LICENCE AGREEMENT

 

BETWEEN:

M4Jam (Pty) Limited a company incorporated in South Africa under number 201410430407 (the “Licensor”),

and

The customer as identified in the Invoice (the “Licensee”)

WHEREAS:

A.         The Licensor owns and operates a micro jobbing solution.

B.         The Licensor carries on the business of providing commercial micro jobbing and creates, hosts, and distributes micro job data in electronic formats to communities of jobbers on various platforms.

C.         The Licensee wishes to access and utilise the Licensor’s micro jobbing solution to receive work products from jobbers during a job campaign.

D.         The Licensor is willing to give the Licensee access to its micro jobbing solution and related services for the purposes of the job campaign, on the terms set out in this Agreement.

WHEREBY IT IS AGREED AS FOLLOWS:

1.              INTERPRETATION

NOW IT IS HEREBY AGREED AS FOLLOWS:

1.1.         Definitions

In this Agreement, unless the context otherwise requires, the expressions and terms listed in Schedule 1 (Definitions) shall have the meaning stated in that Schedule.

1.2.         Construction of certain references

In this Agreement where the context admits:

1.2.1.               references to statutory provisions shall be construed as references to those provisions as amended or re‑enacted or as their application is modified by other provisions of which they are re‑enactments (whether with or without modification);

1.2.2.               references to Clauses and Schedules are references to clauses and schedules of and to this Agreement and references to paragraphs are, unless otherwise stated, references to paragraphs of the Schedule in which the reference appears;

1.2.3.               use of the singular includes the plural and vice versa;

1.2.4.               references to a person include an individual, a body corporate and an unincorporated association of persons;

1.2.5.               references to a party to this Agreement include references to the successors or assigns (immediate or otherwise) of that party; and

1.2.6.               in this Agreement general words introduced or followed by the word “other” “including” or “in particular” shall not be given restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words.

2.              HEADINGS

The headings and sub‑headings are inserted for convenience only and shall not affect the construction of this Agreement.

3.              SCHEDULES

Each of the Schedules shall have effect as if set out herein.

4.              PRECEDENCE

The following order of precedence shall apply to this Agreement and the documents referred to in it:

4.1.         the Clauses in the main body of the Agreement;

4.2.         the Schedules.

5.              TERM OF THIS AGREEMENT

5.1.         This Agreement shall begin on the date on which the Licensee successfully submits the Micro Jobs onto the Micro Jobbing Platform as provided for in the Quotation, and pays the Licence Fees to the Licensor as provided for in the Invoice (“Licence Effective Date”). Submission of the Micro Jobs and payment of the Licence Fee as aforesaid, will constitute acceptance by the Licensee of the Licence Terms and Conditions.

5.2.         The Agreement will continue for (a) the Initial Campaign Period or (b) until such date as all the Micro Jobs that form part of the Campaign have been completed by the Jobbers and Approved or Rejected by the Licensee, which ever may be the earlier (“Agreement Expiry Date”), unless terminated earlier in accordance with any other provision of this Agreement or by operation of law.

5.3.         The Parties will enter into a separate licence agreement for each Campaign.

5.4.         This Agreement will be of force and effect as if concluded between the Licensor and the Licensee,  where the same was concluded between the Licensee and an Authorised Agent of the Licensor.

5.5.         The Licensor agrees that any Affiliate of the Licensee may enjoy the benefit of the Licence granted to the Licensee by the Licensor. This constitutes a stipulatio alteri in favour of the Affiliates, which is capable of acceptance by them. Upon acceptance an Affiliate will be bound by the Licence Terms and Conditions as if that Affiliate were a party to the Agreement.  An Affiliate will not in any way or manner disclose, share or make the Job Data or the Jobber Data available to any other Affiliate in the Licensee Group (including the Licensee), during the Term of this Agreement or thereafter. The Licensee warrants the compliance by the Affiliates with this clause 5.5 and the Licence Terms and Conditions. A breach of the Agreement by any Affiliate will constitute a breach of the Agreement by the Licensee and entitle the Licensor to terminate the Agreement as provided for herein. Upon termination of this Agreement for any reason, the stipulatio alteri will cease to be of force and effect. The Licensee indemnifies the Licensor Group against any Losses of any nature whatsoever which the Licensor may sustain arising from or in connection with the exercise of any rights, or the failure to comply with any obligations, by an Affiliate of the Licensee, or otherwise arising from or in connection with the stipulatio alteri.

6.              ENGAGEMENT BETWEEN LICENSOR, LICENSEE AND THE JOBBER

6.1.         Following the initial engagement between the Licensor and the Licensee, the Parties will agree on a proposal for the Campaign, to be included in the Quotation, which will include the following:

6.1.1.               the Rand value of the Campaign, which will be determined as follows:

                               number of Micro Jobs (“Job Lot”)  x  individual Rand value of each Micro Job

                               (‘the Licence Fee”);

6.1.2.               the location where the Campaign is required to be executed, if applicable;

6.1.3.               the Job Specifications and Job Data to be collected; and

6.1.4.               reference to these Licence Terms and Conditions.

6.2.         The Licensee will pay the License Fee to the Licensor in consideration for the License.

6.3.         The Licensee will make payment of the Licence Fee into the account designated by the Licensor for this purpose.

6.4       The Licensor has entered into a separate set of terms and conditions with each Jobber prior to such Jobber gaining access to the Micro Jobbing Platform and performing a Micro Job (“Jobber Terms and Conditions”).  By accepting a Micro Job, the Jobber enters into a legally binding agreement with the Licensor to perform the Job for the Job Fee specified in the Job Specifications. The Jobber has to complete the Job in accordance with the Job Specifications, on or by the Job Completion Date

6.5       Once the Micro Job has been completed on the Micro Jobbing Platform, it will become available for Approval by the Licensee as provided for in Clause 13 below.

6.6       It lies within the Licensor’s sole discretion whether to accept a Campaign onto the Micro Jobbing Platform.

6.7       The Licensor may withdraw the Campaign from the Micro Jobbing Platform on notice to the Licensee, and also reserves the right to refuse the Licensee access to or use of the Micro Jobbing Platform at any time, as provided for in Clause 7.6 below.

7.              LICENCE GRANT AND RESTRICTIONS

7.1.         The Licensor grants to the Licensee a non-exclusive, limited, non-transferable Licence in the Territory for the Authorised Purpose. The Licence grant will come into force and effect on the Licence Effective Date.

7.2.         The Licensee may not sub-license the Licence to any Third Party or use it for any purpose other than the Authorised Purpose, without the Licensor’s prior written consent.

7.3.         The Licensee agrees that it may not use or authorise the use or otherwise cause the use of the Micro Jobbing Platform or the Jobber Data for any purpose other than the Authorised Purpose, without the prior written consent of the Licensor.

7.4.         The Licensee acknowledges and agrees that the use of Jobber Data for the Authorised Purpose is conditional on the consent of the Jobber.  Such consent will be obtained by the Licensor from the Jobber in the Jobber Terms and Conditions.  The Licensee agrees (without limitation):

7.4.1.               that the Jobber may withdraw his consent as provided for above at any point in time , including (without limitation) after the first engagement between the Licensee and the Jobber under the Authorised Purpose;

7.4.2.               to provide an opt-out option to the Jobber in each and every  communication between the Jobber and the Licensee arising from or in connection with the Authorised Purpose;

7.4.3.               to immediately comply with a request from a Jobber to opt-out of the communications referred to in Clause 7.4.1;

7.4.4.               to comply with all directions from the Licensor in relation to the Jobber Data, including (without limitation) a notice requiring Licensee to immediately cease its use of the Jobber Data for the Authorised Purpose; and

7.4.5.               to comply with POPI and all Applicable Law in the exercise of its rights and obligations under this Agreement.

7.5.         Upon withdrawal of consent by a Jobber as provided for in Clause 7.4, and should the Licensor so request, the Licensee will destroy the Jobber Data  within such timelines as the Licensor may prescribe, and present Licensor with written evidence that this has been done.

7.6.         The Licensor is entitled to terminate or suspend the Licensee’s Licence with immediate effect should the Licensee be in breach of, or should Licensor have reason to believe that the Licensee is in breach of, the provisions of this Clause 7.

7.7.         The Licence will terminate or expire, as the case may be, at the same time as the Agreement itself.

7.8.         The Licensee hereby indemnifies, defends and holds harmless the Licensor Group from all Losses arising or resulting from, or in connection with, any actual or threatened claim, demand, charge, action, cause of action, or other proceeding by any Third Party (including (without limitation) the Jobber), arising from or in connection with  a breach by the Licensee (or any of its Affiliates) of any of the provisions of this Clause 7.

8.              INTELLECTUAL PROPERTY RIGHTS IN THE JOB DATA

8.1.         The Licensee shall own all right, title and interest in and to the Intellectual Property Rights subsisting in or arising in connection with the Job Data. Such Intellectual Property Rights will vest in the Licensee  once the Licensee Approves the Job Data.

8.2.         The Licensor obtained from each Jobber an irrevocable cession, assignment and transfer in writing to the Licensor, without further consideration,  of the Jobber’s right, title and interest of all present and future Intellectual Property Rights owned by the Jobber anywhere in the world subsisting in or arising in connection with the Job Data, as may be necessary to give effect to (and the Jobber has agreed in writing with the Licensor to perfect) the cession, assignment and transfer by the Licensor to the Licensee of all present and future Intellectual Property Rights subsisting in or arising in connection with Job Data, prior to the creation of those Intellectual Property Rights.

8.3.         Each Jobber irrevocably and unconditionally waived any and all moral rights relating to the Intellectual Property Rights in and to the Job Data, together with any other rights which the Jobber may enjoy under any moral rights legislation existing in the future, in any part of the world to the extent permitted by any such legislation.

8.4.         However, each Jobber agreed that if any Intellectual Property Rights, including moral rights, cannot (as a matter of law) be assigned by that Jobber to the Licensor as contemplated in Clauses 8.2 and 8.3 above, then (a) the Jobber unconditionally and irrevocably waives the enforcement of such rights and all claims and causes of action of any kind against the Licensor with respect to such rights and (b) to the extent that the Jobber cannot (as a matter of law) make such waiver, then the Jobber unconditionally grants to the Licensor an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sub-licensees, under any and all such rights to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit and otherwise use the Job Data in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the Job Data.

8.5.         Accordingly, where the Intellectual Property Rights in and to the Job Data is not capable of assignment as contemplated in Clauses 8.2 and 8.3 above, the Licensor grants to the Licensee a sub-licence in respect of the Job Data which is no less favourable than the licence granted by the Jobber to the Licensor in respect of such Job Data as contemplated in Clause 8.4.

8.6.         The Licensee hereby indemnifies, defends and holds harmless the Licensor Group from all Losses arising or resulting from, or in connection with, any actual or threatened claim, demand, charge, action, cause of action, or other proceeding by any Third Party (including (without limitation) the Jobber) (a “Claim”) arising from or in connection with the cession, assignment and transfer or sub-licensing, as the case may be, of the Intellectual Property Rights in and to the Job Data by the Licensor to the Licensee under this clause 8, including (without limitation) any Claim that such Intellectual Property Rights infringe the Intellectual Property Rights of a Third Party or otherwise.

8.7.         In addition to Clause 8.6, the Licensee agrees not to hold Licensor responsible or liable for, and to waive all right of recovery against Licensor for, any breach by the Jobber of any provision of the Jobber Terms and Conditions that give rise to a failure by Licensor to comply with its obligations under this Clause 8, including (without limitation) a failure or refusal by the Jobber to license to the Licensor, or to perfect a cession, assignment and transfer of, the Intellectual Property Rights in and to the Job Data.

9.              THE LICENSEE OBLIGATIONS

9.1.         The Licensee will use the Data, including (without limitation) the Jobber Data, for the purposes as set out in this Agreement in accordance with and subject to POPI and any applicable data and privacy regulations.

9.2.         The Licensee will perform its obligations and exercise its entitlements in accordance with this Agreement or as is required by any Applicable Law.

9.3.         The Licensee may not access the Micro Jobbing Platform, the Job Data or the Jobber Data, by any other means than those officially permitted by the Licensor.

9.4.         Other than as expressly permitted in writing by Licensor, the Licensee may not make any additions, modifications, adaptations, or other alterations that in any manner materially reduce, impair, or otherwise negatively impact upon the accuracy, completeness, integrity, or safety of the Micro Jobbing Platform.

9.5.         The Licensee may not interfere or disrupt the Micro Jobbing Platform, or any Third Party services or networks linked thereto, including (without limitation) by knowingly or unknowingly transmitting any Virus onto the Micro Jobbing Platform.

9.6.         The Licensee shall not use the Micro Jobbing Platform, the Job Data or the Jobber Data for any illegal or unauthorized purpose. The Licensee agrees to comply with all rules and policies applicable to its use of the Micro Jobbing Platform as the Licensor may prescribe from time to time, acting reasonably.

9.7.         The Licensee may not include violent, nude, racial, discriminatory, unlawful, infringing, hateful, pornographic, sexually offensive or suggestive material, or any other offending information or content on the Micro Jobbing Platform or in a Job Specification, or create or post any unwanted email, comments, or other commercial or harassing communication to the Jobbers or other licensees.

9.8.         The Licensee is responsible for protecting its login and account details and any other Personal Information.

9.9.         The Licensee undertakes not to engage in any conduct which is calculated to bring, or has the effect of bringing Licensor’s reputation, brand, image or trademarks, into disrepute.

9.10.      Unless expressly prohibited in this Agreement, the Licensee may use any other micro jobbing platform and interface with any other database in addition to that which is provided for in this Agreement. However, and without prejudice to its obligations under the Licence Terms and Conditions, the Licensee shall ensure that in and when using such platforms, Third Party API’s or other tools, it  does not disclose, expose or allow such Third Party access to the Jobber Data.

9.11.      The Licensee shall keep, maintain and preserve in its principal place of business during the Term of this Agreement and for at least three (3) years following the expiration or termination of this Agreement, complete and accurate records and accounts covering all transactions relating to this Agreement, the Relevant Records, and all actions under or in connection with the Authorised Purpose.

9.12.      Such records and accounts shall be maintained in accordance with generally accepted accounting procedures and principles and Applicable Legislation and shall be available for Licensor’s inspection. Upon written request, Licensee shall make copies of such records available to Licensor for the purpose of ascertaining the accuracy and correctness of such statements.

9.13.      Licensor shall be at liberty, upon giving at least thirty (30) days prior written notice to Licensee, to have an independent third party appointed by the Licensor (“Inspector”) examine the said records and accounts and compliance by Licensee of the Licence Terms and Conditions (“Inspection”), at any time or times during the Term of this Agreement and for three (3) years thereafter, during normal business hours. The Licensee must permit an Inspector, during ordinary business hours to examine and verify all or any records required to be maintained by the Licensee and any supporting records held by the Licensee, including (without limitation) the Relevant Records. The Licensee will make available, in the required form and in the required manner, all information and documentation, which the Inspector considers necessary for the proper performance of the Inspection. The Licensee must give all assistance necessary to the Inspector to carry out the Inspection and permit the Inspector to take copies of any of those records to the extent necessary to comply with applicable professional standards to keep a record of work performed such as for defence and archiving purposes. Fees and expenses incurred in connection with Inspections shall be borne by Licensor.

10.           THE LICENSOR OBLIGATIONS

10.1.      The Licensor shall provide the Licensee with regular updates to the API, as and when the Licensor makes such updates available to the public from time to time.

10.2.      The Licensor shall provide Licensee with (a) the Job Data received from Jobbers who are performing Micro Jobs for the Licensee’s Campaign, as well as (b) Jobber Data relating to Jobbers that have submitted Job Data for that Campaign, in the case of (a) and (b) subject to the Jobber having authorised the Licensor in the Jobber Terms and Conditions to share the Job Data and/or the Jobber Data with the Licensee, and subject furthermore to Clause 7.4 above. This information shall be provided through an secure online link between Licensee and Licensor.

11.           CONTRACT MANAGEMENT

11.1.      The Licensor shall deliver to the Licensee, in the manner and at the times agreed in the Quotation,  any reports required by the Licensee.

11.2.      The parties shall ensure that their respective representatives are available as and when may be required to discuss issues arising from the Agreement.

12.           LICENCE FEE

12.1.      Pricing Methodology and Adjustments

The Licence Fee shall be calculated in accordance with the methodology set out in the Quotation.

12.2.      Deductions

12.2.1              The Licensor is entitled to deduct the (a) Campaign Activation and Set-Up Fees and (b) Administrative Fees from the Licence Fee.

12.2.2              The Licensor will be entitled to deduct from the Licence Fee the Campaign Activation and Set-Up Fees,  irrespective of the uptake of the Campaign by the Jobbers. Therefore, the Licensor will be entitled to deduct from the Licence Fee 100% of the Campaign Activation and Set-Up Fees,  irrespective of the number of Jobs performed, completed or Approved under the Campaign (“Completed Jobs”). 

12.3.      Invoicing and Payment

12.3.1       The Licensor shall include the following details in the Invoice, to enable the Licensee to verify the accuracy of the Invoice:

(A)    the relevant member of the Licensee Group to which the invoice relates; and

(B)    a description of the Campaign to which the invoice relates.

12.3.2       Invoices issued in accordance with this Clause 12 shall be payable by bank transfer in South African Rand (ZAR).

13.           PAYMENT TO JOBBERS, RECONCILIATION STATEMENT AND REFUND

13.1.      Approval of the Job Data by the Licensee constitutes the trigger for payment of the Job Fee to a Jobber by the Licensor.

13.2.      Where the Quotation provides for Approval other than Automated Approval, the Licensee will Approve the Job Data within forty eight (48) hours of submission of the Job Data to the Licensee for this purpose.

13.3.      Job Data will be deemed to have been Approved on the actual approval thereof by the Licensee, or on expiry of the forty eight (48) hours after submission of such Job Data (as provided for in clause 13.2), which ever may be the earlier.

13.4.       Once a Job has been Approved as provided for above it will be referred to as an “Approved Job”.

13.5.      The Licensor will report to the Licensee on the Job Campaign uptake as provided for in the Quotation.

13.6.      Within two (2) weeks of the Initial Campaign Period, the Licensor will provide the Licensee with a statement containing the following information (“Reconciliation Statement”):

13.6.1.            the Job Campaign;

13.6.2.            the number of Approved Jobs;

13.6.3.            the number of Completed Jobs;

13.6.4.            the number of uncompleted Jobs;

13.6.5.            a schedule containing the Job Data;  and

13.6.6.            the balance to be refunded to the Licensee, if any (“Refund”).

13.7     Any Refund due to the Licensee will be made simultaneously with the submission of the Reconciliation Report.

13.8.      Where the Licensee in good faith disputes the Reconciliation Statement or the correctness of any Refund the matter shall be resolved via the procedure in clause 34.

13.9.      All amounts payable by The Licensee under this Agreement are exclusive of VAT (if any) and any other like taxes. Where any taxable supply for VAT purposes is made under or in connection with this Agreement by The Licensor to The Licensee, The Licensee shall, in addition to any payment made for that supply, pay to The Licensor such VAT as is validly chargeable in respect of the supply at the same time as payment is due. The Licensor shall provide the Licensee with a valid VAT invoice in respect of any payment of VAT.

13.10.   If payment of any sum due under this Agreement is subject by law to withholding tax, the person making the payment (“Payer”) shall pay the amount due to the other party (“Payee”), less a deduction for such withholding tax, and the Payer shall account to the relevant tax authority for that withholding tax. Payment by the Payer to the Payee and to the relevant tax authority of the withholding tax shall constitute complete settlement of the relevant sums due under this Agreement to the Payee.

13.11.   The Payer shall, upon written request from the Payee and at the Payee’s expense, supply necessary documentary evidence that may be reasonably required of the payment of withholding tax by the Payer.

13.12.   The Payer shall, upon written request from the Payee, supply a declaration of tax residence on the prescribed forms and obtain certification by the relevant taxation authorities in order to confirm the applicability and availability of any reduced rate of withholding tax under the provisions of the relevant double taxation treaty (if applicable).

14.           RECORDS RETENTION

14.1.      The Licensee shall, and shall ensure that its Subcontractors will, keep or cause to be kept complete and accurate Relevant Records.

14.2.      The Licensee shall maintain the Relevant Records in a secure and suitable facility readily accessible to the Licensor and any Regulator until the later of:

14.2.1.            the date when the Records are no longer required to be retained under Applicable Law;

14.2.2.            the date that all matters arising from or in connection with this Agreement have been finally concluded by agreement of the parties; or

14.2.3.            the date when the Relevant Records are no longer required to be stored under the Licensor’s records retention policy as notified to the Licensee from time to time,

(“Retention Period”).

14.3.      The Licensee shall ensure that any retrieval systems are retained until the expiration of the Retention Period, or provided for recopying, reformatting, and other necessary maintenance to ensure the availability and usability of the Relevant Records at least until the expiration of the Retention Period.

14.4.      Following the expiry of the Retention Period, the Licensee shall not destroy or otherwise dispose of any Relevant Records upon expiry of the Retention Period unless and until:

14.4.1.            it has given the Licensor not less than sixty (60) days’ notice of its intention to destroy or dispose of such Relevant Records; and

14.4.2.            the Licensor has had a reasonable opportunity to recover the Relevant Records and has confirmed to the Licensee in writing that it does not require the Relevant Records to be delivered to it.

15.           THE LICENSEE DATA AND DATA SECURITY

15.1.      The Licensee acknowledges that the Licensor Data is the property of the Licensor Group and the Licensor reserves all Intellectual Property Rights in the Licensor Data.

15.2.       The Licensee shall, in accordance with Good Industry Practice:

15.2.1       not use or reproduce the Licensor Data in whole or in part in any form except as expressly permitted by the Licensor in accordance with this Agreement;

15.2.2       apply appropriate security procedures within the Licensee premises and take all precautions necessary to preserve the integrity of the Licensor Data;

15.2.3       procure that no unauthorised third party will, as a result of any act or omission of the Licensee or any of the Licensee’s Subcontractors or personnel, obtain access to any the Licensor Data or any information forming part of or being used in connection with the Services;

15.2.4       ensure that the Licensee and its Subcontractors and personnel do not deliberately or negligently corrupt, erase or otherwise alter such the Licensor Data;

15.2.5       not disclose passwords supplied by the Licensor to access the Micro Jobbing Platform to any person other than the Licensee’s Subcontractors and personnel with a need to know; and

15.2.6       immediately notify the Licensor of any breach or suspected breach of clause 15 and take all steps to Mitigate or avoid such breach (and prevent it from reoccurring).

15.3.      If the Licensor Data is corrupted, lost, degraded or otherwise altered due to an act or omission of the Licensee or any of the Licensee’s Subcontractors or personnel or the Licensee otherwise fails to fulfil its obligations under this Agreement, the Licensor may, at the cost and expense of the Licensee:

15.3.1.            require the Licensee to restore (or procure the restoration of) the Licensor Data within five (5) Business Days (or sooner if practicable); or

15.3.2.            itself restore or procure the restoration of the Licensor Data.

15.4.      The Licensee shall indemnify the Licensor Group for all Losses incurred or suffered by the Licensor as a result of a breach of this Clause 15.

16.           CONFIDENTIALITY

16.1.      Except to the extent set out in this Clause 16 or otherwise expressly permitted in this Agreement, each party shall:

16.1.1.            treat the other party’s Confidential Information as confidential;

16.1.2.            use the other party’s Confidential Information solely for the specific purpose or purposes for which it was disclosed; and

16.1.3.            not publish or otherwise disclose to any person the other party’s Confidential Information without the owner’s prior written consent,

and without limiting the generality of this Clause 16.1:

16.1.4.            not disclose the other party's Confidential Information to or in the presence of any person other than its personnel having a need to know in connection with this Agreement;

16.1.5.            advise any personnel to whom the other party's Confidential Information is to be disclosed of their obligations with respect to the Confidential Information prior to such disclosure and to ensure their compliance with such obligations; and

16.1.6.            take all action reasonably necessary to secure the other party's Confidential Information against theft, loss or unauthorised disclosure.

16.2.      Each party may disclose Confidential Information which would otherwise be subject to Clause 16 but only if it can demonstrate that:

16.2.1.            such disclosure is required by Applicable Law or by order of a court of competent jurisdiction or pursuant to a binding order or direction of a tax or fiscal authority or other Regulator; or

16.2.2.            the Confidential Information is lawfully in the receiving party’s possession without an obligation restricting disclosure at the time of receipt from the disclosing party; or

16.2.3.            on a date subsequent to disclosure being made, the Confidential Information becomes part of the public domain, other than through a breach of Clause 16; or

16.2.4.            the Confidential Information is already in the receiving party's possession without an obligation restricting disclosure at the time of receipt from the disclosing party; or

16.2.5.            disclosure to the receiving party’s professional advisors is necessary for the purposes of receiving professional advice in relation to the Agreement,

provided always that:

(A)        the onus shall be on the party disclosing the Confidential Information to prove that the disclosure is pursuant to Clause 16.2; and

(B)        if the Licensee is required to make a disclosure in accordance with Clause 16.2(A), the Licensee shall, if it is not so prohibited by Applicable Law, provide the Licensor with prompt notice of any such requirement or request so that that the Licensor may seek an order that the Confidential Information does not have to be disclosed and/or an appropriate protection order or assurance that confidentiality is accorded to the information that the Licensee is required to disclose. The Licensee will, at the Licensor’s reasonable cost, provide the Licensor with all reasonable assistance in any action taken by the Licensor to obtain such order or assurance.

17.           Ownership and Assignment of Intellectual Property Rights

17.1.      The Licensor /or its licensors shall own the Intellectual Property Rights subsisting in or arising in connection with Micro Jobbing Platform and the Licensor Data, and the Licensee shall not acquire any rights to those Intellectual Property Rights or in any other Intellectual Property Rights owned by the Licensor and/or its licensors, whether pre-existing or created during the Term.

17.2.      The Intellectual Property Rights in and to the Job Data vest with the Licensee as provided for in Clause 8 above.

18.           General Provisions Relating to Intellectual Property

Neither party shall have any right to use any of the other party’s trademarks, logos or brands for any purpose without that other party’s prior written consent and, in the case of the Licensee, then only if used in compliance with the Licensor’s relevant brand guidelines.

19.           Disclaimer, Representation and Warranty

19.1.      The Licensee acknowledge that the Micro Jobbing Platform, is provided on an "as is", "as available" and "with all faults" basis. To the fullest extent permitted by law, neither  the Licensor nor its shareholders nor any of their employees, managers, officers or agents (collectively, the "Licensor Parties") make any representations or warranties or endorsements of any kind whatsoever, express or implied, as to: (a) the Micro Jobbing Platform; (b) the content on the Micro Jobbing Platform; (c) the Micro Jobs delivered by the Jobbers; (d) security associated with the transmission of information to the Licensor by the Licensee, or to the Licensee by the Licensor via the Micro Jobbing Platform, or (e) that the Micro Jobbing Platform is free from any harmful components, including (without limitation) Viruses.

19.2.      The Licensor warrants to the Licensee that it has full capacity, power and authority to enter into, deliver and perform its obligations under and in accordance with this Agreement.

19.3.      The Licensee warrants to the Licensor that it has full capacity, power and authority to enter into, deliver and perform its obligations under and in accordance with this Agreement.

19.4.      The Licensee warrants that there are no existing agreements or arrangements with Third Parties or orders, judgements or decrees the terms of which prevent the Licensee from entering into this Agreement nor are there any actions, suits, proceedings or regulatory investigations pending or threatened against or affecting the Licensee or any of the Licensee’s Subcontractors or personnel that may affect the ability of the Licensee to perform its obligations under this Agreement; and at the Licence Effective Date and during the Term it has (and will continue to have or hold) all necessary licences, permits, consents and regulatory approvals from relevant Regulators necessary to perform its obligations under this Agreement.

20.           LIABILITY AND INDEMNITIES

20.1.      Subject to clause 20.2, each Party shall be liable to the other Party (and its Affiliates) for any damages incurred by the other as a result of the breaching Party’s failure to perform its obligations under the Agreement. Subject to Clause 20.2 and Clause 20.3, the Licensor Group’s total liability to the Licensee (and its Affiliates) shall be limited, in respect of each Micro Job, to 100% of the individual Rand value of that Micro Job as set out in the Quotation, and in the aggregate, to 100% of the Licence Fee.

20.2.      Except as set forth in Clause 20.3, in no event will either Licensor or the Licensee be liable to the other party (or its Affiliates) in contract or delict (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any indirect, special or consequential damages or losses of any kind whatsoever and however caused even if that party has been advised of their possibility.

20.3.      The limitations of liability set forth in Clauses 20.1 and 20.2  shall not apply with respect to:

20.3.1.            damages occasioned by the fraud, wilful misconduct or gross negligence of a Party;

20.3.2.            damages in respect of any liability that cannot be excluded in terms of any Applicable Law; and

20.3.3.            damages in respect of any liability for death or personal injury resulting from either Party's negligence

                        And in the case of the Licensee:

20.3.4.            damages arising from or in connection with the Licensee's breach of the Licensor's or any Third Party's Intellectual Property rights (including that of the Jobber);

20.3.5.            damages which arise from or in connection with the Licensee’s breach of the provisions in this Licence Agreement relating to the Licensee’s use of the Licensor Data, the Jobber Data and Personal Information, and its obligations in respect thereof;

20.3.6.            damages arising from or in connection with the Licensee's breach of the confidentiality provisions in clause 16;  and

20.3.7.            any indemnity given by the Licensee to the Licensor or the Licensor Group under this Agreement.

21.           TERMINATION AND CONSEQUENCES OF TERMINATION

21.1.      This Agreement may be terminated by either party with immediate effect by giving notice to the other party if the other party:

21.1.1.            is unable to pay its debts; or

21.1.2.            begins negotiations for, takes any proceedings concerning, proposes or makes any agreement for the deferral, rescheduling or other readjustment (or proposes or makes a general assignment or an arrangement or composition with or for the benefit of some or all of its creditors) or all of (or all of a particular type of) its debts, or a moratorium is agreed or declared in respect of or affecting all or a material part of (or of a particular type of) the debts of that party; or

21.1.3.            is the subject of a petition for an administration order or an application for an administration order, or an administrator is appointed to the other party or notice of intention to appoint an administrator is given, or any other step is taken by any person with a view to the administration of the other party under the Insolvency Act 1986 including the passing of any resolution by the directors or shareholders of the other party approving the presentation of any such petition, the making of any such application or appointment or the giving of any such notice; or

21.1.4.            is the subject of any step to enforce security over or a distress, execution or other similar process is levied or served against the whole or a substantial part of the assets or undertaking of the other party, including the appointment of a receiver, administrative receiver, manager or similar officer to enforce that security in respect of all or any part of the property or undertaking of the other party; or

21.1.5.            suffers or is subject to any equivalent event, circumstance or procedure to those set out above in this Clause 21.1.(1) to 21.1. (4) (inclusive) in any other jurisdiction; or

21.1.6.            commits a material breach of this Agreement which:

(A)  is not, in the reasonable opinion of the party giving the notice of termination, capable of remedy; or

(B)  if capable of remedy, is not remedied within fifteen (15) days of service of notice by the party not in breach of requiring such remedy, to the reasonable satisfaction of that party.

21.2.      Expiry or termination of this Agreement for whatever reason shall not affect or prejudice:

21.2.1.            the obligations and rights of the parties which have accrued in accordance with this Clause or otherwise have accrued due on or before or arising out of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination;

21.2.2.            the provisions of this Agreement which expressly or by their nature survive termination.

21.3.      Upon Licensor’s request and upon any termination or expiration of this Agreement, the Licensee will promptly:

21.3.1.            return to Licensor or, if so directed by Licensor, destroy all tangible embodiments of the Confidential Information (in every form and medium);

21.3.2.            permanently erase all electronic files containing or summarizing any Confidential Information, and

21.3.3.            certify in writing to the Licensor that it has complied with all the aforegoing obligations.

22.           ASSIGNMENT AND SUBCONTRACTING

The Licensor may at any time, without the prior written consent of the Licensee transfer, assign, novate, subcontract or otherwise dispose of all or any of its rights and/or obligations under this Agreement, and at the request of the Licensor, the Licensee shall execute all deeds and other documents required to effect any such transfer, assignment, novation, subcontracting or disposal.

23.           FORCE MAJEURE

23.1.      Neither party is liable to the other as a result of any delay or failure in the performance of its obligations under this Agreement if and to the extent that such delay or failure is caused by a Force Majeure Event.

23.2.      Each party shall:

23.2.1.            promptly notify the other of the occurrence of a Force Majeure Event including the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event;

23.2.2.            use its reasonable endeavours to remedy, or Mitigate the effect of the Force Majeure Event;

23.2.3.            continue to perform its respective obligations under this Agreement to the extent possible during the period of the Force Majeure Event; and

23.2.4.            if the Force Majeure Event prevents a party from performing its obligations under this Agreement for more than fifteen (15) days, the other party may terminate this Agreement by notice to that party.

24.           SET-OFF

The Licensor may set off against any obligation of the Licensor towards the Licensee, including (without limitation) payment of a Refund due to the Licensee, any Losses or sum owing by the Licensee to the Licensor.

25.           ANNOUNCEMENTS

Neither party to this Agreement shall make any announcement concerning the provisions or subject matter of this Agreement or containing any information about the other party without the prior written approval of the other (which shall not be unreasonably withheld or delayed). The restrictions contained in this Clause 25 shall survive termination or expiry of this Agreement and continue without limit of time.

26.           ENTIRE AGREEMENT

26.1.      This Agreement, together with any documents referred to in it, constitutes the whole agreement between the parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.

26.2.      Each party acknowledges that it has not been induced to enter into this Agreement by any representation or warranty other than those contained in this Agreement and, having negotiated and freely entered into this Agreement, agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud.  Each party acknowledges that its legal advisers have explained to it the effect of this Clause 26.

26.3.      The Licensor reserves the right to amend this Agreement from time to time by (a) making the modified provisions available on the Platform or (b) notifying the Licensee directly at the Licensors discretion. The Licensee is therefore responsible for regularly reviewing this Agreement. Once amended, the amended agreement will constitute the Agreement between the Parties.

27.           RIGHTS ETC. CUMULATIVE AND OTHER MATTERS

27.1.      Subject to the specific exclusions and limitations and express provisions to the contrary set out in this Agreement, the rights, powers, privileges and remedies provided in this Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided by law or otherwise.

27.2.      The exercise or waiver, in whole or in part, of any right, remedy, or duty provided for in the Agreement will not constitute the waiver of any prior, concurrent or subsequent right, remedy, or duty within the Agreement.

27.3.      No single or partial exercise of any right, power, privilege or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right, power, privilege or remedy.

28.           FURTHER ASSURANCE

At any time after the date hereof each of the parties shall, at the request and cost of another party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the provisions of this Agreement, subject to any express restrictions in this Agreement on the extent of either party’s obligations under this Agreement.

29.           COSTS

Subject to any express provisions to the contrary each party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement and in carrying out any related due diligence.

30.           INVALIDITY

30.1.      If any provision of this Agreement is held by any court or competent authority to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall not be affected.

30.2.      In these circumstances, the parties shall meet to discuss the affected provisions and shall substitute a lawful and enforceable provision which so far as possible results in the same economic effects.

31.           COUNTERPARTS

This Agreement may be executed in any number of counterparts, which shall together constitute one Agreement.  Any party may enter into this Agreement by signing any such counterpart.

32.           NOTICES

32.1.      Any notice (which term shall in this Clause include any other communication) required to be given under this Agreement or in connection with the matters contemplated by it, shall, except where otherwise specifically provided, be in writing in the English language.

32.1.1.            Any such notice shall be addressed as provided for in Clause 28 and may be:

(A)             personally delivered, in which case it shall be deemed to have been given upon delivery at the relevant address if it is delivered not later than 17.00 hours on a Business Day, or, if it is delivered later than 17.00 hours on a Business Day or at any time on a day which is not a Business Day, at 08.00 hours on the next Business Day; or

(B)             sent by registered post, in which case it shall be deemed to have been given two Business Days after the date of posting; or

(C)             sent by facsimile, in which case it shall be deemed to have been given when despatched, subject to confirmation of uninterrupted transmission by a transmission report provided that any notice despatched by facsimile after 17.00 hours on any Business Day or at any time on a day which is not a Business Day shall be deemed to have been given at 08.00 on the next Business Day; or

(D)             sent by electronic mail, in which case it shall be deemed to be given when actually received in readable form, but subject to the same provisions regarding receipt after 17.00 hours as apply to notices sent by facsimile.

32.2.      The addresses and other details of the parties are:

For the Licensor:

M4Jam (Pty) Limited

For the attention of:

Address: 2 Windsor Road, Golden Acre, Somerset West, 7130

E-mail address: info@m4jam.com

For the Licensee:

As provided for in the Quotation

32.3.      Either party may notify the other party of any change to the address or any other details specified in clause 32, provided that such notification shall only be effective on the date specified in such notice, or five (5) Business Days after the notice is given, whichever is later.

33.           RELATIONSHIP OF THE PARTIES

Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the parties nor shall it constitute, or be deemed to constitute, any party the agent of any other party for any purpose except as expressly provided.

34.           DISPUTE RESOLUTION

34.1.      If any Dispute, controversy or claim arises between the parties under, out of, or in relation to this Agreement, the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within thirty (30) days of a party’s notice of a Dispute, then either party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows below.

34.2.      The arbitration shall take place in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute. The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa). Unless agreed otherwise the mediation and the arbitration shall be administered by the Licensor. The number of mediators shall be 1 (one) and the number of arbitrators shall be 1 (one). The place of the mediation and the arbitration shall be Cape Town, South Africa.

34.3.      This dispute and arbitration provision will survive the termination or expiry of the Agreement.

35.           LAW AND JURISDICTION

This Agreement will be governed in all respects by the laws of South Africa.

 

 

 


SCHEDULE 1: DEFINITIONS

 

 

“Administrative Fees”

means a  percentage of the Licence Fee, as determined by the Licensor in its sole discretion, which will be applied towards maximising the uptake of the Campaign and towards such other matters as the Licensor may deem appropriate

“Affiliate”

means (a) a subsidiary or a holding company or a subsidiary of the holding company of any entity. For purposes of this definition the terms “subsidiary” and “holding company” shall have the meaning assigned thereto in Section 1 of the Companies Act, 2008, provided that such terms shall also include any foreign entity which, had it been registered in terms of that Act, would fall within the ambit of either of such terms; and/or (b) as to any entity, any other entity that, now or in the future, directly or indirectly, effectively controls, is effectively controlled by, or is under common effective control by another entity together with, such entity. For the purposes of this definition the term “effective control” shall include control of any entity through any voting pool or other arrangement, the right to the exercise of voting rights, directly or indirectly, resulting in effective control of any entity and/or control of its management, and/or the right to appoint the majority of the members of the board of directors of any entity. For this purpose, and without limiting the foregoing, any entity that owns at least 10% (ten percent) of the voting rights of any other entity shall be deemed to be in effective control of such other entity

“Agreement” or “Licence Agreement”

means the terms and conditions including the Quotation and the Invoice

“Agreement Expiry Date”

has the meaning ascribed to it in Clause 5.2

“API”

means the Application Programming Interface for the web, mobile or desktop based technology as provided by Licensor

“Applicable Law”

means the following, as amended from time to time, to the extent it applies to a Party (including, as applicable, the Affiliates of a Party):

i)        any statute, regulation, notice, policy, directive, ruling or subordinate legislation (including treaties, multinational conventions and the like having the force of law),

ii)      the common law,

iii)     any binding court order, judgement or ruling,

iv)     any applicable industry code, policy or standard enforceable by law,   and

v)       any applicable direction, policy or order that is given by any regulator, competent authority or organ of state or industry body

“Approve”

means confirmation by the Licensee that the Job Data meets the Job Specifications (and such other requirements as the Parties may agree to in the Quotation) and includes actual approval by the Licensee as well as deemed approval as provided for in clause 13.3; and “Approval” has a corresponding meaning

“Approved Job”

has the meaning given to it in clause 13.4

“Authorised Agent”

means an agent of the Licensor who is entitled to enter into this Agreement with the Licensee on behalf of the Licensor

“Authorised Purpose”

means the scope of the Licence which entitles the Licensee to the following:

(a) accessing the Micro Jobbing Platform;

(b) including Micro Jobs on the Micro Jobbing Platform as provided for in the Quotation;

(c) Approving or Rejecting the Job Data;

(d) ownership of the Job Data and Intellectual Property Rights in and to the Job Data; and

(e) use of the Jobber Data for the following purposes only:

     1.  Direct Marketing;

     2.  making available or sending vouchers, coupons or other rewards to the Jobbers; and

     3.  engaging with the Jobber on the Job Data

as provided for and in strict compliance with clause 7 of the Agreement

 

“Automated Approval”

means  Micro Jobs that are subject to immediate system authorisation

“Business Day”

means any day, except a Saturday, Sunday or a Public Holiday

“Campaign”

means the description for Micro Jobs of a certain nature and with a certain objective as set out in the Quotation

“Campaign Activation and Set-Up Fees

means three comma seven five  percent (3.75%) of the Licence Fee which the Licensor will, in its sole discretion, be entitled to apply towards the advertising of the Campaign, Campaign set-up costs and such other matters as it may deem appropriate

“Change of Control”

when applied to any party shall be deemed to have occurred if any person or persons who controls or together control such party at the date of execution of this Agreement subsequently ceases or together cease to control it

“Completed Jobs”

has the meaning given to it in clause 12.2

“Confidential Information”

means all information whether conveyed orally, in writing, in machine readable form or otherwise which relates to a Party’s and/or any of its Affiliate’s business, equipment, services, developments, trade secrets, Know-How, personnel, suppliers and customers (whether or not designated as “confidential information” by the disclosing party) together with all information derived from the above, the existence and terms of this Agreement and all information designated as confidential or which ought reasonably to be considered confidential

“Data”

means any data, including Personal Information, and any other applicable legislation in the Territory, supplied, stored, collected, collated, accessed, retained or processed by the Parties, irrespective of the media or form and includes: (a) all data that is in the possession of a Party and/or its Affiliates, and all data concerning or indexing such data (regardless of whether or not owned by the Party and/or its Affiliates or generated or compiled by the Party and/or its Affiliates); and (b) all other records, data, files, input materials, reports, forms and other such items that may be received, computed, developed, used or stored by either Party (including their Subcontractors and their employees) or agents from, for or on behalf of, that Party and/or any of its Affiliates, or in connection with this Agreement, and includes in the case of the Licensor the Jobber Data

“Default”

means any breach by a party of its obligations under this Agreement or any breach of any warranty, condition or other term or any default, negligence or misstatement of a party or its employees, agents or subcontractors in relation to the subject matter of this Agreement

“Direct Marketing”

has the meaning ascribed thereto in section 1(a) of POPI

“Dispute”

means any dispute between the parties arising under or in connection with this Agreement, including any dispute concerning the formation, construction, interpretation, or breach of the Agreement or a party’s performance of its obligations hereunder

“Dispute Resolution Procedure”

means the procedure for resolving Disputes set out at clause 34 (Dispute Resolution);

“Force Majeure Event”

means any event preventing the performance by a Party of some or all of its obligations under this Agreement arising directly from an act beyond the reasonable control of the party, which is either: an act of God, local government or government, war, fire, flood, earthquake or storm, acts of terrorism, explosion, civil commotion or industrial dispute affecting a third party (for which a substitute third party is not readily available)

“Good Industry Practice”

means, in relation to any undertaking and any circumstances, the exercise of the skill, care, prudence, efficiency, foresight and timeliness which would be expected from a highly skilled, trained and experienced person under the same or similar circumstances

“Initial Campaign Period”

means the period from the Licence Effective Date until the expiry of the period designated as such in the Quotation

“Inspector” and “inspection”

have the meanings given thereto in Clause 9.13

“Intellectual Property Rights”

means:                

(a)        copyright, patents, rights in semi-conductor chip topography, Internet domain names and website addresses and other similar rights or obligations, database rights and rights in trademarks, designs, Know-how and confidential information (whether registered or unregistered);

(b)        applications for registration, and the right to apply for registration, for any of the rights referred to in (a); and

(c)        all other intellectual property rights and equivalent or similar rights existing anywhere in the world

“Invoice”

means the instrument by which the Licensor will charge the Licensee for the Licence Fee

“Jobber”

means the natural person who will perform the Micro Job

“Job Completion Date”

means the data by which a Micro Job has to be completed as provided for in the Quotation

“Jobber Credentials”

means the location data, usage data, login and password and behavioural data of the Jobber

“Job Data”

means the information and data submitted by a Jobber to satisfy a Job Specification under a Micro Job, including (without limitation) photos, graphics, images , videos, voice recordings, location information, files, text data, works of authorship and other content and material (but excludes Personal Data)

“Jobber Data”

means any Personal Information of a Jobber including (without limitation) the Jobber’s name, surname, identity number, telephone number(s) and email address(es) made available to the Licensee by the Licensor for the Authorised Purpose under these Licence Terms and Conditions (but excludes the Jobber Credentials)

“Job Fee”

means the amount payable to a Jobber for an Approved Job

“Job Lot”

has the meaning given to it in clause 6.1.1

“Jobber Terms and Conditions”

has the meaning given to it in clause 6.4

“Job Specifications”

means the Licensee’s specific requirements for the Micro Jobs required for the Campaign as set  out in the Quotation

“Know-how”

means industrial and technical information and ideas, concepts, methodology and techniques in any form (including paper, electronically stored data, magnetic media, film and microfilm) concerning the performance of the micro jobs including (without limiting the foregoing) process maps, drawings, reports, spreadsheets, instruction and training manuals, tables of operating conditions, specifications, tables and procedures

“Licence”

means the subject matter of this Agreement which entitles the Licensee to act within the scope of the Authorised Purpose for the purposes of the Campaign

“Licensor Data”

means all data, information, text, drawings and other materials which are embodied in any medium including all electronic, optical, magnetic or tangible media and which are supplied to the Licensee by the Licensor or any of its Affiliates or which the Licensor and/or any Subcontractors are required to generate, collect, process, store or transmit in connection with this Agreement (but excludes the Job Data)

“Licence Effective Date”

has the meaning given thereto in clause 5.1

“Licence Fee”

has the meaning given thereto in clause 6.1

“Licensee Group”

means the Licensee and its Affiliates

“Licensor Group”

means the Licensor and its Affiliates

“Licence Terms and Conditions”

means the legal terms and conditions contained in the main body of the Agreement, as amended from time to time in accordance with the provisions of the Agreement

“Losses”

 

means all losses, liabilities, damages, costs, expenses (including management time and reasonable legal fees) and charges arising from or in connection with:

(a)        any act or omission of a Party under this Agreement;

(b)        any breach by a Party of any provision of this Agreement; or

(c)         any Third party actions, proceedings, claims, allegations or demands

“Micro Job”

means a piece of work that is capable of being completed by a Jobber by using any connected device which (a) interacts with the Micro Jobbing Platform and (b) delivers  the Job Data in accordance with the Job Specifications

“Mitigate”

 

means taking all necessary and reasonable action to avoid Losses, or any increase in Losses, including by using additional resources or ceasing a course of action (where appropriate) (and “Mitigates” and “Mitigated” shall be construed accordingly)

“Micro Jobbing Platform”

shall mean the online platform and API owned and operated by the Licensor and includes the System

“month”

means a calendar month and “monthly” shall be interpreted accordingly

“notice”

means a written notice issued in accordance with Clause 32

“Party”

means the Licensor or the Licensee, and “Parties” means the Licensor and the Licensee

“Personal Data”

has the meaning ascribed thereto in POPI

“Personal Information”

has the meaning ascribed thereto in POPI and shall refer, in this Agreement, to Personal Information about and pertaining to a Jobber or any other individual which is:

(a)        supplied by the Licensor to the Licensee or any member of the Licensee Group; or

(b)        processed by the Licensee in connection with the Authorised Purpose,

and for the purposes of this definition “processing” has the meaning given to that term in POPI and “process” and “processed” shall have a corresponding meaning

“POPI”

means the Protection of Personal Information Act, Number 4 of 2013

“Public  Holiday”

means a day which has been designated and gazetted as such by the government of the Republic of South Africa

“Quotation”

means the detail and specifications of the Campaign

“Reconciliation Statement”

has the meaning given to it in clause 13.6

“Refund”

has the meaning given to it in clause 13.6

“Regulator”

means any person having regulatory, supervisory or governmental authority over any part of the Licensor’s or The Licensee Group’s business

“Reject”

means the act whereby the Licensee confirms that the Job Data does not meet the Job Specifications (and such other requirements as the Parties may agree to in the Quotation)

“Relevant Records”

means data, records, materials and documents in any media and format within the possession or control of the Licensee from time to time, which relate to a Campaign, the Job Data, the Jobber Data or otherwise relates to the performance of the Licensee’s obligations under this Agreement, and that are reasonably necessary to enable the Licensor, its auditors, the Regulator or its appointees or representatives to undertake the audit activities provided for in the Agreement

“Reports”

means those reports referred to in the Quotation, if any

“Services”

means the services to be performed by the Licensor in accordance with this Agreement including:

(i)         any other activity, service or task to be performed by the Licensor during the Term as described in this Agreement together with any services that are incidental to those services and necessary to meet the requirements of this Agreement; and

(ii)       the performance by the Licensor of all its obligations under this Agreement

“System”

means telecommunication system, computer programs, software, computer and communications networks, hardware, firmware, servers, devices, cabling and related equipment, databases, the tangible media on which they are recorded and their supporting documentation, including input and output format, program listings, narrative descriptions, source Code, executable code, operating instructions and user manuals

“Subcontract”

means any contract or agreement between either Party and any Third Party, whereby in the case of the Licensor, that Third Party agrees to perform the Services or any part of them, and in the case of the Licensee, subject to the prior written consent of the Licensor

“Subcontractor”

means a subcontractor of either Party engaged by that Party under a Subcontract and, in the case of the Licensee, subject to the prior written consent of the Licensor

“Term”

means the duration of this Agreement, as determined in accordance with Clause 5

“Third Party”

means any person or entity which is not a party to this Agreement, including as “Third Parties” any Affiliates of either party and contractors (including Subcontractors)

“Value Added Tax” and “VAT”

value added tax as levied in terms of the Value Added Tax Act of 1991, as amended from time to time, including regulations promulgated thereunder

“Territory”

means the Republic of South Africa

“Virus”

means any software virus, trojan horse, time bomb or other code that is harmful or which enables access to Micro Jobbing Platform or theft of the Licensor Data or otherwise impairs the operation of the Licensor’s Systems