Agent or any of its Sub-Agents will be for the account of the Agent and any excess claimed by the Agent will be repaid by the Agent to the Company upon demand by the Company for such repayment. 15. Unless otherwise indicated, commissions, incentives and prices referred to in this Agreement or the Price List are Inclusive of VAT. 16. The Company shall have the sole discretion to decide whether to approve the implementation of the products and support services with a client, whether or not the applicant meets all of the agreed requirements or profile. 17. The Company does not guarantee the availability of any product or service presented which the Agent, acting for and on behalf on the Company, offers to Clients from time to time. 18. For all the purposes of this agreement including, but not by way of limitation, the giving of any notice, the making of any communication, the payment of any sum and the serving of any process, the following persons respectively choose their domicilium citandi et executandi as the address in the preamble to this agreement. 19. This document, known as the Initial Recordal, and the Agent s procedures manual comprise the entire agreement between the parties and neither of party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein and in the Agent s procedures manual. The phrase used in this Initial Recordal, and the Agent s procedures manual as the / this agreement" means the Initial Recordal and the Agent s procedures manual and all annexures and amendments thereto; 20. The Agent shall not, without the consent of the Company, be entitled to cede or delegate all or any of its rights and/or obligations in terms of this Agreement to any third party. In the event that the Agent appoints an unapproved Sub-Agent the Agent will forfeit all the commission payable to the Agent, as generated by such unapproved Sub-Agent and will repay to the Company any payment made to the Agent as generated by such unapproved Sub-Agent. 21. Save for amendments provided for herein, no alterations, consensual cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by the duly authorised representatives of both parties. 22. The Agent shall not be entitled to set off any amounts that may be owing to the Company by Agent from whatsoever cause arising, against any amounts owing by the Agent to the Company. I acknowledge that I have read and understand the entire Agency and Representation Agreement, which comprises this document and the Agent s procedures manual and agree to be bound by the full implications of this contractual relationship. Signed at this Day of 20. Signed by or on behalf of The Agent Signed by or on behalf of Sisha.com Systems (Pty) Ltd Witness: Witness: Witness: Witness: - 2 -

3 AGENT S PROCEDURE MANUAL: ANNEXURE A GENERAL TERMS APPLICABLE TO AGENCY AND REPRESENTATION AGREEMENT BETWEEN SISHA.COM SYSTEMS (PTY) LTD AND THE AGENT: 1. REFINEMENT OF THE PRODUCT AND SUPPORT Both parties agree that, to improve the effectiveness of the products and support services aforesaid, the Agent will supply his inputs to accomplish such improvements on a pro-active and continual basis to the Company, which inputs may be used by the Company, with no obligation to the Agent to enhance or otherwise change the products and support services. 2. CESSION AND DELEGATION AND APPOINTMENT OF AUTHORISED SUB-AGENTS 2.1 The Agent shall not, without the consent of the Company, be entitled to cede, delegate or sub-license all or any of its rights and/or obligations in terms of this Agreement to any third party. 2.2 Unless so approved by the Company, in its sole discretion, the Agent shall not be authorised to appoint any Sub-Agent or delegate any of its duties in terms of this Agreement to third parties, to perform the duties imposed upon it herein contained. 2.3 It is therefore recorded by the parties that the Agent may, with the necessary authority aforesaid, appoint Sub- Agents to achieve the goals set out in the general understanding aforesaid. 2.4 The appointment of a Sub-Agent is subject to the Sub-Agent signing the required Sub-Agent s Agreement, binding himself to the terms and conditions of this Agreement by initialing a copy hereof, attaching same to the Sub-Agent s Agreement mentioned aforesaid and the Agent providing the Company with the said Agreement with annexure. Where a Sub-Agent has declared himself bound to the terms of the Agent s Procedure Manual as aforesaid a reference herein to the word Agent shall in context refer to the Sub-Agent and the Sub-Agent shall be bound in favor of the Agent and Company to the terms hereof. 2.5 In the event of any dispute coming into existence between the Agent and any Sub-Agent, the Agent shall inform the Company thereof within 7 (seven) days of such a dispute not having been satisfactorily settled between the Agent and Sub-Agent, and the Company reserves the right, in its sole and absolute discretion, to get involved in whatever manner it may deem fit for the protection of the products, support services, technologies, business methodology and the business initiatives as set out above. Where applicable, for such purposes, the Company may require the Sub-Agent s Agreement to be cancelled and it shall be a condition of such a Sub-Agent Agreement that on a dispute between the Agent and Sub-Agent and at the absolute discretion and choice of the Company, the Agent may be required to cancel the Sub-Agent Agreement with immediate effect and the Sub- Agent will agree to such a condition. Further, if applicable, the Company may also in its sole discretion, for the purposes of protection as aforesaid, cancel without prior notice with immediate effect this Agent Agreement in the event of a dispute as aforesaid, which would also entail the automatic cancellation of the Sub-Agent Agreement as aforesaid. 3. GOOD FAITH AND INDEPENDENT CONTRACTING PARTIES 3.1 The parties shall at all times show to each other the utmost good faith in their actions in terms of this Agreement as is required of contracting parties. 3.2 It is further recorded that an Agent is appointed as an independent contracting Agent with the Company, who shall operate independently as such from the Company and who will refrain from making any statements, of whatever nature, which might be construed to indicate a relationship between the Company and the Agent other than as aforesaid. 3.3 On cancellation or termination of the Agent s Agency Agreement for whatever valid and enforceable reason, the Sub-Agent s Agreement will be terminated as an automatic consequence of the termination of the Agency Agreement. 4. RESTRAINT 4.1 The Agent acknowledges that it has the opportunity to develop a personal relationship with the Company s clients and/or suppliers and/or business partners and/or other Agents, and that it shall remain in close contact with such clients and/or, suppliers and/or business partners and/or other Agents, and that the Agent will have free access to some of the confidential information of the Company and/or the Company s clients and/or suppliers and/or business partners, and in general the way in which the Company conducts its business; 4.2 The Agent, therefore, in order to protect the goodwill of the businesses and the interests of the Company and its clients, suppliers, business partners and/or other Agents in the goodwill of their respective businesses, agrees and undertakes in favour of the Company that it will not within the Republic of South Africa, for the duration of this Agreement and for a period of 24 (TWENTY FOUR) months after the date of termination of this Agreement, either as principal, agent, partner, representative, shareholder, director, employee, consultant, adviser, financier, or in any other like or similar capacity, directly or indirectly, be associated or concerned with, interested or engaged in any firm, business, company or other association of persons which carries on a business or activity similar to the business carried on by the Company on the commencement date of this Agreement, or any new but similar business established by the Company after the said commencement date; 4.3 The Agent agrees that: the restraints imposed upon it in terms of this clause are reasonable as to subject matter, area and duration and are reasonably necessary in order to preserve and to protect the goodwill of the businesses of the Company, its suppliers, its clients, and its other business partners; notwithstanding the manner in which the restraints are grouped together or linked geographically above, each of them constitutes a separate and independent restraint, severable from each of the other restraints; 4.4 The Agent shall not, directly or indirectly through any third party, or internally through its own persons, representatives, officers, employees, agents, sub-agents or sub-contractors, in any manner: exploit (including but not limited to the sale, marketing, development and design of) the Confidential Information and intellectual property owned by, or accrued to, or under license to The Company for the duration of this agreement other than expressly provided for in terms of this agreement; - 3 -

4 4.4.2 solicit, or seek to exploit, any business, vendor or customer relationship disclosed by The Company in terms of this agreement. 4.5 The Agent undertakes that neither it nor any future business, trade, undertaking, person or concern in, which it is directly or indirectly interested in or employed by shall, for the duration of this agreement and for a period of 24 (TWENTY FOUR) months after the date of termination of this Agreement, directly or indirectly: encourage or entice or incite or persuade or induce any employee of the Company, its clients, its suppliers and/or other business partners, to terminate his/her employment with such employing party; and/or encourage or entice or incite or persuade or induce any principal or associate of the Company, its suppliers, its clients and/or business partners to terminate its relationship with the Company, its suppliers, its clients and/or business partners or to render prescribed service to any competitor of such party; and/or use any means which are directly or indirectly designed, or in the ordinary course of events calculated, to result in any employee terminating his employment with the Company, its clients, its suppliers and/or business partners and/or becoming employed directly or indirectly or in any way interested in or associated with the trade, business, undertaking or concern of any other person, firm or company; and/or solicit or deal with or derive any benefit from any business dealings with any of the Company s principals, clients, suppliers and/or business partners; or attempt to do so. 5. AGENT S OBLIGATIONS AND LIMITATIONS Without the prior written consent of the Company: 5.1 The Agent shall not bind or purport to bind the Company or any of its associates to any agreement with any third party or prospective client; and 5.2 The Agent is not authorised to guarantee, warrant, approve or render the products to any third party or prospective client and shall not purport to warrant the approval of any element of the product. 5.3 The Agent shall not deviate from previously agreed procedures for the marketing and promotion of the products and support to clients or the identification of suitable markets. 5.4 The Agent is not authorised to reimburse any client with any payments or commissions or kickbacks whatsoever received from the commissions earned on fax minutes. 5.5 The Agent shall comply, and procure that all persons using any equipment provided to it for the purpose of the provision of the products and/or support, comply with the specifications, instructions for use and recommendations of the manufacturer of such equipment, and any person or entity nominated by the Company to service, maintain and/or repair such equipment. 5.6 The Agent shall not attempt, or permit any third party, other than the Company or its authorised agents, to develop, copy, tamper with, customise, install, implement, reverse engineer, re-write, buy and/or re-engineer any software or buy any hardware related to the products and/or support services. 5.7 The Agent shall not attempt or permit any third party, other than the Company or its authorised agent, to install or download any software or application on to the aforesaid equipment, unless agreed to in writing by the Company. 5.8 In the event of the Company supplying the Agent with any advertising or promotional materials, such items shall be maintained in good order and condition by the Agent and shall at all times remain the Company s property, who shall be entitled to remove such items and/or documents upon forty-eight (48) hours prior notice to the Agent. 5.9 The Agent is not authorised to sell or on-sell any client numbers within the number ranges allocated to the Company in terms of any agreement between any of the business partners of the Company with the Company, which includes the inbound services and the use of the fax to client numbers as aforesaid The Agent is not authorised to arrange for the activation of any of the product or support services with any client or potential client unless prior written permission is obtained from a duly authorised representative of the client in question, prior to the activation of such products and/or support services; 5.11 Access to the business systems, related technologies, electronic facsimile products and support of the Company by the Agent is subject to confirmation from the Company that such access is granted upon the Agent having met all the criteria and continues to meet the criteria as set out in this Agreement and the Agents procedures manual as mentioned above No Agent is allowed to send bulk communication to Clients without prior consent from the Company With reference to Section 45 of the Electronic Transactions and Communications (ECT) Act, 25 of 2002, the Company hereby states that it does not support or encourage unsolicited commercial (UCE) and unsolicited bulk (UBE) Any Agent who sends unsolicited commercial communications with reference to Fax2 to Clients/Consumers, must provide, within the body of the communication, the Clients/Consumers a) with the option to cancel his or her subscription to the mailing list of the Agent; and b) with the identifying particulars of the source from which that Agent obtained the Consumer's/Client s personal information The Agent shall not send a second unsolicited commercial communication to a Client/Consumer who has advised the Agent that such communications are unwelcome No agreement is concluded where a Client/Consumer has failed to respond to an unsolicited communication No Agent is allowed to charge users for using the inbound service No Agent is allowed to sell the address database on their fax console No Agent is allowed to charge money for sub-agencies. 6. VIS MAJOR In the event of compliance with the terms and conditions of this agreement being frustrated or delayed by strikes, riots, lock-outs, trade disputes, vis-major, acts of God or any other cause not within the control of the Company, it is agreed that the Company shall not be held liable for any loss of trade or profit consequent upon such cause. 7. KEEPING OF RECORDS The Agent shall at all times keep and maintain proper records of appointments scheduled and attended with clients which shall be available for inspection at all reasonable times by any person duly authorized by the Company

5 8. AGENT S PRIMARY DUTIES The Agent shall: 8.1 Apply for registration of a prospective client against its name. 8.2 Market and introduce the product and support services to potential clients on the terms and conditions set out in this agreement. 8.3 The Agent shall provide continuous, ongoing management and support to all clients. 8.4 The Agent shall be responsible for any and all cost incurred by the Agent for marketing, selling, managing and administrating of the service to its clients and may at no time expect the Company to reimburse the Agent for any costs incurred as a result of being an Agent of the Company. 9. THE COMPANY S PRIMARY DUTIES 9.1 The Company shall provide the Agent with appropriate marketing art work, to enable the Agent to reproduce the relevant marketing material with which to introduce the products and support services to the clients of the Agent. 9.2 The Company undertakes to provide, or appoint a nominee to provide, the Agent with adequate training to enable it to meet the requirements as laid down by the Company. The Agent shall be responsible for travelling and any or all other costs incurred. 9.3 The Company shall, at its sole discretion, approve the application for registration of a prospective client as originated by the Agent, and will inform the Agent of its approval or disapproval thereof, within 7 days of submission. 9.4 Upon approval of the application contemplated in clause 9.3 above, the Company shall register the prospective client against the name of the Agent. 10. SECONDARY RIGHTS AND DUTIES OF THE COMPANY The Company shall provide the Agent with the necessary support to enable it to perform its duties in the following manner: Set-up Support 10.1 The Company shall: Authorise the Agent at the Company s sole discretion to use the trade name and trademarks in accordance with the specifications laid down, directions given and information supplied by the Company, from time to time; and Permit the Agent at the Company s sole discretion the use of its Intellectual Property and allow the Agent to benefit from its goodwill, know-how and trade secrets in the performance of the Agent s duties herein contained. Advice, Reporting and Communication 10.2 The Company shall: Provide consultation and advice with respect to: General advice to enable the Agent to operate its business, Marketing advice ; and Any other matters relating to the business of the Agent; Convene meetings with the Agent when necessary. Trade name/trademarks 10.3 The Company shall prescribe the trade name and trademarks, signage, merchandising and any other business devices to be used by the Agent in marketing and upon introducing the products; and 10.4 The Agent acknowledges that the trade name/s or trademark/s to be used are the property of the Company or its associates, and undertakes not to misuse or register, for its own benefit, such trade name/s or trademark/s. 11. GOVERNING LAW This Agreement and all matters or disputes arising there from or incidental thereto shall be governed and construed in accordance with the laws of the Republic of South Africa. 12. DISPUTE RESOLUTION 12.1 All disputes, other than as specifically provided for in this agreement, arising out of or relating to this agreement including disputes as to the meaning or interpretation of any such provision or as to the quantification or determination of any amount or thing required to be determined or quantified in terms of or pursuant to this agreement, will be referred, if the matter cannot be resolved between the parties directly, to mediation by a mediator appointed by the President of the Law Society of the Republic of South Africa or if the body no longer exists, such body having regulatory powers over attorneys practicing in the Republic of South Africa; 12.2 The parties intended that the mediator would consider and if possible determine the dispute within ten days, which may be extended by written agreement between the parties. If the dispute cannot be resolved in this manner, then it will be referred to arbitration as provided for hereunder: 12.3 Any disputes arising out of in connection with The interpretation of; or The effect of; or The implementation of; or The parties respective rights and obligations out of; or A breach of; or The rectification of this agreement, which has not been resolved as provided for elsewhere in this agreement shall be decided by arbitration in the manner set out in this clause Such arbitration shall be held in Pretoria on such rules of the Arbitration Foundation of the Republic of South Africa and confidentially, it being the intention that, if possible, the arbitration shall be held and concluded within 21 (twenty one) days after it has been demanded. If the said foundation no longer exists, the rules of Conciliation and Arbitration of the International Chamber Of Commerce will apply to such arbitration The parties irrevocably agreed that any decision in such arbitration proceedings; Shall be binding on them; and - 5 -

6 Shall be carried into effect; and May be made an order of any court of competent jurisdiction; Shall include such order as to costs as the arbitrator deems fit This clause 12 shall be severable from the remaining provisions of this agreement and shall continue to be of application notwithstanding the termination or purported cancellation of this agreement at any stage in whatever fashion The provisions of this clause 12 shall not preclude any party from access to an appropriate court of law for Interim relief in the form of an interdict, mandamus or order for specific performance pending the outcome of an arbitration in terms hereof or in respect of such arbitration; or Any other form of relief on the basis of facts which are not disputed provided that if a bona fide dispute arises in the course of the proceedings, such proceedings shall be stayed pending an arbitration on the dispute in terms thereof; or An order for the payment of a liquidated amount in money on the basis of facts which are not bona fide in dispute at the commencement of such proceedings. 13. INTELLECTUAL PROPERTY RIGHTS 13.1 It is recorded that the Agent will act for and on behalf of the Company when performing its duties herein contemplated. It is recorded that all intellectual property rights in relation to the products, the support, the business, related technologies and business methodology as recorded under the general understanding above is either owned by the Company, alternatively by certain other license holders who has licensed the use thereof to the Company, and the Agent acknowledges that it shall have no claim to the Intellectual Property rights that attach to the aforesaid products, support services, technologies and business methodologies or any Intellectual Property utilized by the Company in its business, merely as a result of this agreement Upon termination of this agreement, for whatever reason, all intellectual property consisting of, but not limited to, client data, product documentation, stationery, material and agreements, shall be returned to the Company within 7 days. It is recorded that the Agent will, in execution of its appointment, develop and own certain data bases relating to third party users / end users / clients of the products and/or support services. The Agent acknowledges that for the protection of the business of the Company, certain limitations need to be placed upon the utilization of such data bases, including all personal information relating thereto, and accordingly the Agent herewith agrees to limit its right of ownership to the relevant data bases, including all personal information relating thereto, for the duration of this agreement and subsequent to the termination of this agreement, for an indefinite period, as follows: a) All information relating to the data bases, including all personal information, shall be deemed Confidential Information and although this confidential information may not be the property of the Company, the Agent agrees that such data bases, including all personal related information, which is deemed Confidential Information, shall be dealt with in accordance with the Confidential Information annexure contained in this agreement, as if such information is Confidential Information of the Company; b) In furtherance of the limitation aforesaid, the Agent therefore agrees not to sell or on sell any such data bases, including all related personal information to any third party, without the prior approval of the Company The Company records its reservation of its right to cancel any agreement with any client, such right/s of the Company being pursuant to agreements entered into between the client and the Company, and the Agent shall not frustrate such cancellation or claim any damages or loss, whether direct, indirect or consequential, from the Company arising there from Nothing in this agreement shall entitle either party to use the other party s, inclusive of license holder s, names, logo s, trademarks, designs, copyrights or any other intellectual property in any manner whatsoever without such other party s prior written consent Any copyright, trademarks, patents, designs or other intellectual property rights including the development of any hardware, software, know-how, techniques or the like, which may come into existence during the course of this agreement shall remain the property of The Company, alternatively the License Holders or other business partners of The Company or License Holders. 14. BREACH AND TERMINATION 14.1 In the event of a party: Continually failing to comply with any provision of this agreement and persisting in such failure for a period of fourteen days after receipt of a written notice demanding compliance; or Being liquidated, whether provisionally or finally or being placed under judicial management or Curatorship; or If a Court Judgment is issued against a party for the payment of monies to a claimant, and the party remains in default thereof for a period of 45 days from the date of issue by the Court; or Allowing the attachment of any of its assets; or Entering into a compromise with its creditors; The other party shall be entitled, without prejudice to any other right it may have in terms of this agreement or in law, to: - cancel this agreement and claim damages suffered; or Claim specific performance of any or all of the terms and conditions of this agreement. And where the Agent is the party in breach under this clause 14.1, the Company shall be entitled to cancel all future annuity income, if applicable, to which the Agent may be entitled arising out of this agreement; 14.2 In the event of: The Agent not sourcing the minimum required number of prospective Clients or monthly minutes as may be prescribed by the Company from time to time (if applicable); or The Agent, for whatever reason, either directly or indirectly, being in breach of any restriction, limitation or duty imposed upon it arising out of this agreement; the Company shall notify the Agent in writing to remedy such breach/failure, and should the Agent fail to do so within 14 days of receipt of such notification, the Company shall without prejudice and in addition to any other remedies it may have, be entitled to: Cancel this agreement, and in so doing, the Agent will not be entitled to any further fees that would otherwise have accrued to it, including any annuity income; or Claim specific performance of any or all of the terms and conditions of this agreement; and - 6 -

7 Claim damages suffered arising from the conduct of the Agent. 15. DOMICILIA AND NOTICES 15.1 Either party, by written notice to the other, shall be entitled from time to time to vary its domicile to any other address within the Republic of South Africa, provided that such other address may not be a post office box or poste restante Any notice and any communication or payment made by either party to the other ( the addressees ) which: Is delivered by hand during the normal business hours of the addressees at the addressees domicile for the time being, shall be presumed, until the contrary is proved, to have been received by the addressees at the time of the delivery; Is posted by prepaid registered post from an address within the Republic of South Africa to the addressees at the addressees domicile for the time being, shall be presumed, until the contrary is proved, to have been received by the addressees on the 7 th day after the date of posting. 16. GENERAL 16.1 This Agreement contains the entire agreement between the parties and neither of them shall be bound by any undertakings, representations, warranties, promises or the like not recorded therein Save as expressly otherwise provided in the Agreement, no alteration, variation, cancellation, addition or amendment to, or deletion from this agreement shall be of any force or effect unless recorded in writing and signed by or on behalf of the parties No indulgence, extension of time, relaxation or latitude which either party ( the grantor ) may show, grant or allow to the other party ( the grantee ) shall constitute a waiver by the grantor of any of the grantor s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future All provisions of this agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision of this agreement which is or becomes unenforceable, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this agreement shall remain of full force and effect. The parties declare that it is their intention that this agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof All equipment provided by the Company to the Agent shall remain the property of the Company and the Company may require it to be clearly marked as such. 17. LIABILITY AND INDEMNITY 17.1 The Company shall not be liable for any loss, claim, action, expense, damage, consequential damage or injury suffered or sustained by the Agent whatsoever and howsoever pursuant to entering into this Agreement. In particular, the Company will not be liable for any financial loss, loss of business, profit, savings, revenue, or goodwill suffered or sustained by the Agent or Sub-Agent howsoever arising Save to the extent expressly provided in this Agreement, the Company makes no warranties or representations whatsoever in respect of the Recharge vouchers supplied by it to the Agent in terms of this Agreement. All other statutory, express implied or tacit, terms and conditions or warranties are excluded This Agreement shall terminate forthwith upon the termination or cancellation for any reason of the contract of license applicable to the product and the Agent shall not have any claim pursuant to such termination even if the termination or cancellation arises out of a negligent or wrongful act on the part of the Company The provisions of this clause shall survive any termination of this Agreement for any reason. ANNEXURE B RESTRICTED USE OF CONFIDENTIAL INFORMATION: 1. INTERPRETATION 1.1 In this annexure, unless inconsistent with or otherwise indicated by the context: ""confidential information" means information of a confidential or proprietary nature in whatever form, and without limiting the generality of the term, shall include: any of the following information and/or material disclosed or communicated (before or after the signature of this agreement) by the disclosing party to the receiving party in connection with or arising out of the relationship: technical, scientific, commercial, financial or market information, know-how or trade secrets; data concerning business relationships, processes, services, personnel, architecture, information, demonstrations, or machinery; plans, designs, drawings, functional and technical requirements and specifications; information relating to the disclosing party's strategic objectives and planning for both its existing and future information technology needs; information contained in or constituting the disclosing party's hardware or software, including third party products, and associated material documentation; intellectual property that is proprietary to the disclosing party or that is proprietary to a third party and in respect of which the disclosing party has rights of use or possession; information concerning faults or defects in the disclosing party's systems, hardware and/or software or the incidence of such faults or effects; agreements to which the disclosing party is a party; all other information in whatever form, whether or not subject to or protected by common law or statutory laws relating to copyright, patent, trade marks, registered or unregistered, or otherwise; information regarding the relationship, the fact that discussions are occurring concerning the relationship, any of the terms and conditions applicable to or being discussed by the parties in relation to the relationship or the existence of this agreement; information which by its nature or content is identifiable as confidential and/or proprietary to the disclosing party and/or any third party in relation to or arising out of the relationship, or which although - 7 -

8 not directly related to the relationship is nevertheless disclosed as a result of or in connection with the parties' discussions of the relationship; "the disclosing party" means the party disclosing the confidential information; "material" means any direct or indirect expression of thought or of an idea or of a combination of thoughts or ideas in material form, any direct or indirect artistic or aesthetic expression in material form or any data in material form, and shall include (but not by way of limitation): all reports; correspondence; documentation; computer software, computer source-code and object-code; flowcharts; data-bases; designs; tables; calculations; spread-sheets; schematics; plans; drawings; photographs; presentations; lectures; literary, dramatic, musical and cinematographic works; sound recordings; broadcasts; and programme-carrying signals; "the parties" means the parties to this agreement; "the relationship" means the possible business relationship to be explored, evaluated and promoted between the parties; "the receiving party" means the party receiving the confidential information. 1.2 The clause headings in this agreement are for reference purposes only and shall not be used in the interpretation thereof. 1.3 Unless the context clearly indicates a contrary intention: expressions which denote: any reference to a gender includes the other genders; any reference to natural persons includes legal persons and vice versa; any reference to the singular includes the plural and vice versa; references to a person shall be construed as including references to an individual, firm, company, corporation, partnership, association, unincorporated body of persons, trust, a state or any governmental authority or any other entity whether acting in an individual, financing or other capacity and to such person's permitted successors; 1.4 If any provision in a definition is a substantive provision, conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in the relevant definition, effect shall be given thereto as if such provision is in the body of the agreement. 2. RESTRICTIONS ON DISCLOSURE AND USE OF THE INFORMATION 2.1 The receiving party may disclose the confidential information only to its representatives, officers, employees, associated entities, subsidiaries or holding companies and then only such representatives, officers, employees, associated entities, subsidiaries or holding company to whom such disclosure is reasonably necessary, provided that such representatives, officers, employees, associated entities, subsidiaries or holding companies agree in writing to be bound by the terms and conditions of this agreement prior to such disclosure. 2.2 The receiving party agrees: not to disclose the confidential information to any third party for any reason or purpose whatsoever without the prior written consent of the disclosing party, save in accordance with the provisions of this agreement; not to utilise, employ, exploit or any other manner whatsoever use the confidential information disclosed pursuant to the provisions of this agreement for any purpose whatsoever other than strictly in relation to the relationship; that the unauthorised or unlawful use or disclosure of the confidential information may cause irreparable loss, harm and damage to the disclosing party. 2.3 Accordingly, the receiving party indemnifies and holds the disclosing party harmless against any loss, action, expense, claim, harm or damage, or whatsoever nature, suffered or sustained by the disclosing party pursuant to a breach by the receiving party or any of its representatives, officers, employees, associated entities, subsidiaries or holding companies to whom disclosure is made in terms of this agreement of the provisions of this agreement. 2.4 Unless the parties otherwise agree in writing, any documentation or records relating to the disclosing party's confidential information which comes into the possession of the receiving party during the existence of this agreement or at any time thereafter: shall be deemed to form part of the confidential information of the disclosing party; shall be deemed to be the property of the disclosing party; shall not be published or circulated by the receiving party; shall not be copied or reproduced by the receiving party other than strictly in accordance with the requirements of the relationship, and any such copies and reproductions shall be kept separate from other documents and records of the receiving party; shall be surrendered to the disclosing party on request, and the receiving party shall not retain any extracts there from. 2.5 Subject to clauses 2.1 and 2.2, the receiving party shall procure that any persons who may have the opportunity of receiving or having access to any of the confidential information of the disclosing party are aware of the provisions of this agreement and agree in writing to comply herewith as if they were a party to this agreement. 2.6 The receiving party shall be responsible for any breach of the terms of this agreement by any persons (including its representatives, officers, employees, associated entities, subsidiaries or holding companies) to whom it discloses confidential information of the disclosing party, and shall at the receiving party's sole expense take all reasonable measures to restrain such persons from prohibited or unauthorised use or disclosure of the disclosing party's confidential information. 3. TITLE All confidential information that is disclosed by the disclosing party to the receiving party is: 3.1 proprietary to the disclosing party; and 3.2 not to confer any rights of whatsoever nature in such confidential information to the receiving party. 4. STANDARD OF CARE The receiving party agrees to protect the confidential information of the disclosing party by using the same - 8 -

9 standard of care used to safeguard its own information of a confidential nature and taking all reasonable steps to prevent any unauthorised disclosure of such confidential information. 5. RETURN OF INFORMATION 5.1 The disclosing party may, at any time by way of written notice to the receiving party, require the receiving party to return any material containing, pertaining to or relating to confidential information of the disclosing party and to expunge such confidential information from any word processor, computer or other similar device into which it was entered or programmed, and may, in addition, require the receiving party to furnish a written statement (certified as correct by a director of the receiving party) to the effect that, upon such return, the receiving party has not retained in its possession, or under its control, either directly or indirectly, any such material. 5.2 As an alternative to the return of the material contemplated above, the receiving party shall, at the instance of the disclosing party, destroy such material and furnish the disclosing party with a written statement (certified as correct by a director of the receiving party) to the effect that such material has been destroyed. 5.3 The receiving party shall comply with all requirements in terms of this clause 5 within 7 (seven) days of receipt of written notice thereof. 5.4 The receiving party shall be responsible for the return or destruction in terms of this clause 5 of all material containing confidential information of the disclosing party which has been disclosed to any third party (including the representatives, offices, employees, associated entities, subsidiaries or holding companies of the receiving party) in terms of this agreement. 6. EXCLUDED INFORMATION 6.1 The obligations of the receiving party pursuant to the provisions of this agreement shall not apply to any information that: is known to or in the possession of the receiving party prior to disclosure thereof by the disclosing party; is or becomes publicly known, otherwise than pursuant to a breach of this agreement by the receiving party; is developed independently by the receiving party in circumstances that do not amount to a breach of the provisions of this agreement and without reference to the confidential information of the disclosing party; was received by the receiving party from a third party who is entitled to disclose same free of restriction and without obligation (whether contractual, legal, fiduciary or otherwise) to the disclosing party; is disclosed by the receiving party to satisfy the order of a court of competent jurisdiction or to comply with provisions of any law or regulations in force from time to time, provided that in these circumstances, the receiving party shall advise the disclosing party in writing prior to such disclosure to enable the disclosing party to take whatever steps it deems necessary to protect its interest in this regard: Provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and the receiving party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances; is disclosed to a third party pursuant to the prior written authorisation from the disclosing party. The onus shall be on the receiving party to demonstrate that the provisions of this clause apply. 7. NON-CIRCUMVENTION The receiving party shall not, directly or indirectly through any third party, or internally through its own representatives, officers, employees, agents or sub-contractors, in any manner: 7.1 exploit (including but not limited to the sale, marketing, development and design of) the confidential information and intellectual property owned by, accruing, or under license to Sisha.com Systems for the duration of this agreement other than expressly provided for in terms of this agreement; 7.2 solicit, or seek to exploit, any business, vendor or customer relationship disclosed by the disclosing party in terms of this agreement. 8. BREACH 8.1 The receiving party acknowledges and agrees that the unauthorised disclosure or use of confidential information by the receiving party or a third party may cause irreparable loss, harm and damages to the disclosing party. 8.2 Should the receiving party (including its representatives breach any of the provisions or undertakings set out in this agreement, the disclosing party shall be entitled to proceed to recover such loss, damages or expense suffered by it and shall notwithstanding any claim for damages, in addition without notice to the receiving party bring an application in any court of competent jurisdiction, whether on an urgent basis or not, for the granting of an interdict against the receiving party to prevent any further breach of the terms of this agreement. 9. SEVERABILITY If any provision in this agreement is found by any court of competent jurisdiction to be invalid, unlawful or unenforceable, such provision shall not invalidate the remaining provisions of this agreement. 10. DISCLAIMER OF INFORMATION The parties shall during the course with its relationship with each other and in terms of this agreement, provide various materials to one another containing confidential information and intellectual property. The disclosing party makes no representation nor gives any warranty relating to the accuracy thereof or that in fact such disclosures are exhaustive. The disclosing party does not provide any warranty that the materials shall be fault free or that same shall not contain any defects of whatsoever nature. The receiving party shall have no claim, nor shall the disclosing party be liable to the receiving party for any damages and/or losses arising from the use of disclosing party's confidential information or any inaccuracies, faults or defects therein